Freedom of Speech

Question 1

The First Amendment

Answer 1

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

Question 2

Speech

Answer 2

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

Question 3

Incitement

Answer 3

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

Question 4

Fighting Words

Answer 4

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.

Question 5

True Threats

Answer 5

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.

Question 6

Obscenity

Answer 6

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

Question 7

Obscenity Standard May Be Different for Minors

Answer 7

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.

Answer 8

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

Question 9

Public Official or Figure Suing

Answer 9

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

Question 10

Actual Malice

Answer 10

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

Question 11

Who Are Public Officials?

Answer 11

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

Question 12

Who Are Public Figures?

Answer 12

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

Question 13

Matters of Public Concern

Answer 13

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.

Question 14

Private Figure Suing on Matter of Public Concern

Answer 14

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

Question 15

Private Figure Suing on Matter of Private Concern

Answer 15

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,

Question 16

Intentional Infliction of Emotional Distress

Answer 16

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

Question 17

Some Commercial Speech

Answer 17

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

Question 18

GENERAL SPEECH RESTRICTIONS

Answer 18

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

Question 19

Content-based regulations

Answer 19

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.

Question 20

Content-Neutral Regulations

Answer 20

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

Question 21

SPEECH RESTRICTIONS ON GOVERNMENT PROPERTY

Answer 21

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.

Question 22

Traditional Public Forums and Designated Public
Forums

Answer 22

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

Question 23

Limited Public Forums

Answer 23

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.

Question 24

Nonpublic Forums

Answer 24

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.

Question 25

regulate speech in non public forums

Answer 25

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

Question 26

SPEECH RESTRICTIONS IN PUBLIC SCHOOLS

Answer 26

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

Question 27

Personal Student Speech On Campus

Answer 27

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

Question 28

Personal Student Speech Off Campus

Answer 28

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.

Question 29

School Speech

Answer 29

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

Question 30

Unprotected Goverbnment Employee Speech

Answer 30

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

Question 31

Protected Government Employee Speech

Answer 31

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

Question 32

Void for Vagueness Doctrine

Answer 32

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

Question 33

Prior Restraints

Answer 33

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

Question 34

A system for prior restraint

Answer 34

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

Question 35

Cannot Give Officials Unfettered Discretion

Answer 35

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

Question 36

FREEDOM OF THE PRESS

Answer 36

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.