Speech

Question 1

What does the First Amendment protect?

Answer 1

Freedom of expression (speech, press, assembly, & association)

Question 2

Define

symbolic speech

Answer 2

Expressive conduct meant to convey a particular message (e.g. wearing black arm bands in protest)

Question 3

When can the government regulate symbolic speech?

Answer 3

1. Regulation furthers important gov. interest;
2. Interest is unrelated to suppression of the message; and
3. Impact on speech is no greater than necessary to achieve interest

Question 4

Are restrictions on the following constitutional:

1. Flag burning
2. Public nudity
3. Leafleting
4. Cross-burning

Answer 4

1. Unconstitutional
2. Constitutional b/c interest in harmful effects
3. Constitutional b/c interest in littering
4. Constitutional if meant to threaten

Question 5

Define

content-based restriction

Answer 5

Restriction based on the speech’s subject matter; i.e. disagreement with the message it contains. Can be either content-based on its face or as applied.

⭐️ Subject to strict scrutiny ⭐️

Question 6

What 5 types of speech can be regulated on the basis of content? (i.e. unprotected speech)

Answer 6

1. Obscenity;
2. Incitement;
3. Fighting words;
4. Defamation; and
5. Commercial speech

⭐️ Can be regulated as long as statute is narrow, does not need to meet strict scrutiny

Question 7

Define

content-neutral restriction

Answer 7

Applies neutrally to all content regardless of viewpoint or subject matter.

Ex. time, place, or manner restriction

⭐️ Subject to intermediate scrutiny

Question 8

Define

public forum

Answer 8

Places historically open to the public for expression (e.g. parks and sidewalks). Can be either traditional or designated.

Question 9

Distinguish traditional vs. designated public forum

Answer 9

Traditional: traditional public areas (e.g. sidewalks, parks, etc.) that cannot be changed into nonpublic forums

Designated: Designated as public forums during certain hours or in general (e.g. municipal meeting rooms). Can be changed into nonpublic forums

Question 10

3 requirements needed for a valid time, place, or manner restriction in a public forum

Answer 10

Restriction is:

1. Content-neutral;
2. Leaves open ample, alternative channels of communication; and
3. Narrowly tailored to serve significant government interest (not compelling gov. interest)

Question 11

Is there a right to picket a single residence?

Answer 11

No

Question 12

When will a regulation on speech in a designated public forum be upheld?

Answer 12

When forum is open for speech and:

1. Regulates time, place, or manner (i.e. is content-neutral);
2. Is narrowly tailored to serve significant government interest; and
3. Leaves open ample, alternative channels of communication

(same as test for traditional public forum)

Question 13

Define

non-public forum

Answer 13

Public property that is not open to speech (e.g. schools, jails, airports)

Question 14

When is a restriction on speech in a non-public forum valid?

Answer 14

1. Viewpoint neutral (**does not need to be content neutral); and
2. Reasonably related to a legitimate government purpose

Question 15

Define

viewpoint neutral restriction

Answer 15

One that restricts entire categories of speech, but not viewpoints within a category

Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only anti-Second Amendment speech would not be allowed

Question 16

Define

prior restraint

Answer 16

Blocks speech before it is expressed. Subject to strict scrutiny.

⚠️ Highy unfavored and presumptively unconstitutional except in extremely rare instances

More info: Prior Restraint

Question 17

When is a prior restraint on speech allowed?

Answer 17

Only allowed in extremely rare circumstances such as:

• During wartime or national security crisis to protect troops/citizens; or
• To prevent incitement of violence

Question 18

Define

overbroad

Answer 18

Regulation that restricts substantially more speech than is constitutionally allowed (i.e. restricts unprotected and protected speech).

Renders regulation void.

Question 19

Define

vagueness

Answer 19

Restriction is void for vagueness if reasonable person does not understand what the law requires or prohibits

Question 20

Can the government restrict inmates’ free speech?

Answer 20

Yes, as long as the regulation is rationally related to a legitimate penalogical objective and an alternate way to express legitimate speech is available

⚠️ Note: This includes pretrial detainees, parolees, and those on probation

Question 21

Does the press have more First Amendment rights than the general public?

Answer 21

No, same rights public at large

Question 22

Is the media protected by the First Amendment for publishing a lawfully obtained private fact? (e.g. identity of a rape victim)

Answer 22

Yes, as long as story is matter of public concern (i.e. newsworthy)

Question 23

Are gag orders constitutional?

Answer 23

Very rarely constitutional, unless they are the least restrictive means necessary to ensure D has a fair trial (usually alternatives such as better voir dire, venue change, or postponement are available)

Question 24

Do the public and press have a right to attend trials?

Answer 24

Criminal trials: Yes, but can be overruled upon showing of overriding interest

Civil trials: Unclear

Question 25

Can the government regulate broadcast TV?

Answer 25

Can only fine stations for airing “patently offensive and excretory speech”

Question 26

Content-based regulations of cable TV are subject to what level of scrutiny?

Answer 26

Strict scrutiny

Question 27

Content-neutral regulations of cable TV are subject to what level of scrutiny?

Answer 27

Intermediate Scrutiny

(e.g. “must carry” provisions)

Question 28

What is the 3-prong test to determine whether speech is obscene?

Answer 28

1. Appeals to “prurient interests;” (community standard)
2. Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and
3. Lacks serious artistic, literary, political, or scientific value as determined by national standards

⚠️ Note: Sexual expression that is indecent but not patently offensive is protected by the First Amendment.

Question 29

Are zoning restrictions on adult entertainment establishments constitutional?

Answer 29

Yes, if zoning is to prevent adverse “secondary effects” caused by the business, such as increased neighborhood crime (“secondary effects doctrine”)

Question 30

Is profanity protected?

Answer 30

Yes unless:

1. Broadcast over public television; or
2. In public schools

Question 31

When can the government regulate speech that is incitement to violence?

Answer 31

Regulation must be narrowly tailored and only aimed at:

1. Speech that promotes or directs imminent illegal action; and
2. Creates a “clear and present danger” of such action

Question 32

Define

fighting words

Answer 32

Substantially likely to provoke an immediate violent reaction (e.g. direct personal insult)

Question 33

Are attempts to limit fighting words constitutional?

Answer 33

Limitations will almost always fail for being either overbroad, vague, or viewpoint-based and thus failing strict scrutiny

⭐️ If you see a question on the MBE with a fighting word statute, it is extremely likely it will be too vague or overbroad

Question 34

Define

commercial speech

Answer 34

Speech whose primary goal is commerce (e.g. commercial or advertisement for a product or service)

Question 35

What is the four-part test to determine whether regulation of commercial speech is constitutional?

Answer 35

Must satisfy Central Hudson Test:

1. Speech is not false, misleading, or illegal;
2. Regulation serves substantial government interest;
3. Regulation directly advances interest; and
4. Regulation is not more extensive than necessary to serve that interest

More info: Central Hudson Test

Question 36

What is unprotected commercial speech?

Answer 36

Speech that is misleading, false, or unlawful and can be regulated freely by the government

Question 37

What is unprotected commercial speech?

Answer 37

Speech that is misleading, false, or unlawful and can be regulated freely by the government