The First Amendment- Freedom of Speech and Assembly Flashcards
Content-based restrictions on speech generally must meet what test?
Strict Scrutiny
What are the two types of content based laws?
- subject matter restrictions (application of the law depends on the topic of the message)
- viewpoint restrictions (application of the law depends on the ideology of the message)
Content-neutral laws burdening speech generally need to meet what test?
intermediate scrutiny
What is a prior restraint?
judicial order by administrative system that stops speech before it occurs.
Court orders suppressing speech must meet what test?
strict scrutiny
Must procedurally proper court orders wrongfully suppressing speech be complied with?
Yes
If a person violates a court order what is their punishment procedurally?
A person who violates a court order is barred from later challenging it.
Can the government require a license for speech?
Yes
Under what circumstances can the government require a license for speech? (what’s the test?)
only if there is an
1) important reason for licensing and
2) clear criteria leaving almost no discretion to the licensing authority.
3) Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review
What is vagueness? (as applied to con law)
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
What is overbreadth?
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
Can the government regulate symbolic speech?
Yes
Under what circumstances can the government regulate symbolic speech? (what’s the test?)
If the government
1) has an important interest unrelated to suppression of the message and
2) if the impact on communication is no greater than necessary to achieve the government’s purpose
Is it protected symbolic speech? Flag burning
Yes
Is it protected symbolic speech? Draft card burning
No
Is it protected symbolic speech? Nude dancing
No
Is it protected symbolic speech? Burning cross
Yes, burning cross is protected unless threat
Is anonymous speech protected?
Yes
Is it constitutional?: Contribution limits (for politics)
Yes
Is it constitutional?: Expenditure limits (for politics)
No, it is protected under the 1st amendment right to speak anonymously.
Can speech by government be challenged as violating the first amendment?
No
What is a public forum?
Public property that has historically been open to speech-related activities/
What are designated public forums?
Those which have not been historically open to speech but the government has thrown open for such activities on a permanent or limited basis, by practice or policy.
May the government regulate speech in public and designated public forums? What’s the test?
Yes with reasonable time, place and manner regulations that:
(i) are content-neutral
(ii) are narrowly tailored to serve an important government interest
(iii) leave open alternative channels of communication
What is the test applied to government regulation of public and designated public forums?
Regulations must be;
(i) are content-neutral
(ii) are narrowly tailored to serve an important government interest
(iii) leave open alternative channels of communication
What are limited public forums?
Government property not historically linked with speech and assembly, but opened for such a particular purpose.
What are nonpublic forums?
Places never opened for public speech
What are examples of limited public forums?
School gym open to host a debate on a particular community issue
What’s are examples of nonpublic forums?
Military bases, schools while classes are in session, government workplaces
Can the government regulate nonpublic and limited public forums? If so what’s the test?
Yes, if the regulations are:
(i) viewpoint neutral
(ii) reasonably related to a legitimate government purpose
In what categories does the government have a compelling interest in, and thus are unprotected under the First Amendment?
Inciting imminent lawless action Fighting words Obscenity Defamatory Speech Some Commercial Speech
What is the rule regarding inciting imminent lawless action?
Speech can be burdened if it creates a clear and present danger of imminent lawless action.
What is the test of clear and present danger?
The imminent lawless conduct must be likely and that the speaker intended to cause it.
What are fighting words?
True threats, personally abusive words likely to incite immediate physical retaliation
What is the test of obscenity?
First it is not protected speech if it describes or depicts sexual conduct that, taken as a whole, by the average person:
(i) Appeals to the prurient interest in sex, using a community standard
(ii) Is patently offensive and an affront to contemporary community standards; and
(iii) Lacks serious value (literary, artistic, political, or scientific), using a national reasonable person standard
Can a state adopt different standards of obscenity if minors are involved?
Yes. It may not even have to be obscene but rather just basic depictions of minors
Joe runs a digital pornography website, where he uses computer generated images of minors engaging in his sexual fantasies. Is this obscene?
No, the use of computer generated minors does not classify as using minors.
How can a state or local government use a land or zoning regulation to curb adult entertainment?
It may use land or zoning restrictions to determine the location or size of such establishments, IF it is designed to reduce the secondary effects of such businesses (rise in crime rates, drop in property values)
Can defamatory statements be burdened?
Yes
What does the First Amendment require to prove a defamation case against a public figure?
Elements of defamation plus falsity and some degree of fault…e.g actual malice
What does the First Amendment require to prove a defamation case against a public official?
Elements of defamation plus falsity and some degree of fault,…e.g. actual malice
What What does the First Amendment require to prove a defamation case involving a matter of public concern?
Elements of defamation plus falsity and some degree of fault,…e.g. actual malice
When may a state always regulate commercial speech?
if the speech proposes unlawful activity, or that is misleading or fraudulent.
What if a regulation upon commercial speech does not involve unlawful activity, or fraud, what is required for that regulation to be upheld? (TEST)
Upheld only if it:
(i) Serves a substantial government interest ;
(ii) Directly advances that interest; and
(iii) Is narrowly tailored to serve that interest
To be valid, a system for prior restraints must provide what?
(i) The standards must be narrowly drawn, reasonable, and definitive;
(ii) Injunction must be properly sought; and
(iii) There must be prompt and final determination of the validity of the restraint
Is prohibiting publishing the movements of troops in times of war valid?
Yes
Is enforcing contractual prepublication review of CIA agent’s writings valid?
Yes
Is prohibiting publication of the Pentagon Papers because it might have an effect on the Vietnam War valid?
No
Is prohibiting grand juries witnesses from ever disclosing testimony valid?
No.
