JOMC 486: Exam One
first amendment
congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press, or the right of
the people peaceably to assemble, and to petition the government for a redress of
grievances
levels of speech/expression
-pure speech
-intermediate speech
-unprotected speech
pure speech
given the highest level of protection; examples: public speech, writing a letter,
publishing a newspaper or book
intermediate speech
examples: symbolic speech (conduct or action), advertising, broadcasting
unprotected speech
examples: fighting words, libel, obscenity
Speech-Action Dichotomy
actions undertaken for expressive purposes may be regulated, but still receive some
protection; non-expressive actions have no First Amendment protection
Political-Nonpolitical Speech Dichotomy
speech that is political in the sense of contributing to self-government receives the
highest level of protection; artificial distinction between political and nonpolitical (the
personal IS political)
Content-Neutral, Content-Based Dichotomy
content-based regulation subjected to strict scrutiny; content-neutral regulations judged
by a less demanding standard
strict scrutiny
the most rigorous form of judicial review
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
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?
fighting words
, 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 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
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
types of public forums
-traditional: parks, sidewalks and other places used for expressive purposes
-designated: set aside by government for public expression
-nonpublic: government places used for expression but not generally open to the public
prior restraints
preventing publication; publication must inevitably, directly and immediately cause harm
to national security in order to be constitutional
elements of a libel suit
-identification
-publication
-defamation
-falsity
-fault
-injury
defamation
tends 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
libel per se
the words are defamatory on their face; statements implying: criminal conduct,
professional incompetence, sexual immorality, or a loathsome disease
libel per quod
a facially innocent statement becomes defamatory when it is combined with unstated
facts know to the audience
libel by implication
although every fact in a publication may be true, the arrangement of the facts or the
omission of some facts creates a false and defamatory impression
identification
a libel plaintiff must prove that the allegedly defamatory statement is "of and
concerning" him or her; requires showing that the recipient of the statement correctly or
mistakenly (but reasonably) understood the statement to refer to the plaintiff
publication
communication, intentionally or negligently, to someone other than the person defamed;
one who republishes defamatory facts is liable
1996 telecommunications act (communications decency act)
first amendment
congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press, or the right of
the people peaceably to assemble, and to petition the government for a redress of
grievances
levels of speech/expression
-pure speech
-intermediate speech
-unprotected speech
pure speech
given the highest level of protection; examples: public speech, writing a letter,
publishing a newspaper or book
intermediate speech
examples: symbolic speech (conduct or action), advertising, broadcasting
unprotected speech
examples: fighting words, libel, obscenity
Speech-Action Dichotomy
actions undertaken for expressive purposes may be regulated, but still receive some
protection; non-expressive actions have no First Amendment protection
Political-Nonpolitical Speech Dichotomy
speech that is political in the sense of contributing to self-government receives the
highest level of protection; artificial distinction between political and nonpolitical (the
personal IS political)
Content-Neutral, Content-Based Dichotomy
content-based regulation subjected to strict scrutiny; content-neutral regulations judged
by a less demanding standard
strict scrutiny
the most rigorous form of judicial review
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
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?
fighting words
, 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 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
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
types of public forums
-traditional: parks, sidewalks and other places used for expressive purposes
-designated: set aside by government for public expression
-nonpublic: government places used for expression but not generally open to the public
prior restraints
preventing publication; publication must inevitably, directly and immediately cause harm
to national security in order to be constitutional
elements of a libel suit
-identification
-publication
-defamation
-falsity
-fault
-injury
defamation
tends 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
libel per se
the words are defamatory on their face; statements implying: criminal conduct,
professional incompetence, sexual immorality, or a loathsome disease
libel per quod
a facially innocent statement becomes defamatory when it is combined with unstated
facts know to the audience
libel by implication
although every fact in a publication may be true, the arrangement of the facts or the
omission of some facts creates a false and defamatory impression
identification
a libel plaintiff must prove that the allegedly defamatory statement is "of and
concerning" him or her; requires showing that the recipient of the statement correctly or
mistakenly (but reasonably) understood the statement to refer to the plaintiff
publication
communication, intentionally or negligently, to someone other than the person defamed;
one who republishes defamatory facts is liable
1996 telecommunications act (communications decency act)
