Freedom of Expression

Question 1

First Amendment

Answer 1

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.

Question 2

Strict Scrutiny

Answer 2

• 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

Question 3

Unprotected Speech

Answer 3

Regulation of unprotected speech is permissable

HAFWOUD

Hostile Audience

Fighting Words

Obscene speech

Unlawful action

Defamation

Question 4

Hostile Audience

Answer 4

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

Question 5

Fighting Words

Answer 5

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

Question 6

Obscene Speech

Answer 6

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).

Question 7

Unlawful Action

Answer 7

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

Question 8

Defamation

Answer 8

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.

Question 9

Plaintiff is private person & subject matter is of private concern

Answer 9

standard defamation law applies

Question 10

Plaintiff is private person & subject matter is of public concern

Answer 10

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

Question 11

Plaintiff is public official or public figure

Answer 11

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)

Question 12

Commerical Speech

Answer 12

Commercial speech is protected by the First Amendment if:

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

Question 13

When can gov’t regulate commerical speech?

3 part test

Answer 13

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.

Question 14

Sexual or Indecent Speech

Answer 14

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

Question 15

Secondary Effects Regulation Requirements:

Answer 15

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

Question 16

Conduct regulation, creating an incidental burden on speech

Answer 16

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

Question 17

Time, Place, and Manner Regulation

Answer 17

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

Question 18

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

Answer 18

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.

Question 19

Non-public forum

Answer 19

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

Question 20

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

Answer 20

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

Question 21

Requirements for denying an individual public employment for political association

Answer 21

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).

Question 22

Oath requirement for public entry

Answer 22

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

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

Question 23

Public employees can be disciplined or fired for speech if:

Answer 23

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

Question 24

Vagueness

Answer 24

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

Question 25

Prior restraints on speach in advance of its expression

Answer 25

• 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

Question 26

Campaign related speech

Answer 26

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

Question 27

Government speech

Answer 27

7. Government speech

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

Question 28

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

Answer 28

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

Question 29

Media Gag Orders

Answer 29

Subject to prior restraint analysis and rarely upheld

Question 30

Attending Trials for media/public

Answer 30

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

Question 31

Media have right to protect source?

Answer 31

no constitutional right

Question 32

Broadcast rights

Answer 32

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