Freedom of Speech

Question 1

1A protections

Answer 1

protects freedom of expression, including freedom of speech, the press, of assembly, and of association

Question 2

protected speech

Answer 2

where protected speech is at issue, the level of scrutiny depends on whether the speech restriction is content-based:
1. content-based restriction
2. content-neutral restriction

Question 3

content-based restriction

Answer 3

strict scrutiny
occurs where govt seeks to restrict speech b/c of its content

ie, based on subject matter or viewpoint

Question 4

content-neutral restriction

Answer 4

intermediate scrutiny
occurs where govt restriction applies to all expression regardless of content or viewpoint

Question 5

unprotected or lesser-protected speech

Answer 5

some categories of speech receive lesser or no 1A protection

ET: analyze lesser-protected speech restrictions under the appropriate test given the type of speech

eg, obscenity, commercial speech

Question 6

speech on govt property

Answer 6

public forum doctrine
special rules apply depenidng on whether the govt property is a:
- public forum
- limited/designated public forum
- non-public forum

Question 7

freedom of press

Answer 7

press has a right to publish matters of public concern
- any restriction or punishment must be narrowly tailored to further a state interest of the highest order (essentially strict scrutiny)

Question 8

public forums

Answer 8

govt property that govt is constitutionally required to make available for speech
- regulation must be content-neutral

eg. sidewalk, park

Question 9

public forum test

Answer 9

to be upheld, the restrictuion must:
1. be content-neutral
- ie, only regulates time, place, or manner of speech
2. be narrowly tailored to serve an important govt purpose
3. leave open adequate, alternative channels of communication
- does NOT have to bre least-restrictive alternative

ET: if restriction is content-based, apply strict scrutiny

Question 10

public forum notes

Answer 10

1. Permit fees: permit fees that vary depending on the type of speech are content-based and uncostitutional
2. Limited public forums open for speech: when held open for speech, restrictions on speech in limited public forums are analyzed as public forum restrictions

Question 11

not public forums

Answer 11

govt properties that are not public forums may impose greater restrictions on speech

two types:
1. limited/designated public forums
2. non-public forums

Question 12

limited/designated public forums

Answer 12

govt properties that the govt opens for speech, but can close at any time

eg, public school facilities for girl scout meetings, advertisements in govt spaces

Question 13

limited/designated public forum test

Answer 13

Open for speech: same rules apply as for public forums, but only apply when govt property is open for speech
- eg, must be content-neutral and strict scrutiny applies

Closed for speech: when closed for speech or restricted to certain types of speech, analyze as non-public forums

Question 14

non-public forum

Answer 14

govt property that can be closed to speech

eg, military bases, airports

Question 15

non-public forum test

Answer 15

govt can regulate speech if regulation is:
1. reasonably related to some legitimate purpose, and
2. viewpoint neutral

Content-neutrality NOT required: govt can allow speech on some subjects but not others, yet if it opens speech to a subject, it cannot limited speech to only one viewpoint

Question 16

prior restraints

Answer 16

involve a court order or other ban on speech or publication before it occures
* Strict scrutiny applies: prior restraints are difficult to uphold

often arises as court order/injunction preventing speech

Question 17

prior restraints requirements

Answer 17

to be valid, a prior restraint requires:
* significant govt interest
* procedural safeguards

Question 18

govt interest

Answer 18

there must be at least some significant govt interest justifying the restraint (eg, a special societal harm)
- national security may be sufficient harm/govt interest, but harm must be more than theoretical

Question 19

procedural safeguards

Answer 19

for those whose speech is restrained
* safeguards must ensure restraint is narrow, reasonable, and definite + provides promit, final judicial determination

Question 20

preliminary injunction

Answer 20

to prevent pretrial discussion in order to preserve a fair trial
- ONLY valid if it’s the ONLY way of preserving a fair trial

NOTE: P must comply w/ an injunction until it’s vacated or overturned
- P cannot challenge a violated injunction

Question 21

permits/licensing

Answer 21

govt may require licenses or permits for speech only if it has a reasonable justification for doing so
- requirements for permit/license must be similar to a “rubber stamp” process and must provide reveiw for denied permits/licenses
- P can challenge a denial on constitutional grounds, even if violated

Question 22

vagueness & overbreadth

Answer 22

laws can be struck down due to grounds of vagueness or overbreadth

NOTE: “fighting words” statutes are almost always unconstitutionally vauge and overbroad and will NOT be upheld

Question 23

vagueness

Answer 23

a law is vague if a reasonable person cannot tell whether speech is prohibited or permitted
- reasonable person has to guess as to what behavior is punishable

eg, laws prohibiting people from assembling and conducting themselves “in a manner annoying to passerby” is unconstitutionally vague b/c a reasonable person must guess as to what behavior is punishable

Question 24

overbreadth

Answer 24

a law is overbroad if it regulates substantially more speech than the Const. allows to be regulated
- an overbroad law restricts unprotected speech, but in doing so also restricts protected speech

Effect: if a speech restriction is overbroad, it cannot be enforced against anyone, even one whose speech is not protected

eg, law prohibiting all “live entertainment” may validly restrict obscenity, but also invalidly prohibits protected speech in concerts or theaters

Question 25

symbolic speech

Answer 25

refers to expressive or communicative conduct
- ie, conduct intended to convey a message

Question 26

symbolic speech test

Answer 26

govt can regulate symbolic speech if:
1. the regulation furthers an important govt interest,
2. that govt interest is unrelated to suppression of message, and
- if the restriction is aimed at speech more than conduct, it is likely unconstitutional
3. the impact on speech is no greater than necessary to further the important govt interest

Question 27

symbolic speech examples

Answer 27

• burning US flag: protected symbolic speech
• burning a cross: protected UNLESS intended to threaten
• public nudity: NOT protected