First Amendment

Question 1

content regulation rule

Answer 1

not tolerated unless they fall within one of the narrow exceptions: political speech, obscentiy, or commercial speech

Question 2

hypo: obscenity

Answer 2

(1) the average person applying contemporary community standards would find that, taken as a whole, the work appeals to the prurient interest
(2) the work depicts or describes sexual conduct in a patently offensive way
(3) work lacks serious literary, artistic, political or scientific value

Question 3

commercial speech

Answer 3

protected unless false and deceptive

restriction is permitted if the restriction promotes substantial state interest, and that there is a reasonable fit between regulation and state interest at stake

Question 4

demagoguery

Answer 4

political speech

may not be regulated unless

speech advocates imminent lawless conduct, likely to incite or produce such action

analyze: whoo is the speaker; who is the audience; what are the circumstances around the speech that make the violence more or less likely

Question 5

hypo: speech by government employee

Answer 5

purely private speech that does not relate to a matter of public concern is not protected

if speech addresses a public concern, then may regulate if speech interferes with the government function they are performing

if government can show they would have fired you anyway for speaking freely, then gov is justified

Question 6

hypo: speech harmful to minors

Answer 6

allowable to regulate

Question 7

hypo: fighting words

Answer 7

words that incite violence in another are not protected

Question 8

prior restraint

Answer 8

usually the government must wait for speaker to speak until it can act

prior restraint of speech permitted only in extreme circumstances (publishing when troop ships were leaving port)

Question 9

time place manner restrictions

Answer 9

allowed if reasonable and viewpoint-neutral

Question 10

if the permit process is applied differently for different people

Answer 10

may be viewed as concealed content regulation

and apply strict scrutiny

Question 11

if town gives permit giver unfettered discretiono

Answer 11

this also can be viewed as a disguised conotent regulation and be subject to strict scrutiny

Question 12

the time place manner regulations MUST

Answer 12

be reasonable

Question 13

** public forum doctrine

Answer 13

traditionally = streets, sidewalks, and parks.

these must be kept open to free speech unless the state can show significant interest – then they can subject it to limited, viewpoint neutral, reasonable restrictions

Question 14

limited public forum

Answer 14

free speech activities are available.

any restriction must be

(1) reasonable,
(2) leave open other channels to communication, and
(3) be viewpoint neutral

example: inside of courthouse, post office, military bases –> only have to be open to the public for the purpose for which the government opened it up

Question 15

nonpublic forum

Answer 15

private property and places where they are not open for speech activities

note: private property which i have opened to the public (eg, shopping center; bulletin boards) for a specific purpose – speech requirements must be related to the purposes for which the property was opened to the public

Question 16

symbolic speech

Answer 16

speech that is not expressed verbally – symbolic speech is protected and thereby subject to strict scrutiny

however, conduct alone is not protected

note: burning the flag is symbolic speech - as long as the flag you burn is yours

Question 17

cross burnings

Answer 17

in and of themselves can be symbolic speech

but if used to intimidate an individual in particular, then not protoected

Question 18

over-breadth definition

Answer 18

reaching and prohibiting too much speech

it is prohibiting both protected and unprotected speech

Question 19

vagueness definition

Answer 19

when youre not sure the law is regulating

prohibited because of its chilling effect on speech

Question 20

hypo: prohibition against all first amendment activities within airport terminal

Answer 20

held overbroad because it would prohibit people from reading a newspaper

cured by time place manner restriction to allow solicitation outside the entrance to the airport

Question 21

hypo: prohibiting any conduct annoying to passers-by

Answer 21

unconstitutional because vague on the face

no one knows what conduct it may reach or not reach

Question 22

protection of reputation and privacy

Answer 22

another form of content regulation is when state allows you to sue another for defamation

first amendment as defense

court has upheld state defamation liability as long as it meets

Question 23

defamation for public figure

Answer 23

defendant must have known statement was false or acted with reckless disregard as to whether the statement was false or true

Question 24

private persons and defamation

Answer 24

prove fault on the part of the speaker - was negligent about truth or falsity

prove specific harm

truth is not a defense

Question 25

freedom of association

Answer 25

(1) if you associate with others for purpose o pursuing first amendment rights like speech, petitioning government, etc
(2) then right to assemble is at its strongest
(3) when assembly is not about first amendment activity, lowered freedom of association –> may enforce reasonable regulations

ex: rave bars were restricted in dallas, teens claimed first amendment. court held that freedom of association doesnt encompass a nightclub

Question 26

freedom of the press

Answer 26

freedom is imputed from individual right to speech - same as individual speech

Question 27

news gatherers privilege

Answer 27

in some states, statute has been given to protect sources – only exists in states where statutory protection has been given

Question 28

press access to courtrooms

Answer 28

press have constitutional right to access to criminal trials

in some civil trials (class actions, environmental actions, etc with wide public import) may have constitutional right, not established