JOMC 486 – Midterm Exam Verified 100% Correct!!
Paul Robert Cohen
In 1986 - Arrested for wearing a jacket that said "F*** the Draft"
Violations of the first amendment
-Obscenity
-Hate Speech
-Fighting Words
-Incitement of unlawful activity
Issue: no violence
Cohen had the right to wear the jacket bc communicating emotional feeling // violation to
his freedom of speech
Words of the First Amendment applying to media
Law, abridging, freedom, speech, and press
Government power to punish or restrict expression is limited to a few
Obscenity, libel, fighting words, threats, and fraud
Level of Scrutiny
Rational-basis
Strict Scrutiny
Intermediate scrutiny
Rational Basis
In U.S. constitutional law, the lowest level of scrutiny applied by courts deciding
constitutional issues through judicial review. Almost always found constitutional.
Ex: Airbags in cars
Strict Scrutiny
When a law imposes limitations on a fundamental right, such as freedom of speech or
freedom of religion. Almost always found unconstitutional.
Ex: National Security
Intermediate scrutiny
Used in cases involving expressive conduct
Ex: Marches not during rush hour
Levels of Speech
Pure, intermediate, unprotected
Pure Speech
given the highest level of protection; examples: public speech, writing a letter,
publishing a newspaper or book
Intermediate
examples: symbolic speech (conduct or action), advertising, broadcasting
Unprotected
examples: fighting words, libel, obscenity, threats, fraud
Brandenburg v. Ohio
Brandenburg Test
, state may punish speech that is seditious or may encourage criminal behavior if there is
evidence of:
-intent to incite violence
-imminence of violence
-likelihood of violence
U.S v O'Brien
To protest the Vietnam war David Paul O'Brien burned his draft card
On the back of the card it says any destruction is illegal
This is considered expressive speech, O'Brien was trying to communicate/send a
message
O'Brien Test
used for determining when the state interest in regulating conduct is sufficient to justify
some limitations on symbolic expression or actions that have some expressive purpose
-is the regulation within the constitutional power of government?
-does it further SUBSTANTIAL governmental interest?
-is the governmental interest unrelated to the suppression of expression?
-is any incidental restriction of First Amendment freedoms no greater than necessary for
furthering the governmental interest?
If yes to all four it will be constitutional
fighting words
which by their very utterance inflict injury or tend to incite an immediate breach of the
peace; US Supreme Court declared regulation of fighting words must be content
neutral; fighting words are outside First Amendment
Characteristics of fighting words
personal insults likely to provoke violent response; spoken in a face-to-face situation;
concern is whether the recipient of the words will respond with violence against the
speaker
R.A.V. v. City of St. Paul
Characteristics of Seditious Speech
calls for political, social or economic change through violent, unlawful means; may be
spoken or written; concern is whether the recipients of the words will commit violent or
illegal acts against third parties
Prior Restraints
preventing publication; publication must inevitably, directly and immediately cause harm
to nation security in order to be constitutional
Elements of Libel
Defamation
Identification
Publication
Falsity
Injury
Fault
Defamation
tens to so harm the reputation of another so as: to lower him or her in the estimation of
the community, or deter third persons from associating or doing business with him
Defamation per se
Paul Robert Cohen
In 1986 - Arrested for wearing a jacket that said "F*** the Draft"
Violations of the first amendment
-Obscenity
-Hate Speech
-Fighting Words
-Incitement of unlawful activity
Issue: no violence
Cohen had the right to wear the jacket bc communicating emotional feeling // violation to
his freedom of speech
Words of the First Amendment applying to media
Law, abridging, freedom, speech, and press
Government power to punish or restrict expression is limited to a few
Obscenity, libel, fighting words, threats, and fraud
Level of Scrutiny
Rational-basis
Strict Scrutiny
Intermediate scrutiny
Rational Basis
In U.S. constitutional law, the lowest level of scrutiny applied by courts deciding
constitutional issues through judicial review. Almost always found constitutional.
Ex: Airbags in cars
Strict Scrutiny
When a law imposes limitations on a fundamental right, such as freedom of speech or
freedom of religion. Almost always found unconstitutional.
Ex: National Security
Intermediate scrutiny
Used in cases involving expressive conduct
Ex: Marches not during rush hour
Levels of Speech
Pure, intermediate, unprotected
Pure Speech
given the highest level of protection; examples: public speech, writing a letter,
publishing a newspaper or book
Intermediate
examples: symbolic speech (conduct or action), advertising, broadcasting
Unprotected
examples: fighting words, libel, obscenity, threats, fraud
Brandenburg v. Ohio
Brandenburg Test
, state may punish speech that is seditious or may encourage criminal behavior if there is
evidence of:
-intent to incite violence
-imminence of violence
-likelihood of violence
U.S v O'Brien
To protest the Vietnam war David Paul O'Brien burned his draft card
On the back of the card it says any destruction is illegal
This is considered expressive speech, O'Brien was trying to communicate/send a
message
O'Brien Test
used for determining when the state interest in regulating conduct is sufficient to justify
some limitations on symbolic expression or actions that have some expressive purpose
-is the regulation within the constitutional power of government?
-does it further SUBSTANTIAL governmental interest?
-is the governmental interest unrelated to the suppression of expression?
-is any incidental restriction of First Amendment freedoms no greater than necessary for
furthering the governmental interest?
If yes to all four it will be constitutional
fighting words
which by their very utterance inflict injury or tend to incite an immediate breach of the
peace; US Supreme Court declared regulation of fighting words must be content
neutral; fighting words are outside First Amendment
Characteristics of fighting words
personal insults likely to provoke violent response; spoken in a face-to-face situation;
concern is whether the recipient of the words will respond with violence against the
speaker
R.A.V. v. City of St. Paul
Characteristics of Seditious Speech
calls for political, social or economic change through violent, unlawful means; may be
spoken or written; concern is whether the recipients of the words will commit violent or
illegal acts against third parties
Prior Restraints
preventing publication; publication must inevitably, directly and immediately cause harm
to nation security in order to be constitutional
Elements of Libel
Defamation
Identification
Publication
Falsity
Injury
Fault
Defamation
tens to so harm the reputation of another so as: to lower him or her in the estimation of
the community, or deter third persons from associating or doing business with him
Defamation per se
