Freedom of Speech and Assembly

Question 1

what is included in “speech”?

Answer 1

words, symbols, and expressive conduct

Question 2

what is “expressive conduct”? (2 types)

Answer 2

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

Question 3

what type of speech does NOT receive First Amendment protection?

Answer 3

unprotected speech

Question 4

what 4 types of speech are completely unprotected?

Answer 4

1) incitement
2) fighting words
3) true threats
4) obscenity

Question 5

when can speech be censored as “incitement”? (2 elements)

Answer 5

when it is
1) intended to produce imminent lawless action, and
2) likely to produce such action

Question 6

what are fighting words?

Answer 6

personally abusive words that are likely to incite immediate physical retaliation in an average person
**NOTE = merely annoying words do not qualify

Question 7

true or false: the First Amendment does NOT protect true threats.

Answer 7

TRUE

Question 8

what is a “true threat”?

Answer 8

words that are intended to convey to someone in particular a serious threat of bodily harm
**NOTE = recklessness is sufficient so long as speaker had some understanding of the threatening nature of their words

Question 9

true or false: statutes punishing fighting words from only certain viewpoints are permissible.

Answer 9

FALSE (can’t be viewpoint based)
**NOTE = this includes viewpoints like “no fighting words on basis of race, gender, etc)

Question 10

what is “obscene” speech?

Answer 10

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 contemporary community standards, and
3) lacks serious value (literary, artistic, political, scientific) using a national, reasonable person standard

Question 11

true or false: nudity, soft core porn, and dirty words are included in obscene speech.

Answer 11

FALSE (these are all protected speech)

Question 12

true or false: generally, private possession of obscene material in the home CANNOT be punished

Answer 12

TRUE
**EXCEPTION = possession of child pornography

Question 13

what is punishable “possession of child pornography”?

Answer 13

sale/distribution of visual depictions of sexual conduct involving minors even if the material would NOT be considered obscene if it DIDN’T involve minors

Question 14

true or false: the government CAN bar visual material that appears to be child pornography but actually involves adults or computer generated images.

Answer 14

FALSE (this is NOT considered child pornography)

Question 15

true or false: the govt can prohibit the sale or distribution of material to adults because of its inappropriateness for children.

Answer 15

FALSE (CAN create a separate obscenity def for minors, but not for all people/adults)

Question 16

true or false: land use regulations MAY limit the location/size of adult stores/etc to reduce secondary effects of such businesses.

Answer 16

TRUE
**NOTE = may NOT ban them altogether

Question 17

what level of First Amendment protection does defamatory speech receive?

Answer 17

partial protection

Question 18

if the defamatory statement is about a public figure, official, or concern, what does the First Amendment require the plaintiff to prove to recover? (3 general rqmts)

Answer 18

1) all elements of defamation
2) falsity
3) some degree of fault

Question 19

what degree of fault must be shown for defamation when the plaintiff is a public official/figure?

Answer 19

actual malice (regardless of whether the matter is of public/private concern)

Question 20

what must a plaintiff show to prove actual malice? (2 options)

Answer 20

plaintiff must show by clear and convincing evidence that the defam statement was made with:
1) knowledge that it was false, or
2) reckless disregard as to its truth or falsity

Question 21

who are “public officials” for defamation purposes? (2 types)

Answer 21

includes people who are
1) holding or running for elective office at any level, and
2) public employees in positions of public importance (ie – prosecutor, principal, police)

Question 22

who are “public figures” for defamation purposes? (3 options)

Answer 22

people who have either:
1) assumed roles of prominence in society,
2) acheived pervasive fame and notoreity, or
3) thrust themselves into a particular public controversy to influence their resolution

Question 23

what are “matters of public concern”?

Answer 23

issues important to society or democracy (at any level)
**NOTE = courts decide on a case by case basis (looks at content, form, context of publication)

Question 24

how are a plaintiff’s damages limited when they are a private figure and the statement involves a matter of public concern?

Answer 24

plaintiff can only recover actual damages if they only show negligence, BUT can recover punitive/presumed damages if they show actual malice

Question 25

how are a plaintiff’s damages limited when they are a private figure and the statement involves a matter of private concern?

Answer 25

they are NOT limited (may recover any damages that the state law allows even if they can’t show actual malice)

Question 26

what level of proof is required for IIED claims against a public official/figure or for speech on a matter of public concern?

Answer 26

First Amendment requires actual malice be shown

Question 27

when is commercial speech NOT protected by the First Amendment?

Answer 27

when it is
1) false,
2) misleading, or
3) about illegal products or services

Question 28

what is commercial speech?

Answer 28

includes advertisements, promotions of products/services, brand marketing

Question 29

when will a regulation on protected commercial speech be upheld? (3 rqmts)

Answer 29

upheld only if it:
1) serves a substantial government interest (ie – consumer protection)
2) directly advances that interest, and
3) is narrowly tailored to serve that interest (only requires a reasonable fit)
**NOTE = form of intermediate scrutiny

Question 30

true or false: complete bans on truthful ads of lawful products are likely to be struck down.

Answer 30

TRUE (lack of a legit govt interest)

Question 31

when may a government require commercial advertisers to make disclosures? (2 rqmts)

Answer 31

when the disclosures
1) are not unduly burdensome and
2) are reasonably related to the state’s interest in preventing deception

Question 32

what are the two general categories of speech/assembly regulations?

Answer 32

content based and content neutral

Question 33

when is a regulation “content based”?

Answer 33

when it restricts speech based on the subject matter or viewpoint of the speech

Question 34

what level of scrutiny are content based regulations evaluated under?

Answer 34

strict scrutiny (they are presumptively unconstitutional)

Question 35

when is a regulation “content neutral”? (2 rqmts)

Answer 35

when its restrictions are BOTH (1) subject matter neutral and (2) viewpoint neutral
**NOTE = often in the form of “time, place, and manner” restrictions on conduct related to speech

Question 36

what level of scrutiny are content neutral regulations evaluated under?

Answer 36

intermediate scrutiny = must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests

Question 37

what is a traditional public forum?

Answer 37

public property that has historically been open to speech related activities (streets, sidewalks, public parks)

Question 38

what is a designated public forum?

Answer 38

public property that has not been historically used for speech related activities but which the government has opened for such activities on a limited or permanent basis (by practice or policy)

Question 39

what level of scrutiny are content based restrictions on a traditional/designated public forum subject to?

Answer 39

strict scrutiny (same as for general protected speech)

Question 40

what level of scrutiny are content neutral restrictions on traditional/designated public forums subject to?

Answer 40

intermediate scrutiny plus ONE additonal factor:
1) narrowly tailored to serve
2) an important government interest, and
3) leaves open alternative channels for communication!

Question 41

what is a limited public forum?

Answer 41

government forums not historically open generally for speech/assembly but opened for a specific speech activity (ie – courtrooms, school gym opened for a community debate on a specific issue)

Question 42

what is a non public forum?

Answer 42

government property not historically open to general speech/assembly and NOT held open to the public for specific speech activities (ie – military bases or government offices)

Question 43

for what legit purpose can govt regulate speech in limited and non public forums?

Answer 43

to reserve the forum for its intended use

Question 44

when are restrictions on limited and nonpublic forums generally valid?

Answer 44

when they are
1) viewpoint neutral, and
2) reasonably related to a legitimate government purpose

Question 45

what level of scrutiny is applied when a restriction on speech in limited/nonpublic forums viewpoint based?

Answer 45

strict scrutiny

Question 46

true or false: public schools (elementary, middle, high schools) are NOT public forums.

Answer 46

TRUE
**NOTE = doesn’t include public universities

Question 47

when can a student’s personal, individual speech be censored ON campus? (2 situations)

Answer 47

when the speech either:
1) causes a substantial disruption (not part of participation in a lesson), OR
2) promotes illegal drug use (no showing of disruption required)

Question 48

when can a student’s personal, individual speech be censored OFF campus?

Answer 48

when such censorship is for the purpose of
preventing…
1) cheating, bullying, threats, or
2) any other speech where pedagogical or safety interests clearly outweigh the speech interests of students as private citizens

Question 49

what is speech related to a school’s teaching? (school speech)

Answer 49

speech by school faculty and by students as part of curricular or extracurricular activities

Question 50

when are restrictions on school speech valid?

Answer 50

when they are reasonably related to legitimate pedagogical concerns
**NOTE = not a high bar (deferential to schools/educators)

Question 51

true or false: public/govt employees do NOT enjoy as much free speech as private citizens

Answer 51

TRUE (special rules on speech apply in the context of government work)

Question 52

in what 2 situations is a govt employee’s speech NOT protected by the First Amendment? (govt can punish)

Answer 52

when the employee’s speech is either:
1) made while at work on a matter of private concern, or
2) made on the job, pursuant to their official duties (even if a matter of public concern)

Question 53

how do courts evaluate whether or not a govt employee’s speech on a matter of public concern that is NOT made pursuant to their official duties is protected by the First Amendment?

Answer 53

by using a balancing test = balance the value of the speech against the government’s interest in the efficient operation of the workplace

Question 54

what test applies to govt employee speech on a private matter made outside the workplace?

Answer 54

test unclear, but speech appears to be protected absent a detrimental effect on the workplace

Question 55

when can government require employees to take a loyalty oath?

Answer 55

as long as the oaths aren’t overbroad or vague

Question 55

true or false: federal govt MAY prohibit federal executive branch employees from taking an active part in political campaigns.

Answer 55

TRUE

Question 56

true or false: oaths requiring employees to uphold the Constitution and oppose unlawful overthrow of the government are VALID.

Answer 56

TRUE

Question 57

true or false: oaths requiring public employees to support the flag are VALID.

Answer 57

FALSE (violates free speech)

Question 58

what is the “void for vagueness” doctrine?

Answer 58

if a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the Due Process Clause
**NOTE = this doctrine is applied MORE strictly in the First Amendment context

Question 59

when will a speech regulation be invalidated as overbroad?

Answer 59

when it punishes substantially more speech than is necessary (facially invalid = not enforceable against anyone)

Question 60

what are prior restraints?

Answer 60

court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards (ie – injunctions)
**NOTE = these are NOT favored and rarely allowed (especially if content based)

Question 61

what types of scrutiny apply to prior restraints?

Answer 61

same as for general protected speech (content based = strict scrutiny; content neutral = intermediate scrutiny)
BUT govt burden in justifying the prior restraint is HEAVY (should ask whether there is some special societal harm that justifies the restraint)

Question 62

what procedural safeguards must be met for a system of prior restraint to be valid? (ie – licensing systems)

Answer 62

1) standards must be narrowly drawn, reasonable, and definite
2) injunction must promptly be sought (if restraining body wishes to bar certain speech), and
3) there must be prompt and final judicial determination of the validity of the restraint (ie – review of permanent denial)

Question 63

true or false: a prior restraint regulation CANNOT give officials broad discretion over speech issues without defined standards.

Answer 63

TRUE (if broad discretion, regulation is void on its FACE)