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Con Law II - First Amendment (Speech)
Toledo Law - Professor Strang - Fall 2011
39
Law
Graduate
12/08/2011

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Cards

Term
What is a content-based restriction? 
Definition
A restriction on the exercise of free speech based upon the subject matter or type of speech. Content based restrictons receive strict scrutiny.
Term
When is a content-based restriction upheld?
Definition
Under strict scrutiny, upheld only if necessary to serve a compelling interest serve to promote a compelling interest AND if it is the least restrictive means to further that interest.
Term
What is a content neutral restriction?
Definition
A regulation of speech without regard to its subject matter or the viewpoint conveyed. Content neutral restrictons receive intermediate scrutiny.
Term
When is a content-neutral restriction upheld?
Definition
Under intermediate scrutiny, upheld if it advances an important interests unrelated to the suppression of speech and does not burden substantially more speech than necessary. 
Term
What is a prior restraint?
Definition
An administrative system or a judicial order that prevents speech from occurring (i.e., before someone speaks, the govt says, “don’t speak!”).
Term
When licenscing is used as a prior restraint, what tests are used? 
Definition

For licencing requriements that are content-based, use S.S.

For licensing requirements that are content-neutral, must have all 3: (1) Important Reason (1) Clear Criteria (2) Adequate Procedures.

Term
What is an Infringement of Freedom of Speech?
Definition
Infringement situatons: prohibitions, laws that compel speech/expression, civil liabilities based on speech, laws that prevent compensation based on speech, laws that condition a benefit based on speech, laws that compel silence.
Term
What is a prohibition as an infringement of Freedom of Speech?
Definition
Laws that inhibit people getting paid as a result of speech are prohibited. (U.S. v. National Treasury Employees Union: Govt may not forbid all govt employees from receiving compensation for speeches, appearances, or aricles. This ban on honoraria was especially vulnerable under the 1st Amend b/c it burdened only speech and not other off-duty activities that may pose the same dangers of misuse of public employment, and b.c it applied to a broad category of expression by a massive # of potential speakers.)
Term
What is a law that comepls speech / expression as an infringement of Freedom of Speech?
Definition
West Virginia State Board of Education v. Barnette: Requiring all public school pupils to salute the flag and recite the pledge of allegiance is invalid as applied to children whose religious scruples forbid it – govt cannot require affirmation of a belief. Govt cannot compel silence or speech, whether verbal or symbolic, except to prevent "clear and present" danger of crime.
Term
What is a law that conditions a benefit based on speech   as an infringement of Freedom of Speech?
Definition

- The principle that the government cannot condition a benefit on the requirement that a person forgo a constitutional right.

Why it would be upheld: Constitutional Condition: Close relationship b/t the condition and the benefit; The burden is de minims.

- Speiser v. Randall: Property tax-break w/ a condition - SC struck down the condition b/c there was not a close relationship between the condition and the benefit.

- Rust v. Sullivan: SC upheld federal regulations prohibiting federally funded family planning programs from counseling or giving info about abortion. 

Term

What is a government pressure as an infringement of Freedom of Speech?

Definition

- Something less than an outright penalty can constitute infringement.

- Govt pressure, except prohibition, is unconstitutional if it substantially burdens the speaker.

- Simply requiring a label doesn’t constitute sufficient pressure to be an infringement.

- Aggressive reaching out pressure to stop speaking and referral to executive for prosecution --> Labeling + is enough pressure to constitute infringement.

- Bantam Books, Inc. v. Sullivan: Unconstitutional for state to encourage morality in youth by identifying "objectionable" books b/c they were unsuitable for children and to write to sellers urging them to stop having them available.

Term
What are the types of unprotected speech?
Definition

Unprotected:

- Incitement of Illegal Activity

- Fighting Words

- Obscenity

- Child Pornography

Term
What is incitement of illegal activity?
Definition
When a person talks about the government in a disagreeable way; this speech incites others to act; and those actors do something to upheave the government.
Term
What are the tests for incitement of legal activity?
Definition

(1) Clear & Present Danger Test I

(2) Reasonableness Test 

(3) Clear & Present Danger Test II (Risk Formula Approach)

(4) Brandenburg Test 

Term
What is the Clear & Present Danger Test I for incitement of illegal activities?
Definition

3 components: If met, the constitutionality of a law and its application will be upheld.  (1) Immanency / Immediacy that act would happen, if at all; (2) Likelihood that the act would lead to violence; (3) Seriousness repercussions / weight & gravity of the harm? 

Schenck v. U.S.

Frohwerk v. U.S.

Debs v. U.S.

Abrams v. U.S.

Term
What is the Reasonableness Test for incitement of illegal activities?
Definition

The government can punish speech that incites unlawful activity so long as it is reasonable. Must be legitimate state interest and done through reasonable means.

Gitlow v. New York

Whitney v. California 

Term
What is the Clear & Present Danger Test II (Risk Formula Approach) for incitement of illegal activities?
Definition

Seriousness of the harm multiplied by the likelihood of the harm.

Dennis v. U.S. 

Term
What is the Brandenburg Test for incitement of illegal activities?
Definition

Speech is incitement if 3 conditions are met: (1) The speaker must intend to incite; (2) Imminent lawless action; (3) Imminent lawless action is likely. 

Brandenburg v. Ohio

Term
When may speech be punished because of the risk that it may provoke an audience into using illegal force against the speaker?
Definition
Fighting words, hostile audience
Term
What are "fighting words?"
Definition

Speech that is directed at another and likely to provoke a violent response (unprotected by the 1st Amendment).

Chaplinsky v. New Hampshire

Gooding v. Wilson

Term
What is a hostile audience?
Definition

When an individual's speech (1) provokes an imminent danger of uncontrolled violence by onlookers of the speaker, (2) Crowd control is impossible, and (3) Speaker ignores police. If all 3, the exercise of 1st Amendment rights is outweighed by the public interest in order.

Feiner v. New York

Term
What is hate speech?
Definition

- Speech that is directed at a particular person or group based on their characteristics and that (1) Degrades, (2) Intimidates, and (3) Incites violence. 

- This may be a somewhat protected area of speech; May have some redeeming social value.

- Intent issue: IF a statute makes an act w/ intent to intimidate another a criminal act --> it will not PER SE be unconstitutional; IF the statute makes the act the intent to intimated --> it will violate the 1st Amend.

Term
What is the test for determining obscenity?
Definition

MILLER TEST: What is “obscene” is a Q of fact for the jury: 

(1) Does the work taken as a whole appeal to the prurient interest? How do we know? Use a local community standard (Jurors in those districts are assess what the local community standard is); AND

(2) Is the work patently offensive as defined by statute? Defined by State statute, it either: tries to define what counts as patently offensive, or just list the things that are patently offensive. AND

(3) Does the work taken as a while lack serious redeeming social value? Use national standard.

 (from Miller v. California)

 

Term
What is child pornography?
Definition

Material that depicts children in sexual acts is NOT protected by the 1st Amendment.

The state may regulate child pornography if it: (1) Is a valid depiction; (2) Of sexual conduct specifically described by the states; (3) By children below a specific age; and (4) Is made w/ some scienter. (New York v. Ferber)

Term
What types of speech are given less protection?
Definition
Low value sexual speech, Profanity and "Indecent" Speech, Commercial Speech, reputation
Term
What is Low Value Sexual Speech?
Definition

A category of sexual speech that doesn’t meet the test for obscenity, and thus is protected by the 1st Amendment, but is deemed to be speech of low value, and thus the government has latitude to regulate such expression. Receives I.S. "without bite."

- SC has upheld the ability of local governments to use zoning ordinances to regulate the location of adult bookstores and movie theatres. (Young v. American Mini Theatres, Inc)

- Another example of SC's treatment of sexually oriented speech as being of “low value” is its willingness to allow the government to prohibit nude dancing. (City of Erie v. Pap’s A.M.)

Term
What if the low-value sexual speech is expressive?
Definition

Use the O'Brien Test! If the conduct is expressed per the Spence test, use this test to see if it is constitutional to restrict it. A govt regulation is sufficiently justified:

(1) If it is win the constitutional power of the govt;

(2) If it furthers an important or substantial governmental interest (narrowly tailored);

(3) If the governmental interest is unrelated to the suppression of free expression; and

(4) If the incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest (ample alternative channels). 

Term
What is Profane  & "Indecent" Speech?
Definition
Speech that is profane or indecent is protected except in some very narrow exceptions: fighting words, captive audience, schools, broadcast media.
Term
What is a captive audience with respect to less protected speech?
Definition
Listeners or onlookers who have no choice but to attend. (Court held that petitioner in Cohen v. California was not engaging in speech in a captive audience).
Term
What is commercial speech?
Definition

A communication which:

(1) Does no more than propose a commercial transaction or is an advertisement; OR

(2) Is an advertisement, References specific products, and is mailed for economic motivations. 

(VA State Board of Pharmacy v. VA Citizens Consumer Council, Inc. – SC suggested that the usual prohibition on prior restraints may not apply to commercial speech)

Term
What is the Hudson Test for Evaluating Regulation of Commercial Speech?
Definition

Hudson Test: I.S. - Truthful commercial speech concerning a lawful activity has an informational function and cannot be prohibited unless:

- The restriction is truthful and conerns lawful activities;

- A substantial govt interest is served by the restriction;

- The govt's motive is to directly advance the governmental interest; AND

- The restriction is no more extensive than necessary to achieve that interest.  

(Central Hudson Gas & Electric Corp. v. Public Service Commn. of NY)

Term
What is the test to determine whether speech/conduct is communicative?
Definition

Spence TestSpeech/conduct is communicative speech if:

(1) The speech/conduct was intended to communicate a particularized message; AND  

(2) There is a substantial likelihood that the audience would understand that message. 

(Spence v. Washington - A prohibition on displaying the flag w/ the peace symbol attached violates the 1st Amend. A person may not be punished for “failing to show proper respect for our nat’l anthem.”)

Term

If speech/conduct is found to be communicative under the Spence Test, then how do you determine if regulation of that speech/conduct is jusified?

Definition

O’Brien Test: A govt regulation is sufficiently justified:

(1) If it is win the constitutional power of the govt;

(2) If it furthers an important or substantial governmental interest (narrowly tailored);

(3) If the governmental interest is unrelated to the suppression of free expression; and

(4) If the incidental restriction on alleged 1st Amend freedoms is no greater than is essential to the furtherance of that interest (ample alternative channels). 

(U.S. v. O’Brien – A prohibition on draft card burning was upheld. The govt’s interest was not simply to suppress speech aspects of the conduct; it had an independent interest of requiring possession of draft cards to facilitate the smooth functioning of the draft system.)

Term
What is a Traditional Public Forum?
Definition

Public property that has historically/traditionally associated w/ the exercise of 1st Amend rights. Ex: Streets, sidewalks, and parks (Hague v. Committee for Industrial Organization). The government has a duty to pemit speech in those places.

 

SS for Content-Based restrictions of speech; I.S. for Content-Neutral Time, Place, and Manner restrictions of speech

Term
What are Designated / Limited Public Forums
Definition

Designated - used to be closed to speech, now open to speech.

Limited - only open to local community groups.

 

Term
What is a time, place, and manner regulation?
Definition

A regulation in which the government imposes on the occasion, location, and type of individual expression. 

In order for such regulations to be constitutional, they must: (1) be content-neutral; (2) be narrowly tailored; (3) serve a significant governemtal interest; AND (4) leave open ample alternative forums or channels of communication for protected expression.

(Ward v. Rock Against Racism)

Note: even if a regulation meets the TPM requirements, it may still be invalid if it is overbroad or vague!!

Term
What are Non-Public Forums
Definition
Governmental property that is not open to the public (think of military property or Area 51). 
Term
What are the Factors to Determine the Type of Public Forum?
Definition

1) Tradition - Has this space been traditionally been open to expressive activities?

2) Designation - Has this space been designated by the government to permit expressive activities?

3) Compatibility - Is the speech compatible to the property that is at issue?

Term
When can the State (in the person of school officials) make a prohibition of a particular expression of opinion?
Definition

Tinker Test: In order for the State in the person of school officials to justify prohibition of a particular expression of opinion:

(1) It must be able to show that its action was caused by something more than a mere desire to avoid the discomfort; AND

(2) Unpleasantness that always accompany an unpopular viewpoint. 

(Tinker v. Des Moines Independent Community School District  - Public schools cannot restrict students' expression, unless it would "materially and substantially interfere" w/ appropriate school discipline)

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