Freedom of Speech and Assembly

Question 1

1st Am - Basics

Answer 1

• prohibits Congress from abridging the freedoms of speech and press, or interfering with the right of assembly, or from establishing a religion or interfering with the free exercise of religion
• applicable to the states through 14th Am

Question 2

What counts as speech?

Answer 2

• includes words, symbols, and expressive conduct
• expressive conduct = any conduct that is either inherently expressive or:
  a) intended to convey a message AND
  b) reasonably likely to be perceived as conveying a message

Question 3

Unprotected Speech - Basic Concept

Answer 3

• categories of speech that lack 1st Am protection -> generally may be censored
• note that some categories receive partial protection (defamation + commercial speech)

Question 4

Types of Unprotected and Partially Protected Speech

Answer 4

• incitement
• fighting words
• obscenity

Partially protected:
- defamation
- some commercial speech

Question 5

Incitement

Answer 5

Speech that is:
1) intended to produce imminent lawless action AND
2) likely to produce such action

Question 6

Fighting Words

Answer 6

• personally abusive words that are likely to incite immediate physical retaliation in an average person
  -> merely annoying words not enough
• true threats seem to be considered a subset of this

Question 7

True Threats

Answer 7

• words intended to convey to someone a serious threat of bodily harm
• not protected under 1st Am
• to qualify, speaker must have had some subjective understanding that their threats were of a threatening nature, but a mental state of recklessness is sufficient (i.e. awareness that others could regard the statements as threatening violence + delivered anyway)

Question 8

Wrinkles in Fighting Word Protections

Answer 8

• even though fighting words are technically unprotected, SCOTUS won’t allow states to pass statutes that punish only certain viewpoints (you can’t prohibit only fighting words that insult on the basis of race, religion or gender) -> statutes regulating fighting words can’t be viewpoint-based
• book also notes that as a practical matter, statutes that attempt to punish fighting words tend to be vague or overbroad

Question 9

Obscenity - Elements

Answer 9

Speech that describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:
- appeals to the prurient interest in sex, using a contemporary community standard
- is patently offensive under contemporary community standards AND
- lacks serious value (literary, artistic, political, or scientific) using a national, reasonable person standard

• note that the standard contains a community aspect (local or statewide) as well as a national reasonable person standard re value of the speech

Question 10

Speech That Tends Not to Count as Obscene

Answer 10

• mere nudity, soft-core pornography, + “dirty words”

Question 11

Private Possession of Obscene Material

Answer 11

• can’t be punished (except for possession of child pornography
• BUT the protection doesn’t extend outside the home

Question 12

Obscenity and Minors

Answer 12

• to protect minors from exploitation, gov may prohibit sale or distribution of visual depictions of sexual conduct involving minors, even if wouldn’t be found obscene if it didn’t involve children
• gov can’t bar simulated pictures of minors though
• states are also allowed to adopt a specific definition of obscenity applying to materials sold to minors, even though might not be obscene in terms of an adult audience

Question 13

Obscenity and Land Use Regs

Answer 13

• land use reg may limit location or size of adult entertainment establishments if the reg is designed to reduce the secondary effects of such businesses
  -> ex: protect children + unwilling adults from exposure, or prevent neighborhood crime + decay
• can’t ban such establishments altogether though

Question 14

Free Speech and Liquor Regulation

Answer 14

• states have broad power to regulate intoxicating beverages under 21st Am
• laws relating to this power that affect free speech rights generally won’t be set aside unless irrational

Question 15

Defamatory Speech

Answer 15

• defamatory statements can be subject to tort liability
• if defamatory statement is about a public official or public figure or involves a matter of public concern, 1st Am requires pl to prove all elements of defamation PLUS falsity and some degree of fault in order to recover

Question 16

Defamatory Speech - Requirements when Pl = Public Official or Figure

Answer 16

• pl must show ACTUAL MALICE as the degree of fault
  -> regardless of whether the defamation is on a matter of public or private concern

Question 17

Actual Malice - Requirements

Answer 17

Pl must prove by clear and convincing evidence that the alleged defamatory statement was made with:
- knowledge that it was false OR
- reckless disregard as to its truth or falsity

Question 18

Public Officials - Definition

Answer 18

Includes people:
1) holding or running for elective office (at any level) AND
2) public employees in positions of public importance (ex: prosecutor, school principle, police officer)

Question 19

Public Figures - Definition

Answer 19

People who have:
1) assumed roles of prominence in society
2) achieved pervasive fame and notoriety OR
3) thrust themselves into particular public controversies to influence their resolution

Question 20

Matters of Public Concern

Answer 20

• issues important to society or democracy
• courts decide on case-by-case basis whether the defamatory statement involves a matter of public concern, looking at the content, form, and context of the publication

Question 21

Private Figure Suing on Matter of Public Concern

Answer 21

• if pl = private figure + defamatory statement involves a matter of public concern, pl can only recover actual damages if the pl only shows negligence
• to recover punitive damages or presumed damages, pl needs to show actual malice

Question 22

Private Figure Suing on Matter of Private Concern

Answer 22

• if pl = private figure suing on a matter of private concern, 1st Am isn’t involved
• can recover for any damages that state law allows, even if can’t show actual malice

Question 23

Intentional Infliction of Emotional Distress

Answer 23

• SCOTUS has required proof of actual malice for recovery under torts of intentional infliction of emotional distress and other torts (ex: invasion of right to privacy) where pl is a public figure or official, or where the speech is on a matter of public concern

Question 24

1st Am and Commercial Speech

Answer 24

Commercial speech is NOT protected if it is:
1) false
2) misleading OR
3) about illegal products or services

• commercial speech includes ads, promotions of products and services, and brand marketing

Question 25

Commercial Speech - Instances Where Regs on Protected Commercial Speech Are Upheld

Answer 25

Other than the unprotected commercial speech, any reg of commercial speech upheld only if it:
- serves a substantial gov interest
- directly advances that interest
- is narrowly tailored to serve that interest (doesn’t require lease restrictive means of accomplishing the legislative goal, just needs to be reasonable fit between the goal and the means chosen)

Question 26

Commercial Speech - Complete Bans

Answer 26

• complete bans on truthful advertisement of lawful products very unlikely to be upheld due to lack of legit gov interest

Question 27

Commercial Speech - Required Disclosures

Answer 27

• gov may require commercial advertisers to make disclosures if the disclosures aren’t unduly burdensome + they’re reasonably related to state’s interest in preventing deception