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)
Defamation of public official or public figure
Requires P to prove all elements of defamation, plus that the statement was FALSE and ACTUAL MALICE
Public Figure
Tough determination, but is one who “thrusts themselves into the limelight”
Defamation of private figure on a matter of public concern
P may recover by proving FALSITY and mere NEGLIGENCE by D.
BUT, P may recover presumed or punitive damage ONLY BY SHOWING ACTUAL MALICE
Defamation of Private Figure on a matter not of public concern
P can recover presumed and punitive damages w/o showing actual malice. negligence is enough.
D must prove truth of statement
Public Forum
Government properties that have been historically open to speech-related activities (streets, sidewalks, and public parks)
Regulations must be CONTENT AND VIEWPOINT NEUTRAL. If not, subject to SS
TPM restrictions allowed, however
Time, Place, Manner Restrictions
Government may regulate TPM in public forums and designated forums if the regulation is:
(1) CONTENT NEUTRAL (includes viewpoint)
(2) NARROWLY TAILORED to serve an IMPORTANT government interest (need not be least LRA, however); and
(3) leave open ALTERNATIVE CHANNELS of communication
NOTE: May still be overbroad, vague, or unfettered discretion
Designated Public Forums
Government properties that gvt could close to speech, but chooses to open to speech
Same rules apply as PUblic Forums (content neutral, but TPM allowed)
Limited Public Forums
Government properties that are limited to CERTAIN groups or dedicated to the discussion of only SOME subjects
Regulations must be:
(1) VIEWPOINT neutral; and
(2) REASONABLY RELATED to a LEGITIMATE purpose
Nonpublic Forums
Government properties that the government constitutionally can, and does, close to speech. Not historically linked with speech and assembly and not held open.
Regulations must be:
(1) Viewpoint neutral; and
(2) reasonably related to a legitimate purpose
Ex: military bases, schools while class is in session, government workplaces, PO sidewalks, outside jails, airports
Private Property
no FA right of access to private property for speech purposes
Freedom of the Press
Generally no greater FA freedoms than private citizens.
Access to Trials
FA guarantees the public and press a right to attend criminal and likely civil trials
BUT, this right may be OUTWEIGHED by an overriding interest found by the trial judge (children victims of sex offenses)
Regulation or Tax of Press
Press and broadcasting companies may be subject to GENERAL business regulations or taxes, but cannot be TARGETED for special regulation or taxes
Tax or regulation must be CONTENT NEUTRAL, unless a COMPELLING justification can be shown
Cable TV regulation
Content based regulations subject to SS
Internet Regulation
Strict standard applies
