Pg 34

Question 1

How do you decide if it is content or viewpoint control?

Answer 1

If you have to read it, hear it, or look at it to decide if the rule has been violated, it is content control

Question 2

How do you know if you are using the least restrictive means?

Answer 2

If you can think of a less intrusive way to do it, then it isn’t the least intrusive way

Question 3

Are schools allowed to restrict the subject of speech to curricular matters under the first amendment?

Answer 3

Yes

Question 4

If the government tries to regulate speech in a traditional public forum or non-physical setting like the Internet, what is necessary?

Answer 4

That they have a compelling interest being used in the least restrictive means

Question 5

If citizens want to bring election candidate signs into a city Council meeting, but the security guards only let signs for one candidate into the meeting and stop all others, what has happened?

Answer 5

content control by the government

Question 6

If the city charges fees to have parades based on how they think the population will react, such as for a KKK parade, what has happened?

Answer 6

Content control because the city has discretion about someone else’s freedom of expression

Question 7

Is it possible for unfettered discretion to be vested in public officials for activities that involve speech?

Answer 7

No. Public officials need a compelling justification with narrowly drawn means in order to exercise their discretion for activities that involve speech

Question 8

What is an example of symbolic speech?

Answer 8

A silent vigil protest

Question 9

Is it possible for a government to require speech?

Answer 9

No, so they cannot prohibit logos or emblems on vanity plates because that is speech and it discriminates against the viewpoint. Must apply strict scrutiny

Question 10

If a private group puts on a St. Patrick’s Day parade and an LGBT group wants to join but is denied, is that OK under the first amendment?

Answer 10

Yes because the government cannot force private groups to facilitate spreading a message they don’t agree with

Question 11

What are the different things that are protected by the First Amendment free-speech?

Answer 11

Speech, written material, and symbolic speech

Question 12

Under the first amendment can the government prohibit inmates from writing to non-family members?

Answer 12

Yes, for security reasons so the inmates do not try to escape or engage in gang activities. This is content neutral and advances the goals of security and safety.

Question 13

What is the test that is applied to whether prison regulations violate the First Amendment?

Answer 13

Must ask if the regulation is rationally related to a legitimate penological objective. Deference is given to the professional judgement of prison administrators

Question 14

What does narrowly tailored mean?

Answer 14

• It cannot be vague: Everyone must know what is and isn’t allowed
  – it cannot be overbroad: there must be plenty of other avenues for a person to get his message out

Question 15

Can the government regulate conduct if the reasoning is based on something unrelated to content?

Answer 15

Yes.

I.e.: protesters blocking a freeway —> the government needs to get them off the road because someone might get hurt

Question 16

What is the protection hierarchy for categories of speech?

Answer 16

Some categories of speech are valued more by society so they get more protection.

• Political speech gets the most
• commercial speech gets less
• obscenity and fighting words get almost none

Question 17

Can schools remove books from the libraries because they don’t agree with the message?

Answer 17

No you cannot remove books to restrict access to political ideas or social perspectives when it is motivated by disapproval of those ideas.

You can remove books because they are not the right grade level or they are outdated

Question 18

Is it possible for the government to impose special prohibitions on speakers that express views on disfavoured subjects?

Answer 18

No.

Ie: the government can proscribe libel, but they cannot go further and proscribe only libel that criticizes the government.

Question 19

What are the four major categories of speech they get very little to no protection under the first amendment?

Answer 19

– Prior restraint
– true threat
– incitement to imminent lawless action
– fighting words

Question 20

What is prior restraint?

Answer 20

A formal government mechanism to prevent speech from being distributed, published, spoken, or put into the marketplace of ideas and given to people other than the speaker. There is a presumption of unconstitutionality for this.

Question 21

If a law stops a movie theatre from showing a movie unless the movie is first approved by the government, is that allowed under the first amendment?

Answer 21

No because this prevents ideas from being sent to the public which is prior restraint and this is unconstitutional

Question 22

If permission is needed for speech, what has happened?

Answer 22

That is a prior restraint, and that’s not free speech, so unconstitutional

Question 23

What are some examples of prior restraints?

Answer 23

Injunctions and other forms of expression besides printed material.

Question 24

If an injunction just incidentally affects expression, does that mean it is classified as a prior restraint?

Answer 24

Not necessarily.

Ie: a state law prohibiting anti-abortion protesters from demonstrating within 36 feet of a clinic was upheld. The people were not prevented from expressing their views, they just couldn’t do it in a buffer zone

Question 25

Who has the burden to prove that a prior restraint should be allowed?

Answer 25

There’s a rebuttable presumption that prior restraints are unconstitutional, so the government has the burden of justifying the use of the restraint. The clear and present danger doctrine applies

Question 26

Unbridled discretion in issuing permits to speak for administrators are invalid unless there is what?

Answer 26

Appropriate standards to guide the administrator’s actions

Question 27

Does prior restraint mean that the government cannot punish someone after they have spoken?

Answer 27

No. Prior restraint is more serious than subsequent punishment because it is more dangerous to free speech since it limits public debate more seriously.

Punishing speech after it occurs chills free expression, but prior restraint freezes free speech

Question 28

What is a true threat?

Answer 28

A state can prohibit speech when the speaker means to communicate intent to commit an act of unlawful violence against a person or group. The threat doesn’t have to be carried out, this protects individuals from fear of violence.

I.e.: can ban cross burning with intent to intimidate because intent is the key. ** Be careful because there’s a difference between cross burnings that are a true threat and ones that are ideological statements and thus count as protected speech. The government cannot ban all cross burnings because it ignores the context that shows if it was intended to intimidate or to just express racism