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