Freedom of Expression, Regulation of Media and Government Speech Flashcards
Content based regulations of speech trigger what level of scrutiny?
Strict scrutiny – usually struck down.
What is the test for laws regulating expressive conduct (aka symbolic speech)?
Upheld if a regulation furthers an important interest and the interest is unrelated to suppression of expression
Burden of expression may not be greater than necessary
Laws against flag desecration are ___ whereas laws against public nudity are ___ due to the suppression of expression of expression rule
Laws against flag desecration are unconstitutional (disapproving of one type of speech)
Laws against public nudity are constitution (public order)
How does one defined a vague law re: expression?
Vague = no clear notice, which violates due process
What is an overbroad law re: expression?
overbroad = goes too far in regulating speech, substantially burdening more speech than is necessary to protect a compelling government interest
True or false: Vagueness and overbreadth are usually tested together on the Bar
True
True or false: injunctions against speech are relatively easy to obtain
False. Almost impossible to get.
When we talk about content-related regulation, what do we mean?
Time, place, and manner of expression = public forum
Name the two types of public forums. What are they?
- Traditional = place historically reserved for speech activities
- Dedicated = place gov has opened for speech activities
What are the requirements for regulating time, place, and manner of expression (aka content regulation)?
- Content neutral regulation – neutral on its face, no executive discretion
- Allows alternate channels of communication left open
- NARROWLY serve SIGNIFICANT state interest
True or false: content regulation requires a compelling state interest
False. Significant.
Significant = anything that makes sense to a judge
Does the government have more power and control over expression in a public or non-public forum
Nonpublic. Any reasonable regulation of speech will be upheld.
AND gov. cannot be disrupted
Is viewpoint discrimination allowed in a nonpublic forum
No. Invalid, even with more government control.
What are the rules of “S” that define obscenity?
- Sexy
- Society sick
- Standards
- Serious value
How is “sexy” defined in terms of obscenity and expression?
Erotic, appeal to prurient interst.
Are gore or violence “sexy” for the purposes of obscenity?
NO
How is “society sick” applied to obsenity?
Patently offensive to the average person in socitey. Society = nation as a whole, particular state, major metropolitan area
Can an obscenity standard be vague/overly broad.
No.
Ex: taxing films with frontal nudity is vague and overly broad, thus unconstitutional
Does a judge or jury determine if there is serious value in material that’s been potentially deemed obscene?
Judge/Court, according to a national standard
Can the government ban adult speech because it’s inappropriate for minors?
No, but a lesser standard for determining if material is obscene can be applied to minors
Can child pornography be prohibited regardless if it meets and of the “S” standars?
Yes. And possession can be punished, even if enjoyed in the privacy of one’s own home.
What is the connection b/t land ordinances and obscene material?
Narrowly drawn ordinances can regulate location of adult theaters BUT cannot ban them completely
True or false: Merely establishing that speech constitutes pornography is sufficient to establish obscene speech
False. Courts have recently begun to distinguish legally obscene speech from pornogrpahy.
When is speech considered incitement?
Incitement to immediate violence = not protected
What are the elements to “fighting words”
- Provoke immediate breach of peace
- Aimed and targeted at someone
- Who may hit back
Are most fighting words statutes constitutional?
No, usually vague and overbroad
(ex laws against hate speech)
How is defamation defined? Is it constitutional to prohibit?
False statements of fact, damaging to a person’s reputation. Can be prohibited.
When can public officials/figures recover from defamation?
Only on proof of knowing or reckless falsity.
When can private plaintiffs recover from defamation?
On proof of negligent falsity.
Name the five categories of unprotected speech
1.Obscenity
2. Incitement
3. Fighting words
4. Defamation
5. Commercial speech
Are regulations of commercial speech generally upheld or struck down?
Struck down, so long as the ad is truthful and informational
What is the test for regulation of commercial speech?
Directly advance a substantial government interest and narrowly tailored
Can misleading commercial speech be prohibited?
Yes
Do expression/speech restrictions apply to the government?
Generally, no, not as a speaker.
Government is free to express a point a view, entitled to say what it wants.
True or false: The government cannot refuse to issue license plates that would be offensive to other citizens
False. License plates are government speech
True or false: corporations have the same first amendment rights as individuals?
True.
Ex: Citizens United
Do the press/media have special expression rights?
No. The have the same rights as individuals.
What is the special exceptions for free speech and broadcasters?
Government has exercised authority to assert greater limitations over broadcasters (vs. print media or internet)
Can government employees be hired or fired based on their political beliefs?
No. Gov cannot make an adverse employment decision against employees based on political party/philosophy or act of expression.
BUT gov employees CAN be fired for disrupting the workplace or not doing their jobs.
Can the President terminate policymaking employees (ex: cabinet offices) for their political beliefs/expressions
Yes
Is the use of money to support a political campaign political speech?
Yes. Regulation of that money raises First Amendment issues.
Can political contributions be regulated?
Yes, assuming the limits are not unreasonably low
Can direct expenditures in support of a candidate/campaign/political issue be regulated?
No.
Ex: Purchasing a billboard to support a candidate or anti-abortion ballot measure
Goal: prevent corruption
Independent expenditures ____ be regulated, whereas coordinated expenditures _____
Ind. expenditures = CANNOT be regulated
Coordinated expenditures CAN be regulated, just like contributions
True or false: Direct expenditure regulation applies to individuals and corporations
Yes, including NPOs and unions.
Does SCOTUS support campaign equalization?
No, not a valid way to restrict campaign expenditures.
