First Amendment Freedom of Speech and Assembly Flashcards
what does the first amendment prohibit
prohibits Congress from abridging the freedoms of speech and press, or interfering with the right of assembly, or from establishing a religion or interfering with the free exercise of religion
through what mechanism is the First Amendment applicable to the states?
14th Am
what is speech
Speech includes words, symbols, and expressive conduct.
what is expressive conduct
Conduct that is inherently expressive,
OR
Conduct that is:
Intended to convey a message,
and
Reasonably likely to be perceived as conveying a message
What types of speech are “unprotected?”
Incitement
Fighting words
true threats
obscenity
what is incitement
Speech that is . . .
(1) intended to produce imminent lawless action
AND
(2) likely to produce such action.
what are fighting words
personally abusive words/insults that are likely to incite immediate physical retaliation in an average person
(Calling someone in a bar argument a “mother f*****” to their face)
what speech is partially protected
commercial speech
defamation
example of expressive conduct
flag burning, nude dancing, wearing black armband
to what extent can fighting word statutes punish only certain viewpoints?
they cannot
Ex: prohibiting only fighting words that insult on the basis of race, religion, or gender).
what are true threats
words that are intended to convey to someone a serious threat of bodily harm.
sort of fighting-word adjacent
statutes that attempt to punish fighting words usually suffer from what?
over breadth or vagueness
= usually invalid
what is are the elements of obscenity
Speech is obscene if it describes or depicts sexual conduct specified by state or federal statute that, taken as a whole, by the average person:
- Appeals to the prurient interest in sex, using a contemporary community standard [“prurient” - is it trying too much to turn you on]
- Is patently offensive under contemporary community standards
[community standards may be statewide or local]
AND
- Lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard [safety valve]
SOOO the statute has to ban specific conduct sexual conduct
what is excluded from obscenity?
a lot – it is a narrow definition
Mere nudity, soft-core pornography, and “dirty words” / profanity are not obscene.
To what extent is the consumption of obscenity protected by the First Amendment freedom of speech?
to the extent it is within the privacy of your home
to the extent that you possess it in the home [private possession]
to the extent that it is NOT child pornography
explain what government can do w/r to child pornography:
To protect minors from exploitation, the government may prohibit the sale or distribution of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children.
NOT simulated pictures of minors
The government can’t bar visual material that only appears to depict minors engaged in sexually explicit conduct, but that actually uses young-looking adults or computer-generated images.
what is child pornography
does not have to be obscene, just has to be sexual conduct involving minors
NOT simulated images
can obscenity standard be different for materials sold to minors?
YES
The state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience.
However, the government can’t prohibit the sale or distribution of material to adults just because it’s inappropriate for children
to what extent can a land use regulation limit the location or size of an adult entertainment establishment?
Land use regulation is ok if it is designed to reduce the secondary effects of such businesses (for example, to protect children and unwilling adults from exposure, or to prevent neighbor- hood crime and decay).
NOT prohibit the establishment from existing
what is defamatory speech
A false statement of fact about someone else that harms that person’s reputation
if you express defamatory speech, what can you be subject to
tort liability
elements of defamation
????
What do you need to do to prove defamatory statements about public officials or public figures or defamatory statements involving matters of public concern?
Plaintiff must prove
(a) all the elements of defamation
(b) PLUS falsity
AND
(c) some degree of fault
who are public officials and public figures
public officials
(1) people holding or running for elective office (at any level),
AND
(2) public employees in positions of public importance (for example, prosecutor, school principal, police officer)
public figures
people who have
(1) assumed roles of prominence in society,
(2) achieved pervasive fame and notoriety,
OR
(3) thrust themselves into particular public controversies to influence their resolution.
What do you need to do to prove defamatory statements if plaintiffs are public officials or public figures?
If the plaintiff is a public official or figure, then regardless of whether the defamation is on a matter of public or private concern, the degree of fault the plaintiff must show is ACTUAL MALICE
what is actual malice?
To show actual malice, the plaintiff must prove by clear and convincing evidence that the alleged defamatory statement was made with:
Knowledge that it was false
OR
Reckless disregard as to its truth or falsity
what are matters of public concern
Matters of public concern are issues important to society or democ- racy. The courts decide on a case-by-case basis whether the defam- atory statement involves a matter of public concern, looking at the content, form, and context of the publication.
If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the plaintiff can only recover
actual damages if the plaintiff only shows negligence.
To recover punitive damages or presumed damages they need to show actual malice.
If the plaintiff is a private figure suing on a matter of private concern, what happens?
then the First Amendment is not involved. These plain- tiffs can recover for any damages that state law allows, even if they can’t show actual malice.
actual malice not required
intentional infliction of emotional distress and invasion of privacy- what is required
The Supreme Court has required proof of actual malice for recovery where the plaintiff is a public figure or official, or where the speech is on a matter of public concern.
when is commercial speech NOT protected speech?
not protected if it is
(1) false,
(2) misleading,
OR
(3) about illegal products or services
what is commercial speech
ads, promotions or products and services, brand marketing
NOT merely for profit speech
protected commercial speech
truthful commercial speech about lawful products or services
when will regulation of commercial speech be constitutional?
Services substantial government interest (like consumer protection)
Directly advances that interest,
and
Is narrowly tailored to serve that interest such that there is a REASONABLE FIT between goal and means chosen
to what extent can government enact complete bans on advertisement of lawful products?
probably cannot - not likely to be substantial and legitimate government interest
to what extent can government require commercial disclosures
If disclosures are not unduly burdensome
and
they are reasonably related to the state’s interest in preventing deception.
broad categories of speech and assembly regulations
content-based
content-neutral
what are content-based regulations
A regulation is content-based if it restricts speech based on the subject matter or viewpoint of the speech.
what are content-neutral regulations
restrictions that are both subject matter-neutral and viewpoint-neutral
Oftentimes these are in the form of time, place, and manner restrictions (in other words, restrictions on the conduct related to speech).
standard of evaluating content-based regulations and constitutionality?
strict scrutiny
they are presumptively unconstitutional unless they fall within one of the categories of unprotected speech, like obscenity).
standard of evaluating content-neutral regulations and constitutionality?
generally
are subject to intermediate scrutiny —- that is, they must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary (or must be narrowly tailored) to further those interests. —- cannot be over broad!
inquiry for when you can restrict speech on government property
is it a public forum, designated public forum, a limited public forum, or a nonpublic forum?
what is a public forum
Public property (that is, government-owned property) that has historically been open to speech-related activities
Example - streets, sidewalks, and public parks
what is a designated public forum
Public property that has not historically been open to speech-related activities,
but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy
Example – a town hall open for use by social, civic, or recreation groups
If the regulation on a traditional public forum or designated public forum is content-based, it will be subject to:
strict scrutiny
If the regulation on a traditional public forum or designated public forum is content-neutral
only needs to meet intermediate scrutiny, which in this context means it must:
- Be narrowly tailored to serve an important government interest (however, it need not be the least restrictive means for accom- plishing the interest) and
- Leave open alternative channels of communication
how can regulations that pass scrutiny still be unconstitutional?
over broad
vague
gives unfettered discretion
how to treat injunctions against speech in public forums?
same as other speech restrictions
If the injunction is content-based, it must be necessary to achieve a compelling interest. If the injunction is content-neutral, it must burden no more speech than is necessary to achieve an important government interest.
what is a limited public forum
Limited public forums are government forums not historically open generally for speech and assembly but opened for specific speech activity,
Ex: school gym opened to host a debate on a particular community issue, or a public university’s funding of student publications, courtroom; library that opens doors to public meetings
what is a nonpublic forum
Nonpublic forums are government property not historically open generally for speech
and assembly and not held open for specific speech activities
[just host government activities, speech occurs incidentally to facilitate government activities]
Ex: as military bases or government workplaces; public libraries that do not open doors to the general public for hosting meetings
to what extent can the government regulate speech in nonpublic and limited public forums
The government can regulate speech in such forums to reserve the forum for its intended use. In such locations, regulations are valid if they are:
- Viewpoint neutral AND
- Reasonably related to a legitimate government purpose
If the regulation is viewpoint based, it will be subject to strict scrutiny.
what kinds of forums are public primary, secondary schools
NOT public forums
so speech can be reasonably regulated to serve school’s educational mission
To what extent can government censor public school student speech on school campuses/in schools (elementary/middle/high school)
A student’s own personal speech (that is, their expression of themselves as individuals) on campus cannot be censored absent evidence of substantial disruption.
Exception: Speech promoting illegal drug use does not require showing any disruption or credible threat of disruption. = school can flat out ban
To what extent can government censor public school student speech OFF school campuses/NOT in school schools (elementary/middle/high school)
Schools will be limited to restricting speech
to prevent cheating, bullying, threats, and other speech where pedagogical or safety interests clearly outweigh the speech interests of students as private citizens.
To what extent can speech speech related to the school’s teaching be restricted?
must be reasonably related to legitimate pedagogical concerns.
deferential to schools as educators
speech by school faculty, and by students as part of curricular or extra curricular activity
What speech by government employees is unprotected by first amendment
(which means employer can punish you without constitutional issue)
A government employee’s speech while at work involving a matter of private concern
(the employer can punish the employee IF the speech was disruptive of the work environment)
A government employee’s speech that was made on the job pursuant to the employee’s official duties, public or private
what is protected government employee speech
If the speech is on a matter of public concern but is not made pursuant to the employee’s official duties, the courts will balance the value of the speech against the government’s interest in the efficient operation of the workplace.
For speech on matters of private concern outside of the workplace, the test is unclear, but this speech appears protected absent a detrimental effect on the workplace. [dinner convos with family]
what is an example of when a government can limit speech rights in a public forum?
when there is a serious and imminent threat to the public order
to what extent can government restrict speech of a speaker because of an unruly audience?
rare case when the police are absolutely unable to control the crowd
to what extent may trials be open to the public?
in general, trials and pretrial hearings must be open to the public
criminal trials and pretrial hearings – can be closed only if closure is necessary to preserve an overriding interest and the closure order is narrowly tailored to serve the overriding interest
civil – court has not yet said, but justices suggest that the same standard will apply since civil cases have been historically open to the public
