Term
| When is the strict scruitiny test when applied to regulations of media? |
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Definition
Strict scrutiny is used when restrictions on speech or press are content-based, that is, the reason for regulation is based on the content of a message.
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Term
| What is the Strict Scrutiny test when a content-based restriction is put upon the speech or the press? |
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Definition
1. Does the regulation further a compelling governmental interest?
2. Are the means used narrowly tailored to accomplish that governmental interest?
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Term
| When is the mid-level scruitiny test when applied to regulations of media? |
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Definition
Mid-level scrutiny is used when restrictions on speech or press are content-neutral, that is, the reason for regulation is NOT connected to content but focuses on means of transmission.
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Term
| What is the mid-level scruitiny test when a content-neutral restriction is put upon the speech or the press? |
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Definition
To review, if government regulation affects conduct with both speech and non-speech components, and if regulation incidentally restricts expression, a law is still valid if it meets the four-part “O'Brien Test.”
The four parts are:
1. Congress has the constitutional authority to enact the law.
2. The regulation furthers a substantial governmental interest.
3. That government interest is unrelated to suppression of free expression.
4. The restrictions imposed are no greater than necessary to further governmental interest.
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Term
| What are two differences between strict and mid-level scrutiny? |
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Definition
- When comparing strict scrutiny and mid-level scrutiny, note that the O’Brien Test calls for furthering a substantial governmental interest. Strict scrutiny requires a compelling interest.
- Also, O’Brien requires that restrictions on speech or press be no greater than necessary. Strict scrutiny requires restrictions that are narrowly tailored to meet the government’s interest.
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Term
| When is a law "content-based" ? |
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Definition
A law is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed.”
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Term
| When is a law "content-neutral" ? |
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Definition
The Supreme Court has stated that the main question to ask in deciding content neutrality is “whether the government has adopted a regulation because of a disagreement with the message it conveys. The government’s purpose is the controlling consideration.”
In cases involving a city’s ordinance prohibiting nude dancing, a state university’s requirement for mandatory student activity fees, and a state law restricting speech outside abortion clinics, among others, the Court found each to be content neutral.
- Content-neutral restrictions often take the form of “time, place, and manner” restrictions.
- Time Example: no one may "insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech"
- Place Example:
- NYC volume control ordinance for Central Park band shell. Ward v. Rock Against Racism
- Colorado and Mass. laws creating buffer zones around health care facilities and abortion clinics. Colorado v. Hill; McCullen v. Coakley.
- Ordinance banning use on city streets of vehicles with devices that emit “loud and raucous noises.” Kovacs v. Cooper. p 956.
- Ordinance banning picketing before or about the residence of any individual. Frisby v. Schultz (1988), p. 956.
- Law banning picketing within 100 feet of funeral. See Snyder v. Phelps, p. 930 n.10.
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Term
| Can a law be content based, but viewpoint neutral? |
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Definition
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Term
| What is "racial gerrymandering" ? |
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Definition
“A plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification.” |
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Term
Is the following law (1) viewpoint-based, (2) content-based, but viewpoint-neutral or (3) content-neutral?
A law requires a permit to hold meetings of 100 or more people in a public park. Permits are routinely granted as long as the permit is completely filled out.
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Definition
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Term
Is the following law (1) viewpoint-based, (2) content-based, but viewpoint-neutral or (3) content-neutral?
"A law bans all posters on a public bus shelter." |
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Definition
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Term
Is the following law (1) viewpoint-based, (2) content-based, but viewpoint-neutral or (3) content-neutral?
A law bans anti-abortion protests outside abortion clinics. |
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Definition
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Term
Is the following law (1) viewpoint-based, (2) content-based, but viewpoint-neutral or (3) content-neutral?
A law bans the use of bulletin boards in a public law school for any postings not related to law school events. |
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Definition
| Content-based, but viewpoint-neutral. |
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Term
| What are the Pre-Brandenberg, Incitement of Immediate Crime, Content-Based Regulation of Speech Factors used in Schenck, Frohwerk, Debs, and Abrams? |
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Definition
Law must be regulating speech that has a:
(1) Clear & Present Danger
...containing a substantial liklihood of having an...
(2) Immediate Effect
...of bringing about...
(3) Substantial Evils [like the impairment of the war effort]
...that the legislature is authorized to prevent. |
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Term
| What is the contemporary test for the Incitement of Immediate Crime or the Brandenburg Test? |
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Definition
The government may not forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed towards producing :
(1) imminent lawless action
...and is likely to...
(2) incite or produce such action.
- [speaker must intend to produce that result]
- [conduct intended to be produced must be against the law]
- [advocacy must truly be "imminent"]
– "We'll take the fucking street later" ruled not "imminent" enough to meet standard. (Hess v. Indiana, 1973).
– NAACP official threatening to "break the necks" of any blacks who broke the boycott of white merchants in a Mississippi county ruled not likely to produce imminent lawless action nor likely to incite or produce said lawless action. (NAACP v. Claiborne Hardware, 1969).
– The act of knowingly providing "material support" to a foreign terrorist group ruled likely to produce imminent lawless action nor likely to incite or produce said lawless action. (Holder v. Humanitarian Law Project, 2010).
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