The First Amendment- Freedom of Speech and Assembly

Question 1

Content-based restrictions on speech generally must meet what test?

Answer 1

Strict Scrutiny

Question 2

What are the two types of content based laws?

Answer 2

1. subject matter restrictions (application of the law depends on the topic of the message)
2. viewpoint restrictions (application of the law depends on the ideology of the message)

Question 3

Content-neutral laws burdening speech generally need to meet what test?

Answer 3

intermediate scrutiny

Question 4

What is a prior restraint?

Answer 4

judicial order by administrative system that stops speech before it occurs.

Question 5

Court orders suppressing speech must meet what test?

Answer 5

strict scrutiny

Question 6

Must procedurally proper court orders wrongfully suppressing speech be complied with?

Answer 6

Yes

Question 7

If a person violates a court order what is their punishment procedurally?

Answer 7

A person who violates a court order is barred from later challenging it.

Question 8

Can the government require a license for speech?

Answer 8

Yes

Question 9

Under what circumstances can the government require a license for speech? (what’s the test?)

Answer 9

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

Question 10

What is vagueness? (as applied to con law)

Answer 10

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed

Question 11

What is overbreadth?

Answer 11

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

Question 12

Can the government regulate symbolic speech?

Answer 12

Yes

Question 13

Under what circumstances can the government regulate symbolic speech? (what’s the test?)

Answer 13

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

Question 14

Is it protected symbolic speech? Flag burning

Answer 14

Yes

Question 15

Is it protected symbolic speech? Draft card burning

Answer 15

No

Question 16

Is it protected symbolic speech? Nude dancing

Answer 16

No

Question 17

Is it protected symbolic speech? Burning cross

Answer 17

Yes, burning cross is protected unless threat

Question 18

Is anonymous speech protected?

Answer 18

Yes

Question 19

Is it constitutional?: Contribution limits (for politics)

Answer 19

Yes

Question 20

Is it constitutional?: Expenditure limits (for politics)

Answer 20

No, it is protected under the 1st amendment right to speak anonymously.

Question 21

Can speech by government be challenged as violating the first amendment?

Answer 21

No

Question 22

What is a public forum?

Answer 22

Public property that has historically been open to speech-related activities/

Question 23

What are designated public forums?

Answer 23

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.

Question 24

May the government regulate speech in public and designated public forums? What’s the test?

Answer 24

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

Question 25

What is the test applied to government regulation of public and designated public forums?

Answer 25

Regulations must be; (i) are content-neutral (ii) are narrowly tailored to serve an important government interest (iii) leave open alternative channels of communication

Question 26

What are limited public forums?

Answer 26

Government property not historically linked with speech and assembly, but opened for such a particular purpose.

Question 27

What are nonpublic forums?

Answer 27

Places never opened for public speech

Question 28

What are examples of limited public forums?

Answer 28

School gym open to host a debate on a particular community issue

Question 29

What's are examples of nonpublic forums?

Answer 29

Military bases, schools while classes are in session, government workplaces

Question 30

Can the government regulate nonpublic and limited public forums? If so what's the test?

Answer 30

Yes, if the regulations are: (i) viewpoint neutral (ii) reasonably related to a legitimate government purpose

Question 31

In what categories does the government have a compelling interest in, and thus are unprotected under the First Amendment?

Answer 31

``` Inciting imminent lawless action Fighting words Obscenity Defamatory Speech Some Commercial Speech ```

Question 32

What is the rule regarding inciting imminent lawless action?

Answer 32

Speech can be burdened if it creates a clear and present danger of imminent lawless action.

Question 33

What is the test of clear and present danger?

Answer 33

The imminent lawless conduct must be likely and that the speaker intended to cause it.

Question 34

What are fighting words?

Answer 34

True threats, personally abusive words likely to incite immediate physical retaliation

Question 35

What is the test of obscenity?

Answer 35

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

Question 36

Can a state adopt different standards of obscenity if minors are involved?

Answer 36

Yes. It may not even have to be obscene but rather just basic depictions of minors

Question 37

Joe runs a digital pornography website, where he uses computer generated images of minors engaging in his sexual fantasies. Is this obscene?

Answer 37

No, the use of computer generated minors does not classify as using minors.

Question 38

How can a state or local government use a land or zoning regulation to curb adult entertainment?

Answer 38

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)

Question 39

Can defamatory statements be burdened?

Answer 39

Yes

Question 40

What does the First Amendment require to prove a defamation case against a public figure?

Answer 40

Elements of defamation plus falsity and some degree of fault...e.g actual malice

Question 41

What does the First Amendment require to prove a defamation case against a public official?

Answer 41

Elements of defamation plus falsity and some degree of fault,...e.g. actual malice

Question 42

What What does the First Amendment require to prove a defamation case involving a matter of public concern?

Answer 42

Elements of defamation plus falsity and some degree of fault,...e.g. actual malice

Question 43

When may a state always regulate commercial speech?

Answer 43

if the speech proposes unlawful activity, or that is misleading or fraudulent.

Question 44

What if a regulation upon commercial speech does not involve unlawful activity, or fraud, what is required for that regulation to be upheld? (TEST)

Answer 44

Upheld only if it: (i) Serves a substantial government interest ; (ii) Directly advances that interest; and (iii) Is narrowly tailored to serve that interest

Question 45

To be valid, a system for prior restraints must provide what?

Answer 45

(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

Question 46

Is prohibiting publishing the movements of troops in times of war valid?

Answer 46

Yes

Question 47

Is enforcing contractual prepublication review of CIA agent's writings valid?

Answer 47

Yes

Question 48

Is prohibiting publication of the Pentagon Papers because it might have an effect on the Vietnam War valid?

Answer 48

No

Question 49

Is prohibiting grand juries witnesses from ever disclosing testimony valid?

Answer 49

No.