Freedom of Speech + Assembly

Question 1

What is speech?

Answer 1

Words, symbols, and expressive conduct

Question 2

list (2)

expressive conduct is speech when:

Answer 2

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

Question 3

What is unprotected speech

Answer 3

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

Question 4

list (2)

Incitement (speech) can be censored if:

Answer 4

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

Question 5

Fighting words can be censored if:

Answer 5

likely to incite immediate physical retaliation in an average person

annoying words wont do

Question 6

True threats can be censored if:

Answer 6

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

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

Question 7

Is obscene speech protected?

Answer 7

No

Question 8

list (3)

Speech is obscene if:

Answer 8

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?

Question 9

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

Answer 9

NO - protected under 1A

Question 10

Can cartoons sexualizing minors be banned?

Answer 10

No

Question 11

What must P show for defamation:

Answer 11

actual malice

Question 12

list (2)

How does P prove actual malice

Answer 12

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 reg flags that info in statement was in fact false

Question 13

list (2)

who are public officials

Answer 13

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)

Question 14

who are public figures

Answer 14

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

Question 15

list (3)

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

Answer 15

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

Question 16

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

Answer 16

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

Question 17

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

Answer 17

1A does not appy

Question 18

Commercial speech is

(iow: what falls under commercial speech)

Answer 18

ads, promotions, brand marketing etc

Question 19

Commercial speech is not protected if

Answer 19

It is:

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

Question 20

List (3)

Regulations on commercial speech are upheld if

What test?

Answer 20

Intermediate scrutiny test

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

Question 21

General speech restrictions are categorized as:

Answer 21

Content based

or

content neutral

Question 22

What are content based regulations

Answer 22

Restriction based on the message (content)

Question 23

What are content neutral regulations

Answer 23

Restriction regardless of the message

Question 24

Content based regulations are subject to what test

Answer 24

Strict Scrutiny

Question 25

Content **neutral** regulations are subject to what test

Answer 25

Intermediate scrutiny

Question 26

What is the two prong IS test for **content neutral** clause?

Answer 26

1. advance **impt** interest **unrelated** to suppression of speech 2. cant **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 \*\**

Question 27

Speech restrictions on gov't property depend on:

Answer 27

What type of gov't property *public forum, designated public forum limited public forum, or nonpublic forum*

Question 28

public forum

Answer 28

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

Question 29

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

Answer 29

public forum

Question 30

designated public forum

Answer 30

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

Question 31

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

Answer 31

designated public forum

Question 32

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

Answer 32

necessary to achieve a compelling interest

Question 33

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

Answer 33

1. narrowly tailed **-AND-** 2. leave open **alternative** mean of communication

Question 34

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

Answer 34

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

Question 35

how are **injunctions** against speech in public forums treated

Answer 35

same as other speech restrictions CB → SS CN → IS

Question 36

limited public forum

Answer 36

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)*

Question 37

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

Answer 37

limited public forum

Question 38

nonpublic forum

Answer 38

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)*

Question 39

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

Answer 39

nonpublic forum

Question 40

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

Answer 40

If regulation is CB or CN and: 1. **View-point based** → SS 2. **View-point neutral** → reasonably related to a **legit** govt purpose

Question 41

Speech restricted in pubic schools applies to which grades?

Answer 41

primary and secondary **NOT** public universities (use forum doctrine)

Question 42

Personal student speech **on** campus is restricted if: drugs?

Answer 42

causes substantial disruption drugs dont need any showing of disruption can be outright banned

Question 43

Personal student speech **off** campus restricted?

Answer 43

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

Question 44

Restriction related to school's teaching restricted if:

Answer 44

**reasonably related** to **legitimate** pedagogical concerns *includes students speaking as part of an activity, band playing, cheerleading etc*

Question 45

# list (2) Is it protected speech if it's by a **public employee** regarding **private** concern ?

Answer 45

1. **No** if it is **disruptive to** work environment 2. Employer can punish if employee (1) speaks during job and (2) pursuant to **employees official duties …** even if speech is about a **matter of _public_ concern**

Question 46

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

Answer 46

use a **balancing test** value of speech vs. effect on workplace environment

Question 47

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

Answer 47

unclear test - appears protected

Question 48

Question 49

Question 50

Question 51

Prior restraints that **prevent** speech ***before*** it occurs

Answer 51

**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*

Question 52

# list (3) To have a valid **prior restraint** need:

Answer 52

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