First Amendment Flashcards
Restriction on sexually explicit speech claiming secondary effects
1) Govt purpose (already settled secondary effects are important govt purpose)
2) Reasonable other means
Restriction on a non public forum
1) Government has a reason to restrict or ban your speech
2) Reasonable in light of the purpose of the forum
Restriction on a public forum
1) Traditional Public Forum = sidewalks, parks, streets only
2) Designated Public Forum = non traditional but govt has opened it up
Both are fully protected unless outside or lesser protected
3) Where govt is requiring a permit and license that is a time, place, manner
i) Govt has to prove important purpose in req license or permit, clear objective criteria for granting or denying the req, criteria have to leave almost no discretion in the deciding official
4) Otherwise S.S
Restriction on commercial speech
1) Define C.S = Speech that proposes a commercial transaction or its speech that involves solicitation for profit
2) Central Hudson Test
1. Has to be lawful and not misleading
2. Furthers a substantial important govt interest
3. Directly & materially furthers the interest
4. Not more extensive than necessary
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If it fails part 1 of C.H Test apply rational basis
1) Rationally related to a conceivable legitimate govt interest
Restriction on govt employee speech
if the speech is concerning a matter of public concern, or it is not speech according with the person’s job then pickering test:
1) How disruptive is the speech likely to be under the circumstances vs
2) How important the speech is
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If not public concern or it is apart of your job then no protection
Restriction on Conduct Speech
1) Test = a person is engaging in conduct with the intent to communicate a message and an audience would understand their conduct is intended to be communicative
O’Brien Test [intermediate scrutiny] -restrictions on this speech must further an important government interest, must be content neutral, and the means are not substantially more restrictive than necessary to further the purpose
Restriction involving time, place, manner on speech
1) Important interest
2) Content neutral
3) Is not more substantially restrictive on speech than necessary
I.e other alternatives
Restriction on illegal advocacy
Outside 1st Amendment
1) Brandenburg Test - immediate illegal action and immediate illegal activity is likely/probable
2) If it fails B test then no protection since it will also fail other tests since there is no compelling interest
Restriction on defamatory speech of a public official or public figure
Outside 1st Amendment
1) Public Figure
1. Pervasively famous, voluntarily injected yourself into a public controversy in order to influence the outcome (for length/purpose of that controversy)
2) Public Official
1. Any candidate, anyone in elected public office, high level public employees (public is interested in their performance)
3) NYT Test
• Falsehood is about a matter of public concern and P is a public official or figure then clear & convincing evidence D knew or was reckless about truth
• Reckless - subjective actual doubt about speech being true
Allowed any damages chooses to impose
Restriction on defamatory speech of a private figure
Outside 1st Amendment
1) P has to prove negligence - D did not use reasonable care
- If you can go beyond negligence and meet NYT the court can add punitive damages
Restriction obscene speech
Outside the 1st amendment
1) Miller Test
1. Defined conduct of sexual conduct
2. Speech must be patently offensive
3. Speech has to appeal an prurient interest
4. Without serious literary artistic political scientific and educational value (LAPSE)
- 2 & 3 use an average person in the community based on contemporary standards
- 4 uses a reasonable person not limited to community
Restriction on fighting words
Outside the 1st amendment
1) Fighting words = has to be face to face insults that have a tendency to bring about immediate retaliatory violence by the addressee
2) If it fails F.W then apply S.S
Restriction on speech to a hostile audience
Outside 1st amendment
1) Violence is imminent
2) Could not reasonably control the violence/actions of the audience
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If it fails the above test most likely S.S but depends on facts
Restriction on sexually explicit materials of children
No protection fully outside
Restriction on Govt’s own Speech
Outside 1st amendment
1) Govt Speech
1. Permanent monuments
2. Speaking through 3rd party to say its own message
3. Licenses plates
2) Rational Basis
- Rationally related to a conceivable legitimate govt interest
