Freedom of Speech Flashcards
The First Amendment
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
Speech
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
Incitement
Speech can be censored as incitement if it is (1) intended to produce imminent lawless action and (2) likely to produce such action
Fighting Words
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.
True Threats
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.
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
Obscenity Standard May Be Different for Minors
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.
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
Public Official or Figure Suing
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
Actual Malice
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
Who Are Public Officials?
Public officials include people (1) holding or running for elective office (at any level), and (2) public employees in positions of public importance
Who Are Public Figures?
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
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 Figure Suing on Matter of Public Concern
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
Private Figure Suing on Matter of Private Concern
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,