Freedom of Speech & Assembly

Question 1

What constitutes as speech under 1A?

Answer 1

Includes words, symbols, and expressive conduct. Expressive conduct is conduct that is (a) intended to convey a message and (b) is reasonably likely to be perceived as conveying a message (e.g. flag burning, dancing)

Question 2

What are the 3 categories of unprotected speech? the 2 categories of partially protected speech?

Answer 2

Unprotected: incitement, fighting words (and true threats), obscenity
Partially protected: defamation, commercial speech

Question 3

What constitutes incitement, i.e. is not protected by 1A?

Answer 3

Speech is considered incitement and does not receive 1A protection if (a) it is intended to produce imminent lawless action and (b) is likely to produce such action.

Question 4

What constitutes fighting words, i.e. does not receive 1A protection?

Answer 4

Fighting words = personally abusive words likely to invite immediate physical retaliation

Also, true threats, i.e. words intended to convey to someone a serious threat of bodily harm.

Note: statutes that prohibit fighting words on the exam are typically vague or overbroad (e.g. cannot ban just one viewpoint of fighting words/covering more than narrow definition)

Question 5

What constitutes obscenity, i.e. has no 1A protection?

Answer 5

Speech that depicts or describes sexual conduct, and as a whole:

• appeals to the prurient interest in sex, using a contemporary community standard
• is patently offensive under contemporary community standards
• lacks serious value, using a national reasonable person standard

Note: mere nudity, soft-core porn, dirty words are not obscene

Question 6

In what cases does defamatory speech get 1A protection? What does the 1A require?

Answer 6

When defamatory speech is about a public official, public figure, or matter of public concern, then the P must prove falsity and some degree of fault.

Public official/figure – P must show actual malice.

Private figure + public concern - P must show actual malice to get punitive or presumed damages, but can get actual by showing negligence

Question 7

What is the “actual malice” standard? Which defamation P’s must show it to get damages?

Answer 7

Actual malice = P must show by clear & convincing evidence that D made statement with (a) knowledge that it was false OR (b) reckless disregard to its truth or falsity.

Public figures and officials must show actual malice. Private P’s suing re a statement of public concern must show actual malice to get punitive or presumed damages.

Question 8

Who counts as a public official for purposes of defamation suits?

Answer 8

Public official =(1) holding or running for elective office (2) public employees in positions of public important (e.g. cop, principal, prosecutor)

Question 9

Who are public figures for purposes of defamation suits?

Answer 9

Public figures = people who have (1) assumed prominence in society (2) achieved pervasive fame and notoriety or (3) thrust themselves into a particular public matter to influence its resolution

Question 10

When P sues for IIED, what degree of fault must they prove on the part of D?

Answer 10

If P is a public official, public figure, or statement is re a matter of public concern then – like in defamation cases – P must show actual malice in order to recover damages.

Question 11

What types of commercial speech are/are not protected under the 1A?

Answer 11

Commercial speech is NOT protected if it is (a) false (b) misleading or (c) about illegal products/services.

Question 12

What standard of review do we apply to protected commercial speech?

Answer 12

Form of intermediate scrutiny - i.e. the regulation limiting the speech must serve a substantial govt interest, directly advance that interest, and is narrowly tailored to serve that interest.

Note: narrowly tailored does not mean least restrictive - just needs to be a reasonable fit.

Question 13

What standard of review do we apply to regulations restricting speech?

Answer 13

When a regulation is content-based – i.e. based on subject matter or viewpoint – then we apply strict scrutiny. (and these are presumptively unconstitutional)

When a regulation is content-neutral (i.e. general limitation on time, place, manner), then we apply intermediate scrutiny. Therefore, the regulation must serve an important govt interest and must not burden substantially more speech than necessary.

Question 14

How do we assess whether govt restrictions of speech made on govt property are valid under the 1A?

Answer 14

First, figure out which type of forum it is: traditional public forum, designated public forum, limited public forum, or nonpublic forum.

Traditional/designated public forums: regular rules apply, i.e. if the regulation is content-based then strict scrutiny applies, if the regulation is content-neutral then intermediate scrutiny apples (which here also means that there must be alternative channels of communication left open).

Limited public forum/nonpublic forum: similar rules but difference is based on whether it is viewpoint based NOT content-based. So if it’s viewpoint based, then it gets strict scrutiny. If its non viewpoint based (but could be subject matter based) then gets intermediate scrutiny.

Question 15

What are the 4 types of public forums and definitions for each?

Answer 15

1. Traditional public forum - public property that has historically been open for speech (streets, sidewalks, public parks)
2. Designated public forum - public property not historically open for speech but designate as such for limited basis (e.g., town hall open for use by groups)
3. Limited public forum - public forums not historically open for speech generally but open for specific speech activity (e.g. school gym open for debate on certain issue)
4. Nonpublic forum - govt property not historically open for speech and not held open for speech (military bases, govt workplace)

Question 16

When can speech be regulated in public schools?

Answer 16

In general, public primary and secondary schools are not considered public fora, so speech can be regulated in them to reasonably serve the school’s educational mission.

(a) student’s own personal speech on campus - cannot be censored absent showing up substantial disruption
(b) person student speech off campus - cannot be censored unless regulation is made to prevent cheating, bullying, threats, safety interests
(c) school speech (including speech by faculty/students as part of class) - censorship must be reasonably related to pedagogical concerns

Question 17

What rules apply to speech by govt employees?

Answer 17

• govt employees speech re matters of private concern at work can only be censored if its disruptive of the work place
• govt employees speech re matters of public concern at work - balancing test - balance value of speech against govt interest in efficient workplace
  Note: if employee speech is made pursuant to official duties (even if its re matter of public concern) - then employer can punish
• employee speech re private concern outside the workplace - protected absent detrimental effect

Question 18

Other than failing the applicable level of review (e.g. strict scrutiny), what other 3 reasons may a regulation on speech be invalidate for?

Answer 18

1. void for vagueness - i.e. doesn’t give proper notice of what is prohibited (e.g., statutes that give unfettered discretion)
2. overbroad - i.e. punishes substantially more speech than necessary (sort of part of scrutiny tho)
3. prior restraints - i.e. court orders/admin that prevents speech before it occurs (e.g. licensing, injunctions) - only justified in rare cases, with special societal harm at issue

Question 19

What safeguards must be in place for a prior restraint to be valid?

Answer 19

1. standards narrowly drawn, reasonable, definite
2. injunction must promptly be sought
3. must be prompt and final judicial determination of the validity of restraint