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First Amendment
Black-Letter Law
37
Law
Graduate
12/12/2011

Additional Law Flashcards

 


 

Cards

Term
Incitement
Definition
1. imminent 2. serious harm 3. likely to produce illegal consequences, and 4. intent to cause the illegal act
Term
Fighting Words
Definition
1.personal 2. face-to-face 3. injurious 4. provocation to fight (IMP: court has never found this after Chaplinsky)
Term
Hostile Audiences in Public
Definition
1.substantial privacy right invaded 2. in an essentially intolerable manner
Term
Obscenity
Definition
applying community standards, it
1. appeals to the prurient interest, 2. depicts sexual conduct (as defined by statute) in a patently offensive way, and 3. lacks all serious literary, political, or scientific value
Term
Child Pornography
Definition
1. depicts children engaged in sexual conduct OR 2. lewd depictions of genitals
(IMP: doesn't matter if it has value; can't even possess it)
Term
Adult Pornography
Definition
stepchild;
Term
Broadcast Radio
Definition
Limited protection b/c it's uniquely pervasive in terms of 1. piercing privacy and 2. reaching children (IMP probably not true anymore, but this was only a 2nd Circuit decision, so not overruled)
Term
Cable/Internet
Definition
Opt-in is too burdensome
New technology means Pacifica is probably outdated
Term
Defamation of a Public Official/Figure
Definition
1. Defamatory (injurious), 2. false, and 3. actual malice (knowing lie OR reckless disregard for truth)
Term
Defamation of a Private Person but a Matter of Public Concern
Definition
1. Factual misstatement such that any reasonable editor/broadcaster would have been warned of defamatory potential, 2. negligence, and 3. damages limited to actual injury
Term
Commercial Speech
Definition
Central Hudson
1. intermediate scrutiny, PLUS 2. regulation directly advances interest
(no more than necessarya fit (Liquormart)); court seems to be going back to no regulation approach (Sorrell)
Term
Time, Place, and Manner
Definition
1. Content neutral
2. narrowly tailored to further a significant gov't interest
3. leaves open ample alternative channels for communication of that info
Term
Secondary Effects
Definition
1. Purpose is wholly unrelated to speech
2. Regulation is meant only to fix certain secondary effects
Term
Symbolic Conduct
Definition
O'Brien (Content+Speech)
1, Furthers important gov't interest
2. Interest is unrelated to suppression of free speech
3. The incidental restriction of speech is no greater than necessary

What? Flag burning, nude dancing, political contributions, armband, saluting flag, etc.
Term
Overbreadth
Definition
1.Substantially overbroad, 2. implicates non-offending people/behavior
Term
Vagueness
Definition
Connally (reasonable person would not be able to tell the scope of the law)
Term
Prior Restraints: Licenses
Definition
1. Important reason for the regulation, 2. clear standards leaving government almost NO discretion, and 3. procedural safeguards
Term
Prior Restraints: Injunctions
Definition
Presumptively void
1. Only in exceptional cases (probably CURRENT national security), and 2. narrow tailoring
Term
Public Forum
Definition
If YES, then must be 1. content-neutral, and 2. meet strict scrutiny
If NO, then must be 1. viewpoint neutral and 2. rational basis
Term
Regulation in Public Education
Definition
1. Can't substantially interfere w/ school's work, OR
2. impinge on rights of other students
(Guideposts: curricular? school event? school grounds?)
Term
Regulation in Public Employment
Definition
Balance a) speech as citizen or employee?, b) public/private concern? and c) impact on job (does it impermissibly interfere?)
Can regulate if speak as employee, public concern, and impacts job
Term
Penalty
Definition
Never allowed
What is it? Taking away gov't money that can't be gotten from any other source (ex: tax cuts)
Term
Non-Subsidy
Definition
Public Speech: viewpoint discrimination is okay (ex: family planning clinic, lobby group, arts funding, library)

Private Speech: must be viewpoint neutral (ex: school newspaper content, lawyers to clients)
Term
Association
Definition
Disclosure Regulation: strict scrutiny
Membership Discrimination: only allowed if it's 1. intimate organization, or 2. discrimination is integral to expression activity
Term
Right NOT to Associate
Definition
Gov't can't make you fund private speech, only public
Term
Right NOT to Speak
Definition
Balance government interest in regulation with burden on speech

Shopping centers: states can require that it have 1st Amendment protection, but can post sign saying that it doesn't agree
Term
Strict Scrutiny
Definition
Narrowly tailored to meet a compelling government interest
Term
Intermediate Scrutiny
Definition
1. Furthers important government interest
2. restricts no more speech than necessary
Term
Rational Basis
Definition
Reasonable
Term
Gov't Regulation of Political Party Primaries
Definition
Gov't can mandate the time needed before primary that people must register with the party (2 years too long, 1 year long enough)
Term
Parties' Rights to Associate with Its Members
Definition
Blanket primaries to determine a party designee are bad b/c they require parties to associate with non-members, thereby changing the results of the primary
Term
Expenditure Limits
Definition
Buckley: struck (under strict scrutiny) b/c it's a direct limit on speech AND less worry about corruption
McCain-Feingold: expenditure ban on ads near election
Matching Finance Cases: these are expenditures ban (AND penalties)
**Expenditures bans negatively impact 3rd party groups who want to show their support separate from the candidate
Term
Contribution Limits
Definition
Buckley: it's okay b/c of quid pro quo corruption (intermediate scrutiny)
Randall: no contribution OR expenditure limits (plurality only)
Citizens United: still okay b/c of the concern of quid pro quo corruption
Term
Corporate Campaign Finance
Definition
Bellotti: Corporations can speak about electoral issues
Austin: Corporations can use money from separate funds for political activity, but NOT for CLEAR ADVOCACY of candidate (OVERRULED by Citizens United)

Now: court generally doesn't allow regulation of corporate speech in campaigns
Term
Hard Money v. Soft Money
Definition
Hard: Money directly to candidate (limited)
Soft: Money given in support of party, not specific candidate (federal candidates can't use this b/c of Citizens United; non-profits, PAC's, etc. can use BOTH in unlimited amounts)
Term
Content-Based
Definition
Bans a whole topic (ex: no political speech at all)
Term
Viewpoint-Based
Definition
Bans a point of view (ex: no pro-choice speech)
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