Free Speech Flashcards
Constitutional Text to Free Speech
Congress shall make no law abridging the freedom of speech.
Content-Based Regulation
1) Strict scrutiny
2) Least restrictive means
Incitement
1) Directed to incite imminent lawless action
2) Its likely to produce such action
True Threats
Intent to place an individual in fear of bodily harm
Fighting Words
1) Utterance inflicts injury or
2) Tends to incite immediate physical retaliation
Obscenity
1) Contemporary community standards
2) Appeals to prurient interest
3) Defined by law
4) Lacks serious literary, artistic, political, or scientific value
Hostile Audience
Protected, unless it creates a clear and present danger.
Defamation
1) False statement
2) Clear and convincing
Actual Malice for Defamation
Speaker knowingly or recklessly made the false statement
Hudson Test (Commercial Speech)
1) Lawful activity
2) Substantial government interest
3) Directly advances that interest
4) No more extensive than necessary
Time, Place, and Manner
1) Content neutral
2) Important government interest
3) Narrowly tailored
4) Ample alternative channels [least restrictive means]
O’Brien Test (Speech with Nonspeech Elements)
1) Important or substantial government Interest
2) Unrelated to suppression of expression
3) Incidental restriction is no greater than is essential
4) Ample alternative channels
Secondary Effects Doctrine
1) Content based
2) Treated as TPM
3) Government interest in preventing undesirable non-speech effects
Traditional and Designated Public Forum
Content Based = Strict Scrutiny
Content Neutral = TPM
Limited Forum and Non-Public Forum
1) Viewpoint neutral
2) Rational basis review
