Freedom of Expression, Regulation of Media and Government Speech

Question 1

Content based regulations of speech trigger what level of scrutiny?

Answer 1

Strict scrutiny – usually struck down.

Question 2

What is the test for laws regulating expressive conduct (aka symbolic speech)?

Answer 2

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

Question 3

Laws against flag desecration are ___ whereas laws against public nudity are ___ due to the suppression of expression of expression rule

Answer 3

Laws against flag desecration are unconstitutional (disapproving of one type of speech)

Laws against public nudity are constitution (public order)

Question 4

How does one defined a vague law re: expression?

Answer 4

Vague = no clear notice, which violates due process

Question 5

What is an overbroad law re: expression?

Answer 5

overbroad = goes too far in regulating speech, substantially burdening more speech than is necessary to protect a compelling government interest

Question 6

True or false: Vagueness and overbreadth are usually tested together on the Bar

Answer 6

True

Question 7

True or false: injunctions against speech are relatively easy to obtain

Answer 7

False. Almost impossible to get.

Question 8

When we talk about content-related regulation, what do we mean?

Answer 8

Time, place, and manner of expression = public forum

Question 9

Name the two types of public forums. What are they?

Answer 9

1. Traditional = place historically reserved for speech activities
2. Dedicated = place gov has opened for speech activities

Question 10

What are the requirements for regulating time, place, and manner of expression (aka content regulation)?

Answer 10

1. Content neutral regulation – neutral on its face, no executive discretion
2. Allows alternate channels of communication left open
3. NARROWLY serve SIGNIFICANT state interest

Question 11

True or false: content regulation requires a compelling state interest

Answer 11

False. Significant.

Significant = anything that makes sense to a judge

Question 12

Does the government have more power and control over expression in a public or non-public forum

Answer 12

Nonpublic. Any reasonable regulation of speech will be upheld.

AND gov. cannot be disrupted

Question 13

Is viewpoint discrimination allowed in a nonpublic forum

Answer 13

No. Invalid, even with more government control.

Question 14

What are the rules of “S” that define obscenity?

Answer 14

1. Sexy
2. Society sick
3. Standards
4. Serious value

Question 15

How is “sexy” defined in terms of obscenity and expression?

Answer 15

Erotic, appeal to prurient interst.

Question 16

Are gore or violence “sexy” for the purposes of obscenity?

Answer 16

NO

Question 17

How is “society sick” applied to obsenity?

Answer 17

Patently offensive to the average person in socitey. Society = nation as a whole, particular state, major metropolitan area

Question 18

Can an obscenity standard be vague/overly broad.

Answer 18

No.

Ex: taxing films with frontal nudity is vague and overly broad, thus unconstitutional

Question 19

Does a judge or jury determine if there is serious value in material that’s been potentially deemed obscene?

Answer 19

Judge/Court, according to a national standard

Question 20

Can the government ban adult speech because it’s inappropriate for minors?

Answer 20

No, but a lesser standard for determining if material is obscene can be applied to minors

Question 21

Can child pornography be prohibited regardless if it meets and of the “S” standars?

Answer 21

Yes. And possession can be punished, even if enjoyed in the privacy of one’s own home.

Question 22

What is the connection b/t land ordinances and obscene material?

Answer 22

Narrowly drawn ordinances can regulate location of adult theaters BUT cannot ban them completely

Question 23

True or false: Merely establishing that speech constitutes pornography is sufficient to establish obscene speech

Answer 23

False. Courts have recently begun to distinguish legally obscene speech from pornogrpahy.

Question 24

When is speech considered incitement?

Answer 24

Incitement to immediate violence = not protected

Question 25

What are the elements to “fighting words”

Answer 25

1. Provoke immediate breach of peace
2. Aimed and targeted at someone
3. Who may hit back

Question 26

Are most fighting words statutes constitutional?

Answer 26

No, usually vague and overbroad

(ex laws against hate speech)

Question 27

How is defamation defined? Is it constitutional to prohibit?

Answer 27

False statements of fact, damaging to a person’s reputation. Can be prohibited.

Question 28

When can public officials/figures recover from defamation?

Answer 28

Only on proof of knowing or reckless falsity.

Question 29

When can private plaintiffs recover from defamation?

Answer 29

On proof of negligent falsity.

Question 30

Name the five categories of unprotected speech

Answer 30

1.Obscenity
2. Incitement
3. Fighting words
4. Defamation
5. Commercial speech

Question 31

Are regulations of commercial speech generally upheld or struck down?

Answer 31

Struck down, so long as the ad is truthful and informational

Question 32

What is the test for regulation of commercial speech?

Answer 32

Directly advance a substantial government interest and narrowly tailored

Question 33

Can misleading commercial speech be prohibited?

Answer 33

Yes

Question 34

Do expression/speech restrictions apply to the government?

Answer 34

Generally, no, not as a speaker.

Government is free to express a point a view, entitled to say what it wants.

Question 35

True or false: The government cannot refuse to issue license plates that would be offensive to other citizens

Answer 35

False. License plates are government speech

Question 36

True or false: corporations have the same first amendment rights as individuals?

Answer 36

True.
Ex: Citizens United

Question 37

Do the press/media have special expression rights?

Answer 37

No. The have the same rights as individuals.

Question 38

What is the special exceptions for free speech and broadcasters?

Answer 38

Government has exercised authority to assert greater limitations over broadcasters (vs. print media or internet)

Question 39

Can government employees be hired or fired based on their political beliefs?

Answer 39

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.

Question 40

Can the President terminate policymaking employees (ex: cabinet offices) for their political beliefs/expressions

Answer 40

Yes

Question 41

Is the use of money to support a political campaign political speech?

Answer 41

Yes. Regulation of that money raises First Amendment issues.

Question 42

Can political contributions be regulated?

Answer 42

Yes, assuming the limits are not unreasonably low

Question 43

Can direct expenditures in support of a candidate/campaign/political issue be regulated?

Answer 43

No.

Ex: Purchasing a billboard to support a candidate or anti-abortion ballot measure

Goal: prevent corruption

Question 44

Independent expenditures ____ be regulated, whereas coordinated expenditures _____

Answer 44

Ind. expenditures = CANNOT be regulated

Coordinated expenditures CAN be regulated, just like contributions

Question 45

True or false: Direct expenditure regulation applies to individuals and corporations

Answer 45

Yes, including NPOs and unions.

Question 46

Does SCOTUS support campaign equalization?

Answer 46

No, not a valid way to restrict campaign expenditures.