Pg 33 Flashcards
What kinds of speech does the first not protect?
Threats, conspiracy, solicitation. The law can punish criminal acts even if they happen in words
If you want to put a sticker on your car with a rebel flag, is that a first amendment issue?
No because you can say what you want. Although if the government wants to control what specific message you stick on your car, that is a free speech issue
Can an action be considered speech?
Yes
What is considered to be pure speech?
Publishing books, leaflets, or magazines for the sole purpose of expression
How do you discuss free-speech on an essay?
– ask if the thing that is prohibited is considered to be speech.
– ask if the government action is a form of content control. If so:
• is the speech fully protected?
• is it a type of prior restraint?
• does it come from a statute that is over vague?
• is it trying to address secondary effects of the speech instead of the speech itself?
• is there a captive audience?
• apply the content control test
- is it viewpoint control?
– If not, is it still an effort to control the subject matter or category of the speech?
– TPM
What is the definition of speech under the first amendment?
An idea that is conveyed through words or actions
What are some examples of things that are considered to be speech under the first amendment?
Dance, theater, art, fashion, any behaviour that usually doesn’t convey ideas but in this context does
What does it mean to have a captive audience?
When an audience cannot avoid the speech. This includes school assemblies or public transport. If that is the case some content control is allowed.
What are the two major approaches to a first amendment issue?
- speech categorically excluded from first protection
– Balancing test
What is speech that is categorically excluded from the first amendment’s protection?
Threats, conspiracy, solicitation, obscenity, defamation, imminent lawless action, child pornography, false or misleading commercial speech,and fighting words
mnemonic: SCOT F DICC
These are thought to be of such slight social value that any benefit is outweighed by the social interest in order and morality
What is a balancing test that is applied under the first amendment?
- Strict scrutiny for content-based legislation: The law must be narrowly tailored to meet a compelling government interest
What are the things that it depends on to figure out if the government can control speech or expressive activities?
Depends on the:
– type of speech
– nature of the gov action
– nature of the form
To figure out what rights a government has to control speech, what is the first thing you have to determine?
Whether it is content control or time, place, manner control
What is content control under the first amendment?
When the government discriminates against speech because of its message, ideas, or subject matter. Means the Government acts to restrict the speech because they disagree with the message it conveys.
Or when the government forces a person to speak [through a license plate that says “live free or die“]. This is also content control because of freedom of expression which includes the right not to be associated with certain messages.
Under what circumstances can the government prohibit a message based on its content?
If they have a compelling reason that is narrowly tailored so it doesn’t control anything more than necessary
