freedom of expression final exam study guide

Which of the following statements best describes formal equality?

The system and procedures of law apply equally to everyone.

Which of the following cases could be heard in federal court?

- A Missouri newspaper challenges a state statute, claiming that it violates the newspaper's rights under the First Amendment of the U.S. Constitution.

- A university student challenges a new federal law that will increase interest rates on student loans.

- A business in Iowa sues a former employee now living in Missouri for breaching a contract.

The difference between administrative law and statutory law is that:

Administrative law is rule-making by governmental agencies, while statutory law is written by legislatures.

What is the main source of law in countries with legal systems based on Civil Law?

Statutes and codes

Criminal law cases involve defendants' cases against

the state

The appellate courts immediately below the U.S. Supreme Court are often referred to as

circuit courts

In Ali v. Playgirl, Muhammad Ali relied on the law of equity to get what type of relief against Playgirl magazine?

injunctive relief

Which of the following is the best definition for the doctrine of stare decisis?

Past court decisions should stand, allowing precedent to comprise the law of the land

The U.S. Supreme Court hears about what proportion of cases appealed to it from lower courts?

Less than 1%

In the United States, lawsuits between two private parties is the purview of

civil law

Which of the following best describes the legacy of the collection of Supreme Court cases from 1919?

The Supreme Court heard cases involving First Amendment challenges for the first time.

Which of the following statements best describes Marketplace of Ideas Theory?

The purpose of exceptional protections for freedom of expression is to help society find truth through rational deliberation and processing of all ideas.

Which of the following statements best reflects individual autonomy theory of the First Amendment?

What matters most is that protecting freedom of expression allows individuals to maximize their human potential, regardless of any social effect freedom of expression has.

Which of the following statements best describes Self-Governance Theory?

The ultimate value of the First Amendment is that every idea worth hearing should be heard and public participation in expression should be maximized.

The KKK holds a rally in a public park in your hometown. According to reasoning from traditional First Amendment theory, why does the First Amendment protect their right to do so?

1. The only way for society to collectively decide what is true is to allow all kinds of speech to compete in a marketplace of ideas.

2. Allowing such hate groups to speak in public ensures that these groups don't manifest their hate through planning violent acts in secret.

3. Allowing such hate groups to speak in public means that authorities can monitor their activities.

Which of the following statements best describes Tolerance Theory?

The purpose of exceptional protections for freedom of expression is to push society's boundary on accepting the value of extreme speech in public discourse.

According to the Bunker reading, which of the following is a criticism of marketplace of ideas theory?

1. It elevates communal values over individual ones

2. The theory depends upon human reason, and human reason can be flawed

3. Truth is something that only happens in the long run, and in the long run "we're all dead"

Which of the following is one of K-Sue Park's arguments in her New York Times column?

Marketplace of ideas theory assumes there's an even playing field for speech

According to the Bunker reading, what is the main focus of "Dissent Theory" of the First Amendment?

The most important speakers the First Amendment is designed to protect are those with dissenting opinions (those that go against the mainstream)

According to John Stuart Mill's philosophy (which became the foundation for Marketplace of Ideas Theory), using the law to punish ideas you don't like signifies that

your ideas are fallible

Which of the following elements must be proven for a law to survive strict scrutiny?

1. The government has a significant interest in upholding the law.

2. The law must directly lead to the fulfillment of the government's interest.

3. The law impinges upon no more speech than is absolutely necessary.

What is the difference between a traditional public forum and a designated public forum

1. Government cannot take away the right for all to use a traditional public forum, but it can decide to no longer allow all speakers to use a designated public forum.

2. Traditional public forums tend to include public streets and parks, while designated public forums tend to include public university buildings and municipal auditoriums.

Which of the following is an example of viewpoint discrimination?

A Columbia ordinance prohibiting pro-KU speech but allowing pro-Mizzou speech.

Which of the following is an example of a time, place or manner regulation on speech?

Criminalizing setting any fires within city limits, which includes flag burning.

Which statement best reflects the difference between the Supreme Court's decisions in Marsh v. Alabama and Pruneyard Shopping Center v. Robins?

Private property can be considered a public forum only if it is functionally equivalent to public property.

In the 2019 case Knight v. Trump, the U.S. Court of Appeals for the Second Circuit held that

the social media accounts of public officials are designated public forums subject to First Amendment scrutiny

Which of the following is an accurate assessment of the Clark v. Community for Creative Non-Violence case?

1. Sometimes content-neutral laws, though constitutional, can disproportionately impinge upon certain messages because the manner of speaking is closely linked to the message

2. The regulation against camping overnight on the National Mall was a constitutional time, place and manner regulation

3. What government officials think about a particular message doesn't matter; what matters is the proper application of content-neutral laws.

According to Hurley v. Irish-American GLB Group of Boston

government cannot force groups to adopt certain messages

In Texas v. Johnson, the Texas flag-desecration statute was

struck down, because it amounted to viewpoint discrimination

According to the First Amendment Encyclopedia reading on "Compelling State Interests," what are the three levels of constitutional review?

Rational basis review, intermediate scrutiny, strict scrutiny

Which of the following examples most resembles a heckler's veto in First Amendment law

A hostile audience engages in violence to protest a controversial speaker, leading police to arrest the speaker to quell the violence.

Which of the following statements is TRUE about the nature of incitement?

Speech must lead to imminent lawless action to be considered unprotected incitement.

Which of the following is a TRUE statement about true threats doctrine?

The true threats doctrine is a "quagmire" of balancing tests that vary from circuit to circuit.

Fighting words are

constitutionally unprotected speech said in someone's face with the intent to provoke a violent response

Robert Watts' threat against the president in his Supreme Court case were

constitutionally protected rhetorical hyperbole

In a 2015 case, the U.S. Supreme Court failed to address what key legal question related to the true threats doctrine?

Whether the intent of the speaker should be considered

Cantwell v. Connencticut, Terminiello v. Chicago, and Bible Believers v. Wayne County are all cases involving

the heckler's veto

In Hess v. Indiana, the U.S. Supreme Court determined that a command to "take the f**king streets later"

did not amount to incitement because it didn't meet the imminent lawless action standard

In American Coalition of Life Activists v. Planned Parenthood of Columbia/Willamette, the U.S. Court of Appeals for the Ninth Circuit held that online "wanted posters" calling for causing physical harm to doctors who perform abortions amounted to

unprotected true threats

Punishing speech for incitement is a post hoc sanction on speech.

true

Which of the following statements most accurately describes the current state of free speech law in public high schools:

1. Schools can punish students for speech that occurs on school grounds that causes a substantial disruption to the learning environment.

2. Schools can punish students for speech that the students post to social media outside of school if that speech either causes a substantial disruption to the learning environment or poses a threat to students.

3. Schools can punish students for holding up inane signs vaguely advocating illegal drug use at school-sponsored events.

Which of the following statements most accurately describes the holding from the "I Heart Boobies" case?

The students' bracelets amounted to neither a substantial disruption, nor prohibited sexual innuendo.

Which of the following is a TRUE statement about First Amendment doctrine involving public universities?

1. The Supreme Court has never established whether the Tinker test could apply to public universities.

2. Most public university facilities—such as quads or lecture halls—are designated public forums, although some spaces (such as Speakers Circle at MU) have been reserved as traditional public forums.

3. A public university must remain neutral in who it allows to use its designated public forums, but it can publicly take whatever position it wants to in response to a controversial speaker.

MU's free speech policy forbids students from "chalking" offensive messages.

false

According to MU's free speech policies and Missouri state law, outdoor spaces on MU's campus are considered

traditional public forums

According to the 1988 U.S. Supreme Court case Hazelwood v. Kuhlmeier, administrators at public high schools can engage in prior review of students' newspapers on the grounds of

legitimate pedagogical (teaching) concerns

State statutes that seek to give student journalists more freedom than the precedent set by Hazelwood are referred to as what?

new voices laws

In Papish v. Board of Curators of the University of Missouri, the U.S. Supreme Court held that

public universities are not enclaves immune from the sweep of the First Amendment

In Papish v. Board of Curators of the University of Missouri, Barbara Papish was distributing her newspaper

memorial union

Which Supreme Court Justices dissented in the Papish case?

Chief Justice Burger, Justice Rehnquist and Justice Blackmun

Which of the following is a FALSE statement about indecency law?

1. Indecency law applies to print.

2. Indecency law applies to the Internet.

Which of the following uses of indecent speech would most likely run afoul of the FCC's indecency rules?

Repeated and pandering uses of the F-word on a broadcast TV show at 6pm

Which of the following is NOT part of the Miller test?

Obscenity must be utterly without social value

According to the First Amendment Encyclopedia, the U.S. Supreme Court has applied the obscenity standard to violent expression.

false

According to the U.S. Supreme Court's holding in FCC v. Fox, the FCC's order on fleeting expletives was

unconstitutional, because it violated the Fifth Amendment due to the regulation being too vague

FCC v. Pacifica involved a foul-mouthed monologue by which comedian?

george carlin

According to the U.S. Supreme Court's holding in Stanley v. Georgia

individuals have a First Amendment right to possess obscenity

According to Mathews v. U.S.

journalists do not have a First Amendment right to possess child pornography

Which of the following is a rationale for the constitutionality of the FCC's indecency regulations?

1. The scarcity of the electromagnetic spectrum on which broadcasts occur

2. Broadcast is a uniquely pervasive medium

3. Indecency on broadcast has the opportunity to harm children

Obscene and indecent speech have which of the following in common?

They both involve sexual and scatological functions

Which of the following is an outcome of the Citizens United v. FEC case?

1. Corporations and unions can spend their treasury funds to advocate voting for or against candidates for public office.

2. Corporations have devoted more money to Super PACs, 501(c) non-profit groups, and LLCs to pay for political ads.

3. Corporations must disclose to the FEC that they have given money to Super PACs.

Citizens United v. FEC and FCC v. Pacifica have which of the following in common?

administrative law

According to the "More Perfect" podcast, the leaders of Citizen United were also behind which notable political ad from the 1980s?

The "Willy Horton" ad criticizing Michael Dukakis' record on crime

The federal law at issue in the Citizens United case was

The McCain-Feingold Bipartisan Campaign Reform Act

Words like "vote for" or "vote against" signal when political speech involves

electioneering

According to the "More Perfect" podcast, the "swing vote" on the Supreme Court when Citizens United was decided was

justice kennedy

According to the "More Perfect" podcast, which famous book has influenced Justice Kennedy's views on liberty?

1984

According to the Silha Bulletin's report on the Citizens United decision, a majority of the U.S. Supreme Court upheld which part of the BCRA despite striking down the rest of the law?

Disclaimer and disclosure requirements re: financiers of political ads

According to Ballotpedia's History of Campaign Finance Regulation, the first Political Action Committee (or PAC) was formed in 1943 by which organization?

congress of industrial organization

First Amendment

freedom of speech, religion, assembly, and the right to petition

U.S. legal system

The English common law system that relies heavily on court precedent (few cases make it to the Supreme Court)

Precedent

An action or decision that later serves as an example (most are SCOTUS cases)

Three levels of scrutiny

rational basis review, Intermediate, and strict

Rational Basis Review

has to satisfy some government interest

Intermediate Scrutiny

has to have important interests and relate to it

strict scrutiny

has to include a crucial government interest and perfectly serve that

mechanism in place to regulate expression

constitutionality tests

clear and present danger test

To determine if speech poses an immediate threat.- Speech can be restricted if it creates a clear and present danger of causing significant harm (e.g., inciting violence or illegal acts).

imminent lawless action

Modern version of the "clear and present danger" test. - Speech advocating illegal activity is protected unless it is intended to incite imminent lawless action and is likely to produce such action.

miller test (obsentity)

• Purpose: To determine if speech is obscene and therefore unprotected.

• Explanation: Obscenity is not protected if:

  1. It appeals to prurient interest (community standards),

  2. Depicts sexual conduct offensively,

  3. Lacks serious literary, artistic, political, or scientific value.

o’brian test

• Purpose: To evaluate laws that restrict symbolic (nonverbal) speech.

• Explanation: Government can restrict symbolic speech if:

  1. The law is within constitutional power,

  2. It furthers an important government interest,

  3. The interest is unrelated to suppressing expression,

  4. The restriction is no greater than necessary.

time, place, and manner restrictions

• Purpose: Regulate how speech is expressed, not what is said.

• Explanation: Restrictions are constitutional if they are:

  1. Content-neutral,

  2. Narrowly tailored to serve a significant government interest,

  3. Leave open alternative channels for expression.

symbolic speech

gestures, flags, clothing, and other forms of expression that convey a message

hate speech

(protected) specific language attacking someone based on race, ethnicity, religion, sexual orientation, etc.

unprotected speech

threats of violence (fighting words and true threats), harmful speech, obscene or vulgar speech, child pornography, and threats to the president

public forum

government owned property that is open to the public for expressive activities - traditional, limited, non-public

traditional public forum

restricted ability to suppress time, place, and manner

limited public forum

dependent on time, place, and manner

non-public forum

not really public (ex. prisions)

Hecklers Veto

speaker is silenced by disruptive or hostile audience reactions (violates speaker and audiences rights)

incitement

speech that is meant to provoke or encourage illegal actions (not protected)

Schenck v. U.S.

speech can be restricted if it presents clear and present danger

Gitlow v. New York

tendency to spark violent action (incites illegal action)

Whitney v. California

states can punish speech that threatens public order

Dennis v. U.S.

threats to overthrow the government are punishable

Brandenburg v. Ohio

Speech is protected unless it incites imminent lawless action

Brandenburg test

directed at producing imminent lawless action and is likely to produce such action

fighting words

not protected - Words that by their very utterance are likely to incite immediate violence or an immediate breach of the peace.

true threats

not protected - Statements in which the speaker seriously expresses an intent to commit violence or cause harm to a specific person or group.

Rav v. St. Paul

overly broad content - based restriction