Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Con Law II > Free Speech > Flashcards

Free Speech Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards MPRE flashcards Civil Procedure 1L flashcards
1
Q

Do the courts like to regulate speech?

A

NO

  • Courts always try and go for more speech instead of less speech
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What happens when the government is concerned about the message of the speech?

A
  • Gets a higher level of scrutiny
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Content-Neutral

A
  • Laws that have nothing to do with a message of speech

Ex:

  • Laws which bans any burning on your land
  • Cannot post any signs on light poles in city
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What does Content- Neutral laws get for level of review with speech?

A
  • Some sort of immediate scrutiny
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Content-Based

A

Government regulation based on the message

Ex:

  • Cannot burn crosses in a yard
  • City makes a law “no political signs on light poles”

-Government is concerned with the message or the content, most likely its content based

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What does Content-Based laws get for level of review with speech?

A

STRICT SCRUTINY

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

View Point

A

When government takes one side in a dispute, that is view point

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

How to argue a law that regulates speech is unconstitutional?

A

1) Vagueness

2) Over breadth

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Vague

A

When a reasonable person cannot tell from the face of the law whether it is allowable speech or not allowable speech

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Overbreadth

A

If speech restriction BANS SUBSTANTIALLY more speech than it is permitted to, then it is overbroad and unconstitutional

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Prior Restraint

A
  • Judicial Restraint (restraining order)
  • A license on speech

Government bears a HEAVY burden if it seeks prior restraint, usually struck.

-Look for when government asks court for injunction for a person not to speak or not to print something

Ex: Parade Permits

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Permit on speech. What must happen for to be allowed

A

Must be speech neutral and

1) Clear and
2) Leave no discretion for government actor

  • Presumption against prior restraint on speech

Ex:
Organization wants to have parade, if government leaves discretion to grant or deny the permit based on speech, violation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What can clear standards be in Permit on Speech?

A

Can occur only certain places, times, certain amount of people

  • Look for content neutral of clear standards that have no discretion left for the government to allow permit
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Is government funding on speech a problem for free speech?

A

NO

  • Just because right of free speech does not mean government has a right to fund speech.
  • Funding on the condition of speech is not really a free problem at all.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Compelled speech and money

A

in general government cannot compel you to speak. But if government giving money, can tell you how to speak when using the money

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Does government have a right to fund your speech?

A

NOOO

  • While you have a right to speak, the government does not have a right to fund your speech

Ex: Dr who receive federal funding cannot council patients on their options of abortion. Not speech problem, b/c government can tell you how to spend federal funding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Unprotected Speech

A

1) incitement of illegal activity
2) fighting words
3) true threats
4) obscenity

  • If falls into one of these categories then government can regulate it. EVE IF IT IS REGULATION BY CONTENT
  • can totally ban, and can totally criminalize b/c it has no valued speech and not protected by first amendment.
18
Q

Types of “Lesser Protected Speech”

A

1) Profanity
2) Commercial speech
3) Defamation

19
Q

Incitement test

A

1) has to be LAWLESS
2) speech has to be directed at IMMINENT lawless action
3) a likelihood of producing ILLEGAL ACTION and
4) an intent to cause IMMINENT illegality

20
Q

What is imminent under incitement?

A

Imminent must be RIGHT AWAY

21
Q

Fighting Words Test

A

those by their very utterance inflict injury or tend to incite an immediate breach of the peace.

22
Q

Can government ban fighting words

A
  • Yes
  • When the purpose is to ban ALL FIGHTING WORDS that is ok, if it is to ban some SUB- CONTENT of fighting words that is subject to ordinary SS for content based discrimination
23
Q

What if government bans sub-content fighting words

A
  • It is subject to SS
24
Q

Ex of sub content fighting words

A
  • Cross burning
25
Q

How to argue incitement/ Fighting words

A

1) law is content based/ view point based
- SS
- Doesn’t fit an exception

2) Overbreadth
- even if proscribes some speech, it proscribes even more than is allowed by the government

3) Vagueness
- A reasonable person doesn’t know by the language what is allowed and what is not

26
Q

how to prevent Hecklers veto?

A
  • Officers first have to control the crowd before the speaker b/c of the speakers speech is being vetoed
27
Q

When can the cops calm the speaker before the crowd under the hecklers veto?

A
  • if speaker is making incitement speech or fighting words then police can calm the speaker first
28
Q

Can the government ban all true threats?

A

Yes

  • Can ban all true threats, no problem with content-based or viewpoint discrimination
29
Q

Is pornography protected speech

A

Yes

-

30
Q

Can government do certain zonings on pornography/

A

Yes

-B/c not discrimination on speech but the effects of the speech

31
Q

Can government ban child pornography?

A

YES

32
Q

Can government ban actors or computer animated actor for child porngrpahy?

A

No

  • has to be an actual child, not cpu or actor
  • govt interest is in protecting children, does not protect them if they are not involved
33
Q

Can government ban obscenity in the home?

A

No

-but can ban child pornos in home

34
Q

Obscenity test

A

Average person std

1) Whether the average person, applying contempaorary community standards would find that 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 by the applicable law
3) Whether the word, taken as a whole, lacks serious literary, artistic, poltical or scientific value

35
Q

What happens if content regulation of speech but does not fall under incitement, fighting words, true threats, or obscentity?

A

Look at profanity

36
Q

Test for profanity

A

TOTALITY OF THE CIRCUMSTANCES

1) location: where it was said
- look to the audience

2) Avertability: can people avert their eyes?
3) Time of the day

37
Q

Commercial speech Test

A

1) Does the speech advertise illegal activites or constitute false or deceptive advertising that is unprotected by the 1st amendment?

2) is the governments restriction justified by a substantial government interest?
- kind of like intermediate scrutiny

3) does the law directly advance the governments interest
4) is the regulation of speech no more extensive than necessary to achieve the governments interest
- For commercial speech to come within this provision it must concern lawful activity and not be misleading

  • Whether the assereted governmental interest is substantial
  • If both answer yes, determine whether the regulation directly advances the governmental interest asserted and whether it is not more extensive than is necessary to serve that interest
38
Q

Defamation for public figure

A

1) P must be a public official or running for public office
2) P must prove his or her case with clear and convicing evidence
3) P must prove falsity of the statement and
4) P must prove ACTUAL MALICE- that D knew the statement was false or acted with reckless disregard for the truth

39
Q

Defamation private figure

A

1) mere negligence not actual malice

- can get compensatory damages for negligence, if want punitive damages need actual malice

40
Q

Conduct as Speech Test

A

1) Government regulation is sufficiently justified if it is within the constitutional power of the Government;
2) If it furthers an important or substantial government interest,
3) If the governmental interest is unrelated to the suppression of free expression, and
4) If the incidental restriction alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

41
Q

What must state due to regulate conduct as speech?

A
  • must be regulating for something else besides preventing speech

Con Law II (14 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions