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Civil Liberties Tests
I.
Advocating illegality
A. a state cannot forbid or
prescribe act/speech unless Branzenburg
1.
advocacy is directed to inciting or producing imminent lawless action and
2.
advocacy is likely to incite or produce such action
B. guilt by association: to be
convicted under association provision, you must be Scales
1.
member
2.
who is active & knowing
3.
and presently advocates illegal action
not enough to be present
advocation of illegal action
C. factors (from Yates)
1.
sufficient size
2.
discipline
3.
cohesiveness and
4.
funding
so a rzbl justifiable
aprehension that violence will occur in the future
Constitutional Prior Restraints
II.
Defamation
A. Public Official (governmental
capacity): actual malice
·
defamation that is
false
·
re: public official
conduct
·
with actual malice
·
knowledge or
·
reckless disregard
for veracity
4. id'able character
B. Public Figure (have no
governmental capacities) Gertz v. Welch
1. all purpose public figures:
[defined: who
b/c of reputation wealth, etc, who is for all intents and purposes a public
figure (ie ex presidents; jfk jr); public figures for all facets of their life]
a) highly unrzbl conduct
constituting extreme departure from standards of investigation and reporting
ordinarily adhered to by responsible publishers
2. limited purpose public
figures:
[defined:
voluntarily cast themselves into the vortex of public discussion for a specific
issues and for the purposes of that specific issue, they are public figures]
a) must show fault (only)
b) states may impose any bop they
want as long as they don't do it w/o fault
c) texas: simple negligence
d) punies? => must prove actual
malice!!!
must prove fault
C. actual malice
1. knowing
2. reckless disregard for the
veracity of the information (reckless disregard: subjective awareness of
probable falisty may be found if: there are obvious reasons to dobuts the
veractiy of the info or the accuracy of the reports)
III. Obscenity
A. Roth test
1. whether to the average person
(average person to whom the publication is directed)
2. applying contemporary
community standards (ie this will change)
3. the dominant theme of
the material, taken as a whole,
4. appeals to one's
prurient
(a longing desire) interests in
sex [determined by jury]
B. protrays in a patently
offensive way, sexual conduct specifically defined by the applicable
state law (statute must set out what you can't do - must almost define obscene)
and
C. whether the work taken as a
whole lacks serious literary, artistic, political or scientific value (use
reasonable prudent man standard Pope v. Ill)
D. child porn: child porn not
entitled to first am protection as long as the conduct to be prohibited is
adequately defined by state law
IV. Fighting Words Chaplinsky
A. what men of common
intelligence are words likely to cause an average person to fight (Chaplinksy,
Cohen) or
B. imminent threat of violence
exception to free speech: he had the right to speak, but no right to provoke a
riot (Feiner)
Indirect Speech Regulation
V. Commercial Speech
A. You must determine whether the
expression is protected by the 1st am.
For commercial speech to
come w/in that provision, it must relate to lawful activity and must not be
misleading.
B. We must determine whether the
asserted governmental interest is substantial.
C. If we have an affirmative
answer to the avove, we must then determine whether the regulation directly
advances the governmental interest asserted and
D. Whether the regulation is
not more expansive than is necessary to serve than interest (reasonable
fit).
VI. Public Employment
A. speech on a matter of public
concern?
1. defined: any topic fairly
related to any matter of political, social, or other concerns to the community
2. burden on speaker
3. look to whole record; content,
form, context
B. variable balancing test: does
the importance of the speech outweigh the employer's interests?
1. factors
a) impairs discipline by
superiors
b) has detrimental impact on
close working relationships and
c) implies the performance of
speaker's duties or interferes with regular operation of the enterprise.
2. burden on state
C. Shock Talk: this is not very
important in the variable balancing test
VII. Hate Speech
A. you can introduce
evidence of racial intolerance if the evidence was related to the elements of
the crime on trial for
B. you cannot punish one
for his beliefs, but you can punish for a crime & increase punishment dependent
on a racial (etc.) amimus
Symbolic Speech & Expression
VIII. What is it?
A. symolic speech: where the
actor engages in conduct and intends to convey a message and a rzbly prudent
receivever would understand it
Content Based Speech O'Brien
A. compelling
B. narrowly tailored
IX. Content Neutral Speech
A. Symbolic Speech:
1) Statute: must be content
neutral
2) narrolwy tailored: to serve a
significant government interest
3) ample alternative channels of
communication
4) w/in government's powers?
B. Time, Place & Manner
restrictions:
1) regulation w/in the C'al power
of the government
2) furthers an important or
substantial government interest
3) unrelated to the suppression of
free speech? (content neutral; true motive is not to suppress free speech)
4) incidental restriction of first
am. freedoms is no greater than is necessary to the furtherance of that
interest?
X. Public Forums:
A. pure public forums
1. quintissential public forums
2. public forums by use (can't be
gotten reid of whenever you want but as long as they are open, they must follow
public forum rules)
B. limited access public forums:
1. Government enjoys the right &
power to preserve such tranquility as the facility's "central purpose requires"
2. test:
a) content netural
b) substantial gov't interest
c) narrowly tailored to further
gov't interest
d) alternative forums for the
expression
3. or if content based:
a) content based
b) compelling state interest
c) narrowly tailored
C. government institutions
(non-public forums)
1. doing the people's bsns, but
not public forums at all
2. test:
a) regulations must be reasonable
b) viewpoint netural
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