Freedom of speech and assembly

Questions of facts and the law

Jury question - the determination of whether material is obscene is a question of fact for the jury. The judge can grant a directed verdict if the evidence is such that a reasonable unprejudiced jury could not find that all parts of the test have been met.

Liquor regulation

The 21st amendment grants states more than the usual regulatory authority with respect to intoxicating beverages. Regulations prohibiting explicit live sexual entertainment and films in establishments licensed to sell liquor by the drink even though proscribing some forms of visual presentation that would not be obscene do not violate the First Amendment as long as they are not irrational.

Average person

Both sensitive and insensitive adults may be included in determining contemporary community standards the children may not be considered part of the relevant audience.

Scientist in federally funded program

A behavioral scientist engage in federally funded animal research studies is not a public figure because he applies for federal grants and publishes in professional journals.

Fault

A common law D who had no reason to know that the statement he was making was falls in the Fama Tory could still be liable for defamation. Now P in a public figure or public concern case must prove fault on the part of the day. The degree of fault required is higher when he is a public official or public figure then when P is a private person suing on a matter of public concern.

Falsity

A common law a defamatory statement was presumed to be false - to avoid liability for an hour otherwise defamatory statement on the ground that it it was true D had to assert truth as an affirmative defense. The Supreme Court has rejected this presumption in all public figure or public concern cases. In these cases P must prove by clear and convincing evidence that the statement was false.

Land use regulations

A land-use or zoning regulation may limit the location or size of adult entertainment establishments - I E, businesses that focus on sexual activities - if the regulation is designed to reduce the secondary effects of such businesses - EG, rise in crime rates, drop in property values and neighborhood quality. Regulations may not been such establishments altogether.

Mailboxes

A letter/mailbox at a business or a residence is not a public forum. The government may prohibit the placing of unstamped items and post boxes to promote efficient mail service.

General fame or notoriety

A person may be a public figure for all purposes and contacts if he achieves general fame or notoriety in the community and pervasive involvement in the affairs of society although a citizens participation in community and professional affairs does not render him a public figure for all purposes.

Persons engaging in criminal conduct

A person who engages in criminal conduct does not automatically become a public figure even when the defamatory statements relate solely to his conviction.

Polling places

A polling place is not a public forum since a polling place is at least on election day government controlled property set aside for the sole purpose of voting and as such is a special enclave subject to greater restrictions. The state may reasonably decided that the interior of the polling place should reflect that distinction by excluding some forms of advocacy from the polling place.

Actual malice required

A public official may not recover for defamatory words relating to his official conduct or a matter of public concern without clear and convincing evidence that the statement was made with actual malice. This rule has been extended to public figure Ps. The Supreme Court has not specifically held that all statements regarding public officials or public figures necessarily involve matters of public concern a case to the contrary should be rare.

Candidate debates on public television

A public television station debate for congressional candidates from major parties or who have strong popular support is not a public forum because such the beats are not open to a class of speakers - EG, all candidates - but rather to selected members of the class. Exclusion of candidates who are not from a major party and who lack popular support is permissible because these criteria are: viewpoint neutral; and, reasonable in light of the logistics for an educationally valuable debate.

Cannot give officials unfettered discretion

A regulation cannot give officials brought discretion over speech issues. There must be defined standards for applying the law. This issue usually arises under licensing schemes established to regulate the time place and manner of speech. To be valid search licensing schemes must be related to an important government interest contain procedural safeguards and not grant officials unbridled discretion.

Content versus conduct

A regulation seeking to forbid communication of specific ideas - I E, a content regulation - is less likely to be upheld than a regulation of the conduct incidental to speech.

Patently offensive

Community standard - the material must be potentially offensive in affronting contemporary community standards regarding the description or portrayal of sexual matters. National standard not required - a state wide standard is permissible but not mandatory. A juror may draw on knowledge of the community or vicinity from which he comes in the court may either direct the jury to apply community standards without specifying the community or defined the standard in more precise geographic terms.

Compelling justification Test

A similar test - one of compelling justification - was employed to hold unconstitutional the Georgia legislature's refusal to see Julian bond and elected black representative were bonds speeches critical of US policy on Vietnam and the draft led the legislature to doubt his fitness and his ability to take the oath of office in good faith.

Clear and present danger of imminent lawlessness

A state cannot forbid advocating the use of force or of law violation unless such advocacy: is directed to producing or inciting imminent lawless action; and, is likely to produce or incite such action.

Permits

A state may not require persons to obtain permits in order to canvas door-to-door for non-commercial or non-fundraising purposes.

Construction may save vague statutes

A state statute will be upheld if it meets the test as construed by the courts of the state. A seemingly vague obscenity statute may be saved by a state Supreme Court opinion that limits it to a proscription of depictions of specific types of sexual conduct.

Actual malice to find

Actual malice was defined by the Supreme Court as: knowledge that the statement was false; or, reckless disregard as to its truth or falsity ity. The P must show that D was subjectively aware that the statement he published was false or that he subjectively entertain serious doubts as to its truthfulness.

Airport terminals

Airport terminals operated by a public authority are not public forums. It is reasonable to ban a solicitation with an airport terminals since it presents a risk of fraud to hurrying passengers. It is not reasonable to ban leaf leading with the multipurpose terminals having quality similar to a shopping mall although search leafleting can be subject to reasonable time please and manner regulations.

Time place and manner restrictions - regulation of conduct

All speech is conveyed through physical action - EG, walking, writing, distributing pamphlets - and while the freedom of belief is absolutely the freedom to convey beliefs cannot be. The extent to which government may regulate speech related conduct depends on whether the forum involved is a public forum a designated public forum a limited public forum or a non-public forum.

Postal service property

Although sidewalks generally are public forums sidewalks on Postal Service property are not public forums.

Statutes cannot be viewpoint-based Dash limits hate crime legislation

Although the general class of fighting words is proscribable under the first amendment the Supreme Court generally will not tolerate in fighting words statute restrictions that are designed to punish only certain viewpoints - i.e. proscribing fighting words only if they convey a particular message.

Mandatory financial support

Although the government may not compelling person to express a message the government may tax people and use the revenue to express a message with which people disagree.

Obscenity elements

Appeal to prurient interest - the dominant theme of the material considered as a whole must appeal to the prurient interest in sex of the average person. The Supreme Court has found this to include that which appeals to shameful or morbid interest in sex but not that which incites lust - in so far as a lost main clued a normal interest in sex. Mere portrayals of nudity do not appeal to the prurient interest and are not obscene.

Questions of fact and law - independent review by appellate court

Appellate courts will conduct an independent review of constitutional cleans when necessary to assure that the proscribed materials depict or describe potentially offensive hard-core sexual conduct.

Sweeping language

Attempt to define obscenity broadly have encounter difficulties before the court.

Charitable solicitations

Charitable solicitations for funds in residential areas are within the protection of the First Amendment. They are subject to reasonable regulation.

Evidence of pandering -questions of fact and law

Evidence of pandering - commercial exploitation for the sake of prurient appeal - by D may be probative on whether the material is obscene. Such evidence may be found in D's advertising his instructions to authors and illustrators of the material or his intended audience. In a fact this simply excepts the purveyors own estimation of the material as relevant.

Funding speech activity

Greater imprecision is allowed to win the government acts as a patron and funding speech activity then when enacting criminal statute or regulatory schemes because speakers are less likely to steer clear of forbidden areas when only a sub city is at stake.

Schools

Generally schools and school sponsored activities are not public forums. Speech and association in schools may be reasonably regulated to serve the schools educational mission.

Void for Vagueness Doctrine

If a criminal law or regulation fails to give persons reasonable notice of what is prohibited it may violate the DPC. This principle is applied somewhat strictly one first amendment activity is involved in order to avoid the effect a vague law might have on speech - I E, if it is unclear what speech is regulated people might refrain from speech that is permissible for fear that they will be violating the law. Vagueness issues most often arise in relation to content regulations but the same principle would apply to time place and manner restrictions.

Unlimited discretion void on face

If a statute gives licensing officials unbridled discretion it is void on its face and speakers need not apply for a permit. They may exercise their First Amendment rights even if they could have been denied a permit under a valid law and they may not be punished for violating the licensing statute.

Content neutral - burdens no more speech than necessary

If the injunction is content neutral it will be upheld only if it burdens no more speech than is necessary to achieve an important government purpose.

Content-based - necessary to a compelling interest

If the injunction is content-based it will be upheld only if it is necessary to achieve a compelling government interest.

Statutes valid on face

If the licensing statute is valid on its face because it contains adequate standards a speaker may not ignore the statute but must seek a permit. If he is denied a permit even if he believes the denial was incorrect he must then seek reasonably available administrative or judicial relief. Failure to do so precludes later assertion that his actions were protected by the first amendment.

Presumed or punitive damages allowed only if actual malice established

If the plaintiff establishes that the defendant made the statement with actual malice the actual damage requirement is extinguished. The plaintiff can recover whatever damages are permitted under state law - usually presumed damages and even punitive damages inappropriate cases. In other words there is no constitutional protection for statements made with actual malice even though a matter of public concern is involved.

Permitted inquiries by plaintiff

In attempting to prove knowing or reckless disregard of the truth the plaintiff may inquire into the state of mind of those who edit produce or publish - i.e. conversations with editorial colleagues.

Government speech - government funding of private messages

In contrast to government funding of speech for the purpose of promoting at some policies - such as family planning services - when the government chooses to fund private messages it generally must do so on a viewpoint neutral basis.Exception - funding of the arts: from a financial standpoint the government cannot fund all artists and choosing among those it will fund and those it will not must be based on the content of the art.

Scope of speech

Includes freedom not to speak - the freedom of speech includes not only the right to speak but also the right to refrain from speaking or endorsing beliefs with which one does not agree. The government may not compel an individual personally to express a message for which he disagrees.

Injunctions

Injunctions that restrict first amendment activity in public forums are treated differently from generally applicable ordinances because injunctions present a greater risk of censorship and discriminatory application. The test to be used to determine whether an injunction to restrict speech or protest is constitutional depends on whether the injunction is content neutral.

Government speech - public monuments

Is the displacement of a permanent monument in a public park is government speech and is not subject to free speech clause scrutiny. This is true even if the monument is privately donated. By displaying the monument the government is disseminating a message and the message is not necessarily the message of the donors. As a corollary the government cannot be forced to display a permanent monument with a message with which the government disagrees and the governments refusal to display a proffered monument likewise is not subject to free speech clause scrutiny.

Unprotected speech

It creates a clear and present danger of imminent Lawless action; it constitutes fighting words as defined by a narrow precise statute; the speech or conduct is obscene; the speech constitutes defamation which may be the subject of a civil penalty through a tour action brought by the injured party in conformity with the rule set out; the speech violates regulations against a false or deceptive advertising - commercial speech is protected by the First Amendment and it cannot be proscribed simply to help certain private interest; and, the government can demonstrate a compelling interest in limitation of the First Amendment activity. Even if a regulation falls within one of the above categories it will not necessarily be held valid. It might still be held to be void for vagueness or overbreadth.

Content

It is presumptively unconstitutional for the government to place burdens on speech because of its content. To justify such content-based regulation of speech the government must show that the regulation or tax is necessary to serve a compelling state interest and there's narrowly drawn to achieve that end.

Buffer zones

Laws and injunctions restricting expression within so-called buffer zones are often found in the context of cases dealing with demonstrations on streets and sidewalks outside abortion clinics. These laws typically set boundaries of a specified number of feet from clinic entrances within which anti-abortion protesters may not approach women entering the clinics in order to ensure unobstructed access and maintain public safety and the free flow of vehicle and pedestrian traffic.

Spells of wealthy person

Marriage to an extremely wealthy person and divorcing such a person does not amount to voluntarily entering the public arena even though the press conferences are held by the plaintiff because going to court is the only way she could dissolve her marriage.

Military bases

Military bases are not public forums. On base speech and assembly may be regulated even during open houses where the public is invited to visit. If the military leaves it streets open as thoroughfares they will be treated as public forums.

Government workplace or charity

Neither a government workplace including a court building and it's grounds nor a government controlled charity drive constitutes a public forum.

Obscenity

Obscenity is not protected speech. The court has defined of scenery as a description or depiction of sexual conduct that taken as a whole by the average person applying contemporary community standards: appeals to the prurient interest in sex; portrays sex in a potentially offensive way; and, does not have Sirius literary, artistic, political, or scientific value - using a national reasonable person standard rather than the contemporary community standard.

Compare - private speech

On the other hand people cannot be compelled to subsidize private messages with which they disagree. Exception - university activity fees: the government can require public university students to pay a student activity fee even if the fee is used in support of political and ideological speech by student groups whose beliefs are offensive to the student as long as the program is viewpoint neutral.

Limited public forums and non-public forums

Other than the streets sidewalks parks and designated public forums most public property is considered to be a limited public forum - EG, government property opened up for a specific speech activity such as the school gym opened on a particular night to host a debate on a particular community issue - or a non-public forum. The government can regulate speech in such forums to reserve them for their intended use regulations will be upheld if they are: viewpoint neutral; and, reasonably related to legitimate government purpose.

Private possession of obscenity

Private possession of obscenity at home cannot be made a crime because of the constitutional right of personal privacy. The protection does not extend beyond the home. Importation distribution and exhibition of obscene materials can be prohibited. Exception - child pornography: the state may make private possession of child pornography a crime even private possession for personal viewing in a residence.

Actual malice and falls quotation cases

Proof that a defamation plaintive was in accurately quoted does not by it self prove actual malice even if the quotation was intentionally altered by the defendant. If the published quotation is substantially accurate the plaintiff may not collect damages. To show actual malice the public figure plaintiff must prove that the defendant's alteration of the quotation material he changed the meaning of the actual statements made by the plaintiff.

Public forums and designated public forums

Public property that has historically been open to speech related activities - EG, streets, sidewalks, public parks, and the Internet - is called a public forum. Public property that has not his stork Lee been open to speech related activities but which of the government has thrown open for such activities on a permanent or temporary basis by practice or policy - EG, school rooms that are open for afterschool use by social, civic, or recreation groups - is called a designated public forum. The government may regulate speech in public forums and designated public forums with reasonable time place and manner regulations.

Reasonableness

Regulation of speech and assembly and non-public forums need only be rationally related to a legitimate governmental objective.

Viewpoint neutral

Regulations on speech and non-public forums need not be content neutral - I E, the government may allow speech regarding some subjects but not others. Such regulations must be viewpoint neutral - I E, if the government allows an issue to be presented in a non-public forum and may not limit the presentation only to one view. The government may discriminate based on the identity of the speaker in non-public forums - EG, a school board might limit speakers to licensed teachers.

Excludes freedom to bar military recruitment

Requiring schools of Hyridge Acacian to allow military recruiters to recruit on campus or risk losing federal funding does not implicate free-speech rights. This is so even if the schools disagree with the military ban against homosexuals. School recruitment receptions are not inherently expressive from the school standpoint - they are merely a way to help students obtain jobs. Schools are not being asked to say or refrain from saying anything and neither are they being asked to associate with the military in any significant way moreover there is a little chance that a person would attribute the military positions to the school. Therefore there is no first amendment violation.

Unprotected speech - regulation or punishment because of content

Restrictions on the content of speech must be necessary to achieve a compelling government interest. Few restrictions on the content of speech are tolerated. The court allows them only to prevent grave injury. The following is a list of the only reasons for which of the court has allowed content-based restrictions on speech - I E, the following are categories of unprotected speech.

Designated public forum

Schools generally are not public forums. If a public school or university allows private organizations and members of the public to use school property for meetings when school programs or classes are not in session the property is a designated public forum for that time and the school cannot deny a religious organization permission to use the property for meetings merely because religious topics will be discussed. Such a restriction would be content discrimination.

Overbroad Regulation Invalid

Since the purpose of the freedoms of speech and assembly is to encourage the free flow of ideas a regulation will not be upheld if it is over broad - I E, prohibits substantially more speech than is necessary. If a regulation of speech or speech related conduct punishes a substantial amount of protected speech judged in relation to the regulations plainly legitimate sweep the regulation is facially invalid - I E, it may not be enforced against anyone not even a person engaging in activity that is not constitutionally protected - unless a court has a limited construction of the regulation so as to remove the threat to constitutionally protected expression. If a regulation is not substantially overbroad it can be enforced against persons engaging in activities that are not constitutionally protected.

Includes symbolic conduct

Speech includes not only verbal communication but also conduct that is undertaken to communicate an idea. Not all regulation of symbolic conduct is prohibited. The court will uphold conduct regulation is: the regulation is within the constitutional power of the government; it furthers an important governmental interest; the governmental interest is unrelated to suppression of speech; and, the incidental burden on speech is no greater than necessary. A regulation is not invalid simply because there is some imaginable alternative that might be less burdensome on speech.

Government speech - limitation

Spending programs may not impose conditions that limit first amendment activities of fund receipts outside of the scope of the spending program itself. For example while the government could prohibit the use of federal funds to advocate or support abortion it could not require recipients of federal funds given to organizations to combat HIV/AIDS to agree in their funding documents that they oppose prostitution.

States may ban words likely to incite physical retaliation

States are free to ban the use of fighting words - I E, those personally abusive epithet that when addressed to the ordinary citizen are inherently likely to incite immediate physical retaliation.

Falsity in and of itself does not make speech and protected

Statute criminalizing speech merely because it is false is a content regulation. While some categories of false speech are unprotected - EG, defamation, false advertising, fraud, and perjury - those categorical exceptions are based on the harm caused. Speech is not unprotected merely for being false.

Content neutral/important government Interest

The Supreme Court has for the most part found a buffer zone laws to be reasonable content neutral regulations of speech the further the important state interest of preserving access to healthcare facilities and maintaining public order.

Content - exception: unprotected categories of speech

The Supreme Court has previously determined that certain categories of speech - EG, obscenity, defamation, and fighting words - generally are proscribable despite the First Amendment. Even in these cases the court is the less likely to uphold a prior restraint - I E, a regulation prohibiting speech before it occurs - then a punishment for speech that has already occurred.

Signs on public property

The Supreme Court upheld a city ordinance prohibiting posting signs on public property including sidewalks crosswalk street lamp post fire hydrants and telephone poles, even if the sign is temporary in nature and could be removed without damage to the public property.

Targeted picketing

The Supreme Court upheld a statute that prevented focused residential picketing - I E, picketing in front of a single residence. The street/sidewalk involved was a public forum but the ordinance passed the three-part test: it was content neutral because it regulated the location and manner of picketing rather than its messages; it was narrowly tailored to the important interest of protecting a homeowners privacy because it applied only to focused picketing; and, alternative means of communications were available because the protesters could in March through the neighborhood in protest.

Conduct

The court has allowed the government more leeway in regulating the conduct related to speech allowing it to adopt content neutral time place and manner regulations. Regulations involving public forums - I E, forums historically linked with the exercise of First Amendment freedom's - must be narrowly tailored to achieve an important government interest - EG, a prohibition against holding a demonstration in a hospital zone. Regulations involving non-public forums must have a reasonable relationship to a legitimate regulatory purpose - EG, a law prohibiting billboards for purposes of traffic safety.

Government Speech

The court has held that compelled support of government speech does not raise first amendment concerns.

Burden on challenger

The person challenging the validity of the regulation has the burden of showing substantial overbreadth.

Display

The court has suggested that the state may regulate the display of certain materials to prevent it from being so obtrusive that an unwilling viewer cannot avoid exposure to it.

Lacking in serious social value

The fact that the material may have some redeeming social value will not necessarily immunize it from a finding of obscenity. It must have serious literary artistic political or scientific value using a national standard.

Compare - punish racially motivated conduct

The first amendment does not protect conduct simply because it happens to be motivated by a persons views or beliefs. A state can increase a convicted D's sentence for aggravated battery based on the fact that the D selected the victim of his crime because of the victims race. Punishment may not be increased merely because of D's abstract beliefs.

Fighting words

The first amendment does not protect true threats - statements made to communicate an intent to place an individual or group in fear of bodily harm.

Petition clause does not protect defamatory statement made with actual malice

The first amendment guarantees individuals the right to petition government for a redress of grievances. This right to petition the government does not grant absolute immunity to person to make defamatory statements about public officials or public figures in their communications with government officials. The defamed individual may prevail by meeting the New York Times requirements.

Government speech

The free speech clause restricts government regulation of private speech. It does not require the government to aid private speech nor restrict the government from expressing its views. The government generally is free to voice his opinions and to fund private speech that furthers its views well refusing to fund other private speech absent some other constitutional limitation such as the establishment clause or the ECP. Because government speech does not implicate the First Amendment it is not subject to the various levels of scrutiny that Applied to government regulation of private speech. Government speech and government funding of speech will be upheld if it is rationally related to a legitimate state interest.

State can require shopping center to permit persons to exercise speech rights

The freedom not to speak does not prohibit a states requiring a large shopping center that is open to the public to permit persons to exercise their speech rights on shopping center property - at least as long as the particular message is not dictated by the state and is not likely to be identified with the owner of the shopping center.

Compare - simulated pictures of minors

The government may not bar visual material that only appears to depict minors engaged in sexually explicit conduct but in fact uses young looking adults or computer generated images. A holding otherwise with bar speech that is not obscene and does not involve the exploitation of children.

Alternative channels open

The law must leave open alternative channels of communication - I E, other reasonable means for communicating the idea must be available.

No liability without proof of at least negligence

The plaintive must show that the defendant was negligent and failing to ascertain the truth of the statement. If the plaintiff establishes negligence but not actual malice which is a higher degree of fault he also has to provide compelling evidence of actual damages. This changes the common-law rule that damages would be presumed by law for injury to reputation and did not need to be approved by the plaintiff. Actual damages may be awarded not only for economic losses but also for injury to the plaintiffs reputation in the community and for personal humiliation and distress.

Content neutral

The regulation cannot be based on the content of the speech - I E, it must be subject matter neutral and viewpoint neutral - absent substantial justification.

Narrowly tailored

The regulation must be narrowly tailored - I E, it may not burden substantially more speech than is necessary to further the significant government interest. The regulation need not be the least restrictive means of accomplishing the goal. A regulation that is not narrowly tailored might also fail on overbreath grounds.

Important interest

The regulation must further an important government interest. Search interest include: traffic safety, orderly crowd movements, personal privacy, noise control, litter control, aesthetics.

Standard may be different for minors

The state can adopt a specific definition of obscenity applying to materials sold to minors even though the material might not be obscene in terms of an adult audience. The government may not prohibit the sale or distribution of material to adults merely because it is inappropriate for children.

Questions of fat and law - evidence similar published materials not automatically admissible

The state doesn't need to produce expert testimony. Evidence that similar materials are available on community news stands or that the publication has acquired a second class mailing privilege does not necessarily show that the material is not obscene and hence is not automatically admissible. Nor is there any automatic right to have other materials held not to be obscene admitted into evidence.

Allows for sanctions against speech

This test allows for sanctions against speech causing demonstrable danger to important government interests. Disclosure of US intelligence operations and personnel is clearly not protected speech.

Requirement of factual statement

To be defamatory the false statement must be viewed by a reasonable person as a statement of fact rather than a statement of opinion or a parity. A public figure cannot circumvent the First Amendment restrictions by using a different tour theory to collect damages for a published statement about him that is not a false statement of fact. The fact that a publisher labels a statement as opinion will not provide first amendment protection if the statement would reasonably be understood to be a statement of fact.

Public forums and designated public forums - test

To be valid the government regulations of speech and assembly and public forums and designated public forums must: be content neutral - I E, subject matter neutral and viewpoint neutral; be narrowly tailored to serve an important government interest; and, leave open alternative channels of communication. Even if a regulation meets these conditions it might still be struck down on other grounds - EG, overbreadth, vagueness, unfettered discretion.

Pictures of minors

To protect minors from exploitation the government may prohibit the sale or distribution of visual depictions of sexual conduct involving minors even if the material would not be found obscene if it did not involve children. The government may also prohibit offers to provide and request to obtain material depicting children engaged in sexually explicit conduct when the prohibition requires scienter and does not criminalize a substantial amount of protected speech. Search offers of material that is unlawful to possess have no first amendment protection.

Government speech - trademark protection

Trademark protection is not government speech it is subject to strict scrutiny. Trademarks are private speech because they are produced by private individuals and are merely protected by the government.

Narrowly tailored

Under the second prong of the time place a manner test buffer zone laws will be upheld only if they burden no more speech than necessary to achieve the purpose of protecting access to healthcare facilities and maintaining order on public rights away. The right of access does not amount to a right to be free from all communication in the vicinity of a facility that might be unwelcome. Court decisions in this area tend to be very fact specific and the court has indicated it is more likely to find a buffer zone law narrowly tailored if the state has first tried less restrictive measures to address the problems created by antiabortion protests.

Defamatory speech

When a person is sued for making a defined Matory statement the First Amendment places restrictions on the ability of the government through its tort law and courts to grant a recovery or the person suing is a public official or public figure or where the defamatory statements involve an issue of public concern. In these cases P must prove not only the elements of defamation required by state law but also that the statement was false and that the person making the statement was at fault to some degree in not ascertaining the truth of the statement.

Private individual suing on a matter of public concern - at least negligence required

When a private individual is defamed there is less need to protect freedom of speech and press and more of a need to protect private individuals from injury from defamation because they do not have opportunities as effective for rebottle as public figures. Defamation actions brought by private individuals are subject to constitutional limitations only one that the defamatory statement involves a matter of public concerns. The limitations are not as great as those established for public officials and public figures. When the defamatory statement involves a matter of public concern to restrictions on the private plaintiffs are imposed: it prohibits a liability without fault; and, it restricts recovery of presumed or punitive damages.

Material designed for deviant group

Where the allegedly obscene material is designed for and primarily disseminated to a clearly defined deviant social group rather than to the public at large the prurient appeal requirement is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest of that group.

Content neutral speech regulations

While content-based regulation speech is subject to strict scrutiny content and neutral speech regulations generally are subject to intermediate scrutiny - they will be upheld if the government can show that: they advance important interest unrelated to the suppression of speech; and, they do not burden substantially more speech than necessary or or narrowly tailored to further those interests.

Statutes regulating fighting words tend to be over broad or vague

While this classification of punishable speech continues to exist in theory the court rarely upholds punishments for the use of such words. Statutes that attempt to punish fighting words will tend to be overbroad or vague. The statue all defined a punishable speech as opprobrious words annoying conduct or abusive language. Such statutes or fail as their imprecise terms could be applied to protected non-fighting speech. Such a statute could not be used to punish a person for saying to a police officer white son of a bitch I'll kill you.