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Constitutional Law II – Freedom of Speech – Prof. Stone – Winter 2007 ISSUE-SPOTTING CHECKLIST
Always ask:
- Is this over/underprotective? Overbroad/vague?
- Is this appropriate in wartime; can we trust ourselves? Precommitment. - Balancing test (or any other standard that invites ambiguity) is it likely to be used in a non-neutral way? - Why are we bothered by certain types of speech?

- Are we impermissibly narrowing an acceptable regulation on the basis of content? Not allowed. RAV. - Is this a viewpoint based regulation? If so, it’s per se unconst’l. Is the regulation appropriately narrow/broad?

- Overbroad: regulates substantially more speech than the const’n allows to be regulated; may be unconst’l as applied to some people the statute would authorize.
o Statutes must be narrowly drawn to abridge only protected expression. - Vagueness: if a reasonable person can’t tell what speech is prohibited and what’s permitted. o Unequal interpretation
- Prior restraint: orders forbidding certain communication, issued in advance of the time that such communications are to occur.
o Bad b/c of collateral bar rule. P. 10.
Does the regulation focus on the content of the speech (the communicative impact)? - ... because the speech advocates dangerous ideas/incites unlawful conduct? o Brandenburg test, p. 5; punishable b/c of tendency to cause others to engage in unlawful acts (and LVS) only if the speech expressly incites unlawful conduct and only if the danger is likely/imminent. Narrow, very protective. - ... because the speech may threaten?

o Warnings protected, threats are not (difference: intent)
o Test: express and unlawful threats may be regulated/banned. - ... because of an effect it may have on the audience?
o Audience reaction: in the absence of extraordinary state necessrity, govn’t can’t prohibit speech b/c it’s potentially harmful unless
 CPD is generally req’d (unfavorable approach from listeners doesn’t justify regulation)  No regulation under the guise of protecting speaker/preserving pub speech  No protective suppression (Feiner: wrong)

o FWs (LVS)
 Test: language used in face-to-face interaction tending to incite violence may be regulated (under narrowly drawn public nuisance statute.
 Regulable b/c benefit is clearly outweighed by interest in social order/morality; also triggers harm. - ... because the information it discloses is private?
o Govn’t must meet a heavy burden to justify prior restraint (Sullivan)  Licensing is acceptable with prior consensual K
o Pvt citizens: tort for invasion of privacy (must be “nonnewsworthy”)  Publicly available private information not protected (Cox) - ... because it includes a false statement of fact (libel) (LVS) o Public off’ls/public figures/ltd public figures/pvt figures (and damages differences) - ... because it constitutes comm’l advertising? (LVS)

o Not as protected as other speech; but govn’t can’t regulate to protect people from content. Carey. o No greater-includes-the-lesser argument for regulation of advertising (for activities that the state could ban/prohibit) - ... because it’s sexual in nature (obscenity; LVS)

o Definition: from Miller; (a) whether avg person, applying contemporary community standards, would find that the work (as a whole) appeals to prurient interest; (b) whether work depicts/describes, in a patently offensive way, sexual conduct as specifically defined by the applicable state law; (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Must name the acts. o Analogy doesn’t extend to violence.

- ... because it’s otherwise offensive? p. 14.
o Generally not LVS if used in public, no captive audience. Cohen, Erznoznik. o Captive audience justifies narrow (channeling) regulation Pacifica. o If aff step req’d to receive a message, it can’t be regulated. Sable, Reno v. ACLU. - ... as hate speech?

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Generally lost out in the mktplace of ideas (16)...
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