Freedom of Speech (1st Amendment)

Question 1

Freedom of Speech in the 1st Amendment

Answer 1

protects the right to freedom of speech and expressive activities that constitute speech.

− Applicable to govt. by incorporation through the 14th Amendment.

Question 2

The right to anonymous speech and the right not to speak is protected under the 1st Amendment.

True or False?

Answer 2

True AND conduct that has no communicative value is NOT protected.

Question 3

Content-Based Restrictions

Answer 3

Govt. regulations regarding the content of speech (subject matter or viewpoint) are subject to strict scrutiny.

− Strict Scrutiny→Govt. must show:
the regulation is narrowly tailored, to achieve a compelling govt. interest AND the least restrictive means were used.

Question 4

Content-Neutral Restrictions

Answer 4

Govt. MAY regulate the time, place, and manner of content-neutral speech if it satisfies intermediate scrutiny.

− Intermediate Scrutiny → Govt. must show that the regulation is narrowly tailored, to achieve a significant government interest, AND it leaves open alternative channels of communication.

Question 5

Public Forums for Speech

Answer 5

Place traditionally available to the public for speech (i.e. parks, streets, public sidewalks).

− Content-Based Restriction → Must satisfy Strict Scrutiny.
− Content Neutral Restriction → Govt. MAY regulate time, place, and manner if it satisfies Intermediate Scrutiny.

Question 6

Designated Forum

Answer 6

A place not traditionally made available to the public for speech, but the govt. chose to make it available (i.e. school makes a classroom open for club meetings).

− Treated the same as a Public Forum.

Question 7

Limited Forum

Answer 7

Non-public forums that were specifically designated by the government as open to certain groups or topics (i.e. municipal meeting rooms).

− Treated the same as a Non-Public Forum.

Question 8

Non-Public Forum

Answer 8

Public places are traditionally limited for speech (i.e. military bases, schools, jails, airports).

− Government may regulate speech if:
(1) reasonable, AND (2) viewpoint neutral.

Question 9

Private Property

Answer 9

No right to access another’s private property for speech.

Question 10

Fighting Words

Answer 10

Not protected and are words which by their very utterance:
a) Inflict injury; OR
b) Tend to incite an immediate breach of the
peace.

Question 11

Incitement of Imminent Lawless Action

Answer 11

Not protected and may be outlawed if the speech:
1) Advocates the use of force or illegality;
2) Directed to inciting/producing imminent lawless action (intent); AND
3) Likely to incite/produce such action (there is a
a clear and present danger that a listener will act).

Question 12

Obscenity

Answer 12

Not protected and material is obscene when it:

(1) Appeals to prurient interest (sexual interest) of an avg. person under today’s community standards;
(2) Is patently offensive; AND
(3) Lacks any serious artistic, literary, or scientific value.

Mere private possession of obscene material by an adult inside the home CANNOT be made criminal, unless its child pornography.

Question 13

Commercial Speech

Answer 13

Given fewer protection
Govt. MAY regulate truthful, non-misleading commercial speech if the regulation:
(1) Directly advances,
(2) A substantial governmental interest, AND
(3) Is no more extensive than necessary
(reasonably tailored) to serve that interest.

False/Misleading Commercial Speech → Not protected

Question 14

Public School Students Rights To Freedom of Speech

Answer 14

Students DO NOT lose their 1st Amendment free speech rights at school, BUT schools are given great latitude to regulate speech.

− A school MAY regulate speech if it shows that the conduct regulated would materially and substantially interfere with the operation of the school.

Question 15

Government Employee - speak as a citizen on a matter of public concern:

Answer 15

Govt. entity has to have an adequate justification for treating the employee differently from any other member of the general public (based on the govt. interests as an employer.)

The court must balance the employee’s rights vs. the govt. employer’s interests.

Question 16

Government Employee - did not speak as a citizen on a matter of public concern:

Answer 16

speech is not protected.

Question 17

If a govt. an employee speaks pursuant to their official duties:

Answer 17

speech is NOT protected.

Question 18

Expressive Conduct / Symbolic Speech

Answer 18

the expression of ideas through non-verbal actions. Treated the same as verbal speech.

Question 19

Prior Restraint

Answer 19

occurs when the govt. attempts to prohibit speech before it happens through court orders or licensing requirements.

− Generally disfavored and unconstitutional, except in very limited circumstances (i.e. where national security is at stake).
− Court orders preventing speech must satisfy Strict Scrutiny.

Question 20

Procedural Safeguards for Licensing – Are permitted if:

Answer 20

(1) Govt. has an important reason;
(2) Specific, articulated standards to remove discretion; AND
(3) Procedural safeguards are in place, including a prompt final judicial decision when a license is denied.

Question 21

Vague & Overbroad Laws

Answer 21

are unconstitutional.

Unduly Vague = does not put the public on reasonable notice as to what is prohibited.

Overbroad = regulates more speech than is constitutionally permitted.

Question 22

Private Citizen speaking on a matter of public concern:

Answer 22

To be successful, P must also prove that the speaker was negligent.