Lesser-Protected Categories of Speech

Question 1

lesser-protected categories of speech

Answer 1

categories of speech that can be restricted & punished

Question 2

types of lesser-protected speech

Answer 2

• incitement
• fighting words
• true threats
• obscenity
• child pornography
• profanity/indecent speech (in certain locations)
• commercial speech
• defamation

Question 3

incitement of imminent unlawful activity

Answer 3

Clear & Present Danger test:
govt may punish speech if
1. there is a substantial likelihood the speech will bring about imminent illegal activity, and
2. the speech is aimed at causing imminent illegality

NOTE: this test is difficult to satisfy
- any law aimed at restricting incitement must be narrowly tailored

Question 4

fighting words

Answer 4

govt may punish speech if it’s likely to cause an immediate violent response against speaker

NOTE: fighting words statutes tend to be overbroad, vague, or deemed content-based and fail under strict scrutiny

Question 5

true threats

Answer 5

a threat communicated w/ intent to intimidate the recipient is NOT protected speech
- speaker must actually intend to instill fear in recipient

Question 6

obscenity generally

Answer 6

unprotected speech which may be regulated

NOTE: any law prohibiting obscene material must specify what is deemed patently offensive

Question 7

obscenity test

Answer 7

test: expression is obscene if:
1. it appeals to prurient interests (sexually stimulating)
- average person standard: how would the average person, applying community standards, view the material as a whole?
2. it is patently offensive in its sexual portrayal
- material must offend community standards regarding portrayal of sexual matters
- any law prohibiting obscene material must specify what is deemed patently offensive
3. taken as a whole, the material lacks serious literary, artistic, political, or scientific value
- determined based on national standard (not community standard, as is the case for the first two prongs)

NOTE: any law prohibiting

Question 8

zoning

Answer 8

govt may use zoning to regulate lewd speech or conduct if regulation is designed to combat secondary effects

eg, ordinance limiting strip clubs to a small city section can be valid if designed to combat a drop in property values or rise in crime

Question 9

pornography

Answer 9

private possession is not punishable unless it involves child pornography

Child pornography: govt may make private possession of child pornography a crime
* child pornography = actual children are depicted
* adults portraying children is NOT child pornography

Question 10

profanity/indecent speech

Answer 10

generally protected

Two exceptions: profane/indecent speech is punishable if either:
* speech is aired over broadcast media (not cable), or
* speech occurs in public schools

Question 11

commercial speech

Answer 11

govt may regulate some commercial speech subject to a test similar to intermediate scrutiny

Question 12

unprotected commercial speech test

Answer 12

test: commercial speech is NOT protected if it’s either:
1. false, misleading, or deceptive, or
2. illegal or concerns illegal activity

Govt may regulate unprotected commercial speech

eg, false advertisement

Question 13

protected commercial speech

Answer 13

speech that concerns lawful activity and is NOT misleading

Question 14

protected commercial speech test

Answer 14

test: govt can only regulate protected commercial speech if:
1. there is substantial govt interest in regulating speech,
2. the regulation directly advances that govt interest, and
3. the regulation is NOT more extensive than necessary to serve that govt interest

NOTE: a valid commercial speech regulation MUST be narrowly tailored
- BUT, not necessarily the least restrictive alternative

Question 15

defamation considerations

Answer 15

1A considerations arise when defamation involves a public official and/or a matter of public concern

Question 16

public figure

Answer 16

1. one who has pervasive fame or notoriety or
2. voluntarily assumes a central role in a particular public matter

Question 17

public official

Answer 17

public office holder

Question 18

matter of public concern

Answer 18

statement relates to a community interest or concern (includes national interests)

Question 19

additional defamation requirements

Answer 19

if defamation involves a public figure, official, and/or public concern, P must prove:
1. falsity
2. fault

Question 20

falsity

Answer 20

P must prove statement was false

Question 21

fault

Answer 21

P must prove D was at fault; standards differ for public v. private figures:
* Public official/figure: actual malice standard
* Private figure: negligence of statement’s veracity

Question 22

actual malice standard

Answer 22

knowledge of falsity or reckless disregard as to truth

Question 23

defamation damages

Answer 23

• Public official/figure: P can collect compensatory damages and possibly punitive damages
• Private figures: damages for actual injury only; P must prove actual malice for compensatory or punitive damages