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Flashcards in Freedom of Expression Deck (23)
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First Amendment

The government may neither censor all categories of speech nor engage in content-based discrimination among different categories of speech (even if that speech is offensive), with some exceptions.


Strict Scrutiny

  • The government will face strict scrutiny if it engages in content-based discrimination
  • To win, gov't would have to show the regulation is necessary and serves a compelling gov't interest


Unprotected Speech

Regulation of unprotected speech is permissable


Hostile Audience

Fighting Words

Obscene speech

Unlawful action



Hostile Audience

Speech that elicits imminent violent response against the speaker by a crowd


Fighting Words

To fall within this category, the speech must be more than annoying or offensive; there must be a genuine likelihood of imminent violence by a hostile audience. 



  1. Direct personal insult


Obscene Speech

For speech to be considered obscene, the following three-part Miller test must be satisfied:

  1. the average person, applying contemporary comunity standards, would find that the work, taken as a whole, appeals tothe prurient interest (a national standard is not used);

  2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

  3. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (note that a national standard is used to determine this value). 



Unlawful Action

Gov’t can prohibit the speech if the speaker intends to produce imminent unlawful action; and the speech is likely to produce imminent unlawful action



Constitutional restrictions apply to defamatory speech where the plaintiff is either:

  • a public official or public figure, or
  • where the defamatory statement involves a matter of public concern. 


Plaintiff is private person & subject matter is of private concern

standard defamation law applies


Plaintiff is private person & subject matter is of public concern

Plaintiff must prove negligence about the truth or falsity of the statement. 


Plaintiff is public official or public figure

plaintiff must prove:

  • the state law requirements of defamation AND
  • actual malice (knowledge of the falsity or reckless disregard of the truth or falsity of the statement)


Commerical Speech

Commercial speech is protected by the First Amendment if:

  • it is not false or deceptive and
  • does not relate to unlawful activity. 


When can gov't regulate commerical speech?

3 part test

  1. it must serve a substantial governmental interest;

  2. it must directly advance the substantial governmental interest; and

  3. it must not be more extensive than is necessary to serve that interest. 


Sexual or Indecent Speech

Is protected but can be regulated on the basis of secondary effects


Secondary Effects Regulation Requirements:

  1. regulations must serve a substantial government interest, and
  2. leave open reasonable alternative channels of communication


Conduct regulation, creating an incidental burden on speech

Is allowable, if:

  • The regulation furthers an importance gov’t interest that is unrelated to the content of the speech
  • The incidental burden imposed on the speech is no greater than necessary


Time, Place, and Manner Regulation

Reasonable regulation of the time, place, or manner of speech is allowed. 


3-part test is used to determine the constitutionality of time, place, or manner regulations 

  1. be content-neutral as to both subject matter and viewpoint (i.e., the regulation cannot prefer some messages over others);
  2. be narrowly tailored to serve a significant (important) government interest; and
  3. leave alternative channels of communication open. 


Non-public forum

gov't can regulate non-public forums under rational basis review


When can an individual be denied public employment based upon membership in a political organization?

When the position is a high-level policy-making position 


Requirements for denying an individual public employment for political association  

An individual may be deprived if:

  1. he is an active member of a subversive organization;

  2. such membership is with knowledge of the illegal aims of the organization; and

  3. he has a specific intent to further those illegal ends (e.g., violent overthrow of the government). 


Oath requirement for public entry

The gov't can require employees to take an oath to:

  1. Support the constitution
  2. Oppose illegal overthrow of the gov't


Public employees can be disciplined or fired for speech if:

  1. The speech is not a matter of public concern
  2. Speech is potentially disruptive of the workplace