first amendment – free speech

Question 1

content regulation

what does the court assumef ro any regulation of speech based on content

Answer 1

presumptively unconsitutional

Question 2

content regulation

how does the government justify a content regulation

Answer 2

must show that the regulation is necessary to serve a compelling state interest and narrowly drawn to achieve that end

Question 3

content regulation

what are the categories of speech that the government has a compelling interest in for content regulations

Answer 3

unregulated speech, which includes:
1. inciting imminent lawless actions
2. fighting words
3. obscenity
4. some commercial speech

Question 4

content regulation

what standard are content-neutral regulations subject to

Answer 4

intermediate scrutiny; government must show:
1. they advance important interests unrelated to the suppression of speech
2. they do not burden susbtantially more speech than necessary or are narrowly tailored to further those interests

Question 5

conduct regulation

what is necessary to determine whether time, place, and manner regulations are upheld

Answer 5

what type of forum is involved

Question 6

when can symbolic speech be regulated

Answer 6

1. regulation is within the constitutional power of the government
2. furthers an important government interest
3. the government interest is unrelated to the suppression of speech
4. the incidental burden on speech is no greater than necessary

Question 7

TPM regulations

what is considered a public forum

Answer 7

government properties that are historically open for speech activities

Question 8

TPM regulations

what is considered a designated public forum

Answer 8

government properties not historically open for speech activities but which have been thrown open by the government for such activities –either all the time or at specified times

Question 9

TPM regulations

what is the test for TPM regulation involving a public forum or designated public forum

Answer 9

1. be content neutral
2. be narrowly tailored to achieve an important government interest
3. leave open alternative channels of communication

Question 10

TPM regulation

what is considered a limited public forum

Answer 10

government properties not historically open for speech activities but which the government has opened for a particular purpose

Question 11

TPM regulation

what is considered a nonpublic forum

Answer 11

government properties not historically open for speech activities and not held open for speech activities in any way

Question 12

TPM regulations

what is the test for a TPM regulation involving a limited public forum or nonpublic forum

Answer 12

1. viewpoint neutral
2. be reasonable related to a legitimate government purpose

Question 13

reasonableness of regulation

regardless of whether the regulation is content-based or content-neutral, what are the three challenges that can be made to a regulation

Answer 13

1. overbroad regulation
2. void for vagueness
3. officials given unfettered discretion

Question 14

reasonableness of regulation

what is considered an overbroad regulation

Answer 14

a regulation that prohibits substantially more speech than necessary; if regulation punishes a substantial amount of protected speech in relation to the regulation’s plainly legitimate sweep, the regulation is facially invalid

Question 15

reasonableness of regulation

what is the void for vagueness doctrine

Answer 15

• DP requires that laws be reasonable (i.e., sufficiently clear to allow reasonable persons to know what is prohibited)
• inherent vagueness of the statute has a chilling effect on protected speech activities and renders at least that part of the statute unconstitutional

Question 16

reasonableness of regulation

what is required to avoid having a statute deemed void for officials given unfettered discretion

Answer 16

must be defined standards for applying the law

Question 17

reasonableness of regulation

how are licensing schemes established to regulate time, place, and manner of speech deemed valid

Answer 17

1. must be related to an important government interest
2. contain procedural safeguards
3. cannot grant officials unbridled discretion
   unlimited discretion is void on its face & speaks need not even apply for a permit

Question 18

reasonableness of regulation

if a licensing scheme includes standards, what must the speaker do

Answer 18

may not ignore the statute; apply for license, and if denied, then challenge under FA

Question 19

scope of speech

what else is included in free speech outside actually speaking

Answer 19

1. freedom not to speak (the right to refrain from speaking or endorsing beliefts with which one does not agree)
2. symbolic conduct

Question 20

content regulation

when is commercial speech unprotected

Answer 20

if it proposes unlawful activity or is misleading or fradulent

Question 21

content regulation

when is a regulation pertaining to commercial speech upheld

Answer 21

1. serves substantial government interest
2. directly advances that interest
3. narrowly tailored to serve the interest

Question 22

public employment

what’s the general rule as to employers being able to regulate government employee’s speech

Answer 22

if their speech does not involve a matter of public concern, then the courts give employers broad discretion to punish speech that is disruptive of the workplace

Question 23

public employment

what test does the court apply if a government employee’s speech involves a matter of public concern

Answer 23

1. the right of the public employee to speak freely on a matter of public concern; against
2. the state’s interest in efficiently performing state functions