MC 3080 Exam 1

What is the O'Brien test? Please be able to identify when this test is appropriate to apply and be prepared to apply the test

**Use when the regulation has both communicative and non-communicative values 1. Is the regulation within the constitutional power of the government? 2. Does regulation further an important or substantial government interest? 3. Is the regulation unrelated to the suppression of expression? 4. Is the incidental restriction of free expression no greater than is essential to further the asserted interest? (narrowly tailored)

How is expressive conduct protected under the First Amendment?

-If gov. regulation is designed specifically to address expression, it must survive STRICT SCRUTINY -If expressive effect is incidental to a different purpose, it must survive INTERMEDIATE SCRUTINY

What are the steps of the strict scrutiny test? Be ready to identify, explain, and apply each step

1. Be necessary 2. Use the least restrictive means 3. To advance a compelling government interest

How may a case generally move through the federal system or state system to reach the highest court in the land?

1. Cases involves a substantial federal issue as a matter of law 2. Federal issue is crucial to the decision 3. Party seeking review exhausted all lower court remedies

What are the major First Amendment values for free speech?

1. Individual liberty -everyone has the right to free speech 2. Self-government - people have opportunity to participate in democracy 3. Limited government power - free speech is a check on the government so it doesn't abuse it's power 4. Attainment of truth - open public discussion allows society to expand understanding 5. Safety valve - free speech allows people to let off steam before it becomes violent 6. Its own end - Free speech is a valuable good and a cherished right

Under the test from Near v. Minnesota, what must be shown to justify it as a prior restraint?

1. It imposes government oversight of whole categories of speech, content, or publication 2. It allows the government to choose what content is acceptable 3. It empowers government censors to ban content before it is distributed to the public

What are the four parts of the Central Hudson test and how has the U.S. Supreme Court defined the key terms from that test?

1. Regulation restricts protected commercial speech 2. Substantial governmental interest demonstrated? 3. Regulation directly and materially advances SGI? 4. Regulation is narrowly tailored?

What is the Supremacy Clause? What is the significance of that clause?

14th Amendment Article 6 sect 2 "There shall be one law that acts as the supreme law of the land and that is the Constitution and all other law must follow"

What do the First Amendment and Fourteenth Amendment protect?

1st: freedom of religion, speech, the press, right to assemble, and petition the government 14th: addresses citizenship rights and equal protection of the laws

What is a facial challenge?

A broad legal argument that the challenged law or policy can never operate in compliance with the Constitution

What is hate speech?

A category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like

What is diversity of citizenship jurisdiction?

A federal court's power to hear any case where the amount in controversy exceeds $75,000 and no plaintiff shares a state of citizenship with any defendant.

What is a limited purpose forum?

A forum traditionally only open to public expression/assembly for specific limited purposes

Example of an overbroad law

A law that sought to limit noisy disturbances of neighborhoods at night would be overborad if it prohibited all discussion out of doors at any time even in commercial districts

What is prior restraint?

Action taken by the government to prohibit publication of a specific document or text before it is distributed to the public; a policy that requires government approval before publication

What is a substantial government interest?

An interest of the government that is substantial or significant (i.e., more than merely convenient or reasonable) but not compelling

What are some examples of protected political speech?

Ballots and voting, electioneering speeches and lobbying, government speech, political cartoons and blogs, etc.

Why have Supreme Court justices questioned the soundness of the clear and present danger test?

Because it did not sufficiently protect unpopular or radical political speech

Why does the First Amendment provide protection for commercial speech?

Because it is the publics rights to receive information and ideas

What is the burden of proof for proving a criminal charge?

Beyond a reasonable doubt: if a judge has ANY doubt then they can't find a party guilty

What is the modern day incitement test?

Bradenburg test Allows punishment of advocacy of illegal action if 1. directed toward inciting immediate violence or illegal action and 2. Likely to produce that action

What did R.A.V. v. St. Paul indicate about regulating hate speech

Cannot impose special prohibitions on those speakers who express views on disfavored subjects

What is a legal precedent? What sets precendent?

Case judgment that established binding authority and guiding principles for cases to follow on closely analogous questions of law within the courts jurisdiction

What are major differences between a civil complaint and a criminal charge?

Civil - plaintiff v. defendant, preponderance of evidence, liability Criminal - state/US v. defendant, beyond a reasonable doubt, not guilty or guilty

What type of speech can only be regulated by regulations that pass the Central Hudson test?

Commercial speech

Identify and define the major sources of American law. Be able to identify examples of each one

Constitution Statutes Equity law Common law Administrative law Executive order

What does it mean for a law to be underinclusive?

Disfavors narrow laws that target a subset of a recognized category for discriminatory treatment

What are the three general levels of a court system?

District Courts Courts of Appeals Supreme Court

What is the clear and present danger test from Schenck v. United States?

Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm

How does the First Amendment protect fighting words?

Does not protect fighting words

Identify how the incitement doctrine, which replaced the clear and present danger test, has evolved via subsequent U.S. Supreme Court rulings and how the definition of unprotected incitement has changed over time

Drew a line between advocating violence as an abstract concept and inciting illegal or violent activity. Bradenburg v. Ohio - It protects people's right to advocate abhorrent things. Hess v. Indiana - there must be media content that would result in violent or unlawful activity immediately after media exposure

What is the significance of Marbury v. Madison to judicial review?

Established the courts' power to interpret laws

In which federal circuit is Louisiana located?

Fifth Circuit

What does government action mean in that context of having constitutional protections from the First Amendment to protect speech?

First 10 amendments explain rights and limits on government- KEY: LIMITED GOVERNMENT POWER

Why is New York Times v. Sullivan significant for advertising and public relations law?

First Amendment protects news media from punishment for unintentional defamation of government officials

Who has the burden of proving a prior restraint is justified?

Government

What is viewpoint discrimination?

Government censorship or punishment of expression based on the ideas or attitudes expressed. Courts will apply a strict scrutiny test to determine whether the government acted constitutionally

What is a nonpublic forum?

Government held property that is not available for public speech and assembly purpose

What is a public forum?

Government property held for use by the public, usually for purposes of exercising rights of speech and assembly

What is a designated public forum?

Government spaces or buildings that are available for public use (within limits)

What is the Due Process Clause of the Fourteenth Amendment?

Guaranteed fair legal proceedings

What is that burden?

Heavy burden

Example of a vague law

Hedges v. Obama U.S. District Court ruled the 2012 National Defense Authorization Act as unconstitutionally vague because it allows the indefinite detention of anyone who supported al-Qaeda or the Taliban and some reporters might be subject to the detention because their sources fell under the law

What type of evidence would indicate a regulation directly and materially advances the asserted substantial governmental interest?

If they are substantial, weighty, or significant

What level of scrutiny is applied when using that test?

Intermediate scrutiny

What constitutional balancing test is applied to evaluate those restrictions? Be able to identify key cases in which the test was applied

Intermediate scrutiny 1. fall within the power of government and 2. advance an important or substantial government interest that is unrelated to suppression of speech and 3. Be narrowly tailored to impose only an incidental restriction on First Amendment freedoms US v. O'Brien

What is expressive conduct?

Involves communicative conduct that is the behavioral equivalent of speech. The conduct itself is the idea or message.

What steps would a court ask to evaluate whether conduct is expressive?

Is there an intent to send a message? Is there a likelihood the message will be understood by a witness? MUST ANSWER YES TO BOTH QUESTIONS

What types of civil cases may be filed in a federal trial court?

Issues involving people in different states, state v. state, and state v. person

Equity law

Law created by judges to apply general principles of ethics and fairness, rather than specific legal rules, to determine the proper remedy for legal harm

What is content-based regulation?

Laws enacted because of the message, the subject matters or the ideas expressed in the regulated speech ALMOST ALWAYS UNCONSTITUTIONAL

What is a content-neutral regulation?

Laws enacted to advance a government purpose unrelated to the content of speech

What is a time-place-manner (TPM) restriction?

Laws regulating the CONDITIONS of speech are more acceptable than those regulating content

What does it mean for a law to be vague?

Laws that either fail to define their terms or use such general language that neither citizens nor judges know with certainty what the laws permit or punish

What is stare decisis?

Literally "stand by the previous decision"

Under what circumstances do taxes, fees or other financial burdens raise serious financial burdens that may threaten freedom of expression?

Moreover, limits on how corporations and unions could fun "electioneering communications" violated the First Amendment

To win a lawsuit for injury caused by media negligence, what must a plaintiff prove?

Must show that the media defendant has a duty of due care, he negligently breached that duty and that breach caused the plaintiff's injury

How has the incitement test been applied to determine whether producers of media content could be liable for inciting immediate unlawful activity?

Nearly impossible to prove. Requires proof media content is likely to cause a reasonable person to act illegally

Does the First Amendment allow governors to punish offensive speech on the bases of the viewpoint expressed by the speech?

No

What is symbolic speech?

Nonverbal expression such as burning flags, wearing armbands, or marching through the streets

What level of constitutional scrutiny is applied to TPM restrictions? Be able to identify key cases in which the test was applied

O'Brien test ex. Ward v. Rock Against Racism

What type of commercial speech falls outside the scope of speech the First Amendment protects?

Obscenity?

Executive order

Orders from a government executive, such as the president, a governor or a mayor, that have the force of law

What does Watts v. United States indicate about the threats and constitutionally protected speech?

Political hyperbole is different than true threats

How is political communication by a corporation treated differently than commercial speech?

Political speech retains its constitutional protection even when it has a corporate source

What is the burden of proof for proving a civil complaint?

Preponderance of evidence: the greater weight of the evidence required in a civil lawsuit

What are arguments for and against each restraint upon expression? Identify examples

Prior restraint = harm Compelled speech Content-based regulation Content-neutral regulation

How is symbolic speech protected by the First Amendment?

Protected because its primary purpose is to express ideas

What did Cohen v. California reveal about First Amendment protection for offensive speech?

Protects the content and emotional value of a message What you say and how you say it have Constitutional protection

What did the U.S. Supreme Court ruling in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council indicate about the free flow of commercial information?

Receives First Amendment protection as long as it is 1. truthful 2. non-deceptive 3. not promoting an unlawful transaction

What is the highest court in the U.S.?

SCOTUS

What are true threats, as that standard of law was described in Virginia v. Black and Elonis v. United States?

Speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety

What is political speech?

Speech that favors or disfavors a particular public issue, policy position or candidate (what the first amendment wants to protect)

What is commercial speech, as the U.S. Supreme Court has defined that concept?

Speech which does no more than propose a commercial transaction

Burden of proof

Standard to be applied to decide if evidence is proof of a ruling

What constitutional balancing test is applied to evaluate a content-based restriction? Identify key cases in which the test was applied

Strict scrutiny test ex. US vs. Alvarez and Texas v. Johnson

What is the difference between a prior restraint and a subsequent punishment?

Subsequent punishment means punishing the purveyor of illegal speech AFTER it is published

What is the constitutional significance of the doctrine incorporation?

The 14th Amendment concept that most of the Bill of Rights applies equally to all states

What are some examples of government action?

The Bill of Rights

When a content-based regulation targets commercial speech, what test of constitutional scrutiny must a court apply to determine whether the regulation is constitutional?

The Central Hudson test

What is subject matter jurisdiction?

The authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority to hear bankruptcy cases.

What is chilling effect?

The discouragement of a constitutional right, especially free speech, by any government practice that creates uncertainty about the proper exercise of that right

What does jurisdiction mean?

The geographic or topical area of responsibility and authority of a court

Administrative law

The orders, rules and regulations promulgated by executive branch administrative agencies to carry out their delegated duties

What is judicial review?

The power of the courts to determine the meaning of the language of the Constitution and to assure that no laws violate constitutional dictates

Constitutional law

The set of laws that establish the nature, functions and limits of governments ex. the US Constitution

What does it mean for regulation to be narrowly tailored to serve the asserted governmental interest?

To be narrowly tailored, laws must be clear and specific and may not vest officials with vague or unlimited discretion

What courts are bound by the decision of a specific federal circuit court of appeals?

US District Courts

Common law

Unwritten, judge-made law consisting of rules and principles developed through custom and precedent

What does it mean for a law to be overbroad?

Violates the principles of precision and specificity in legislation

What is the fighting words doctrine from Chaplinsky v. New Hampshire?

Violent listener reaction may provide the basis for limits on the freedom of speech

In what key cases was the O'Brien test applied?

Ward v. Rock Against Racism

What is compelled speech? Give some examples

When government requires someone to express a specific message whether they agree with it or not ex. Miami Herald v. Tornillo

When may prior restraints be considered constitutional?

When they are necessary to prevent: -Obstruction of military recruitment -Publication of troop locations, numbers and movements in the time of war -Obscene publications -Incitements to violence -Forcible overthrow of government -Fighting words likely to promote imminent violence

What are "fighting words"?

Words not protected by the First Amendment because they cause immediate harm or illegal acts

Statutory law

Written law formally enacted by city, county, state and federal legislative bodies

What did Whitney v. California indicate about whether membership in a party may be sufficiently danger to pose a clear and present danger?

a clear and present danger exists when previous conduct suggested a group might contemplate advocacy of immediate serious violence

Why is the doctrine of incorporation important with regard to the First Amendment?

expands free speech

What is incitement?

the action of provoking unlawful behavior or urging someone to behave unlawfully.