First Amendment Flashcards
content regulation rule
not tolerated unless they fall within one of the narrow exceptions: political speech, obscentiy, or commercial speech
hypo: obscenity
(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
commercial speech
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
demagoguery
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
hypo: speech by government employee
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
hypo: speech harmful to minors
allowable to regulate
hypo: fighting words
words that incite violence in another are not protected
prior restraint
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)
time place manner restrictions
allowed if reasonable and viewpoint-neutral
if the permit process is applied differently for different people
may be viewed as concealed content regulation
and apply strict scrutiny
if town gives permit giver unfettered discretiono
this also can be viewed as a disguised conotent regulation and be subject to strict scrutiny
the time place manner regulations MUST
be reasonable
** public forum doctrine
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
limited public forum
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
nonpublic forum
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
symbolic speech
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
cross burnings
in and of themselves can be symbolic speech
but if used to intimidate an individual in particular, then not protoected
over-breadth definition
reaching and prohibiting too much speech
it is prohibiting both protected and unprotected speech
vagueness definition
when youre not sure the law is regulating
prohibited because of its chilling effect on speech
hypo: prohibition against all first amendment activities within airport terminal
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
hypo: prohibiting any conduct annoying to passers-by
unconstitutional because vague on the face
no one knows what conduct it may reach or not reach
protection of reputation and privacy
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
defamation for public figure
defendant must have known statement was false or acted with reckless disregard as to whether the statement was false or true
private persons and defamation
prove fault on the part of the speaker - was negligent about truth or falsity
prove specific harm
truth is not a defense
freedom of association
(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
freedom of the press
freedom is imputed from individual right to speech - same as individual speech
news gatherers privilege
in some states, statute has been given to protect sources – only exists in states where statutory protection has been given
press access to courtrooms
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
