pol353final - 1. Congress shall make no law abridging the...

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1. “Congress shall make no law… abridging the freedom of speech…” U.S. Constitution, Amendment 1 What are the different “content-based” categories of speech under the First Amendment? What are the appropriate tests for each? What is (are) the justification(s) for treating different types of speech differently? Content-Based Speech: 1. High Value Speech/Political Speech—highly guarded speech, restrictions based on political speech must pass strict scrutiny 2. Lower Value Speech—Some kinds of speech that isn’t as important as political speech. Protected because good from speech outweighs social harms. Still protected but not as much as political speech. Use “intermediate scrutiny” (Central Hudson Gas) a. Commercial Speech: Right to advertise something you are selling, but nothing that is illegal b. Offensive/Non-Obscene Speech: Radio broadcasts, offensive language, soft-core porn that doesn’t meet the definition of obscenity c. Expressive Speech 3. Speech with Limited Social Value: states can regulate however they want a. Libel/Slander of non-public figures b. Fighting Words c. Obscenity High Value Speech: Early post WWI, courts use a different approach than “bad tendency test”, or speech that had a tendency towards a substantive evil, and says speech needs to be more protected “Clear and Present Danger” Test o Whether words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to protect Schneck v. United States (1919)—emphasizes bad intent, and found guilty, not very different from bad tendency “Clear and Probable Danger” Test o Whether the gravity of evil, discounted by its improbability, justifies invasion of free speech as is necessary to avoid danger What is the danger? How bad is the danger? Dennis v. United States (1951) Imminent Lawless Action Test: o Establishes dominant legal test—“Constitutional guarantees of free speech and press do not permit the state to forbid or proscribe advocacy of the use of force or law violation except when such advocacy or producing imminent lawless action is likely to incite or produce such action” o Cant restrict speech solely based on advocacy—have to weigh actual threat when restricting speech o Brandenburg v. Ohio (1969)
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Middle-Tier Speech Levels: Commercial Speech: in some situations, commercial advertisement are promoting values that permit first amendment protection o Central Hudson Test: Advertising must concern lawful activity and cannot be misleading Is the asserted governmental interest substantial (intermediate) Does government regulation directly advance the substantial interest Is regulation more extensive than necessary to serve that interest? Indecent Speech:
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This note was uploaded on 01/19/2012 for the course POL 353 taught by Professor Dameron during the Fall '11 term at Miami University.

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pol353final - 1. Congress shall make no law abridging the...

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