First Amendment Freedom of Speech and Assembly

Question 1

what does the first amendment prohibit

Answer 1

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

Question 2

through what mechanism is the First Amendment applicable to the states?

Answer 2

14th Am

Question 3

what is speech

Answer 3

Speech includes words, symbols, and expressive conduct.

Question 4

what is expressive conduct

Answer 4

Conduct that is inherently expressive,

OR

Conduct that is:
Intended to convey a message,

and

Reasonably likely to be perceived as conveying a message

Question 5

What types of speech are “unprotected?”

Answer 5

Incitement

Fighting words

true threats

obscenity

Question 6

what is incitement

Answer 6

Speech that is . . .

(1) intended to produce imminent lawless action

AND

(2) likely to produce such action.

Question 7

what are fighting words

Answer 7

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)

Question 8

what speech is partially protected

Answer 8

commercial speech

defamation

Question 9

example of expressive conduct

Answer 9

flag burning, nude dancing, wearing black armband

Question 10

to what extent can fighting word statutes punish only certain viewpoints?

Answer 10

they cannot

Ex: prohibiting only fighting words that insult on the basis of race, religion, or gender).

Question 11

what are true threats

Answer 11

words that are intended to convey to someone a serious threat of bodily harm.

sort of fighting-word adjacent

Question 12

statutes that attempt to punish fighting words usually suffer from what?

Answer 12

over breadth or vagueness
= usually invalid

Question 13

what is are the elements of obscenity

Answer 13

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

Question 14

what is excluded from obscenity?

Answer 14

a lot – it is a narrow definition

Mere nudity, soft-core pornography, and “dirty words” / profanity are not obscene.

Question 15

To what extent is the consumption of obscenity protected by the First Amendment freedom of speech?

Answer 15

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

Question 16

explain what government can do w/r to child pornography:

Answer 16

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.

Question 17

what is child pornography

Answer 17

does not have to be obscene, just has to be sexual conduct involving minors

NOT simulated images

Question 18

can obscenity standard be different for materials sold to minors?

Answer 18

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

Question 19

to what extent can a land use regulation limit the location or size of an adult entertainment establishment?

Answer 19

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

Question 20

what is defamatory speech

Answer 20

A false statement of fact about someone else that harms that person’s reputation

Question 21

if you express defamatory speech, what can you be subject to

Answer 21

tort liability

Question 22

elements of defamation

Answer 22

????

Question 23

What do you need to do to prove defamatory statements about public officials or public figures or defamatory statements involving matters of public concern?

Answer 23

Plaintiff must prove

(a) all the elements of defamation
(b) PLUS falsity
AND
(c) some degree of fault

Question 24

who are public officials and public figures

Answer 24

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.

Question 25

What do you need to do to prove defamatory statements if plaintiffs are public officials or public figures?

Answer 25

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

Question 26

what is actual malice?

Answer 26

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

Question 27

what are matters of public concern

Answer 27

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.

Question 28

If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the plaintiff can only recover

Answer 28

actual damages if the plaintiff only shows negligence.

To recover punitive damages or presumed damages they need to show actual malice.

Question 29

If the plaintiff is a private figure suing on a matter of private concern, what happens?

Answer 29

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

Question 30

intentional infliction of emotional distress and invasion of privacy- what is required

Answer 30

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.

Question 31

when is commercial speech NOT protected speech?

Answer 31

not protected if it is
(1) false,
(2) misleading,
OR
(3) about illegal products or services

Question 32

what is commercial speech

Answer 32

ads, promotions or products and services, brand marketing

NOT merely for profit speech

Question 33

protected commercial speech

Answer 33

truthful commercial speech about lawful products or services

Question 34

when will regulation of commercial speech be constitutional?

Answer 34

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

Question 35

to what extent can government enact complete bans on advertisement of lawful products?

Answer 35

probably cannot - not likely to be substantial and legitimate government interest

Question 36

to what extent can government require commercial disclosures

Answer 36

If disclosures are not unduly burdensome
and
they are reasonably related to the state’s interest in preventing deception.

Question 37

broad categories of speech and assembly regulations

Answer 37

content-based
content-neutral

Question 38

what are content-based regulations

Answer 38

A regulation is content-based if it restricts speech based on the subject matter or viewpoint of the speech.

Question 39

what are content-neutral regulations

Answer 39

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).

Question 40

standard of evaluating content-based regulations and constitutionality?

Answer 40

strict scrutiny

they are presumptively unconstitutional unless they fall within one of the categories of unprotected speech, like obscenity).

Question 41

standard of evaluating content-neutral regulations and constitutionality?

Answer 41

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!

Question 42

inquiry for when you can restrict speech on government property

Answer 42

is it a public forum, designated public forum, a limited public forum, or a nonpublic forum?

Question 43

what is a public forum

Answer 43

Public property (that is, government-owned property) that has historically been open to speech-related activities

Example - streets, sidewalks, and public parks

Question 44

what is a designated public forum

Answer 44

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

Question 45

If the regulation on a traditional public forum or designated public forum is content-based, it will be subject to:

Answer 45

strict scrutiny

Question 46

If the regulation on a traditional public forum or designated public forum is content-neutral

Answer 46

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

Question 47

how can regulations that pass scrutiny still be unconstitutional?

Answer 47

over broad
vague
gives unfettered discretion

Question 48

how to treat injunctions against speech in public forums?

Answer 48

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.

Question 49

what is a limited public forum

Answer 49

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

Question 50

what is a nonpublic forum

Answer 50

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

Question 51

to what extent can the government regulate speech in nonpublic and limited public forums

Answer 51

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.

Question 52

what kinds of forums are public primary, secondary schools

Answer 52

NOT public forums

so speech can be reasonably regulated to serve school’s educational mission

Question 53

To what extent can government censor public school student speech on school campuses/in schools (elementary/middle/high school)

Answer 53

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

Question 54

To what extent can government censor public school student speech OFF school campuses/NOT in school schools (elementary/middle/high school)

Answer 54

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.

Question 55

To what extent can speech speech related to the school’s teaching be restricted?

Answer 55

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

Question 56

What speech by government employees is unprotected by first amendment

(which means employer can punish you without constitutional issue)

Answer 56

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

Question 57

what is protected government employee speech

Answer 57

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]

Question 58

what is an example of when a government can limit speech rights in a public forum?

Answer 58

when there is a serious and imminent threat to the public order

Question 59

to what extent can government restrict speech of a speaker because of an unruly audience?

Answer 59

rare case when the police are absolutely unable to control the crowd

Question 60

to what extent may trials be open to the public?

Answer 60

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