First Amendment - Freedom of Speech Flashcards
Freedom of Speech Checklist
- Is the Type of Speech Protected?
- No - Apply the std. for that type of speech
- Yes - Proceed to the next question
- Is the Restriction Content Based (Time, Place, Manner Restriction)?
- Yes - Apply Strict Scrutiny
- No - Proceed to next question
- Where is the Speech Taking Place? - Public Forum, Limited Pub. Forum or non pub. forum
Regulation of Protected Speech
“Congress shall make no law… abridging the freedom of speech”
- Made applicable to states & Local gov’t through 14th Amendment
Regulation of Protected Speech - Content Based Regulation
Strict Scrutiny
- Restrictions must be narrowly tailored to achieve a compelling gov’t interest (speech restrictions rarely survive Strict Scrutiny)
Regulation of Protected Speecch - Content Based Regulations
Types of Content Based Restrictions
Types of Content Based Restrictions
- Subject Matter Restriction - Application of law depends on the SM of the speech OR
- Viewpoint Restriction - Application of the law depends on the ideology of the message (e.g. Speech that criticizes the gov’t)
Regulation of Protected Speecch - Content Neutral Regulations
Defined & Level of Scrutiny
Intermediate Scrutiny
- Restrictions must be substantially related to an important gov’t interest
Laws that apply to all speech regulating the time, place or manner of the speech regardless of content
Regulation of Protected Speecch - Content Neutral Regulations
Public Forums
Gov’t property the gov’t is constitutionally required to make avail. for speech
- Test - To be held constitutional, the regulation must:
- Content Neutral
- Subj. Matter Neutral - If not, Strict Scrutiny must be met AND
- Viewpoint Neutral - If not, strict scrutiny must be met
- Time, Place or Manner Restriction
- Serve Important Gov’t interest (such as noise control or traffic control)
- Be Narrowly Tailored to That Gov’t Int. (But doesn’t need to be least restrictive alt) AND
- Leave Open & Alt. Channels of Communication
- Content Neutral
Regulation of Protected Speecch - Content Neutral Regulations
Public Forum - Fees
Permit Fees
- No discretion Permitted
- Unconst. for gov’t official to have discretion over setting fee for pub. demonstration permits
Regulation of Protected Speecch - Content Neutral Regulations
Limited Public Forum
(Same Std. as Public Forums)
Pub. Prop. no historically avail. for speech but that gov’t has opened for speech (Expressive use) through practice or policy
- E.g. Pub. school facilities, space on city buses used for posting placecards
- Gov’t can enact time, place, manner restrictions on prop. that gov’t can close to speech but chooses to leave open to the pub. only if it meets the same std. as for pub. forum. (i.e. interm. scrutiny and leave open alt. channels of co.)
Regulation of Protected Speecch - Content Neutral Regulations
Non-Public Forums
Gov’t can const. reg. speech on gov’t prop. that gov’t const. can & does close to speech IF it meets the rational basis test and is viewpoint neutral
- Military bases, areas outside prison, advertising space on pub bus, sidewalks on post office prop., airports)
Rational Basis Test
- Rat. rel. to legit. gov’t int. (Reas. when considering purp. served by forum) AND
- Viewpoint Neutral
Regulation of Protected Speecch - Content Neutral Regulations
Private Property
Theres no 1st amend. right to access private prop. for speech purp
Regulation of Unprotected Speech
Government Officials Speech
1st amend. doesn’t protect speech by gov’t or made on the job in the scope of their duties
- Only restricts gov’t ability to reg. private speech
Regulation of Unprotected Speech - True Threats
Threatening communication that can be prosecuted under the law (Cross-burning in south)
- SCOTUS held true threats NOT protected Under 1st amend based on 3 justifications:
- Preventing fear,
- Preventing the disrupting that follows from that fear, and
- Diminishing the likelihood that the threatened violence will occur
Regulation of Unprotected Speech - True Threats
Fighting Words
All laws prohib. fighting words are unconst. vague & overbroad
- Insults directed to the hearer that are likely to provoke an ord. pers. to violence
Regulation of Unprotected Speech - Imminent Lawless Action
Gov’t can punish speech if theres subst. likelihood of imm. lawless action & speaker intended to cause the imm. lawless action
- Purpose of speech is directed to Cause Imm. Lawless Action AND
- Speech has Subst. Likelihood to incite or produce such action
Regulation of Unprotected Speech - Defamation & Libel
What does regulation depend on?
Regulation depends on subj. & Subj. matter of speech
Regulation of Unprotected Speech - Defamation & Libel
Public Officials & Public Figures
Can recover only if statement was False & pers. who made it acted w/ actual malice
- Knowledge statement is false OR Reck. disreg. as to whether statement is true or false
- Actual Malice - Knowledge st. is false OR reck. disregard as to whether st. is T or F
- Burden of Proof - Clear & Convincing Ev. - ∏ must show elements w/ clear & convincing ev.
Regulation of Unprotected Speech - Defamation & Libel
Private Figures & Matter of Public Concern
Can recover if statement was false & person who made it acted w/ actual Malice
- Punitive Dam - NEED actual Malice
- Plaintiff must show actual malice to recover punitive dam.
- Burden of Proof - Plaintiff must show elem. w/ C&C Ev.
Regulation of Unprotected Speech - Defamation & Libel
Private Figures & NOT Matter of Public Concern
Requires:
- False Statement AND
- Negligence
Punitive Damages - OK
- NO Malice required
Burden of Proof
- ▵ bears burden to prove truth of the statement
Regulation of Unprotected Speech - Obscenity
What is the test ?
Miller Test For Obscenity - Speech is consid. obscene & not protected under the 1st Amendment if it describes or depicts sexual conduct that:
- Appeals to Prurient Interest
- Whether avg. pers., applying community std. would find work (as a whole) appeals to Prurient Int.
- Shameful/morbid int. in sex (co. std.)
- Whether work depicts/describes in Patently Offensive
- sexual conduct or execretory functions specifically defined by applic. law (Fed/st/local) AND
- Lacks Serious Literary, Artistic, Political or Scientific Value
- nat’l std. not local
Regulation of Unprotected Speech - Obscenity
Adult Bookstores & Movie Theaters
- Gov’t can use zoning ord. to reg. location.
- Gov’t has import. int. in preserving character of its neighborhoods
Regulation of Unprotected Speech - Obscenity
Child Pornography
Doesn’t have to be obscene to be prohib.
- BUT must actually use kids
Regulation of Unprotected Speech - Obscenity
Private Possession of Obscene Material
Can’t be Reg.
- EXCEPTION - Child Porn
Regulation of Unprotected Speech - Obscenity
Obscene, Profane, & Indecent Speech
Protected by 1st amend.
- Profane & Indecent speech isn’t obscene & is protected by 1st Amend.
- Exceptions: Broadcast Media & Schools
Regulation of Unprotected Speech - Commercial Speech
General Rule
Truthful com. speech can be reg. only if reg. meets interm. scrutiny
- Serves Subst. Gov’t Purp.
- Restriction Directly Advances That import. gov’t Int. AND
- Narrowly Tailored to that Int. - Restriction isn’t subst. more extensive than nec. to protect that int.
- Restriction must be narrowly tailored but doesn’t have to be least restrictive alt
Regulation of Unprotected Speech - Commercial Speech
Unprotected Commercial Speech
SCOTUS precedent est. that 1st amend. doesn’t protect commercial speech that is:
- false or misleading (Unlawful Activity OR Misleading or Fraudulent)
Freedom of Speech Issue - Anonymous Speech
Protected by 1st amendment
Freedom of Speech Issue - Campaign Contributions
Corporations
Corporation Can’t be treated Dif. - SCOTUS held corp. can’t be treated less favorable than indiv.
- As long as corp. act indep. of the candidate, Congress can’t prohib. corp. from using their funds to pay political advertising
Freedom of Speech Issue - Campaign Contributions
Elections for Office
Contributions made by indiv. or groups to indiv. candidates, PACs or pol. parties can be limited to dollar amt.
- BUT the limits can’t subst. interfere w/ a candidates or pol. party’s ability to run a competitive campaign
- Expenditure Limits = Unconst.
Freedom of Speech Issue - Campaign Contributions
Ballot Initiatives
Both contrib. limits & expenditure limits are unconst. for ballot initiatives
Freedom of Speech Issue - Symbolic Speech
Expressive Conduct
- Where the medium itself is the message (flag burning)
- Protected by free speech clause of 1st amend.
Freedom of Speech Issue - Symbolic Speech
Requirements for Expressive Conduct
- protester intended to co. a message AND
- Aud. was likely to understand the communication
Freedom of Speech Issue - Symbolic Speech
Requirements for Gov’t Regulation
Gov’t can reg. speech if:
- Important Interest Unrelated to Suppression of Message - i.e law prohibits the noncomunicative aspects of the act in question AND
- Narrowly Tailored to Further a Subst. Gov’t Int. - i.e. impact on communication no greater than nec.
Freedom of Speech Issue - Symbolic Speech
Constitutionally Protected Symbolic Speech
- Flag Burning
- Cross Burning - protected symbolic speech unless theres ev. of intent to threaten or intimidate
Freedom of Speech Issue - Symbolic Speech
Constitutionally Unprotected Symbolic Speech
- Draft Card Burning
- Nude Dancing
Freedom of Speech Issue - Prior Restraint
Gov’t Action (Judicial order or admin. system) that restricts free speech in advance of publication & is gen. invalid
Freedom of Speech Issue - Prior Restraint
License or Permit for Speech
for licensing to be held const. there must be:
- Important reason for licensing
- Clear Criteria Leaving no Discretion - clear criteria for granting licenses or permits for speech that leave no discretion w/ the licensing auth. AND
- Procedural Safeguards - Such as prompt determination & judicial review of denials
Freedom of Speech Issue - Prior Restraint
Court Orders
Ct. orders suppressing speech b/f it occurs must meet strict scrutiny
- Procedurally Proper Ct. Order must be complied with until order is over
- Any pers. who violates this is barred from challenging its constitutionality later on
- Gag Orders on Press to prevent prejudicial pre-trial publicity are unconst.
Freedom of Speech Issue - Vagueness
Due Process requires a statute to be clear enough that a pers. of ord. intelligence will understand what the statute prohibits
- Statute is vague if reas. pers. can’t tell what speech is prohib. & what is permitted
Freedom of Speech Issue - Overbreadth
A law is unconst. overbroad if it punishes speech thats const. protected
Freedom of Speech Issue - Privacy Issues
Accurate Publication of Information in Public Record
State can impose liab. for the accurate publication of info in the public record (e.g. disclosure of rape vic. ID)
Freedom of Speech Issue - Privacy Issues
Illegal Eavesdropping
Publisher who gets truthful info thats a matter of pub. concern in a lawful manner can’t be pub. if they got it from a source who go it unlawfully
Freedom of Speech Issues - Public Schools
Schools have greater leeway to regulate the speech of students & teachers than the state would have outside the school context
- SCOTUS held that pub. schools can’t force students to participate in a flag salute/pledge ceremony when it offends the political or religious beliefs of the student or their families
When can public school children be disciplined for speech?
When the speech is potentially disruptive
When can a newspaper publish offensive information?
When it is truthful and newsworthy
