Freedom of Speech Flashcards
Describe the protections related to commercial speech.
Commercial speech is protected by the First Amendment. However, false or misleading commercial speech is not protected.
Commercial speech can be regulated if the regulation serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest.
Under the clear and present danger test, speech may be sanctioned whenever it __________.
Speech may be punished or banned under the clear and present danger test whenever it is directed to producing or inciting imminent lawless action and is likely to produce such action.
Among the categories of speech that are not protected by the 1st Amendment is “fighting words.”
Which of the following statements is not true when it comes to regulation of fighting words?
A Fighting words-words or epithets that, when addressed to an ordinary citizen, are inherently likely to incite immediate physical retaliation-may be punished.
B Fighting words statutes are often struck down for overbreadth.
C True threats-statements meant to communicate an intent to place an individual or group in fear of bodily harm-may be punished.
D Hate crime statutes may limit fighting words sanctions to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation.
It is not true that hate crime statutes may limit fighting words sanctions to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation. Such a limitation means the sanction is based on viewpoint, and the Court will not tolerate such sanctions.
Is a statute forbidding “abusive language” valid?
A statute that prohibits “abusive language” is overbroad and thus not an enforceable fighting words statute. Lots of language that is “abusive” is protected speech.
After a state supreme court overturned the conviction in a murder case for failure to give proper Miranda warnings, a reporter asked the murder victim’s father to comment as he exited the supreme court building. The father made the following statement: “Each one of the so-called supreme court justices is worse than a murderer, because they make it possible for more sons and daughters to be murdered. I’d like to see every one of them strung up, like they should have done to the creep who was set free, and if someone will give me a rope I’ll go in there and do it myself.”
A state statute proscribes, with criminal penalties, “the making of any threat to the life or safety of a public official for any act the official performed as part of the official’s duties in office.”
What is the likely result?
The statute is not unconstitutional. True threats are not protected by the 1st Amendment. Content-based restrictions on speech are permitted in cases where the speech creates a clear and present danger of imminent lawless action.
A state can forbid advocating the use of force or of law violation if such advocacy (i) is directed to producing or inciting imminent lawless action, and (ii) is likely to produce or incite such action. Thus, a statute proscribing threats to the life or safety of a public official is valid.
However, it cannot constitutionally be applied to the victim’s father. It is doubtful that the father’s words will be interpreted as a true threat of immediate harm. In context, the speech seems to be more a political commentary, which would be protected. The father appeared to be merely venting his outrage. There was no indication that the father’s words were inciting imminent lawless action or were likely to produce such action. It does not appear that the father was actually threatening the justices with harm or inciting anyone to storm into the court building.
After the failure of a state bill granting gay and lesbian couples the right to marry, 30 students from a local university marched on the state capitol to protest, carrying signs with slogans such as “let gays marry” and “no religious tyranny.” As they marched, about 15 people began following them, shouting anti-gay remarks. At the capitol building, they were met by 50 officers in full riot gear. The leader of the students addressed his followers in the park across the street, vigorously denouncing the legislature’s actions, which caused the counter-protestors to become more vocal. The officer in charge told the leader that he must end his speech because a riot was about to start. The leader refused and was arrested and convicted of disorderly conduct.
If the leader appeals his conviction on constitutional grounds, will the conviction be reversed?
The speaker’s conviction will be reversed. A park is a public forum. The government can limit rights of speech in such a forum only when there is a serious and imminent threat to the public order. It can restrict the speech of a speaker because of an unruly audience only in the rare case when the police are absolutely unable to control the crowd.
Here, the conditions under which the police can prevent a speaker from continuing because of an unruly crowd have not been met. There were 50 police officers who would have been able to restrain or subdue anyone who appeared to be intent on committing violence.
Because of budget shortfalls, a state governor recently signed a bill shortening the period for which state unemployment benefits are available. The defendant gave a speech across the street from the governor’s mansion, denouncing the law. In his speech, the defendant urged the crowd to rush across the street, drag the governor from his mansion, and show him how it feels to be homeless. A police officer who heard the defendant’s speech arrested the defendant and he was charged with violating a state statute that makes it a crime to “make a threat against any state official in the performance of his duty.”
If the defendant defends on constitutional grounds, the court will likely find the statute:
The court will likely find the statute constitutional if limited to true threats. The Constitution does not protect true threats, defined as speech meant to communicate an intent to place a person in fear of bodily harm.
A city council passed a zoning ordinance banning the operation of adult-oriented businesses in any “residential” or “commercial” zone of the city. Such businesses were allowed to operate only in areas zoned “industrial.” The ordinance was passed due to concerns about the “secondary effects” of adult bookstores, such as increases in petty crimes. The owner of a profitable chain of adult bookstores and video rental operations sought a zoning variance to allow the owner to locate a store in a commercial zone of the city. The variance was denied. The owner then filed suit in federal court, claiming the denial of the variance violated his free speech rights.
Is the owner likely to prevail?
The city is likely to prevail because the zoning ordinance is a constitutional restriction on the operation of adult-oriented businesses. SCOTUS has held that businesses selling material that is sexually explicit, although not necessarily obscene, may be regulated through land use ordinances designed to reduce the secondary effects of such businesses. Thus, a zoning ordinance prohibiting the location of adult bookstores and theaters in areas close to residential zones and restricting such theaters to a limited area of the city is permissible if it is designed to promote substantial government interests (e.g., property interests) and does not prohibit all such entertainment in the community. Because the city’s ordinance is a legitimate part of its zoning scheme and does not prevent the businesses from operating in other areas of the town, it will probably be upheld.
What is a public forum?
A public forum is public property that historically has been open to speech-related activity. Examples include sidewalks and public parks.
What is a designated public forum?
A designated public forum is public property that usually is not used for speech-related activity, but that the government has opened for such activity at particular times (e.g., a public school gym that can be reserved by the public for use when not being used by the school).
What is a limited public forum?
A limited public forum is public property that usually is not used for speech-related activity, but that the government has opened up for such activity for a particular purpose (e.g., a school gym that has been opened up to host a political debate).
What is a non-public forum?
A nonpublic forum is public property not open for speech-related activity. A county office building would be an example of a nonpublic forum except to the extent that it is specifically opened to the public for speech-related activities.
What is valid for a time, place, and manner regulation for a limited public forum?
To be valid, a time, place, and manner regulation of a limited public forum must be viewpoint neutral and rationally related to a legitimate government purpose.
If not content neutral, SS.
A state statute makes it a felony for anyone in the corridors or on the grounds of any building in which a court may be in session to make a speech or carry a sign intended to improperly influence judicial proceedings. When the head of a street gang was on trial for murder, a gang member was arrested for carrying a sign on the steps of the courthouse warning that if the gang leader was not freed, “the judge will die.”
May the gang member be convicted of violating the state statute?
The gang member can be convicted because the statute does not violate the 1st Amendment. A courthouse and its grounds are not a public forum. The statute, although based on the subject matter of speech, is viewpoint neutral and reasonably related to the courthouse purpose of promoting a stable, orderly atmosphere in which judicial proceedings can take place, free of improper outside influence or coercion. Thus, the statute is valid and the gang member can be convicted for his actions.
A group of students held a demonstration against the proliferation of weapons in space in one of the city’s parks. The defendant spoke at the demonstration, and to make a point during her speech, she walked over to one of the trash barrels and dumped the contents out. As she did so, she told her listeners, “This is what outer space is starting to look like, cluttered with the trash of nuclear weapons.” The meeting broke up 15 minutes later. The students left the park peacefully, but no one bothered to pick up the trash or right the overturned barrel. The defendant was arrested pursuant to the city’s littering ordinance. She was convicted and fined. The defendant brings an appropriate appeal to have her conviction set aside on constitutional grounds.
Is the defendant likely to succeed?
The anti-littering ordinance will be upheld because it furthers an important government interest unrelated to the content of the communication and is narrowly tailored to the furtherance of that interest. As a general rule, conduct that is intended to communicate is not immune from reasonable government regulation, even though it takes place in a public forum such as a park. The noncommunicative impact of speech-related conduct in a public forum can be regulated to further an important government interest independent of the speech aspects of the conduct as long as the incidental restriction on the ability to communicate that message is narrowly tailored to further the interest in question, so that alternative channels for communicating the message are available. The prevention of litter, as a means of maintaining public facilities in usable condition and protecting property values, is an important enough government interest to allow some type of regulation. The ban on littering is narrowly tailored to accomplish its purpose, unlike, for example, a ban on distributing leaflets that may end up on the ground. The regulation probably would not have precluded the defendant even from dumping the barrel if she had picked up the trash after her speech was over.
