Freedom of Expression Flashcards

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1
Q

First Amendment

A

The government may neither censor all categories of speech nor engage in content-based discrimination among different categories of speech (even if that speech is offensive), with some exceptions.

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2
Q

Strict Scrutiny

A
  • The government will face strict scrutiny if it engages in content-based discrimination
  • To win, gov’t would have to show the regulation is necessary and serves a compelling gov’t interest
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3
Q

Unprotected Speech

A

Regulation of unprotected speech is permissable

HAFWOUD

Hostile Audience

Fighting Words

Obscene speech

Unlawful action

Defamation

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4
Q

Hostile Audience

A

Speech that elicits imminent violent response against the speaker by a crowd

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5
Q

Fighting Words

A

To fall within this category, the speech must be more than annoying or offensive; there must be a genuine likelihood of imminent violence by a hostile audience.

Requirements:

  1. Direct personal insult
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6
Q

Obscene Speech

A

For speech to be considered obscene, the following three-part Miller test must be satisfied:

  1. the average person, applying contemporary comunity standards, would find that the work, taken as a whole, appeals tothe prurient interest (a national standard is not used);
  2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
  3. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (note that a national standard is used to determine this value).
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7
Q

Unlawful Action

A

Gov’t can prohibit the speech if the speaker intends to produce imminent unlawful action; and the speech is likely to produce imminent unlawful action

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8
Q

Defamation

A

Constitutional restrictions apply to defamatory speech where the plaintiff is either:

  • a public official or public figure, or
  • where the defamatory statement involves a matter of public concern.
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9
Q

Plaintiff is private person & subject matter is of private concern

A

standard defamation law applies

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10
Q

Plaintiff is private person & subject matter is of public concern

A

Plaintiff must prove negligence about the truth or falsity of the statement.

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11
Q

Plaintiff is public official or public figure

A

plaintiff must prove:

  • the state law requirements of defamation AND
  • actual malice (knowledge of the falsity or reckless disregard of the truth or falsity of the statement)
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12
Q

Commerical Speech

A

Commercial speech is protected by the First Amendment if:

  • it is not false or deceptive and
  • does not relate to unlawful activity.
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13
Q

When can gov’t regulate commerical speech?

3 part test

A
  1. it must serve a substantial governmental interest;
  2. it must directly advance the substantial governmental interest; and
  3. it must not be more extensive than is necessary to serve that interest.
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14
Q

Sexual or Indecent Speech

A

Is protected but can be regulated on the basis of secondary effects

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15
Q

Secondary Effects Regulation Requirements:

A
  1. regulations must serve a substantial government interest, and
  2. leave open reasonable alternative channels of communication
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16
Q

Conduct regulation, creating an incidental burden on speech

A

Is allowable, if:

  • The regulation furthers an importance gov’t interest that is unrelated to the content of the speech
  • The incidental burden imposed on the speech is no greater than necessary
17
Q

Time, Place, and Manner Regulation

A

Reasonable regulation of the time, place, or manner of speech is allowed.

18
Q

3-part test is used to determine the constitutionality of time, place, or manner regulations

A
  1. be content-neutral as to both subject matter and viewpoint (i.e., the regulation cannot prefer some messages over others);
  2. be narrowly tailored to serve a significant (important) government interest; and
  3. leave alternative channels of communication open.
19
Q

Non-public forum

A

gov’t can regulate non-public forums under rational basis review

20
Q

When can an individual be denied public employment based upon membership in a political organization?

A

When the position is a high-level policy-making position

21
Q

Requirements for denying an individual public employment for political association

A

An individual may be deprived if:

  1. he is an active member of a subversive organization;
  2. such membership is with knowledge of the illegal aims of the organization; and
  3. he has a specific intent to further those illegal ends (e.g., violent overthrow of the government).
22
Q

Oath requirement for public entry

A

The gov’t can require employees to take an oath to:

  1. Support the constitution
  2. Oppose illegal overthrow of the gov’t
23
Q

Public employees can be disciplined or fired for speech if:

A
  1. The speech is not a matter of public concern
  2. Speech is potentially disruptive of the workplace
24
Q

Vagueness

A

Statute void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited

25
Q

Prior restraints on speach in advance of its expression

A

• Invalid unless there is a particular harm to be avoided and certain procedural safeguards are provided to the speaker, for example o Narrowly drawn/reasonable/definite standards o Promptly sought injunction

o Prompt/final decision on validity of restraint

• Burden on government to prove censored material not protected speech

26
Q

Campaign related speech

A
  • Statutes limiting campaign contributions subject to intermediate scrutiny
  • Restrictions on campaign expenditures on communications during election campaign regarding a candidate subject to strict scrutiny
27
Q

Government speech

A

7. Government speech

• Need not be viewpoint-neutral, but is subject to the Establishment Clause

28
Q

Regulation of media’s right to publish matters of public concern

A

Regulation of right to publish matters of public concern subject to strict scrutiny

29
Q

Media Gag Orders

A

Subject to prior restraint analysis and rarely upheld

30
Q

Attending Trials for media/public

A

Right to attend may be outweighed by overriding interest that can’t be accommodated by less restrictive means

31
Q

Media have right to protect source?

A

no constitutional right

32
Q

Broadcast rights

A

Greater responsibility to public, thus more closely regulated than print and other media