Freedom of Expression Flashcards
Regulation of the Content of Expression
General - content based regulations trigger strict scrutiny and are usually struct down
1. Expressive Conduct (aka Symbolic Speech)
Laws regulating expressive conduct are upheld if:
- they further an important interest
- that interst is unrelated to the suppression of expression and
- the burden on expression is no greater than necessay
TL;DR - if gov trying to suppress message, then struct down; if gov pursing an interest unrelated to the message then upheld
2. Vagueness and Overbreadth
Vagueness - no clear notice is given; vague laws are ones that give no clear notice of what is prohibted and thus violate due process
Overbreadth - overbraod laws are ones that go too far in regulating speech and will be struct down
- Prior Restraints - disfavored; injunctions against speech are almost impossible to get
Regulation of Time, Place, Manner of Expression (Content Neutral)
General - apply principally in a public form
Public Form - place traditionally reserved for speech acitvities and includes street, park, public sidewalk around a public building and does not include airports
Three Requirements:
- Content Neutral - law must be content neutral on its face and as applied and must not allow executive discretion
- Alternative Channels of Comm. Must Be Left Open - time, place, manner law must be a guidline for speech, not a flat prohibition of speech
- Must narrowly service a specific state interst; does not require a compelling interest
Non-Public Forum
Ex: government offices, jails, offices, power plants, military baes
Rule - any reasonable regulation will be upheld unless:
- Viewpoint Discrimination - to discriminate based on viewpoint
- Disruption of Functions of Government
Limited Public Forum
Definition - not a traditional public forum but the government chooses to open to all comers (e.g., a municipal theater that anyone can rent)
may regulate time, place, and manner
Content Based Regulations - Obscentity
- Sexy - must be erotic, appeal to the prurient interest (gore and violence are not obscene)
- Society Sick - must be patently offensive to the average person in the society; may be country as whole or particlar state or major metropolitan area
- Standards - must be defined by the proper standards for determing what is obscene, not vague and/or overbroad
- Serious Value - material must lack serious value; if material has seriousd value (artistic, scientifiec, education, or political), it cannot be held legally obscene. This determiination is made by the court, not the jury, and based on national standard, not local
Notes
Minors - lesser legal standard can be applied to miniors, but the government cannot ban adult speech simply because it would be inappropriate for minors
Child Porn - can be prhoibted whether or not it is legally obscene and posession can be punisehd even if it is in the privacy of own home
Land Use Restrictions - narrowly drawn ordinarces can regulate the zoning of adult theaters
Content Based Regulations - Incitement
Speech is not protectd if it is an inctmenet to immediate violence
Content Based Regulations - Fighting Words
Words likely to provoke an immediate breach of the peace.
- General vulgarity not enough
- must be aimed at someone
- fighting words are not protected speech
- all fighting words statutes on the bar exam are unconstiutionally vague or overbroad (laws against “hate speech”)
Content Based Regulations - Defamation
General - false statements of fact damaging a person’s reputation can be prohibited
Public Officials/Figures - can recover for defamation only on proof of knowing or reckless falsity
Private P - can recover on proof of negligent falsity
Content Based Regulations - Commercial Speech
General - most regulations of commercial speech are struct down
Test - regulation of commercial speech must directly advance a substantial government interest and be narrowly tailored to that itnerest
Misleading Speech - may be prohibted
Ex: advertisements
Government Speech
1st A restrictions don’t apply to government as a speaker
Government as a speaker is free to express a point of view (e.g., advertising the military)
Government does not have to accept all monuments donated by private person simply because it accepts one
Corporations
have same 1st amendment right to speak as individuals
Regulation of the Media
- No Special Privileges - the press/media have no special privileges and have the same rights as everyone els-e
- Broadcasters - because of early limits on the broadcast specturm, government had greater regulatory authority over broadcasters than over print media or the internet
Regulation of Association
Freedom of Association - cannot be punished because of political associations
Loyalty Oaths - public employees can be required to take a loyalty oath to the constitution but most loyalty oaths are struck down as vague and/or overbroad
Bar Membership - states can investigate good character, but they cannot deny admission based on political affiliations
Political Parties - states cannot require open primaries
Speech by Government Employees
Rule - government employees cannot be hired or fired based on political party, political philosophy, or any act of expression.
Exception - general rule does not apply to confidential advisors or policy-making employees (e.g., presidents cabinent officers)
Campaign Finance
Contributions v. Expenditures
Contributions can be regulated, provded that the limits are not unreasonably low
Direct expenditures in support of a candidate, a campaign, or a political issue cannot be regulated
Independent Expendtures v. Coordinated Expenditures
Independent expensitures cannot be regulated
Coordindated expenditure is a disguised contribution (the campaign is in control) and can be regulated as contributions can be regulated
