Freedom Of Speech Flashcards
Speech includes:
Words, symbols, and expressive conduct
Definition of inherently expressive speech:
Intended to convey message and reasonably likely to be perceived as such
Unprotected speech includes:
Incitement, fighting words, obscenity, defamatory speech, and some commercial speech
Incitement requires: 2
Intended to produce imminent lawless action, and likely to produce such action
Fighting words are those likely to:
Provoke an immediate violent response
True threats are [protected/unprotected] and must be intended to convey to someone a _____.
Unprotected; serious threat of bodily harm
Obscenity describes or depicts sexual conduct that, taken as a whole by the average person: appeals to the ____ interest in sex, using a ______ standard; is ______ offensive under a ________ standard; AND lacks _____ using a ____, reasonable person standard.
Prurient; contemporary community standard
Patently; contemporary community standard
Serious value; national
If defamation is about a public official, plaintiffs must prove all elements plus ___ and ____.
Falsity; some degree of fault (actual malice— knew it was false or had a reckless disregard as to truth/falsity)
Private figure defamed on a matter of public concern. What must he prove to get each type of damages?
To get actual damages, must prove negligence.
To get punitive/statutory damages, must prove actual malice.
Private figure defamed on a matter of private concern. What must she prove to get damages?
Actual malice not needed, just negligence
Need to prove actual malice for IIED where plaintiff is a public figure/official, or the speech is on a matter of public concern. T/F?
True
Commercial speech is NOT protected if it is: 3
False
Misleading, or
Promotes illegal products or services
Commercial speech is protected unless false/misleading/illegal, and regulating this speech must serve a ____ govt interest, ____ that interest, and be _____ to serve that interest.
Substantial; directly advance; narrowly tailored
Content-based speech regulation is subject to ____ and _______.
Strict scrutiny; presumptively unconstitutional.
Content-based restrictions are those that restrict speech based on: 2
Subject matter
Viewpoint
Content-neutral speech restrictions are subject to intermediate scrutiny, meaning they must advance _____ and must not _______.
Important interests unrelated to the speech suppression
Burden substantially more speech than necessary
(Often time/place/manner restrictions)
Speech restrictions on govt property depends on whether it is a: 4
Public forum
Designated public forum
Limited public forum
Nonpublic forum
Traditional public forums include
Streets, parks, sidewalks
Designated public forums include a
Town hall open for use by social group
Public or designated public forums get this level of scrutiny
Strict scrutiny, BUT intermediate if it’s content-neutral (usually time/place/manner)
Intermediate means it must be narrowly tailored to serve important govt interest AND leave open alternative channels
Limited public forum restrictions can do this: …. As long as ….
Reserve forum for intended use, if viewpoint neutral and reasonably related to legit govt purpose.
If viewpoint-based, SS applies
Student’s personal speech on campus can/not be censored. Exception?
Cannot, EXCEPT if there’s evidence of substantial disruption. (Although promoting illegal drug use can be flat out banned)
Student personal speech off campus can only be censored where _____ clearly outweigh the _____.
Pedagogical or safety interests; speech interests of students as private citizens
Students’ school speech may only be censored if _____.
Reasonably related to pedagogical concerns. (Can be students engaging in academic work, as well)
Employment speech on a private concern may/may not be censored.
May
Employers can/not punish a public employee’s speaking made on the job and in course of duties, even on a personal concern.
Can
What will courts do when a gov employee’s speech is a matter of public concern but not made in employee’s official duties?
Employ a balancing test— value of speech versus gov interest in efficient operation of workplace
(Note, gov employee speech on private concern is unclear but prob protected unless it is detrimental to workplace)
Overbreadth is a regulation that punishes _____.
Substantially more speech than is necessary
Vagueness is a regulation that _____.
Fails to give people a reasonable notice of what is prohibited
Overbroad regulations are considered ____.
Facially invalid
Prior restraints are favored/disfavored. Test?
Disfavored. Is there a special societal harm justifying the restraint?
Prior restraints that are valid must have three safeguards:
Narrowly drawn, reasonable, and definite
Injunction must be promptly sought to restrain dissemination of the speech
Prompt and final judicial determination
Licensing systems may not give:
Officials unfettered discretion over speech issues— need distinct standards
