Freedom of Speech Part 3 Flashcards
1
Q
Void for Vagueness Doctrine
A
- if a criminal law or reg fails to give persons reasonable notice of what is prohibited (ex: ban on “opprobius and offensive” words), it may violate the Due Process clause
- principle gets applied more strictly when 1st Am activity is involved
2
Q
Speech and Overbroad Regs
A
- reg of speech invalid if punishes substantially more speech than necessary
- overbroad reg = facially invalid (can’t enforce against anyone) unless court has limited construction of the reg to remove the threat to constitutionally protected expression
-> BUT courts consider invalidation severe -> will only impose if the unconstitutional applications of the law are realistic and substantially disproportionate to the statute’s lawful sweep - if reg not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected
3
Q
Prior Restraints
A
- court orders or administrative systems that prevent speech before it occurs, rather than punish afterwards
- not favored + rarely allowed
- no special test (content-based ones subject to strict scrutiny + content-neutral ones subject to intermediate scrutiny) but gov bears heavy burden
-> on exam, ask if there’s some special societal harm that justifies the restraint
4
Q
Prior Restraints - Procedural Safeguards
A
To be valid, a system for prior restraint must provide the following safeguards:
- standards must be narrowly drawn, reasonable, + definite
- injunction must promptly be sought AND
- must be prompt + final judicial determination of the validity of the restraint
- a number of other cases, especially in area of movie censorship, require that gov bear burden of proving that the speech involved is unprotected
5
Q
Prior Restraints - Discretion of Officials
A
- need definite standards for applying prior restraint laws-> officials can’t have broad discretion over speech issues
- means that a statute is void on its face if it gives licensing officials unbridled discretion
-> vs. if a licensing statute includes standards, speaker can’t ignore the statute -> must seek a permit + can challenge denial on 1st Am grounds if denied
6
Q
Prior Restraints - Obscenity wrt Books and Films
A
- seizure of a single book or film may be made w/ a warrant based on probable cause
-> if the item is available for sale to public though, police officer may purchase book or film to use as ev w/o warrant - large-scale seizures must be preceded by a full-scale adversary hearing + a judicial determination of obscenity
7
Q
Movie Censorship
A
- time delays incident to censorship are considered less burdensome on movies than on other forms of expression -> SCOTUS allows gov to established censorship boards to screen movies before they’re released, as long as procedural safeguards for prior restraints are followed
8
Q
Prior Restraint - Gov’s Burden
A
- when gov adopts a content-based prior restraint of speech, gov has burden of proving that the restriction is narrowly tailored to achieve a compelling interest (strict scrutiny) or that the speech is unprotected
9
Q
Freedom of the Press
A
- press generally has no greater 1st Am freedom than a private citizen
-> treated like any individual speaker + all above concepts apply
10
Q
Press - Publication of Truthful Info
A
- press generally has right to publish truthful info regarding a matter of public concern
- content-based restrictions on press are subject to strict scrutiny
11
Q
Press - Access to Trials
A
- 1st Am guarantees public + press right to attend criminal (and probably civil) trials
- right may be outweighed though by overriding interest stated in the trial judge’s findings
- right includes right to be present at voir dire and at other pretrial proceedings, unless judge makes specific findings that closure was narrowly tailored to preserve a higher value
12
Q
Press - Grand Juries
A
- members of the press may be required to testify before grand juries
13
Q
Interviewing Prisoners
A
- 1st Am doesn’t give journalists a right to interview specified prisoners of their choice or to inspect prison grounds
14
Q
Press - Business Regulation or Tax
A
- press + broadcasting cos can be subjected to general business regs or taxes but can’t be targeted for special regs or taxes
- tax or reg impacting press can’t be based on content of a publication absent a compelling justification
15
Q
Broadcasting Regs
A
- radio + tv broadcasting may be more closely regulated than the press
- gov may protect viewers from indecent speech over airwaves b/c of uniquely pervasive + accessible nature of broadcasting
- gov may also manage access + ownership of broadcast spectrum to promote pub interest in receiving info
16
Q
Fairness Doctrine
A
- 1st Am doesn’t require broadcasters to accept political ads
- radio station may constitutionally be required to offer free broadcasting time to certain indivs (ex: opponents of political candidates or views endorsed by the station or persons personally attacked in a broadcast)
17
Q
Internet + Cable TV Regs - Standards of Review
A
- strict scrutiny if content-based + intermediate scrutiny if content-neutral
18
Q
Government Speech
A
- can’t be challenged as violating Free Speech Clause of 1st Am
-> doesn’t require gov to aid private speech or restrict gov from expressing own views - absent other con limit (ex: Establishment Clause or Eq Prot), gov generally free to express own views
- can also fund private speech that furthers its own views while refusing to fund others
- not subject to any higher scrutiny -> upheld if rationally related to a legitimate state interest
19
Q
Gov + Compelling Private Speech
A
- freedom of speech includes freedom not to speak -> gov can’t require people to salute the flag or display other messages with which they disagree
- BUT may tax people + use the revenue to express a gov message even if taxpayer disagrees with the message
-> still can’t compel people to subsidize private messages they disagree with though
20
Q
University Activity Fees
A
- exception to rule against compelled speech
- gov can require public university students to pay student activity fee even if fee used to support political + ideological speech by student groups whose beliefs are offensive to the student, as long as program is viewpoint neutral
21
Q
Public Accommodation Laws
A
- states can’t use public accommodation statutes to deny speakers right to choose content of own messages
(pub acc laws prohibit certain forms of discrimination when businesses offer goods + services to public -> website designer can’t be compelled to design expressive content w/ message she disagrees w/)
22
Q
1st Am + Spending Programs
A
- spending programs can’t impose conditions that limit 1st Am activities of fund recipients outside the scope of the spending program itself
23
Q
Gov Funding of Private Speech
A
- when gov funds private messages (ex: college group newsletters), generally must do so on a viewpoint-neutral basis
- exception: funding for the arts can be based on content of the art
24
Q
Evaluation of Whether or Not Something is Government Speech
A
- not all speech activity on gov property = gov speech -> deciding what does + doesn’t count requires holistic approach
Factors that may be relevant include:
- history of the expression at issue
- public’s likely perception as to who (gov or private person) is speaking
- extent to which gov has shaped the message
25
Q
Trademark Protection
A
- NOT gov speech -> counts as private speech
- content-based restrictions on trademarks are subject to strict scrutiny
