Freedom of Expression and Association

Question 1

Is expressive conduct (symbolic speech) subject the same protections as other forms of expression?

Answer 1

Subject to a lesser degree of protection than speech.

A regulation of expressive conduct is upheld IF
-> the regulation is whiten the government’s power to enact
-> it furthers an imprint government interest
-> the unrest is unrelated to the suppression of ideas
AND
-> the burden on speech is no greater than necessary

Question 2

What does it mean for a lw to be “over broad” with regards to the First Amendment?

Is there a form of speech that isn’t implicated in this situation?

Answer 2

A law that burdens a substantial amount of speech or other conduct constitutionally protected by the 1st Amendment is “over broad” and THEREFORE is void

Does not apply to commercial speech.

Question 3

How can over broad statues be challenged as?

Answer 3

Overbroad statutes may be challenges as “facially invalid” (even by those who are validly regulated) to prevent a chilling effect on protected speech

Question 4

When is a statute void for vagueness with regard to freedom of speech?

Answer 4

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

Question 5

Is the regulation of speech that occurs in advance of its expression valid?

Answer 5

Prior restraints

Generally presumed to be unconstitutional, with limited exceptions

Question 6

What are the exceptions to a prior restraint regulation?

What are the examples of procedural safeguards provided to the speaker?

Answer 6

The limited exceptions require at a minimum that
-> there is a particular harm to be avoided
AND
-> certain procedural safeguards are provided to the speaker

Procedural safeguards are provided to the speaker in the following ways
-> the standards must be narrowly drawn, reasonable, and definite
-> the censoring body must promptly seek an injunction
AND
-> there must be a prompt and final judicial determination of the validity of the restraint

Question 7

Who has the burden and with regards to what vis-a-vis prior restraints?

Answer 7

The burden is on the government to provee that the material to be censored is not protected speech.

Question 8

What does it mean for a regulation to provide a government official with unfettered discretion?

Is this allowed with regards to freedom of speech?

Answer 8

A law or regulation that permits a governmental official to restrict speech must provide definite standards as to how to apply the law in order to prevent governmental officials from having unfettered discretion over its application.

A statue that gives officials unfettered discretion is void on its face.

Question 9

Does the First Amendment protect the freedom not to speak?

Answer 9

Yes it does

Question 10

Can a state compel a private entity to permit individuals to exercise their own free-speech rights?

Answer 10

Yes, when the private entity is open to the public and the message is not likely to be attributable to the private entity.

Question 11

Can one be compelled to join or financially support a group?

If so, can they also be compelled to fund political speech of that group?

Answer 11

Yes can be compelled to join or financially support a group with respect to one’s employment.

One cannot be forced to fund political speech by that group.

Question 12

Is government speech required to be viewpoint neutral and subject to the Establishment Clause?

Answer 12

Not required to be viewpoint neutral.

Subject to the Establishment Clause.

Question 13

What level of scrutiny are statutes limiting camping contribution subject to?

What about campaign expenditures?

Answer 13

Intermediate scrutiny

In contrast to campaign contributions, restriction on expenditures by individuals and entities (including corporations and unions) on communications during an election campaign regarding a candidate are subject to strict scrutiny.

Question 14

What are the three categories of forums?

Answer 14

Traditional public forums
Designated public forums
Nonpublic (or limited public) forums

Question 15

What’s the difference between traditional and designated public forums?

Answer 15

Traditional
-> historically associated with expression (e.g. sidewalks, streets, parks)

Designated
-> not historically used for speech-related activities, BUT which the government has opened for such use (e.g. civic auditoriums, publicly owned theaters, or school classrooms after-hours)

Question 16

What must the restrictions in either type of public forum generally be to be upheld under the 1st Amendment?

Answer 16

Restrictions must
-> be content-neutral as to both subject matter and viewpoint
-> be narrowly tailored to serve a significant governmental interest (i.e., promote interest that would be achieved less effectively absent the regulation)
AND
-> leave open ample alternative channels for communication of the information

Question 17

What are the two tests to determine if an injunction in public forums is constitutional?

Answer 17

Depends on whether injunction is content-neutral or content-based.

Content-neutral test
-> whether it burdens no more speech than is necessary to achieve an important governmental interest

Content-based test
-> it must be necessary for the government to achieve a compelling governmental interest

Question 18

What is a nonpublic forum (or “limited public forum”)?

Answer 18

All public property that is not a traditional or designated public forum

Question 19

To what extend can a government regulate speech-related activities in nonpublic forums?

Answer 19

The government may regulate speech-related activities in nonpublic forums as long as the regulation is
-> viewpoint-neutral
AND
-> reasonably related to a legitimate governmental interest

Viewpoint-neutral
-> the government may prohibit speech on certain issues altogether, but it may NOT allow only one side of an issue to be presented

Reasonable
-> the restriction must be rationally related to a legitimate governmental interest

Question 20

Can the government regulate speech on personal property?

Answer 20

Government regulation of speech on a person’s own private property will rarely be upheld.

BUT no 1st Amendment right to express oneself on someone else’s private property.

Question 21

What standard of scrutiny is regulation of content statues subject to?

Are there any exceptions to this?

Answer 21

Whether content-based on its face or in application or intent, it is generally subject to STRICT SCRUTINY except with regards to:
-> obscenity and child pornography
-> incitement to violence
-> fitting words
-> defamation
-> commercial speech

Question 22

Is obscene content and child pornography protected by the 1st Amendment?

What is the obscenity test?

Answer 22

No.

Obscenity test - the average person, applying contemporary community standards, must find that the material, taken as a whole
-> appeals to the prurient interest (community standard)
-> depicts sexual conduct in a patently offensive way (community standard)
AND
-> lacks serious literary, artistic, political, or scientific value (national standard)

Question 23

Can a state forbid speech that advocates the use of force or unlawful action?

Answer 23

Yes IF such speech
-> is directed to inciting or producing imminent lawless action
AND
-> it is likely to incite or produce such action (i.e., creates a clear and present danger)

Question 24

What are fighting words? What are not?

How do you determine when words are fighting words?

Answer 24

Fighting words are
-> words that by their very nature are likely to incite an immediate breach of the peace

Non-fighting words
-> words that are simply annoying or offensive are not fighting words

Determination
-> there must be a genuine likelihood of imminent violence by a hostile audience

Question 25

What must P prove with regards to defamation when P is a public official or public figure, or involves a defamatory statement of public concern?

Answer 25

In addition to the elements of a prima facie case of deflation, P must prove fault and falsity of the statement.

Question 26

What is the definition of a public figure?

Answer 26

Someone who is known to the general public and includes any person who has voluntarily injected herself into the public eye, P must prove D acted with actual malice.

Question 27

What id P is a private figure but the defamatory statement involves a matter of public concern, what must P prove?

Answer 27

If P is a private figure but the defamatory statement involves a matter of public concern, then P need only prove negligence with respect to the falsity of the statement.

Question 28

What is the four part test with regards to restrictions on commercial speech?

Answer 28

Four part test
-> the commercial speech must concern lawful activity and be either false nor misleading
-> the asserted governmental interest must be substantial
-> the asserted regulation must directly advance asserted interest
AND
-> the regulation must be narrowly tailored to serve interest (meaning a “reasonable fit” between the government’s end and the means chosen to accomplish those ends)

Question 29

Does the media have a greater First Amendment right than the general public?

Answer 29

No

Question 30

Which standard of scrutiny is used with regards to regulations of the right to publish about matters of public concern?

Answer 30

Strict scrutiny

Question 31

Is there a constitutional privilege to protect sources?

Answer 31

No

Question 32

Are gag-orders upheld against the media?

Answer 32

Subject to prior-restraint analysis and rarely upheld

Question 33

Can a judge restrict the media from attending a trial?

Answer 33

The right to attend trials may be outweighed if the judge finds an overriding interest that cannot be accommodated by less restrictive means.

Question 34

Can a party public illegally obtained private info?

Answer 34

Permitted to publish if the third party (unknown to publisher) obtained info illegally and involves matter of public concern

Question 35

Are all forms of broadcast regulated equally?

Answer 35

Radio and television broadcasters are said to have a greater responsibility to the public; they can more closely regulated than print and other media.

Question 36

Can broadcasters be sanctioned for airing “patently offensive sexual and excretory speech??

Answer 36

Yes even if such speech does not qualify as obscene.

Question 37

Are public access stations considered to be state actors?

Answer 37

No.

Question 38

What standard of scrutiny are regulations of content on cable television?

Answer 38

Strict scrutiny

Question 39

What standard of scrutiny is any regulation of the internet subject to?

Answer 39

Strict scrutiny

Question 40

What is the freedom of association?

When can it be infringed upon?

Answer 40

Freedom of association generally protects the right to form or participate in any group, gathering, club, or organization

Infringement may be justified by compelling state interest

Question 41

Can a person be denied public employment based simply upon membership in a political organization?

Any exceptions?

Answer 41

No

A person may only be punished or deprived of public employment based on political association if that individual
-> is an active member of a subversive organization (organization conducting illegal activities)
-> has knowledge of the organization’s illegal activity
AND
-> has specific intent to further those illegal objectives

Question 42

Can bar membership be restricted based on political association?

Any exceptions?

Answer 42

Admission cannot be denied on the basis of political association UNLESS the candidate knowingly belongs to a subversive organization with specific intent to further its illegal ends.

The state may deny bar membership to a candidate who refuses to answer questions about political affiliations if that refusal obstructs the investigation of the candidate’s qualifications.

Question 43

Can a state require a local political party to select presidential electors in an open primary when the national party prohibits nonparty members from voting?

Answer 43

No.

Question 44

Can a state require a semi-closed primary system even if the party wants to permit anyone to vote?

Answer 44

Yes it can require this

Question 45

Can a state prohibit a political party from allowing independents to vote in tis primary?

Answer 45

No it can’t

Question 46

When can a state not refuse to grant a political party’s candidate access to the general-election ballot?

Answer 46

A state may refuse to grant a political party’s candidate access to the general-election ballot unless the party demonstrates public support through voter signatures on a petition, voter resignations, or proviso electoral success.

Question 47

What is a fusion candidate?

Answer 47

A candidate who is nominated by more than one political party.

Question 48

Can a state prohibit a fusion candidate from appearing on the general-election ballot as a candidate of multiple parties?

Answer 48

Yes

Question 49

Which amendments are violated if a statute purports to criminally punish mere membership in an association?

When can such membership be criminalized without violating the amendments?

Answer 49

1st (federal) and 14th (state)

Such membership may only be criminalized IF
-> the group is actively engaged in unlawful activity, or is engaging in advocacy that passes the “clear and present danger” test
AND
-> the Ds know of and specifically intend to further the group’s illegal activity