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Question 1

What are the two different ways that symbolic speech can be regulated?

Answer 1

– CC (Content Control): if the activity’s content is in an unprotected area of the first, or the government has a compelling interest in prohibiting that message
– TPM: time, place, or manner aspects of the speech can be regulated through laws or administrative actions narrowly tailored to promote an important government interest and related to suppressing the message if they leave open ample alternate channels of communication

Question 2

Are you allowed to desecrate a flag that you privately own?

Answer 2

Yes. You are allowed to burn the flag, put duct tape on it, hang it upside down in your window, etc. if you privately own it and what you’re doing creates no risk of breach of the peace. But you can be punished by law against outdoor fires if you burn the flag only because that’s relating to the fire and not to the message

Question 3

Is it possible for a government to prohibit expression of an idea simply because they think that society will find it offensive or disagreeable?

Answer 3

No, the government cannot assume that offensive words will create disorder

Question 4

Can legislator’s votes be considered expressive acts/symbolic speech?

Answer 4

No. Legislators do not have the first amendment right to vote on legislation. Their vote just shows that they want something to be adopted or defeated, but it does not symbolize anything and it isn’t an act of communication

Question 5

How do you treat symbolic speech on an essay?

Answer 5

– figure out if the conduct will be treated as speech by looking at the context and the environment that it happened
– determine if there was intent to communicate a particularized message
– and if that message will be received and understood by others

Question 6

What does expression in the local forum mean?

Answer 6

This is when speech happens in a physical place that the government owns. Public streets, public property, sidewalks, parks, courthouse steps, etc. are considered to be traditional public forums for the use of public assembly, communication of thoughts, discussion of public questions, etc. the right of access to these areas is subordinate to the general comfort and convenience of peace and good order though.

Question 7

If a government tries to regulate protected speech in a public forum, what is the standard that it is subject to?

Answer 7

Strict scrutiny

Question 8

What is the only time that forum analysis under the first amendment is done?

Answer 8

When something occurs on government owned property

Question 9

If a place is publicly owned does that automatically make it a public forum?

Answer 9

No

Question 10

How do you determine if a place is a public forum?

Answer 10

Look at the character, nature of its purpose, use of the property, suitability for views on issues, if the land is traditionally used for assembly or debate, the pattern of usual activity there, the population that takes advantage of the invitation that is extended, etc. to see if the place is suitable for communication of views and issues of political or social significance

Question 11

If there is a zoning board meeting and the plaintiff wants to talk about something that is not on the agenda and gets silenced, is that OK under the first amendment?

Answer 11

Yes, because this was a form created for discussion of agenda items. There can be an unlimited class of speakers but they are limited to a class of subjects. If the plaintiff wanted to talk about an agenda item, he would not be silenced

Question 12

Does publicly owned property become a public forum any time that the public can come and go at will?

Answer 12

No. Airports are publicly owned places that can be closed to all except those that have legitimate business there. Reasonableness considers the purpose of the forum and all surrounding circumstances. If the restrictions are reasonably related to maintaining the environment, that is OK.

I.e.: you cannot ban hand billing in airports because it doesn’t require anyone to stop, but you can put TPM regulations that are content neutral and narrowly tailored to serve a government interest like a restriction on leafleting in certain areas

Question 13

Why were the Westborough military funeral picketers allowed to keep doing what they were doing?

Answer 13

Because they were engaging in public speech in a public forum

Question 14

How do courts define the scope of a public forum?

Answer 14

They use a generalized inquiry into the compatibility of expressive activity with normal use of the property.

Question 15

If property is private property could it be considered a public forum?

Answer 15

Not without state action. The more an owner opens the property for public use, the more his rights are circumscribed by the constitutional rights of those using it. Privately owned property can be dedicated to public use when it has taken on essentially all attributes of public property, then it becomes subject to constitutional obligations

Question 16

Shopping centres are considered to be the functional equivalent of what under the first?

Answer 16

Public property

Question 17

Can a government ban targeted picketing around residences under the first?

Answer 17

Yes, because that protects residential property and leaves lots of alternate means to communicate a message

Question 18

If the city has a law that says you can only get a permit to do door-to-door hand billing for charities if you prove that 75% of the money goes to charity, does that bring up a free speech issue?

Answer 18

Yes because raising funds for expressive activities is protected, so limiting it is the same as expressive activity itself and is content control to the same extent that regulating speech would be

Question 19

Can licensing and permits that are narrowly drawn, content neutral, and reasonable TPM controls be constitutional even if they happen through prior restraint?

Answer 19

Yes as long as there are clear and concise standards with neutral licensing criteria that don’t give an official substantial power to discriminate

Question 20

If someone is subjected to a facially invalid licensing law, can he ignore the law and engage in the behaviour anyway?

Answer 20

Yes, but he needs to watch out because the law requires initial respect for judicial injunctions, so if judicial process is available to give a prompt review of the injunction and the plaintiff doesn’t use it, he is barred from collateral attack in the contempt proceeding. If the state doesn’t provide safeguards like immediate review, then the injunction is not binding.