MEJO 342

miller test

- modern obscenity test - trier of the fact must be asked... - whether the average person applying contemporary community standards would find that the work taken as a whole appeals to prurient interests (roth) (arouses sexual lust) - whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law (is hardcore porn) - the work taken as a whole lacks serious literary, artistic, political or scientific value (has no serious social value)

roth test

- old obscenity test - whether the average person - applying contemporary community standards - the dominant theme of the material taken as a whole - appeals to prurient interest

public forums

- public-property that has historically been open to speech-related activity - govt may regulate speech in public forum with reasonable time, place and manner regulations - to be valid, govt regulations of speech and assembly in public forums must... - be content neutral - be narrowly tailored to serve an important govt interest - leave open alternate channels of communication

forums

- regulations involving public forums must be narrowly tailored - regulations involving nonpublic forums are subject to rational basis review

speech in schools

- schools are not a public forum - speech and association can be reasonably regulated to serve the school's educational mission

true threats

- speech directed toward an individual or historically identified group with the intent of causing fear and harm - laws can constitutionally target this subset of fighting words

incitement & brandenburg test

- standard created via brandenburg v ohio (KKK leader who made anti-semitic and racist speeches) - govt may punish advocacy of violence only by showing... - the advocacy was intended to and likely to incite imminent lawless action

levels of scrutiny

- strict scrutiny: most rigorous, requires govt to employ least restrictive means to achieve its compelling govt interest; restriction must be narrowly drawn, tightest fit - intermediate scrutiny: important/substantial govt interest; can adopt content-neutral time, place and manner regulations - rational basis review: lowest form of judicial scrutiny; govt must have a legitimate state interest in regulating the matter; regulation will be upheld unless the legislature has made an arbitrary or irrational decision

first amendment doctrines

- theory is why, doctrine is how - explains how we will decide whether a particular instance of speech should be protected or not

tinker test

- tinker v des moines (black armbands to protest vietnam war) - substantial disruption test - is the speech disruptive? if the speech disrupts the functioning of the public school or violates the rights and interests of other students, it may be regulated under tinker

o'brien test

- used for regulation on symbolic conduct - US v o'brien, burning draft cards - under this test, courts find a law content-neutral and constitutional if... - it is unrelated to the suppression of speech - advances an important govt interest - is narrowly tailored to achieve that interest while only incidentally restricting protected speech

time, place and manner restrictions

also called content-neutral laws; imposed by the govt on expressive activity (ex: limits on noise level of speech, limits on size and location of signs on govt property)

fighting words

words not protected by the first amendment bc they are directed at an individual and cause immediate harm or trigger violent response

central hudson test

- if the speech at issue is commercial speech, govt evaluates using central hudson test - is the ad false or misleading, or is ti an illegal product or service? - does the govt have a "substantial interest" in regulation? - does the regulation directly advance the govt interest? - is the regulation sufficiently narrow?

commercial vs political speech

- intermediate scrutiny (commercial) vs strict scrutiny (political) - false commercial speech is not protected by 1A, false political speech most likely is - prior restraints are allowed on commercial speech but usually not on political speech

the hazelwood test

- hazelwood school district v kuhlmeier (school newspaper) - is the speech sponsored by the school or perceived to reflect the school's official position and endorsement? If the speech is closely associated with the school's activities, curriculum or policies, it may be regulated under hazelwood

Federalism

- The idea that the federal and state govts work together but the constitution is the supreme law of the land and neither can violate it - Expressed powers: federal govt; print money, raise an army, declare war, etc - Reserved powers: state govt; education, police protection, health and safety, etc - Concurrent powers: both; taxation, court systems, borrow and spend money, etc

The fraser approach

- bethel school district v fraser (inappropriate speech) - profane or offensive speech in public schools - is the speech of low value? if the speech is lewd or it conflicts with the school's pedagogical goals or public values, it may be regulated under fraser

Theories of the first amendment

- big picture answers to why we protect free expression - marketplace of ideas: allows the public to compare competing ideas, the assumption is that the truth will prevail, however there is often no objective truth and it fails to account for the harm that can be caused by false ideas - democratic self-governance: to self-govern people need access to info, facts, opinions, ideas; without this people can't make informed electoral opinions; however this does not support speech that is unrelated to self-government - self-fulfillment: people need to be able to express themselves; however individual freedom is not necessarily more important than other interests - "safety valve" function: if people can vent, they are less likely to resort to violence - "watchdog" function: checking abuse of govt power - promoting tolerance: "toughen up buttercup"

types of laws

- content-based: unconstitutional for govt to place burdens on speech bc of its content; subject to strict scrutiny (political speech) - content-neutral: commercial speech, subject to intermediate scrutiny; time, place and manner - laws of general applicability: subject to rational basis review

categories of speech

- core protected speech: highest level of protection; restrictions on core protected speech receive strict scrutiny and are rarely upheld - commercial speech: govt can regulate more easily, receives intermediate scrutiny - unprotected speech: doesn't receive govt protection, any benefit that may be derived from such speech is clearly outweighed by social interest in order and morality; rational basis review

Judicial review

- established via marbury v madison - not expressly provided by the constitution, either the founders thought it was made clear by the structure of govt or that the issue wouldn't come up - the actions of the executive and legislative branches are subject to review and possible invalidation - the power to declare laws unconstitutional

Types of Supreme Court opinions

-opinion of the court: majority opinion - dissenting opinion: minority opinion, when one or more judges disagrees with the majority opinion and writes a formal explanation for why - concurring: an opinion filed by a judge who agrees with the majority or plurality opinion, but gives different reasons as to why - plurality opinion: not enough votes to constitute a majority, the plurality opinion is the opinion that received the most votes - per curium opinion: unsigned opinion, does not identify any specific judge who wrote the opinion, opinion written in the name of the court - memorandum order: announcing the vote without providing an explanation, only gives the results of a court's decision, doesn't include any reasoning or explanation