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66 Cards in this Set
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- Back
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Content based restriction
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if a restriction on speech relies on the content of the speech, the Court will scrutinize it much more carefully than if the restriction is content neutral
no less restrictive means Strict scrutiny test |
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Simon & Schuster, Inc v. Members of New York State Crime Victim board
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law= required payment to a crime victim's board of any profit derived from books by criminals
Ruled: unconstitutional because it imposed a burden on speech of only a particular content AND was not narrowly tailored to the state's undisputed compelling interest overinclusive |
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Burson v. Freeman
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conflict between free speech rights and fundamental right to vote
restricted area from electioneering to protect the fundamental right and does not constitute an unconstitutional compromise |
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Republic Party of Minnesota v. White
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Invalidated judicial code which stated that a candidate for a judicial office, including an incumbent judge shall not announce his/her own views on disputed legal/political issues.
--> not narrowly tailored to serve impartiality or for the appearance of impartiality |
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Boos v. Barry
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invalidated a law banning displays critical of foreign governments within 500 fee of foreign embassies
content-based speech not narrowly tailored to any interest in protecting the dignity of foreign diplomatic personnel |
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content neutral restriction and symbolic content
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symbolic content= expression= conduct undertaken to communicate an idea
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Types of content neutral law
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1) expressive/symbolic content with incidental impact on speech
2) expressions without relation to content |
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content neutral and standard of review
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intermediate
closely tailored to serve a substantial or significant government interest |
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U.S. v. O'Brien
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Issue: when conduct contains both speech and non-speech elements (burn draft cards to influence others to to adopt antiwar beliefs), may an important gov't interest in regulating the non-speech element justify incidental limitation on 1st amendment law
Ruling: Yes- statute does not abridge free speech on its face, no connection with speech |
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a government regulation is justified in content neutral when..
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1) within constitutional authority
2) further an important government interest 3) interest is unrelated to the suppression of free speech 4) incident restriction is no > than it is essential to the furtherance of that interest |
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Reno v. ACLU
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Issue: May Congress suppress certain types of web pages to deny minors access to potentially harmful speech?
Held: No Rationale: Communications Decency Act (1996) is a content based blanket speech restriction not a time, place, manner regulationation Internet: does not have a history of government regulation, requirement of a deliberate effort to access, technology available to block sites adult v. children access restriction (overinclusion) if less restrictive means are available |
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sexual speech on the Internet
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(presumptively protected)
Not obscene→ why not? Because obscene is such a high bar |
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Reno case analysis
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Reno: no statute related to value measurement, no value prong, no pruierent value, statute has to define what is forbidden, substantial overbreadth (how much protected speech, chilling effect”), Forum (Internet has never had regulation, value to state/exchange citizen speech, readily available)
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Ashcroft II
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level of scrutiny application. Means available to the consumer should be considered to means of the government in terms of punishment
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Time, place, manner restriction
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1) have a right to engaged in protected speech, but not right now
2) place restriction: where one does a protest limitation 3) manner: terms and conditions materials |
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Substantial overbreadth definition
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Must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protection of parties not before the court → not a tiny fraction of over inclusion
includes conduct AND speech |
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Time/place/manner type of review
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high degree of deference: rational review equivalent
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ashcroft v. free speech coalition
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held child pornography prevention act to be substantial overbreath
models who pose as children-like is not void |
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virginia v. hicks
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said regulation to a public housing development policy controlling entry to its premise to be not substantial overbreath
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brockett v. spokane arcades
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Court found unconstitutional a law defining obscenity to include non-obscene material. However, no invalidation
Reason: state to appropriately rewrite the unconstitutional portions |
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Village of Schaumburg v. Citizens for a Better Environment
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facial invalidation of a law that prohibited solicitation of charitable contributors by organizations that failed to prove at least 75% of the receipts used for charitable purposes.
NOTE: direct/substantial limitation of protected activity which was not sufficiently related to state interest |
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Sec. of State v. Munson
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criminal penalty instead of permit requirement and 25% limitation on noncharitable use of proceeds subject to waiver, Court still invalidated
Court hold: activity itself was protected statute over broad and operated on the invalid premise that high solicitation costs accurately measured fraud |
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Heffron v. Int'l Society for Krishna Consciousness
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Issue: May the state restrict the sale of literature and solicitation of funds at a state fair to a fixed booth
Answer: Yes: proper time, place, and manner restriction Reason: not based on content and serves safety and convenience of persons using public forums |
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Metromedia v. San Diego
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importance of government aesthetic as substantial or significant
invalidated a ban on non-commerical billboards reason: ban on off-site signs was necessary to eliminate distracting hazards to motorists and pedestrians and to preserve/improve the city's appearance |
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Members of City Council v. Taxpayers of Vincent
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Issue: May a city prohibit the posting of all signs on public property
Holding: Yes Reason: city's interest in avoiding visual clutter is a substantial government interest |
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justification of viewpoint-neutral regulation
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1) within the constitutional power of the government
2) furthers an important/substantial governmental interest 3) government interest is unrelated to the suppression of free expression 4) incidental restriction on alleged first amendment freedom is no greater than is essential to furtherance of that interest |
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Clark v. Community for Creative Non-Violence
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Issue: May the federal government prevent demonstrations from sleeping in national parks pursuant to general regulations when the sleeping is asserted to be expressed
sleep=expressive conduct, subject to reasonable time, place, manner restriction, justification on viewpoint-neutral regulation |
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Coates v. Cincinnatti
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Court invalidated a ban on sidewalk gatherings that were annoying to passerby. Specified no standard of conduct
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Massachusetts v. Oakes
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a substantially over broad law was amended by the state legislature to cure the overbreath subsequent to the defendant's conviction.
Court upheld the conviction. without that, legislature would have no motivation to ensure constitutionality of law |
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vagueness
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statute that provides inadequate notice of its meaning is considered vague and unenforceable
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Finley case
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vagueness does not apply to funding
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Commercial speech definition
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speech that merely proposes a commercial transition
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why is commercial speech protected
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society has a strong interest in free flow of information
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protection of commercial speech exceptions
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1) speech does not propose illegal transaction
2)speech that is false or misleading 3) no ban on prior restraint - businesses must challenge 4) no 3rd party standing under substantial overbreath |
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Bigelow
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Virginia may not ban advertising for out-of-state abortion
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Bolger v. Young Drug Products
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Federal statute could not ban mailing of unsolicited advertisement for contraception, whether they included public health information or not
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Trustee v. Fox
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Tupper party, State university could ban tupperware parties in dorms
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Linmark v. Willingboro
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no ban on for sale signs to prevent "white flight"
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Carey v.Population Services
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no ban on advertisement for non-prescription contraceptives
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lawyer speech: bates v. state bar
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no ban on price information for routine legal services
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lawyer speech: Ohralik v. state bar
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state bar may ban in person solicitation for contigent-fee representation of personal injury clients
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lawyer speech: re: RMJ
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non-misleading advertising may generally not be banned
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lawyer speech: Zauderer v. Office of Disc. Counsel
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Bar may not ban ads soliciting clients for specific type of cases, and may not ban advertisements
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Shapero v. Ky Bar assn.
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no ban on direct-mail solication of clients who may need specific services
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Fl Bar v. Went for it.com
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approved direct-mail ban on solicitation of victims of accident or disaster for 30 days after occurrence
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regulation of commercial speech definition
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expression related solely on the economic interests of the speaker and its audience
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overbreadth, vagueness, and fighting words
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fighting words statutes are subject to facial invalidity if the conduct prescribed is vague or over broad
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Modern commercial speech test
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Is it a commercial speech?
Regulation must 1) serve a substantial interest and 2) directly advance the interest and 3) be narrowly tailored to serve that substantial interest equivalent to strict scrutiny test, must be proportional as well as reasonable |
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Central Hudson Gas v. Public Service commission
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Issue: does a public service commission prohibition of promotional advertising violate the utility's first amendment rights
Hold: Yes, communication of information helpful to save electricity would be stopped |
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Posada de Puerto Rico Association v. Tourism of Puerto Rico
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May a ban on particular type of advertising of legal activities (casino gambling) satisfy the Central Hudson test
Hold: Yes |
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44 Liquormart v. Rhode Island
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Issue: May a state prohibit advertising about retail prices for alcoholic beverages
Held: No |
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Cincinnati v. Discovery Network
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City ban on newsracks placed on sidewalks to distribute commerical publications, while allowing newsracks to sell newspapers, held INVALID.
Reason: no reasonable fit between the type of advertising being regulated and the state interest in reducing litter and promoting asethetics |
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Lorillard Tobacco v. Reilly
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Regulation of smokeless tobacco and cigars violated Central Hud
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Public forum 3-part test to determine the constitutionality of time/place/manner regulation of speech, but rather its conduct/method
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1) content neutral (both to subject matter and viewpoint, the regulation cannot prefer some messages over others)
2) narrowly tailored to serve a significant/important government interest 3) must leave open alternative channels of communications equivalent to mid-level scrutiny |
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Kovacs v. Cooper
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ban on loud and raucous outside loudspeakers was upheld but a full prohibition of all loudspeakers not allowed
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Cox v. New Hampshire
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standardless license. delegate permit to a particular person
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standards for denial of a license or permit
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are narrowly drawn, reasonable, and definite
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challenge to application of regulation standing
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a permit must be sought before review is requested
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overbreath definition
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statute bans speech protected by the first amendment
narrowly tailored to serve compelling interest chill speech |
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Jews for Jesus
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allowed to restrict for safety but the rule was vague and over broad
chilling for conduct, substantially overbroad |
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commercial speech identification
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1) is it an advertisement or
2) is there a reference to a specific product or 3) what is the product placement |
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symbolic message definition
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intent to convey particularized message
likely that message would be understood by those who saw it |
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Tx v. Johnson
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knowledge that it could offense (statute) goes to speech
Strict scrutiny: government's action were directly related to the suppression of speech |
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U.S. v. Eichman
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statute's underlying intent was to prohibit flag burning as symbolic/offensive speech
government does not have inherent power to set definition for what flag may symbolize |
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narrowly tailored
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necessary and no less restrictive means
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prior restraint
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any administrative system of censorship or licensing of expression
1. includes judicial order before publication 2. any system that acts as economic disincentive to speech standardless discretion |
