Freedom of Speech Flashcards
What is speech?
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
Types of unprotected speech
incitement
fighting words (includes tru threats)
obscenity
defamation
incitement law
(1) intended to produce imminent lawless action and (2) likely to produce such action
fighting words
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!!!
obscenity
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
defamation general heightened standard
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.
defamation standard when pub official or figure suing
regardless of whether matter of pub or private concern, requires ACTUAL MALICE.
actual malice defintion
made with:
knowledge that it was false OR
reckless disregard to its truth/falsity
shown by clear + convincing
who r public officials
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)
who r public figures
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
what r matters of public concern
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.
private individual on matter of private concern
no 1st Am application
damages for defamation for private figures
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.
IIED
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
what is commercial speech
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
are complete bans on truthful ads likely to be upheld
no. lack of gov interest. can req disclosures tho if not unduly burensome and reasonably related to purpose of preventing deception
Content-based regulations
subject to SS and presumptively unconst. (unless unprotected speech)
content-based if it RESTRICTS SPEECH BASED ON THE SJ OR VIEWPOINT
content neutral
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
2 categories of gov property:
- traditional pub forum, designated pub forum
- limited pub forum, nonpub forum
designated pub forum
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?]
limited public forum
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?]
RULE FOR PUBLIC FORUMS AND DESIGNATED PUBLIC FORUMS
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,
RULE FOR LIMITED PUB FORUM AND NONPUB FORUM
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
student speech
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?
