Less Protected Speech (Content Based)

Question 1

Types of Less Protected Speech

Answer 1

1. Hate, Racist Speech
2. Profanity, Indecent, Violent Speech.
3. Commercial Speech
   a. Attorney Solicitation
   b. Accountant Solicitation

Question 2

1. Hate/ Racist Speech

Answer 2

a. Words that do nothing but wound

b.Speech CANNOT be banned on the grounds that it expresses ideas that may offend people

c. Hate speech is protected unless it is MEETS the brandenbutg test.

d. Expression of hate is protected speech and the government may not outlaw symbols of hate. (Confederate Flags)

Case: Virginia v. Black
- A burning cross is likely to intimidate and invite a breach of peace either by inciting violence against the victim or provoking the victim to act in self-defense.

Question 3

2. Profanity, Indecent, Violent Speech

Answer 3

a. Profanity and indecent speech concern words and expressive conduct that often touch on sexual topics but are NOT obscene

1. Broadcasting: Intrudes into the home & accessible to children
2. Internet/ Phone: Not likely to encounter indecent speech by accident. Parents can put parental controls (1st Amendment Protection)
3. Animal Cruelty: Government can punish animal cruelty but CANNOT punish creating, selling or possessions of depictions of animal cruelty.

b. People can effectively avoid further bombardment of their sensibilities simply by averting their eyes.

Question 4

3. Commercial Speech

Answer 4

• Commercial speech is words, numbers, photos, or symbols provided as information from a businesses to attract consumers .
• Apply Central Hudson Case

1. Unprotected Commercial Speech (Untruthful, misleading, and/or advertising unlawful products.) NY v. Sullivan
2. Protected Commercial Speech (Truthful, clear and/or advertising lawful products)

2 Types of Commercial Speech:

1. Attorney Solicitation
2. Accountant Solicitation

Question 5

1. Attorney Solicitation

Answer 5

• Government cannot prohibit attorneys from engaging in truthful, non-deceptive ads of their services.
• Not an invasion of privacy because a person can just throw it away.
• HOWEVER, Government may prohibit attorney in-person solicitation of prospective clients for profit because they are trained in the art of persuasion.

Question 6

2. Accountant Solicitation

Answer 6

• Government cannot prohibit accountants from engaging in-person solicitation of clients for profit.
• Accountants are not trained in the art of persuasion

Question 7

Central Hudson Test ( Similar to Intermediate Scrutiny)

Answer 7

1. Does the speech come within the First Amendment meaning that it is lawful and not misleading?

A. YES, then no regulation and protected by the 1st Amendment
B. NO, then gov’t can regulate it

2. Is the government’s interest substantial?
   a.Yes then go to 3
   B. No then government can regulate it
3. Does the law advance the government’s interest?
   A. Yes then go to 4
   B. No then gov can regulate it
4. Is the regulation no more extensive than necessary to achieve the government’s interest?
   Yes then it is protected
   No, then gov can regulate it