Class Notes Test Four

Class Notes Test Four - Test Four: Chapter 14: The First...

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Test Four: Chapter 14: The First Amendment in a Democratic Society: Political Speech and National Security I. First Amendment- Free Speech- Constitutional Analysis a. Analytical pathway to determine what test to use; how do they analyze certain types of speech b. Misconceptions of constitutional law usually deal with speech c. Someone is being punished; appellate courts are looking to determine if the law is restricting some form of speech and is unconstitutional d. Track one- content based i. Content based: aimed at the communicative impact of the speech; aimed at the primary effects of speech; the message that the speaker wishes to communicate, and only the message (not other things going on), the government cannot regulate and involve itself; protected ii. Examples of cases where the message of the symbolic speech is being regulated and not the effects of the symbolic speech itself iii. Categories: 1. Protected strict scrutiny regulation struck down a. Anything not unprotected or commercial where the regulation is aimed at the idea being expressed b. Law subject to strict scrutiny (government usually loses- regulation is struck down and held unconstitutional) i. Regulation is struck down if the government does not show a compelling governmental interest ii. Or if the regulation is narrowly tailored 2. Unprotected categories (exceptions- outside of first amendments protection- can be constitutionally questioned) court will set standards and the government can regulate at will (no strict scrutiny because they are UNPROTECTED SPEECH ) sometimes uses the language or rational scrutiny (government will win); regulation is constitutional a. defamation (slander/insult – it is speech but it is false) b. child porn c. obscenity d. subversive action e. fighting words f. true threats (can’t live in fear, bodily harm/death – not just speech) g. framers never meant to make verbal violence protected e. Track two- content neutral i. Content neutral not aimed at the communicative impact of the speech; aimed at the secondary effects of speech ii. Not aimed at the primary impact (their message) iii. Three categories 1. Symbolic Speech (“Secondary effects”) 2. Public Forum a. Traditionally used for assembly and expression; purpose is to promote free exchange of ideas (parks and sidewalks) b. Traditionally open for all people to express their views; simply cannot be stopped c. Content neutral regulations d. A version of intermediate scrutiny e. Time, Manner Place test 3. Non-public forum
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a. Not traditionally used for expression or to promote exchange of ideas ( military bases, airports, governmental office) b. Use rational scrutiny - laws upheld c. Time, Manner Place test II. Subversive Action- Advocacy of illegal conduct a. Schenk v. US ( 1919 ) i. Unprotected category of speech subversive action ii. Laws that fall within acceptable parameters (test for subversive action) then it is unconstitutional iii. Types of speech that are so dangerous (violence, encouraging illegal activity-
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Class Notes Test Four - Test Four: Chapter 14: The First...

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