2009 Mbe Constitutional Law -- First Amendment

Front 1

Rule: Scrutiny of Content-Based Speech Restriction

Back 1

STRICT SCRUTINY

Generally Struck Down

Front 2

Rule: Scrutiny of Content Neutral Speech Restriction

Back 2

Intermediate Scrutiny

Sometimes Struck Down

Front 3

Types of Content-based Restrictions

Back 3

1) subject matter restriction
2) viewpoint restriction

Front 4

Rule: Prior Restraint of Speech

Back 4

Court orders suppressing speech (such as a temporary restraining order or preliminary injunction) must meet strict scrutiny.

But remember, Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it.

Front 5

Rule: Licensing Speech

Back 5

The government can require a license for speech ONLY if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority.

Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review of denied requests.

Front 6

Rule: Vagueness and Speech Restrictions

Back 6

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

Fighting words laws are unconstitutionally vague and overbroad.

Front 7

Rule: Overbreadth and Speech Restrictions

Back 7

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

Fighting words laws are unconstitutionally vague and overbroad.

Front 8

Rule: Regulating Symbolic Speech

Back 8

The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message (i.e. stopping what is normally a crime) and if the impact on communication is no greater than necessary to achieve the government's purpose.

Front 9

Rule: Anonymous Speech

Back 9

The right to speak includes the right not to reveal your identity.

Front 10

Rule: Incitement to Illegal Activity

Back 10

The government may PUNISH speech if there is a SUBSTANTIAL likelihood of IMMINENT illegal activity and if the speech is DIRECTED to causing imminent illegality.

Front 11

TEST: Obscenity and Sexually Oriented Speech

Back 11

i. The material must appeal to the prurient (means shameful or morbid) interest. This is a local standard.

ii. The material must be patently offensive under the law prohibiting obscenity, so that must be delineated in the law. The law could be state, county or local.

iii. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value. Under a national, not local, standard.

Front 12

Rule: Child Pornography

Back 12

Child pornography may be completely banned, even if not obscene. The state’s interest is in the protection of children – to prevent the USE of children, so the porn must use children in the production, not computer images of children or adults who look like children.

Front 13

Rule: Commercial Speech

Back 13

True commercial speech that inherently risks deception can be prohibited.

Other commercial speech can be regulated if intermediate scrutiny is met.

Government regulation of commercial speech must be
narrowly tailored, but it does not need to be the least
restrictive alternative.

Front 14

Rule: Fighting Words

Back 14

Must be addressed to a particular person to be considered fighting words

ALL fighting words statutes are unconstitutional as vague/overbroad.

Front 15

Rule: Defamation--Public Figure

Back 15

To sue for defamation, need clear and convincing evidence of:
1: falsity of the statement
2: actual malice (knew it was false or reckless disregard.

Front 16

Rule: Defamation--Private Figure

Back 16

for an issue of public concern:
1: falsity
2: negligence
***no punitive damages without actual malice

for an issue of no public concern:
punitive damages without actual malice

Front 17

Rule: Speech and Electoral Process

Back 17

1: Campaign contributions can be restricted
2: Independent expenditures may not be restricted

Front 18

Rule: Speech by Govt Employees

Back 18

Generally: gov't employees have free speech rights.

Exceptions:
1: can fire for speech persuant to official duties
2: Hatch Act: public officials may not speak with respect to political campaigns
3: failure to perform job (and speech with it) can be a basis for firing
4: policy making officials do not get speech protection.

Front 19

Rule: Information Obtained from Invasion of Privacy

Back 19

1) a state may not allow liability for truthfull reporting of info lawfully obtained from gov't records

2) Media cannot be held liable for ILLEGALLY intercepted conversations as long as:
a) media did not participate
b) involves matters of public concern.

Front 20

Basic Rule: Public Forums

Back 20

1: regulations must be subject matter and viewpoint neutral
a) if not, then Strict Scrutiny
b) if neutral, then intermediate scrutiny but gov't is not required to use the least restrictive means test

Front 21

Rule: Limited Public Forums

Back 21

Gov't could close, but has not.

SAME as public forums.

Front 22

Rule: Non-Public Forums

Back 22

Regulation is reasonable and neutral.

Front 23

Basic rule: freedom of association

Back 23

Laws that prohibit or punish group membership: STRICT SCRUTINY

Front 24

Basic Rule: Disclosure of Association

Back 24

Disclosure of membership requires STRICT SCRUTINY

Front 25

Rule: Associations and Right to Discriminate

Back 25

Freedom of Association does not protect the right to discriminate, unless:
1) intimate association OR
2) INTEGRAL to the purpose of the group

Front 26

Rule: Association with Illegal Activity

Back 26

May be punished for association with a group involved in illegal activity, IF:
1) affiliation is proven
2) knowledge of illegal activity is shown
3) specific intent to further illegal activity