Freedom of Expression Flashcards
FREE SPEECH
Fundamental Right
1st AMENDMENT – Govt cannot ban speech, but can regulate speech:
FREE SPEECH
Content Based x Content Neutral
- CONTENT BASED – Govt regulating the words we are saying (Gov denies completely – aim the message)
- We apply Strict Scrutiny
- CONTENT NEUTRAL – Govt regulating Time, Place, and Manner
- As long as message gets out, is it reasonable
- Intermediate Scrutiny (significant or important interest and leaves open alternative means of expression)
Content Based
Expressive Conduct
Upheld if…
Laws regulating expressive conduct are upheld if:
- The regulation furthers an IMPORTANT INTEREST;
- That interest is UNRELATED to the suppression of expression; and
- The burden on expression is NO GREATER THAN NECESSARY
Content Based
Expressive Conduct - Key
If the government is trying to SUPPRESS a particular MESSAGE, then the law will be struck down
If the government is trying to pursue an interest UNRELATED to the suppression of expression, then the law will be upheld
Vagueness
Vague laws are ones that give NO CLEAR NOTICE of what is prohibited and this violate due process
Overbreadth
Overbroad laws are ones that go too far in regulating speech.
These laws burden SUBSTANTIALLY more speech than is NECESSARY to protect a COMPELLING interest and this violate the 1st amendment
Content Neutral
Regulation of Time, Place, or Manner of Expression
- Apply in a PUBLIC forum
(Within government property not open to public - offices, jail, military bases - Any reasonable regulation of speech will be upheld, but viewpoint discrimination is invalid) - only TIME, PLACE, and MANNER may be regulated in a public forum
Content Neutral
Regulation of Time, Place, or Manner of Expression
3 Requirements
- Regulation must be CONTENT NEUTRAL on its face and as applied. Also, must not allow executive discretion
- Other CHANNELS of communication must be left OPEN
- Must NARROWLY serve a SIGNIFICANT state interest
(Does not require a compelling interest)
Content-Based Restrictions on Speech
Obscenity
Rule of the “S”:
- SEXY: Must be EROTIC; appeal to the prurient interest
- SICK: Must be PATENTLY OFFENSIVE to the average person in the society
- STANDARDS: Must be defined by the proper standards for determining what is obscene, not vague and/or overbroad
- LACK SERIOUS VALUE: The material must lack serious value. If it has serious value (artistic, scientific, educational, or political), it cannot be held legally obscene
(Determination made by the court, not the jury - according to a national standard - not local)
Content-Based Restrictions on Speech
Obscenity
Footnotes
Minors: A lesser legal standard can be applied to minors, but the government cannot ban adult speech simply because it would be inappropriate for minor
Child Pornography: Can be prohibited whether or not it is legally obscene, and possession can be punished even if its is in the privacy of one’s own home
Land Use Restrictions: Narrowly drawn ordinances can regulate the local of adult theaters, but cannot ban them
Content-Based Restrictions on Speech
Incitement
Speech is not protected if it is an incitement to immediate violence
Content-Based Restrictions on Speech
Fighting Words
Words likely to provoke an immediate breach of the peace
Content-Based Restrictions on Speech
Defamation
- False Statements of FACT (NOT OPINION) damaging to a person’s reputation can be prohibited
- Public officials and public figures can recover for defamation only on proof of KNOWING or HECKLESS falsity
- Private plaintiffs can recover on proof of NEGLIGENT falsity
Content-Based Restrictions on Speech
Commercial Speech
- Most regulations of commercial speech are struck down
- So long as the advertising is TRUTHFUL and INFORMATIONAL, it must be allowed
- Test: Regulation of commercial speech must directly advance a SUBSTANTIAL government interest and be NARROWLY TAILORED to that interest.
- Misleading speech may be prohibited
Content-Based Restrictions on Speech
Government Speech
1st Amendment restrictions do not apply to the government as a speaker
