First Amendment ConLaw II

Question 1

Content based

Answer 1

1. Based on content or subject matter of speech;
2. Strict scrutiny (presumed constitutional);
3. Government has burden to show compelling interest;
4. Narrowly-tailored = least restrictive means.

Question 2

Content-based exceptions

Answer 2

FTB-SCIP-OD-OV
1. Fighting words;
2. true threats
3. imminent lawless action
4. obscenity
5. defamation
6. symbolic
7. commercial
8. broadcast
9. public forums, schools, employment
10. Overbreadth
11. Vagueness

Question 3

Content neutral

Answer 3

SUNS

1. intermediate scrutiny - presumed unconstitutional;
2. Government must show significant or important interest
3. unrelated to suppression of speech;
4. Not burdening substantially more speech than necessary.

Question 4

time, place, and manner restrictions

Answer 4

SUNS-AAA
1. Government must show important or significant interest
2. Unrelated to suppression
3. narrowly-tailored = not burdening substantially more speech than necessary;
4. Ample Alternative Avenues for expression.

Question 5

Overbreadth

Answer 5

1. Government restricts protected and unprotected speech;
2. Substantially more than constitution allows
3. protected > some unprotected
4. facial challenge by 3p, must show that it will chill a substantial amount of constitutionally protected speech
5. court will deny facial if P’s behavior was HARDCORE and prohibited under any construction (generally applies to conduct as opposed to speech).

Question 6

Vagueness

Answer 6

1. Persons of common intelligence;
2. have to guess at law’s meaning;
3. may differ as to law’s application;
4. sufficiently definite warning;
5. purpose to prevent chilling speech.

Question 7

Prior restraints

Answer 7

PULPUD-SUNS-AAA
1. government ations prevent speech before uttered;
2. licensing/permits - clearly defined standards;
3. unfettered discretion;
4. content neutral time, place, and manner.

Question 8

Fighting words (look for overbreadth)

Answer 8

SUPIRB
1. words directed towards Specific person;
2. by their very Utterance;
3. likely to incite or Provoke;
4. Persons of common Intelligence;
5. to Retaliate; and
6. cause Breach of peace.

Question 9

Hostile audience (heckler’s veto)

Answer 9

CCUP
1. speech in a Crowd;
2. poses Clear and present danger; of
3. Uncontrollable violence;
4. police must proceed against crowd, protect speaker, ask speaker to stop, arrest speaker.

Question 10

Inciting imminent lawless action

Answer 10

DPIPL
1. Directed at Producing Imminent lawless action;
2. by those Present;
3. Likely to produce such action.

Question 11

True threat

Answer 11

SVP-GNUSI
1. Serious expression of Violence to a Person or Group;
2. Need not intent to carry out
3. speaker must have Subjective Understanding statements will be regarded as threatening
4. idea is to protect people from fear of violence or intimidation.

Question 12

Obscenity (Miller v. CA)

Answer 12

PPO-SLAPS-PH
1. appeals to Prurient interest as a whole - contemporary community standard;
2. depicts or describes Patently Offensive, sexual conduct as defined by state law;
3. work as a whole lacks Serious Literary, Artistic, Political, or Scientific value. national;
4. not Prudish jury;
5. Home possession protected.

Question 13

Child pornography

Answer 13

POSH
1. Prohibited even if not Obscene
2. must be specifically defined by State law
3. no possesion in Home.

Question 14

Symbolic Speech (US v. O’Brien)

Answer 14

SUING
1. government show Subtantial interest;
2. Unrelated to suppression of speech;
3. Incidental burden on speech;
4. No Greater than necessary to further interest.

Question 15

Commercial speech

Answer 15

DFUM SIDANG
1. Dominant theme proposes commercial transaction;
2. not False, proposing Unlawful aciton, or Misleading;
3. government must show Substantial Interest;
4. Directly Advances interest;
5. No (Greater) more than necessary (NOT least restrictive); ends justify means.

Question 16

Traditional public

Answer 16

1. Historically open to public, natural and proper for exchange of ideas (rallies)
2. Time, place, and manner
3. Strict scrutiny if content-based.

Question 17

Designated public forum

Answer 17

1. Not open historically or by practice but open to general public
2. Time place and manner
3. Strict if content-based.

Question 18

Limited public forum

Answer 18

1. Not historically open, opened only to certain groups or topics
2. Viewpoint neutral
3. Reasonable in light of intended use.

Question 19

Nonpublic forum

Answer 19

1. Not used for speech activities (military bases)
2. Viewpoint neutral
3. Reasonable in light of intended use.

Question 20

Public employment

Answer 20

1. Speaking as employee or citizen (scope)
2. matter of Public Concern (political, social, legitimately newsworthy)
3. if yes to above, balancing test of citize’s vs. gov’t interests in
4. fulfilling public responsibilities
5. effective discharge of Official Duties
6. Discipline in workplace.

Question 21

Public school cases

Answer 21

The Best LIVO Horse Makes Money
1. Tinker v. Des Moines - restrict if reasonable expectation of Substantial Disruption;
2. Bethel v. Fraiser - Lewd, Indecent, Vulgar, Offensive;
3. Hazelwood v. Kuhlmeier - school Sponsored Pedagogical concerns;
4. Morse v. Frederick - Illegal Drug use;
5. Mahony District v. BL - less authority Off Campus.