Freedom of Speech

Question 1

Content Based Restrictions

Answer 1

Strict Scrutiny
 Subject matter restriction (topic of the message)
 Viewpoint restrictions (ideology of the message)

Question 2

Content Neutral Restrictions

Answer 2

Intermediate Scrutiny:
Important government interests + must not burden substantially more speech than necessary

Question 3

Regulations that are vague or overbroad

Answer 3

Regulations are invalid if they are vague or overbroad

o Vague if a reasonable person cannot tell what speech is prohibited
o Overbroad if it regulates substantially more speech than the constitution allows to be regulated

Question 4

Regulation of Symbolic Speech

Answer 4

Gov can regulate expressive conduct if:
o It serves an important government interest independent of the speech aspects of the conduct
* E.g., flag burning cannot be banned, but burning draft cards can be banned because the government needs them for the draft (a valid, independent reason)

The means are not greater than necessary to achieve that purpose

Question 5

The Right Not to Speak

Answer 5

People cannot be compelled to speak

Anonymous speech is protected

Question 6

Regulation of Government Speech

Answer 6

CANNOT violate the free speech clause of 1A (which applies to gov regulation of PRIVATE speech)

Generally, government speech and government funding of speech will be upheld if it is rationally related to a legitimate state interest

Question 7

Regulation Preventing Speech Before it Occurs

Answer 7

Strict Scrutiny Applies

Gov must show that some special societal harm would result without the restraint

Question 8

Unprotected/Less Protected Speech

Answer 8

Speech that has a substantial likelihood of imminent illegal activity or speech that is directed at causing imminent illegality
Example: Fighting words (e.g., cross burning done with intent to intimidate)

Speech that is Obscene. Obscene if it describes or depicts sexual conduct that:
* Appeals to the prurient interest in sex (community standard)
* Is patently offensive (community standard)
* Lacks serious expressive value (national reasonable person standard)

Question 9

Regulating Adult Entertainment Establishments

Answer 9

Can limit size or locations of adult entertainment establishments to reduce the secondary effects of those businesses (e.g., increased crime rates or lower property values)

BUT cannot ban them altogether.

 Gov can ban visual depictions of child porn, but not if it does not involve children (e.g., small adults pretending to be children is not obscene)

Question 10

Regulation of Commercial Speech

Answer 10

Gets 1A protection if it is TRUTHFUL

Gov can prohibit speech that:
* Proposes unlawful activity
* Is inherently misleading or fraudulent
* Inherently RISKS deception

Other commercial speech can be regulated if intermediate scrutiny is met:
* Substantial government interest
* Directly advances that interest
* Narrowly tailored to serve that interest

Question 11

Public Forums

Answer 11

Places that have historically been open to speech related activities (streets, sidewalks, public parks)

Strict scrutiny applies
* Must be content neutral
* Must be a TPM restriction that serves important gov purpose
* Must leave open alternative channels of communication
* Narrowly tailored to serve that important interest (but does not need to be the least restrictive means of achieving it)

Question 12

Designated Public Forums

Answer 12

Public property not historically used for speech-related activities, but has been opened to such activities by the government

Same test as for public forum:
Strict scrutiny applies
* Must be content neutral
* Must be a TPM restriction that serves important gov purpose
* Must leave open alternative channels of communication
* Narrowly tailored to serve that important interest (but does not need to be the least restrictive means of achieving it)

Question 13

Limited Public Forum

Answer 13

Public property not historically used for speech-related activities BUT is opened for specific speech activity (like designated public forum with a specific topic of speech in mind, like a debate)

Gov can regulate speech here if:
* Viewpoint neutral (NOT subject matter)
* Reasonably related to a legitimate government interest

Question 14

Non-Public Forums

Answer 14

Public property not historically used for speech-related activities and not held open for such activities (military bases, government workplaces)

Regulations need to be reasonable and viewpoint neutral

Question 15

Defamation of a Public Official/ Person running for office

Answer 15

They can recover for defamation by proving:
- Falsity of the statement
- Actual malice

Question 16

Defamation of a Public Figure

Answer 16

Plaintiff can recover for defamation by proving:
- Falsity of the statement
- Actual malice

Question 17

Defamation of a Private Figure

Answer 17

If the matter is of public concern, may allow the plaintiff to recover for defamation by proving:
- Falsity and
- Negligence by the defendant.
The plaintiff may recover presumed or punitive damages ONLY by showing actual malice

If the matter is NOT of public concern, the plaintiff can recover presumed or punitive damages without showing actual malice

Question 18

Liability for IIED for defamatory speech

Answer 18

Must meet the defamation standards and cannot exist for speech otherwise protected by the First Amendment

Question 19

When Can the Government Limit Reporting

Answer 19

The truthful reporting of information that was lawfully obtained from the government is allowed

Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance

Gove MAY limit its own dissemination of information to protect privacy

Question 20

Speech by Government Employees

Answer 20

Speech by government employees on the job in the performance of their duties is not protected by the First Amendment.