Freedom of Speech Flashcards
Articulate the various test, analysis, and case law
What are the recognized categorical exceptions to First Amendment Protections?
Incitement, defamation, and obscenity
The First Amendment does not protect words that are directly connected to harmful action, such as those that maliciously cause a human stampeded. But it does not protect words unless:
- The speaker has the intent to (speech is directed to)
- cause dangerous or criminal behavior (inciting or producing unlawful action)
- the harm is present (at least imminent)
- the harm is clear (likely)
The government may punish advocacy of force or violation of the law only if the speech is
“directed to inciting or producing imminent unlawful action and is likely to incite or achieve such action.” Brandenburg v. Ohio (1969).
In Brandenburg v. Ohio (1969) the court crafted the latest iteration of the test governing First Amendment protections for the “incitement category” of speech what are the elements of this test.
In New York Times v. Sullivan (1964) the court expanded speech protection by narrowing the exclusion for defamation for public figures. What is this rule?
No public offical may recover damages for defamation “relating to his official conduct” without proving that the speaker had “actual malice,” which the court defined as
(1) knowledge that it was false or with
(2) reckless disregard of whether it was false or not
*malice must be proved with “convincing clarity”
In Chaplinsky v. New Hampshire (1942) the court upheld a conviction for calling a police officer a “G-d-damned racketeer” and “fascist” in the categorical exceptions to First Amendment protection “fighting words.” How does the SC define “fighting words”
fighting words are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
varaition on “clear and present danger” in which an opponent of the speaker, rather than a supporter, is moved to commit an assault or other dangerous act.
In R.A.V. v. City of St. Paul
