Free Speech

Question 1

Do the courts like to regulate speech?

Answer 1

NO

• Courts always try and go for more speech instead of less speech

Question 2

What happens when the government is concerned about the message of the speech?

Answer 2

• Gets a higher level of scrutiny

Question 3

Content-Neutral

Answer 3

• Laws that have nothing to do with a message of speech

Ex:

• Laws which bans any burning on your land
• Cannot post any signs on light poles in city

Question 4

What does Content- Neutral laws get for level of review with speech?

Answer 4

• Some sort of immediate scrutiny

Question 5

Content-Based

Answer 5

Government regulation based on the message

Ex:

• Cannot burn crosses in a yard
• City makes a law “no political signs on light poles”

-Government is concerned with the message or the content, most likely its content based

Question 6

What does Content-Based laws get for level of review with speech?

Answer 6

STRICT SCRUTINY

Question 7

View Point

Answer 7

When government takes one side in a dispute, that is view point

Question 8

How to argue a law that regulates speech is unconstitutional?

Answer 8

1) Vagueness

2) Over breadth

Question 9

Vague

Answer 9

When a reasonable person cannot tell from the face of the law whether it is allowable speech or not allowable speech

Question 10

Overbreadth

Answer 10

If speech restriction BANS SUBSTANTIALLY more speech than it is permitted to, then it is overbroad and unconstitutional

Question 11

Prior Restraint

Answer 11

• Judicial Restraint (restraining order)
• A license on speech

Government bears a HEAVY burden if it seeks prior restraint, usually struck.

-Look for when government asks court for injunction for a person not to speak or not to print something

Ex: Parade Permits

Question 12

Permit on speech. What must happen for to be allowed

Answer 12

Must be speech neutral and

1) Clear and
2) Leave no discretion for government actor

• Presumption against prior restraint on speech

Ex:
Organization wants to have parade, if government leaves discretion to grant or deny the permit based on speech, violation.

Question 13

What can clear standards be in Permit on Speech?

Answer 13

Can occur only certain places, times, certain amount of people

• Look for content neutral of clear standards that have no discretion left for the government to allow permit

Question 14

Is government funding on speech a problem for free speech?

Answer 14

NO

• Just because right of free speech does not mean government has a right to fund speech.
• Funding on the condition of speech is not really a free problem at all.

Question 15

Compelled speech and money

Answer 15

in general government cannot compel you to speak. But if government giving money, can tell you how to speak when using the money

Question 16

Does government have a right to fund your speech?

Answer 16

NOOO

• While you have a right to speak, the government does not have a right to fund your speech

Ex: Dr who receive federal funding cannot council patients on their options of abortion. Not speech problem, b/c government can tell you how to spend federal funding

Question 17

Unprotected Speech

Answer 17

1) incitement of illegal activity
2) fighting words
3) true threats
4) obscenity

• If falls into one of these categories then government can regulate it. EVE IF IT IS REGULATION BY CONTENT
• can totally ban, and can totally criminalize b/c it has no valued speech and not protected by first amendment.

Question 18

Types of “Lesser Protected Speech”

Answer 18

1) Profanity
2) Commercial speech
3) Defamation

Question 19

Incitement test

Answer 19

1) has to be LAWLESS
2) speech has to be directed at IMMINENT lawless action
3) a likelihood of producing ILLEGAL ACTION and
4) an intent to cause IMMINENT illegality

Question 20

What is imminent under incitement?

Answer 20

Imminent must be RIGHT AWAY

Question 21

Fighting Words Test

Answer 21

those by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Question 22

Can government ban fighting words

Answer 22

• Yes
• When the purpose is to ban ALL FIGHTING WORDS that is ok, if it is to ban some SUB- CONTENT of fighting words that is subject to ordinary SS for content based discrimination

Question 23

What if government bans sub-content fighting words

Answer 23

• It is subject to SS

Question 24

Ex of sub content fighting words

Answer 24

• Cross burning

Question 25

How to argue incitement/ Fighting words

Answer 25

1) law is content based/ view point based - SS - Doesn't fit an exception 2) Overbreadth - even if proscribes some speech, it proscribes even more than is allowed by the government 3) Vagueness - A reasonable person doesn't know by the language what is allowed and what is not

Question 26

how to prevent Hecklers veto?

Answer 26

- Officers first have to control the crowd before the speaker b/c of the speakers speech is being vetoed

Question 27

When can the cops calm the speaker before the crowd under the hecklers veto?

Answer 27

- if speaker is making incitement speech or fighting words then police can calm the speaker first

Question 28

Can the government ban all true threats?

Answer 28

Yes - Can ban all true threats, no problem with content-based or viewpoint discrimination

Question 29

Is pornography protected speech

Answer 29

Yes -

Question 30

Can government do certain zonings on pornography/

Answer 30

Yes -B/c not discrimination on speech but the effects of the speech

Question 31

Can government ban child pornography?

Answer 31

YES

Question 32

Can government ban actors or computer animated actor for child porngrpahy?

Answer 32

No - has to be an actual child, not cpu or actor - govt interest is in protecting children, does not protect them if they are not involved

Question 33

Can government ban obscenity in the home?

Answer 33

No -but can ban child pornos in home

Question 34

Obscenity test

Answer 34

Average person std 1) Whether the average person, applying contempaorary community standards would find that the work, taken as a whole, appeals to the prurient interest 2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law 3) Whether the word, taken as a whole, lacks serious literary, artistic, poltical or scientific value

Question 35

What happens if content regulation of speech but does not fall under incitement, fighting words, true threats, or obscentity?

Answer 35

Look at profanity

Question 36

Test for profanity

Answer 36

TOTALITY OF THE CIRCUMSTANCES 1) location: where it was said - look to the audience 2) Avertability: can people avert their eyes? 3) Time of the day

Question 37

Commercial speech Test

Answer 37

1) Does the speech advertise illegal activites or constitute false or deceptive advertising that is unprotected by the 1st amendment? 2) is the governments restriction justified by a substantial government interest? - kind of like intermediate scrutiny 3) does the law directly advance the governments interest 4) is the regulation of speech no more extensive than necessary to achieve the governments interest - For commercial speech to come within this provision it must concern lawful activity and not be misleading - Whether the assereted governmental interest is substantial - If both answer yes, determine whether the regulation directly advances the governmental interest asserted and whether it is not more extensive than is necessary to serve that interest

Question 38

Defamation for public figure

Answer 38

1) P must be a public official or running for public office 2) P must prove his or her case with clear and convicing evidence 3) P must prove falsity of the statement and 4) P must prove ACTUAL MALICE- that D knew the statement was false or acted with reckless disregard for the truth

Question 39

Defamation private figure

Answer 39

1) mere negligence not actual malice | - can get compensatory damages for negligence, if want punitive damages need actual malice

Question 40

Conduct as Speech Test

Answer 40

1) Government regulation is sufficiently justified if it is within the constitutional power of the Government; 2) If it furthers an important or substantial government interest, 3) If the governmental interest is unrelated to the suppression of free expression, and 4) If the incidental restriction alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Question 41

What must state due to regulate conduct as speech?

Answer 41

- must be regulating for something else besides preventing speech