Obscenity
Can you regulate obscenity?
What is the test for incitement?
Brandenburg
1. Incitement intended to produce
2. Imminent lawless activity
3. Likely to incite that action
What are the three types of public figures? Explain them.
Universal- public office/ someone who thrust themselves in the public eye
Limited- only in the public eye for a very limited issue
Involuntary- ? (maybe the victim of a crime)
Is Commercial speech unprotected?
Virginia Board
Are 'true threats' protected speech?
What is the three factors of the Miller test?
1. Prurient Test
2. Whether the work depicts or describes sexual conduct, as specifically defined by state law in a patently offensive way?
3. Whether the work, again taken as a whole, lacks serious literary, artistic, political, or scientific value?
No, not immediate
What do we look at when deciding what is a matter of public concern?
Form, context, content
Gertz
What types of advertisement are not given First Amendment protection?
Misleading or Unlawful advertisement
(First step of Central Hudson)
What is a public figure's standard for IIED?
There needs to be false statements of fact that a reasonable person would believe is true
Hustler
What standards are the Miller factors judged by?
Prurient Test- community standard
Lacks serious scientific, literary, artistic value- objective, national standard
What is the only case of a fighting words conviction?
Chaplinsky
What is the standard of proof for defamation concerning public officials on a matter of public concern?
Actual Malice
NYT
What is the Central Hudson test?
1. Protected by the First Amendment? (not unlawful or misleading)
2. Government has an interest that is substantial?
3. Does the regulation directly advance government interest?
4. Is the regulation more extensive than necessary? Fox- tied to means
What is the vice exception?
Does not matter, it does not exist
Can you regulate sexually explicit, but not obscene speech? If so, how?
Yes, reasonable time, place, and manner restrictions
What is the test for "Hostile Audience"?
Feiner- Balancing Test
Speech rights vs. harm of speech
What is the standard for defamation concerning private persons and public concerns?
Presumed and punitive damages- actual malice
Other damages- at least negligence
Can states ban lawyers from advertising in person?
Yes
Ohralik
Can you create a law that bans a subset of unprotected speech?
No, can be content based discrimination
R.A.V.
What type of evidence can the city rely on to show a compelling government interest? (Think Alameda Books)
A seven year old study or a study from another city
What is the test for hate speech?
There is no test. Hate speech laws have been held unconstitutional for content-based discrimination. R.A.V.
What is the standard for defamation concerning private persons and private matters of concern?
Whatever the state wants
Greenmoss
What level of scrutiny is Central Hudson?
Intermediate
What standard applies to false light cases?
NYT