Free Expression of Ideas

Question 1

First Amendment

Answer 1

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Question 2

Rationales for Freedom of Expression

Answer 2

1. Self-governance: helps prevent entrenchment of interests in government and increases political stability
2. Search for truth & necessary to develop moral virtue
3. Cultivates virtues of Societal tolerance and self-restraint
4. Respects Autonomy

Question 3

Government regulation of speech that is content neutral

Answer 3

Often referred to as time, place and manner restrictions on speech

Generally subject to intermediate scrutiny

Question 4

Government Regulation of Speech that is based on the content of the speech

Answer 4

• Generally presumed to be void
• Usually subjected to strict scrutiny

Question 5

United States v. Playboy Entertainment Group

Answer 5

Court strikes down ban on “sexually-oriented programming,” stating that “targeted blocking is less restrictive than banning.” (Content based example)

Question 6

Reed v. Town of Gilbert

Answer 6

Court struck down AZ Sign Code that prohibited signs unless a permit was obtained, but contained exemptions for “ideological signs,” “political signs,” and “temporary directional signals.” The court held that the sign code was facially discriminatory based on the content of the speech and was not narrowly tailored to achieve a compelling government objective. (Content-based)

Question 7

Speech receiving little to no protection

Answer 7

-Obscenity
- Child Porn
- Speech that incites to the imminent commission of a crime, and
- fighting words
- Commercial speech/advertising – (limited protection)

Question 8

Gitlow v. New York

Answer 8

State statutes utilizing the state’s police power to regulate speech and the press are constitutional unless they are arbitrarily or unreasonably exercised.

The State of New York passed a statute that prohibited the written or verbal advocacy of criminal anarchy, which is a doctrine advocating overthrowing the government through force or violence.

• Conviction affirmed

Question 9

Brandenburg v. Ohio

Answer 9

Test: A state may not forbid advocacy unless it is directed to inciting or producing imminent lawless action and is likely to produce or incite such action.

Question 10

Virginia v. Black

Answer 10

A statute is unconstitutional if it both bans cross burning done with the intent to intimidate and states that the act of burning a cross is itself prima facie evidence of the intent to intimidate.

Question 11

Tinker v. Des Moines Indep. School Dist.

Answer 11

In a public-school setting, prohibiting an expression of an opinion is unconstitutional unless there is a specific showing that engaging in the forbidden conduct would materially and substantially interfere with appropriate discipline in the operation of the school.

Question 12

Hazelwood School Dist. v. Kuhlmeirer

Answer 12

Under the First Amendment, educators may exercise editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

Question 13

Test for Obscenity

Answer 13

• Rule; POL = test for obscenity
• (1) whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; (Local standards govern on prurient appeal and patent offensiveness so long as those standards are not more prudish than some minimum constitutional threshold of prurience and offensiveness).
• (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
• (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (whether a reasonable person would find such value in the material, taken as a whole.)

Question 14

Obscenity test comes from where

Answer 14

Miller v. California - Facts: [Miller] conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called “adult” material. [He] was convicted [of] knowingly distributing obscene matter [by] causing five unsolicited advertising brochures to be sent through the [mail. The brochures primarily] consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.

Question 15

Libel

Answer 15

If the plaintiff is a –
public official or public figure, “actual malice” must be proven for damages to be awarded
private figure and the defamation is of public concern, recovery of actual damages requires proof of negligence and recovery of punitive damages requires actual malice.
private figure and the defamation is a private concern, actual and punitive damages can be recovered upon proof of negligence.

Question 16

Fighting Words Doctrine

Answer 16

Rule of First Amendment jurisprudence holding that fighting words, or words that “inflict injury or tend to incite an immediate breach of the peace” as defined by the Supreme Court in Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942), do not communicate ideas and may be constitutionally regulated.