First Amendment- Speech and Assembly

Question 1

Content-based vs. Content Neutral Restrictions

Answer 1

Content-Based Restrictions: Must meet SS (subject matter and viewpoint)

Question 2

Prior Restraints

Answer 2

Court orders: Must meet SS; must comply with procedurally valid orders in order to challenge

Licenses: Valid if:

• Important Reason
• Clear criteria (no discretion to authority)
• Procedural safeguards

Question 3

Vagueness and Overbreadth

Answer 3

Void for vagueness: unconstitutional if reasonable person cannot tell what speech is prohibited vs. allowed

Overbroad: Unconstitutional if regulates substantially more speech than Constitution allows
- Fighting words laws = vague and overbroad

Question 4

Anonymous speech

Answer 4

Protected

Question 5

Symbolic speech

Answer 5

Conduct that communicates-

Regulation is ok if: Gov has important interest UNRELATED to message and restriction on communication is no greater than necessary to achieve purpose

Question 6

Government Speech

Answer 6

Cannot bring const challenge based on gov speech. Gov can fund some private speech and not others, as its own

Question 7

Indecent Speech/Pornography

Answer 7

Unprotected:

• Incitement of illegal activity- IMMINENT
• Child pornography (even private possession)

Less Protected:

• Obscenity- material is:
  i. appeals to the prurient interest
  ii. patently offensive
  iii. as a whole, lacks serious redeeming artistic, literary, political, or scientific value
• Adult bookstores and movie theaters: zoning is allowed
• Profane and indecent speech generally protected, EXCEPT;
  i. Over broadcast media
  ii. In schools

Question 8

Commercial Speech

Answer 8

In general: apply intermediate scrutiny (substantially related to an imp gov interest- narrowly tailored)

Unprotected: ads for illegal activity, false or deceptive ads

Less Protected: Commercial speech that inherently risks deception (trade names, attys in-person solicitation)

Question 9

Defamation

Answer 9

P is a Public Figure/official: P must prove falsity and actual malice

P is a “private figure” and matter is of “public concern:” P must prove falsity and negligence (actual malice for presumed/punitive damages)

Private figure/not public concern: can recover presumed/punitives w/o actual malice

*Media not liable for publication of illegally intercepted call if media didn’t act illegally

Question 10

Government Employee Speech

Answer 10

Speech by gov employees on the job is not protected

Question 11

Public Forums

Answer 11

Gov is req’d to make public forums available for speech- sidewalks and parks.

Regulation, to be valid, must:
- Subject and viewpoint neutral
- Time, place, or manner regulation with adequate alternative places for speech
- No discretion for permits
- Interest: IMPORTANT
Otherwise, SS must be met

Question 12

Designated Public Forums

Answer 12

Definition: Non-public forums that gov opens to speech. Apply same rules as for public forum

Regulation, to be valid, must:
- Subject and viewpoint neutral
- Time, place, or manner regulation with adequate alternative places for speech
- No discretion for permits
- Interest: IMPORTANT
Otherwise, SS must be met

Question 13

Limited Public Forums

Answer 13

Definition: gov properties that are limited to certain groups or dedicated to discussion of certain subjects. Regulation must be reasonable and viewpoint neutral. (e.g., bus)

Regulation Valid if:

• Reasonable
• Viewpoint Neutral
• Furthering a Legitimate interest

Question 14

Non-Public Forums

Answer 14

Gov properties that gov can, and does, close to speech.

examples: military bases, post-office sidewalks, airports

Regulation Valid if:

• Reasonable
• Viewpoint Neutral
• Furthering a Legitimate interest

Question 15

Prohibiting or Punishing Group Membership: Freedom of Association

Answer 15

Prohibiting or punishing group member must pass SS.

To punish group membership, must show:

i. actively affiliated with group
ii. knowing of its illegal activities, AND
iii. specific intent of furthering those activities

Question 16

Requiring disclosure of group membership

Answer 16

Requiring disclosure of group membership must pass SS, if would chill association

Question 17

Prohibiting Groups from Discriminating

Answer 17

Constitutional, UNLESS: the law:

i. interferes with intimate association (e.g., dinner party), or
ii. interferes with expressive activity (e.g., KKK- can’t require blacks to be allowed)