Freedom of Expression

Question 1

What is the general rule for freedom of expression?

Answer 1

The government may not interfere with or distort the marketplace of ideas, especially with respect to political speech

Question 2

Under what standard of review must courts analyze content-based discrimination?

Answer 2

Under strict scrutiny, unless certain exceptions apply

Question 3

Under what exceptions would content-based discrimination not be subject to strict scrutiny?

Answer 3

(a) Unprotected or low-value speech
(b) Government as speaker
(c) Content-neutral conduct regulation
(d) Content-neutral time, place, and manner regulation

Question 4

How may courts analyze state regulation of unprotected speech?

Answer 4

A regulation that relates to unprotected speech is subject to rational basis review

Question 5

What are examples of unprotected speech?

Answer 5

1. speech that advocates violence or unlawful acts
2. fighting words
3. hostile audience speech
4. obscene speech
5. defamatory speech

Question 6

What factors determine whether speech advocates for violence/unlawful action and is, thus, unprotected?

Answer 6

1. advocacy is directed to inciting or producing imminent lawless action, AND
2. is likely to incite or produce such action

Question 7

What are fighting words?

Answer 7

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

Question 8

What is hostile audience speech?

Answer 8

Speech that elicits an immediate violent response against the speaker by an audience

Question 9

What must police do in response to hostile audience speech?

Answer 9

Police must make reasonable efforts to protect the speaker and guard against a “heckler’s veto” of unpopular speech

Question 10

What factors determine whether speech is obscene and, thus, unprotected?

Answer 10

(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

Question 11

Under what four scenarios should defamatory speech be analyzed?

Answer 11

1. speech about a private person, and the matter is of private concern
2. speech about a private person, and the matter is of public concern
3. speech about a public official/figure, and the matter is of either public or private concern
4. speech done by media about a private person regarding a matter of public interest

Question 12

What is the standard for proving defamation when the speech is about a private person regarding a matter of private concern?

Answer 12

Must prove negligence about the truth or falsity of the statement, though no proof of malice is required

Question 13

What is the standard for proving defamation when the speech is about private person regarding a matter of public concern?

Answer 13

Must prove negligence about the truth or falsity of the statement, though no proof of malice is required

Question 14

What is the standard for proving defamation when the speech is about a public official/figure regarding a matter of public or private concern?

Answer 14

Must prove actual malice

Question 15

What is actual malice?

Answer 15

Either knowledge of the falsity or reckless disregard of the truth or falsity of the statement

Question 16

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?

Answer 16

Must prove actual malice, though a news broadcaster is never liable for publishing truthful information obtained from the public record

Question 17

What are two examples of low-value (quasi protected) speech?

Answer 17

1. commercial speech
2. sexual or indecent speech

Question 18

May the government regulate commercial speech?

Answer 18

The government may regulate commercial speech that is false or deceptive, or that relates to unlawful activity

Question 19

When may the government regulate commercial speech that is neither false/deceptive nor relates to an unlawful activity?

Answer 19

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

Question 20

What are some examples of valid commercial speech regulations?

Answer 20

(i) Discipline lawyers for in-person solicitation of clients for personal gain
(ii) Prohibit commercial billboards

Question 21

What is an example of an invalid commercial speech regulation?

Answer 21

A state cannot ban all advertisement of drug prices or legal services

Question 22

How can sexual or indecent speech be regulated?

Answer 22

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

Question 23

What is the general rule for government speech?

Answer 23

Where the government is the speaker, the government may say what it wants

Question 24

When may the government regulate conduct that happens to have an incidental burden on speech?

Answer 24

(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

Question 25

When is a “time, place, and manner” regulation valid when applied to public forums?

Answer 25

(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

Question 26

What are examples of valid “time, place, and manner” regulations for public forums?

Answer 26

(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

Question 27

What are some examples of invalid “time, place, and manner” regulations for private forums?

Answer 27

(i) Government cannot require parades or marches to pay for police protection
(ii) Cannot enact a complete ban on door-to-door solicitation

Question 28

When is a “time, place, and manner” regulation invalid when applied to non-public forums?

Answer 28

The regulation must be reasonably related to a legitimate government purpose

Question 29

What are examples of valid “time, place, and manner” regulations for non-public forums?

Answer 29

(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

Question 30

What is an example of an invalid “time, place, and manner” regulation for non-public forums?

Answer 30

Government cannot deny use of public school facilities to religious groups if other public and private groups are allowed similar access

Question 31

What is the general rule for denial of public employment based on political membership?

Answer 31

Cannot be denied public employment, except a high-level policy-making position, based on membership in a political organization

Question 32

When may an individual be denied public employment based on political association?

Answer 32

1. He is an active member of a subversive org;
2. He has knowledge of the illegal aims of the organization; AND
3. He has specific intent to further the illegal aims

Question 33

May public employees be disciplined or fired for speech?

Answer 33

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)

Question 34

May public school children be disciplined for speech?

Answer 34

Public school children can be disciplined for speech that is potentially disruptive

Question 35

May prisoners be disciplined for speech?

Answer 35

Prisoners’ speech may be restricted by a regulation that is rationally related to a legitimate penological objective

Question 36

What is the prior restraint rule for speech?

Answer 36

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

Question 37

What is the overbreadth rule for regulating speech?

Answer 37

A regulation of speech must be narrow and specific, not overly broad as to have a “chilling effect” on protected speech

Question 38

What is the vagueness rule for regulating speech?

Answer 38

A regulation of speech must not be vague (i.e., must be able to determine the type of speech
covered by the regulation)

Question 39

May the government regulate radio or TV broadcasts?

Answer 39

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

Question 40

What is the standard for regulating TV broadcasts?

Answer 40

Where cable TV operators are subjected to content-neutral regulations, intermediate scrutiny is applied