Freedom of Speech

Question 1

Speech

Answer 1

Words, symbols, and conduct that is either inherently expressive or that is intended to convey a message and is reasonably likely to be perceived as conveying a message.

Question 2

Unprotected Speech

Answer 2

Incitement: intended to produce imminent lawless action and likely to produce that action

Fighting Words: likely to incite immediate physical retaliation in the average person

True Threats: intended to convey serious threat of bodily harm

Obscenity: appeals to prurient interest in sex (contemporary community standard), patently offensive (contemporary community standard), lacks serious value (national, reasonable person standard)

Question 3

Partially Protected Speech

Answer 3

Defamation
Commercial Speech

Question 4

Defamation

Answer 4

Public Official/Figure:
All elements of defamation + falsity + actual malice (knowledge of falsity or reckless disregard as to truth)

Private Figure + Matter of Public Concern:
All elements of defamation + negligence = actual damages
All elements of defamation + actual malice = punisitve damages

Private Figure + Matter of Private Concern:
No 1A issue

Question 5

Commercial Speech

Answer 5

Ads, promotions, marketing

Not protected if false, misleading or about illegal products or services

Any other regulations that specifically target commercial speech are upheld only if they serve a substantial government interest, directly advance that interest, and are narrowly tailored to serve that interest.

Question 6

Content-Based Restrictions

Answer 6

If a regulation restricts speech based on the subject matter or viewpoint of the speech, it is subject to strict scrutiny.

Question 7

Content-Neutral Restrictions

Answer 7

If a regulation is both subject matter neutral and viewpoint neutral, it must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary.

Question 8

Public/Designated Public Forums

Answer 8

If content-based - strict

If content-neutral: must be narrowly tailored to serve an important government interest and must leave open alternative channels of communication

Question 9

Limited Public/Nonpublic Forums

Answer 9

Regulations must viewpoint neutral and reasonably related to a legitimate government purpose

If viewpoint-based - strict

Question 10

Overbreadth

Answer 10

A regulation of speech/speech conduct will be invalidated as overbroad if it punishes substantially more speech than is necessary. Overbroad regulations are facially invalid, unless a court has limited the construction of the regulation so as to remove the threat to constitutionally protected expression.

Question 11

Vagueness

Answer 11

If a regulation fails to give someone reasonable notice of what is prohibited, it may violate the Due Process Clause. This is applied strictly in 1st amendment context out of concern for chilling constitutionally protected speech.

Question 12

Prior Restraints

Answer 12

Prior restraints are court orders or administrative systems that prevent speech before it occurs. Gov has a heavy burden justifying these (ask if there is some special societal harm that justifies the restraint).

Question 13

Safeguards for Prior Restraints

Answer 13

Systems for prior restraint must be narrowly drawn, reasonable and definite, the injunction must be promptly sought, and there must be prompt and final judicial determination of the validity of the restraint.

Question 14

Unfettered Discretion

Answer 14

If a regulation gives officials broad discretion over speech issues, there must be defined standards for applying the law, otherwise it is void on its face.