Speech (1A)

Question 1

Content Based

Answer 1

Generally SS ==> State may only regulate the content of speech if the regulation is necessary to achieve a compelling government interest and is narrowly tailored to meet that interest

EXCEPTIONS ==> FIDOC

Question 2

Commercial speech

Answer 2

Entitled to intermediate First Amendment protection when it concerns lawful activity and is neither false nor misleading.

Restrictions on such speech are valid if the regulation is narrowly tailored to** serve a substantial governmental interest. **

In this context, narrowly tailored does not mean the least restrictive means available; rather, there must be a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends.

Question 3

Unprotected Speech

Answer 3

FIDOC
1. Fighting words/threats
2. Inciting violence
3. Defamation
4. Obscenity
5. Commercial Speech

The First Amendment free speech clause generally prohibits the government from regulating speech based on its content (i.e., the message being communicated). But certain categories of speech fall outside First Amendment protection and can be freely regulated by the government.

Question 4

Publication of govt info

Answer 4

SYKE

There is no right to access government information

==> there is a First Amendment right to publish truthful information. As a result, any government restriction on this right is unconstitutional unless it survives strict scrutiny.

Question 4

Govt Funding Restriction

Answer 4

The government **CAN **condition funding on the promise that the funds be used for a particular purpose.

But it CANNOT condition funding on a recipient’s promise to refrain from engaging in protected First Amendment conduct if that conduct is unrelated to the funding’s purpose or scope.

Source = 1A

Question 5

Campaign Finance

Answer 5

Contribution Restrictions ==> IS
=changing the limits amounts
A. Limit on amount of contribution to:
-single candidate; OR
-political candidates, parties & action committees combined
B. Increase of limit on amount of contribution to candidate when self-financed opponent exceeds certain spending amount
**Laws may NOT limit contributions to ballot measures. **

Expenditure Restrictions ==> RR
= limits on the who/ select parties:
-corporations or unions in support of or opposition to candidate
-candidate on his/her own behalf

Question 6

Expressive conduct (symbolic speech)

Answer 6

Subject to a lesser degree of protection than speech;

a regulation of expressive conduct is upheld if:
* The regulation is w/in the govt’s power to enact;
* It furthers an important govt interest;
* The interest is unrelated to the suppression of ideas; and
* Burden on speech is no greater than necessary.

Question 7

Overbreadth

Answer 7

A law that burdens a substantial amount of speech or other conduct constitutionally protected by the First Amendment is **“overbroad” **and therefore void (does not apply to
commercial speech)

Overbroad statutes may be challenged as “facially invalid” (even by those who are validly regulated) to prevent a chilling effect on protected speech

==> Vagueness—a statute void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited

Question 8

Prior Restraints

Answer 8

Prior restraints—regulation of speech that occurs in advance of its expression

• Generally presumed to be unconstitutional, with limited exceptions
• The limited exceptions require at a minimum that:
  (i) there is a particular harm to be
  avoided; and
  (ii) certain procedural safeguards are provided to the speaker, e.g.,
  o The standards must be narrowly drawn, reasonable, and definite;
  o The censoring body must promptly seek an injunction; and
  o There must be a prompt and final judicial determination of the validity of the restraint.
• The burden is on the government to prove that the material to be censored is not protected speech

Question 9

Unfettered Discretion

Answer 9

• A law or regulation that permits a governmental official to restrict speech must provide definite standards as to how to apply the law in order to prevent governmental officials from having unfettered discretion over its application
• A statute that gives officials unfettered discretion is void on its face

Question 10

Freedom not to speak

Answer 10

• 1A protects not only freedom of speech, but also the freedom not to speak
• However, a state can compel a private entity (e.g., a shopping mall) to permit individuals to exercise their own free-speech rights when the private entity is open to the public and the message is not likely to be attributable to the private entity
• Although one may be compelled to join or financially support a group with respect to one’s employment, one cannot be forced to fund political speech by that group

Question 11

Campaign related speech

Answer 11

Contributions—statutes limiting campaign contributions are subject to intermediate scrutiny

Expenditures—in contrast to campaign contributions, restrictions on expenditures by individuals and entities (including corporations and unions) on communications during
an election campaign regarding a candidate are subject to strict scrutiny

Question 12

Public Forums

Answer 12

Traditional—historically associated with expression (e.g., sidewalks, streets, parks)

Designated—not historically used for speech-related activities, but which the
government has opened for such use (e.g., civic auditoriums, publicly owned theaters, or school classrooms afterhours)

In either forum, the restrictions generally must:
o Be content-neutral as to both subject matter and viewpoint;
o Be **narrowly tailored **to serve a significant governmental interest (i.e., promote interest that would be achieved less effectively absent the regulation); and
o **Leave open ample alternative channels for communication **of the information.

**Injunction—the test for the constitutionality of injunctions in public forums depends **on whether the injunction is content-neutral or content-based
o Content-neutral—whether it burdens no more speech than is necessary to achieve an important governmental interest
o Content-based—it must be necessary for the government to achieve a compelling governmental interest

May impose reasonable time, place, and manner restrictions on speech activities on the campus.

Question 13

Non Public Forums

Answer 13

(or “limited public forum”)—all public property that is not a traditional or
designated public forum

The government may regulate speech-related activities in nonpublic forums as long as the regulation is:
(i) viewpoint-neutral **and **
(ii) reasonably related to a legitimate governmental interest
o Viewpoint-neutral—the government may prohibit speech on certain issues altogether, but it may not allow only one side of an issue to be presented
o Reasonable—the restriction must be rationally related to a legitimate governmental
interest

• Personal property—regulation of speech on a person’s own private property will rarely be upheld, particularly content-based regulations; no First Amendment right to express oneself on someone else’s private property

Question 14

Regulation of the media

Answer 14

Media has no greater 1A rights than the general public

1. General considerations—regulation of the right to publish about matters of public concern is subject to strict scrutiny
   * Gag orders—subject to prior-restraint analysis; ==> rarely upheld
   * Attending trials—the right to attend trials may be outweighed if the judge finds an overriding interest that cannot be accommodated by less restrictive means
   * Illegally obtained private info—permitted to publish if third party (unknown to publisher) obtained info and involves matter of public concern
   * No constitutional privilege to protect sources
2. Broadcast
   * Radio and television broadcasters are said to have a greater responsibility to the public; they can be more closely regulated than print and other media
   * Broadcasters may be sanctioned for airing “patently offensive sexual and excretory speech,” even if such speech does not qualify as obscene
   * Public access stations are not considered to be state actors
3. Cable television—content-based regulations of cable broadcasters are subject to strict scrutiny
4. Internet—any regulation of Internet content is subject to strict scrutiny

Question 15

Regulation of Association

Answer 15

1. Overview—freedom of association generally protects the right to form or participate in any group, gathering, club, or organization; infringement may be justified by compelling state interest
2. Public employment
   * An individual generally cannot be denied public employment based simply upon membership in a political organization
   * A person may only be punished or deprived of public employment based on political association if that individual:
   o Is an active member of a subversive organization;
   o Has knowledge of the organization’s illegal activity; and
   o Has** specific intent to further those illegal objectives.**

Question 16

Bar Membership

Answer 16

• Admission cannot be denied on the basis of political association unless the candidate knowingly belongs to a subversive organization with specific intent to further its illegal ends
• The state may deny bar membership to a candidate who refuses to answer questions about political affiliations if that refusal obstructs the investigation of the candidate’s qualifications

Question 17

Elections & Political Parties

Answer 17

Voters in primary elections
o A state cannot require a local political party to select presidential electors in an open primary when the national party prohibits nonparty members from voting
o A state can require a semi-closed primary system even if the party wants to permit anyone to vote
o A state may not prohibit a political party from allowing independents to vote in its primary

Ballot access to general election—
a state may refuse to grant a political party’s candidate access to the general-election ballot unless the party demonstrates public support through voter signatures on a petition, voter registrations, or previous electoral
success
* Fusion candidate
o A candidate who is nominated by more than one political party
o A state may prohibit a fusion candidate from appearing on the general-election
ballot as a candidate of multiple parties

Question 18

Criminal Penalty

Answer 18

• A statute that purports to criminally punish mere membership in an association violates 1A and 14A
• Such membership may only be criminalized if:
  (i) the group is actively engaged in unlawful activity, or is engaging in advocacy that passes the “clear and present danger” test; and
  (ii) the **defendant knows of and specifically intends **to further the group’s illegal activity

Question 19

Inquiry about a person’s associations

Answer 19

Constitutional IF
1. necessary to further
2. legitimate state interest

Question 20

Punishment for a persons membership in a subversive org

Answer 20

Const IF
1. active member
2. knowledge re illegal activities
3. SI to further objectives

Question 21

1A Media Protection

Answer 21

The First Amendment shields the media from criminal and civil liability **for publishing lawfully obtained private facts **(eg, crime victim’s identity) and other truthful information involving matters of public concern (ie, newsworthy events).

This amendment also shields the media from liability for publishing truthful information that is** unlawfully obtained by a third party if:**
1. the information involves a matter of public concern
and
2. the publisher neither obtained it unlawfully nor knows who did.

Question 22

Media Access x Criminal Trials

Answer 22

The First Amendment generally guarantees the press and the public the right to attend criminal trials.

However, criminal trial proceedings may be closed when the court demonstrates that the** closure satisfies strict scrutiny**—ie, that it is the **least restrictive means **to serve a compelling government interest.