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Constitutional Law > The First Amendment- Freedom of Speech and Assembly > Flashcards

The First Amendment- Freedom of Speech and Assembly Flashcards

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1
Q

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

A

Strict Scrutiny

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2
Q

What are the two types of content based laws?

A
  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)
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3
Q

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

A

intermediate scrutiny

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4
Q

What is a prior restraint?

A

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

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5
Q

Court orders suppressing speech must meet what test?

A

strict scrutiny

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6
Q

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

A

Yes

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7
Q

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

A

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

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8
Q

Can the government require a license for speech?

A

Yes

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9
Q

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

A

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

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10
Q

What is vagueness? (as applied to con law)

A

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

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11
Q

What is overbreadth?

A

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

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12
Q

Can the government regulate symbolic speech?

A

Yes

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13
Q

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

A

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

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14
Q

Is it protected symbolic speech? Flag burning

A

Yes

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15
Q

Is it protected symbolic speech? Draft card burning

A

No

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16
Q

Is it protected symbolic speech? Nude dancing

A

No

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17
Q

Is it protected symbolic speech? Burning cross

A

Yes, burning cross is protected unless threat

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18
Q

Is anonymous speech protected?

A

Yes

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19
Q

Is it constitutional?: Contribution limits (for politics)

A

Yes

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20
Q

Is it constitutional?: Expenditure limits (for politics)

A

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

21
Q

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

A

No

22
Q

What is a public forum?

A

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

23
Q

What are designated public forums?

A

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.

24
Q

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

A

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

25
Q

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

A

Regulations must be;

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

26
Q

What are limited public forums?

A

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

27
Q

What are nonpublic forums?

A

Places never opened for public speech

28
Q

What are examples of limited public forums?

A

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

29
Q

What’s are examples of nonpublic forums?

A

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

30
Q

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

A

Yes, if the regulations are:

(i) viewpoint neutral
(ii) reasonably related to a legitimate government purpose

31
Q

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

A 
Inciting imminent lawless action
Fighting words
Obscenity
Defamatory Speech
Some Commercial Speech
32
Q

What is the rule regarding inciting imminent lawless action?

A

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

33
Q

What is the test of clear and present danger?

A

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

34
Q

What are fighting words?

A

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

35
Q

What is the test of obscenity?

A

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

36
Q

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

A

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

37
Q

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

A

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

38
Q

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

A

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)

39
Q

Can defamatory statements be burdened?

A

Yes

40
Q

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

A

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

41
Q

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

A

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

42
Q

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

A

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

43
Q

When may a state always regulate commercial speech?

A

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

44
Q

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

A

Upheld only if it:

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

45
Q

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

A

(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

46
Q

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

A

Yes

47
Q

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

A

Yes

48
Q

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

A

No

49
Q

Is prohibiting grand juries witnesses from ever disclosing testimony valid?

A

No.

Constitutional Law (14 decks)

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