First Amendment: Freedom of Expression

First Amendment?

"Congress shall make no law RESPECTING an establishment of religion, or PROHIBITING the free exercise thereof; or ABRIDGING the freedom of SPEECH, or of the PRESS; or the right of the people peaceably to ASSEMBLE, and to PETITION the Government for a redress of grievances."

Justice Jackson's awesome quote? The Barnette Principle

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

2 aspects to the Overbreadth doctrine?

1) A law must be SUBSTANTIALLY overbroad. 2) It's an exception to the general standing requirement.

Laws that substantially burden or infringe speech include laws that?

1) Allow civil liability for speech. 2) Prohibit compensation for speech. 3) Compel speech. 4) Condition a benefit on foregoing speech. 5) Pressure individuals not to speak.

Miller Obscenity Test?

1) Average person, taking the work as a whole and applying community standards would find that the material appeals to prurient interests. 2) Material depicts or describes sexual conduct defined by state law in a patently offensive way. 3) The material, taken as a whole, lack serious literary, artistic, political, or scientific value.

Why has broadcast media received the most limited 1st Amendment protection?

1) Broadcast media has established a uniquely pervasive presence in American's lives 2) Airwaves confronts citizens in the privacy of the home and the right to be left alone outweighs the 1st Amendment rights of an intruder. 3) Broadcasting is uniquely accessible to children.

2 tests for incitement of illegality?

1) Clear & Present Danger test. 2) Brandenburg test.

4 doctrines used to evaluate government restrictions of speech?

1) Content-Neutrality doctrine. 2) Void-for-Vagueness doctrine. 3) Overbreadth doctrine. 4) Prior Restraints doctrine.

Central Hudson Test?

1) Does the speech advertise illegal activities or is it misleading? 2) Is the asserted gov't interest substantial? 3) Does the law directly advance a interest? 4) Is the law no more extensive than necessary to achieve that interest?

3 reasons why a fighting words law will most likely be invalidated?

1) Fighting words doctrine only applies to speech DIRECTED at another that's likely to produce a violent response 2) They're usually void-for-vagueness or overbroad 3) They may be impermissible content-based restrictions of speech

Licensing or permit laws regulating speech are allowed only if?

1) Gov't has a very important reason for it. 2) Clear standards leave almost no discretion to the issuing authority. 3) Procedural safeguards are in place (hearing and judicial review of denials).

A law is content neutral if? If not, it will be considered content based.

1) It applies to ALL speech regardless of content. 2) It is BOTH viewpoint-neutral and subject-matter-neutral. 3) It regulates conduct and has an effect on speech without regard to its content.

2 types of prior restraints?

1) Licensing requirements 2) Injunctions / Gag orders

The Brandenburg Test An individual can be convicted of incitement only if?

1) Likelihood of imminent harm 2) Likelihood of producing imminent illegal action 3) Intent to produce imminent illegal action

Exceptions to the general bar of prior restraints?

1) National security. 2) Licensing. 5) Obscenity. 3) Gag orders. 4) Injunctions against certain types of discovery.

4 theories as to why freedom of speech is fundamental?

1) Promotes self-governance 2) Promotes discovery of truth via the marketplace of ideas 3) Promotes autonomy 4) Promotes tolerance

Government Speech Doctrine?

1st Amendment does not apply to the government's own speech.

Collateral Bar rule? It applies only to?

A court order must be obeyed until set aside, and if violated it can't be challenged as unconstitutional. PROCEDURALLY proper court orders only.

Overbreadth doctrine?

A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows. A person to whom the law can be constitutionally applied has standing to argue it would be unconstitutional as applied to others.

Examples "low-value" sexual speech?

Adult bookstores and theaters Nude dancing

Gov't can establish criteria that imposes a restriction on speech to? In other words?

Allocate funds Where money is involved, criteria can be established that restricts speech.

What is a prior restraint?

An attempt to sensor speech before it is uttered.

Why are prior warnings insufficient to protect listeners from profane and indecent speech?

Audience is constantly tuning in and out.

Test For evaluating regulation of Commercial Speech?

Central Hudson Test

For material to be considered child porn? Therefore?

Children must be used in its production. Virtual Child Porn is not child porn.

What test is used for hostile audience situations?

Clear & Present Danger test. If a speaker's conduct or speech creates a clear & present danger of inciting an audience to harm the speaker, the speech can be regulated.

Nude dancing is a form of conduct that?

Communicates, i.e., symbolic speech

Gov't CANNOT limit alcohol advertising based on a goal of? They also can't prohibit this in regards to alcohol?

Decreased consumption. Price advertising of alcohol . Stating alcohol content on beer labels.

A legislature's decision not to subsidize the exercise of a fundamental right?

Does not infringe that right

Clear and present danger test?

Does the speech present a clear and present danger of bringing about incitement or advocacy of illegal conduct?

A very narrow fighting words law will likely be?

Drawing content-based distinctions as to what speech is prohibited and what is allowed.

Unduly vague laws violate what?

Due process whether or not speech is regulated

Is Profane & indecent speech protected? Exceptions?

Generally 1) Broadcast media: Television & Radio 2) Speech in schools.

Content-Neutrality Doctrine?

Gov't can't regulate speech based on its content. Content-based regulations are presumptively invalid.

"Unconstitutional Condition" doctrine? It's corollary is?

Gov't cannot condition a benefit on forgoing a constitutional right. Gov't may not deny a benefit b/c one exercises a constitutional right.

What gov't interest is sufficient to make a law banning nude dancing content-neutral?

Gov't's interest in preventing secondary effects like crime

Who has the burden of proof to demonstrate the Central Hudson test is met?

Government

Types of Unprotected speech? Types of LESS protected speech?

Incitement of illegality Fighting words Obscenity Sexually oriented speech Commercial speech

What's a gag order? Gag orders can be issued if?

Injunctions against pretrial publicity to preserve fair trials. 1) Publicity prevents a fair trial. 2) All alternatives will fail. 3) It will actually be effective.

Portrayal of sex alone is?

Insufficient to deny 1st Am. protection

What gov't interest justifies a ban on commerce in obscene material?

Interest in regulating exhibition of obscenity in public places including "adult" theaters.

Gov't can regulate commercial speech if what level of scrutiny is met?

Intermediate scrutiny

This is a type of true threat where a speaker directs a threat to a person or group with the intent of placing the victim in fear of bodily harm or death?

Intimidation

Overbreadth doctrine is "strong medicine" because?

It involves the facial invalidation of a law and permits individuals standing to raise the claims of others not before the court.

A content neutral regulation will be sustained under the 1st Am if? A content-neutral time, place, and manner restrictions will be sustained under the 1st Am if?

It's narrowly tailored to serve an important gov't interest unrelated to the suppression of free expression. It's narrowly tailored to serve a substantial or important gov't interest unrelated to the suppression of free expression AND leaves open ample alternative avenues of communication. Narrowly tailored = does not burden substantially more speech than necessary to further those interests.

How is a "community standard" for "prurient interest" defined?

Juries define "prurient interest" from a community perspective.

A facially content-based regulation will be sustained under the 1st Am if?

Justified by a content-neutral desire to avoid undesirable SECONDARY EFFECTS of the speech.

1st Am was originally meant to prohibit what?

Licensing of publication. Punishment for seditious libel.

State may prohibit only those forms of intimidation that are?

Most likely to inspire fear of bodily harm

The value of material under the Miller Test is determined by what standard?

NATIONAL standard, not a community standard, i.e., whether a reasonable person would find such value in the material.

Is commercial speech advertising illegal activities protected?

NO

Is child porn protected speech?

NO!!!

Does obscenity acquire constitutional protection when it's only for consenting adults only.

No

Does the Gov't have to use the least restrictive alternative in the Central Hudson Test?

No

Does the Miller Test apply to child porn?

No

Is a regulation of indecent speech over the Internet constitutional?

No

Is commerce in obscene material protected?

No

Is misleading commercial speech protected?

No

May the Gov't prohibit accountants from engaging in in-person solicitation of clients for profit?

No

Can the Gov't prohibit attorneys from engaging in truthful, non-deceptive advertising? However they may prohibit? Unless?

No IN-PERSON solicitation for PROFIT. Lawyer offers services for free.

Is commercial speech that inherently risks deception protected?

No. TRUE ads that inherently risk deception are NOT protected

Can the gov't restrict "For Sale" signs on houses?

Not unless strict scrutiny is met

This is NOT enough to place speech in the "low-value sexual speech" category or make it less protected?

Nudity alone

Can the Gov't suppress a speaker b/c of the reaction of the audience?

Only if the speaker's conduct or speech creates a clear & present danger of inciting an audience to harm the speaker.

When it comes to child porn, the Gov't may prohibit?

Possession AND distribution even if it's not obscene under Miller

The most serious and least tolerable 1st Am infringements?

Prior Restraints on speech and publication.

The Void-for-Vagueness doctrine is based on the idea that it is unjust to punish a person without?

Providing clear notice as to what conduct is prohibited.

The 1st Amendment is not violated by allowing cable companies to?

Refuse to carry sexually explicit material

To be obscene, what must be involved?

Sex

Gov't has more latitude to regulate this speech?

Sexually oriented speech

Even though low-value sexual speech is protected somewhat it may be regulated because?

Society's interest in protecting this type of expression is a wholly different, and lesser, magnitude than the interest in untrammeled political debate. It lies at the periphery of 1st Amendment protection.

A fighting words law will be upheld only if it is? Otherwise?

Specific and narrowly tailored to apply only to unprotected speech. It will be void on vagueness grounds or overbroad.

Fighting words?

Speech DIRECTED at another, LIKELY to provoke a violent response.

What is Commercial Speech?

Speech by a person or entity with economic motivation that proposes a commercial transaction.

Hostile Audience?

Speech directed to an audience likely to cause a violent response against the speaker.

Overbreadth is an exception to what principle?

Standing principle

True Threats?

Statements meant to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group. Speaker need not actually intend to carry out the threat. State's may ban "True Threats."

What level of scrutiny is used for content-based regulation of sexual speech?

Strict scrutiny

Content-based distinctions within categories of unprotected speech must meet what level of scrutiny? Exceptions?

Strict scrutiny 1) The distinction advances the reason why the category is unprotected. 2) Secondary Effects doctrine

What level of scrutiny is used for content-based restrictions? What level of scrutiny is used for content-neutral laws?

Strict scrutiny Intermediate scrutiny

A law that substantially burdens or infringes speech must meet what level of scrutiny? Unless?

Strict scrutiny. Unless it regulates a category of unprotected speech.

Gov't can't suppress lawful speech as a means to?

Suppress unlawful speech Overbroad

Ct. has rejected state laws limiting commercial speech based on this? Exception?

The belief that the public will be better off with less information. GAMBLING advertising may be restricted to achieve the goal of decreased gambling.

A ban on True Threats protects individuals from?

The fear of violence and the disruption that fear engenders.

Protection of commercial speech turns on?

The nature of the expression and the gov't interest served by regulating it

Gov't can prohibit this even to willing recipients? But? However?

The sale, distribution, and exhibition of obscenity. They CANNOT prohibit or punish private possession of obscene material. CAN outlaw private possession of child porn.

Why Content-based distinctions within categories of unprotected speech must meet strict scrutiny?

They can, consistently with the 1st Am. be regulated because of their constitutionally proscribable content - not that they are categories of speech entirely invisible to the Constitution. • The gov't may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the gov't

The Collateral Bar rule precludes challenges to punishment for violating a court order, unless the injunction was?

Transparently invalid or had only a frivolous pretense to validity.

Secondary Effects Doctrine: The content-neutral justification must be?

Truly unrelated to the desire to suppress speech and it must be unique to the speech suppressed as compared to speech allowed.

Void-for-Vagueness doctrine? A law is unconstitutionally vague if?

Unduly vague laws are facially unconstitutional. A reasonable person can't tell what speech is prohibited and what is permitted.

If you argue a law is overbroad you must also state it is? But?

Vague. A law can be vague without being overbroad.

The categories of unprotected and less protected speech reflect?

Value judgments by the S.Ct. that the justifications for regulating such speech outweigh the value of the expression

Viewpoint = ? Subject-matter = ?

Viewpoint = Ideology of the message Subject-matter = Topic of the message

Question to determine whether a law is content-neutral?

Whether the gov't has adopted a regulation of speech because of agreement or disagreement with the message it conveys.

Can the gov't ban nude dancing?

Yes

Is Commercial speech protected?

Yes but to a lesser extent

Is expression of hate protected?

Yes.

Are solicitations by mail protected? Caveat?

Yes. Must wait 30 days after the accident to solicit by mail for personal injury or wrongful death clients.

Can professionals be prohibited from advertising and practicing under trade names? Why?

Yes. Significant possibility that trade names will used to mislead the public.

Gov't may use what to regulate the location of adult bookstores and theaters?

zoning ordinances