The First Amendment – Flashcards
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The First Amendment
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Constitution's Protection of Free Speech
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The First Amendment
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In general, a regulation seeking to forbid communication of specific ideas (i.e. content regulation) is LESS likely to be upheld than a regulation of conduct incidental to speech.
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The distinction between content based restrictions & content neutral restrictions Content Based Restrictions
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Content based restrictions on speech generally must meet strict scrutiny. There are two alternative ways of finding that a law is content based: 1. Subject matter jurisdiction 2. viewpoint discrimination (application of the law depends of ideology of the speech
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The distinction between content based restrictions & content neutral restrictions Content Neutral Restrictions
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Content neutral laws generally need only meet intermediate scrutiny. Law applies to all speech - doesn't matter what the subject is.
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Prior Restraints
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Stopping Speech before it occurs Court orders suppressing speech must meet strict scrutiny.
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Prior Restraints & Procedurally proper court orders.
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Must be complied with until they are vacated or overturned.
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Prior Restraints & Person who violates a court order.
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A person who violates a court order is barred later from challenging it.
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Prior Restraints & Gag Orders on the press
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Gag Orders on the press to prevent prejudicial pre-trial publicity are not allowed.
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When can the government require a license for speech?
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Only if there is an important reason for licensing AND clear criteria leaving almost no discretion to the licensing authority. In addition, there must be procedural safeguards such as prompt determination of requests for licenses and judicial review of license denials.
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Vagueness
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A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what speech is allowed.
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Overbreadth
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A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
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Fighting Words
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Fighting words are not protected speech, but statutes attempting to punish the use of such words are often found to be void for vagueness.
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Symbolic Speech
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The government may regulate conduct that communicates if it has an important interest unrelated to the suppression of the message and if the impact on communication is no greater than necessary to achieve the government's goal.
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Symbolic Speech Specifically:
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Flag Burning: Protected speech. Form of political protest. Nude Dancing: Not protected speech - may be protected. Burning a Cross: Protected unless done with intent of intimidation. Contribution limits in election campaigns are allowed. Expenditure limits in campaigns are NOT allowed.
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Symbolic Speech NOTE
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The Government cannot limit the amount a person spends to get a candidate elected, as long as the expenditures are independent of the candidate and are not disguised contributions. Thus, corporations, unions & other entities may spend whatever they wish to get a candidate elected.
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Anonymous Speech is protected by the First Amendment
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Note: A state's interest in promoting transparency and accountability in elections is sufficient to justify public disclosure of homes & addresses of persons who sign ballot petitions (see citizens united)
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Speech by the government cannot be challenged as violating the First Amendment.
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Generally, government speech and government funding of speech will be upheld as long as it is rationally related to a legitimate state interest. BUT spending programs may not impose conditions that limit First Amendment activities of fun receipts outside the scope of the spending program itself.
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What types of speech are unprotected by the First Amendment? Incitement of Illegal Activity
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Incitement of Illegal activity The Test: The government may punish speech if there is a substantial likelihood of imminent illegal activity AND if the speech is directed to causing imminent illegality.
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What types of speech are unprotected by the First Amendment? Obscenity and Sexually-Oriented Speech
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The Test: The material must appeal to the prurient interest, or a "shameful or morbid interest in sex." The material must be patently offensive under the law prohibiting obscenity. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value as determined by a national standard.
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What types of speech are unprotected by the First Amendment? Obscenity and Sexually-Oriented Speech
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The government may use zoning ordinances to regulate the number or location of adult bookstores and movie theaters. Child pornography may be completely banned even if not "obscure."
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What types of speech are unprotected by the First Amendment? Obscenity and Sexually-Oriented Speech
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The government may not punish private possession of obscure materials; but the government may punish private possession of child pornography The government may seize the assets of businesses convicted of violating obscenity laws.
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What types of speech are unprotected by the First Amendment? Obscenity and Sexually-Oriented Speech
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Profane & indecent speech is generally protected by the First Amendment 1. Exception: Free, over the air broadcast media, i.e. television and radio 2. Exception: In Schools.
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What types of speech are unprotected by the First Amendment? Obscenity and Sexually-Oriented Speech
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Falsity in and of itself does NOT make speech unprotected. Where it IS protected, it is based on the harm caused.
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Commercial Speech
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Advertising for illegal activity, and false and deceptive ads are not protected by the First Amendment.
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Commercial Speech
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Even true commercial speech that inherently risks deception can be prohibited. 1. States may prevent professionals from advertising or practicing under a trade name. 2. States may prohibit attorney, in person solicitation of clients for profit. 3. The government may not prohibit accountants from in-person solicitation of clients for profit.
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Commercial Speech Lawyers who advertise as debt relief agencies.
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Lawyers who advertise as debt relief agencies can be required to include information about their legal status & nature of the assistance provided.
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Other Commercial Speech
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Other commercial speech can be regulated by the government if intermediate scrutiny is met.
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Government Regulation of Commercial Speech
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Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.
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A state may NOT prohibit the
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sales/rental of of violent video games to a minor and the court refused to add violence as an additional area of unprotected speech.
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Defamation
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If the P is a public official or running for public office, the P can recover for defamation only by proving with clear and convincing evidence the falsity of the statement and actual malice, meaning that the D KNEW the statement was FALSE or acted with RECKLESS disregard for the truth.
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Defamation where P is a public figure
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The P can recover for defamation by proving FALSITY of the statement and ACTUAL malice.
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Defamation when P is a private figure and the matter is of public concern
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A state may allow the P to recover compensatory damages for defamation by proving falsity of the statement and negligence by the D -- that is that the speaker was not as careful as a reasonable speaker should have been. However, the P may recover presumed or punitive damages only by showing actual malice.
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Defamation and P being a "private" figure and the matter is not of "public concern,"
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the P can recover presumed or punitive damages without proving actual malice
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Liability for intentional infliction of emotional distress for defamatory speech must meet the defamation standards
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AND cannot exist for speech otherwise protected by the first amendment.
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Privacy and the First Amendment
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A state may not create liability for the truthful reporting of information that was legally obtained for the government's records.
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Privacy, The First Amendment and the media
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The media may not be held liable for broadcasting a tape of a illegal intercepted and recorded call, so long as the media did not participate in the illegality and it involves a matter of public importance.
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Privacy, The First Amendment, and the Government
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The gov't may restrict its own dissemination to protect privacy, the only instance where the public has a First Amendment Right to attend government proceedings and have access to government papers is for criminal trials and criminal pretrial proceedings.
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First Amendment and Government Employees
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Speech by government employees on the job in the performance of their duties is not protected by the First Amendment.
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All other government restrictions based on the content of speech must meet strict scrutiny.
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All other government restrictions based on the content of speech must meet strict scrutiny.
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What places are available for speech?
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Public Forums - these are government properties that the government constitutionally required to make available for speech. 1. Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met. 2. Regulations must be a time, place or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication . 3. Government regulation of speech in public forums need not use the least restrictive alternative. 4. Permit fee requirements for parades and demonstrations are unconstitutional if city officials have discretion in setting the amount of the fee.
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Designated Public Forums
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These are government properties that the government could close off to speech, but chooses voluntarily to keep open to speech. The same rules apply as for public forums.
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Limited Public Forums
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Government Properties that are limited to certain groups or dedicated to the discussion of certain topics can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral.
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Non-public Forums
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These are government properties that the government constitutionally can and does close off to speech, but chooses voluntarily to open to speech. The same rules apply as for public forums.
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Examples of non-public forums
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Military Bases Areas Outside Prisons and Jails Schools
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Non-public Forum Note:
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A public law school that officially recognized and funded student groups from activity fees could require that the groups accepted all students regardless of their status or beliefs because it is viewpoint neutral and reasonably related to school purposes such as encouraging tolerance (See Christian Legal Society Case)
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Signs on Public Property
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USSC has held that they're not considered public forum
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Sidewalks
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Special Exception: Sidewalk outside of the post office = not considered a public forum
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Airports
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Non-public Forum: USSC held prohibit solicitation of money, but cannot prohibit distribution of literature.
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Threats
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Statutes re: punishment made for threats are constitutional. Content based restriction is permissible on speech where the speech creates a clear and present danger of imminent lawless action. -- if the words are for mere political commentary - then it is protected.
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Curriculum based public high school activities are not public forums
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Content regulation of non public forums is allowed so long as the regulation is viewpoint neutral and reasonably related to a legitimate government interest.
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In areas of public employment, neither standards of conduct nor loyalty oaths may be vague or over broad.
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Precision is required because of the potential chilling effect on First Amendment rights.
