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46 Cards in this Set
- Front
- Back
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Content based regulation
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Strict Scrutiny
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Content neutral regulation
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Intermediate Scrutiny
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Prior restraints (stopping speech before occurs)
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Strict Scrutiny
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Gag orders to prevent prejudicial pretrial publicity
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Unconstitutional
BUT must be complied with until they are vacated If violate court order, barred from later challenging it |
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Requiring license for speech
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OK ONLY if
(1) there is an important reason for licensing (2) there are clear criteria, leaving almost no discretion to the licensing authority (3) there are procedural safeguards (prompt determination of requests for licenses and judicial review of license denials) |
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Vagueness
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A reasonable person cannot tell what speech is prohibited and what is allowed
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Overbreadth
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Statute regulates substantially more speech than the Constitution allows to be regulated
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Fighting words
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Words that, when addressed to an ordinary citizen, are inherently likely to incite immediate physical retaliation (not protected)
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True threats
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statements meant to communicate an intent to place an individual or group in fear of bodily harm (not protected)
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Limiting sanctions to cases where words seek to insult on basis of race, religion or sexual orientation
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NOT allowed -- viewpoint discrimination
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Symbolic speech (conduct)
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Govt can regulate if
(1) it has an important interest (2) govt interest is unrelated to the suppression of the message (3) impact on communication is no greater than necessary to achieve govt's goal |
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Flag burning
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protected speech
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Draft card burning
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NOT protected
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Nude dancing
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NOT protected
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Burning Cross
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Protected (unless true threat)
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Contributions to get a particular candidate elected
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Can be limited
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Contributions independent of a particular candidate
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Cannot be limited (incl if made by corporations, unions)
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Ballot petitions
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Govt can require disclosure of names and addresses of people who sign ballot petitions
Serves state interest in promoting transparency and accountability |
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Govt funding of speech
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Upheld under rational review (rationally related to legitimate state interest)
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Obscenity
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Not protected speech
(1) material must appeal to prurient interest, or shameful or morbid interest in sex (community standard) (2) material must be patently offensive (3) material must lack serious artistic, literary, political or scientific value (national standard) Govt may not punish private possession Govt can seize all assets of businesses convicted of violating obscenity laws |
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Child pornography
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Can be completely banned, even if not obscene
Children must have been used in production of material Govt can punish private possession |
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Profane & Indecent speech
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generally protected
Except in schools, on radio |
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Commercial speech
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Protected under intermediate scrutiny: narrowly tailored to achieve important govt interest; need not be least restrictive alternative
Exceptions: NOT protected (1) advertising for illegal activity (2) false and deceptive ads (3) speech that inherently risks deception (e.g., in-person solicitation of clients by lawyers) |
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Public official, public figure, person running for public office
+ Defamation suit |
P must show
(1) statement was false (2) statement was made with actual malice |
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Prive figure
Public concern Defamation suit |
Can get compensatory damages by proving
(1) statement was false (2) D was negligent in investigating To get presumed / punitive damages Must show actual malice |
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Private figure
Private concern Defamation suit |
P can recover presumed/punitive damages WITHOUT showing actual malice
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Intentional infliction of emotional distress for defamatory speech
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same rules as for defamatory speech (public figure must show actual malice, etc)
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Truthful reporting of information that was legally obtained from govt records
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NO liability allowed (e.g., name of rape victim)
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Broadcasting tape of illegally recorded phone call
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NO liability
- where media did not participate in illegality - and where involves issue of public importance |
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Speech by govt employees in performance of job duties
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NOT protected by First Amendment
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Public forums
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government properties that the govt is constitutionally required to make available for speech
designated public forum: govt property that govt could close off to speech, but choses voluntarily to open to speech E.g., Parks, Sidewalks |
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Regulation of speech in public forums or designated public forums
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(1) Subject matter & viewpoint neutral? Then OK
(2) If not --> must meet strict scrutiny (no requirement of least restrictive alternative) |
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Time, place or manner regulation in public forum
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Must
(1) serve an important government purpose (2) leave open adequate alternative places for communication |
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Limited public forum
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Govt properties that are limited to certain groups or dedicated to the discussion of certain subjects
Govt can regulate speech in limited public forums as long as regulation is reasonable and viewpoint neutral (need not be subject matter neutral) |
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Non public forums
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Govt properties that govt constitutionally can and does close off to speech
Regulation must be viewpoint neutral, must be reasonable |
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Examples of non public forums
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(1) Military bases
(2) Areas outside prisons and jails (3) Schools (4) Signs on public property (5) Sidewalks outside post office |
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Sidewalks
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Public forum
Except for area outside post office |
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Airport
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Govt can prohibit solicitation of money
Govt cannot prohibit distribution of literature |
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Private property
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NO First Amendment right of access to private property
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Freedom of Association
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Laws prohibiting or punishing group membership must meet strict scrutiny
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When can govt punish membership in a group?
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(1) person must actually be affiliated with the group
(2) person must have knowledge of group's illegal activities (3) person must have the specific intent of furthering those illegal activities or objectives |
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Laws requiring disclosure of group membership
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Must meet strict scrutiny IF disclosure would chill association
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When Freedom of Association protects a right to discriminate
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(1) intimate association
(2) discrimination is integral to the expressive activities of the group (boy scouts) |
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When can govt employer ask a prospective employee about membership in an organization?
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When membership is relevant to the loyalty and competence of the prospective employee
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When can pretrial criminal proceeding be closed to the press?
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(1) Closure is essential to preserve a higher value
(2) Order is narrowly drawn |
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Clear and present danger test
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State can forbid someone from
(1) Advocating the use of force or (2) Advocating the violation of law if If such advocacy (1) is directed to producing or inciting imminent lawless action and (2) is likely to produce such action |
