Freedom of Expression and Association - Regulation of Content

Question 1

Regulation of Content

Answer 1

Any governmental regulation of speech that is content-based on its face will only be upheld if the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest EXCEPT:

Question 2

Obscenity

Answer 2

not protected by the first amendment

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 3

Incitement to Violence

Answer 3

a state may forbid speech that advocates the use of force or unlawful action if:

• the speech is directed to inciting or producing imminent lawless action; and

-it is likely to incite or produce such action (creates clear and present danger)

Question 3

Commercial Speech

Answer 3

restriction on commercial speech are subject to a four part test:

-the commercial speech must concern lawful activity and be neither false nor misleading

-the asserted gov’t interest must be substantial

-the asserted regulation must directly advance asserted interest

-the regulation must be narrowly tailored to serve interest

Question 4

Fighting Words

Answer 4

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

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

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

Question 5

Defamation

Answer 5

if P is a public official or public figure, or a defamatory statement involves a matter of public concern, then in addition to the elements of PFC of defamation, P must prove fault and falsity of the statement

Public Figure -

Public Concern -