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SMPA 2173 Ch. 2-3 (The First
Amendment and Speech Distinctions)
Correctly answered
What does the first amendment state? (6) Although the 1st, says gov. "shall make no law" against it... - correct answer ✔✔right to assemble freedom of speech freedom of the press freedom of religion (no law respecting religion) freedom to petition the government The First Amendment's ban is NOT absolute What angered John Milton about British gov in 1644? How was that same idea emulated by the late 1600s? - correct answer ✔✔-Dissatisfaction and outrage at Gov censorship (argued for press freedom) -John Locke argues Gov censorship=improper exercise of power (fundamental natural rights; life, liberty, and self fulfillment) Even though Brit. Parl. failed to renew the Licesing act and official Prior restraint in 1964.. What is prior restraint? What does something req. before public.? - correct answer ✔✔for the next 100 years, the British government enacted and enforced laws that punished immoral, illegal or dangerous speech after the fact.
Action taken by the government to prohibit publication of a specific document or text before it is distributed to the public; a policy that requires government approval before publication. Why did political thinkers not view punishment after the fact as censorship? Held people accountable for... What is sedition? What is defamation? What is blasphemy? - correct answer ✔✔encouraging rebellion against the government A false communication that harms another's reputation and subjects him or her to ridicule and scorn; incorporates both libel and slander. (sacrilegious speech about God). When did the British censors stop previewing publications? What is seditious libel? - correct answer ✔✔ 1720 Communication meant to incite people to change the government; criticism of the government. ("truth" is not a defense) What did Rosseau believe about censorship?
diverse media ownership because it doesn't allow for competition that ensures an open marketplace of ideas. -news -press What cause these obstacles to a consistent interpretation of the Constitution (2)? What is one way that judges try to accompany this? (ex) Another option? Even parts that are clear in the 1st seem murky, such as... - correct answer ✔✔The mixed legacy of British common law and the fast-changing nature of communications Some justices look to history, seeking the original intent of the framers of the Constitution, to help them determine whether occupying the streets of Ferguson, Mo., or wearing bandanas and carrying AR-15 rifles at a Texas protest are protected speech. viewing the Const as a living document The gov shall make no law (What about priv. companies) What is the type of balancing that the Supreme Court uses to decide a case?
- correct answer ✔✔ad hoc balancing
Making decisions according to the specific facts of the case under review rather than more general principles. (weighing constitutional interests and competing interests) What is the separation of speech into categories? What are a few of the classifications - correct answer ✔✔the Court's categories give some kinds of speech a lot of protection; some, less; others, none at all. When speech falls into one of these categories, the courts do not balance the value of the speech against society's interests. (Ex: political and commercial speech) Protected, less protected, unprotected (fighting words) When the category of speech is less clearly defined the courts generally balance the nature of speech... - correct answer ✔✔against any competing societal values using what is called categorical balancing (case-by-case basis) When a Ohio Law prohibited "falsehoods/lies" in public debate, the SC found this to be... - correct answer ✔✔Unconstitutional because the government may not "prescribe what shall be orthodox in politics." What is the 1st amendment considered as by the SC? Specifically.. (2) - correct answer ✔✔An instrument to achieve specific social functions/advance certain fundamental values (Speech and PRess) What is the Outcome of todays view of the Constitution as merely a check on gov authority?
What did the SC rule in New York Times Co. v. United States?(1971) - correct answer ✔✔that a court order preventing publication of news stories based on leaked Pentagon reports was an unconstitutional prior restraint. What is an injunction? - correct answer ✔✔A court order prohibiting a person or organization from doing some specified act. (Ex: Nixon admin asking for this in light of the Pentagon PAperS) What did the SC say about prior restraints in Nebraska Press Association v. Stuart? - correct answer ✔✔prior restraints are generally unconstitutional because they pose too great a risk that government will censor ideas it disfavors and distort the marketplace of ideas. What are the three elements of Prohibited Prior Restraints? - correct answer ✔✔(1) government oversight over whole categories of speech, content or publications; (2) government determination of acceptable content; and (3) government power to stop content before it reaches the public What is the greatest obstacle the First Amendment poses? - correct answer ✔✔direct prior restraints on the news media because every moment of a ban on reporting causes direct harm to the First Amendment rights of both the media and the public. (Yet news organizations report that policies imposed on government agencies, the "management" of reporters through government public relations offices and calls by government officials to punish or remove journalists all have the effect of prior restraint. )
What do the News Media's current prior restraints arise in the form of? - correct answer ✔✔court orders that stop speech or publication. When does prior restraint exist (3)? - correct answer ✔✔any government body or representative reviews speech or press prior to distribution and stops the dissemination of ideas before they reach the public. When can a prior restraint on the media be justified, according to the SC? The ban on prior restraints does not prohibit... - correct answer ✔✔only when there is clear and convincing evidence that the speech will cause great and certain harm that cannot be addressed by less intrusive measures or when the speaker clearly engaged in criminal activity to obtain the information being banned. laws that silence discussion of particular topics, such as threats to national security. The Court decides the constitutionality of laws by drawing a number of distinctions. These include: - correct answer ✔✔whether a law involves speech at all. The Supreme Court reviews challenges to such laws under its least rigorous or minimum review, called rational review. (a law is constitutional if government can show it serves a rational purpose. )
What does the SC generally presume about Content-based laws? What is the toughest court standard of review to determine if content-based laws are constitutional? - correct answer ✔✔They are unconstitutional Strict Scrutiny...finds laws that apply different treatment to different types of speech unconstitutional unless they use (1) the least restrictive means (2) to advance a compelling government interest. What is a compelling interest? ex? - correct answer ✔✔A government interest of the highest order, an interest the government is required to protect. (Ex: public health and safety) What type of scrutiny does the Supreme Court typically apply to content- neutral laws (Laws that impose speech restrictions to advance legitimate government interests without targeting particular viewpoints or content generally are constitutional)? What part of content-neutral laws are regulated? - correct answer ✔✔Immediate Scrutiny (A standard applied by the courts to review laws that implicate but do not directly regulate core constitutional values; also called heightened review) non-speech elements of the message (Ex: location) What was the Obrien test after the court found that they could constitutionally place a small burden on Symbolic expression (burnt his draft card)? - correct answer ✔✔courts find a law content neutral and constitutional if the law: (1) is unrelated to the suppression of speech,
(2) advances an important government interest, and (3) is narrowly tailored to achieve that interest while only incidentally restricting protected speech. What is an important government interest considered? - correct answer ✔✔An interest of the government that is substantial or significant (i.e., more than merely convenient or reasonable) but not compelling. The third part of the O'Brien test, sometimes called the narrow-tailoring standard, requires a law to "fit" its purpose. When does a law "fit" its purpose? - correct answer ✔✔when it advances the government interest without imposing an unnecessary burden on speech. When is a law "narrowly" tailored in relation to the Obrien test? - correct answer ✔✔A law is narrow tailored if the government interest would suffer without a law that serves the interest reasonably well. The Supreme Court generally applies some form of intermediate scrutiny to content-neutral laws that incidentally affect the freedom of speech. A law is constitutional under O'Brien intermediate scrutiny if it falls within the power of government and (3) - correct answer ✔✔advances an important government interest that is unrelated to suppression of speech and is narrowly tailored to only incidentally restrict First Amendment freedoms.
What has the US SC held about gov control over employee speech? - correct answer ✔✔control only extends to speech directly related to their employment What has the SC said about the right to speak.... (Government may not...) (Ex: Jehovahs witness couple not wanting to display "Live Free or Die" on their license plate) - correct answer ✔✔"The right to speak and the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind." (government may not force citizens to express ideas with which they disagree. ) What is the Bipartisan Campaign Reform Act? - correct answer ✔✔banning "soft money" contributions to national political parties and imposing limits on the amount and source of funds candidates may accept and spend. (Declared unconstitutional bcs Direct limits on how corporations and unions could fund campaigns violated the First Amendment. ) The Supreme Court also has ruled that government may refuse to assist employee...... - correct answer ✔✔political contributions bcs the Constitution imposed no affirmative obligation on government to facilitate such political activities and the ban advanced the state's interest in avoiding the appearance of partisan political activity.
What does the SC consider speaking anonymously to be... - correct answer ✔✔an "honorable tradition" that "is a shield from the tyranny of the majority." (except didn't necessarily work out when the gov allowed for names of a referendum to be released) What is a public forum? - correct answer ✔✔Government property held for use by the public, usually for purposes of exercising rights of speech and assembly. The people have a First Amendment right to use public forum property to.... - correct answer ✔✔express themselves free from fear of government censorship or punishment. What is a traditional public forum? - correct answer ✔✔Lands designed for public use and historically used for public gathering, discussion and association (e.g., public streets, sidewalks and parks). Free speech is protected in these areas. When can the gov impose rules over public forums? - correct answer ✔✔if they are fairly applied and content neutral, meaning they are tailored to their purpose and do not discriminate because of the content of the group's ideas or politics. The Supreme Court has held that government may ban public picketing and protests from traditional public forums to.... - correct answer ✔✔protect core privacy, safety or health interests. What is a designated public forum? - correct answer ✔✔Government spaces or buildings that are available for public use (within limits).
Supreme Court decided both Abbott v. Perez and Gill v. Whitford , which respectively challenged Texas and Wisconsin electoral redistricting as a... But after reviewing statewide evidence... - correct answer ✔✔violation of freedom of voter association and the 14th Amendment right to equal protection. the Supreme Court in Abbott upheld the Texas redistricting because the plaintiffs had failed to show the individual voter harm or clear discriminatory legislative intent needed to support a voter dilution challenge. What is a dicta? - correct answer ✔✔Statements in a court opinion that are not central or essential to its reasoning or holding. What was New York Times Co v. United States about? - correct answer ✔✔a landmark decision of the US Supreme Court on the First Amendment. The ruling made it possible for The New York Times and The Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment. When the category of speech is developing or evolving, such as hate speech or threats, courts look at... - correct answer ✔✔the language of the statute the circumstances and the level of harm to determine whether the speech is protected. The Court has said free expression is not protected if it causes...
What do the courts have in place to determine which speech is not protected? - correct answer ✔✔imminent harm or plays "no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality." SEVERAL TESTS What was Schneck v. US and what did it establish? What was the court's ruling? - correct answer ✔✔(mailed anti-draft pamphlets; convicted of espionage) established the 'clear and present danger' test; restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm. the Supreme Court said the mailing had a "bad tendency" that could endanger national security. What ACTUALLLY established the Clear and Present danger test? - correct answer ✔✔Holmes's dissent in Abrams v US (encouragement of strikes in US factories by an unknown man = did not pose sufficiently grave and imminent danger) What did Gitlow v New York establish? - correct answer ✔✔States cannot deny freedom of speech - protected through due process clause of Amendment 14; The INCORPORATION DOCTRINE (The 14th Amendment concept that most of the Bill of Rights applies equally to the states.) During the anticommunist frenzy of the 1950s, the clear and present danger test was - correct answer ✔✔actively VIOLATED (ex: federal law that required labor union officers to swear they were not communists)
A court may dismiss a charge of incitement using the plausibility standard if... (DT's incitement to riot at rally) (Must rely on_______ not _______ _______) - correct answer ✔✔the court's common-sense interpretation of the preliminary facts establishes that intent, likelihood and imminence are unlikely to be shown. (must rely on facts, not legal conclusions) When applied to claims that media provoke violence, the incitement test requires a showing that exposure to the media content would cause..... (nearly impossible to prove bcs media doesn't typically provoke a rapid response) - correct answer ✔✔immediate violent or unlawful activity What did Cohen v California confirm? (wearing Jacket in LA courtroom=F@ck the Draft) OFFENSIVE SPEECH IS - correct answer ✔✔-the First Amendment protected both the content and the feelings expressed through a message. Meaningful protection for free speech goes beyond the "cognitive content" to protect the "emotive function" of a message, the Court said. PROTECTED What did Chaplinsky v. New Hampshire prove? (Distributing Jehov. Witness pamphlets + said to be disturbing the peace) What are fighting words considered? - correct answer ✔✔(1942) The Court ruled that the first amendment did not protect "fighting words"
Words not protected by the First Amendment because they are directed at an individual and cause immediate harm or trigger violent response After TErminiello v Chicago what did the SC confirm about fighting words? - correct answer ✔✔the Constitution permits government to prohibit only those face-to-face comments that are inherently likely to trigger an immediate reaction of disorder or violence. What are the two points of law fighting words? Under the U.S. Supreme Court's fighting words doctrine, the First Amendment does not protect words that .... - correct answer ✔✔Under the U.S. Supreme Court's fighting words doctrine, the First Amendment does not protect words that are directed at an individual and innately inflict emotional harm or trigger violence. Even though state and local speech codes to regulate hate speech exist, What is hate speech considered? - correct answer ✔✔courts generally find these laws unconstitutional. A category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like. (not a legal term)
