Freedom of Speech

Question 1

What is speech?

Answer 1

Words, symbols, and EXPRESSIVE CONDUCT.
Expressive conduct is any conduct that is either INHERENTLY EXPRESSIVE, or conduct that is INTENDED TO CONVEY A MESSAGE, AND REASONABLY LIKELY to be perceived as conveying a msg

Question 2

Types of unprotected speech

Answer 2

incitement
fighting words (includes tru threats)
obscenity
defamation

Question 3

incitement law

Answer 3

(1) intended to produce imminent lawless action and (2) likely to produce such action

Question 4

fighting words

Answer 4

personally abusive words that are likely to incite immediate physical retaliation in an average person.

true threats: words that are intended to convey to someone a serious threat of bodily harm.

can’t be viewpoint-based!!!

Question 5

obscenity

Answer 5

Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:
* Appeals to the prurient interest in sex, using a contemporary community standard
* Is patently offensive under contemporary community standards
AND
* Lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard

but private possession cant be punished

no actual VISUAL child porn allowed

minors may be able to enforce stricter standard

Question 6

defamation general heightened standard

Answer 6

If the defamatory statement is about a public official or public figure or involves a matter of public concern, the First Amendment requires the plaintiff to prove all the elements of defamation plus falsity and some degree of fault in order to recover.

Question 7

defamation standard when pub official or figure suing

Answer 7

regardless of whether matter of pub or private concern, requires ACTUAL MALICE.

Question 8

actual malice defintion

Answer 8

made with:
knowledge that it was false OR
reckless disregard to its truth/falsity

shown by clear + convincing

Question 9

who r public officials

Answer 9

those (1) holding or running for elective office at any level, and (2) public employees in positions of public importance (e.g., prosecutor, principal, popo)

Question 10

who r public figures

Answer 10

those who have (1) assumed roles of prominence in society, (2) achieved pervasive fame and notoriety, or (3) thrust themselves into particular public controversies to influence their resolution

Question 11

what r matters of public concern

Answer 11

Matters of public concern are issues important to society or democracy. The courts decide on a case-by-case basis whether the defamatory statement involves a matter of public concern, looking at the content, form, and context of the publication.

Question 12

private individual on matter of private concern

Answer 12

no 1st Am application

Question 13

damages for defamation for private figures

Answer 13

If the plaintiff is a private figure and the defamatory statement public concern, involves a matter of the plaintiff can only recover actual damages if the plaintiff only shows negligence. To recover punitive damages or presumed damages actual they need to show malice.

Question 14

IIED

Answer 14

required proof of actual malice for recovery under the torts of intentional infliction of emotional distress and other torts (for example, invasion of the right to privacy) where the plaintif is a public figure or official, or where the speech is on a matter of public concern

Question 15

what is commercial speech

Answer 15

ads, promos of products and services, brand marketing

not protected if it is (1) false, (2) misleading, or (3) about illegal products or services

other forms will be upheld only if it (1) serves a substantial gov interest; (2) directly advances that interest, and (3) narrowly tailored to serve that interest
doesn’t require least restrictive means!!! just reasonable fit

Question 16

are complete bans on truthful ads likely to be upheld

Answer 16

no. lack of gov interest. can req disclosures tho if not unduly burensome and reasonably related to purpose of preventing deception

Question 17

Content-based regulations

Answer 17

subject to SS and presumptively unconst. (unless unprotected speech)

content-based if it RESTRICTS SPEECH BASED ON THE SJ OR VIEWPOINT

Question 18

content neutral

Answer 18

both SJ and viewpoint neutral
generally subject to IS [important interest UNRELATED TO SUPPRESSION OF SPEECH and DO NOT BURDEN SUBSTANTIALLY MORE SPEECH THAN NECESSARY]

often time place manner restrictions

Question 19

2 categories of gov property:

Answer 19

1. traditional pub forum, designated pub forum
2. limited pub forum, nonpub forum

Question 20

designated pub forum

Answer 20

property which has not historically been open to speech-related activities but which the gov has thrown open for such activities on a permanent or limited basis, by practice or policy (like town hall open for use by social, civil, or rec groups)
[i guess more of a private than gov thing?]

Question 21

limited public forum

Answer 21

Limited public forums are government forums not historically open generally for speech and assembly but opened for specific speech activity, like a school gym
opened to host a debate on a particular community issue, or a public university’s funding of student publications
[heavy focus on gov/public org here?]

Question 22

RULE FOR PUBLIC FORUMS AND DESIGNATED PUBLIC FORUMS

Answer 22

Content-based = SS
Content-neutral = IS [narrowly tailored to serve important gov interest (but need not be least restrictive) AND leave open alternative channels of comm]

can also challenge for overbreadth, vagueness,

Question 23

RULE FOR LIMITED PUB FORUM AND NONPUB FORUM

Answer 23

Can regulate speech in such forums to reserve the forum for its intended use. VALID if:
-viewpoint neutral
-reasonably related to legit gov interest (RB)

if viewpoint-based, SS

generally, schools and school-sponsored activities in those schools r not public fora

Question 24

student speech

Answer 24

on campus:
-cannot be censored absent evidence of substantial disruption
-speech promoting drug use doesnt require prof of substantial disruption

off campus:
harder to censor
balancing?

Question 25

school speech

Answer 25

Restrictions on speech related to the school’s teaching (for example, speech by school faculty and by students as part of curricular or extracurricular activities) must be reasonably related to legitimate pedagogical concerns.

may include students while engaged in school activity [like school newspaper]

Question 26

Government employee speech

Answer 26

no 1st am protection:
-while at work on matter of private concern - if disruptive
-on the job and pursuant to official duties even if on private concern

protected:
-on matter of pub concern but not pursuant to duties, use balancing
-private concern outside workplace - unclear test but generally protected

Question 27

loyalty oaths from gov employes

Answer 27

can require as long as not overbroad or vague
An oath can’t prohibit membership in the Communist Party or require abstention from advocating overthrow of the government as an abstract doctrine.

Question 28

gov employee requirement of disclosure of assocs

Answer 28

can require some if relevant to employment or benefit sought. otherwise no. but even when request, they can exercise 5th am not to speak

Question 29

overbroad regs

Answer 29

facially invalid

Question 30

prior restraint law

Answer 30

content-based = SS
content-neutral = IS

ask whether there is a special societal harm that justifies the restraint

Must have certain safeguards:
-narrowly drawn, reasonable, and definite
-injunction promptly sought
-prompt and final judicial determination of validity

Question 31

media 1st am right to trials

Answer 31

The First Amendment guarantees the public and press a right to attend criminal (and probably civil) trials. But, the right may be outweighed by an overriding interest stated in the trial judge’s findings (for example, to protect children who are victims of sex offenses).

Question 32

gov speech

Answer 32

how to determine whether gov speech:
-history of expression at issue
-public’s likely perception as to who (gov or private) is speaking
-extent to which gov shaped the msg

gov speech not implicated by 1st Am. gov can fund private speech it likes and not fund what it doesnt like. RB.

Question 33

gov spending programs

Answer 33

Spending programs may not impose conditions that limit First Amendment activities of fund recipients outside of the scope of the spending program itself

Question 34

campaign contribution test

Answer 34

IS- it must be closely drawn to match a “sufficiently
important interest.”

Question 35

OVERBREADTH EXCEPTIOn

Answer 35

exception if the court has limited construction of the restriction so as to remove the threat to constitutionally protected speech