First Amendment: Freedom of Speech Flashcards
What are the 5 places available for speech?
Public Forums, Designated Public Forums, Limited Public Forums, and Private Property
What is a Public Forum? Name examples.
Public forums are places the government is constitutionally required to make available for speech. Examples include parks and sidewalks.
What is the test when a regulation restricting speech in a Public Forum is not content-neutral?
Content restrictive regulations must meet a strict scrutiny test in public forms.
What is the test when a regulation restricting speech in a Public forum is content-neutral?
Regulations must be a time, place, or manner regulations that serves an important government purpose AND leaves open adequate alternative places for communication.
If there is a content-neutral speech regulation in a public forum, does the regulation need to use the least restrictive alternative?
No, as long as the regulation is narrowly tailored.
Can city officials have discretion to set permit fees for public demonstrations?
Absolutely not. These laws are unconstitutional because it means that a city official has discretion to discriminate based on content.
What is a Designated Forum? Name examples.
A Designated Public Forum is a government property that the government could close to speech but makes open to speech.
Tip: This is like a Public Form…the property must be open for all speech.
Ex: Schools opened after hours for all school clubs or school events like a soccer game over the weekend.
What is the test for a regulation restricting speech in a designated public forum is NOT content-neutral?
Strict Scrutiny: If a speech restriction in public or designated public forum is not content-neutral, strict scrutiny applies.
What is the test for a regulation restricting speech in a designated public forum is content-neutral?
Its the same as a Public Forum: Regulations must be a time, place, or manner regulations that serves an important government purpose AND leaves open adequate alternative places for communication.
If there is a content-neutral speech regulation in a designated public forum, does the regulation need to use the least restrictive alternative?
No, the regulation must be narrowly tailored. It’s the same as the test for Public Forums!
What is a Limited Public Forum? Name examples.
Limited Public Forums are government properties that at limited to certain groups OR dedicated to the discussion of only some subjects.
Examples: City buses only allowed to display commercial adds or when City Hall is opened for a community debate on certain issues.
Tip: If speech is limited or opened for a singular purpose regarding speech, it is likely a limited public forum.
In a Limited Public Forum, how can the Government regulate speech?
The regulation must be reasonable and viewpoint neutral.
Tip: this is a low bar
What is a Non-Public Forum? Name examples.
A Non-Public Forum is a government property that the government constitutionally can and does close to speech.
Ex: Military bases, airports, and sidewalks on postoffice property.
In a Non-Public Forum, how can the Government regulate speech?
The same way it does a Limited Public Forum: the regulation must be reasonable and viewpoint neutral.
On Private Property, can the Government regulate speech under the First Amendment?
No, the First Amendment doesn’t apply here for the purposes of speech.
Ex: Walmart.
What does “Content” include in determining whether a regulation is content-neutral or content-based?
Content includes viewpoint and subject matter. A law that regulations either viewpoint or subject matter will be considered a content-based regulation.
Generally, if a regulation is content-neutral, what is the test?
Intermediate Scrutiny
Tip: Think regulations in Public Forums…the regulation must serve and important government purpose and leave open adequate alternative places for communication.
Generally, if a regulation is content-based, what is the test?
Strict Scrutiny: The regulation must be necessary to achieve a compelling government interest.
Exception: In a non-public or limited forum when a regulation is viewpoint-neutral but restricts subject-matter
What is prior restraint of free speech? Name two examples.
Prior restraint stops speech before it occurs.
Examples: A Court order (Gag order) or a license for speech.
What is the test when a Court order suppresses speech?
Strict Scrutiny must be met
When a Court order is procedurally proper but ultimately unconstitutional and a person violates the Court order…may that person protected by the First Amendment?
No, procedurally proper Court orders must be complied with.
What is the test when the Government requires a license for speech?
There must be an important reason for the licensing requirement and clear criteria leaving almost no discretion to the licensing authority. Additionally, licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review.
What are the two challenges a person can make to the construction of a speech regulation or law?
Void for Vagueness or Overbreadth (Unconstitutional as applied to me)
When is a law void for Vagueness?
When a reasonable person cannot tell what speech is prohibited and what is allowed, the law is unconstitutionally vague.
When is a law Overbroad?
If it regulates substantially more speech than the constitution allows to be regulated.
Tip: I think this is generally used in the “law is unconstitutional as applied to my protected speech argument”
Can a law regulate fighting words? In other words, can you make a statute that criminalizes the use of fighting words?
No, the law is both Vague and Overbroad.
Are fighting words protected speech?
No, fighting words are not constitutionally protected. While you cannot regulate fighting words, they are not constitutionally protected as free speech.
What is symbolic speech? Give examples (5).
Symbolic speech is non-verbal conduct that is meant to communicate a message.
Examples: Flag burning, draft card burning, nude dancing, cross burning, and political contributions?
What is the test used when the Government regulates symbolic speech?
______? must show an important interest unrelated to the suppression of the message and the impact on communication is no greater than necessary to achieve that purpose.
Is all symbolic speech constitutionally protected?
No, case law has demonstrated that not all symbolic speech is constitutionally protected.
Do these two acts constitute constitutionally protected symbolic speech: Flag burning and draft-card burning
Flag burning is constitutionally protected speech.
Draft-card burning is not constitutionally protected speech: SCOTUS has said that there is an important interest in maintaing draft cards for purposes of war unrelated to the suppression of the message.
Is nude dancing protected symbolic speech?
No, local governments can regulate nude-dancing
Is cross burning protected symbolic speech?
Yes, unless it is done with the intent to threaten.
Tip: Think KKK burning cross in secluded field v. in a black person’s yard.
Is anonymous speech protected?
Yes.
What does it mean for speech to be “protected” by the First Amendment?
It only means that the First Amendment analysis applies. You must use the relevant tests if the speech is protected.
Are these two regulations generally constitutional: limits on contributions in election campaigns AND limits on expenditures in election campaigns?
Contribution limits: generally constitutional
Expenditure limites: generally unconstitutional
What 4 types of speech are not protected or less protected under the First Amendment?
1) Speech that Incites Illegal Activity
2) Obscene and sexually oriented speech
3) Commercial Speech
4) Defamatory Speech
When a regulation punishes speech that “Incites Illegal Activity,” what is the test?
Two part test: if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
When a regulation punishes “Obsecenities and Sexually Oriented Speech,” what is the test?
Three part test:
1) Material must appeal to the prurient interest, and
2) Material must be patently offense under the law prohibiting the obscenity, and
3) Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value
Can the government punish private possession of obscene materials?
Not unless it’s child porn.
Can the government regulate the location of adult stores with zoning ordinances?
Yes
Can the government seize the assets of a business convicted of violating obscenity laws?
Yes
Is profane and indecent speech protected by the First Amendment?
Yes, it is generally protected with two exceptions.
Two Exceptions:
1) over the broadcast media
2) In schools
Generally, what is the test when a law regulates Commercial Speech?
Intermediate Scrutiny is generally used unless
1) the advertisement is for illegal means or is false
2) Speech that inherently risks deception
What are two types of Commercial Speech that “inherently risk deception” and are constitutionally regulated?
1) Adverstising or practicing under a trade name “Sight for Sore Eyes”
2) In-person solicitation for profit by attorneys
Do regulations of Commercial Speech need to be the least restrictive alternative?
No, only narrowly tailored.
