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58 Cards in this Set
- Front
- Back
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First Amendment
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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there of, or abridging freedom of speech or of the press the right of the people to peaceable assemble & to petition the govt. for a redress of grievances
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Unprotected Categories of Speech?
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1. Advocacy of imminent lawless behavior
2. Defamation 3. Fighting Words 4. Fraudulent Misrepresentation (commercial) 5. Obscenity *still must be regulated in a content neutral manner |
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Test used for speech which advocates use of force or lawless action.
Govt can regulate this speech if: |
Brandenburg Test:
Government can punish this type of speech if 1. the speaker sought to incite his audience 2. to imminent action 3. which is likely to occure |
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The Brandenburg Test replace the:
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Clear and Present danger test
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More about Brandenburg Test:
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Mere advocacy & abstract teaching is protected
Do not have to wait and see whether immediate violence occures in order to punish Cannot be punished for advocating a belief |
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Overbreadth Doctrine
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Where the govt. is trying to regulate too much / encompasses speech which should be protected
Can be overbroad on its face or as applied Overbreadth is unconsitutional |
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Fighting Words
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Words that would likely cause the average person to incite violence
those which by their very utterance inflict injury or tend to incite an immediate breach of place |
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Fighting Words
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The speaker is directing his speech at a particular person & a violent response is likely to occur
(average person is likely to react violently) |
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Symbolic SPeech
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1. the speech is INTENDED to convey a specific message
AND 2. there is a substantial likelihood that the message will be understood by those receiving it |
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A government regulation on Symoblic speech is justified IF:
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1. the regulation is within the constitutional power of the government
2. the regulatio furthers an important/ substantial government interest 3. the regulation is unrelated to the supression of free expression (content neutral) 4. the infrigement on 1st amendment freedoms is no greater than essential to further the interest (NARROWLY TAILORED) |
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Slander, Libel, or Defamation
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Soeech which a ffects a person's privacy or reputation
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3 different possible test in a defamation case?
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Public Official
Public Figure Private Figure |
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What is a public official
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Someone who is in the heirarchy of government employees & has substantial responsibility over govt. affairs
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What is a public figure
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Someone who has thrust himself into the public limelight and has media access
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What is a private figure
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An average person who is not a public official or public figure
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In order to recover damanges, a public offical must
(A public official cannot recover damages for defamtory falsehoods relating to his official conduct unless |
1. show statement was made with ACTUAL malace or a reckless disregard for the truth
AND 2. show with clear and convincing evidence that the statement was false *Cannot be an opinion statement |
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What is actual malice
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Knowing the statement was false or disregarding wether it was false or not
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In order for a public figure to recover he must?
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Same as a public official
1. statement was made with actual malice or reckless diregard for the truth 2. show by clear and convincing evidence that the statement made was false |
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A private figure plaintiff must show:
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Matter of public concern
for compensatory damages 1. must show D's negligence 2. falsity of statement For punative damages and a matter of public concern 1. must show actual malice EXCEPTION: if not a matter of public concern, P does not have to show actual malice to recieve punitive damages |
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Emotional Damages
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public officials & public figures not recover for emotional distress w/o proving that a false statement was made made with actual malice
- Political satire and parody |
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Types of forums for speech
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1. public forum
places which have been historically held for public debate or expression ex. streets, sidewalks, parks Limited Public Forums (designated forum) forums which are intentionally opened or created by govt. for purposes of expressive activity 3. Non-public Forums: those places which are not open to the public for expressive activity |
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Govt can regulate speech in public forums only if it meets certain requirements
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1. regulation must be content + viewpoint neutral
IF NOT must meet strict scutiny 2. Regulation must meet TPM restrictions - important govt interest (siginficant) -narrowly tailored (but not least restrictive) - ample alternatives are left open for communcation |
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The government can regulate speech in a limited public forum when certain requirements are met:
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1. regulation must be content + viewpoint neutral
IF NOT must meet strict scutiny 2. Regulation must meet TPM restrictions - important govt interest (siginficant) -narrowly tailored (but not least restrictive) - ample alternatives are left open for communcation |
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Government can regulate speech in non-public forums if:
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as long as the regulation meets a rational basis test
Rationally related to a legitimate state interest AND the regulation is viewpoint neutral CAN BE CONTENT BASED |
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Privately owned property as a forum for speech
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there is no 1st amendment right to use privately for speech purposes
content determination is generally lef to the owner of the property |
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Differences level of scrutiny
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Strict - compelling govt interest and narrowly tailored
Intermediate - Important government interst that is substantially related Rational Basis - legitimate govt interest + rationally related |
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Content Based regulation
vs. Content Neutral Regulations |
Content Based: discriminates on the basis of what the speaker is saying (targets the message)
Content Neutral: not discriminating on basis but rather when, where and how |
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In order for a CONTENT BASED regulation to be justified to be justified it must:
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Must meet the requirements of strict scutiny test
1. must be a compelling state interest 2. regulation must be narrowly tailored 3. least restictive means |
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A government regulation on speech will be Content Neutral if it meets the TPM requirements:
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TPM restrictions (intermediate scrutining)
- content neutral - directed at achieving a signficant governemnt interest - narrowly tailored to achieve its interest - here are ample alternatives channels for communation open |
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Viewpoint - Based regulation on speech
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Regulation on speech which focuses on one aspect of an issue
i.e. speech advocating the pro-choice side of abortion is banned (higher level of scrutiny than content based) |
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Obscenityp
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not protected by the first amendment
without any redeeming social importance obscene materials are those which deal with sex in a manner appearing to the prurient interest |
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Three requirements must be met in order for material to be deemed obscene
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THE MILLER test
1. the average apply today's community standard must find as a whole appeals to the "prurient interest" 2. the work must depict or describe in a patently offensive way particular types of sexual conduct defined by state law 3. the work as a whole must lacks serious literary, artistic, political, or scientific value |
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Prurient Interest
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material having a tendancy to excite unhealthy lustful thoughts
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Some of the governments interest in prohibiting obscenity
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1. quality of life of public
2. Prservation of total community enviromnent 3. general public safety |
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personal possession of obscene material
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Cannot be punished for having obsence material in your home
BUT can be punished for selling, buying, sending, or receiving obscene material by mail |
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Obscenity & Children
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Government may prohibit the exhibition, sale, or distribution of child pornography even it does not meet the miller test
they may also prohibit these materials in the privacy of the home GOVERNMENT interest - to protect children |
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Commercial Speech
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Speech advertising a product or proposing some commercial transaction
Protected by 1st amendment as long as: 1. the ad is not false or misleading 2. does not promote an illegal transaction can still be regulated |
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Commercial Speech
Central Hudson Test |
Even though the regulation of commercial speech is always content based you dont apply strict scrutiny t see if its constitutional
you apply Central Hudson |
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Central Hudson Test
for commercial speech |
Government regulation of commercial speech will be deemed constitutional if
1. government has a substantial interest in regulating it 2. the regulation directly advances the government interest 3. regulates no more extensively than necessary to achieve the government objective 4. narrowly tailored |
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Prior Restraints
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Any administrative system or judicial order that prevents speech speech from occuring
ex. licensing requirements, injunctions |
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Injunction
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government has a heavy burden to justify injunction on speech
must be a compelling interest 1. national securty 2. military secrets |
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Licensing
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government may require licenses or permits in order for speech to occur
In order to be constitutional there licenses must meet 3 requirements 1. important reason for the licensing 2. clear standards (prevent too much discretion) 3. Procedural safeguards |
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Court orders to protect fair trials will be justified?
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1. there is a showing that there has been extensive publicty that will jeopardize ability to select a fair + impartial jury
2. prior restraints are needed to secure a fair trial for the defendant DENNIS Test - weigh the danger to trial with the effect of prior restraint |
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Government effect on speech in schools
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Tinker Test -> balancing test
In order for the state (as a school) to justify the prohibitiion of expressive speech in schools it must show that 1. the students actions materially + and substnatially interfere 2. with the requirements of appropriate discipline 3. in the operatioon of the school |
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Spending Money as political speech - Campaign finance
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Speech in connection with elections and electoral process is at the very core of the 1st amendment
restrictions on political speech are generally subject to strict scrutiny |
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Rationale + justification for restrictions on political speech
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Restriction on amount of $ a person can spend on political communication during a campaign reduces the quality of his expression
Two justifications for restriction 1. to prevent corruption 2. prevent appearance of corruption by coersion or undue influence |
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Expenditures v. Contributions
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The state
Can regulate contributions - Intermediate scutiny - regulate must be closely drawn to a suffiently IMPORTANT government interest Cannot regulate Expenditures - if restrictions attempted must meet STRICT scrutiny test |
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Compelled Speech
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just as there is a right to speak, there is also a right to be silent and refrain from speaking
whenever speech is compelled, strict scutiny must be satisfied |
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Selective Funding by Government
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The court has found it to be constituional for the government to selectively fund programs which encourage activities in the public interest w/out also funding alternative approaches
has not discriminated based on viewpoint but has merely chose fund one activity over another Government may also compel speech or conduct as a condition of funding as long as its sufficiently related They have a choice, dont have to take funds |
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Speech by public Employees
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less protected than other speech
TEST government cannot punish speech of public employees if: 1. involves matter of public concern UNLESS government proves that the needs of the government outweighs speech of employees |
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Pickering Standard
public employee Speech |
A government employee's speech which is a public concern is protected (must be correct and not confidential)
However -> employee can be disciplined or fired if government cna show that the efficient operation of the office justified the action Goal -> to protect the performance of government function & prevent speech which will impair it |
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Establishment Clause
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Prohibits the govermnent from setting up or recognizing an offical state church or religion
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Test used for the validity of the law of under the establishment clause
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a law will be upheld:
1. it hsa a primary secular purpose (not religious) 2. the Primary effect does not enhance or inhibit religion 3. law does not foster an excessive entangement between church and state |
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Endorsement Test is used when:
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you have to determine if government aid to religious activities or government connection to religious speech violates the first amendment
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Elements of the Endorsement Test
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Government action must NOT:
1. have a purpose to endorse religion (look at motivation) 2. have the effect of endorsing |
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When the government discriminnates one religion & not another apply
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Strict Scrutiny Test
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Coersion Theory
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Used to determine whether government action coerced someone into abiding by the statute or practice
Coersion to participate in a religious activity is an obvious indication that the government is endorsing or promotion religion |
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Religious Displays
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nativity scenes, menorahs, at other religious symbols are allowed on government property as long as they do not convey symbolic endorsement for religion or a particular religion
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