Freedom of Speech Flashcards

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1
Q

The First Amendment

A

The First Amendment prohibits Congress from abridging the freedoms of speech and press, or interfering with the right of assembly, or from establishing a religion or interfering with the free
exercise of religion

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2
Q

Speech

A

Speech includes words, symbols, and expressive conduct. Expressive conduct is any kind of conduct that is either inherently expressive, or conduct that is:
* Intended to convey a message, and
* Reasonably likely to be perceived as conveying a message

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3
Q

Incitement

A

Speech can be censored as incitement if it is (1) intended to produce imminent lawless action and (2) likely to produce such action

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4
Q

Fighting Words

A

Speech can be censored if it constitutes fighting words (personally abusive words that are likely to incite immediate physical retaliation in an average person). Words that are merely annoying won’t do.

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5
Q

True Threats

A

The First Amendment also does not protect true threats, which are words that are intended to convey to someone a serious threat of bodily harm.

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6
Q

Obscenity

A

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

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7
Q

Obscenity Standard May Be Different for Minors

A

The state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience.

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8
Q
A

Defamatory Speech
Defamatory statements can be subject to tort liability. 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

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9
Q

Public Official or Figure Suing

A

If the plaintiff is a public official or figure, then regardless of whether the defamation is on a matter of public or private concern, the degree of fault the plaintiff must show is actual malice

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10
Q

Actual Malice

A

To show actual malice, the plaintiff must prove by clear and convincing evidence that the alleged defamatory statement was made with:
* Knowledge that it was false or
* Reckless disregard as to its truth or falsity

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11
Q

Who Are Public Officials?

A

Public officials include people (1) holding or running for elective office (at any level), and (2) public employees in positions of public importance

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12
Q

Who Are Public Figures?

A

Public figures are people who have (1) assumed roles of prominence in society, (2) achieved pervasive fame and notoriety, or (3) thrust themselves into particular

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13
Q

Matters of Public Concern

A

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.

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14
Q

Private Figure Suing on Matter of Public Concern

A

If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the plaintiff can only recover actual damages if the plaintiff only shows negligence. To recover
punitive damage

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15
Q

Private Figure Suing on Matter of Private Concern

A

If the plaintiff is a private figure suing on a matter of private
concern, then the First Amendment is not involved. These plaintiffs
can recover for any damages that state law allows,

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16
Q

Intentional Infliction of Emotional Distress

A

The Supreme Court has 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 plaintiff is a public figure or official

17
Q

Some Commercial Speech

A

Commercial speech (that is, advertisements, promotions of products and services, brand marketing) is not protected if it is (1) false, (2)misleading, or (3) about illegal products or services. Any other regulation of commercial speech will be upheld only if it:
* Serves a substantial government interest,
* Directly advances that interest, and
* Is narrowly tailored to serve that interest

18
Q

GENERAL SPEECH RESTRICTIONS

A

Speech and assembly regulations can generally be categorized as either content-based or content-neutral.

19
Q

Content-based regulations

A

Content-based regulations are subject to strict scrutiny, and they are presumptively unconstitutional (unless they fall within one of the categories of unprotected speech, like obscenity). A regulation is
content-based if it restricts speech based on the subject matter or viewpoint of the speech.

20
Q

Content-Neutral Regulations

A

Content-neutral restrictions on speech (that is, restrictions that are both subject matter-neutral and viewpoint-neutral) generally are subject to intermediate scrutiny; that is, they must advance
important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary

21
Q

SPEECH RESTRICTIONS ON GOVERNMENT PROPERTY

A

The extent to which the government may regulate speech or expressive conduct on government property depends on whether the property involved is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.

22
Q

Traditional Public Forums and Designated Public
Forums

A

Public property (that is, government-owned property) that has historically been open to speech-related activities (for example, streets, sidewalks, and public parks) is called a public. If the regulation on a traditional public forum or designated public
forum is content-based, it will be subject to strict scrutiny. if it’s content-neutral (again, both subject matter-neutral and viewpoint-neutral, usually going to the time, place, or manner of speech), it only needs to meet intermediate scrutiny

23
Q

Limited Public Forums

A

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.

24
Q

Nonpublic Forums

A

Nonpublic forums are government property not historically open generally for speech and assembly and not held open for specific speech activities, such
as military bases or government workplaces.

25
Q

regulate speech in non public forums

A

The government can regulate speech in such forums to reserve the forum for its intended use. In such locations, regulations are valid if they are viewpoint neutral and reasonably related to a legitimate government purpose

26
Q

SPEECH RESTRICTIONS IN PUBLIC SCHOOLS

A

Generally, public primary and secondary schools (that is, elementary, middle, and high schools) and school-sponsored activities in those schools are not public forums. Therefore, speech (and association) can be reasonably regulated in them to serve the school’s educational mission

27
Q

Personal Student Speech On Campus

A

A student’s own personal speech (that is, their expression of themselves as individuals) on campus cannot be censored absent evidence of substantial disruption.

28
Q

Personal Student Speech Off Campus

A

When the student’s personal speech occurs off campus, it will be harder to censor. Schools will be limited to restricting speech to prevent cheating, bullying, threats, and other speech where pedagogical or safety interests clearly outweigh the speech interests of students as private citizens.

29
Q

School Speech

A

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

30
Q

Unprotected Goverbnment Employee Speech

A

If a government employee’s speech while at work involves a matter of private concern, the employer can punish the employee if the speech was disruptive of the work environment. A government employer may also punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties, even if the speech touches on a matter of public concern

31
Q

Protected Government Employee Speech

A

If the speech is on a matter of public concern but is not made pursuant to the employee’s official duties, the courts will use a balancing test. The courts must balance the value of the speech against the government’s interest in the efficient operation of the
workplace

32
Q

Void for Vagueness Doctrine

A

If a criminal law or regulation fails to give persons reasonable notice of what is prohibited (for example, a ban on “opprobrious and offensive” words), it may violate the Due Process Clause

33
Q

Prior Restraints

A

Prior restraints are court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards (for example, licensing systems, injunctions).

34
Q

A system for prior restraint

A

To be valid, a system for prior restraint must provide the following safeguards:
* The standards must be narrowly drawn, reasonable, and definite,
* The injunction must promptly be sought (if the restraining body wishes to restrain the dissemination of certain speech), and
* There must be prompt and final judicial determination of the validity of the restraint

35
Q

Cannot Give Officials Unfettered Discretion

A

As indicated above, a regulation cannot give officials broad discretion over speech issues; there must be defined standards for applying the law. Therefore, if a statute gives licensing officials unbridled discretion, it is void on its face

36
Q

FREEDOM OF THE PRESS

A

Generally, the press (along with corporations, unions, and expressive associations, like a lobbying group) has no greater First Amendment freedom than does a private citizen. They are treated just like any individual speaker.