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Aa. Con Law > Freedom of Speech + Assembly > Flashcards

Freedom of Speech + Assembly Flashcards

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1
Q

What is speech?

A

Words, symbols, and expressive conduct

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2
Q

list (2)

expressive conduct is speech when:

A
  1. it is inherently expressive -OR-
  2. the conduct is intended to convey a message and reasonably likely to be perceived as conveying a message
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3
Q

What is unprotected speech

A

categories of speech that are speech but NOT protected under 1A

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4
Q

list (2)

Incitement (speech) can be censored if:

A
  1. Intended to produce an imminent lawless action and
  2. Likely to produce such action
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5
Q

Fighting words can be censored if:

A

likely to incite immediate physical retaliation in an average person

annoying words wont do

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6
Q

True threats can be censored if:

A

words that have the intent of conveying a serious threat of bodily harm to someone

** even if don’t intend to carry out **

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7
Q

Is obscene speech protected?

A

No

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8
Q

list (3)

Speech is obscene if:

A
  1. appeals to prurient interest in sex - using a contemporary community standard
    1. aka is the speech trying too hard to turn you on
  2. is patently offensive - using contemporary community standards -AND-
  3. lacks serious value - using nat’l reasonable person standard contemporary community standard aka is it grossly offensive to local community?
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9
Q

Are mere nudity, soft-core porn, and dirty words obscene?

A

NO - protected under 1A

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10
Q

Can cartoons sexualizing minors be banned?

A

No

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11
Q

What must P show for defamation:

A

actual malice

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12
Q

list (2)

How does P prove actual malice

A

Must show through clear and convincing evidence that defamatory statement was made with:

  1. knowledge that it was false OR
  2. reckless disregard as to its truth or falsity aka red flags that info in statement was in fact false
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13
Q

list (2)

who are public officials

A
  1. ppl holding or running for elective office at any level -AND-
  2. public employees in position of public importance (prosecutors, police officers, schools principle)
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14
Q

who are public figures

A

people who

  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
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15
Q

list (3)

If defamatory statement is about public officials, P must show:

A
  1. Defamation elements +
  2. falsity +
  3. some degree of fault
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16
Q

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

A
  1. Actual damages → Negligence
  2. Punitive/Presumed damages → Actual Malice (made statements in knowledge of falsity or reckless disregard of truth)
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17
Q

Does 1A apply?

If P is a private figures and defamatory speech about involves a matter or private concern,

A

1A does not appy

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18
Q

Commercial speech is

(iow: what falls under commercial speech)

A

ads, promotions, brand marketing etc

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19
Q

Commercial speech is not protected if

A

It is:

  1. false
  2. misleading or
  3. about illegal products
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20
Q

List (3)

Regulations on commercial speech are upheld if

What test?

A

Intermediate scrutiny test

  1. Serves a substantial govt interest
  2. Directly advances that interest AND
  3. is narrowly tailored to serve that interest
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21
Q

General speech restrictions are categorized as:

A

Content based

or

content neutral

22
Q

What are content based regulations

A

Restriction based on the message (content)

23
Q

What are content neutral regulations

A

Restriction regardless of the message

24
Q

Content based regulations are subject to what test

A

Strict Scrutiny

25
Q

Content neutral regulations are subject to what test

A

Intermediate scrutiny

26
Q

What is the two prong IS test for content neutral regulations on speech?

A
  1. regulation advances impt interest unrelated to suppression of speech
  2. 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 **

27
Q

Speech restrictions on gov’t property depend on:

A

What type of gov’t property

public forum, designated public forum limited public forum, or nonpublic forum

28
Q

public forum

A

public property that has historically been open to speech-related activities

29
Q

public property that has historically been open to speech-related activities is called a

A

public forum

30
Q

designated public forum

A

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

31
Q

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

A

designated public forum

32
Q

If a speech regulation is subject to SS, this means that the regulation must be

A

necessary to achieve a compelling interest

33
Q

If a speech regulation is subject to IS, this means that the regulation must be

A
  1. narrowly tailed -AND-
  2. leave open alternative mean of communication
34
Q

In a public forum or designated public forum, scrutiny used is:

A
  1. Content-based → SS
  2. Content-neutral → IS
    1. narrowly tailed -AND-
    2. leave open alternative mean of communication
35
Q

how are injunctions against speech in public forums treated

A

same as other speech restrictions

CB → SS

CN → IS

36
Q

limited public forum

A

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)

37
Q

gov’t forums not historically open generally for speech and assembly BUT opened for specific speech activity

A

limited public forum

38
Q

nonpublic forum

A

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)

39
Q

gov’t property NOT historically open generally for speech and assembly and NOT held open for specific speech activities

A

nonpublic forum

40
Q

In a limited public and nonpublic forum, scrutiny used is:

A

If regulation is CB or CN and:

  1. View-point based → SS
  2. View-point neutral → reasonably related to a legit govt purpose
41
Q

Speech restricted in pubic schools applies to which grades?

A

primary and secondary NOT public universities (use forum doctrine)

42
Q

Personal student speech on campus is restricted if:

drugs?

A

causes substantial disruption

drugs dont need any showing of disruption can be outright banned

43
Q

Personal student speech off campus restricted?

A

It depends

if it has to do with. cheating, bullying, threats etc restricted

44
Q

Restriction related to school’s teaching restricted if:

A

reasonably related to legitimate pedagogical concerns

includes students speaking as part of an activity, band playing, cheerleading etc

45
Q

list (2)

Is it protected speech if it’s by a government employee regarding private concern ?

A

NO if it is disruptive to work environment

  • Employer can punish employee if:
  1. Speech is made on the job and
  2. Speech is pursuant to employee’s official duties … even if speech is about a matter of public concern
46
Q

If speech is a matter of public concern but not made pursuant to employee’s duties:

A

use a balancing test

value of speech vs. effect on workplace environment

47
Q

If speech is a matter of private concern and not made pursuant to employee’s duties:

A

unclear test - appears protected

48
Q
A
49
Q
A
50
Q
A
51
Q

Prior restraints that prevent speech before it occurs

A

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

52
Q

list (3)

To have a valid prior restraint need:

A
  1. safeguard is narrowly drawn, reasonable, and definite
  2. injunction must be properly sought
  3. must be a prompt and final judicial determination

Aa. Con Law (15 decks)

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