Freedom of Speech and Assembly Flashcards
First Amendment Generally
The First Amendment prohibits congress from abridging the freedoms of speech and press, interfering with the right to assembly, or from establishing a religion or interfering with the free exercise of religion.
These prohibitions are applicable to the states through the Fourteenth Amendment.
What is Speech
Speech includes words, symbols, and expressive conduct.
Expressive conduct is any kind of conduct that is either inherently expressive or conduct that is
1) intended to convey a message; and
2) reasonably likely to be perceived as conveying a message
What are the types of unprotected speech and lesser protected speech
1) Incitement
2) Fighting words
3) True Threats
4) Obscenity
1) Defamation
2) commercial speech
Incitement (Unprotected Speech)
Speech can be censored as incitement if it is (1) intended to product imminent lawless action and (2) likely to product such action
Fighting Words (Unprotected Speech)
Speech can be censored if it constitutes fighting words - personally abusive words that are likely to incite immediate physical retaliation in an average person
Words that are merely annoying are not sufficient
True Threats
The first amendment does not protect true threats - words that are intended to convey to someone a serious threat of bodily harm
To qualify as a true threat, the speaker must have had some subjective understanding that their threats were of a threatening nature, but a mental state of recklessness is sufficient (awareness that others could regard the statements as threatening violence and delivers them anyway)
Fighting Word Statutes
Even though fighting words are unprotected, the supreme court will invalidate statutes that are designed to punish only certain viewpoints (viewpoint based)
EX: prohibiting only fighting words that insult on the basis of race, religion, or gender
NOTE - practically, statutes that attempt to punish fighting words are usually vague or over broad
Obscenity (Unprotected Speech)
Obscene Speech is not protected
Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as whole, by the average person
1) appeals to the prurient interests in sex, using a contemporary community standard
2) is patently offensive under contemporary community standards; and
3) lacks serious literary, artistic, political, or scientific value, using a national reasonable person standard
Private Possession of Obscene Material
Private Possession of obscene material in the home cannot be punished (except for child porn), however this does not extend beyond the home
Child Porn
To protect minors, the government may prohibit the sale or distribution of visual depictions of sexual conduct involving minors, even if the material would be found obscene if it did not involve children.
However, the government cannot ban material that only appears to depict minors engaged in sexually explicit conduct, but that actually uses young-looking adults or computer generated images.
Obscenity Standard for Minors
The state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of adult audience. However, the government can’t prohibit the sale or distribution of material to adults just be cause its inappropriate for children
Land Use Regulations (Speech)
a land use or zoning regulation may limit the location or size of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such businesses (protect children and unwilling adults from exposure, prevent neighborhood crime and decay)
However, these regulations cannot ban such establishments all together
Defamatory Speech (Less Protection)
Defamatory statements can be subject to tort liability. If the defamatory statement is about a public official or figure or involves a matter of public concern, the first amendment requires the plaintiff to prove all the elements of defamation plus falsity and some degree of fault to recover
Public Official or Figure
If the plaintiff is a public official or figure, then regardless of whether the defamatory statement is on a matter of public or private concern, the degree of fault the plaintiff must show is actual malice.
To show actual malice, the plaintiff must prove by clear and convincing evidence that the alleged defamatory statement was made with
1) knowledge that it was false; or
2) reckless disregard as to its truth or falsity
what is a public official, public figure, and matter of public concern
Public Official = people holding or running for elective office and public employees in position of public importance (prosecutor, school principal, police officer)
Public Figure = people who has assumed roles of prominence in society, achieved pervasive fame and notoriety, or thrust themselves into particular public controversies
Matter of Public Concern = issues important to society or democracy. It is determined on a case by case basis whether a statement involves a matter of public concern, looking at the content, form, and context of the statement
Private Figure on Matter of Public Concern
If the plaintiff is a private figure and the statement involves a matter of public concern, the plaintiff can only recover actual damages if the plaintiff shows only negligence.
To recover punitive damages or presumed damages the plaintiff must show actual malice
Private Figure on Matter of Private Concern
If the plaintiff is a private figure and the statement involved a private concern, the first amendment is not involved. The plaintiff can recover any damages that state law allows, event if they can’t show actual malice.
Intentional Infliction of Emotional Distress
The Supreme Court has required proof of actual malice for recovery under the tort of intentional infliction of emotional distress where the plaintiff is a public official or figure, or where the speech is on a matter of public concern
Think about the Westboro Baptist case
Commercial Speech
Commercial Speech is not protected if it is (1) false, (2) misleading, or (3) about illegal products or services.
Any other regulation of commercial speech will be upheld only if it
1) serves a substantial government interest;
2) directly advances that interest; and
3) is narrowly tailored to serve that interest
NOTE - narrowly tailored here does not mean the least restrictive means, there just needs to be a reasonable fit between the goal and the means chosen
Content Based Regulations
Content based regulations are subject to strict scrutiny and are presumably unconstitutional (unless they fall within one of the categories of unprotected speech)
A regulation is content based if it restricts speech based on the subject matter or viewpoint of the speech.
Content Neutral Regulations
Content neutral restrictions are both subject matter and viewpoint neutral.
They are generally subject to intermediate scrutiny - they must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary (or must be narrowly tailored to further those interests.
These are often in the form of time, place, and manner restrictions
Speech Restrictions on Government Property
The extent to which the government may regulate speech or expressive conduct on government property depends on whether the property involved is a
1) public forum
2) designated public forum
3) limited public forum
4) nonpublic forum
Public Forums and Designated Public Forums
A public forum is government property that has historically been open to speech related activities (streets, sidewalk, public parks)
A designated public forum is government property that has not historically been open to speech related activities, but which the government has thrown open for such activities on a permanent of limited basis, by practice of policy (town hall open for use by social, civil, or recreational groups.
Level of Scrutiny for Public and Designated Public Forums
if the regulation is content based, it will be subject to strict scrutiny
If it is content neutral, then it is subject to the following intermediate scrutiny:
1) it must be narrowly tailored to serve an important government interest (need not be the least restrictive means); and
2) leave open alternative channels of communicating
Limited Public Forums and Nonpublic Forums
Limited public forums are forums not historically open for speech and assembly but opened for specific speech activity, like a school gym opened to host a debate on a particular community issue
Nonpublic forums are government property not historically open for speech and hot help open for specific speech activities, such as military bases or government workplaces
Level of Scrutiny for Limited Public and Nonpublic Forums
The government can regulate speech in such forums to reserve the forum for its intended use. In such locations, the regulations are valid if they are:
1) viewpoint neutral; and
2) reasonably related to a legitimate government purpose
If the regulation is viewpoint based, it will be subject to strict scrutiny
Personal Student Speech on Campus
A student’s own personal speech on campus cannot be censored absent evidence of substantial disruption
EXCEPTION - speech promoting illegal drug use does not require showing any disruption or credible threat of disruption
Personal Student Speech off Campus
When the student’s personal speech occurs off campus, it will be harder for the school to censor. Schools will be limited to restricting speech to prevent cheating, bullying, threats, and other speech where the school’s interest or safety interests clearly outweigh the speech interests of students as private citizens
School Speech
Restrictions of speech related to the school’s teaching (speech by faculty and by students as part of curricular or extracurricular activities) must be reasonably related to legitimate pedagogical concerns.
Unprotected Employee Speech
If a government employee’s speech while at work involves a matter of private concern, the employer can punish the employee if the speech was disruptive of the work environment.
A government employer may punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties, even if the speech touches on a matter of public concern.
there is no First Amendment protection in either case.
Protected Employee Speech
If the speech is on a matter of public concern but is not made pursuant to the employee’s official duties, the courts will use a balancing test:
– The court must balance the value of the speech against the government’s interest in efficient operation of the workplace
For speech on matters of private concern outside the workplace, the test is unclear, but this speech appears to be protected absent a detrimental effect on the workplace.
Disclosure of Associations
The government may not force disclosure of every organizational membership of affiliation in exchange for a government employment or other benefit. It can only inquire into those activities that are relevant to the employment of benefit sought.
Even here, however, a person can exercise their Fifth Amendment right to remain silent if the disclosure would be incriminating
Void for Vagueness
If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the due process clause. This principle is applied more strictly when the First Amendment activity is involved.
Overbroad Regulation Invalid
A regulation of speech or speech related conduct will be invalidated as over broad if it punishes substantially more speech than is necessary
An over broad regulation is facially invalid unless a court has limited construction of the regulation so as to remove the threat of constitutionally protected speech.
If the regulation is not substantially over broad, it can be enforced against persons engaging in activities that are not constitutionally protected.
Prior Restraints
Prior restraints are court orders or administrative systems that prevent speech before it occurs, rather than punishing it afterwards. (licensing systems and injunctions) They are not favored.
There isn’t any special test - content based are subject to strict scrutiny and content neutral are subject to intermediate scrutiny - BUT the government bears a heavy burden in justifying a prior restraint.
Procedural Safeguards for Prior Restraints
To be valid, a system for prior restriaint must provide the following safeguards:
1) the standards must be narrowly drawn, reasonable, and definite;
2) the injunction must promptly be sought; and
3) there must be prompt and final judicial determination of the validity of the restraint
A regulation cannot give officials broad discretion over speech issues - there must be defined standards for applying the law.
If a statute gives a licensing official unbridled discretion, it is void on its face and speakers don’t need to apply for a permit. But if it includes the above standards, a speaker can’t ignore the statute - must seek a permit and wait a denial
Valid and invalid prior restraint examples
Prohibiting publishing of troop movements in times of war = valid
enforcing contractual prepublication review of CIA agent’s writings = valid
prohibiting publication of the Pentagon Papers because it might have an effect on the Vietnam War = invalid
Prohibiting Grand Jury witness from ever disclosing testimony = invalid
Press Access to Trials
The First Amendment guarantees the public and press a right to attend criminal (and probably civil) trial.
But that right may be outweighed by an overriding interest stated in the trial judge’s findings (EX protect children who are victims of sex crimes)
The right includes the right to be present a voir dire and at other pretrial proceedings, unless the judge makes specific findings that closure was narrowly tailored to preserve a higher value
Freedom of Association
The government may neither prohibit politically unpopular groups nor unduly burden a person’s right to belong to such groups
If the right to association is substantially burdened by a content based regulation, strict scrutiny is triggered.
A content neutral regulation that incidentally burdens association is only subject to intermediate scrutiny
