23 Jun First Amendment as Legal Rules
First Amendment as Legal Rules
• Unprotected vs. protected speech
• Categories of unprotected speech: what are the major categories of unprotected speech?
o Chaplinsky and fight words case set forth principles of unprotected categories
• Expressive conduct
o Why was flag burning considered to be “expressive conduct” and not just conduct? (Texas v. Johnson?) How was strict scrutiny applied to strike down the flag burning statute in the case?
o OBrien case – sets forth intermediate scrutiny test (“OBrien test”) – What were the facts and how did the court treat OBriens claim of expressive conduct?
• Content-based vs. content-neutral laws: What is the difference between the two? How do the courts decide if a law is content-based?
• Scrutiny: what is strict scrutiny, intermediate scrutiny and rationale basis, and when is each used?
o What are “compelling” interests and “least restrictive means”? (elements of strict scrutiny)
• Overbreadth and vagueness: What is each and what are examples of cases in which the court used these doctrines to strike down laws as unconstitutional?
• Public forums: How are they defined, and what First Amendment protections apply there?
• Time/place/manner restrictions (content-neutral laws)
o How did the court apply the time/place/manner standards in Ward v. Rock Against Racism?
• Other key terms: Chilling effect, Secondary effects, Incidental burdens, Hecklers veto, Captive audience
Obscenity
• Miller v. California: know the three prongs of the obscenity test and how they are applied
o How does the majority explain why obscenity is not protected by the First Amendment?
o Who decides whether something is obscene or not?
• Pornography – “Secondary effects” and zoning laws: how have courts upheld regulations on accessing adult content?
o Why is nude dancing “expressive conduct” that gets First Amendment protections?
o What did the 7th circuit say about the status of pornographic expression in Hudnut? Is there social value to pornography?
• Pornography and the Internet: holding and significance of Reno v. ACLU
Violent, Offensive and Harmful Speech
• Brown v. EMA
o How is violence like and dislike obscenity, from a legal standpoint?
o How does the Court apply strict scrutiny analysis in its decision?
o Why does the Court characterize the law as a content-based law?
• U.S. v. Stevens (2010)
o What was the Supreme Courts decision and rationale?
o How was the law overbroad?
• Snyder v. Phelps (2010)
o Why did the Courts strike down the jurys verdict in this case? What were the rationales? Intentional Infliction of Emotional Distress: has First Amendment limitations based on the Hustler v. Falwell precedent
o Why was it important that the speech at issue was on a matter of public concern?
Libel
• Elements of libel: defamation, identification, publication, falsity, fault, damages
• Who has the burden of proof in libel cases?
• Types of Plaintiffs and different levels of fault: Public officials, public figures (all purpose, limited), private people: what are the general standards courts use to determine status and why it matters
• Know the two basic levels of fault: Actual Malice and Negligence
o What is it? Who has to prove it? What elements are needed to prove it?
o What are some of the ways to prove actual malice?
• What standard of fault are required for what types of damages (and for what kinds of plaintiffs)?
• Defenses: truth, fair report, fair comment and criticism (What is needed to show in order to successfully invoke this defense?)
• How do courts decide whether a statement in the libel lawsuit is considered a fact vs. opinion? Why is this important? (Milkovich and Ollman cases)
• Under CA law, what legal incentive is there for news organizations to run corrections for errors?
• What is the statute of limitations for libel lawsuits in CA?
• Major Casesd (Sullivan and Gertz): Know basic facts, legal issues, and how the case changed libel la
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