Freedom of Speech Flashcards
O’Brien Test
Intermediate scrutiny
- The regulation is within the government’s constitutional power
- It furthers a substantial governmental interest
- That interest is unrelated to the suppression of free expression
- Narrowly tailored (incidental restriction no greater than essential to furtherance of gov interest)
Purpose of free speech
Protect free flow of ideas/marketplace of ideas
Definition of Content Regulation
A regulation seeking to forbid communication of specific ideas
Strict scrutiny
Strict Scrutiny
Compelling government interest
Narrowly tailored
Content Neutral
Regulation not based on content of speech
- subject matter neutral
- viewpoint neutral
Public Forum
Traditional or designated
Public Forum Regulation
Time, Place, and Manner Regulation
- Content-neutral
- Substantial government interest
- Narrowly tailored (not least restrictive)
- Leaves open ample/adequate alternative channels for communication of the information
Limited or Nonpublic Forum Regulation
- Viewpoint neutral
2. Reasonably related to legitimate government interest
Unprotected Speech
OOFFDA
- Advocacy of illegal action/incitement
- Fighting words/offensive words
- Obscenity
- Defamation, IIED, invasion of privacy
- False or deceptive commercial speech
- Other speech if traditionally unprotected
Otherwise strict scrutiny
Less Protected Speech
- Near obscene speech
2. Commercial speech
Fighting Words
Words directed at another likely to provoke a violent response
A. Is the speaker trying to provoke violence?
B. Is violence likely to take place?
If yes = unprotected
False or Deceptive Commercial Speech
Fails VA Pharmacy Test:
- Cannot be false, deceptive, misleading advertising
- Cannot encourage illegal activity
Defamation of Public Official/Public Figure
Sullivan Test
- P is public official or public figure
- Clear and convincing evidence of falsity of statement
- Actual malice (K of falsity or R disregard of truth)
- Published
- People know who the statement is about
Defamation of Private Individual
Matter of public concern:
A. Actual malice for presumed, punitive damages
B. Negligence for actual damages
Private Concern: no requirement
Invasion of Privacy (Disclosure of Private Facts)
Published lawfully obtained, truthful info protected
Advocacy of Illegal Action
Brandenberg Test
- Substantial likelihood of imminent illegal activity
- Speech directed at causing illegal imminent activity
Obscenity (Definition)
Miller Test
- Taken as a whole, the work appeals to prurient interests (community, local standard)
- Material is patently offensive (must delineate in applicable law)
- Taken as a whole, the work lacks literary, artistic, political, or scientific value (national standard)
Regulation of Obscenity
- Prohibit sale, distribution, exhibition
- Regulate materials that appeal to minors as long as adult access is not blocked
- Seize assets of businesses convicted in obscenity violation
- Prohibit child pornography (compelling state interest)
- May NOT punish private possession unless child pornography
Secondary Effects Doctrine
Land use/zoning regulation may limit location or size of adult entertainment establishments IF the regulation is designed to reduce the secondary effects (narrowly drawn)
Intermediate Scrutiny - Time, Place, Manner
Predominant intent is secondary effects, not content
Commercial Speech
VA Pharmacy Test:
- Cannot be false, deceptive, misleading advertising
- Cannot encourage illegal activities
Central Hudson Test:
- Whether asserted government interest is substantial
- Whether the regulation directly advances the government interest attached
- Narrowly tailored (not more extensive than necessary to serve the interest)
- reasonable fit, not the least restrictive means
Government Speech
- Rational basis when government is speaking or funding speech
Rationally related to legitimate state interest
- Cannot compel someone to give up 1st Amendment rights by threatening to deny a benefit
- Government funding of private messages must be viewpoint neutral
Speech by Government Employee
Pickering Balancing Test
- Is EE speaking on matter of public concern?
- Is speech overly disruptive to ER?
- Is EE acting as private citizen or acting within his or her official duties?
Freedom of Association
Strict Scrutiny
May only prohibit or punish membership in a group if:
- Active affiliation with group
- Knowledge of the group’s illegal activities
- Specific intent to further those activities
Freedom of Association - Discrimination
Does not protect discrimination unless:
- Intimate Association
- The discrimination is integral to expressive activities of the group
