Freedom of Speech Flashcards
1
Q
2 categories of laws restricting speech
FRAMEWORK // METHODOLOGY
A
- content-based = strict scrutiny
2. content-neutral = intermediate scrutiny
2
Q
content-based
FRAMEWORK // METHODOLOGY
A
= applies to some speech differently
3
Q
subject matter restriction
FRAMEWORK // METHODOLOGY
A
application of law depends on TOPIC of speech
4
Q
viewpoint restriction
FRAMEWORK // METHODOLOGY
A
application of law depends on IDEOLOGY of the message
5
Q
content-neutral
FRAMEWORK // METHODOLOGY
A
= applies to all speech the same
6
Q
prior restraint
PRIOR RESTRAINTS // METHODOLOGY
A
= order from administrative system that stops speech before it occurs
7
Q
prior restraint presumption
PRIOR RESTRAINTS // METHODOLOGY
A
strong presumption AGAINST prior restraints
8
Q
2 content-based types
FRAMEWORK // METHODOLOGY
A
- subject matter restriction
2. viewpoint restriction
9
Q
3 prior restraints
PRIOR RESTRAINTS // METHODOLOGY
A
- injunction
- licensing or permit systems
- gov physically seizes means of speech (like printing press)
10
Q
constitutional amendment
FREEDOM OF SPEECH
A
1st Amendment
11
Q
court order preventing speech - scrutiny
PRIOR RESTRAINTS // METHODOLOGY
A
strict scrutiny
12
Q
licensing or permit systems - rule
PRIOR RESTRAINTS // METHODOLOGY
A
gov can require licensing/permit ONLY IF
- it has a good reason for licensing AND
- there are clear criteria that leaves almost no discretion to the licensing authority AND
- there are procedural safeguards (such as prompt termination of license requests and judicial review of license denials)
13
Q
licensing or permit systems - procedural safeguard examples
PRIOR RESTRAINTS // METHODOLOGY
A
- prompt termination of license requests
- judicial review of license denials
14
Q
vagueness
VAGUENESS & OVERBREADTH // METHODOLOGY
A
= if a reasonable person cannot tell what speech is prohibited and what is allowed
15
Q
overbreadth
VAGUENESS & OVERBREADTH // METHODOLOGY
A
= regulates substantially more speech than constitution allows to be regulated
16
Q
fighting words laws
VAGUENESS & OVERBREADTH // METHODOLOGY
A
- fighting words laws are ALWAYS unconstitutionally vague and overbroad
- BUT fighting words are not technically constitutionally protected
(SC has never upheld fighting words regulation since 1972, but also never overruled precedent)
17
Q
fighting words
VAGUENESS & OVERBREADTH // METHODOLOGY
A
4 elements
- provocative personal insult
- direct tendency to cause IMMEDIATE violence
- face-to-face utterance
- directed at the individual
18
Q
symbolic speech
SYMBOLIC SPEECH // METHODOLOGY
A
= conduct that communicates a message
19
Q
o’brien test
SYMBOLIC SPEECH // METHODOLOGY
A
government can regulate symbolic speech IF
- regulation is within the constitutional power of gov
- it furthers an important gov interest
- the gov interest is unrelated to suppression of speech
- the incidental burden on speech is no greater than necessary
20
Q
example - flag-burning v. draft card-burning
SYMBOLIC SPEECH // METHODOLOGY
A
flag-burning = constitutionally-protected speech
v.
draft card-burning = NOT protected speech
21
Q
example - nude dancing
SYMBOLIC SPEECH // METHODOLOGY
A
nude dancing = NOT protected speech
22
Q
example - burning a cross
SYMBOLIC SPEECH // METHODOLOGY
A
cross-burning = constitutionally-protected speech UNLESS done with intent to threaten
23
Q
political contributions
SYMBOLIC SPEECH // METHODOLOGY
A
- gov MAY limit the amount a person may give to a particular candidate
- gov MAY NOT limit the amount a person or group may spend on an election or referendum
- gov MAY NOT limit the amount a persons spends on his or her own campaign
- gov MAY NOT limit a corporation’s right to engage in unlimited expenditures
24
Q
anonymous speech
SYMBOLIC SPEECH // METHODOLOGY
A
PROTECTED
= right to speech without identifying yourself
25
government speech
| SYMBOLIC SPEECH // METHODOLOGY
free speech clause of 1st amendment CANNOT be used to challenge GOVERNMENT speech
26
general rule
| INCITEMENT OF ILLEGAL ACTIVITY // UNPROTECTED OR LESS-PROTECTED
UNPROTECTED
27
modern test
| INCITEMENT OF ILLEGAL ACTIVITY // UNPROTECTED OR LESS-PROTECTED
government can punish speech if
1. substantial likelihood of imminent illegal activity AND
2. if speech is directed at causing imminent, illegal activity
28
6 types
| UNPROTECTED OR LESS-PROTECTED
1. incitement of illegal activity
2. obscenity
3. child porn
4. commercial speech
5. defamation
6. private information
29
miller test
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
government can punish speech if
1. the average person applying contemporary community standard would find the material, taken as a whole, appeals to prurient interest AND
2. material must be patently offensive under the law prohibiting obscenity AND
3. taken as a whole, material must lack serious redeeming social value
30
miller test - prurient definition
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
= shameful or morbid interest in sex
31
miller test - prurient standard
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
determined by LOCAL/COMMUNITY standard
32
miller test - social value definition
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
serious artistic, literary, political, or scientific value
33
miller test - social value standard
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
determined by NATIONAL standard, not local regard
34
zoning of adult stores
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
rule = erogenous zoning is permissible
| AKA local government may use zoning ordinances to regulate the location of adult movie/book stores
35
specific rules
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
1. zoning of adult stores
2. child porn
3. private possession
4. business asset seizure
36
child porn
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
gov may prohibit child porn (child MUST be included in production)
EVEN IF it is not obscene
37
private possession
| CHILD PORN // UNPROTECTED OR LESS-PROTECTED
gov cannot punish private possession of obscene materials EXCEPT child porn
38
business asset seizure
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
gov may seize assets of businesses convicted of obscenity law violations
39
profane and indecent language - rule
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
generally protected by 1st amendment
40
profane and indecent language - exceptions
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
1. over broadcast media
2. in schools
3. commercial speech
41
profane and indecent language over broadcast media
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
can prohibit profanity over FREE TV
- NOT cable
- NOT internet
42
profane and indecent language in schools
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
can prohibit student speech
43
profane and indecent
| COMMERCIAL SPEECH // UNPROTECTED OR LESS-PROTECTED
AKA advertising
false and deceptive advertising AND advertising of illegal activities = not protected by 1st amendment
(EVEN true ads that inherently RISK deception = not protected)
44
ads that inherently risk deception
| COMMERCIAL SPEECH // UNPROTECTED OR LESS-PROTECTED
RULE = even true ads that inherently RISK deception = not protected
EXAMPLES
1. states may prohibit professionals from advertising/practicing under trade names
2. states may prohibit attorney in-person solicitation of clients for profit
45
in-person solicitation of clients
| COMMERCIAL SPEECH // UNPROTECTED OR LESS-PROTECTED
states may prohibit attorney in-person solicitation of clients for profit
BUT states may NOT prohibit accountants from engaging in in-person solicitation of clients for profits
AKA accuracy not advocacy
46
scrutiny
| COMMERCIAL SPEECH // UNPROTECTED OR LESS-PROTECTED
- other government regulation of commercial speech is allowed IF intermediate scrutiny is met
- government regulation doesn't have to use least restrictive alternative BUT does have to be narrowly tailored
47
rule
| DEFAMATION // UNPROTECTED OR LESS-PROTECTED
1st amendment limits ability of state to allow recovery for defamation
48
public official
| DEFAMATION // UNPROTECTED OR LESS-PROTECTED
if P is public official OR running for public office
= can recover only by proving by clear and convincing evidence that
1. speaker knew statement was false OR acted in reckless disregard of truth (actual malice) AND
2. that statement WAS false
49
public figure
| DEFAMATION // UNPROTECTED OR LESS-PROTECTED
if P is public figure = same rules apply as for public official
= can recover only by proving by clear and convincing evidence that
1. speaker knew statement was false OR acted in reckless disregard of truth (actual malice) AND
2. that statement WAS false
50
private figure
| DEFAMATION // UNPROTECTED OR LESS-PROTECTED
if P is a private figure AND speech involves a matter of public concern
= must prove
1. falsity of statement AND
2. negligence on the part of the speaker
51
public figure - definition
| DEFAMATION // UNPROTECTED OR LESS-PROTECTED
SC says public figures are those who thrust themselves into limelight, likely to have access to media
52
private figure - definition
| DEFAMATION // UNPROTECTED OR LESS-PROTECTED
SC never defined private figure or matter of public concern
| public figure = probably someone who isn't public?
53
presumed damages
| DEFAMATION // UNPROTECTED OR LESS-PROTECTED
= automatic statutorily-defined damages
54
private figure - damages
| DEFAMATION // UNPROTECTED OR LESS-PROTECTED
if speech involves matter of public concern = punitive/presumed damages IF proof of actual malice
if speech doesn't involve matter of public concern = actual malice not required for presumed/punitive damages
55
recovery for IIED
| DEFAMATION // UNPROTECTED OR LESS-PROTECTED
recovery for tort of IIED
1. must meet requirement for defamation liability AND
2. cannot be for speech otherwise protected by 1st amendment
56
liability for reporting
| PRIVACY // UNPROTECTED OR LESS-PROTECTED
state may not allow liability from
a. truthful reporting of
b. info lawfully obtained
c. from gov records
57
liability for broadcast
| PRIVACY // UNPROTECTED OR LESS-PROTECTED
media cannot be held liable for broadcast of tape illegally-intercepted illegally-recorded call AS LONG AS
1. media didn't participate in illegality AND
2. conversation involves a matter of public concern
58
government self-restriction
| PRIVACY // UNPROTECTED OR LESS-PROTECTED
gov may restrict ITS OWN dissemination of information so as to protect privacy
WITH ONE EXCEPTION = criminal trials
59
overview/context
| UNPROTECTED OR LESS-PROTECTED
unprotected/less-protected examples = exception to general rule that content-based restrictions must meet strict scrutiny
60
kind of SC approach
| PLACES AVAILABLE FOR SPEECH
categorical approach
1. public forums
2. designated public forums
3. limited public forums
4. non-public forums
61
definition
| PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
= government property that government is constitutionally required to make available for speech
62
examples
| PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
- sidewalks
| - parks
63
rule
| PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
government may regulate speech in public forums BUT has to meet certain requirements
1. if regulation is subject-matter and viewpoint neutral,
= intermediate scrutiny AND
a. must be time/place/manner restriction
b. that serves important government interest and
c. leaves open adequate alternate places
2. if regulation is NOT subject-matter and viewpoint neutral
= strict scrutiny
64
least restrictive alternative or narrowly tailored?
| PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
gov regulation of speech in public forums doesn't have to use least restrictive alternative BUT must be narrowly tailored
65
parade/demonstration fees
| PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
fee requirements for parades/demonstrations are NOT permitted IF gov officials have discretion in setting amount of fee
66
definition
| DESIGNATED PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
= gov property that gov could close to speech but voluntarily choose to open to speech
67
rule
| DESIGNATED PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
identical to public forums (may regulate if meets certain requirements)
1. if regulation is subject-matter and viewpoint neutral,
= intermediate scrutiny AND
a. must be time/place/manner restriction
b. that serves important government interest and
c. leaves open adequate alternate places
2. if regulation is NOT subject-matter and viewpoint neutral
= strict scrutiny
68
examples
| DESIGNATED PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
public school on nights and weekends
69
definition
| LIMITED PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
= gov opens place to speech but only some speakers and some topics
70
rule
| LIMITED PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
allowed AS LONG AS viewpoint neutral and reasonable
71
definition
| NON-PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
= gov properties that gov can and does close to speech
72
examples
| NON-PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
- military bases
- areas outside prisons/jails
- sidewalks outside post office
- airports
73
rule
| NON-PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
identical to limited public forums =
| allowed AS LONG AS viewpoint neutral and reasonable
74
airport distribution/solicitation
| NON-PUBLIC FORUMS // PLACES AVAILABLE FOR SPEECH
- gov cannot prohibit distribution of literature in airports
| - gov can prohibit solicitation of $ in airports
75
use of privately-owned shopping centers
| PRIVATE FORUMS // PLACES AVAILABLE FOR SPEECH
NO FIRST AMENDMENT RIGHT to use privately-owned shopping centers for speech purposes
76
miller test - how to determine patently offensive
| OBSCENITY // UNPROTECTED OR LESS-PROTECTED
material must be patently offensive under the law prohibiting obscenity =
1. any law must delineate what is patently offensive AND
2. material must fit under this definition
77
protection / scrutiny
| FALSE STATEMENTS // UNPROTECTED OR LESS-PROTECTED
non-defamatory falsehoods = protected by strict scrutiny
78
central hudson test
| COMMERCIAL SPEECH // UNPROTECTED OR LESS-PROTECTED
PART 1 = is the commercial speech misleading or related to illegal activity?
yes = unprotected
no = go to part 2
PART 2 = for speech to be restricted
1. gov interest must be SUBSTANTIAL
2. restriction must DIRECTLY advance state's interest
3. the speech is NOT MORE EXTENSIVE THAN NECESSARY to serve the interest that supports it
79
prohibitions on congress
| FIRST AMENDMENT
1st amendment prohibits congress from
1. Making any law abridging the freedom of speech or the press
2. Making any law abridging the freedom of religion (Free Exercise Clause)
3. Establishing a religion (Establishment Clause)
80
sufficient gov interest examples
| PRIOR RESTRAINT
1. National security (harm must be more than theoretical)
2. Persevering fair trial (only if only sure way of preserving fair trial)
3. Contractual agreements
4. Military circumstances
5. Obscenity
81
taxing the press
| MISCELLANOUS RULES
The press
- may be subject to general business regulations and taxes, but
- may not be singled out for special taxes
82
loyalty oaths
| MISCELLANOUS RULES
gov CAN require a person to
a. swear to support the constitutions (state and federal) or
b. swear to oppose unlawful attempts to overthrow the government
to
a. obtain government employment or
b. become a member of the bar
gov CANNOT require a person to
- “support the flag” or
- swear not to “advocate” an overthrow of the government as an abstract idea
83
fairness doctrine
| FREEDOM OF THE PRESS
NO LONGER ENFORCED
= due to the limited number of frequencies available,
- broadcasters have a special privilege and thus a special responsibility
- to give suitable time to matters of public interest AND
- to present a suitable range of programs
= radio and television broadcasting may be more closely regulated than the press
84
fairness doctrine rationale
| FREEDOM OF THE PRESS
= paramount right is the right of viewers and listeners to receive information of public concern, rather than the right of broadcasters to broadcast what they please
85
fairness doctrine application
| FREEDOM OF THE PRESS
SC has upheld FCC orders requiring a radio station to offer free broadcasting time
1. to opponents of political candidates or views endorsed by the station AND
2. to any person who has been personally attacked in the course of a broadcast for a reply to the attack
86
gov funding of speech rule
| FREEDOM OF SPEECH
gov funding may be content-based, as long as it’s viewpoint neutral
87
gov funding of speech exception
| FREEDOM OF SPEECH
if a college gives financial support to student groups, it may not exclude religious groups
88
compelled speech rule
| FREEDOM OF SPEECH
gov can’t make you say, express, or support a message
89
compelled speech exception
| FREEDOM OF SPEECH
gov union/school may require students/members to pay due/fee EVEN IF part of it will be used to fund speech with which student/member disagrees) UNLESS primary purpose is to fund speech
90
right not to speak
| FREEDOM OF SPEECH
First Amendment protects a person’s right NOT TO SPEAK or TO SPEAK ANONYMOUSLY
Examples
- a person may tape over the statement “Live Free or Die” on license plates
- a person may not be forced to salute or pledge to the flag)
91
chief purpose of 1st amendment guarantee of
| FREEDOM OF THE PRESS
dissemination of truthful information
| near v. minnesota
