Freedom of Speech

Question 1

Freedom of Speech Definition

Answer 1

The First Amendment protects an individual’s right to free speech and is applicable to the states through the Fourteenth Amendment.

Govt regulation of speech falls into two categories: Content based, or content neutral, and the rules vary depending on each distinction.

Question 2

Content vs. Conduct (Speech)

Answer 2

A regulation seeking to forbid communication of specific ideas is less likely to be upheld than a regulation of the conduct incidental to speech (i.e. TPM restrictions).

Question 3

Content Based Regulations (Speech)

Answer 3

Content based regulations on speech are presumptively unconstitutional. Regulations of the content of speech are analyzed under strict scrutiny, meaning the govt must show that the regulation is necessary to serve a compelling state interest, and that there are no less restrictive alternatives.

Question 4

Unprotected Speech Categories (Content Speech)

Answer 4

Some speech isn’t entitled to the protection of the 1st Amendment:

1. Fighting Words
2. True Threats
3. Inciting Imminent Lawless Action
4. Defamation
5. Obscenity

Question 5

Fighting Words (Speech)

Answer 5

Words directed at an individual that are likely to provoke an immediate breach of peace. Words that are merely annoying are insufficient.

Question 6

True Threats (Speech)

Answer 6

Threat carried out with the intent to intimidate.

Question 7

Inciting Imminent Lawless Action (Speech)

Answer 7

Speech that creates a clear and present danger of imminent lawless action.

Question 8

Defamation (Speech)

Answer 8

Defamatory speech is not protected. If the defamatory statement is about a public figure or involves a public concern, the 1st Amendment requires the P to prove all of the elements of defamation plus falsity and fault.

Question 9

Obscenity (Speech)

Answer 9

Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:

1. Appeals to the prurient interest in sex, using a community standard (comm. standard);
2. Is patently offensive and an affront to community standards (comm. standard); and
3. Lacks serious literary, artistic, political, or scientific value (LAPS), using a reasonable person standard. (National)

Question 10

Obscenity-Private Possession (Speech)

Answer 10

Private possession of obscene material in the home cannot be punished (except for child porn). But this protection does not extend outside the home.

Question 11

Commercial Speech

Answer 11

Commercial speech (advertising) can be prohibited altogether if it is false or misleading or if it proposes an illegal transaction. Other types of commercial speech can be regulated if the regulations:

1. Serves a substantial govt interest
2. Directly advances that interest, and
3. is narrowly tailored to serve that interest.

Question 12

Complete Bans (Commercial Speech)

Answer 12

Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to lack of tailoring.

Question 13

Required Disclosures (Commercial Speech)

Answer 13

The govt may require commercial advertisers to make disclosures if the disclosures are not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.

Question 14

Content Neutral Regulations

Answer 14

Content-neutral speech (or communicative conduct) regulations are those where the regulation is aimed at something other than the communicative impact of the expression. The standard for these regulations vary depending on where the speech is taking place.

Question 15

Time, Place, Manner Restrictions (TPM)

Answer 15

Time, place, and manner restrictions on speech (or communicative conduct) are analyzed based on the type of forum in which the speech or conduct occurs.

Question 16

Public Forum (Content Neutral Regulations)

Answer 16

Public forums are forums that are generally open to the public and subject to intermediate review:

i. They serve a significant government interest,
ii. Are narrowly tailored to serve that interest, and
iii. Leave open alternative channels of communication.

Question 17

Limited public forums (Content Neutral Regulations)

Answer 17

Limited public forums are forums that are opened for limited use by certain groups or discussion of certain subjects. When they are open they are subject to intermediate review:

i. They serve a significant government interest,
ii. Are narrowly tailored to serve that interest, and
iii. Leave open alternative channels of communication.

Question 18

Designated public forums (Content Neutral Regulations)

Answer 18

Designated public forums (unlimited public forums) are forums that are not traditionally open to the public, but are opened up to the public at large for a specific purpose. When they are open they are subject to intermediate review:

i. They serve a significant government interest,
ii. Are narrowly tailored to serve that interest, and
iii. Leave open alternative channels of communication.

Question 19

Nonpublic forums (Content Neutral Regulations)

Answer 19

Nonpublic forums are forums that are closed to the public. The regulation must be:

i. Content neutral,
ii. Serve a legitimate government interest,
iii. Be a reasonably related interest, and
iv. Leave open alternative channels of communication.

Question 20

Schools (Content Neutral Regulations)

Answer 20

Schools generally are not public forums. But if a public school allows private orgs or members of the public to use school property for meetings, the property is a designated public forum.

Question 21

Conduct-Expressive Activity

Answer 21

Conduct can be regulated when:

1. The regulations furthers an important interest unrelated to the suppression of speech, and
2. The incidental restriction on speech is no greater than necessary to further the govt’s interest.

Question 22

Limitations on free speech regulations-VON

Answer 22

Must always consider on an exam as part of 1st Amendment analysis:

1. Vagueness
2. Overbroad
3. No Unfettered Discretion

Question 23

Vague (Speech)

Answer 23

Vague laws are unconstitutional b/c they don’t put a person of average intelligence on notice of what conduct is prohibited.

Question 24

Overbroad (Speech)

Answer 24

A regulation will not be upheld if it prohibits substantially more speech than is necessary. Overbroad laws are unconstitutional b/c they reach both unprotected speech and speech that is protected.

Question 25

No Unfettered Discretion (Speech)

Answer 25

Unfettered discretion: A regulation, licensing scheme, or permit regulation is unconstitutional if it gives officials broad discretion to the decision-maker by not setting forth narrow and specific grounds for denying a permit, or where the permit mechanism is not closely tailored to the regulation’s objective. Further, the regulation must be a reasonable means of maintaining public order. If a statute gives licensing officials unbridled discretion, it is void on its face, and speakers need not even apply for a permit.

Question 26

Prior Restraints (Speech)

Answer 26

A prior restraint is any governmental action that would prevent a communication from reaching the public. These are rarely allowed and carry a heavy presumption of unconstitutionality. A prior restraint is only allowed where the government can show that some irreparable or serious harm to the public will occur and then there must be narrowly drawn standards and a final determination of the validity of the restraint.

Question 27

Symbolic Conduct

Answer 27

The government may restrict symbolic speech, which is the freedom not to speak or the freedom to communicate an idea by use of a symbol or communicative conduct, if the regulation is:

a. Within the constitutional power of the govt to enact,
b. Furthers an important governmental interest unrelated to the suppression of speech (content-neutral), and
c. Prohibits no more speech than necessary.