Freedom of Speech (Module 12)

Question 1

Speech/Expressive Conduct Definition

Answer 1

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

Question 2

Incitement (Unprotected Speech)

Answer 2

1) intended to produce imminent lawless action
2) likely to produce such action

Question 3

Fighting Words/True Threats (Unprotected Speech)

Answer 3

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

Question 4

Obscenity (Unprotected Speech)

Answer 4

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

Question 5

Miscellaneous Obscenity Notes

Answer 5

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

Question 6

Defamatory Speech - Public Officials/Figures & Matters of Public Concern

Answer 6

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

Question 7

Defamatory Speech - Private Figures

Answer 7

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

Question 8

Regulation of Commercial Speech

Answer 8

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

Question 9

Content-Based Speech Regulations

Answer 9

Restricts speech based on the subject matter or viewpoint of the speech; gets SS (necessary and compelling gov interest)

Question 10

Content-Neutral Speech Regulations

Answer 10

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)

Question 11

Regulation of Traditional Public Forums

Answer 11

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

Question 12

Regulation of Designated Public Forums

Answer 12

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

Question 13

Regulation of Limited Forums

Answer 13

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

Question 14

Regulation of Nonpublic Forums

Answer 14

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

Question 15

Personal Student Speech ON Campus (Speech Restrictions in Public Schools)

Answer 15

Can’t censor unless have evidence of substantial disruption; can freely censor if it’s speech promoting illegal drug use

Question 16

Personal Student Speech OFF Campus (Speech Restrictions in Public Schools)

Answer 16

Can only censor to prevent bullying, cheating, and threats

Question 17

School Speech (Speech Restrictions in Public Schools)

Answer 17

Restrictions must be rxbly related to educational objectives; will defer to the school as educators

Question 18

Unprotected Government Employee Speech

Answer 18

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

Question 19

Protected Government Employee Speech

Answer 19

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

Question 20

Vagueness Doctrine (Speech)

Answer 20

DP clause invalidates laws that don’t give rxble notice of what’s prohibited; applies more strictly in 1st Amend context

Question 21

Overbreadth Doctrine (Speech)

Answer 21

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

Question 22

Prior Restraints (Speech)

Answer 22

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

Question 23

Freedom of the Press

Answer 23

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

Question 24

Government Speech

Answer 24

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

Question 25

Limitations on Gov Speech

Answer 25

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

Question 26

Freedom of Association

Answer 26

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