First Amendment Midterm

Question 1

The First Amendment says: Congress shall make no law respecting an establishment of [blank_start]religion[blank_end], or prohibiting the free exercise thereof; or abridging the [blank_start]freedom of speech[blank_end], or of the [blank_start]press[blank_end]; or the right of the people [blank_start]peaceably to assemble[blank_end], and to petition the Government for a redress of grievances.

Accepted Answer

religion

Accepted Answer

freedom of speech

Accepted Answer

press

Accepted Answer

peaceably to assemble

Question 2

The character of every act depends upon the circumstances in which it is done. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a [blank_start]clear and present danger[blank_end] that they will bring about the [blank_start]substantive evils[blank_end] that Congress has a [blank_start]right to prevent[blank_end]. It is a question of proximity and degree

Accepted Answer

clear and present danger

Accepted Answer

substantive evils

Accepted Answer

right to prevent

Question 3

You can invoke the first amendment against a private actor.

Answer

true

Question 4

Gitlow v. NY established: Utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear. 
[blank_start]government could punish speech[blank_end] that threatens its basic existence because of the [blank_start]national security implications[blank_end]

Accepted Answer

government could punish speech

Accepted Answer

national security implications

Question 5

Everson v. Board of Education established: the Supreme Court ruled as constitutional a New Jersey statute allocating taxpayer funds to bus children to religious schools — because it did not breach the “wall of separation” between church and state — and held that the [blank_start]establishment clause[blank_end] of the First Amendment applied to [blank_start]state and local governments[blank_end] as well as to the [blank_start]federal government[blank_end].

Accepted Answer

establishment clause

Accepted Answer

state and local governments

Accepted Answer

federal government

Question 6

Sherbet v. Verner established: the state's eligibility restrictions for unemployment compensation imposed a significant burden on Sherbert's ability to freely exercise her faith. Furthermore, there was no [blank_start]compelling state interest[blank_end] which justified such a substantial burden on this basic First Amendment right. [blank_start]The Free Exercise Clause[blank_end] prohibits the government from setting unemployment benefits eligibility requirements such that a person cannot properly observe key religious principles.

Accepted Answer

compelling state interest

Accepted Answer

The Free Exercise Clause

Question 7

Advocacy of illegal action: unprotected speech. Words have to be [blank_start]intended[blank_end] to have [blank_start]a clear and present danger[blank_end] and also have a [blank_start]reasonably probable effect[blank_end] to carry out the intention.

Accepted Answer

intended

Accepted Answer

a clear and present danger

Accepted Answer

reasonably probable effect

Question 8

Yates v. US established: The distinction is that those [blank_start]to whom[blank_end] the advocacy is addressed [blank_start]must be urged[blank_end] to do something, now or in the future, rather than merely to believe in something

Accepted Answer

to whom

Accepted Answer

must be urged

Question 9

Schenck v. US: 
The message of the pamphlets, advocating active resistance to the war effort, constituted a “clear and present danger” to bring about “substantive evils” that Congress has a right to protect.

The Holmes Test 
"whether the words used are used in such circumstances and are of such a nature [blank_start]as to create a clear and present danger[blank_end] that they [blank_start]will bring about the substantive evils[blank_end] that Congress has a right to prevent. It is a question of proximity and degree.”

Accepted Answer

as to create a clear and present danger

Accepted Answer

will bring about the substantive evils

Question 10

Masses Publishing Co. v. Patten established:  “That such comments have a tendency to arouse emulation in others is clear enough, but that they counsel others to follow these examples is not so plain… There is not the least implied intimation in these words that others are under a duty to follow. The most that can be said is that, if others do follow, they will get the same admiration and the same approval.”

Judge Hand's Advocacy Test:
 “… to assimilate agitation, legitimate as such, with [blank_start]direct incitement to violent resistance[blank_end], is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.” In other words, one may not [blank_start]counsel or advise others[blank_end] to [blank_start]violate the law[blank_end] as it stands.

Accepted Answer

direct incitement to violent resistance

Accepted Answer

counsel or advise others

Accepted Answer

violate the law

Question 11

Sanford in Gitlow v. NY: “The State is primarily the judge of regulations required in the interest of public safety and welfare … its police statutes may only be declared unconstitutional where they [blank_start]are arbitrary or unreasonable[blank_end]

Accepted Answer

are arbitrary or unreasonable

Question 12

Whitney v. California: Brandies and Holmes concurring. □ “In order to support a finding of clear and present danger it must be shown either that [blank_start]immediate serious violence[blank_end] was to be [blank_start]expected[blank_end] or was [blank_start]advocated[blank_end]… no danger flowing from speech can be deemed clear and present , unless the incidence of the evil apprehended is so [blank_start]imminent[blank_end] that it may befall before there is [blank_start]opportunity for full discussion[blank_end]…. If there be time to avert the evil through the processes of education, the remedy to be applied is more speech, not enforced silence.”

Accepted Answer

immediate serious violence

Accepted Answer

expected

Accepted Answer

advocated

Accepted Answer

imminent

Accepted Answer

opportunity for full discussion

Question 13

Dennis v. US: The Ct. defined the “clear and present danger” test to be an examination of whether “the [blank_start]gravity of the ‘evil[blank_end],’ discounted by its [blank_start]improbability[blank_end], justifies such invasion of free speech as is [blank_start]necessary to avoid the danger[blank_end].” The speech was not protected under the FA. 
				□ Balancing free speech v. national security
Utilized [blank_start]rational/reasonable basis[blank_end] test

Accepted Answer

gravity of the ‘evil

Accepted Answer

improbability

Accepted Answer

necessary to avoid the danger

Accepted Answer

rational/reasonable basis

Question 14

Brandenburg v. Ohio: The govt. did not show that the D intended to immediately produce lawless action, and that such action was likely, but merely showed that the D advocated an ideology contrary to the govt. 
Mere [blank_start]advocacy[blank_end] is not enough to convict. 
Deviates from the clear and present danger test in that it allows for more speech – allows for more protection.
Per curiam: “a State [may not] forbid or proscribe advocacy of the use of force of or law violation except where such advocacy is [blank_start]directed to inciting or producing[blank_end] [blank_start]imminent lawless action[blank_end] and is [blank_start]likely to incite or produce such action[blank_end].” – GENERALLY CONSIDERED THE CURRENT TEST (Advocacy of Illegal Action)
In this case, probability of harm is no longer the central criterion for speech limitations.
The [blank_start]inciting language[blank_end] of the speaker (focus on “objective” words) is the major consideration.
And punishment of the harmless inciter is prevented by the Schenck-derived requirement of a likelihood of dangerous consequence. However, it is enough that [blank_start]the speech is directed[blank_end] to producing imminent lawless action and is likely to produce such action. 
The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "[blank_start]directed at inciting or producing[blank_end] imminent lawless action" and (2) it is "[blank_start]likely[blank_end] to incite or produce such action."

Accepted Answer

advocacy

Accepted Answer

directed to inciting or producing

Accepted Answer

imminent lawless action

Accepted Answer

likely to incite or produce such action

Accepted Answer

inciting language

Accepted Answer

the speech is directed

Accepted Answer

directed at inciting or producing

Accepted Answer

likely

Question 15

Under such an approach the Yates incitement-to-future-action standard would apply to [blank_start]group speech[blank_end] and the Brandenburg incitement-to-immediate-action standard would apply to the [blank_start]individual speaker[blank_end].

Accepted Answer

group speech

Accepted Answer

individual speaker

Question 16

Rational basis test
A danger [blank_start]need not[blank_end] be clear before regulation is permissible. [blank_start]Nor must it[blank_end] be present. The clear and present danger standard can thus be understood as an early and rudimentary form of heightened scrutiny

Accepted Answer

need not

Accepted Answer

Nor must it

Question 17

Dangers peculiar to war
It is only the [blank_start]present danger[blank_end] of [blank_start]immediate evil[blank_end] or an [blank_start]intent to bring it about[blank_end] that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned

Accepted Answer

present danger

Accepted Answer

immediate evil

Accepted Answer

intent to bring it about

Question 18

When [blank_start]libel[blank_end] is involved, do [blank_start]not[blank_end] need the clear and present danger test.

Accepted Answer

libel

Accepted Answer

not

Question 19

Public Officials
A defamatory statement is [blank_start]not protected[blank_end] if it is proven to be [blank_start]false[blank_end] and was made with [blank_start]actual malice[blank_end].

Persons who have not assumed a role of [blank_start]especial prominence[blank_end] in the affairs of society are not public figures unless they have [blank_start]thrust[blank_end] themselves to the forefront of [blank_start]particular public controversies[blank_end] in order to influence the resolution of the issues involved.

where a newspaper publishes [blank_start]truthful[blank_end] information which it has [blank_start]lawfully[blank_end] obtained, punishment may lawfully be imposed, if at all, only when [blank_start]narrowly tailored[blank_end] to a [blank_start]state interest[blank_end] of the [blank_start]highest order[blank_end], and that no such interest is satisfactorily served by imposing liability under section 794.03 to appellant under the facts of this case.

Accepted Answer

not protected

Accepted Answer

false

Accepted Answer

actual malice

Accepted Answer

especial prominence

Accepted Answer

thrust

Accepted Answer

particular public controversies

Accepted Answer

truthful

Accepted Answer

lawfully

Accepted Answer

narrowly tailored

Accepted Answer

state interest

Accepted Answer

highest order

Question 20

New York Times v. Sullivan:
The Ct. held that the FA protects the publication of [blank_start]all statements[blank_end], even [blank_start]false[blank_end] ones, about the conduct of [blank_start]public officials[blank_end] except when statements are made with [blank_start]actual malice[blank_end] (w/ knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.
Justice Brennan: The constitutional guarantees require … a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, w/ knowledge that it was false or w/ reckless disregard of whether it was false or not.

Accepted Answer

all statements

Accepted Answer

false

Accepted Answer

public officials

Accepted Answer

actual malice

Question 21

Gertz v. Welch: 
For private individuals, states may not impose [blank_start]strict liability[blank_end] on news media but any standard of fault lower than [blank_start]recklessness[blank_end] limits private individuals to awards for actual injury.

B/c the Petitioner was not a public figure, the state’s interest in compensating injury to his reputation required a different standard from that formulated in New York Times. The S. Ct. further held that the states could define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injuries to a private individual

States may not permit recovery of presumed or punitive damages—at least when liability is [blank_start]not based[blank_end] on a showing of [blank_start]knowledge of falsity[blank_end] or [blank_start]reckless disregard[blank_end] for the truth

Accepted Answer

strict liability

Accepted Answer

recklessness

Accepted Answer

not based

Accepted Answer

knowledge of falsity

Accepted Answer

reckless disregard

Question 22

Private Citizens: 
Generally, protected by the first amendment. 
Exception: 
				1) A defamatory false statement involving a private citizen is not protected by the first amendment if [blank_start]it[blank_end] [blank_start]concerns a public interest[blank_end] (private citizen + defamatory statement escapes 1st amendment protections IF [blank_start]it is of public concern[blank_end])

Accepted Answer

concern a public interest

Accepted Answer

it is not of public concern

Accepted Answer

it does not

Question 23

Beauharnais v. Illinois:
				1) Justice Frankfurter: “If an utterance directed at an individual may be the object of [blank_start]criminal sanctions[blank_end], we cannot deny to a State power to punish the same utterance directed at a defined group. . . [blank_start]Libelous[blank_end] utterances not being w/in the area of constitutionally protected speech, it is unnecessary . . . to consider the issues behind the phrase “clear and present danger.” 
				2) Sort of a [blank_start]reasonableness test[blank_end] (Illinois being reasonable passing this statute)

Accepted Answer

criminal sanctions

Accepted Answer

Libelous

Accepted Answer

reasonableness test

Question 24

v. Dun and Bradstreet, inc. v. Greenmoss Builders, Inc: 
				1) the Ct. focused on content, form, and context, in considering whether the D’s speech was protected by the FA. In this case, the Ct. found that the D, a private subscription service, was not reporting on an issue of public concern when it made its report regarding the P, and as such, it could not seek protection under the FA.
				2) In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages—even absent a showing of actual malice.” 
				3) Permitting recovery of presumed and punitive damages in defamation cases [blank_start]absent a showing of actual malice[blank_end] does not violate the first amendment when the defamatory statements do not involve matters of [blank_start]public concern[blank_end]

Accepted Answer

absent a showing of actual malice

Accepted Answer

public concern

Question 25

LIBEL LAWS SUMMARY
		•	Public official: have to prove [blank_start]actual malice[blank_end] for any kind of damages 
		•	Public figures: falsity and actual malice for any kind of damages
		•	Private individual but matter of public concern: (Gertz) [blank_start]First amendment protections[blank_end]
		•	State can determine actual and punitive damages 
		•	Punitive damages: first amendment prohibits these without [blank_start]a showing of actual malice[blank_end] when it involves [blank_start]public concerns[blank_end]

Accepted Answer

actual malice

Accepted Answer

First amendment protections

Accepted Answer

a showing of actual malice

Accepted Answer

public concerns

Question 26

Privacy Issues:
		a. When a state attempts the extraordinary measure of punishing [blank_start]truthful[blank_end] publication in the name of [blank_start]privacy[blank_end], it must demonstrate its commitment to advancing this interest by applying its prohibition [blank_start]evenhandedly[blank_end], to the small-time disseminator as well as the media giant

Accepted Answer

truthful

Accepted Answer

privacy

Accepted Answer

evenhandedly

Question 27

Snyder v. Phelps: 
			1) Not all speech is of first amendment importance; where matters of [blank_start]purely private significance[blank_end] are at issue, first amendment protections are less rigorous. This is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest
			2) “Speech deals w/ matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”
				1) Uses Gertz test: [blank_start]content, form, and context[blank_end]
			3) Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to [blank_start]“special protection” under the FA[blank_end].  Such speech cannot be restricted simply b/c it is upsetting or arouses contempt.

Accepted Answer

purely private significance

Accepted Answer

content, form, and context

Accepted Answer

“special protection” under the FA

Question 28

Florida Star v. B.J.F. 
			1) We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press, or even that a State may never punish publication of the name of a victim of a sexual offense.
			2) “We hold only where a newspaper publishes [blank_start]truthful[blank_end] information which it has [blank_start]lawfully[blank_end] obtained, punishment may be lawfully imposed, if at all, only when [blank_start]narrowly tailored[blank_end] to a state interest of the highest order (strict scrutiny), and that no such interest is satisfactorily served by imposing liability under (the Florida statute) under the facts of the case."

Accepted Answer

truthful

Accepted Answer

lawfully

Accepted Answer

narrowly tailored

Question 29

• [blank_start]Obscenity[blank_end] was not within the area of constitutionally protected speech or press because such utterances were no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality 
		• The determination of [blank_start]obscenity[blank_end] was whether to the [blank_start]average person[blank_end], applying contemporary community standards, the dominant theme of the material taken as a whole [blank_start]appeals to prurient interest[blank_end]

Accepted Answer

Obscenity

Accepted Answer

obscenity

Accepted Answer

average person

Accepted Answer

appeals to prurient interest

Question 30

States do have a legitimate interest in restricting commercialized obscene materials

Answer

true

Question 31

• Roth test:
			□ “Whether to the [blank_start]average[blank_end] person, applying community standards, the dominant theme of the material taken as a whole appeals to [blank_start]prurient interest[blank_end].”
			□ The dominant theme of the material taken as a whole appeals to be prurient interest in sex
			□ The material is [blank_start]patently offensive[blank_end] because it affronts [blank_start]contemporary community standards[blank_end] relating to the description or representation of [blank_start]sexual matters[blank_end]
			□ The material is utterly [blank_start]without redeeming social value[blank_end]

Accepted Answer

average

Accepted Answer

prurient interest

Accepted Answer

patently offensive

Accepted Answer

contemporary community standards

Accepted Answer

sexual matters

Accepted Answer

without redeeming social value

Question 32

Stanley v. Georgia 
First Amendment protects the possession of obscene material [blank_start]in the home[blank_end]

Accepted Answer

in the home

Question 33

• Paris Adult Theatre v. Slaton
			□ C.J. Burger
				□ “We categorically disapprove the theory (that) obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only (and) …”
				□ “We hold that there are [blank_start]legitimate state interests[blank_end] at stake in stemming the tide of [blank_start]commercialized obscenity[blank_end]. These include: 
					® The interest of the public in the quality of life and the total community environment,
					® The tone of commerce in the great city centers, and, possibly, 
					® The public safety itself.”

Accepted Answer

legitimate state interests

Accepted Answer

commercialized obscenity

Question 34

Miller v. California
				(a) whether the average person, applying contemporary community standards, would find that work, taken as a whole, appeals to [blank_start]prurient interest[blank_end];
				(b) whether the work depicts or describes, in a patently offensive way, sexual conduct [blank_start]specifically described[blank_end] by the applicable law; and 
				(c) whether the work, taken as a whole, [blank_start]lacks serious[blank_end] literary, artistic, political, or scientific value.

Accepted Answer

prurient interest

Accepted Answer

specifically described

Accepted Answer

lacks serious

Question 35

no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe [blank_start]patently offensive[blank_end] hard core sexual conduct [blank_start]specifically defined[blank_end] by the regulating state law

Accepted Answer

patently offensive

Accepted Answer

specifically defined

Question 36

Offensive Words: 
test is what men of common intelligence would understand would be words likely to [blank_start]cause an average addressee to fight[blank_end]

Accepted Answer

cause an average addressee to fight

Question 37

When clear and present danger of riot, disorder, interference with traffic upon the public street or other immediate threat to public safety, peace, or order, the power to regulate is obvious

Answer

true

Question 38

Speaker caused a [blank_start]direct harm[blank_end] to their target and could be construed to advocate an [blank_start]immediate breach of the peace[blank_end]. Thus, they lacked the social value of disseminating ideas to the public that lay behind the rights granted by the First Amendment. A state can use its police power, the Court reasoned, to curb their expression in the interests of maintaining order and morality.

Accepted Answer

direct harm

Accepted Answer

immediate breach of the peace

Question 39

Chaplinsky v. New Hampshire
Held: The test for fighting words is “what men of common intelligence would understand and would be words likely to [blank_start]cause an average addressee to fight.[blank_end]” In the Ct.’s view, the epithets slung against the officers were likely to provoke an average man to fight and breach the peace. The FA does not protect against such fighting words.

Accepted Answer

cause an average addressee to fight.

Question 40

Fighting words: 
those which by their very utterance [blank_start]inflict injury[blank_end] or tend to incite an [blank_start]immediate breach of peace[blank_end] are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Accepted Answer

inflict injury

Accepted Answer

immediate breach of peace

Question 41

Terminiello v. Chicago
speech could be restricted only in the event that it was "likely to produce [blank_start]a clear and present danger[blank_end] of a serious substantive evil that rises far above [blank_start]public inconvenience[blank_end], annoyance, or [blank_start]unrest[blank_end]

Held: The Ct. held that the "breach of the peace" ordinance unconstitutionally infringed upon the freedom of speech. Noting that "[t]he vitality of civil and political institutions in our society depends on free discussion," the Ct. held that speech could be restricted only in the event that it was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Douglas wrote, "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

Accepted Answer

a clear and present danger

Accepted Answer

public inconvenience

Accepted Answer

unrest

Question 42

Feiner v.  NY
a speaker cannot be arrested for the [blank_start]content[blank_end] of his speech.
Held: A breach of the peace was likely to occur if the police did not intervene, so the conviction could stand. The dissent advocates that the police should not intervene unless the speaker is in danger and there is no way for the police to protect the speaker (more modern approach).

Accepted Answer

content

Question 43

A criminal statute is unconstitutional if it punishes [blank_start]all public use[blank_end] of profanity without reference to details such as the [blank_start]nature of the location[blank_end] and the [blank_start]audience[blank_end]

Accepted Answer

all public use

Accepted Answer

nature of the location

Accepted Answer

audience

Question 44

Cohen v. California: 
The phrase was [blank_start]not directed at anyone[blank_end] in particular, and those offended could avert their gaze from the jacket. There was [blank_start]no showing that a breach[blank_end] of the peace was even contemplated, and thus, the words were not fighting words.
				□ Not an obscenity case b/c it’s not erotic; not a fighting words case b/c it was not directed at a specific person
this wasn’t speech, it is [blank_start]conduct[blank_end]; doesn’t have any first amendment implications.
 
Harlan: “Words are often chosen as much for their emotive as their cognitive force. Absent a more [blank_start]particularized and compelling reason[blank_end] for its actions, the State may not, consistency w/ the First and Fourteenth Amendments, make the simple public display here involved of this single 4-letter word a criminal offense.”

Accepted Answer

not directed at anyone

Accepted Answer

no showing that a breach

Accepted Answer

conduct

Accepted Answer

particularized and compelling reason

Question 45

New York v. Ferber
		a. Held: Depictions of [blank_start]child pornography[blank_end] are not protected by the FA, regardless of whether they meet the Miller test. In the Ct.’s first examination of a statute specifically targeted against child pornography, it found that the state's interest in preventing [blank_start]sexual exploitation of minors[blank_end] was a compelling "govt. objective of surpassing importance." The law was [blank_start]carefully drawn[blank_end] to protect children from the mental, physical, and sexual abuse associated w/ pornography while not violating the FA. 
			1) Pornography showing [blank_start]minors[blank_end] can be proscribed whether or not the images are obscene under the Miller test.
			2) Rationale: the state has an interest in protecting the children exploited by the production process.

Accepted Answer

child pornography

Accepted Answer

sexual exploitation of minors

Accepted Answer

carefully drawn

Accepted Answer

minors

Question 46

Ashcroft v. Free Speech Coalition
		a. Struck down two overbroad provisions (dealing w/ computer-generated child pornography) of the CPPA of 1996 b/c the [blank_start]mere tendency[blank_end] of speech to encourage unlawful acts is not sufficient reason for banning it and the Govt. may not suppress [blank_start]lawful speech[blank_end] as the means to suppress unlawful speech. 
			1) How does court respond that virtual child pornography may lead to abuse?
				1) Would whet the appetite of pedophiles  more speculation than anything 
				2) “The [blank_start]mere tendency[blank_end] of speech to encourage unlawful acts is not a sufficient reason for banning it.”
			2) [blank_start]Virtual child pornography[blank_end] is not among categories that have been unprotected historically
The first amendment does not protect the panderer

Accepted Answer

mere tendency

Accepted Answer

lawful speech

Accepted Answer

mere tendency

Accepted Answer

Virtual child pornography

Question 47

C. US v. Stevens
		a. The Supreme Court held that 18 U.S.C. § 48 is [blank_start]substantially overbroad[blank_end], and therefore invalid under the First Amendment. With Chief Justice John G. Roberts writing for the majority, the Court reasoned that depictions of [blank_start]animal cruelty[blank_end] are not categorically unprotected by the First Amendment. The Court further reasoned that because a "substantial number" of § 48's applications are unconstitutional, the law is overbroad and, thus, invalid.
		b. Held: Exceptions are based in history and traditions, not on a cost benefit analysis. The statute was overbroad in that it could affect [blank_start]traditionally protected[blank_end] forms of speech (e.g., depictions of hunting animals); the valid concern in targeting “crush videos” (i.e., videos of animals being crushed by being stepped on) did not salvage the statute.
			1) NOT included in areas of protected speech 
			2) Considered the statute to be substantially overbroad
				1) Some could have value

Accepted Answer

substantially overbroad

Accepted Answer

animal cruelty

Accepted Answer

traditionally protected

Question 48

B. Brown v. Entertainment Merchants Ass'n
		a. Does the First Amendment bar a state from restricting the sale of [blank_start]violent video games to minors[blank_end]?
		b. Yes. The Supreme Court affirmed the lower court order in an opinion by Justice Antonin Scalia. "Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection."
		c. Held: The S. Ct. affirmed the lower ct. order in an opinion by Scalia. "Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer FA protection." 
		d. [blank_start]Content based[blank_end] (statute lays out the content that is prescribed here) 
			1) If law is aimed at prohibiting certain content from being expressed, what level of scrutiny?
				1) [blank_start]Strict[blank_end] scrutiny
				2) Thought it was under-inclusive

Accepted Answer

violent video games to minors

Accepted Answer

Content based

Accepted Answer

Strict

Question 49

B. US v. Alvarez
		a. [blank_start]Content-based restrictions[blank_end] on speech are subject to [blank_start]strict scrutiny[blank_end] and are almost always [blank_start]invalid[blank_end], except in rare and extreme circumstances. While categories of speech, such as defamation and true threats, present a grave and imminent threat, false statements alone do not present such a threat. Congress drafted the Stolen Valor Act too broadly, attempting to limit speech that could cause no harm. Criminal punishment for such speech is improper.
		b. Held: Kennedy, writing for a 6-3 majority, affirmed the Ct. of App. [blank_start]Content-based restrictions[blank_end] on speech are subject to [blank_start]strict scrutiny[blank_end] and are almost always invalid, except in rare and extreme circumstances. While categories of speech, such as defamation and true threats, present a grave and imminent threat, false statements alone do not present such a threat. Congress drafted the Stolen Valor Act too broadly, attempting to limit speech that could cause no harm. Criminal punishment for such speech is improper.
Kennedy: “In light of the substantial and expansive threats to free expression posed by content-based restrictions, this Ct. has rejected as ‘startling and dangerous’ a ‘free-floating’ test for FA based on an ad hoc balancing of relative social costs and benefits. Instead, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories of expression long familiar w/ the bar.”

Accepted Answer

Content-based restrictions

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strict scrutiny

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invalid

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Content-based restrictions

Accepted Answer

strict scrutiny

Question 50

Emotional Distress: 
	A. Public figures and public officials offended by a [blank_start]mass media parody[blank_end] could not recover for the tort of intentional infliction of emotional distress without a showing of NY Times [blank_start]malice[blank_end]

Accepted Answer

mass media parody

Accepted Answer

malice

Question 51

Hustler Magazine v. Falwell: 
		1) may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a [blank_start]false statement of fact[blank_end] which was made with "[blank_start]actual malice[blank_end]."
		2) The Ct. found that to uphold the judgment of the lower cts. would affect all political satire. Public officials and public figures were held unable to recover in emotional distress, when they could not prove that the publication was made [blank_start]knowingly[blank_end], with [blank_start]actual malice[blank_end]. A parody, while admittedly in bad taste, is not considered malicious.
		3) Public figures and public officials may not recover for the tort of intentional infliction of emotional distress w/o showing that the publication contains a [blank_start]false statement of fact[blank_end] which was made w/ [blank_start]actual malice[blank_end]

Accepted Answer

false statement of fact

Accepted Answer

actual malice

Accepted Answer

knowingly

Accepted Answer

actual malice

Accepted Answer

false statement of fact

Accepted Answer

actual malice

Question 52

Vagueness and Overbreadth:
	A. Standing requirements are relaxed if there is a [blank_start]vagueness or overbreadth[blank_end] issue w/ a statute which makes it much easier to get into federal ct. 
		1) Don’t want someone to have to wait until there is an injury before bringing a case that challenges a statute due to one of these issue
	B. NY v. Ferber: The conduct to be prohibited must be [blank_start]adequately defined[blank_end] by the applicable state law, as written or authoritatively construed 
	C. A law should not be invalidated for overbreadth unless it reaches a [blank_start]substantial number of impermissible[blank_end] applications 
	D. a regulation of speech can sweep too broadly and prohibit [blank_start]protected[blank_end] as well as [blank_start]non-protected[blank_end] speech. A regulation of speech is unconstitutionally overbroad if it regulates a substantial amount of constitutionally protected expression.
	E. the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it and, the government may not suppress lawful speech as the means to suppress unlawful speech

Accepted Answer

vagueness or overbreadth

Accepted Answer

adequately defined

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substantial number of impermissible

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protected

Accepted Answer

non-protected

Question 53

A. United States v. O'Brien 
		1) The 7-to-1 majority, speaking through Warren, established a test to determine whether governmental regulation involving [blank_start]symbolic speech[blank_end] was justified. The formula examines whether the regulation is [blank_start]unrelated to content[blank_end] and narrowly tailored to achieve the govt.’s interest. 
		2) The power to regulate draft cards was inherently w/in the constitutional power of Congress to raise and maintain armies. The criminalization of the destruction of draft cards furthers the substantial interest of raising and maintaining efficient and functional armies by forcing citizens to preserve their draft cards. The D was convicted for his conduct of burning the card, not the message being conveyed by its destruction.
		3) established a test to determine whether governmental regulation involving [blank_start]symbolic speech[blank_end] was justified. The formula examines whether the regulation is [blank_start]unrelated to content[blank_end] and narrowly tailored to achieve the government's interest. "[W]e think it clear," wrote Warren," that a government regulation is sufficiently justified if it is within the [blank_start]constitutional power[blank_end] of the Government; if it furthers an important or [blank_start]substantial governmental interest;[blank_end] if the governmental interest is unrelated to the [blank_start]suppression of free expression;[blank_end] and if the incidental restriction on alleged First Amendment freedoms is [blank_start]not greater than is essential[blank_end] to the furtherance of that interest."
		4) O’Brien Test
			1) Elements
				1) The regulation is w/in the constitutional power of the Government (duh),
				2) The regulation furthers an important or substantial interest,
				3) The government interest is unrelated to the suppression of free expression, and,
				4) The incidental restriction on alleged FA freedoms is no greater than is essential to the furtherance of that interest.

Accepted Answer

symbolic speech

Accepted Answer

unrelated to content

Accepted Answer

symbolic speech

Accepted Answer

unrelated to content

Accepted Answer

constitutional power

Accepted Answer

substantial governmental interest;

Accepted Answer

suppression of free expression;

Accepted Answer

not greater than is essential

Question 54

Texas v. Johnson
		1) Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?
		2) The Court found that Johnson's actions fell into the category of [blank_start]expressive conduct[blank_end] and had a distinctively [blank_start]political nature[blank_end]. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
		3) The state cannot categorically preserve [blank_start]certain objects as sacred[blank_end], and criminalize their destruction w/o more.
a) Johnson’s political message was restricted b/c of the [blank_start]content of the message[blank_end] he conveyed. We therefore subject the State’s asserted interest in preserving the special symbolic character of the flag to the [blank_start]most exacting scrutiny[blank_end]. 
		5) We reject the suggestion that the Govt. lacks any state interest whatsoever in regulating the manner in which the flag may be displayed. To say that the Govt. has an interest in encouraging proper treatment of the flag, however, is not to say it may criminally punish a person for burning a flag as a means of political protest.

Accepted Answer

expressive conduct

Accepted Answer

political nature

Accepted Answer

certain objects as sacred

Accepted Answer

content of the message

Accepted Answer

most exacting scrutiny

Question 55

C. Clark v. Community for Creative Non-Violence
		1) Expression, whether oral or written or symbolized by conduct, is subject to [blank_start]reasonable time[blank_end], [blank_start]place[blank_end], or [blank_start]manner[blank_end] restrictions
			1) A message may be delivered by conduct that is intended to be [blank_start]communicative[blank_end] and that, in context, would [blank_start]reasonably be understood[blank_end] by the viewer to be communicative
			2) Restrictions of this kind are valid provided that they are justified [blank_start]w/o reference to the content[blank_end] of the regulated speech, that they are [blank_start]narrowly tailored[blank_end] to serve a significant govt’l interest, and that they [blank_start]leave open ample alternative[blank_end] channels for communication of the information.

The regulations were content-neutral as the ban was [blank_start]a general ban[blank_end], not just targeting the protest group. The interest in preserving the peace, dignity and cleanliness of the parks was substantial. The regulation, although imperfect, was specifically tailored to maintaining that interest. The protestors had ample other avenues through which their message could be conveyed, aside from staging a “sleep in” on Lafayette Park and the National Mall. The prohibition is constitutional.

Accepted Answer

reasonable time

Accepted Answer

place

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manner

Accepted Answer

communicative

Accepted Answer

reasonably be understood

Accepted Answer

w/o reference to the content

Accepted Answer

narrowly tailored

Accepted Answer

leave open ample alternative

Accepted Answer

a general ban

Question 56

D. Arcara v. Cloud Books
		1) Held: The closure remedy did not require any FA scrutiny. 
		2) Although the closure order would require respondents to move their bookselling business to another location we have not traditionally subjected every criminal and civil sanction to least restrictive means scrutiny simply b/c each particular remedy will have [blank_start]some effect[blank_end] on the FA activities of those subject to sanction
		3) Not protected by the first amendment 
		4) Even though the closure order would impose an incidental burden on the bookselling activities, the sexual activity carried on in this case manifests absolutely no element of protected expression

Accepted Answer

some effect

Question 57

Commercial Speech: 
	A. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council 
		1) Held: In a 7-to-1 opinion, the Ct. held that the FA protects willing speakers and [blank_start]willing listeners[blank_end] equally. The Ct. noted that in cases of commercial speech, such as price advertising, freedom of speech protections apply just as they would to noncommercial speech. Even speech that is sold for profit, or involves financial solicitations, is protected. The Ct. concluded that although the Virginia State Board of Pharmacy has a legitimate interest in preserving professionalism among its members, it may not do so at the expense of public knowledge about lawful competitive pricing terms.
			1) The govt. [blank_start]cannot categorically ban[blank_end] commercial speech

Accepted Answer

willing listeners

Accepted Answer

cannot categorically ban

Question 58

B. Ohralik v. Ohio State Bar Ass’n 
		1) Held: Court ruled that a state may forbid in-person solicitation of clients by lawyers for [blank_start]pecuniary gain.[blank_end] 
		2) In-person solicitation by a lawyer of remunerative employment is a business transaction in which the speech is an essential but subordinate component. While this does not remove the speech from the protection of the FA as was held in Bates and Virginia Pharmacy, it [blank_start]lowers the level[blank_end] of appropriate judicial scrutiny. The interest of the states in regulating lawyers is especially great since lawyers are essential to the primary function of administering justice.

Accepted Answer

pecuniary gain.

Accepted Answer

lowers the level

Question 59

C. Central Hudson Gas v. Public Service Comm’n 
		1)  In commercial speech cases we must determine whether the expression is protected by the FA. It at least must concern [blank_start]lawful activity[blank_end] and not be [blank_start]misleading[blank_end]. Next, we ask whether the asserted governmental interest is [blank_start]substantial[blank_end]. If both inquiries yield positive answers, we must determine whether the regulation [blank_start]directly advances[blank_end] the governmental interest asserted, and whether it is [blank_start]not more extensive[blank_end] than is necessary to serve that interest. 
		2) Central Hudson Test: 
			1) Elements
				1) The speech must concern a lawful activity and not be misleading,
				2) The government interest is substantial,
				3) The regulation directly advances the governmental interest, and,
				4) The regulation is not more extensive than is necessary to serve the interest.

Accepted Answer

lawful activity

Accepted Answer

misleading

Accepted Answer

substantial

Accepted Answer

directly advances

Accepted Answer

not more extensive

Question 60

D. Lorillard Tobacco Co. v. Reilly
		1) Held: In an opinion delivered by O'Connor, the highly fractured Ct. held that the FCLAA preempts Massachusetts' regulations governing outdoor and point-of-sale cigarette advertising and that Massachusetts' outdoor and point-of-sale advertising regulations related to smokeless tobacco and cigars violate the FA, but that the sales practices regulations related to all three tobacco products are constitutional. "We conclude that the Attorney General has failed to show that the outdoor advertising regulations for smokeless tobacco and cigars are not more extensive than necessary to advance the State's substantial interest in preventing underage tobacco use.”
		2) This court used the Central Hudson test 
			1) Only the last two steps were at issue in this case
			2) The third step was not satisfied b/c a governmental body must demonstrate that the [blank_start]harms it recites are real[blank_end] and that its restriction will [blank_start]in fact alleviate them[blank_end] to a material degree. 
			3) The court says there is not a requirement that the empirical data come accompanied by a surfeit of background information 
			4) The court has permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, or even to justify restrictions based solely on history, consensus and simple common sense 
			5) The fourth step requires a form of [blank_start]intermediate scrutiny[blank_end]

Accepted Answer

harms it recites are real

Accepted Answer

in fact alleviate them

Accepted Answer

intermediate scrutiny

First Amendment Midterm

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