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22 Cards in this Set

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Content neutral restriction must be what? Level of scrutiny?
View point neutral
(ideology of message - pro choice vs anti abortion) AND subject matter neutral (based on topic - no picketing unless for labor)
Content based: strict scrutiny
Content neutral: intermediate
Whenever the government attempts to regulate speech in public places it must be..
(1) subject matter neutral and viewpoint neutral (content neutral)
When is a law unconstitutionally vague?
If a reasonable person cannot tell which speech is prohibited and what is permitted
Note unduly vague laws violate DP regardless if speech is regulated or not
When can a facially CB regulation become CN?
When purpose is motivated by desire to prevent adverse secondary effects (crime by adult theatre)
Unclear when/how facially CN regulations can become CB based on purpose or impact (flag burning?)
What are the common constitutional tools of litigators when confronted with any law, regulation, ordinance?
Check to see if it is (1) overbroad (2) vague (3) impermissible prior restraint on expression
Hudsy wouldnt nec describe these as procedural but its true dont really focus on content/vp of speech but rather the regulatory means the govt uses TO restrict speech ---- often grouped together
What is a prior restraint?
any type of law that imposes pre-publication hurdles (1) speech restrictive injunction [i.e. gag order or court order] (2) licensing systems requiring permit/fee before engaging in expressive activity unless procedural safeguards under Freedman (full and fair hearing, prompt determination, judicial review)

(e.g old english licensing laws where in order to publish materials, publishers had to have official license from the govt - control)
Presumption of invalidity

Concern: censorship

e.g nude dancing permitting laws, parade permitting laws
When is over breath used?
Used to strick down restrictions on speech that are worded in such a way that even protected expression is left vulnerable to punishment (more common than vagueness)
Concerns/policy reasons of vagueness doctrine?
(1) Fairness/notice (not trap innocent) based on DP notions
(2) Selective/arbitrary/ discriminatory prosecution (based on views or politics or discretion)
--> Minimum guidelines necessary to govern law enforcement
(3) Inhibit FA freedoms (chill constitutionally protected speech)
What is vagueness ?
Standardless sweep - unconstitutional if reasonable person cannot tell which speech is prohibited and what is permitted.
Need to provide minimal guidelines in criminal/any statutes
Why worried about chilling FA protected speech?
Marketplace of ideas, autonomy, information, threat of sanctions may deter exercise (chilling effect), fairness
Why is void-for-vagueness doctrine powerful tool in FA lit?
Allows facial challenges to laws even by those whose speech otherwise would be unprotected by the FA
What are the two major aspects of the overbreadth doctrine?
(1) A law must be substantially overbroad - restrict significantly more speech than constitution allows to be controlled (whether conduct or pure speech)

(2) Relaxed standing requirements (usually a person to whom statute may be applied constitutionally will not be heard to challenge that it may be applied unconstitutionally to others in other situations not before courts - but here exception to principle that requires people to assert their OWN rights)
Why is whether commercial or not outcome determinative?
1) CB restriction on NON commercial speech --> SS
2) CN/CB restriction on commercial speech --> intermediate CH
3) Political-commercial mix --> lorrilard inexplicably intertwined? -> non commercial speech intermediate
Commercial speech is entitled to what level of protection? What level of scrutiny/test is applied?
Intermediate scrutiny under Central Hudson.

1) Does speech concern lawful activity and is non misleading?
2) Is the government's asserted interest substantial?
3) Does the regulation directly advance the govt interest?
4) Does the restriction restrict more speech than necessary to serve the govt interest (narrowly tailored to achieve desired objective)
NOTE: doesnt have to be least restrictive means possible

More protective recently by forcibly asserting 3/4 prong
What is the Garcetti- Pickering Connick test?
1) Was employee speaking as citizen or employee [official job duty] (Garcetti) --> if employee not protected
2) TH: Does the speech address a matter of public concern (any matter of political, social, or orther matter to community)
3) Does employee's free speech rights outweigh employer's efficiency interests? (balancing)

Employers interests: Does the speech:
- Impair discipline/harmony among co-workers
-Detrimentally impact close working relationships for which personal loyalty and confidences are necessary
-Interfere with the normal operation of the employee's business?
e.g protest against racism, security lapse in prison, presidential assassination attempt
What are the interests as stake in student expression?
the rights of the state to educate and maintain a learning environment with the constitutional rights of the students to speak
Courts tend to defer to the expertise of school officials and their need to make decisions about education and how to preserve discipline and order within the schools
What standards are applied in the student speech cases?
1)Hazelwood - school sponsored speech
2) Fraser - applies to student speech that is vulgar and lewd
3) Tinker - applies to most other student speech
What is the Tinker standard?
Schools can punish speech only if
1) causes a substantial or material disruption OR invades the rights of other students

disruption std: must be a reasonable forecast and undifferentiated fear or apprehension of disturbance is enough
Invade speech largely ignored --> 9th C tshirts with religious and anti gay messages banned (fights, racial or sexual violence, rights of gay students)

Recently court has become less protective and more deferential to school authorities
What is the Fraser standard?
Schools may regulate student speech that is vulgar, lewd, or plainly offensive. (e.g sexual innuendo ABS speech, marilyn mansion shirt)
Determination of what manner of speech in class or assembly is inappropriate properly rests with the school board

appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse
Distinguished from tinker (political speech) because this is just sexual in nature
What is the Hazelwood standard?
Educators do not offend FA by exercising editorial control over the style and content of student speech in school sponsored expressive activities as long as actions are reasonably related to legit pedagogical (teaching) concerns
school newspaper was a nonpublic forum and so school officials were entitled to regulate the content of the school newspaper in any reasonable manner
What is the distinction between Tinker and Hazelwood?
Tinker- whether the FA requires a school to tolerate particular speech (educator's ability to silence a student's personal expression that happens to occur on school premises)
Hazelwood - whether the FA requires the school to affirmatively promote particular student speech (authority over school sponsored publications, productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to be endorsed by the school). In this context court says schools have broad authority to regulate student speech.
What is the standard in Morse v. Frederick?
"Bong hits for jesus" out of school expression --> court creates a "promoting drug speech exception" to the trilogy --> schools can "restrict student expression they reasonably regard as promoting illegal drug use."