First Amendment - Unprotected and Less Protected Speech

Question 1

What types of speech are low and unprotected by the First Amendment?

Answer 1

Incitement of Illegal Activities; Fighting Words; Obscenity; Profane and indecent Speech.

Question 2

What is the Brandenburg test and when is it used?

Answer 2

The Brandenburg test is the current test for if speech is considered incitement of illegal activities.
A conviction for incitement of illegal activities requires:
1) Imminent Harm; and
2) A likelihood of producing illegal activities; and
3) An intent to cause imminent illegality.

Question 3

What level of protection do fighting words have?

Answer 3

No First Amendment Protection.

Question 4

Chaplinksy v. New Hampshire

What are fighting words? How do fighting words compare to incitement?

Answer 4

Fighting words are speech that is directed to a target that seeks to provoke a violent response. Whereas Incitement is not aimed at a specific individual.

Question 5

What are the two biggest situations that constitute fighting words?

Answer 5

1) Where the speech is likely to cause a violent response against the speaker.
2) Where it is an insult likely to inflect immediate emotional harm.

Question 6

Is burning the American Flag a fighting word?

Answer 6

No. It is not directed at a specific individual.

Question 7

Is racist speech protected?

Answer 7

No. The state may legislate all racist speech without violating the first amendment.

Question 8

The Court follows the dissent rather than the majority in Feiner v. New York. What is the dissent position in hostile audience cases?

Answer 8

The police should first take every precaution to protect the speaker rather than to stop the speaker. As long as the police can control the situation safety, the speech should be protected.

Question 9

Is Obscene speech protected by the First Amendment?

Answer 9

No. It is unprotected.

Question 10

Are Sex and Obscenity the same thing in Roth v. U.S.?

Answer 10

No. Obscene material is material which deals with sex in a manner appealing to a prurient interest. the portrayal of sex in art, literature, and other mediums, is not itself a sufficient reason to deny the material First Amendment Protection.

Question 11

What is Obscene material’s level of scrutiny.

Answer 11

It has no First Amendment Protection. However, the state will still have to fulfill the rational basis review if they want to limit it.

Question 12

Miller v. California

What are the guidelines to determine if something is obscene?

Answer 12

1) Whether the average person, apply contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest.
2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined in the state law; and
3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Question 13

Does Child Pornography have any First Amendment Protection?

Answer 13

No. The government can limit child pornography in any way they please, as long as it fulfills the rational basis test.

Question 14

Does Child Pornography have to involve actual children, or are depictions of children enough?

Answer 14

No. The material must be an actual child, not an animation of a child or an adult actor pretending to be a child.

Question 15

What falls into the category of low valued sexual speech?

Answer 15

This is a category that does not meet the test for obscenity and is protected by the First Amendment, but it is of low value, so the government has latitude to regulate it.

Question 16

What standard is applied for the following:

1) Content Based Regulation:
2) Content Neutral Regulation:
3) Regulating the “Secondary Effects” of expression:

Answer 16

1) Strict;
2) Intermediate;
3) Rational Basis

Question 17

What does regulating the “secondary effects” of expression mean?

Answer 17

If the regulation is designed to attack the secondary effects of expression, it will be more likely to be upheld than when the primary effects of expression are being regulated.

Question 18

If the speech involves nudity, is it considered low value sexual speech?

Answer 18

No. Nudity is not enough. It must be more.

Question 19

Cohen v. California

Is Speech that plays on emotions and is intended to get an emotional response protected by the First Amendment?

Answer 19

Yes. As long as the speech is not used to incite violence or illegal activity, or is obscene than it is allowed.

Question 20

FCC v. Pacifica

Can the government prohibit indecent speech over the television and radio?

Answer 20

Yes.

Question 21

FCC v. Pacifica

How can the government regulate indecent material over radio and television?

Answer 21

Regulated according to the context of the broadcast and on a case by case basis.

Question 22

Sable v. FCC

Can the Court ban indecent speech? What about obscene speech? What must be considered for both?

Answer 22

Indecent - Cannot ban simply for being indecent. Must be examined based on the context and on a case by case basis.
Obscene - Can be banned on television and radio.

Question 23

Reno v. ACLU

Can the government regulate the internet to protect minors?

Answer 23

They can, but it is difficult because it cannot be overbroad and if it is a content based restriction, then it will likely be unconstitutional.

Question 24

Is Violent Speech protected by the First Amendment?

Answer 24

Yes. The Supreme Court has refused to create a new exception to the First Amendment for violent speech.

Question 25

Are violent video games protected form of speech?

Answer 25

Yes. Because video games, even the violent ones, communicate ideas through many familiar literary devices and through distinct medium.