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MBE Constitutional Law > Speech > Flashcards

Flashcards in Speech Deck (37)
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1
Q

What does the First Amendment protect?

A

Freedom of expression (speech, press, assembly, & association)

2
Q

Define

symbolic speech

A

Expressive conduct meant to convey a particular message (e.g. wearing black arm bands in protest)

3
Q

When can the government regulate symbolic speech?

A
  1. Regulation furthers important gov. interest;
  2. Interest is unrelated to suppression of the message; and
  3. Impact on speech is no greater than necessary to achieve interest
4
Q

Are restrictions on the following constitutional:

  1. Flag burning
  2. Public nudity
  3. Leafleting
  4. Cross-burning
A
  1. Unconstitutional
  2. Constitutional b/c interest in harmful effects
  3. Constitutional b/c interest in littering
  4. Constitutional if meant to threaten
5
Q

Define

content-based restriction

A

Restriction based on the speech’s subject matter; i.e. disagreement with the message it contains. Can be either content-based on its face or as applied.

⭐️ Subject to strict scrutiny ⭐️

6
Q

What 5 types of speech can be regulated on the basis of content? (i.e. unprotected speech)

A
  1. Obscenity;
  2. Incitement;
  3. Fighting words;
  4. Defamation; and
  5. Commercial speech

⭐️ Can be regulated as long as statute is narrow, does not need to meet strict scrutiny

7
Q

Define

content-neutral restriction

A

Applies neutrally to all content regardless of viewpoint or subject matter.

Ex. time, place, or manner restriction

⭐️ Subject to intermediate scrutiny

8
Q

Define

public forum

A

Places historically open to the public for expression (e.g. parks and sidewalks). Can be either traditional or designated.

9
Q

Distinguish traditional vs. designated public forum

A

Traditional: traditional public areas (e.g. sidewalks, parks, etc.) that cannot be changed into nonpublic forums

Designated: Designated as public forums during certain hours or in general (e.g. municipal meeting rooms). Can be changed into nonpublic forums

10
Q

3 requirements needed for a valid time, place, or manner restriction in a public forum

A

Restriction is:

  1. Content-neutral;
  2. Leaves open ample, alternative channels of communication; and
  3. Narrowly tailored to serve significant government interest (not compelling gov. interest)
11
Q

Is there a right to picket a single residence?

A

No

12
Q

When will a regulation on speech in a designated public forum be upheld?

A

When forum is open for speech and:

  1. Regulates time, place, or manner (i.e. is content-neutral);
  2. Is narrowly tailored to serve significant government interest; and
  3. Leaves open ample, alternative channels of communication

(same as test for traditional public forum)

13
Q

Define

non-public forum

A

Public property that is not open to speech (e.g. schools, jails, airports)

14
Q

When is a restriction on speech in a non-public forum valid?

A
  1. Viewpoint neutral (**does not need to be content neutral); and
  2. Reasonably related to a legitimate government purpose
15
Q

Define

viewpoint neutral restriction

A

One that restricts entire categories of speech, but not viewpoints within a category

Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only anti-Second Amendment speech would not be allowed

16
Q

Define

prior restraint

A

Blocks speech before it is expressed. Subject to strict scrutiny.

⚠️ Highy unfavored and presumptively unconstitutional except in extremely rare instances

More info: Prior Restraint

17
Q

When is a prior restraint on speech allowed?

A

Only allowed in extremely rare circumstances such as:

  • During wartime or national security crisis to protect troops/citizens; or
  • To prevent incitement of violence
18
Q

Define

overbroad

A

Regulation that restricts substantially more speech than is constitutionally allowed (i.e. restricts unprotected and protected speech).

Renders regulation void.

19
Q

Define

vagueness

A

Restriction is void for vagueness if reasonable person does not understand what the law requires or prohibits

20
Q

Can the government restrict inmates’ free speech?

A

Yes, as long as the regulation is rationally related to a legitimate penalogical objective and an alternate way to express legitimate speech is available

⚠️ Note: This includes pretrial detainees, parolees, and those on probation

21
Q

Does the press have more First Amendment rights than the general public?

A

No, same rights public at large

22
Q

Is the media protected by the First Amendment for publishing a lawfully obtained private fact? (e.g. identity of a rape victim)

A

Yes, as long as story is matter of public concern (i.e. newsworthy)

23
Q

Are gag orders constitutional?

A

Very rarely constitutional, unless they are the least restrictive means necessary to ensure D has a fair trial (usually alternatives such as better voir dire, venue change, or postponement are available)

24
Q

Do the public and press have a right to attend trials?

A

Criminal trials: Yes, but can be overruled upon showing of overriding interest

Civil trials: Unclear

25
Q

Can the government regulate broadcast TV?

A

Can only fine stations for airing “patently offensive and excretory speech”

26
Q

Content-based regulations of cable TV are subject to what level of scrutiny?

A

Strict scrutiny

27
Q

Content-neutral regulations of cable TV are subject to what level of scrutiny?

A

Intermediate Scrutiny

(e.g. “must carry” provisions)

28
Q

What is the 3-prong test to determine whether speech is obscene?

A
  1. Appeals to “prurient interests;” (community standard)
  2. Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and
  3. Lacks serious artistic, literary, political, or scientific value as determined by national standards

⚠️ Note: Sexual expression that is indecent but not patently offensive is protected by the First Amendment.

29
Q

Are zoning restrictions on adult entertainment establishments constitutional?

A

Yes, if zoning is to prevent adverse “secondary effects” caused by the business, such as increased neighborhood crime (“secondary effects doctrine”)

30
Q

Is profanity protected?

A

Yes unless:

  1. Broadcast over public television; or
  2. In public schools
31
Q

When can the government regulate speech that is incitement to violence?

A

Regulation must be narrowly tailored and only aimed at:

  1. Speech that promotes or directs imminent illegal action; and
  2. Creates a “clear and present danger” of such action
32
Q

Define

fighting words

A

Substantially likely to provoke an immediate violent reaction (e.g. direct personal insult)

33
Q

Are attempts to limit fighting words constitutional?

A

Limitations will almost always fail for being either overbroad, vague, or viewpoint-based and thus failing strict scrutiny

⭐️ If you see a question on the MBE with a fighting word statute, it is extremely likely it will be too vague or overbroad

34
Q

Define

commercial speech

A

Speech whose primary goal is commerce (e.g. commercial or advertisement for a product or service)

35
Q

What is the four-part test to determine whether regulation of commercial speech is constitutional?

A

Must satisfy Central Hudson Test:

  1. Speech is not false, misleading, or illegal;
  2. Regulation serves substantial government interest;
  3. Regulation directly advances interest; and
  4. Regulation is not more extensive than necessary to serve that interest
36
Q

What is unprotected commercial speech?

A

Speech that is misleading, false, or unlawful and can be regulated freely by the government

37
Q

What is unprotected commercial speech?

A

Speech that is misleading, false, or unlawful and can be regulated freely by the government