Constitutional Law: First Amendment Freedom Of Speech

Front 1

Speech includes words, symbols, expressive conduct

Back 1

Expressive Conduct:

1) Conduct that is inherently expressive, or

2) Conduct that is intended to convey message, and is reasonably likely to be perceived as such

Front 2

"Freedom of speech" of 1A does not protect certain categories of unprotected speech.

A few categories receive only partial protection (defamation, commercial speech)

All other expression receives full

Back 2

Unprotected:
-incitement
-fighting words
-true threats
-obscenity
-child pornography
-defamation with actual malice
-commercial speech (false, misleading, illegal)

Hint 2

Partly Protected:

- defamation re public officials/figures, or matters of public concern
- commercial speech (not false, misleading or illegal)

Front 3

Incitement: Brandenburg Test

Back 3

Advocacy of use of force or law violation that is:
1) Intended to produce imminent lawless action, and
2) Likely to produce such action

Hint 3

Mere advocacy of lawlessness short of Brandenburg is protected speech

Front 4

Fighting Words

Back 4

Test: words likely to provoke an imminent, violent response

SC has not upheld a fighting words conviction in more than half a century

Front 5

True Threats

Back 5

Test: words intended to convey to someone a serious threat of bodily harm

Front 6

Obscenity

Back 6

Test: depiction of sexual conduct that taken as a whole, by contemporary community standards

1) Appeals to prurient interest in sex ("icky")
2) Is patently offensive; and
3) Lacks serious social value (literary, artistic, political, scientific) by national standards

Hint 6

Nudity, soft-core porn and "dirty words" are not obscene

Non-obscene sexually explicit or indecent speech may be zoned:
1) To protect children/unwilling adults from exposure, or
2) Prevent neighborhood decay and crime
3) So long as ample alternative channels exist

Right to privacy extends to possession of obscenity at home (unless child porn)

Front 7

Defamation

Back 7

1A provides limited protections for defamatory speech; "breathing space" for speech that promotes democratic self-governance.

Bars recovery under state defamation law for speech about public figures/officials that was not made with actual malice (knowledge of falsehood or reckless disregard of truth)

Hint 7

1A liability hurdles:

Public Figure: persons who have assumed roles of prominence in society, achieve fame and notoriety, or thrust themselves into public controversies to influence resolution

Public Concern: matters important to society and democracy

Front 8

Commercial Speech

Back 8

Unprotected false and misleading commercial speech, or advertising for illegal purposes

Hint 8

Limited Protection: all other speech

Content-based restrictions on commercial speech are not subject to strict scrutiny, but a form of intermediate scrutiny:
1) Substantial or important gov. interest
2) Narrowly tailored (reasonable fit)

Front 9

Ban on in-person solicitation for pecuniary gain is valid as to lawyers, but not accountants

Back 9

Total bans on truthful advertising are generally invalid

Front 10

General Speech Restrictions

Back 10

1) Content-Based: strict scrutiny (restrictions suppress speech because of mesage or perceived harms that message may produce)

2) Content-Neutral: intermediate scrutiny (suppress speech for reasons unrestricted to message), usually on basis of time/place/manner

Front 11

Speech Restrictions on Government Property

Forum Doctrine: level of scrutiny that speech restrictions on government property receive depends on how open the property is to speech

Back 11

Public Forums: gov property that by tradition or designation are open to public for all expressive activity

Nonpublic forums (limited public): gov property not open generally for public speech, but limited to speech (if any) related to purpose of property

Hint 11

Levels of scrutiny:
1) Public forum (same rules as general restrictions)
- content-based: strict scrutiny
- content neutral: intermediate

2) Nonpublic Forum
- reasonable in light of nature of forum
- if viewpoint based, strict scrutiny

Front 12

Public Schools

Back 12

Personal student speech: can't be censored absent evidence of substantial disruption

Curricular student or school speech: can be censored if reasonably related to legitimate pedagogical concern

Hint 12

Exception: showing of substantial disruption not needed for speech reasonably viewed as promoting drug use

Front 13

Public Employment

Back 13

Speech on matters of private concern: no 1A protection

Speech on matters of public concern: balance speech value v. gov interest in efficient workplace operation

Public employees may not be hired/fired based on political affiliation or expression, except for high-level policymakers or advisors

Hint 13

Exception: Speech pursuant to official job duties, such as responsibility to report misconduct to superiors is not protected

Front 14

Press, expressive assocations (political parties, NAACP, boy scouts) and government compelled speech (e.g., flag salute) are typically subject to same general speech analysis

Back 14

Content-based restrictions: strict

Content-neutral restrictions: intermediate

Front 15

Vagueness, overbreadth, prior restraints

Back 15

Any speech restriction, whether general or in a public forum, may also be challenged on grounds that it's unconstitutionally vague or overbroad, or operates as a prior restraint

Front 16

Vagueness: statute is vague on its face, and invalid if persons of common intelligence cannot tell what is proscribed and what is permitted

Back 16

Overbreadth: statute is overbroad and invalid if it prohibits a substantial amount of speech that the government may not suppress

Third party standing allowed (Plaintiff, whose speech may be proscribed, raises non-commercial speech claim on behalf of others not before the court)

Hint 16

Prior restraints: licensing scheme or injunction that prevents speech before it occurs

Disfavored: gov has heavy burden defending

- Content-based prior restraints are subject to VERY strict scrutiny
- Licensing systems must have sufficiently definite/narrow standards to cabin discretion, and prompt judicial review of denials