Freedom of SPeech and Assembly

Question 1

Threshold Question

Answer 1

Is Speech involved?

Question 2

What is speech?

Answer 2

1) Words
2) Symbols
3) Conduct that is
—inherently expressive OR
—intended to convey and reasoanbly likeley to be seen as conveying a message

Question 3

Unprotected speech

Answer 3

NO PROTECTION

1) Incitement
2) Fighting words
3) Obscenity
4) True Threats
5) Child porn

Question 4

Incitement

Answer 4

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.

Question 5

Fighting Words

Answer 5

PERSONALLY abusive words that are likeley to incite immediate physical retaliation in an average person.

not merely annyoing.

Question 6

True THreats

Answer 6

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.

Question 7

Obscenity

Answer 7

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.

Question 8

Child Porn

Answer 8

Absolutly prohibited. Sale, distrubution, creation.

BUT simulated pictures of minors is okay.

Question 9

Partially protected speech

Answer 9

1) Defamatory speech
2) Commercial Speech
3) IIED

Question 10

Defmation/defamatory speech - public official or public figure

Answer 10

Must show elements of defamation PLUS:
1) Falsity
2) Actual Malice
—-knowledge of falsity OR reckless disregard for truth

Question 11

Defamation/defamatory speech - private figure

Answer 11

Must show elements of defmation PLUS:
IF public concern
–actual damages -> negligence
–punitive/statutory damages -> actual malice

IF private concern
–actual malice not needed

Question 12

Intentional Inflicition of Emotional Distress

Answer 12

Same rules as defamation

Question 13

Commercial Speech

Answer 13

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.

Question 14

General speech restriction categories

Answer 14

Content based and content neutral

Question 15

Content based speech

Answer 15

Restricts speech based on the SUBJECT MATTER of VIEWPOINT of the speech.

Subject to strict scrutiny

Question 16

Content Neutral Regulations

Answer 16

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.

Question 17

Speech restrictions on gov property (and categories)

Answer 17

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

Question 18

Traditional public forums and designated public forusm

Answer 18

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

Question 19

Limited and Nonpublic forums

Answer 19

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

Question 20

Speech in Public Schools (not universities)

Answer 20

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

Question 21

Speech in Public Employment

Answer 21

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.

Question 22

Vaguness Doctrine

Answer 22

DP clause invalidates laws that don’t give reasoanble notice of what is prohibited
—based on 1A, applies more strictly in free speech contexts

Question 23

Overbreadth Doctrine

Answer 23

Regulation is invalid if it bans substantially more speech than necessary.

Ex. LAX airport ban on ALL 1A activities

Question 24

Prior Restraints

Answer 24

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

Question 25

Licensing scheme procedural safeguards

Answer 25

1) Well defined standards
2) prompt appeals and judicial determination
3) no unfettered discretion