Freedom of SPeech and Assembly Flashcards
Threshold Question
Is Speech involved?
What is speech?
1) Words
2) Symbols
3) Conduct that is
—inherently expressive OR
—intended to convey and reasoanbly likeley to be seen as conveying a message
Unprotected speech
NO PROTECTION
1) Incitement
2) Fighting words
3) Obscenity
4) True Threats
5) Child porn
Incitement
Can be censored if it is:
1) intended to produce IMMINENT LAWLESS ACTION AND
2) likeley to produce such action
Can’t be a general threat/violent ideology. Must be IMMINENT.
Fighting Words
PERSONALLY abusive words that are likeley to incite immediate physical retaliation in an average person.
not merely annyoing.
True THreats
Words that are intended to convey to someone a serious threat of bodily harm.
Speaker must have had some subjective understanding that their threats were of a threatening nature, but a mental state of recklessness is sufficient.
Obscenity
Speech that describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:
1) Appeals to the prurient interest in sex, using a CONTEMPORARY COMMUNITY STANDARD;
2) is patently offensive under CONTEMPARARY COMMUNITY STANDARDS; AND
3) Lacks serious value, using a NATIONAL, REASONABLE PERSON STANDARD
but private possession of obsecene material in the home cannot be punished.
Child Porn
Absolutly prohibited. Sale, distrubution, creation.
BUT simulated pictures of minors is okay.
Partially protected speech
1) Defamatory speech
2) Commercial Speech
3) IIED
Defmation/defamatory speech - public official or public figure
Must show elements of defamation PLUS:
1) Falsity
2) Actual Malice
—-knowledge of falsity OR reckless disregard for truth
Defamation/defamatory speech - private figure
Must show elements of defmation PLUS:
IF public concern
–actual damages -> negligence
–punitive/statutory damages -> actual malice
IF private concern
–actual malice not needed
Intentional Inflicition of Emotional Distress
Same rules as defamation
Commercial Speech
False, misleading, or promoting illegal product is NOT PROTECTED
Other commercial speech regulations will only be upheld if:
1) Serves a substantial gov interest,
2) Directly advances taht interest, AND
3) is narrowly tailored to serve that interest
—–note: not least restrictive means. Just a reasonable fit between goal and means.
General speech restriction categories
Content based and content neutral
Content based speech
Restricts speech based on the SUBJECT MATTER of VIEWPOINT of the speech.
Subject to strict scrutiny
Content Neutral Regulations
Restrictions on speech that is both subject matter neutral and view point neutral.
Intermediate scurtin: important interests + narrowly tailored
OFten times, CN regulations are time, place, or manner restrictions.
Speech restrictions on gov property (and categories)
Extent of allowable regulation depends on NATURE of gov property:
1) Traditional public forums and designated public forums
2) Limited public forums and nonpublic forums
Traditional public forums and designated public forusm
Trad = Public property that has historically been open to speech-related activities
Des = public property that has not historically been open but which the gov has thrown open in certain contexts by practice or policy.
If content based -> SS
If content neutral -> IS, AND must leave open ample alternative channels
Limited and Nonpublic forums
Limited = gov forums not historicall open BUT opened for a specific speech activity
Nonpublic = not historically openand not held open
Can restrict if:
1) Viewpoint neutral AND
2) RB
If NOT viewpoint neutral -> SS
Speech in Public Schools (not universities)
Personal student speech on campus:
—can’t censor absent SUBSTANTIAL DISRUPTION
—But can ban speech promoting illegal drugs
Personal student speech OFF campus:
—limited restictions: prevent bullying, cheating, threats
—balancing test
School speech (restrictions on its own speech. usually teachers but can be students): restrictions must be reasonably related to educational objectives
Speech in Public Employment
Unprotected speech:
1) Workplace speech on matters of PRIVATE concern
2) Speech pursuant to official duties
Protected speech:
1) Speech as a private citizen on matters of public concern -> balance value of speech vs workplace interests
2) Speech as private citizen on matter of private concern -> unclear. Probably protected absent detrimental effect.
Vaguness Doctrine
DP clause invalidates laws that don’t give reasoanble notice of what is prohibited
—based on 1A, applies more strictly in free speech contexts
Overbreadth Doctrine
Regulation is invalid if it bans substantially more speech than necessary.
Ex. LAX airport ban on ALL 1A activities
Prior Restraints
Attempts by the government to muzzle speech before it enters the market place.
Two main types:
1) INjunctions prohibiting speech from being published or broadcast
2) Licensing schemes (permits)
—-must have procedural safeguards
Generally disfavored.
Content based -> SS
—almost always fails
Content Neutral -> Intermediate
Licensing scheme procedural safeguards
1) Well defined standards
2) prompt appeals and judicial determination
3) no unfettered discretion
