First Amendment - Freedom Of Speech Flashcards
What Is protected speech (I.e government can’t regulate or censor)
Words, symbols, expressive conduct
What is expressive conduct
Acts that are inherently expressive or intended to convey a message and reasonably likely to be perceived as conveying that message
What are the categories of unprotected speech? (I.e government can censor)
Fighting words, incitement, and obscenity
Incitement
Intended to produce imminent lawless action; and likely to produce such action. Censorship is ok.
Fighting words
Personally abusive words likely to incite physical retaliation. Includes true threats (I.e. intended to convey a serious threat of bodily harm). Censorship is ok.
When is speech obscene?
It describes sexual conduct specified by statute that when viewed as a whole by an average person: (1) appeals to prurient interest in sex using community standards; (2) patently offensive under community standards; and (3) lacks serious societal value based on national standards
Child pornography…
Can always be censored and possession inside or outside the home is punishable
Can possession of obscene materials be punished inside the home?
No unless it’s child porn
What are forms of partially protected speech?
Defamatory speech and commercial speech
What forms of commercial speech are never protected?
False, misleading, about illegal products/ services
When may commercial speech be regulated?
Substantial government interest; directly advances the interest; and narrowly tailored to serve the interest
Unprotected government employee speech
Government can regulate private speech made at work if disruptive to the work environment and speech made pursuant to job duties about matters of public concern
Protected public employee speech
If speech is about public concern and not made pursuant to job duties it may be restricted if government interest outweighs employees interest as a citizen commenting on matters of public concern. Private speech outside workplace generally can’t be punished unless it has a detrimental effect on workplace.
When can the government restrict speech of speaker because of an unruly audience?
Police are absolutely unable to control the crowd
What are the two categories of general speech restrictions
Content based and content neutral
What is content based restriction
Based on viewpoint or subject matter
What is standard for content based restrictions
Strict scrutiny - necessary to achieve a compelling government purpose (has to be the least restrictive means)
What is the standard for content neutral restrictions
Important government interest and doesn’t burden more speech than necessary - has to be narrowly tailored. Generally, time, place, manner restrictions on speech are ok.
Are first amendment rights absolute?
No
When can government restrict student speech on campus
Students personal speech on campus cannot be censored unless there is evidence of substantial disruption
Can government restrict student off campus speech
Yes if it’s to prevent cheating, bullying, threats, and other speech where safety interest clearly outweigh students speech interest
What is a public forum?
Public property that historically has been open to speech related activity (sidewalks and public parks)
What is a designated public forum?
Public property usually not used for speech but government has opened for speech at particular times (public school gym that can be used by public when not being used by the school)
What is a limited public forum?
Property not usually open for speech activity but government has opened up for speech for a particular purpose
What is a non public forum?
Government Property not historically open for speech (I.e. military base, government workplace).
When is a term content neutral?
Neutral as to subject matter and viewpoint
When is a regulation viewpoint neutral?
Does not permit presentation of one side to the exclusion of the other side of the argument.
What is the clear and present danger test?
State can’t forbid use of force or violation of law unless (1) speech is directed at inciting imminent lawless action; and (2) likely to produce such action.
Can the government restrict speech on public/ designated public forums?
Yes, content neutral time, place, and manner restrictions will be valid if narrowly tailored to serve and important interest and leaves open alternative ways of communication; content based restrictions will get strict scrutiny.
Is content regulation of speech in a non public forum allowed?
Yes, if the regulation is viewpoint neutral and reasonably related to a legitimate government interest.
