Freedom of Speech (Module 12) Flashcards
Speech/Expressive Conduct Definition
Speech includes words, symbols, and expressive conduct
Expressive conduct is any kind of conduct is either inherently expressive or conduct that is:
1) intended to convey a message
2) rxbly likely to be perceived as conveying a message
Incitement (Unprotected Speech)
1) intended to produce imminent lawless action
2) likely to produce such action
Fighting Words/True Threats (Unprotected Speech)
Fighting words: personally abusive words that are likely to incite immediate physical retaliation in an average person
True Threats: words intended to convey to someone a serious threat of bodily harm
1) speaker must subjectively understand their threats were of a threatening nature but mental state of recklessness is sufficient
Statutes censoring cannot be view-point based
Obscenity (Unprotected Speech)
Obscene speech describes or depicts sexual conduct (note: statute must specify the specific act) that taken AS A WHOLE, by the average person:
1) appeals to the prurient interest; contemporary community (or statewide) standard
2) is patently offensive under contemporary community (or statewide) standards
3) lack serious artisitic, political, literary, or scientific value using a national rxble person standard
Miscellaneous Obscenity Notes
Private possession of obscenity in the home cannot be punished (but sale/distrib can still be punished)
Visual depictions of CP is never OK, but it must be actual CP and not simulated or its of-age actors portraying children
Zoning regs can limit the location/size of adult entertainment places if it’s designed to protect children from exposure etc. but can’t ban them altogether
Defamatory Speech - Public Officials/Figures & Matters of Public Concern
Partially protected; can be subject to tort liability
P must prove:
1) falsity
2) actual malice (knowledge of falsity reckless disregard for truth)
Public officials: holding/running for office, public employees in positions of public importance
Public Figures: assumed roles of prominence in society, achieved fame/notoriety, or thrust themselves into particular public controversey
Matters of Public Concern: issues important to society/democracy, decided on case by case basis
Defamatory Speech - Private Figures
Private Figure & Matter of Public Concern:
- actual damages: falsity, negligence
- punitive damages: falsity, actual malice
Private Figure & Matter of Private Concern
- no 1st amendment involvement, recover damages by state law
Regulation of Commercial Speech
Not protected if it is false, misleading, or about illegal things
Any other regulation will be upheld if it:
1) serves substantial gov interest
2) directly advances that interest
3) narrowly tailored (not least restrictive means)
Gov can require comm advertisers to make disclosures if they are not:
- unduly burdensome AND
- rxbly related to state interest in preventing deception
Content-Based Speech Regulations
Restricts speech based on the subject matter or viewpoint of the speech; gets SS (necessary and compelling gov interest)
Content-Neutral Speech Regulations
Both subject and viewpoint neutral; will usually be TPM restrictions
Get IS:
1) advance important interest unrelated to the suppression of speech
2) doesn’t burden substantially more speech than necessary (i.e., narrowly tailored)
Regulation of Traditional Public Forums
Public property that has historically been open to speech-related activities (streets, sidewalks, public parks)
If the regulation is content-based gets SS:
- necessary (least restrictive)
- narrowly tailored
If the regulation is content-neutral (i.e., TPM) gets IS:
- narrowly tailored to serve important gov interest
- leaves open alternative channels of communication
Regulation of Designated Public Forums
Not historically open but the gov has thrown open for such activities on a permanent or limited basis (town hall open for use by social/civic/rec groups)
If the regulation is content-based gets SS:
- necessary (least restrictive)
- narrowly tailored
If the regulation is content-neutral (i.e., TPM) gets IS:
- narrowly tailored to serve important gov interest
- leaves open alternative channels of communication
Regulation of Limited Forums
Gov forums opened for specific speech activity like a school gym for a debate on a particular community issue
Regulations instended to reserve the forum for its intended use (i.e., content-based) will be upheld if:
- viewpoint neutral
- rxbly related to to the intended use of the forum legit gov interest (RB)
If it’s viewpoint based it gets SS
Regulation of Nonpublic Forums
Gov property not historically open for speech and assembly and not held open for such things, like a military base
Regulations instended to reserve the forum for its intended use (i.e., content-based) will be upheld if:
- viewpoint neutral
- rxbly related to to the intended use of the forum legit gov interest (RB)
If it’s viewpoint based it gets SS
Personal Student Speech ON Campus (Speech Restrictions in Public Schools)
Can’t censor unless have evidence of substantial disruption; can freely censor if it’s speech promoting illegal drug use
Personal Student Speech OFF Campus (Speech Restrictions in Public Schools)
Can only censor to prevent bullying, cheating, and threats
School Speech (Speech Restrictions in Public Schools)
Restrictions must be rxbly related to educational objectives; will defer to the school as educators
Unprotected Government Employee Speech
If speech while at work is about a matter of private concern can punish the employee if it’s disruptive of work environment
If speech is on the job and pursuant to official duties can punish even if it touches on matters of public concern
Protected Government Employee Speech
If it’s on matter of PUBLIC concern but not pursuant to official duties, courtw ill balance the value of the speech against the gov’s interest in efficient operation of the workplace
If it’s on a matter of PRIVATE concern outside of the workplace, it’s protected absent detrimental impact on the workplace
Vagueness Doctrine (Speech)
DP clause invalidates laws that don’t give rxble notice of what’s prohibited; applies more strictly in 1st Amend context
Overbreadth Doctrine (Speech)
Law cannot ban substantially more speech than is necessary
If it is overbroad then it is facially invalid unless court limited the construction of it; needs to be substantially overbroad
Prior Restraints (Speech)
Injunctions/licensing schemes
Ask whether there is some special societal harm that justifies the restraint
Valid public restraint must provide procedural safeguards:
1) narrowly drawn, rxble, definite
2) prompt appeal process and judicial determination
3) can’t give officials unfettered discretion
Freedom of the Press
Trial/pretrial hearings must be open to the public; for court to close, there must be an:
- overriding interest and
- closure is narrowly tailored to serve the overriding interest
Generally press has right to publish info about a matter of public concern, and can only be restricted if:
- overriding interest and
- closure is narrowly tailored to serve the overriding interest
- NOTE: even if the speech was obtained unlawfully
Government Speech
1st Amend restricts gov regulation of private speech, it does not restrict gov from expressing its own views and absent something like an Estab Clause violation it cannot be challenged; also allowed to fund private speech on a viewpoint-based basis
Generally gov speech will be upheld if it’s rationally related to a legit interest
Limitations on Gov Speech
Cannot compel people to salute the flag or display other messages with which they disagree
But they can use things like tax revenue to express a gov message even if not everyone agrees with it
Freedom of Association
Isn’t explicitly in the Const but very clearly implied; gov can’t prohibit politically unpopular groups not unduly burden a person’s right to belong to such groups
