Freedom of Expression Flashcards
What is the general rule for freedom of expression?
The government may not interfere with or distort the marketplace of ideas, especially with respect to political speech
Under what standard of review must courts analyze content-based discrimination?
Under strict scrutiny, unless certain exceptions apply
Under what exceptions would content-based discrimination not be subject to strict scrutiny?
(a) Unprotected or low-value speech
(b) Government as speaker
(c) Content-neutral conduct regulation
(d) Content-neutral time, place, and manner regulation
How may courts analyze state regulation of unprotected speech?
A regulation that relates to unprotected speech is subject to rational basis review
What are examples of unprotected speech?
- speech that advocates violence or unlawful acts
- fighting words
- hostile audience speech
- obscene speech
- defamatory speech
What factors determine whether speech advocates for violence/unlawful action and is, thus, unprotected?
- advocacy is directed to inciting or producing imminent lawless action, AND
- is likely to incite or produce such action
What are fighting words?
Words likely to incite an ordinary citizen to commit immediate physical retaliation
The speech must be more than annoying or offensive; must be a direct, personal insult
What is hostile audience speech?
Speech that elicits an immediate violent response against the speaker by an audience
What must police do in response to hostile audience speech?
Police must make reasonable efforts to protect the speaker and guard against a “heckler’s veto” of unpopular speech
What factors determine whether speech is obscene and, thus, unprotected?
(i) The average person, applying local contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest;
(ii) The work depicts or describes, in a patently offensive way, sexual conduct that is specifically defined by state law; AND
(iii) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value
Under what four scenarios should defamatory speech be analyzed?
- speech about a private person, and the matter is of private concern
- speech about a private person, and the matter is of public concern
- speech about a public official/figure, and the matter is of either public or private concern
- speech done by media about a private person regarding a matter of public interest
What is the standard for proving defamation when the speech is about a private person regarding a matter of private concern?
Must prove negligence about the truth or falsity of the statement, though no proof of malice is required
What is the standard for proving defamation when the speech is about private person regarding a matter of public concern?
Must prove negligence about the truth or falsity of the statement, though no proof of malice is required
What is the standard for proving defamation when the speech is about a public official/figure regarding a matter of public or private concern?
Must prove actual malice
What is actual malice?
Either knowledge of the falsity or reckless disregard of the truth or falsity of the statement
What is the standard for proving defamation when the media speaks about a private person regarding a matter of public interest, and the person is suing for invasion of privacy?
Must prove actual malice, though a news broadcaster is never liable for publishing truthful information obtained from the public record
What are two examples of low-value (quasi protected) speech?
- commercial speech
- sexual or indecent speech
May the government regulate commercial speech?
The government may regulate commercial speech that is false or deceptive, or that relates to unlawful activity
When may the government regulate commercial speech that is neither false/deceptive nor relates to an unlawful activity?
The regulation of the commercial speech must:
1. serve a substantial governmental interest;
2. Directly advance the substantial governmental interest; AND
3. Not be more extensive than is necessary to serve that interest
What are some examples of valid commercial speech regulations?
(i) Discipline lawyers for in-person solicitation of clients for personal gain
(ii) Prohibit commercial billboards
What is an example of an invalid commercial speech regulation?
A state cannot ban all advertisement of drug prices or legal services
How can sexual or indecent speech be regulated?
Indecent speech is fully protected but can be regulated on the basis of secondary effects
Secondary-effects regulations must serve a substantial government interest and leave open reasonable alternative channels of communication
What is the general rule for government speech?
Where the government is the speaker, the government may say what it wants
When may the government regulate conduct that happens to have an incidental burden on speech?
(1) The regulation furthers an important or substantial government interest that is unrelated to the suppression of free expression; AND
(2) The incidental restriction on speech is no greater than is necessary to further that interest
When is a “time, place, and manner” regulation valid when applied to public forums?
(1) The regulation is content neutral, as to both subject matter and viewpoint (i.e., the regulation cannot prefer some messages over others);
(2) it is narrowly tailored to serve an important government interest; AND
(3) it leaves open alternative channels of communication
What are examples of valid “time, place, and manner” regulations for public forums?
(i) Government allowed to require large gatherings to get a permit to use public property (the criteria to receive a permit must be defined and content neutral)
(ii) Restricting the volume and hours of amplifiers
What are some examples of invalid “time, place, and manner” regulations for private forums?
(i) Government cannot require parades or marches to pay for police protection
(ii) Cannot enact a complete ban on door-to-door solicitation
When is a “time, place, and manner” regulation invalid when applied to non-public forums?
The regulation must be reasonably related to a legitimate government purpose
What are examples of valid “time, place, and manner” regulations for non-public forums?
(i) Government can prohibit demonstrations on jailhouse grounds
(ii) Close military bases to political speeches and distribution of leaflets
(iii) Regulate speech in government workplaces
(iv) Sell commercial advertising on a city bus but refuse to sell such space for
political advertising
What is an example of an invalid “time, place, and manner” regulation for non-public forums?
Government cannot deny use of public school facilities to religious groups if other public and private groups are allowed similar access
What is the general rule for denial of public employment based on political membership?
Cannot be denied public employment, except a high-level policy-making position, based on membership in a political organization
When may an individual be denied public employment based on political association?
- He is an active member of a subversive org;
- He has knowledge of the illegal aims of the organization; AND
- He has specific intent to further the illegal aims
May public employees be disciplined or fired for speech?
Yes, public employees may be disciplined or fired for speech if:
(a) The speech is not a matter of public concern; OR
(b) The speech is potentially disruptive to the workplace (even if the speech is on a matter of public concern)
May public school children be disciplined for speech?
Public school children can be disciplined for speech that is potentially disruptive
May prisoners be disciplined for speech?
Prisoners’ speech may be restricted by a regulation that is rationally related to a legitimate penological objective
What is the prior restraint rule for speech?
The government cannot suppress or restrain speech in advance of its publication or utterance, and there is a strong presumption that prior restraints are illegal
What is the overbreadth rule for regulating speech?
A regulation of speech must be narrow and specific, not overly broad as to have a “chilling effect” on protected speech
What is the vagueness rule for regulating speech?
A regulation of speech must not be vague (i.e., must be able to determine the type of speech
covered by the regulation)
May the government regulate radio or TV broadcasts?
In general, radio and television broadcasting can be more closely regulated than the print media or a private individual; government, for example, can ban offensive sexual content and speech
What is the standard for regulating TV broadcasts?
Where cable TV operators are subjected to content-neutral regulations, intermediate scrutiny is applied
