Term
| Commercial speech definition |
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Definition
| speech that merely proposes a commercial transaction OR is solely in the economic interests of its audience |
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Term
| Commercial speech is protected, cannot be completely banned unless |
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Definition
- false or misleading
- proposes illegal transaction
- No ban on prior restraint - businesses affected must challenge
- no 3d party standing under substantial overbreadth, challenging business must challenge as applied (impossible to chill advertisers) |
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Term
| Commercial speech is protect b/c |
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Definition
| society has strong interest in free flow of communication |
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Term
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Definition
| Gov't may not ban specific speech entirely b/c it is concerned that citizens will believe or act on it --> fear of information's effect |
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Term
| Bolger v. Youngs Drug Product's definition of commercial speech |
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Definition
an advertisement of some form
refers to a specific product
speaker has an economic motivation for the speech |
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Term
| Can regulate commercial speech if... |
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Definition
compelling interest
- can't completely suppress dissemination of truthful information |
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Term
| Cannot ban lawyers solicitation... |
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Definition
- Cannot ban price advertising of routine legal services
- Can't ban ads soliciting clients for specific types of cases or targeted to specific recipients
- No ban on non-misleading advertising (inherently misleading regulations must be narrowly drawn)
- Can ban ambulance chasers in certain situations (ex: likely to cause harmful consequences for lawyer's pecuniary gain)
- |
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Term
| Can ban lawyers solicitation... |
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Definition
- Can ban in person solicitation for contingent-fee representation of personal injury accident victim
- Some incidents of ambulance chasing (face to face basis: needs to cause harm)
- Florida Bar v. West: upheld bar prohibiting personal injury lawyers from sending targeted direct-mail solicitations to victims/relatives for certain amount of time after accident |
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Term
| In Florida v. West, ban on targeted direct-mail solicitations to victims and relatives for 30 days was ok b/c... |
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Definition
-substantial interest in protecting privacy/tranquility of injured/victims
- state demonstrated law directly advanced the interests (produced reports on harm caused by mail)
- narrowly tailored - limited period of time (still other ways to advertise) |
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Term
| Summary of lawyer solicitation |
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Definition
- state can ban in person solicitation of clients for profit
- may not ban in person solicitation when profit is not derived from client (fraud/undue influence interest in not present)
- cannot ban truthful non-deceptive ads
- may not ban solicitation by mail |
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Term
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Definition
Determines if the expression is protected by the 1st amendment,
Prongs:
1. not misleading or unlawful
2. gov't interest substantial? (heightened standard)
3. does regulation directly advance the gov't interest asserted?
4. is it more extensive than necessary? |
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Term
| Prong 4 (Hudson test more extensive) |
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Definition
must be a means narrowly tailored to achieve the desired objective
- NOT rational basis
- proportional and reasonable
- NOT SS |
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Term
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Definition
NO LONGER USED
gov't has broader latitude to regulate speech that promotes socially harmful activities (gambling, alc consumption) than they have to regulate other speech
- "greater includes the lesser": least intrusive means |
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Term
| Cammpaign finance: level of scrutiny and legitimate state interest? |
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Definition
c.f. = speech, subject to SS
- ONLY legit state interest = preventing corruption and the appearance of corruption
- reducing total amount of $ spent in campaign & leveling the playing field are NOT ok |
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Term
| expenditures v. contributions |
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Definition
| Expenditures are speech, contributions involve the right of free association |
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Term
| Focus in campaign finance issues... |
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Definition
| on the speech not the speaker - is the speech protected? not the speaker. |
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Term
| Concept behind campaign finance... |
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Definition
| gov't may not restrict the speech of some elements of our society in order to enhance the relative voice of others |
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Term
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Definition
- cannot restrict use of political money, either for expenditures or for contributions
- Independent expenditures cannot be restricted
- personally financed campaigns cannot be restricted
- Overall quantity restrictions cannot be restricted
- Contributions limits can be ok if not set too low to preclude ability to campaign
- Provision requiring disclosure of campaign contribution are constitutional () |
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Term
| Voluntary public financing under Buckley |
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Definition
| Ok as long as not mandatory and does not incorporate a penalty to privately funded campaigns |
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Term
| Contribution v. expenditure (scrutiny level) |
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Definition
- expenditure = SS
- contribution - not as high, will be upheld if closely drawn to satisfy the corruption interest |
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Term
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Definition
| treated like contributions |
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Term
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Definition
- contributions to political parties after max amount of contribution limit was hit for candidate
- money was spent by the party in coordination with a candidate
- Banned later |
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Term
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Definition
differential contributions limits when one candidate spent own money
- struck down: discourages wealthy candidates from spending own $ b/c gives opponent advantage |
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Term
| Citizens United - holding as to corporations |
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Definition
| Corporate political speech is fully protected (1st amendment is couched in terms of speech, not speaker) |
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Term
| Forbidden rationales (campaign financing) |
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Definition
- level the field
- anti-distortion: idea that the corporations would flood the market with speech
- shareholder protection: shareholders don't get a vote, not forced to give money to corporation
- anti-corruption - access and favor are not the same as corruption |
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Term
| Content based restrictions on speech are... |
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Definition
| presumptively unconstitutional and subject to SS |
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Term
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Definition
Either subject matter based OR viewpoint based
- idea behind is gov't is favoring or disfavoring certain views |
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Term
| Symbolic speech definition |
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Definition
| Intent to convey a particularized message and a likelihood that observers would understand that message |
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Term
| 3 types of actions whose regulations may involve the 1st amendment |
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Definition
- pure speech
- symbolic speech, or speech with expressive content
- pure conduct with expressive motive |
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Term
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Definition
- aimed a speech (talking, not symbolic) - not O'Brien
- aimed at expressive conduct b/c it is expressive - not O'Brien
- Aimed at conduct for non-expressive reasons - unrelated to the message it sends but incidential effects on speech - O'BRIEN TEST |
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Term
| O'Brien applies ONLY where... |
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Definition
| ONLY applies where the statute regulates conduct and that incidentally regulates speech |
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Term
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Definition
A regulation is constitutional if
- it is within the power of the gov't's constitutional authority (doesn't mean statute is constitutional - means gov't is pursuing some end that it clearly ha some power)
- furthers an important or substantial gov't interest (slightly heightened level)
- Interest is unrelated to suppression of free expression
- Incidental restriction on free speech is no greater than is essential to furtherance of that interest (does not have to be the least restrictive means) |
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Term
| incidental restriction example bookstore |
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Definition
injunction to halt protected activity (selling books) = incidental
- forbidding operation of any bookstore would be aimed at speech and not incidental |
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Term
| no greater than necessary |
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Definition
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Term
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Definition
Courts struggle to say burning flag is protected
- NO power under 1st amendment to hold that one symbol may only have one meaning in a public holding |
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Term
| Nude dancing in 1st amendment context |
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Definition
restricts the underlying message of eroticism
- shows problem of overinclusive |
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Term
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Definition
traditional public forum: dedicated to public use "since time immemorial" (streets, parks, etc.)
Designated public forum - public property that is not in and of itself traditional public forum but has been opened for expressive use either by word or conduct of gov't
Limited public forum - opened up for certain expressive activity, gov't property that is used for specific uses - speech is permitted in the forum but can be restricted on basis of subject matter and speaker
nonpublic forum - not a forum at all, public property not opened to expressive use and in which such activity would be inappropriate |
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Term
| public forum v. public expression |
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Definition
| public expression = historical means of reaching the public, doesn't have to do with property interest |
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Term
| Hague v. CIO - establishment of public forum |
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Definition
| certain public property since time immemorial has been held in trust for the public. Cannot deny public access to public property |
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Term
| Regulation of use of public property |
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Definition
NO standardless discretion
- permits must have spelled out criteria and furthers legit ends
- expression can be regulated only by neutral standards |
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Term
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Definition
- state interest won't work if it could be achieved through other means (less restrictive means)
- need neutral criteria
- cannot ban expression in one place on the grounds that they have the right to elsewhere to make this expression
- cannot ban the home for expressive content
- must be tailored to state interest |
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Term
| Time, Place, Manner restrictions test - Heffron (looks like O'Brien but it's different) |
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Definition
- restriction must not be justified or based on content (doesn't become content based b/c it falls more heavily on some people - look at restriction, not motive behind it)
- must serve significant gov't interest
- must leave open ample alternative channels of communication (must be same type of communication, doesn't have to be least restrictive means, must not ban substantially more speech than necessary) |
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Term
| rule of thumb (O'Brien v. Heffron) |
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Definition
if the restriction is aimed at speech as speech then it's a time, place manner, restriction or is attempting to be
If aimed at conduct that may have expressive motive then apply O'Brien |
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Term
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Definition
fixed: cannot go closer to X than this door, building, or driveway
- ok so long as it is governing the public property
- cannot have a buffer zone that is on private property - not related to state interest
- cannot use injunction for captive audience, avert eyes
Floating bubble - only approved in one case |
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Term
| Substantial overbreadth definition |
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Definition
| regulation that sweeps in a substantial amont of protected speech is void on its face even when applied to a D who could be found guilty or regulated under a properly drawn statute |
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Term
| Not sub overbroad where... |
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Definition
statute legitimately regulates a lot of speech and only illegitimately regulates a little speech
(statute who's legitimate reach dwarfs its arguably impermissible applications is ok - impermissible can be taken by a case by case basis) |
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Term
| is sub overbroad where... |
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Definition
| amount of protected speech that is restricted is substantial compared to the amount of unprotected speech that is unrestricted |
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Term
| consequence of overbroad statute |
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Definition
VOID
- gives guilty standing to argue rights of non-guilty (prevent chilling effect on protected speech) |
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Term
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Definition
statute can be overbroad but not vague and vice versa --> vague is more simple inquiry
- statute must give sufficient warning to persons of ordinary standing (if you have guess it's vague) |
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Term
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Definition
- DP
- Gives rise to select enforcement
- Chilling effect: deters speech b/c they may not know if it's permitted |
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Term
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Definition
| PRESUMPTIVELY UNCONSTITUTIONAL - heavy presumption: court has almost never approved prior restraint |
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Term
| System of prior restraint is one of two things |
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Definition
- system of licensing or censorship in which content must be reviewed in advance before it can be published or uttered (censorship or system of standardless discretion)
- injunction - specific injunctions issued by courts in advance of publication that attempts to halt the publication of material |
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Term
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Definition
- applicable to situation in which there is subsequent punishment (fear of punishment does not mean prior restraint)
- not a neutral system of licensing for parades and meetings |
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Term
| Reasons for strict rule on prior restraints |
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Definition
1. historical - purpose of 1st is to bar system of prior restraint
2. practical - chilling effect and self-censorship and enhanced secrecy (public never has ability to discuss public affairs: no test for validity)
3. Legal: Collateral bar rule
- can't disobey and then use unconsitutionality as a defense |
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Term
| 4 contexts in which these kinds of injunctions are used |
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Definition
- general licensing requirements for speech as speech (no standardless discretion for granting licenses, creates official with censorial role)
2. Injunctions issued for purposes of national security (must prevent prospective/forthcoming harm --> never really used)
3. Injunctions issued for purposes of control of pretrial publicity in criminal proceedings (not ruled out but must be narrowly tailored)
4. Injunctions for purpose of copyright infringement (NEVER used b/c it's about money not expression) |
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Term
| To obtain prior restraint |
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Definition
Gov't must have high public interest (ex: sailing date will put troops in trouble)
- end of the world...
- NOT high enough interests: protection of 6th amendment impartial jury and NEVER nuisance |
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Term
| Procedural requirements of prior restraint |
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Definition
- adversarial proceedings (ex parte or pro se)
- provide for prompt judicial review
- censor must bear burden(must go into court saying that can demonstrate this material is obscene or will cause a certain measure of damages) |
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Term
| Exception to burden of proof in prior restraint |
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Definition
| when an injunction is not aimed at direct censorship of particular expressive material, burden prong does not apply (other two do) |
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Term
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Definition
earliest test for incitement - interference with administration of justice
rationale - courts may punish actual episodes during court, they should be able to punish speech that tends towards it - could incite others to interfere
- not a protective test - can say anything you want as long as you can prove it doesn't tend towards any harm |
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Term
| clear and present danger background |
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Definition
- substantial criticism within the country of American involvement in WWI, opposition of the draft, success of Russian revolution lead to fear of leftist uprising
- Espionage act and Sedition Act (restrictive speech acts) that prevented anyone from saying anything negative about gov't |
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Term
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Definition
- clear and present danger test
- individuals convicted for circulating leaflet arguing draft violated amendment (involuntary servitude)
- "Do not submit to intimidation" "Assert your rights" - did not expressly urge violation of any law
- court held question is whether words used are used in such circumstances and are of such a nature as to create clear and present danger that they will bring about substantive evils that Congress has right to prevent |
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Term
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Definition
- individuals published German newspaper convicted b/c articles criticized the war
- no evidence that articles had any adverse effect on war but paper was circulated where "a little breath would be enough to kindle a flame" and the people who wrote it knew that |
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Term
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Definition
- Conviction of socialist party leader for speech, advocacy of socialism, with mild criticism of draft "I oppose the war"
- speech was not protected if one purpose of the speech, whether incidential or not does not matter, was to oppose this war and if in all circumstances that would be the probable effect" |
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Term
| clear and present danger test elements |
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Definition
- likelihood of
- imminent
- significant harm
(more than a hypothetical danger, matter of degree and circumstances - analogy to shouting fire in a crowded theater) |
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Term
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Definition
- "fight intervention in Russia (not war effort)"
- convicted of encouraging resistance and conspiracy to urge curtailment of production of war materials
- Holmes dissent: US may punish speech that produces or is intended to produce a clear and imminent danger that will bring about forthwith certain substantive evils - power is greater in time of war b/c war opens dangers that do not exist at other times" |
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Term
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Definition
- convicted for publishing left wing manifesto, thereby advocating overthrowing and overturning organized gov't by force, violence, and unlawful means
- no evidence that speech had any effects, but state may punish utterances endangering the foundations of gov't and threatening its overthrow by unlawful means
- freedom of speech and press does not deprive a state of right of self-preservation
- HERE was advocating an idea, not about the war anymore
- Holmes argued no present danger here |
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Term
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Definition
- belonged to Communist labor party that advocated ideas - association
- state may punish those who abuse freedom of speech by uterances inimical to the public welfare, tending to show incite to crime, etc.
- Brandeis concurred and argued for clear and present danger test - fear is not enough to suppress, must be reasonable ground to believe that the evil is a serious one |
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Term
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Definition
- Learned Hand "whether gravity of the evil discounted by its improbability, justifies such invasion of free speech as is necessary to avoid danger"
- Red scare era
- Convicted for teaching books by Stalin, Marx, and Engels, and Lenin - no proof they did anything other than teach but were convicted of conspiring to organize commy party in US
- harm of an overthrow of gov't = so enormous gov't need not show danger is imminent or probably to punish speech
- gov't must wait until plan are about to be executed tho |
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Term
| Learned Hand Approach elements |
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Definition
- gravity of harm
- probability
but if the harm is great enough (ex: overthrow) then speech advocating it can be punished w/o any showing of likelihood or imminence (no more clear or present if harm is great enough)
- short of overthrow no such great harm |
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Term
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Definition
MORE protective approach, NARROW test
- KKK convicted under criminal syndicalism law, film of events at Klan rally (included racists and anti-Semitic speech, firearms)
- referring to dennis court said, gov't cannot forbid unless advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action |
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Term
| Brandenburg test elements |
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Definition
Gov't cannot forbid or proscribe advocacy of use of force or of law violation EXCEPT when advocacy is
- direct to inciting or producing (directed = person has the intent not just generally for something to happen & inciting = urging to do it, not just discussion)
- Imminent lawless action (imminent = close to happening, not some point in the future & lawless action has to be serious/dangerous)
- likely to incite or produce such action (gov't has no other option but to punish speech)
- test is sort of like SS b/c strong presumption in favor of protection |
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Term
| Brandenburg test elements (more simplified) |
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Definition
- directed to (intent-subjective)
- likely to cause
- imminent
- violent lawless action
* central = words of speaker (intent) |
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Term
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Definition
- discussion
- advocacy = only speech
- membership association
- incitement
- conspiracy - speech + crime following |
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Term
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Definition
- UNPROTECTED by 1st amendment
- profane, indecent, or abusive remarks directed at a hearer
- which by their very utterance inflict injury or tend to incite an immediate breach of the peace (Chaplinksy) |
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Term
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Definition
- speech = profane, indecent, or abusive remarks
- direct to a person (can't be a passer by on a street listening to someone else's conversation - Cohen)
- Creates a likelihood of a violent response/physical retaliation (content of words determine - true threats are not protected)
- Such danger of violence is imminent (must be face to face with person, no letters) |
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Term
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Definition
- Jehovah's witness distributing literature, gave speech denouncing other religions as "racket"
- directed to one person "You are a God damned racketeer" and "a damned Fascist and the whole gov't, etc."
- SCOTUS upheld conviction for this speech - right of free speech is not absolute
- inflict injury by utterance or tend to incite an immediate breach of the peace
- AND personally abusive epithets which, when directed to a person of the hearer, are as a matter of common knowledge, inherently likely to provoke a violent reaction |
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Term
| Limitations on fighting words by the court |
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Definition
- narrow scope of fighting words by ruling that it applies only to speech directed at another person that is likely to produce a violent response
- law prohibiting fighting words cannot be overbroad or vague, MUST be clear
- laws against expression of hate based on race or other specific kinds of fighting words are content based restrictions - must be narrow and define words |
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Term
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Definition
| concept that can't be silenced simply b.c others don't like what you are saying and maybe have a negative reaction to it. Person's speech is still protected until there is a clear and present danger you are inciting others to violence |
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Term
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Definition
- "fuck the draft" jacket worn in public, not directed at anyone - violation of the peace
- Overturned b/c not directed at anyone in particular, no reasonable person would have regarded words as a direct personal insult
- gov't may not prohibit speech simply bc others might find it offensive |
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Term
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Definition
| - never overturned but court never again upheld a fighting words conviction |
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Term
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Definition
- flag burning = form of speech protected by first amendment
- gov't argued flag destruction was likely to provoke a violent response and a form of fighting words
- wrong again, not directed at a particular person, the expression of dissatisfaction with the gov't is not a direct personal insult or an invitation to exchange fisticuffs |
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Term
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Definition
| speaker may be punished by the action of his audience - hostile audience decisions have addressed the problem through balancing rather than categorization |
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Term
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Definition
hostile audience case
- convicted for speech he gave that criticized gov't about civil rights, crowd got angry, PO asked him to leave, he refused - upheld conviction for disturbing the peace
- used cantwell, gov't may prevent or punish speech that poses a clear and present danger
dissent - argues cops should try to control crowd and only when impossible, threat is imminent, can they interfere with lawful public speaker |
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Term
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Definition
- ordinance that prohibited holding of a religious meeting on public street w/o a permit was unconstitutional
- standardless discretion |
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Term
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Definition
- overturned conviction for civil rights protestors who had staged march to SC capitol - no violence or threats
- arrested after speakers ignored police threat to disperse
- court distinguished from Fenier b/c NO threat and emphasized police protection at the scene was at all times sufficient to meet any foreseeable possibility of disorder |
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Term
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Definition
- convicted for giving a speech objecting to racial segregation of lunch counters and urging sit in
- audience found speech inflammatory
- overturned b/c no threat of violence from audience or protestors, police were present and could have controlled the crowd if need be |
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Term
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Definition
- CURRENT RULE on hostile crowds
- overturned convictions for disturbing the peace for a group of civil rights demonstrators, after angry group threatened marchers
- Overturned bc law did not limit convictions to instances where there was a threat of imminent violence, the police have made all reasonable efforts to protect the demonstrators and the police have requested that demonstrations be stopped |
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Term
| police intervention with hostile audience |
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Definition
- Police must
- make all reasonable efforts to protect demonstrators and control audience
- only after crowd control is impossible and the threat is imminent can they stop the speaker |
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Term
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Definition
- invalidated fighting words on overbreadth ground
- "White son of a bitch, I'll kill you" and "you son of a bitch i'll choke you to death" to cop
- statute made it a crime for "any person who shall, without provocation, use to or of another and in his presence opprobrious words or abusive language ,tending to cause breach of the peace"
- no limiting instruction to prevent vulgar or offensive language that is protected, be barred |
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Term
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Definition
during protest stated "if they ever make me carry a rifle, the first man I want to get in my sights is L.B.J." - convicted of threatening president
- mere political hyperbole must be distinguished from true threats
- taken in context, conditional and reactive nature - not a true threat |
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Term
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Definition
subset of fighting words that disparage and attack others on the basis of race, religion gender (or other characteristics depending on viewpoints)
- not a constitutional category of proscribable speech like incitement |
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Term
| hate speech is presumptively protected EXCEPT when |
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Definition
- in a protected environment like the workplace
- commercial advertisements where it would suggest that service advertised is not offered to some groups
- when used to threaten individuals (it becomes fighting words or incitement to violence) |
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Term
| R.A.V. v. City of St. Paul |
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Definition
- teens burned cross in black family's yard
- ordinance prohibited placing on public or private property sybols, objects, characterizations or graffiti including but not limited to a burning cross or swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender
- holding = statute applies only to fighting words that insult on the basis of race, religion, or gender is invalid. Subject matter based (content based restrictions are unconstitutional) may not be enforced even when restricted to fighting words (not protected ordinarily)
- Also overbroad as it applies to fighting words and protected speech |
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Term
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Definition
- fighting words law will only be upheld if it does not draw content based distinctions among types of speech (ex: no fighting words based on race, but not political affiliation)
- except where distinction advances reason why category is protected (ex: threats against the president) & prevent secondary effects |
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Term
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Definition
- can prohibit burning a cross with the intent to intimidate b/c this isn't targeting a view point but purpose is to protect individuals safety/personhood BUT must prove intent of true threat
- it becomes a true threat (not protected) if it's a statement meant to communicate an intent to place an individual or group in fear of bodily harm |
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Term
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Definition
statute banning cross-burning carried out with the intent to intimidate and holds that cross burning is prima facie evidence of intent to intimidate - unconstitutional
- expressive and intimidating component can't be forbidden
- statute takes a viewpoint based expression b/c expressive component is the same as intimidating component
- no proof that the speech was a true threat, isolated farm, no one would have seen has a true threat |
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Term
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Definition
| statements when the speaker means to communicate a serious intent to commit an act of unlawful violence to a particular individual or group of individuals. need not carry out the threat. --> NOT protected by 1st amendment |
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Term
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Definition
- black kid instigated fight with white kid, shouted "white people"
- criminal statute which increased sentence if show victim was chosen by race
- fine b/c statute was aimed at conduct rather than expression, consideration of motive is an established part of criminal law - can punish racially motivated conduct
- state may enhance a criminal's sentence for crimes against persons when D selected victim of crime b/c of race - criminal intent/motive is a party of criminal law and statute punishing conduct not ideas or speech
CANNOT punish for beliefs |
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Term
| Defamation and seditious libel |
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Definition
| - 1st amendment restricts ability of gov't to grant a remedy when person is a public official/figure or when it is a matter of public concern by requiring fault |
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Term
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Definition
false statement of fact communicated to 3rd party that injures a person
- publication: communicated to a 3rd person
- false statement of fact: not opinion, depends on connotation
- defamatory in nature: incompetent, immoral, diseased, harms or causes injury AND is false
- identification of and concerning a person: don't have to use persons name but if make it clear who talking about then element is satisfied (can't liable gov't as a whole)
- damages (actual and punitive) |
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Term
| who qualifies as public official |
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Definition
- anyone running for an elected office
- anyone who works for the govt who public would have an independent interest in the qualifications and performance of the person who holds office (school teacher/cop NOT custodian, filing clerks) |
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Term
| What/how can public officials collect? |
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Definition
can not collect damages for false and defamatory criticisms of his official conduct unless the defamatory statement is made with actual malice
malice = knowledge of falsity OR reckless disregard as to the truth (subjective doubt as to truth of what said & awareness of probable falsity)
- can get actual and punitive damages
POLICY = public debate is more important than one person's reputation |
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Term
| public figure defamation - who qualifies, how can collect |
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Definition
- voluntarily thrust themselves into a public controversy
- general fame and notoriety in the community b/c hold a position of power and influence
- pervasive involvement
- can get actual and punitive damges if show malice
- malice w/ clear and convincing evidence that
- knowledge of falsity OR
- awareness of probable falsity
two kinds - all purpose public figure & limited purpose (put themselves in that arena but not for all things) |
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Term
Private individual - defamation
negligently stated and is a matter of public concern |
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Definition
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Term
Private individual - defamation
negligently stated and is a matter of private concern |
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Definition
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Term
private individual - defamation
malice and a matter of private concern |
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Definition
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Term
private individual - defamation
malice and is a matter of public concern |
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Definition
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Term
| policy behind private individual collecting money for defamation |
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Definition
| person doesn't have ready access to media and so needs $ compensation. |
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Term
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Definition
- group libel is outside the 1st amendment, gov't can punish defamation directed at a group
- law against exposing "the citizens of any race, color, creed or religion to contempt, derision, or obloquy."
- man charged for distributing leaflets urging mayor to protect from encroachment, etc. by the negro race
- today would be probably held as subs. overbreadth and vague but still good law |
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Term
| New York Times v. Sullivan |
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Definition
- sued for libel based on information contained in an advertisement, some of which was untrue, unprotected speech
- state law provided for strict liability - no showing that Times knew or should have known there were untruths in the ad
- set forth standards for speakers - if P is a public official, P can recover for defamation only by proving by clear and convincing evidence the falsity of the statements and actual malice (knew they were lying)
- public figure can only recover for defamation or IIED |
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Term
| public official cannot recover for IIED unless |
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Definition
shows same standard as defamation
- publication
- defamatory false statement of fact
- of and concerning the D
- Damages: Neg or Malic depends on if private or public individual |
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Term
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Definition
- when information is true and lawfully obtained from public records can not be liable for it
ex: rape victims names |
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Definition
- nudist magazine distributor
- extends NY times standard to private parties defamed |
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Term
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Definition
- holds private persons should not have to meet such high requirement as a public figure or official - b/c public does not voluntarily expose themselves and does not have ready acess to media
- abandons Rosenbloom |
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Term
| Hustler Magazine v. Falwell |
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Definition
- IIED, bad article, obviously a joke in print
IIED brought by public figure, no liability unless
- false statement of fact AND
- actual malice
- first amendment protects political parody |
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Term
| Erotic expression generally |
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Definition
- majority rule = erotic expression is fully protected by the 1st amendment. sexually oriented material to be restricted must fall into an exception of when it can be restricted.
competing rule: rational that erotic speech less value speech |
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Term
| Exceptions to sexual or erotic expression's protective presumption |
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Definition
- obscenity
- indecency or vulgarity
- pornography
- child pornography
- erotic expression in special contexts: school, workplace, where it becomes problematic in creating a hostile/discriminatory environment where captive audiences cannot leave |
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Term
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Definition
MILLER - work taken as a whole
- according to contemporary local community standards
- appeals to prurient intersts
- depicts sexual conduct in a patently offensive manner (ex: ultimate sex acts, masturbation - must be hardcore)
- taken as a whole, the work lacks serious value (non-community standard)
--> whatever it is MUST be erotic, gets someone excited |
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Term
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Definition
sexual or excretory references that don't evoke erotic responses (ex: fuck the draft) - no such thing as an obscene gesture
- protected except in limited circumstances
- can contain sexual references but non-erotic |
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Term
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Definition
- convicted of mailing obscene books
- creates obscenity as an unprotected category of speech - b/c it's worthless
- Made it clear that sexual expression could not be banned b/c it is protected |
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Term
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Definition
- tried to ban sexually immoral films
- can't ban material b/c "immoral" if not obscene |
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Term
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Definition
- found porn mags while searching house, convicted of private possession of obscene materials
- mere private possesion of obscene material cannot be criminalized
1st amendment cannot
- invade home and dictate reading, viewing
- try to control our thoughts |
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Term
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Definition
- conducting mass mailing campaign to advertise the sale of "adult" material - knowingly distributing obscene material
- define obscenity
- community standards is the local level (statewide) not the national level
- average person only what adults think not children
- sexual conduct must be depicted or described in a patently offensive manner, must be hardcore (shows genitals, masturbation, excretory)
- sexual conduct must be shown, not implied - nudity is not obscene
- specifically proscribed by statute (carefully drawn)
- taken as a whole lacks serious value, merit literary political or scientific (national standard) |
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Term
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Definition
- state officials sought to enjoin the showing of allegedly obscene films at theater, theater warned potential viewers of sexual nature and required 21 and up
- Public exhibition not protected by Stanley even if consenting
= state can still regulate or ban b/c of interest:
-commerce of sale and view of obscenity affects others
- public safety
- quality of life and environment |
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Term
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Definition
- jury decided carnal knowledge was patently offensive
- nudity does not equal obscenity
- simulation of sex cant be outlawed
- local obscenity laws could not be extended to mainstream materials, regardless of local views |
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Term
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Definition
not a subset of obscenity, not protected by the 1st amendment
state interest to protect actual children from during production, even if not obscene |
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Term
| child pornography is beyond the first amendment when... |
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Definition
| - material showing actual children in sexual poses or engaged in sexual activities |
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Term
| Virtual child pornography |
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Definition
- protected if not obscene
- material using adult actors who only look underage is ok
- material generated by drawing or ocmputer-graphic image is ok |
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Term
| compelling state interest in child porn v. interests that are not accepted |
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Definition
- protecting actual children from abuses and continued abuse through distribution is OK (abuse and permanent records)
- NOT ok = prevent use of "virtual child porn" to "seduce" and instruct children
- close the distribution channel
- make these cases easier to prosecute
- prevent people from thinking about/doing underage sex
- it's icky |
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Term
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Definition
- owned porno book store, sold 2 videos devoted almost entirely to young boys masturbating
- convicted by NY statute was upheld b/c child pron is a category outside the protection of the 1st amendment |
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Term
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Definition
| - Stanley privacy exception for obscene material was NOT extended to child pornography |
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Term
| Ashcroft v. Free Speech Coalition |
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Definition
- statute outlawed any depiction of CP including CGI material
- did not proscribe material that is obscene, used the wrong justifications, and is too overbroad
- outlawed speech encouraging unlawful acts but wrong rationale |
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Term
| Non-obscene sexually explicit speech restrictions |
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Definition
- erotic or sexual speech is presumptively protected
- treated differently:
- Non-obscene erotic material may be restricted as to sale/display to minors
- restricted when it depicts minors
- restricted in specific contexts: workplace, education
--> can be regulated if aimed at secondary effects |
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Term
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Definition
- approach that sexually epxlicit speech is lesser value and such speech could be regulated more strictly if the regulation is viewpoint neutral
- never commanded 5 votes |
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Term
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Definition
not the mental effect, but the physical consequences of the presence of the establishments that purvey it
(ex: congestion, crime, gathering of prostitutes NOT divorce, discrimination against women - can't block mental intermediation) |
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Term
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Definition
- State statute banned porn that depicted women in subordinate situations and it was unconstitutional as viewpoint based
- discriminated against sexually explicit speech subordinating women, regardless of merit, but allowed sexually explicit speech that did not subordinate women
- facially invalid
- dicta - can ban porn that results in injury during production |
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Term
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Definition
| no legal definition - not a constitutional category of prohibitable speech |
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Term
| sexually explicit speech and entertainment can be regulated in limited circumstances and regulationg must be |
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Definition
| aimed at secondary effects of speech |
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Term
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Definition
- ban on showing of any nudity in films displayed in outdoor theaters - too broad and not justified by proffered state interests (either legit or not present)
- protecting passerby from offense is not legit to restrict nudity, not captive audience (avert eyes)
erogenous zoning is permitted to regulate secondary effects but cannot be banned entirely
- protecting minors does not justify complete ban on expression ok for adults
- no evidence of safety |
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Term
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Definition
- adult establishment may be zoned but can't be completely banned
- sexually explicit adult theater could not be located within 1000 ft of other regulated uses
- defined sexual activities
- this was ok b/c it was not a total ban, idea is that it disperses this content geographically so that it is not focused
- time, place, and manner is fine
- state has compelling evidence to show that this type ordinacce will have desired effect |
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Term
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Definition
- adult enterprises may be concentrated for the same reason
- valid even though eliminated 95% of locality
- did not amount to a total ban |
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Term
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Definition
- dispersal or concentration laws do not require empirical support of the kind associated with SS
- City appealed to common sense to show reduction of secondary effects |
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Term
| indecency and broadcasting |
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Definition
- history of limited protection for broadcasting TV and radio b/c
- uniquely pervasive
- uniquely accessible to children |
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Term
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Definition
Gov can ban indecency on the radio during certain hours in order to protect children and unwilling listeners in the home from what is analogous to a nuisance (would otherwise be powerless to stop it)
- Carlin routine case
Compelling interests -
- shielding children from patently offensive material
- ensuring that unwanted speech does not enter the home |
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Term
| Limits to regulation in pacifica |
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Definition
- no jail
- not about license revocation
- not a total ban
- not even a fine
- Cohen was a criminal statute
- not about fleeting expletive |
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Term
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Definition
Post office could enforce regulations allowing mail recipients to opt out of mailing list of "pandering" advertiser
- has to do with speech's availability in the home |
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Term
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Definition
NY could not ban regulated utility from mailing inserts in electronic bills that advocated certain energy policies, even though they might offend in the home
- state order v. home owner (Rowan) |
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Term
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Definition
US could not ban all advertising mailers for contraceptives
- 1st amendment does not permit protected speech as intrusive unless captive auidence cannot avoid exposure |
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Term
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Definition
dial-a-porn requires affirmative steps to hear an indecent message (not obscene message) so the FCC cannot ban the system
- restrictions on broadcasting must be narrowly tailored by requiring the least restrictive means possible |
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Term
| DneDenver Area Foundation v. FCC |
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Definition
- in order to restrict indecent materials, FCC
- CAN allow cable operators to exclude patently offensive material on commerical stations
- cannot require cable to segregate indecent programming onto 1 channel
- cannot authroize cable to exclude indecent speech from public access channels |
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Term
| Playboy Entertainment Group |
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Definition
= FCC can't require cable to scramble or confine to late hours indecent progaming
- SS, not narrowly tailored b/c other methods are available such as household to household assessment
- this was a content based restriction - SS, lease restrictive means |
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Term
| Internet - indecent speech |
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Definition
internet as a medium is protected, it doesn't receive less protection like TV/radio broadcasts b/c although it's pervasive and accessible to children, internet is not scarce (as to licensing) anyone can make a webpage
- getting on the internet is an affirmative act |
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Term
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Definition
prohibited indecent transmission to minors, permitting facility to be used for indecent transmission, criminally prohibits any display of patently offensive material online ...
- did not define obscenity in accordance with miller
- lacked definition of what sexual conduct is forbidden (vague)
- prong for as a whole lacks literary, scientific, and political merit not there
- prong for must appeal to prurient interests not there
OVERBROAD, facially void - total ban |
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Term
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Definition
COPA tries to limit distribution of internet pornography
- tried to incorporate miller test
- NOT facially invalid bc it includes a community standards element to the internet
- BUT it is invalid b/c not narrowly tailored, defined indecent as prurient with respect to minors - sweeps in too much speech |
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Term
| Virginia Pharmacy Board v. Virginia Citizens Consumers Council |
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Definition
| Statute banned advertising the price of prescriptions by pharmacies for fear that it would hurt the legitimacy of the medical industry. Court holds that you can’t ban truthful, non-misleading advertisements. |
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Term
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Definition
| the test for commercial speech statutes (since commercial speech is not subject to strict scrutiny, but it’s getting closer to strict scrutiny) |
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Term
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Definition
| cannot ban price information for routine legal services |
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Term
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Definition
| state bar may ban “in person” solicitation for contingent-fee representation of personal injury clients |
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Term
| Cincinnati v. Discovery Network |
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Definition
| city banned free advertising giveaway news racks from public property while permitting regular newspapers struck down because it was not a close enough fit to the state’s interest in safety |
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Term
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Definition
| if you can ban gambling, you can ban advertising of gambling |
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Term
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Definition
| federal government could not prohibit beer labels from displaying alcohol content. The court used a means and ends test and it resembled strict scrutiny |
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Term
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Definition
| the only legitimate state interests in limiting campaign finance money is to prevent corruption and the appearance of corruption |
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Term
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Definition
| Contributions limits are given greater deference than expenditure limits; contribution limits do not receive strict scrutiny |
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Term
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Definition
| state’s contribution limits were so low as to not even satisfy the Buckley anti-corruption rationale so low that challengers can’t even mount effective campaigns against incumbents |
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Term
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Definition
| can’t restrict a candidate from promising to lower his own salary, that’s a content based restriction |
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Term
| Colorado Republican Federal Campaign Committee v. FEC |
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Definition
| political parties have the same rights as individual candidates and political committees to make independent expenditures |
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Term
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Definition
| limits on a party’s coordinated expenditures are facially constitutional |
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Term
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Definition
| First Amendment prohibits restrictions on corporate expenditures for political speech to express corporate points of view (corporations have the same rights as political parties free speech). Look at the speech, not the speaker |
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Term
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Definition
| money raised and spent by political parties is not covered by limits on contributions to candidates or committees |
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Term
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Definition
- Forbade acceptance of soft money
- Prohibited electioneering ads that name specific candidates
- Millionaire’s amendment – if one candidate spends X amount of his own money, other candidates’ contribution limits are raised |
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Term
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Definition
| upholds soft money ban, strikes down the millionaire’s amendment |
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Term
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Definition
| corporations have free speech rights (corporate political speech is fully protected) |
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Term
| Content-based restrictions on speech |
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Definition
| presumptively unconstitutional and receive strict scrutiny |
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Term
| Police Department v. Mosley |
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Definition
the government can’t restrict expression because of ideas, subject matter or content. Here, a statute banned picketing within 150 feet of a school unless it was for a labor dispute. The court used the EPC rather than First Amendment case
Subject Matter Based |
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Term
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Definition
| law in NY prevents criminals from profiting at the expense of their crimes (harming their victims) by writing and selling books. This is struck down as a subject matter restriction (content based) |
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Term
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Definition
| Statute proscribed posting political posters within 100 feet of a polling place. The right to vote in an election free of the taint of intimidation of fraud vastly outweighs the first amendment. Even though this is a content-based restriction, it meets “exacting (STRICT) scrutiny” |
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Term
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Definition
| flag burning is mentioned, but is not decided on the merits. The court only looks at the statements the person made before burning the flag and decide that the first amendment protected that speaker’s speech |
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Term
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Definition
| a statute that criminalizes the desecration of the flag is CLEARLY a content-based restriction |
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Term
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Definition
| speech whether an intent to convey a particularized message was present and whether the likelihood was great that the message would be understood by those who viewed it |
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Term
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Definition
| the government’s interest in preserving its national symbol is not greater than the right to participate in expressive conduct |
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Term
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Definition
| case where person stitches a peace sign into an American flag – Use Texas v. Johnson conduct = speech test |
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Term
| Barnes v. Glen Theater Inc |
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Definition
| states CAN regulate/ban nudity because protecting morality is unrelated to the suppression of free expression (something that beats the O’Brien test) |
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Term
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Definition
| court again upholds a ban on nude dancing based on secondary effects. It regulated conduct alone, so it was content-neutral |
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Term
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Definition
| (BAD LAW) – Holmes said government property is private property belonging to the government |
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Term
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Definition
| overrules Mass v. Davis, public property can be a public forum and you can’t deny people the right to use public spaces which they have been using since time immemorial |
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Term
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Definition
| government can’t use ‘standardless discretion’ to restrict access to a public forum |
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Term
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Definition
| statute requires a permit to have a parade. Here, the government had legitimate, neutral interests to restrict ‘time, place and manner’ for traffic and safety reason these are legitimate ends |
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Term
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Definition
| less than strict scrutiny since they are content neutral |
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Term
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Definition
| ordinance forbade distribution of leaflets (handbills) in order to prevent littering. Court applies an ends and means test. Here, the ends are legitimate, but the means are too restrictive |
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Term
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Definition
| court strikes down ordinance forbidding door to door handbill distribution. Court uses means and ends test. Ends here to protect people from crime and annoyance, means too restrictive |
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Term
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Definition
| a ban on sound trucks was upheld since it relied on the neutral criterion (loud and raucous). The statute didn’t explicitly proscribe “loud and raucous sounds” but SCOTUS found it anyways. |
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Term
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Definition
| statute bans posting signs (even on your own property) to reduce clutter. Even though content neutral, it banned too much speech to be constitutional. |
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Term
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Definition
| ordinance required obtaining a permit for door to door proselytizers is invalidated for inhibiting too much speech |
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Term
| Ward v. Rock Against Racism |
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Definition
| so long as the means chosen are not substantially broader than necessary to achieve government interest, the restriction won’t be invalid just because there is a less restrictive alternative available |
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Term
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Definition
| court applies TPM to a protest to help the homeless. Court says that the statute meets TPM test (but they protest by sleeping, which is conduct, so the court should have used the O’Brien test) |
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Term
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Definition
| no exceptions, you cannot picket someone’s house |
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Term
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Definition
| Abortion Clinic entrance case – fixed buffer zone was allowed, but a floating buffer zone is not allowed |
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Term
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Definition
| where conduct and not merely speech is involved, overbreadth must be substantial in relation to the legitimate sweep |
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Term
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Definition
| invalidated an ordinance that prohibited distribution of literature without first getting permission from the City Manager. Facially invalid because it permits standardless discretion |
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Term
| Lakewood v. Plain Dealer Publishing |
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Definition
| mayor had standardless discretion in regards to licensing which needed to be renewed every year. Facially invalid because it required standardless discretion |
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Term
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Definition
| a prior restraint process that takes advantage of long delays for a review process is considered unfair and is not constitutional |
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