First Amendment Flashcards
Which regulation, content-based OR conduct-based, is more likely to be held unconstitutional?
Content-based! In general, a reg seeking to forbid communication of SPECIFIC IDEAS (content-based) is LESS likely to be upheld than regulation of CONDUCT incidental to speech
What are the scrutiny stds for contest-based and content-neutral restrictions, respectively?
Content based restrictions on speech must meet STRICT SCRUTINY Content-NETUTRAL restrictions(i.e. applies to ALL speech regardless of viewpt) burdening speech generally need only meet INTERMEDIATE SCRUTINY
What are the 2 alternative ways of finding that a law is content-based?
1) Subject matter restrictions: application of the law depends on the topic of the msg 2) Viewpt restrictions: application of the law depends on the IDEOLOGY of the speech
What is “prior restraint” and the level of scrutiny that it must meet?
Prior restraint = stopping speach BEFORE it occurs Ct orders surpressing speecg MUST meet STRICT SCRUTINY Gag orders on the press to prevent pejudicial PRE-trial publicity are NOT allowed
Must a prior restraint challenger follow a ct Gag Order?
YES! Procedurally proper ct orders MUST be complied w/ UNTIL they are VACATED or OVERTURNED A person who violates a ct order is BARRED from later challenging it
What are 3 requirements that must be met before the gov’t can require a license for speech?
1) There has to be an IMPORTANT reason for licensing 2) There must be CLEAR CRITERIA, leaving almost NO discretion to the licensing authority 3) There must be PROCEDURAL SAFEGUARDS suh as prompt determination of requests for licenses and judicial review of license denials
What is the std for a speech regulation being struck down for vagueness OR overbreadth?
1) A law is unconstitutionally VAGUE if a reasonable person CANNOT tell what speech is prohibited and what is allowed E.g. fighting words are NOT protected speech, BUT statutes attempting to punish the use of such words are often found to be VOID for VAGUENESS
2) A law is unconstitutionally OVERBROAD if it regulates subtl MORE speech than the constitution allows to be regulated
What are the elements of defamation? NOTE: NY Distinction
1) Defamatory language of OR concerning the π Defamatory = if it adversely affects the reputation the subject of that stmt (i.e. name calling»_space; never; fact-based opinion»_space; maybe)
Has to be concerning a living person Stmts abt a group: (i) if the stmts are about a large group, NO one is defamed; (ii) if the stmt is about a small group, π may recover if it can be reasonably be associated with π 2) Publication (intentionally OR negligently)by ∆ to a 3d person (NOT just π) NO de minimis req: revealing to ONE 3d person is sufficient for publication Primary publishers (newspapers, etc) are ALWAYS liable; secondary publishers (newspaper stand, etc) MAY be liable (if they knew of defamatory content) 3) Damage to π's reputation (type depends on type of defamation) Libel (written/printed/broadcasted publication of defamatory language): general damages are PRESUMED; no need to prove special damages Slander (spoken defamatory language): UNLESS slander per se [(i) related to π's business/profession; (ii) π has committed crime of moral torpitude (e.g. fraud); (iii) the woman π is unchaste; (iv) π has loathesome disease (leprosy; or STD)], π has to prove special economic damages NY DISTINCTION: there is an additional slander per se category available: imputation of homosexulaity ...[1st Am reqs] ONLY IF matter of "public concern"... 4) Falsity of the dematory language If stmt is TRUE, then NO c/a for defamation 5) Fault on ∆'s part (depending π's status) If π is PUBLIC OFFICIAL OR FIGURE, π has to prove malice (knowledge that stmt is false OR reckless disrgard as to its truth) to get damages If π is PRIVATE PERSON AND matter of PUBLIC CONCERN, π has to prove at least negligence as to stmts falsity to get damages for ACTUAL INJURY NOTE: liability for IIED for defamatory speech MUST meet the defamation stds and CANNOT exist for speech otherwise protected by the 1st Am
When can the gov’t regulate symbolic speech?
The gov’t may regulate CONDUCT that communicates (symbolic speech) IF: 1) it has an IMPORTANT interest UNRELATED to the supression of the msg; AND 2) the impact on communication is NO greater than NECESSARY to achieve the gov’t goal ——————- Gov’t ALLOWED to regulate… Draft card burning (b/c of potential for national emergency)
Nude dancing Contribution ltds to individual candidate campaigns Gov't NOT ALLOWED to regulate... Flag burning Cross burning (AS LONG AS not done to threaten/intimidate) Overall EXPENDITURE limits in campaigns (gov't cannot ltd the amt a person/corp/union spends to get a candidate elected, SO LONG AS the expenditures are indpendent of the candidate and are not disguised)
Is anonymous speech protected by the 1st Am?
YES! BUT NOTE: A state’s interest in promoting transparency and accountability in elections is SUFFICIENT to justify public disclosure of the names/addys of persons who sign ballot petitions
Is speech BY the gov’t restricted by the 1st Am?
Speech BY the gov’t CANNOT be challenged as violating the 1st Am Gov’t speech AND gov’t FUNDING of speech will be upheld SO LONG AS it is rationally related to a legitimate gov’t interest (rational basis)
What5 categories of speech are UNPROTECTED p/t the 1st Am?
REMEMBER: CONTENT-based restrictions of speech must meet STRICT SCRUTINY (law is NECESSARY to achieve a COMPELLING gov’t interest) Regulation of the following is COMPELLING… 1) Incitement of illegal activity The gov’t may punish speech IF (i) there is a SUBSTL likelihood of imminent illegal activity;AND (ii) the speech is directed to causing such illegality
2) Obscenity 3) Defamatory speech 4) Fighting words: true threats or personally abusive actions (cross burning to intimidate) ------------------ ALSO REMEMBER: CONTENT-neutral restrictions of speech must meet INTERMEDIATE SCRUTINY (law is SUBSTL RELATED to an IMP gov't interest) Regulation of the following is IMPORTANT... 5) SOME commercial speech: Advertising for illegal activity; OR false/deceptive ads are NOT protected EVEN true commercial speech that inherently risks deception can be prohibited (e.g. using certain trade names)
What are the 3 reqs for speech to be deemed obscene?
Speech is obscene (UNPROTECTED) IF… 1) the material appeals to the prurient interest(“shameful or morbid interest in sex”)(based on COMMUNITY std); 2) the material must be PATENTLY offensive (based on COMMUNITY std); AND 3) the material LACKS serious redeeming artistic, literary, poltical OR scientific value (based on NATIONAL std) NOTE: The gov’t MAY use zoning ordinances to regulate the number/location of adult bookstores/movie theaters
CHILD PORN (i.e. children in the production of the material) may be COMPLETELY banned, even if it's NOT obscene The gov't CAN'T punish the PRIVATE possession of obscene materials; BUT the gov't CAN punish the private possession of CHILD PORN The gov't may seize the assets of businesses CONVICTED of violating obscentity laws PROFANE/INDECENT speech is generally PROTECTED by the 1st Am; EXCEPT... on free, over-the-air broadcast media (TV/radio); AND in schools
May the gov’t restrict speech by gov’t EMPLOYEES?
YES! Speech by gov’t emps on the job in the performance of their duties is NOT protected by the 1st Am
May the gov’t impose liability for TRUTHFUL reporting of LEGALLY obtained gov’t information?
NO! A state may NOT create liability for the TRUTHFUL reporting of information that was LEGALLY obtained from the gov’t records (e.g. a rape victim’s identity obtained lawfully by a reporter)
