Freedom of Speech Flashcards
1A protections
protects freedom of expression, including freedom of speech, the press, of assembly, and of association
protected speech
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
content-based restriction
strict scrutiny
occurs where govt seeks to restrict speech b/c of its content
ie, based on subject matter or viewpoint
content-neutral restriction
intermediate scrutiny
occurs where govt restriction applies to all expression regardless of content or viewpoint
unprotected or lesser-protected speech
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
speech on govt property
public forum doctrine
special rules apply depenidng on whether the govt property is a:
- public forum
- limited/designated public forum
- non-public forum
freedom of press
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)
public forums
govt property that govt is constitutionally required to make available for speech
- regulation must be content-neutral
eg. sidewalk, park
public forum test
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
public forum notes
- Permit fees: permit fees that vary depending on the type of speech are content-based and uncostitutional
- Limited public forums open for speech: when held open for speech, restrictions on speech in limited public forums are analyzed as public forum restrictions
not public forums
govt properties that are not public forums may impose greater restrictions on speech
two types:
1. limited/designated public forums
2. non-public forums
limited/designated public forums
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
limited/designated public forum test
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
non-public forum
govt property that can be closed to speech
eg, military bases, airports
non-public forum test
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
prior restraints
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
prior restraints requirements
to be valid, a prior restraint requires:
* significant govt interest
* procedural safeguards
govt interest
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
procedural safeguards
for those whose speech is restrained
* safeguards must ensure restraint is narrow, reasonable, and definite + provides promit, final judicial determination
preliminary injunction
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
permits/licensing
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
vagueness & overbreadth
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
vagueness
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
overbreadth
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
symbolic speech
refers to expressive or communicative conduct
- ie, conduct intended to convey a message
symbolic speech test
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
symbolic speech examples
- burning US flag: protected symbolic speech
- burning a cross: protected UNLESS intended to threaten
- public nudity: NOT protected
