Constitutional Law Analysis
FIRST AMENDMENT: - Congress shall make no law abridging the freedom of speech and press. PROTECTED OR UNPROTECTED SPEECH: UNPROTECTED: - Libel: o Public v. Private Persons: Public Persons – People who thrust themselves into the vortex of the public eye. (Sullivan): - Rule works for private persons who are dealing with public matters as well. TEST: (Sullivan) o Actual malice: Actual knowledge of falsity; or Reckless disregard of knowledge of falsity. o Actual Damages o Burden on . Private Persons – TEST: o Negligence o False statement - False or Misleading Advertisement: o Illegal or false advertising: TEST: (44 Liquormart) If the advertisement is selling something that is illegal (i.e. – drugs) or has false statements, the government can regulate the speech. - Obscenity: o TEST: (Miller) Average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest. Sexual representation in a patently offensive way. Lacks serious literary, artistic, political, and social values. - Fighting Words: o TEST: (Chaplinsky) Words by their very utterance inflict injury or tend to incite an immediate breach of peace. - Incitement: o TEST: (Brandenburg) State can make words illegal when advocacy incites or produces imminent, lawless action.
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Child Porn: o TEST: (Ferber) State has such an interest in protecting children that possession of child porn, and child porn even if it’s not “obscene” can be regulated by the government and deemed illegal.
PROTECTED: Strict Scrutiny: (Content Based) o TEST: Compelling state interest. Narrowly tailored. Least restrictive way to regulate. Cannot be overbroad. Cannot be under-inclusive. Must draw a nexus between the law and the ends. Secondary Effects: If the reasoning for the law is content based but to regulate secondary effects (Renton), then it’s an exception to the strict scrutiny test and uses the intermediate level of review to be satisfied. Note: Those who argue to strike down the statute will argue content based b/c statute has to pass a higher level of scrutiny. Time, Place and Manner Exception: (Content Neutral) o TEST: (O’Brien, Clark) – Intermediate Standard Regulation is narrowly drawn to further an important government interest. Must be within the purview of the Constitution that government to make such a law. Cannot be overbroad. Can be under inclusive. Must be a less restrictive way to regulate. The interest must be unrelated to free speech, AND; Leaves open ample alternative channels for communication of the information. Note: Content neutral test – Intermediate level of scrutiny – Those who argue to uphold statute will argue content neutral.
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