Freedom of Speech Flashcards
Which of the following is considered protected speech under the First Amendment?
Speech creating clear and present danger
Fighting Words
Commercial Speech
Obscenity
Commercial speech is protected by the First Amendment. However, false or misleading commercial speech is not protected by the First Amendment. Moreover, 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.
Fighting words, speech creating a clear and present danger of imminent lawless action, and obscenity all are forms of unprotected speech, such that content-based restrictions are allowed.
The Supreme Court has ruled that a few categories of speech are not protected by the First Amendment. Among these categories is speech presenting a clear and present danger of imminent lawless action. In determining whether speech falls within this category, the Supreme Court applies the clear and present danger test.
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.
“Advocates the use of force against the government, whether presently or in the future” is incorrect because while such action would be lawless, this choice lacks the imminence requirement. That call to lawlessness has to be “now” and it must be under circumstances likely to produce the action in order to be unprotected speech. The choice “advocates lawless action, whether presently or in the future,” is wrong for the same reason.
The choice “is patently offensive in affronting contemporary community standards” is part of the test to determine whether something is obscene and is not part of the clear and present danger test.
Among the categories of speech that are not protected by the First Amendment is “fighting words.”
Which of the following statements is not true when it comes to regulation of fighting words?
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.
The remaining statements all are true:
True threats-statements meant to communicate an intent to place an individual or group in fear of bodily harm-may be punished;
Fighting words-words or epithets that, when addressed to an ordinary citizen, are inherently likely to incite immediate physical retaliation-may also be punished; and
Fighting words statutes are often struck down for overbreadth. The overbreadth problem arises because of the difficulty in precisely describing what is or is not a “fighting word.”
Which of the following is not considered a type of “fighting words” that may be forbidden by statute?
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.
Statements meant to place a person in fear of bodily harm and statements likely to incite physical retaliation are both classic examples of fighting words subject to government regulation.
Conduct undertaken with the intent to cause fear of bodily harm (e.g., cross burning) is considered to be a form of fighting words, even though there is no actual spoken threat. This is because the conduct is intended to convey a message that is unprotected by the First Amendment.
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 on the case 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.”
Which of the following is correct regarding the statute?
The statute is not unconstitutional. True threats are not protected by the First Amendment. Moreover, 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, such as the statute here, 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 by the First Amendment. 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. Thus, his speech was protected and (B) is incorrect. (A) is incorrect because the father cannot constitutionally be punished for the reasons stated above. Moreover, whether the justices actually heard the threats would be irrelevant if the threats were otherwise punishable. (D) is incorrect because the statute is valid on its face, as discussed above.
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. [See Feiner v. New York (1951)] In this question, 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. Hence, (C) is incorrect. (B) is incorrect. No one in the audience has raised any constitutional argument. The speaker probably cannot raise the audience members’ First Amendment rights in this situation. (D) is incorrect. The state may not limit access to a public forum on the sole basis that there are other times and places where the right of free speech can be exercised. The state must show a more substantial reason.
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) is incorrect. While prior restraints are disfavored under the First Amendment, because true threats are not protected speech, the statute does not constitute a prior restraint. (B) is incorrect. While a state may forbid speech that poses a clear and present danger of imminent lawless action, that is not the only type of unprotected speech under the First Amendment. (D) is incorrect because the law here does not appear to be a fighting words statute, e.g., personally abusive epithets inherently likely to incite an immediate response.
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. The Supreme Court 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. [City of Renton v. Playtime Theaters, Inc. (1986)] 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. (A) is incorrect because it is too broad. The type of regulation in this question cannot be based simply on what residents find “offensive”; only regulations that are based on substantial government interests and do not entirely prohibit the activity have been permitted by the Supreme Court. (C) is incorrect because the regulation here, even if it is arguably content-based, is permissible because it is based on the legitimate local interest of preserving property values from the secondary effects of such businesses. (D) is incorrect because a city may restrict the location of speech-related businesses under the circumstances here without having to establish that the content of the speech is obscene.
