LESSER-PROTECTED CATEGORIES OF SPEECH

Question 1

Incitement of Imminent Unlawful Activity

Answer 1

The govt may punish speech if:
1) There is a substantial likelihood the speech will bring imminent illegal activity; AND

2) If the speech is aimed at causing imminent illegality

Note: This test is often referred to as the “Clear & Present Danger” test; it is difficult to satisfy; the law must be narrowly tailored

Question 2

Fighting Words

Answer 2

Govt may punish speech if it it is likely to cause an immediate violent response against the speaker

Note: It is virtually impossible for fighting words statute to be upheld; it will be overbroad, vague, or deemed content-based and fail under SS

Question 3

Obscenity

Answer 3

Govt may regulate obscenity, which has been deemed a lesser-protected category of speech. Expression is obscene if: (Miller Test)
1) It appeals to the prurient interests (sexually stimulating); AND
» 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; AND
» Material must offend community standards regarding the 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 (ALPS)
» Determined based on national standard

Question 4

Obscenity & Profanity Regulations

Answer 4

Zoning–Govt may use zoning to regulate obscenity-type speech or conduct if regulation is designed to combat secondary effects. Govt may seize assets of businesses violating obscenity laws
» E.g. An ordinance limiting strip clubs to a small city section can be upheld if designed to combat a drop in property values or rise in crime

Pornography–Private possession is not punishable unless it involves child pornography
* Child Pornography–May be punished because they underlying act is illegal (i.e. sex with minors)
» Child Pornography = Actual children are depicted
» Adults portraying children is not child pornography

Profanity/Indecent Speech–Generally protected with two exceptions. Profane/indecent speech is punishable if:

1) Speech is aired over broadcast medial (not cable or internet)
2) Speech occurs in public schools

Question 5

Commercial Speech

Answer 5

Commercial speech deals with an economic transaction.

Commercial speech is not protected if it is either:

1) False, misleading, or deceptive, or
2) Illegal or concerns illegal activity
* The govt may regulate unprotected commercial speech

Govt can only regulate protected commercial speech (i.e. not misleading or unlawful) if the regulation:

1) Serves a substantial govt interest
2) Directly advances that govt interest; AND
3) Is narrowly tailored to server that govt interest
* A valid commercial speech regulation must be narrowly tailored, but not necessarily the least restrictive alternative

Question 6

Defamation

Answer 6

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

A public figures is one who has pervasive fame or sorority or voluntarily assumes a central tole in a particular public matter

A public official is a public office holder

A matter of public concern are statements that relate to a community interests or concern, this includes national interests

If defamation involves a pubic figure, official/and or public concern, P must prove (1) falsity and (2) fault

(1) Falsity– P must prove the statement was false
(2) Fault– P must prove D was at fault. For a public official or figure the standard is actual malice. Actual malice means knowledge of the statements falsity or reckless disregard as to whether it is false. For private figures negligence is the standard.