Freedom of Speech and Assembly

Question 1

1A generally

Answer 1

The first amendment prohibits Congress from a bridging, the freedom of speech and press, or interfering with the rights of assembly, or from establishing a religion or interfering with the exercise of religion. These prohibitions are applicable to the states through the 14th amendment.

Question 2

What is speech?

Answer 2

Speech includes words, symbols, and expressive conduct. Expressive conduct is any kind of conduct that is either inherently expressive, or conduct that is: intended to convey a message and reasonably likely to be perceived as conveying a message.

Question 3

Unprotected speech - generally

Answer 3

Some categories of speech, referred to as unprotected speech, lack First Amendment protection, and generally may be censored. Certain categories, like defamation and commercial speech, only receive partial protection. All other types of speech are protected speech.

Question 4

Unprotected speech - incitement

Answer 4

Speech can be censored as incitement if it is: 1) intended to reduce eminent lawless action and 2) likely to produce such action.

Question 5

Unprotected speech - fighting words - generally

Answer 5

Speech can be censored if it constitutes fighting words. Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person. Words that are merely annoying won’t do. 

Question 6

Unprotected speech - fighting words - true threats

Answer 6

The first amendment also does not protect, true threats, which are words that are intended to convey to someone a serious threat of bodily harm. To qualify as a true threat, the speaker must’ve had some subjective understanding that their threats were of threatening nature, but a mental state of recklessness is sufficient, meaning the speaker is aware that others could regard the statement as threatening violence and delivers them anyway. 

Question 7

Unprotected speech - fighting words - statutes can’t be viewpoint-based

Answer 7

Even though fighting words are unprotected, the Supreme Court won’t allow fighting words statutes that are designed to punish only certain viewpoints. For example, prohibiting only fighting words that insult on the basis of race, religion, or gender. As a practical matter, statutes that attempt to punish fighting words are usually vague or over broad. 

Question 8

Unprotected speech - obscenity

Answer 8

Obscene speech is not protected.

Question 9

Unprotected speech - obscenity - elements

Answer 9

Speech is obscene if it describes or depicts sexual conduct, specified by statute, taken as a whole, by the average person:

Appeals to the prurient interest in sex, using a contemporary community standard

Is offensive under contemporaneous community standards

And

Lacks serious value (literary, artistic, political, or scientific) using a national, reasonable person standard.

Most on the bar exam will not be obscene because it will not check all the boxes. Mere nudity, softcore pornography, and dirty words are not obscene. 

Must be taken as a whole, we look at the whole book not just the chapter.

Question 10

Unprotected speech - obscenity - private possession of obscene material

Answer 10

Private possession of obscene material in the home cannot be punished, except for possession of minor pornography. However, the protection does not extend outside the home, so states can criminalize sale or distribution. 

Question 11

Unprotected speech - obscenity - child p

Answer 11

To protect minors from exploitation, the government may prohibit the sale or distribution or possession of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve minors.

Question 12

Unprotected speech - obscenity - simulated pictures of minors

Answer 12

The government can’t bar visual material that only appears to depict minors, but that actually uses young looking adults or computer generated images

Question 13

Unprotected speech - obscenity - obscenity standard for minors

Answer 13

The state can adopt a specific definition of obscenity applying to material sold to minors, even though the material might not be obscene in terms of an adult audience. However, the government cannot prohibit the sale or distribution of material to adults just because it’s inappropriate for children.

Question 14

Unprotected speech - obscenity - land use regulations

Answer 14

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 business. For example, to protect children and unwilling adults from exposure, or to prevent neighborhood crime and decay. However, these regulations cannot ban such establishments altogether.

Question 15

Unprotected speech - obscenity - liquor regulation

Answer 15

Under the 21st amendment, states have broad powered to regulate intoxicating beverages. Laws relating to this power that affect free speech rights generally will not be set aside unless they are irrational.

Question 16

Unprotected speech - defamatory speech - generally

Answer 16

Defamatory statements can be subject to tort liability. If the defamatory statement is about a public official or public 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 fault in order to recover.

Question 17

Unprotected speech - defamatory speech - public official or figure suing

Answer 17

If the plaintiff is a public official or figure, then regardless of whether the defamation is on a matter of public or private concern, the degree of fault, the plaintiff must show is actual malice.

Question 18

Unprotected speech - defamatory speech - actual malic definition

Answer 18

To show actual malice, the plaintiff 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 19

Unprotected speech - defamatory speech - public officials

Answer 19

Public officials include people 1) holding or running for elective office at any level, and 2) public employees in positions of public importance (for example, a prosecutor, school, principal, or police officer)

Question 20

Unprotected speech - defamatory speech - public figures

Answer 20

Public figures are people who have 1) assumed rules of prominence in society 2) achieved pervasive fame and notoriety, or 3) thrust themselves into particular public controversies to influence their resolution.

Question 21

Unprotected speech - defamatory speech - matters of public concern

Answer 21

Matters of public concern are issues, important to society or democracy. The courts decide on a case by case basis, whether the defamatory statement involves a matter of public concern, looking at the content, form, and context of the publication. Can be at a national level or state or local concern.

Question 22

Unprotected speech - defamatory speech - private figures suing on a matter of public concern

Answer 22

If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the plaintiff can only recover actual damages if the plaintive only shows negligence. To recover punitive damages or presume damages they need to show actual malice. 

Question 23

Unprotected speech - defamatory speech - private figures suing on a matter of private concern

Answer 23

If the plaintiff is a private figure suing on a matter of private concern, then the first amendment is not involved. These plaintiff can recover for any damages that state law allows, even if they can’t show actual malice. 

Question 24

Unprotected speech - defamatory speech - intentional infliction of emotional distress

Answer 24

The Supreme Court has required proof of actual malice for recovery under the towards of intentional, infliction of emotional distress and other thoughts, like invasion of the right to privacy, where the plaintiff is a public figure or official, or where the speech is on a matter of public concern.

Question 25

Unprotected speech - some commercial speech - generally

Answer 25

Commercial speech (meaning, advertisements, promotions of products and services, and brand marketing) is not protected if it is false, misleading, or about illegal products or services.

Any other regulation on commercial speech will be upheld only if it: Serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest. Narrowly Tayler does not require. The least restrictive means of accomplishing the legislative goal, it just needs to be a reasonable fit between the goal and the means chosen.

Question 26

Unprotected speech - some commercial speech - complete bans

Answer 26

A complete ban on truthful advertisement of lawful products are very unlikely to be upheld due to lack of legitimate government interest

Question 27

Unprotected speech - some commercial speech - required disclosures

Answer 27

The government may require commercial advertisers to make disclosures if the disclosures are not undo burdensome, and they are reasonably related to the states interest in preventing deception

Question 28

General speech restrictions - content-based regulations

Answer 28

Content based regulations are subject to strict scrutiny, and they are presently unconstitutional, unless they fall within one of the categories of unprotected speech.

A regulation is content based if it restrict speech based on the subject matter or viewpoint of the speech.

Question 29

General speech restrictions - content-neutral regulations

Answer 29

Content neutral restrictions on speech (meaning restrictions that are both subject matter, neutral and viewpoint neutral) generally, our subject to intermediate scrutiny: so they must advance important government interest, unrelated to the oppression of speech, and must not burden substantially more speech than necessary, or must be narrowly tailored, to further those interest.

Often times these are in the form of time, place, and manner restrictions.

Question 30

Speech restrictions on government property - traditional public forums

Answer 30

The extent to which the government may regulate speech or expressive conduct on government property depends on whether the property and involved is a public forum, a designated public forum, a limited public forum, or a non-public forum.

A traditional public forum is public property that has historically been open to speech related activities. For example, streets, sidewalk, and public parks.

Question 31

Speech restrictions on government property - designated public forums

Answer 31

Public property that has not historically been open to speech related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy is called a designated public forum. For example, a town hall open for you by social, civic, or recreation groups.

Question 32

Speech restrictions on government property - traditional and designated public forums - levels of scrutiny

Answer 32

If the regulation on traditional public forum or designated public forum is content based, it will be subject to strict scrutiny. But if it is neutral, it only needs to be intermediate scrutiny, which in this context means it must: be narrowly tailored to serve an important government interest however it may not be the least restrictive means of accomplishing that interest and leave open alternative channels of communication.

Remember that, even if the regulation meets the time place and manner requirements, it could still be invalid if it is over broad, vague, or gives unfettered discretion.

Question 33

Speech restrictions on government property - traditional and designated public forums - injunctions

Answer 33

Injunctions against speech in public forums are treated the same as other speech restrictions. If the injunction is content based, it must be necessary to achieve a compelling interest. If the injunction is content, neutral, it must burden no more speech than is necessary to achieve an important government interest.

Question 34

Speech restrictions on government property - limited public forums

Answer 34

Speech and assembly can be more broadly regulated in limited public forms and non-public forms. Limited public forms are government forums not historically open generally for speech and assembly, but opened for specific speech activity. For example, a school gym open to host it a be on a particular community issue, or a public university funding of student publications. 

Question 35

Speech restrictions on government property - Nonpublic forums

Answer 35

Non-public forms are government property, not historically open generally for speech and assembly, and not held open for specific speech, activities, such as military bases, or government workplaces.

Question 36

Speech restrictions on government property - in BOTH limited and non - public forums

Answer 36

The government can regulate speech in such forms to reserve the forum for its intended use. In such locations, regulations are valid if they are: viewpoint neutral, and reasonably related to a legitimate government purpose. If the regulation is viewpoint based, it will still be subject to strict scrutiny. 

Question 37

Speech restrictions in public schools - generally

Answer 37

Generally, public primary and secondary schools and school sponsored activities in the schools are not public forms. Therefore speech and association can be reasonably regulated in them to serve the schools educational mission. 

Question 38

Speech restrictions in public schools - personal student speech on campus

Answer 38

A student’s own personal speech, meaning their expression of themselves as an individual, on campus cannot be censored absent evidence of substantial disruption.

Exception: speech promoting illegal drug use does not require showing of disruption or credible threat of disruption. 

Question 39

Speech restrictions in public schools - personal student speech off campus

Answer 39

When the students personal speech occurs off-campus, it will be harder to sensor. Schools will be limited to restricting speech to prevent cheating, bullying, threats, and other speech where pedagogical or safety interests clearly outweigh the speech of students as private citizens.

Question 40

Speech restrictions in public schools - school speech

Answer 40

Restrictions on speech related to the schools, teaching, like speech by school faculty and students as part of curricular or extracurricular activities, must be reasonably related to legitimate pedagogical concerns 

Question 41

Speech in public employment - restraints on speech activities of government employees - generally

Answer 41

Under the first amendment, speech generally cannot be regulated or punished based on the content of the speech, unless the regulation or punishment is necessary to achieve a compelling government interest. However, special rules apply when the government seek to punish a government employee for speech or speech related activities. 

Question 42

Speech in public employment - restraints on speech activities of government employees - unprotected employee speech

Answer 42

If a government employee speech, while at work involves a matter of private concern, the employer can punish the employee if the speech was disruptive of the workplace. A government employer may also punish a public employees speech whenever the speech is made on the job and pursuant to the employees, official duties, even if the speech touches on a matter of public concern. There is no First Amendment protection in either situation.

Question 43

Speech in public employment - restraints on speech activities of government employees - protected employee speech

Answer 43

If the speech is on a matter of public concern, but is not made pursuant to the employees official duties, the courts will use a balancing test. The courts must balanced the value of the speech against the governments interest in the efficient operation of the workplace. For speech on matters of private concern outside the workplace, the test is unclear, but this speech appears protected absent detrimental effect on the workplace.

Question 44

Speech in public employment - restraints on speech activities of government employees - participation in political campaigns

Answer 44

The federal government may prohibit federal executive branch employees from taking an active part and political campaign.

Question 45

Speech in public employment - restraints on speech activities of government employees - bans on receiving honoraria

Answer 45

A provision banning government employees from accepting an honorarium for making speeches, writing articles, or making appearances was held to violate the first amendment when applied to “rank and file” employees. such a rule to speech within a broad category of expression by a mass number of potential speakers, and so can be justified. Only if the government can show that the employees and their political audiences rights are outweigh by the necessary impact that speech would have actual operation of the government 

Question 46

Speech in public employment - restraints on speech activities of government employees - patronage

Answer 46

A public employee may not be hired, fired, promoted, transferred, etc. based on party, affiliation or political views, except as to policy making positions, we party affiliation and views are relevant.

Question 47

Speech in public employment - loyalty oaths - generally

Answer 47

The government can require employees to take loyalty, oaths, so long as the oats are not over broad or vague.

Question 48

Speech in public employment - loyalty oaths - overbreadth

Answer 48

An oath cannot prohibit membership in the communist party or require extension from advocating, overthrow the government as an abstract doctrine.

Question 49

Speech in public employment - loyalty oaths - oaths

Answer 49

An oath requiring public employees to support the constitution and oppose the unlawful overthrow of the government is valid, but an oath requiring public employees to support the flag is invalid.

Question 50

Speech in public employment - disclosure of associations

Answer 50

The government may not force disclosure of every organizational membership or affiliation and exchange for a government employment or other benefit. It can only inquire into those activities that are relevant to the employment or benefits, saw. Even here, however, a person can exercise their fifth amendment right to remain silent if the disclosure would be incriminating.

Question 51

Void for vagueness doctrine

Answer 51

If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, for example, a ban on “opprobrious and offensive words”, it may violate the due process clause. This principle is applied more strictly when First Amendment activity is involved. 

Question 52

overbroad regulation invalid - generally

Answer 52

Regulation of speech or speech related conduct will be invalidated as over broad if it punishes substantially more speech than necessary

Question 53

overbroad regulation invalid - effect of overbroad regulation

Answer 53

An over broad regulation is facially invalid (meaning it may not be enforced against anyone, not even a person engaging an activity that is not constitutionally protected) unless court has limited construction of the regulation so as to remove the threat to constitutionally protected expression. Because this remedy is severe, the court has noted that invalidation is only justified if the unconstitutional applications are realistic and substantially disproportionate to the statute, lawful sweep. If the regulation is not substantially over broad, it can be enforced against persons engaging in activities that are not constitutionally protected 

Question 54

Prior restraints - generally

Answer 54

Prior restraints are court orders or administrative systems that prevent speech before it occurs, rather than to punish it afterwards. For example, licensing restrictions and injunctions. They are not favored, and are rarely allowed, especially if they are content based. There isn’t any special test for prior restraints: content based ones are subject to strict scrutiny, and neutral ones are subject to intermediate scrutiny, but the government burden and justifying a prior restraint is heavy.

Always ask whether there is some special societal harm that justifies the restraint. 

Question 55

Prior restraints - procedural safeguards

Answer 55

To be valid, a system, for prior restraints must provide the following safeguards:

The standards must be narrowly drawn, reasonable, and definite

The injunction must promptly be sought, if the restraining body wishes to restrain the dissemination of certain speech, and

There must be prompt and final judicial determination of the validity of the restraint, for example, a review of the permit denial.

A number of other cases, especially in the area of movie censorship, required at a government bear the burden of proving that the speech involved is unprotected. 

Question 56

Prior restraints - cannot give officials unfettered discretion

Answer 56

A regulation cannot give officials broad discretion over speech issues. There must be defined standards for applying the law. Therefore, if a statute gives licensing officials unbridled discretion, it is void on its face and speakers don’t even need to apply for a permit.

If the licensing statute include standards, a speaker cannot ignore the statute, they must seek a permit, and if it is denied, they can challenge the denial on first amendment grounds. 

Question 57

Prior restraints - obscenity cases - seizures of books and films

Answer 57

Seizures of a single book or film, may be made with a warrant based on probable cause, although if the item is available for sale to the public, a police officer may purchase a book or film to use as evidence without a warrant. Large scale seizures must be proceeded by a full scale adversary, hearing and a judicial determination of obscenity. 

Question 58

Prior restraints - obscenity cases - movie censorship

Answer 58

The court has found that time delays incident to censorship, are less burdensome on movies than other forms of expression. So, the court allows, the government to establish censorship boards to screen movies before they are released, as long as the procedural safeguards discussed above are followed.


Question 59

Prior restraints - obscenity cases - burden of government

Answer 59

When the government adopts a content based prior restraint of speech, the government has the burden of proving that the restriction is narrowly tailored to achieve a compelling interest or that the speech is unprotected.

Question 60

Freedom of the press - generally

Answer 60

Generally, the press along with corporations, unions, and expressive associations, like lobbying groups, has no greater First Amendment freedom than does a private citizen. They are treated just like an individual speaker. Thus the concepts already discussed apply. 

Question 61

Freedom of the press - publication of truthful info

Answer 61

Generally, the press has a right to publish truthful information regarding a matter of public concern. Content based restrictions on the press are subject to strict scrutiny.

Question 62

Freedom of the press - access to trials

Answer 62

The first amendment guarantees the public and press a right to attend criminal, and probably civil trials. But the right may be outweighed by an overwriting interest, stated in the trial, judges findings, for example, to protect children who are victims of sex offenses. The right includes the right to be present at voir dire and other pretrial proceedings, unless the judge makes specific findings that closure was narrowly tail to preserve a higher value.

Question 63

Freedom of the press - requiring press to testify before grand jury

Answer 63

Members of the press may be required to testify before grand juries

Question 64

Freedom of the press - interviewing prisoners

Answer 64

The first amendment doesn’t give journalist a right to interview specified prisoners of their choice or to inspect prison grounds.

Question 65

Freedom of the press - business regulation or tax

Answer 65

The press and broadcasting companies can be subjected to general business regulations or taxes, but cannot be targeted for special regulations or taxes. A tax or regulation impacting the press or a sub part of the press cannot be based on the content of the publication, absent a compelling justification.

Question 66

Freedom of the press - broadcasting regulations - generally

Answer 66

Radio, and television broadcasting may be more closely regulated than the press. The government may protect viewers and listeners from indecent speech over the airwaves because of the uniquely pervasive and accessible nature of broadcasting. The government may also manage access and ownership of broadcast spectrum to promote the public interest in receiving information.

Question 67

Freedom of the press - broadcasting regulations - fairness doctrine

Answer 67

The first amendment doesn’t require broadcasters to accept political advertisements. However, a radio station may constitutionally be required to offer free broadcasting time to certain individuals. For example, opponents of political candidates or views endorsed by the station or person who have been personally attacked in a broadcast.

Question 68

Freedom of the press - internet and cable tv regulation

Answer 68

Cable and Internet regulations get strict scrutiny if they are content-based and intermediate scrutiny if they are content neutral.

Question 69

Government speech - generally

Answer 69

Government speech can’t be challenged as violating the free speech clause of the first amendment. The free speech clause restricts government regulation of private speech, it does not require the government to aid private speech or restrict the government from expressing its own views. Absent, some other constitutional, limitation, such as the establishment clause or equal protection clause, the government is generally free to voice its opinions. Likewise, the government can find private speech that further its views while refusing to find other private speech. because government speech doesn’t implicate the first amendment, it isn’t subject to the various levels of scrutiny that applied government regulation of private speech. Generally, government speech and government funding of speech will be upheld if it is rationally related to a legitimate interest. 

Question 70

Government speech - limitations - compelling private speech

Answer 70

The freedom to speak includes the freedom, not to speak. Thus the government generally cannot require people to salute the flag or display other messages with which they disagree.

Question 71

Government speech - limitations - compelling private speech - mandatory financial support

Answer 71

Although the government cannot compel a person to express a message with which the person disagrees, the government may tax people and use the revenue to express a government message, even if the taxpayer disagrees with the message. For example, a beef producer can be required to pay an assessment that is used to support the government sponsored, generic advertising of beef. If the producer thinks generic advertising is a waste of money.

However, people can’t be compelled to subsidize private messages with which they disagree. For example, although lawyers may be compelled to pay bar dues, non-union members cannot be compelled to pay union dues because the money may be used to support political views with which the non-union members disagree.

Question 72

Government speech - limitations - compelling private speech - exception: university activity fee

Answer 72

The government can require public university students to pay a student activity fee, even if the fee is used to support political and ideological speech by student groups whose beliefs are offensive to the student, as long as the program is viewpoint neutral.

Question 73

Government speech - limitations - compelling private speech - public accommodation laws

Answer 73

Public accommodation laws, which prohibit certain forms of discrimination when businesses offer goods and services to the public, sweep too broadly when they compel speech. States cannot use public accommodation statutes to deny speakers the right to choose the content of their own messages.

Question 74

Government speech - limitations - spending programs

Answer 74

Spending programs may not impose conditions that limit the first amendment activities of fund recipients outside the scope of the spending program itself. For example, the government cannot require recipients of federal funds given to organizations to combat HIV to agree in their funding documents that they oppose prostitution. 

Question 75

Government speech - limitations - government funding of private speech - generally

Answer 75

When the government chooses to fund private messages, for example, college group newsletters, a generally must do so on a viewpoint neutral basis.

Question 76

Government speech - limitations - government funding of private speech - exception: funding of the arts

Answer 76

From a financial standpoint, the government cannot fund all artist, and choosing which it will fund and inevitably must be based on the content of the art.

Question 77

Government speech - limitations - not all speech activity on government property is governmental speech

Answer 77

Determining whether speech, particularly speech that occurs on government property, is government speech requires a holistic approach.

While this review is context driven, and not mechanical, some factors that may be relevant include: the history of the expression issue, the public’s likely perception as to who is speaking (meaning the government or a private person) and the extent to the government has shaped the message.

Question 78

Government speech - trademark protection

Answer 78

Trademark protection is not government speech, but rather it’s private speech. Thus, content based restrictions on trademark are subject to strict scrutiny.

Question 79

Freedom of association

Answer 79

Although the freedom of association is not mentioned explicitly in the constitution, it is clearly implied from the rights that are explicitly noted. Pursuant to this freedom, the government may neither prohibit politically unpopular groups nor undue 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. But a neutral regulation that incidentally burdens association is only subject to intermediate scrutiny.

Question 80

Electoral process - generally

Answer 80

Laws regulating elections might impact on the first amendment freedoms of speech, assembly, and association. The court uses a balancing test to determine whether a regulation of the electoral process is valid:

If the restriction on first amendment activity is severe, it must be narrowly tailored to achieve a compelling interest, but if the restriction is reasonable and nondiscriminatory, it will generally be upheld.

Question 81

Electoral process - limitations on contributions

Answer 81

A statute limiting election campaign contributions is subject to intermediate scrutiny, it must be closely drawn to match a sufficiently important interest. To prevent corruption or the appearance of corruption, laws may limit the amount of money that a person, group, or corporation can contribute to a political candidate. But the government may not limit the amount of money that may be spent to support or oppose a ballot referendum. 

Question 82

Electoral process - limitations on contributions - aggregate contribution limits unconstitutional

Answer 82

The government cannot limit the aggregate amount, one person or entity, contributes to political candidates or committees during an election, even though it can limit the amount given to a single candidate. Aggregate limits violate the first amendment protection of political speech because unlike individual contributions, they do not further the governments interest in preventing quid pro quo corruption, or the appearance of such, and they seriously restrict participation in the democratic process. 

Question 83

Electoral process - limitations on expenditures

Answer 83

Laws may not limit the amount that a candidate spends on a political campaign. Neither may the government limit the amount that a person spends to get a candidate, elected, as long as the expenditures are not contributed directly to the candidate nor coordinated with those of the candidate, that is the expenditures must be independent of the candidate and not disguised contributions.

Question 84

Electoral process - compare: regulations of core political speech

Answer 84

Regulation of core political speech, for example, electioneering or distributing campaign, literature, rather than regulation of the process surrounding an election, will only be upheld if it satisfies strict scrutiny.

Under the standard, a state may ban personal solicitation of campaign funds by judicial candidates because such a band advances the states compelling interest in preserving public confidence in the integrity of the judiciary. And concerning a political issue will be considered protected core political speech unless it’s susceptible of no reasonable interpretation other than one that is an appeal to vote for or against the particular candidate.