Freedom of Speech + Assembly Flashcards
What is speech?
Words, symbols, and expressive conduct
list (2)
expressive conduct is speech when:
- it is inherently expressive -OR-
- the conduct is intended to convey a message and reasonably likely to be perceived as conveying a message
What is unprotected speech
categories of speech that are speech but NOT protected under 1A
list (2)
Incitement (speech) can be censored if:
- Intended to produce an imminent lawless action and
- Likely to produce such action
Fighting words can be censored if:
likely to incite immediate physical retaliation in an average person
annoying words wont do
True threats can be censored if:
words that have the intent of conveying a serious threat of bodily harm to someone
** even if don’t intend to carry out **
Is obscene speech protected?
No
list (3)
Speech is obscene if:
- appeals to prurient interest in sex - using a contemporary community standard
- aka is the speech trying too hard to turn you on
- is patently offensive - using contemporary community standards -AND-
- lacks serious value - using nat’l reasonable person standard contemporary community standard aka is it grossly offensive to local community?
Are mere nudity, soft-core porn, and dirty words obscene?
NO - protected under 1A
Can cartoons sexualizing minors be banned?
No
What must P show for defamation:
actual malice
list (2)
How does P prove actual malice
Must show through clear and convincing evidence that defamatory statement was made with:
- knowledge that it was false OR
- reckless disregard as to its truth or falsity aka red flags that info in statement was in fact false
list (2)
who are public officials
- ppl holding or running for elective office at any level -AND-
- public employees in position of public importance (prosecutors, police officers, schools principle)
who are public figures
people who
- assumed roles of prominence in society
- achieved pervasive fame and notoriety -OR-
- thrust themselves into particular public controversies to influence their resolution
list (3)
If defamatory statement is about public officials, P must show:
- Defamation elements +
- falsity +
- some degree of fault
If P is a private figure and defamatory speech about them involves a matter or public concern,
1) What does the P need to show to recover
2) What damages does the P recover
- Actual damages → Negligence
- Punitive/Presumed damages → Actual Malice (made statements in knowledge of falsity or reckless disregard of truth)
Does 1A apply?
If P is a private figures and defamatory speech about involves a matter or private concern,
1A does not appy
Commercial speech is
(iow: what falls under commercial speech)
ads, promotions, brand marketing etc
Commercial speech is not protected if
It is:
- false
- misleading or
- about illegal products
List (3)
Regulations on commercial speech are upheld if
What test?
Intermediate scrutiny test
- Serves a substantial govt interest
- Directly advances that interest AND
- is narrowly tailored to serve that interest
General speech restrictions are categorized as:
Content based
or
content neutral
What are content based regulations
Restriction based on the message (content)
What are content neutral regulations
Restriction regardless of the message
Content based regulations are subject to what test
Strict Scrutiny
Content neutral regulations are subject to what test
Intermediate scrutiny
What is the two prong IS test for content neutral regulations on speech?
- regulation advances impt interest unrelated to suppression of speech
- regulation cannot substantially burden speech more than necessary to meet govt interest - time, place, manner on how speech can occur
**NOTE: regulation does not have to be a perfect fit (SS) but close **
Speech restrictions on gov’t property depend on:
What type of gov’t property
public forum, designated public forum limited public forum, or nonpublic forum
public forum
public property that has historically been open to speech-related activities
public property that has historically been open to speech-related activities is called a
public forum
designated public forum
public property that HAS NOT been historically open to speech-related activities BUT which gov’t has opened for such activities on a permanent or limited basis by practice or policy
public property that HAS NOT been historically open to speech-related activities BUT which gov’t has opened for such activities on a permanent or limited basis by practice or policy is called a
designated public forum
If a speech regulation is subject to SS, this means that the regulation must be
necessary to achieve a compelling interest
If a speech regulation is subject to IS, this means that the regulation must be
- narrowly tailed -AND-
- leave open alternative mean of communication
In a public forum or designated public forum, scrutiny used is:
- Content-based → SS
- Content-neutral → IS
- narrowly tailed -AND-
- leave open alternative mean of communication
how are injunctions against speech in public forums treated
same as other speech restrictions
CB → SS
CN → IS
limited public forum
gov’t forums not historically open generally for speech and assembly BUT opened for specific speech activity (school gym used to host a debate for a community issue)
gov’t forums not historically open generally for speech and assembly BUT opened for specific speech activity
limited public forum
nonpublic forum
gov’t property NOT historically open generally for speech and assembly and NOT held open for specific speech activities (ie military bases or gov’t workplaces)
gov’t property NOT historically open generally for speech and assembly and NOT held open for specific speech activities
nonpublic forum
In a limited public and nonpublic forum, scrutiny used is:
If regulation is CB or CN and:
- View-point based → SS
- View-point neutral → reasonably related to a legit govt purpose
Speech restricted in pubic schools applies to which grades?
primary and secondary NOT public universities (use forum doctrine)
Personal student speech on campus is restricted if:
drugs?
causes substantial disruption
drugs dont need any showing of disruption can be outright banned
Personal student speech off campus restricted?
It depends
if it has to do with. cheating, bullying, threats etc restricted
Restriction related to school’s teaching restricted if:
reasonably related to legitimate pedagogical concerns
includes students speaking as part of an activity, band playing, cheerleading etc
list (2)
Is it protected speech if it’s by a government employee regarding private concern ?
NO if it is disruptive to work environment
- Employer can punish employee if:
- Speech is made on the job and
- Speech is pursuant to employee’s official duties … even if speech is about a matter of public concern
If speech is a matter of public concern but not made pursuant to employee’s duties:
use a balancing test
value of speech vs. effect on workplace environment
If speech is a matter of private concern and not made pursuant to employee’s duties:
unclear test - appears protected
Prior restraints that prevent speech before it occurs
RARELY ALLOWED
CB → SS; CN → IS
but govt has a heavy burden to justify a prior restraint
_Example_: injunction allowed to prevent releasing D-day invasion plans vs. injunction not allowed to prevent release of Panama papers
list (3)
To have a valid prior restraint need:
- safeguard is narrowly drawn, reasonable, and definite
- injunction must be properly sought
- must be a prompt and final judicial determination
