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Con Law II > Freedom of Speech > Flashcards

Freedom of Speech Flashcards

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1
Q

O’Brien Test

A

Intermediate scrutiny

  1. The regulation is within the government’s constitutional power
  2. It furthers a substantial governmental interest
  3. That interest is unrelated to the suppression of free expression
  4. Narrowly tailored (incidental restriction no greater than essential to furtherance of gov interest)
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2
Q

Purpose of free speech

A

Protect free flow of ideas/marketplace of ideas

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3
Q

Definition of Content Regulation

A

A regulation seeking to forbid communication of specific ideas

Strict scrutiny

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4
Q

Strict Scrutiny

A

Compelling government interest

Narrowly tailored

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5
Q

Content Neutral

A

Regulation not based on content of speech

  • subject matter neutral
  • viewpoint neutral
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6
Q

Public Forum

A

Traditional or designated

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7
Q

Public Forum Regulation

A

Time, Place, and Manner Regulation

  1. Content-neutral
  2. Substantial government interest
  3. Narrowly tailored (not least restrictive)
  4. Leaves open ample/adequate alternative channels for communication of the information
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8
Q

Limited or Nonpublic Forum Regulation

A
  1. Viewpoint neutral

2. Reasonably related to legitimate government interest

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9
Q

Unprotected Speech

A

OOFFDA

  1. Advocacy of illegal action/incitement
  2. Fighting words/offensive words
  3. Obscenity
  4. Defamation, IIED, invasion of privacy
  5. False or deceptive commercial speech
  6. Other speech if traditionally unprotected

Otherwise strict scrutiny

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10
Q

Less Protected Speech

A
  1. Near obscene speech

2. Commercial speech

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11
Q

Fighting Words

A

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

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12
Q

False or Deceptive Commercial Speech

A

Fails VA Pharmacy Test:

  1. Cannot be false, deceptive, misleading advertising
  2. Cannot encourage illegal activity
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13
Q

Defamation of Public Official/Public Figure

A

Sullivan Test

  1. P is public official or public figure
  2. Clear and convincing evidence of falsity of statement
  3. Actual malice (K of falsity or R disregard of truth)
  4. Published
  5. People know who the statement is about
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14
Q

Defamation of Private Individual

A

Matter of public concern:
A. Actual malice for presumed, punitive damages
B. Negligence for actual damages

Private Concern: no requirement

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15
Q

Invasion of Privacy (Disclosure of Private Facts)

A

Published lawfully obtained, truthful info protected

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16
Q

Advocacy of Illegal Action

A

Brandenberg Test

  1. Substantial likelihood of imminent illegal activity
  2. Speech directed at causing illegal imminent activity
17
Q

Obscenity (Definition)

A

Miller Test

  1. Taken as a whole, the work appeals to prurient interests (community, local standard)
  2. Material is patently offensive (must delineate in applicable law)
  3. Taken as a whole, the work lacks literary, artistic, political, or scientific value (national standard)
18
Q

Regulation of Obscenity

A
  1. Prohibit sale, distribution, exhibition
  2. Regulate materials that appeal to minors as long as adult access is not blocked
  3. Seize assets of businesses convicted in obscenity violation
  4. Prohibit child pornography (compelling state interest)
  5. May NOT punish private possession unless child pornography
19
Q

Secondary Effects Doctrine

A

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

20
Q

Commercial Speech

A

VA Pharmacy Test:

  1. Cannot be false, deceptive, misleading advertising
  2. Cannot encourage illegal activities

Central Hudson Test:

  1. Whether asserted government interest is substantial
  2. Whether the regulation directly advances the government interest attached
  3. Narrowly tailored (not more extensive than necessary to serve the interest)
    - reasonable fit, not the least restrictive means
21
Q

Government Speech

A
  1. Rational basis when government is speaking or funding speech

Rationally related to legitimate state interest

  1. Cannot compel someone to give up 1st Amendment rights by threatening to deny a benefit
  2. Government funding of private messages must be viewpoint neutral
22
Q

Speech by Government Employee

A

Pickering Balancing Test

  1. Is EE speaking on matter of public concern?
  2. Is speech overly disruptive to ER?
  3. Is EE acting as private citizen or acting within his or her official duties?
23
Q

Freedom of Association

A

Strict Scrutiny

May only prohibit or punish membership in a group if:

  1. Active affiliation with group
  2. Knowledge of the group’s illegal activities
  3. Specific intent to further those activities
24
Q

Freedom of Association - Discrimination

A

Does not protect discrimination unless:

  1. Intimate Association
  2. The discrimination is integral to expressive activities of the group

Con Law II (3 decks)

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