KEY QUESTIONS Speech
? Is it Constitutionally Protected Conduct?
? Is it Void for Vagueness? (Overbreadth? Over/under inclusive?)
? Chill speech?
? Is it outside the First Amendment?
o Incitement, Obscenity, Libel, Fighting Words, ...
? Tort
? Privacy
? Is the government acting as...
o Employer o Educator o Patron ($$) o Speaker
? Is this Commercial Speech?
? Expressive Conduct? Spence test?
? Is this Content-Neutral?
o Aimed at Speech: SS o Neutral: IS o Incidental: Rational Basis
? Is the statute part of a neutral, general regulatory scheme? (Wisconsin v. Mitchell, Glickman, RAV?)
? Public Forum: o Traditional o Designated o Limited o Non-public forum
? Time place and manner regulation - IS
? Does it involve: o Right not to speak o Right to speak anonymously o Right to expressive association
? Injunction as TPM? (Heffron) Religion:
? Does it discriminate against religion?
? Is it about an exemption to a facially neutral rule? (FE)
? Does it Establish a religion: o Subsidies o Use of Public Spaces o Teachers o School Prayers o Curriculum o Public Displays Unresolved issues:

Internet, Cyber-bulling, Political, New Categories, Balancing vs. Categories, Snowden (Holder, Pentagon Papers), Revenge Porn, Nude photos/videos w/o consent. Nudity ("Free the nipple"). Jennifer Lawrence "illegal to call people fat."

Speech Pure Speech SS

Expressive Speech, TPM, Commercial IS

Pure Conduct Rational Basis

Unprotected Speech Never allowed

Outside First Amendment
? ?? ? Speaker and Audience on Same Side o Incitement (Brandenburg): (1) Specific Intent (Hand); (2) Grave harm imminent (Holmes C+PD); (3) Likelihood of causing illegal action (Schenck approach) o How to make a bomb (Progressive)
? ?? ? Speaker and Audience on Opposite Side o Fighting Words (Chaplinsky) o Offensive Words (Cohen) - OK unless directed at a person and likely to provoke violent response) o Hostile Audience (Terminiello) - No Heckler's Veto, audience cannot censor speaker o Permits need Standards (Kunz, Forsyth) o NO group libel (Beauharnais) o Hate speech protected (Collin in Skokie, Nazis) o Hate speech Statute must be neutral and narrow. Can't viewpoint discriminate within statute. (RAV) o Hate CRIME statute ok, b/c not speech (WI v. Mitchell)
? ?? ? Tort o Libel by Press requires (1) public official; (2) "actual malice"; (3) actual damages (NYT v. Sullivan)
? Applies to Public figures (Curtis)
? Private individuals must be (1) negligence; (2) false; (3) compensatory damages (malice -> + punitive) (Gertz) o IIED requires false statement + actual malice (Huster)
? No IIED if matter of public concern (Snyder)
? Privacy o Privacy requires knowledge of falsity or reckless disregard (Time v. Hill) o No liability for broadcasting true information in the public record (Cox v. Cohn, Florida Star) o Even if information illegitimately acquired, still 1st Am protection (Bartnicki)
? ?? ? Press o No special treatment in courts (Cohen v. Cowles) o Prior Restraint: High burden on government to prove (Pentagon Papers) o Jury gag order: must (1) otherwise jeopardize fair trial; (2) no other means; (3) would actually assure fairness (Stuart)
? ?? ? Sex o Obscenity: (1) prurient interest; (2) patently offensive; (3) SLAPS (Roth) o Nudity
? Can't discriminate based on Nudity (Erzoznik)

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