First Amendment Flashcards
Content Based Restrictions
Generally must meet SS
Two types: Subject matter restrictions and viewpoint restrictions
Content Neutral Regulation
Generally need only meet intermediate scrutiny
Prior Restraints
Court orders suppressing speech must meet SS
Must be complied with until they are vacated or overturned. Can’t violate a court order and challenge it later
Collateral Bar Rule
Court orders suppressing speech must be complied with. Can’t violate the court order and bring challenge later, even if it is unconstitutional
Licensing of Speech
Gvt can require licence if:
(1) there is an important reason for licensing
(2) clear criteria leaving almost NO DISCRETION to the licensing authority
(3) procedural safeguards such as prompt determination of requests and judicial review
Vagueness
Law is unconstitutionally vague if a REASONABLE person cannot tell what speech is prohibited and what is allowed
Overbreadth
law is unconstitutionally overbroad if it regulates a SUBSTANTIAL AMOUNT of protected speech in relation to its plainly legitimate sweep
Can be facially invalidated
Symbolic Speech
Government may regulate conduct if it has an IMPORTANT interest UNRELATED TO SUPPRESSION OF THE MESSAGE and if the impact on communication is NO GREATER THAN NECESSARY to achieve the government’s purpose.
Ex: Flag burning constitutionally protected
Ex: draft card burning is not constitutionally protected
Ex: local gvts may prohibit nude dancing
Ex: burning a cross is protected unless done with intent to threaten
Ex: contribution limits in election campaigns are constitutional, but expenditure limits are not
Inciting Imminent Lawless Action
government may punish speech if there is a SUBSTANTIAL likelihood of IMMINENT illegal activity and if the speech is directed to cause imminent illegality
Obscenity
Speech is obscene and unprotected if it:
(1) appeals to the PRURIENT interest in sex, using a community standard
(2) is PATENTLY OFFENSIVE under community standards, and
(3) Lacks serious artistic, literally, political, or scientific VALUE, under a national standard
Child Pornography
May be completely banned, even if not obscene. But may only be banned if actually using children
HOWEVER, gvt may NOT bar visual material that only depicts minors engaged in sexual conduct (CGI or young looking pornstars)
POSSESSION of child pornography may be punished
Zoning Regulations on Adult Entertainment
allowed under First Amendment if regulation is designed to reduce the secondary effects of such businesses.
CANNOT impose a flat ban
Profane and Indecent speech
Generally protected by FA
Ex: over broadcast media (captive audience)
Ex: in schools
Fighting Words
True threats are NOT protected by FA (cross burning w/ intent to intimidate)
Words likely to incite immediate physical retaliation in an AVERAGE person
Annoying is insufficient.
Also statutes that punish fighting words for only certain viewpoints will not be constitutional (e.g. proscribing only fighting words that insult on basis of race, religion, or gender)
USUALLY WILL BE INVALID AS VAGUE OR OVERBROAD ON MBE
Commercial Speech
False and misleading ads or ads that propose illegal activity are NOT protected by the FA. Can be punished.
Truthful commercial speech upheld only if (type of intermediate scrutiny):
(1) Serves a SUBSTANTIAL gvt interest;
(2) DIRECTLY ADVANCES that interest; and
(3) is NARROWLY TAILORED, but need not be the Least restrictive alternative (reasonable fit)
Ex: may prevent professionals from advertising under a trade name
Ex: may prohibit attorneys from in person solicitation for profit (mail is fine)
Ex: may NOT prohibit accountants from in person solicitation of clients for profit (no risk)
