First Amendment Flashcards
FREE SPEECH METHODOLOGY
(restricts gov regulation (action) of private speech) Balance: “Protect free flow of ideas” v. purpose of policy sought. Includes anonymous speech, and freedom not to speak.
Content of Speech Analysis
Content Based v. Content Neutral
1. Content-Based: presumptively UN; must generally meet strict scrutiny. Two types of content based law:
a. Subject matter restrictions (application of the law depends on the topic of the message)
b. Viewpoint restrictions (application of the law depends on the ideology of the message)
Content-Neutral (TPM) easier to uphold; only have to meet intermediate scrutiny.
a. If law is content neutral, TPM in public/limited forum: ONLY VALID if: (1) narrowly tailored; (2) important government interest, and (3) leaves open alternative channels of communication.
Prior Restraint of Speech Analysis
administrative system of a judicial order that stop speech before it occurs.
- Court orders [“gag orders”] suppressing speech must meet strict scrutiny. Must be complied with until vacated or overturned. A person who violates a court order is barred from later challenging it.
a. Procedural safeguards: standards must be narrowly drawn, reasonable, and definite.
i. Also: injunctions must be promptly sought, and the issue promptly adjudicated.
b. No gag orders on the press to prevent prejudicial pre-trial publicity (high profile crim case) - License: gov can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as promote determination of requests for license and judicial review.
Vagueness & Overbreath of Speech Analysis
(BOP on challenger)
- Vagueness = law is UN vague if reasonable person cannot tell what speech is prohibited and what is OK.
- Overbreadth = law is UN overbroad if it regulates substantially more speech then the Constitution allows.
- Fighting words laws: these words are NOT protected, but SC has always found the laws are vague/over.
Conduct/Symbolic Speech Analysis
(ok if TPM): Gov can regulate conduct that communicates IF important interest unrelated to suppression of the message, AND impact on the communication is no greater than necessary.
1. EX: Flag-burning IS constitutionally protected speech; draft card burning is NOT; nude dancing is NOT protected; cross-burning IS protected, unless done w/ intent to threaten; Contribution limits in election campaign are allowed for candidates (but no caps for lobbying), but expenditure limits are UN.
Government Speech
Speech by government employees in performance of their duties is not protected by FA. RB test.
Incitement of Illegal Activity
Gov’t may punish speech if there is 1) a substantial likelihood of imminent illegal activity, 2) and if the speech is directed to causing imminent illegality. [True threats not protected]
Obsenity & sexually oriented speech
Not protected if: (1) Material must appeal to the prurient interest (local) + (2) patently offensive under law prohibiting obscenity + (3) taken as whole, material lacks serious redeeming value (artistic, scientific, political, literary) (national)**
- Gov’t may use zoning ordinances to regulate the location of adult book and movie stores. RB test.
- Child pornography may be completely banned, even if not obscene (children must be used in production)
- Gov’t may not punish private possession of obscene materials (unless child porn)
- Gov’t may seize assets of businesses convicted of violating obscenity laws.
- Profane & indecent speech (“fuck the draft”) is generally protected (except in broadcast media & schools).
Commercial Speech
generally, intermediate [“If the regulated speech concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid if (1) it serves a substantial gov interest, (2) directly advances that interest, and (3) is narrowly drawn.” Need not be least restrictive.]
- Advertising for illegal activity, and false/deceptive ads are not protected by FA.
- True commercial speech that inherently risks deception can be prohibited.
a. Gov’t may prevent professionals from advertising or practicing under a trade name
b. Gov’t may prohibit attorney, in-person solicitation of clients for profit. But not accountants. - Government regulations of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative. A complete ban on truthful speech unlikely to survive.
Defamation
- P = “public official” (or running) P can recover by proving falsity of the statement and actual malice.
- P = “public figure” (thrust into limelight) P can recovery for defamation by proving falsity + actual malice.
- P = “private figure” in matter of public concern: state may allows P to recovery for defamation by proving falsity and negligence of ∆. (P can only recover punitive or presumed by showing actual malice)
a. Matter of private concern: P can recovery presumed and punitive damages w/o showing malice.
Public Forums
Gov properties that the gov is constitutionally required to make available for speech.
- Regulations must be subject matter and viewpoint neutral (TPM). If not, SS must be met.
- Valid TPM serves important gov purpose and leaves open adequate alternative places for communication.
a. Gov regulation of public forums need not use least restrictive alternative. - Unlimited discretion = void on its face. Officials cannot have discretion to set permit fees for public event.
Designated Public Forums
Properties the gov could close to speech, but chooses to keep open. Same as public.
Limited Public Forum
Gov properties that are limited to certain groups or dedicated to the discussion of only some subjects. Gov can regulate speech in limited public forums so long as the reasonable and viewpoint neutral.
Non-Public Forum
Gov’t properties that gov’t constitutionally can and does close to speech. Allowed to regulate so long as reasonable + viewpoint neutral. (Military bases, outside prison/jails, Post office sidewalks*, airport)
Freedom of Association
= Laws that prohibit or punish group membership must meet strict scrutiny.
A. To punish a person for membership in a group, it must be proven that person:
1. Actively affiliation (2) Knowing of illegal activity; & (3) Specific intent of furthering the illegal activities.
B. Laws the require disclosure of group membership, where such discloser would chill association, must meet SS.
C. Laws that prohibit a group from discriminating are constitutional unless they interfere w/ intimate association or expressive activity. (Small dinner party & the Clan can exclude).
