OTHER IMPORTANT SPEECH DOCTRINES

Compelled Speech

100

What are the 1A concerns with compelled speech? 

Mouthpiece for the govt/attribution problems 

Imposition of govt orthodoxy/distorts the market 

Individual autonomy 

200

What right did the court recognize in Barnette? 

The right not to speak 

300

What differentiated National Institute of Family and Life Advocates v. Becerra from other disclosure laws for certain professions? 

Not merely a factual statement, it involves "controversial information." 

400

Why did the Court invalidate ordinances requiring names/contact info for handbills/leaflets? 

Chilling effect 

Anonymity exemplifies the purpose behind the 1A

Rejected the fraud, false advertising, and libel interests

500

Which cases involved compelled expressive conduct and how did the Court decide them? 

Hurley v. GLIB -- every participating unit affects the message conveyed by the private organization in the parade. Therefore, the govt could not compel the organization to include a LGBTQ unit. 

303 Creative -- creating websites for gay couples is speech and it cannot be compelled by the govt. 

Press

100

If the Court/parties believe there is a reason for closing the proceedings from the public, what must they do? 

Articulate the reason in the findings 

200

Do press have privilege like that of an attorney, doctor, spouse, etc.? 

No, the court refused to create a special privilege for the press in Branzburg v. Hayes. But many legislators in various states have created that privilege. 

300

What is the Richmond Newspaper holding that has been extended to many other proceedings? 

The Court held that absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.  

400

When is the one time press are kind of special and what is the test? 

Can't have a law that specifically discriminates against the press, concerned about censorship. 

In the case of taxing, the govt has to treat the press and other businesses the same – a tax that burdens rights protected by the 1A cannot stand unless the burden is necessary to achieve an overriding govt interest that it cannot achieve without differential taxing.

Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue

500

What is the test to determine whether the public has a right of access? and what is the case? 

The right of access will be determined by: 

• Whether place and process have historically been open to the press and general public; and
• Whether public access plays a significant positive role in the functioning of the particular process in question

Press-Enterprise Co. v. Superior Court (II)

Review

100

What are the 6 theories of free speech 

1. Search for truth 

2. Self governance 

3. Self realization/autonomy 

4. form of liberty in and of itself 

5. Safety valve 

6. Negative theory 

200

What is the captive audience doctrine? What case best exemplifies this doctrine? 

• The State has interest in protecting listeners’ substantial privacy interests invaded in essentially intolerable manner.
• State may regulate speech where the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure.

FCC v. Pacifica 

300

What is the Miller test? 

Three-part test to determine whether the speech is unprotected obscenity:

1. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest (purely sexual arousal).

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

3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

400

What is the test to determine if a law is content based? 

• A law on its face applies to particular speech because of the topic discussed on the idea or message expressed.
• A facially neutral law that cannot be justified without reference to the speech’s content or was adopted because of the government’s disagreement with the message (Reed v. Town of Gilbert).

500

What is the O'Brien and the Clark/Ward test? 

O'Brien 

A law regulating expressive conduct must: 

1. Be within the constitutional power of the govt;

2. Further an important or substantial govt interest;

3. The govt interest is unrelated to the suppression of free expression (content-neutral); and

4. The incidental restriction on alleged 1A freedoms is no greater than is essential to the furtherance of that interest (O’Brien).

• The govt does not need to employ the least restrictive alternative.

Clark/ Ward 

Content neutral regulation of speech in public forum does NOT violate 1A if:

1. Narrowly tailored

• The law need not be the least-restrictive or less-intrusive means, so long as the means are not substantially broader than necessary to achieve govt interest (Ward).

2. Serves significant govt interest

3. Leaves open ample alternative channels of communication

Review

100

What is the rule from RAV? 

States can regulate no value speech, except they cannot regulate it in a manner that is viewpoint discriminatory, except when the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is prescribable, no significant damage of idea or viewpoint discrimination exists. 

    

 

200

When do we apply strict scrutiny? 

• Laws/regulations that discriminate based on content of high value speech 
• Laws/regulations that discriminate based on viewpoint of speaker regardless of high/no value speech

300

What test is applied if the law regulates the secondary instead of the primary effects? 

Intermediate scrutiny 

City of Renton v. Playtime Theaters

400

If a school regulates student speech, how would the Court determine if it violated the 1A? 

• Students’ free speech rights must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior (Bethel v. Fraser).
• Schools need actual evidence that disturbance has or will occur, not may occur (Tinker). 

500

What are the four types of forums? And what test is applied to each of them?

traditional - Ward 

Limited - must be view pt neutral and reasonable. it can be content based 

Designated - Ward 

Non public forum - govt can completely prohibit public speech and use it for its intended purpose