Freedom of Speech

Question 1

What qualifies as speech?

Answer 1

words, symbols, and expressive conduct (intended to convey a message and reasonably perceived as conveying message)

Question 2

What are tests for general restrictions on speech?

Answer 2

Content-based: strict scrutiny

Content-neutral: intermediate scrutiny

Question 3

What are tests for speech on public property?

Answer 3

Public forum: same as general

Limited or nonpublic forum: reasonable given nature of forum (SS if viewpoint based)

Question 4

What are tests for speech on public school?

Answer 4

Student speech: substantial disruption (unless pro drug use)

School speech: reasonably related to a legit pedagogical concern

Question 5

What are tests for speech in public employment?

Answer 5

No protection: private concern at workplace, or public concern pursuant to job

Balancing test: private concern outside workplace, or public concern as citizen

Question 6

What is incitement?

Answer 6

Advocacy of lawless action that is:

(a) intended to produce imminent lawless action, and
(b) likely to produce imminent lawless action

NOT mere advocacy of lawlessness

Question 7

What are fighting words?

Answer 7

Words likely to provoke an immediate violent response.

NOT merely words that annoy

Question 8

What are true threats?

Answer 8

Words intended to convey to another a threat of serious harm

Question 9

What is obscenity?

Answer 9

depiction of sexual conduct that:

(a) appeals to the prurient interest in sex;
(b) is patently offensive by community standards; and
(c) lacks social value by national standards

Mere softcore porn, nudity, and dirty words not enough.

Question 10

Does obscenity apply at home?

Answer 10

No. Right to privacy supersedes it.

Question 11

If something is not technically obscene, can it still be subject to zoning laws?

Answer 11

Yes,

(a) to protect children and unwilling adults from exposure; or
(b) prevent neighborhood crime and decay

Ample alternative channels must be available/

Question 12

What is child ponography?

Answer 12

Depiction of actual children (not actors) engaging in sexual conduct, whether or not obscene.

Question 13

What is actual malice and when is it needed for a defamation claim?

Answer 13

Def: knowledge of falsity or reckless disregard of the truth

When needed: public officials or figures or matters of public concern

Question 14

What is commercial speech?

Answer 14

Ads and promotions of products and services (not just a profit motive like books or newspaper)

Question 15

What types of commercial speech is unprotected?

Answer 15

false, misleading, or illegal product/service

Question 16

What is the test for commercial speech regulation?

Answer 16

intermediate scrutiny

Question 17

What is intermediate scrutiny for speech?

Answer 17

Narrowly tailored to an important govt. interest.

Question 18

What is strict scrutiny for speech?

Answer 18

Narrowly tailored to a compelling govt. interest.

Question 19

What is vagueness?

Answer 19

law is void for vagueness if persons of common intelligence cannot tell whether speech is prohibited.

Question 20

What is overbreadth?

Answer 20

law is invalid as overbroad if it prohibits a substantial amount of speech that the govt. may not suppress.

Question 21

What are prior restraints?

Answer 21

Licensing schemes (e.g. permits) or injunctions that prevent speech before it occurs, rather than punishing it.

Very disfavored

Content-based prior restraints are very strict scrutiny

Licensing schemes must have sufficiently definite standards to cabin discretion, as well as prompt judicial review of denials

Question 22

What 1A rights do press, expressive associations, corporations, and unions get?

Answer 22

the same as other speakers

Question 23

When determining what a person’s religious beliefs are, what may the government look to?

Answer 23

the sincerity of the beliefs, not their truths

Question 24

What are the tests for free exercise claims?

Answer 24

Discriminatory laws (not neutral facially or not generally applicable): strict scrutiny

Neutral laws of general applicability: not subject to free exercise clause (except FEC exempts religious orgs from neutral employment laws in hiring/firing clergy)

Question 25

What is the neutrality test for free exercise clause?

Answer 25

Government must be neutral and not favor or disfavor religion.

Question 26

What is the coercion test for free exercise clause?

Answer 26

Govt. may not directly or indirectly coerce individuals to exercise (or refrain from exercising) religion.

Question 27

What is the lemon test for free exercise clause?

Answer 27

Invalid if:

(a) primary purpose is sectarian
(b) primary effect is sectarian
(c) excessive entanglement between govt. and religion

Question 28

What is the endorsement test for free exercise clause?

Answer 28

From reasonable observer, govt. must not appear to endorse or disapprove of a religion.

Question 29

When does history and tradition play a role in free exercise clause?

Answer 29

Religious display or practice sometimes tolerable if it has played a role in history and tradition of the nation.

Question 30

Does the 1A limit government speech (as opposed to private speech)?

Answer 30

No. 1A only applies to private speech.

E.g. “Austin supports Pride!”

*Exception: if there is some other reason to limit govt speech such as free exercise clause or equal protection, then gov’t speech is limited

Question 31

Can officials have unfettered discretion to determine whether speech is valid?

Answer 31

Generally, no. There must be defined standards.

Question 32

Does freedom of speech also include the freedom not to speak?

Answer 32

Yes, gov’t can’t compel person to salute the flag or take a symbolic act unless there is an important interest in the regulation independent of the speech (e.g. burning draft cards is unconstitutional because it interferes with the process)

*Exception: university activity fees can be used to support group student disagrees with

Question 33

What rights does the press have?

Answer 33

• access to trials (unless there is a significant reason as to why e.g. to protect minor child testifying to abuse)
• required to testify before grand juries
• no right to interview prisoners
• no special tax (only a general business tax applied to non-press entities)

Question 34

What is freedom of association?

Answer 34

Gov’t can’t prohibit unpopular groups or unduly burden a person’s right to join them.

Question 35

What test is used to determine whether a regulation on elections (NOT core political speech) is valid?

Answer 35

Severe: strict scrutiny

Reasonable and non-discriminatory: generally upheld

Question 36

What test is used to determine whether limits on campaign expenditures and/or contributions is valid?

Answer 36

Contribution: intermediate scrutiny. Can limit the amount of spending to a single political candidate, but not to ballot referendum or candidates in the aggregate.

Expenditure: can’t limit the amount that candidate spends on a political campaign.

Question 37

What is the special rule for whether a restraint on speech of public employees is valid?

Answer 37

Gov’t employer may punish employees speech if it is made on the job pursuant to the employee’s official duties (even if it touches on a matter of public concern)

If not pursuant to employee’s official duties, employer must give great deference if it does not touch a matter of public concern and balance the employer and employee’s interests if it does touch a matter of public concern

Question 38

Can the gov’t require its employees to take loyalty oaths?

Answer 38

Yes, as long as it is not overbroad (e.g. communist overthrow of the gov’t as an abstract doctrine) or vague (e.g. requiring employees to “support the flag”)