Basic First Amendment Doctrine - MEJO 340/341

Comprehensive practice flashcards covering First Amendment doctrines, case law (Alvarez, Lindke, Brandenburg, etc.), and levels of protected/unprotected speech based on lecture notes.

What are the four primary sources of law where media law is rooted?

Statute, constitutional, common law, and admin law.

Whose speech generally receives more First Amendment protection according to the lecture notes?

Adults have more $1 ext{A}$ protection than elementary school students.

How does the First Amendment 'map' vary across speech types?

It is a continuum where speech on the left (like political speech) has the most protection and speech on the right (like obscenity or incitement) has the least or no protection.

What level of scrutiny is applied to a Content-Based restriction on speech?

Strict scrutiny is applied.

What is Viewpoint discrimination in the context of First Amendment law?

It is a form of content-based restriction where the court views the regulation as targeting the message or the speech itself.

What level of scrutiny is applied to Content-Neutral restrictions (Time, place, manner restrictions)?

Intermediate scrutiny is applied.

What is the difference between the state interests required for Strict Scrutiny and Intermediate Scrutiny?

Strict Scrutiny requires a Compelling state interest (e.g., national security), while Intermediate Scrutiny requires a Substantial state interest (e.g., town aesthetics).

Define the First Amendment doctrine of Overbreadth.

A doctrine used by courts to determine legislation is unconstitutional because it restricts more speech than necessary.

What is the Vagueness doctrine?

A doctrine used to determine laws are unconstitutional because average persons would not know ahead of time whether their expression violates the law, leading to self-censorship.

In U.S. v. Alvarez ($2012$), what rationale did the Court use to strike down the statute?

The statute was a content-based restriction failing strict scrutiny; it was not the least restrictive means because a database of award winners could have been created (counterspeech).

What defines a 'Public Forum' and which Chapel Hill location is given as an example?

Places traditionally open for citizens to speak freely, such as streets and parks. The area outside the Post Office is a Chapel Hill example.

What is a 'Limited or Designated Public Forum'?

Places designated for certain types of speech but not generally open to the public without permission, such as a public university lecture hall or city-owned bus advertisements.

Are content-based restrictions allowed in to Non-Public Forums?

Yes, content-based restrictions are OK in Non-Public Forums like jails, military bases, or the UNC police office.

Summarize Justice Brandeis' concept of 'Counterspeech.'

The remedy for falsehoods and fallacies is 'more speech, not enforced silence,' provided there is time for discussion and education.

What is the 'Chilling Effect'?

The concept of deterring free speech and association rights because government laws or actions appear to target expression, creating uncertainty.

According to Lindke v. Freed ($2024$), when does a public official's social media activity constitute state action?

Only if the official ($1$) possessed actual authority to speak on the State’s behalf on a particular matter, and ($2$) purported to exercise that authority in the relevant post.

What was the ruling in NRA v. Vullo ($2024$)?

A $9-0$ ruling for the NRA, stating that while officials can persuade, they cannot use state power to punish or suppress disfavored speech through coercion.

What two factors define 'symbolic' speech (expressive conduct)?

An intent to express a message and a likelihood of that message being understood.

How is 'Commercial speech' defined for First Amendment protection purposes?

Speech that proposes a LAWFUL commercial transaction and is TRUTHFUL and NON-MISLEADING.

What is 'Indecency' and when does it lack First Amendment protection?

Non-obscene material depicting sexual/excretory activities. It lacks protection when broadcasted, except during 'Safe Harbor' hours ($10 ext{pm} - 6 ext{am}$).

What is Prior Restraint?

The act of restraining the press prior to publication, which is almost always unconstitutional under Near v. Minnesota ($1931$).

What are the three Near v. Minnesota exceptions to the rule against prior restraint?

($1$) Publications threatening national security in wartime, ($2$) obscene publications, and ($3$) publications threatening to incite violence or the violent overthrow of gov't.

What burden of proof does the government face in prior restraint cases according to New York Times v. US ($1971$)?

The government must demonstrate 'direct, immediate and irreparable harm' to the nation or its people.

Describe the Miller v. California ($1973$) test for Obscenity.

The work, taken as a whole, appeals to the prurient interest of the average person applying community standards and lacks serious literary, artistic, political, or scientific value.

How did Chaplinsky v. New Hampshire ($1942$) define 'Fighting Words'?

Words that 'by their very utterance inflict injury or tend to incite an immediate breach of the peace' and have a 'direct tendency to cause acts of violence' by the recipient.

What was the Supreme Court's reasoning for overturning the ordinance in R.A.V. v. St. Paul ($1991$)?

The ordinance was overbroad and viewpoint discriminatory because it prohibited views on disfavored subjects like race, color, or creed.

What is the Brandenburg v. Ohio ($1969$) test for unprotected 'Incitement'?

Speech must be 'directed to producing imminent lawless action' and be 'likely to produce or result in such lawless action.'

How does First Amendment doctrine distinguish between 'Incitement' and 'Abstract Advocacy'?

Mere abstract advocacy of future illegal conduct is protected; incitement requires an immediate and direct nexus between the speech and the advocated illegal conduct.

What defines a 'True Threat' according to Virginia v. Black ($2003$)?

Speech that 'intends to create a pervasive fear that they are a target of violence,' where actual intent to intimidate must be examined.

Contrast Objective intent and Subjective intent.

Subjective intent is what the speaker intended with their words; Objective intent is whether a reasonable person would consider the message a threat.

What standard did Counterman v. Colorado ($2023$) establish for true threats?

A recklessness standard, where a person consciously disregards a significant risk that their words might harm another.