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23 Cards in this Set

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1st Amend

Time, Place and Manner Restrictions
Examples: Targeted Picketing & Limited Public Forum
Targeted Picketing: Frisby v. Schultz - Ct. upheld a statute that prevented focused residential picketing (i.e., picketing in front of a single residence). (i) it was content neutral since it regulated the location and manner of picketing rather than its messages; (ii) it was narrowly tailored to the importance interest of protecting a homeowner's privacy since it applied only to focused picketing; and (iii) alternative means of communication were available since the protesters could march through the neighborhood in protest.
1st Amend

Time, Place and Manner Restrictions

Examples: Targeted Picketing
Limited Public Forum: Widmar v. Vincent - If a public school or university allows private organizations and members of the public to use school for meetings when 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-based discrm.
1st Amend

Time, Place and Manner Restrictions

Injunctions
Injunctions that restrict 1st Amend activity in public forums are treated differently from generally applicable ordinances because injunctions present a greater risk of censorship and discriminatory application.
1st Amend

Time, Place and Manner Restrictions

Injunctions - Content Based
Content Based - it will be upheld only if it is necessary to achieve a compelling government interest
1st Amend

Time, Place and Manner Restrictions

Injunctions - Content Neutral
Content Neutral: it will be upheld only if it burdens no more speech than is necessary to achieve a significant government purpose
1st Amend

Time, Place and Manner Restrictions

Non Public Forums
Other than streets, sidewalks, parks, and designated public forums, most public property is considered to be a nonpublic forum. The govt can regulate speech in such a to reserve its intended use

Regulations will be upheld if they are: (i) Viewpoint neutral; and (ii) Reasonably related to a legitimate government purpose
1st Amend

Time, Place and Manner Restrictions

Non Public Forums

Req #1 - Viewpoint Neutral
Do NOT need to be content neutral.
If the government allows an issue to be presented in a nonpublic forum, it may not limit the presentation to only one view. BUT the govt may discriminate based on the identity of the speaker in nonpublic forums (subject to the limitation that if permits one member of that class to speak must also permit others to speak)
1st Amend

Time, Place and Manner Restrictions

Non Public Forums

Req #2 - Reasonableness
Reg of speech and assembly in non public forums need only be rationally related to a legitimate governmental objective

Lehman v. Shaker Heights - A city bus is not a public forum. The city may constitutionally sell space for signs on the public buses for commercial and public service advertising while refusing to sell space for political or public issue advertising in order to minimize the appearance of favoritism and the risk of imposing on a captive audience
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content
Restrictions on the content of speech must be narrowly tailored to achieve a compelling government interest (i.e., must pass strict scrutiny).
1st Amend

Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content - Tests Used to Determine Constitutionality
The only reasons for which the Ct. has allowed content-based restrictions are:
(i) It creates a clear and present danger of imminent lawless action;
(ii) It constitutes "fighting words" as defined by a narrow, precise statute;
(iii) The speech, film, etc. is obscene (category includes "child pornography")
(iv) The speech constitutes defamation, which may be the subject of a civil "penalty" through a tort action brought by the injured party in conformity with the rules set out;
* (v) The speech violates regulations against false or deceptive advertising - commercial speech is protected by the 1st A and it cannot be proscribed simply to help certain private interests;
(vi) The govt can demonstrate a "compelling interest" in limitation of the 1st A activity
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Clear and Present Danger Test
A state cannot forbid advocating the use of force or of law violation unless such advocacy is:
(i) directedd to producing or inciting imminent lawless action, AND
(ii) likely to produce or incite such action (Brandenburg v. Ohio)
Compelling Justif Test (est. in Dennis v. US): employed to hold unconst the GA legis's refusal to seal Julian Bond where he was critical of Vietnam and the draft, led the legis to doubt his ability to take the oath of office(Bond v. Floyd)
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Fighting Words
States may ban words likely to incite physical retaliation - States are free to ban the use of "fighting words," i.e., those personally abusive epithets that, when addressed to the ordinary citizen, are inherently likely to incite immediate physical retaliation (Chaplinsky v. New Hampshire - narrowly read)
Cohen v. California - Ct. held that the state may not punish the ∆ for wearing a jacket bearing the words "Fuck the Draft," - the word was clearly not directed to the person of the hearer.
Overbroad or Vague - the Ct. rarely upholds punishments for the use of "fighting" words.
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Fighting Words & Hate Crimes
Ct. will not tolerate fighting-words restrictions that are designed to punish only certain viewpoints(R.A.V. v. City of St. Paul - an ordinance applying only to fighting words that insult or provoke violence on the basis of race, religion, or gender was held invalid)

Prohibition Against Cross Burning Permissible - the S. Ct. has upheld a state ban against cross burning carried out with the intent to intimidate.
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Obscenity
NOT protected speech (Roth v. US) - defined as a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards:
(i) Appeals to the prurient interest in sex;
(ii) Portrays sex in a patently offensive way; AND
(iii) Does not have serious literary, artistic, political, or scientific value - using a RPP(Miller v. California)
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Defamatory Speech
Limitations on those where the person suing for alleged defamation is a public official or public figure, OR where the defamatory statement.
Plf' must prove reqs of state law, but also:
(1) that the statement was false; AND
(2) that the person making the statement was at fault to some degree in ascertaining the truth of the statement
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Defamatory Speech - Falsity
1. At common law, statement was presumed to be false and def' had to present affirmative defense of the truth. NO MORE (in context of public figure/concern cases) - plf' must prove that statement was false (PA Newspapers, Inc. v. Hepps)
2. The false statement must be viewed by RPP as a statement of fact. (also, cant circumvent 1st Am by suing under diff tort theory)
NOTE - even if its labeled an "opinion", if it is reasonably understood to be fact, he could be liable (Milkovich v. Lorain Journal Co.)
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Defamatory Speech - Fault
At common law, a def' could be liable even if he did not know the statement was false.
NOW - the plf' (public concern/figure) must prove that the statement was made clear & convincing proof of "actual malice" on part of the def (NY Times v. Sullivan)
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Defamatory Speech - How to Become a Public Figure
1. General Fame or Notoreity - a citizens partic. in community and professional affairs does not render him a public figure for all purposes
2. Involvement in Part. Controversy - a person may "voluntarily inject himself or be drawn into a particular controversy to influence the resolution of the issues involved". (only public figure for a limited range of issues) (Gertz v. Robert Welch. Inc)
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Defamatory Speech - Private Indiv Suing on Matter of Public Concern
AT LEAST NEGLIGENCE REQUIRED - less need to protect freedom of speech and more need to protect indiv b/c they cant maintain an effective rebuttal as public figures.
Only subject to limitations after a matter involves public concern and then the limits are not as great: 1. it prohibits liability w/out fault (must show at lease neg) 2. it restricts the recover to presumed or punitive damages (can only recover punitive if actual malice is est.)
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Defamatory Speech - What is a matter of public concern?
Crts decide on a case by case basis looking @ content, form, and context of the publication (Dun & Bradstreet v. Greenmoss Builders, Inc.)
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Defamatory Speech - Matter Not of Public Concern and Publishing True Fact of Public Record
Matter not of Public Concern - Ct has not imposed const. restrictions on defamation that do not involve public concern - dont have to prove malice to get all types of damages
True Privacy Actions - cant be sued for publishing true fact once it is lawfully obtained (Cox Broadcasting Corp. v. Cohn; The Florida Star v. B.J.F.)
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Commercial Speech: Validity Test
Four Steps (Central Hudson Test):(1) if the speech regulated concerns a lawful activity and is NOT misleading or fraudulent, the regulation will be valid only if it: (2) Serves a "substantial" govt interest; (3) "Directly advances" the asserted interest; AND (4) narrowly tailored to serve the substantial interest (reasonable fit NOT least restrictive means)
NOTE - false advertising is not protected
Content Based Restrictions
1st Amend

Content Based Restrictions

Regs/Punishment Based on Content

Commercial Speech: Liquor Price Regulation
Ct has stricken ban prohibiting all advertisement of liquor prices (44 Liquormart v. RI) - unlikely that the gov't can completely ban truthful advertising of any lawful product or service