Freedom of Speech and Assembly Flashcards
Speech
Includes word, symbols, and expression conduct that:
-Intends to convey a message; and
-Is reasonably likely to be perceived as conveying a message
Categories of unprotected speech
-Incitement
-Fighting words
-Obscenity
-Defamatory speech
-Some commercial speech
Incitement (unprotected speech)
Two requirements to be censored:
-Intended to produce imminent lawless action; and
-Likely to produce such action
Fighting words (unprotected speech)
Personally abusive words that are likely to incite immediate physical retaliation in an average person
-True threats (unprotected) are words that are intended to convey to someone a serious threat of bodily harm
-Fighting word statutes are generally too vague or overbroad to be valid
Obscenity (unprotected speech)
Three elements
-Sexual appeal using a contemporary community standard
-Patently offensive under a contemporary community standard; and
-Lacks serious value (i.e., artistic) using a national, reasonable person standard
Difficult standard - mere nudity, soft-core porn, and dirty words are not obscene
Other notes:
-Obscene material allowed only inside of home (no child porn but simulated pictures of minors allowed)
-Zoning regulations allowed to limit adult entertainment establishes to reduce secondary effects of such businesses
Defamatory speech (unprotected speech)
Public official/figure suing for defamation/intentional infliction of emotional distress (regardless of private/public concern)
-Must prove all elements of defamation + falsity + actual malice
-Actual malice requires knowledge of falsity or reckless disregard as to truth or falsity
Private figure suing for defamation
1. Involving a matter of public concern
-Actual damages for showing of negligence
-Punitive damages for showing actual malice
-Actual malice to show intentional infliction of emotional distress
2. Involving a matter of private concern
-No First Amendment consideration
Commercial speech
Advertisements, promotions of products and services, brand marketing are not protected if
-False
-Misleading; or
-About illegal products or services
Any other regulation of commercial speech will be upheld only if:
-Serves a substantial government interest; and
-Is narrowly tailored to serve that interest (reasonable fit; not least restrictive)
Content-based regulations
A regulation that restricts speech based on the subject matter or viewpoint
-Presumptively unconstitutional unless it falls into an unprotected speech category
-Subject to strict scrutiny
Content-neutral regulations
A regulation on speech that is both subject-matter and viewpoint-neutral
-Restrictions on conduct related to speech (form of time, place, and manner)
-Subject to intermediate scrutiny
>narrowly tailored to important government interest +leave open alternative channels of communication
Categories of government property
-Public forum
-Designated public forum
-Limited public forum
-Nonpublic forum
Public forum
Public property that has historically been open to speech-related activities
-Streets, sidewalks, and public parks
-Content-based regulation at public forms is subject to strict scrutiny
-Content-neutral regulation at public forms is subject to intermediate scrutiny
Designated public forum
Public property that has not historically been open to speech-related activities, but which the government has opened for such activities on a permanent or limited basis
-Town hall open for use by social, civil, or recreation group
-Content-based regulation at public forms is subject to strict scrutiny
-Content-neutral regulation at public forms is subject to intermediate scrutiny
Limited public forum
Government forums not historically open generally for speech and assembly but open for specific speech activity
-School gym open to host a debate or a public university’s funding of student publications
-Regulations on limited public forums are valid if they are viewpoint neutral and reasonably related to a legitimate government purpose
>If regulation is viewpoint based, its subject to strict scrutiny
Nonpublic forum
Government property not historically open generally for speech and assembly and not held open for specific speech activities
-Military bases or government workplaces
-Regulations on nonpublic forums are valid if they are viewpoint neutral and reasonably related to a legitimate government purpose
>If regulation is viewpoint based, its subject to strict scrutiny
Speech regulation in schools
Student’s personal speech on campus cannot be censored absent evidence of substantial disruption
-Exception: speech promoting illegal drug use
Student’s personal speech off campus is only limited to prevent cheating, bullying, threats, and other speech that is outweighed by pedagogical or safety interests
Restrictions on the school’s speech must be reasonably related to legitimate pedagogical concerns
-i.e., curricular/extracurricular activities like a school paper
Speech in public employment
Unprotected employee speech
-Government employee’s speech at work involves a private concern can be punished if its disruptive
-Government employee’s speech made pursuant to official duties can be punished regardless of whether it involves a public or private concern
Protected employee speech
-Government employee speech on matters of private concern outside the workplace
-Government employee’s speech on a matter a public concern that is not made pursuit to official duties
>Subject to balancing test of efficiency and value of speech
Void for vagueness doctrine (criminal law only)
A criminal law or regulation that fails to give persons reasonable notice of what is prohibited is invalid
Overboard regulation
A regulation of speech that punishes substantially more speech than is necessary is invalid
Prior Restraints
Court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards
-Licensing systems or injunctions
-Content-based are subject to strict scrutiny
-Content-neutral are subject to intermediate scrutiny
-Not favored and are rarely allowed - cannot give licensing officials unbridled discretion or place gag order on press
A valid prior restraint must provide the following safeguards:
-Narrowly drawn, reasonable, and definite
-Injunction must be promptly sought
-Must be prompt and final judicial determination of validity of the restraint
Freedom of religion
The Free Exercise Clause prohibits government from punishing someone on the basis of their religious belief or related religious status or conduct
Religious belief
Courts can only question the sincerity of a person’s belief, not the truthfulness of the belief
Discriminatory law (religion)
A law is discriminatory if it is either:
-Expressly provides favored or disfavored treatment based on religious belief or
-Is silent with regard to religion but, by design, targets religion (not generally applicable)
TLDR: a government action can only be challenged under the Free Exercise Clause if it was specifically designed to interfere with religion
Subject to strict scrutiny
Religious Exemptions
A law that gives government officials discretion to grant exemptions from the law is not generally applicable
-This means its silent to religion but by design targets religion
-Denial of religious exemption can be challenged under Free Exercise Clause
>Apply strict scrutiny
However, the Free Exercise Clause does not require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct
-Exception: religious organizations must be exempt from suits alleging employment discrimination by ministers against their religious organization
Government Benefits Programs (religion)
A state may not limit eligibility for a generally available governmental benefit to nonreligious organizations
-i.e., a state that provides textbooks to secular private schools must do so with otherwise-eligible religious private schools
Establishment Clause
Prohibits government sponsorship of religion, meaning the government cannot aid or formally establish a religion
-Government must remain neutral with respect to religion
-Government may not directly or indirectly coerce individual to exercise or refrain from exercising their religion
-Analysis focused on neutrality, coercion, history, and original meaning (Founder’s intent)
