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First Amendment Freedom Of Speech Outline

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This is an extract of our First Amendment Freedom Of Speech document, which we sell as part of our Constitutional Law II Outlines collection written by the top tier of Thomas Jefferson School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Constitutional Law II Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:




1st Amendment - applies to federal government 14th Amendment - applies to states


** Government action that abridges freedom of speech is void unless it passes strict scrutiny or is otherwise justified o ** Even where the abridgement is justified, it is void if it is improper in form


ANALYTIC FRAMEWORK o 3 Steps 1) Has gov't abridged free speech?
2) Is abridgement is justified?

* Either because it passes strict scrutiny or on some other ground 3) Whether or not the abridgement is justified - was it improper in form?
o Prima Facie Case
? Has a prima facie case been established?
1) State Action o Must be abridged by state or fed gov't o Not by private groups or ppl. 2) Abridging of Freedom o (1) Freedom of speech includes the right to speak and the right not to speak o (2) Abridgement exists where the state burdens or penalizes the exercise of free speech o Or where it compels a person to speak
? ( requires saluting the flag) o Denial of a benefit to a person on the basis of that person's speech also constitutes an abridgement of speech under the unconstitutional conditions doctrine
? However - Rust v. Sullivan - Court did hold that refusal to subsidize speech was

not an abridgement of speech.

3) Speech o (1) Speech is conveyed if the speaker intended to communicate a message o (2) Is there a great likelihood that the message will be understood???


Any activity intended to convey a particular message Where the likelihood is great that the message will be understood Verbal communication Forms of conduct

* Draft card burning, flag burning, campaign contributions

JUSTIFICATIONS FOR ABRIDGEMENT OF SPEECH o Assuming that freedom of speech has been abridged by the state -
? State may avoid a holding that it has acted unconstitutionally by demonstrating that the abridgement was justified
? More than one may be applicable and they may be applicable in any combination o One satisfied = abridgement justified o STRICT SCRUTINY
? Abridgements that pass strict scrutiny will be upheldCourt has sometimes said that all content based abridgments must pass strict scrutiny

* Content Based =
o Gov't is aiming at the communicative impact of the expression o Does gov't want to control/suppress ideas?




Content based abridgments of speech that fall into certain categories (obscenity) - Often upheld under other justifications that apply only to speech in the relevant category Content based abridgments, therefore, are not subjected to strict scrutiny if the speech they abridge falls into one of the categories of speech described below

o Unprotected SpeechIf abridgment is content neutral -

* Generally will be analyzed either as a time, place and manner restriction or as a restriction on expressive conduct o Content Neutral =
? Gov't is aiming at something other than the communicative impact of the expression even if the reg. burdens the expression
? Viewpoint neutral
? W/out reference to the contentStrict Scrutiny Test

* Regulation will be sustained only if it: 1) Serves a compelling governmental objective 2) Is necessary 3) Is as narrowly drawn as possible to achieve that objective

? Preventing political corruption is a compelling interest
? Ct. upheld limitations on campaign contributions or expenditures where it believed the limitations were narrowly drawn to serve that goal o ADVOCACY OF UNLAWFUL ACTION
? Gov't may regulate speech that is:

* (1) Directed at inciting or producing imminent lawless action and

* (2) Is likely to incite or produce such action o FIGHTING WORDS
? Gov't may regulate fighting words, that is,

* (1) Speech that tends to incite an immediate breach of the peace and

* (2) Is directed at a hearer who is present o TRUE THREATS
? Gov't may regulate speech where the speaker

* (1) Intends to communicate a serious expression of an intent to commit an act of unlawful violence

* (2) To a particular individual or group of individuals

? Gov't may regulate obscene speech

* Speech is obscene if it satisfies the Miller test - 3 elements o (1) Average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest in sex; o (2) Work depicts/describes in a patently offensive way sexual conduct specifically identified as obscene by state law; and o (3) Work, taken as a whole, lacks serious literary, artistic, political or scientific value, as measured by a national standard o CHILD PORNOGRAPHY
? State may regulate child pornography - Ct. has not defined
? Appears that sexually explicit material depicting minors would constitute child pornography
? Material depicting persons who are not minors, even if they appear to be, has been held not to fall in the unprotected category of child pornography
? State may prohibit the possession of child pornography in the home

? Speech in above categories:

* Described as unprotected speech o Speech in that category can be regulated w/out any justification other than that the speech falls in the category o Under RAV, however -
? Content based regulations of only some (not all) speech in a category of unprotected speech are subject to strict scrutiny unless the criterion for determining which portion of the

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