JOMC 486 MIDTERM STUDY GUIDE
Levels of Speech/Expression - Answers - -Pure speech (public, writing a letter,
publishing a newspaper or book)
-Intermediate speech (symbolic, advertising, broadcasting)
-Unprotected speech (fighting words, libel, obscenity, threats, fraud)
United States v. O'Brien - Answers - court case that had to deal with the burning of draft
cards; said he can protest the Vietnam war but he can't burn the draft card
Outcome:charged with destroying draft cards, o'brien test came out of it
Content-Neutral, Content-Based Dichotomy - Answers - -Examines regulation not
expression
-Content-based regulations subjected to strict scrutiny
-Content-neutral regulations judged by a less demanding standard
-Shortcomings: content-neutral regulations could undermine 1st amendment, may be
hostile to newsgathering
Brandenburg v. Ohio - Answers - -Strict scrutiny and seditious speech
-The 1st amendment does not allow states "to forbid or proscribe the advocacy of the
use of force or law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such action"
-Brandenburg conviction overturned because his actions did not lead to violence
-Video evidence of him speaking of the necessity of criminal behavior
-Evidence of intent was too vague to condemn (use of the word "might")
Ohio Criminal Syndicalism Statute - Answers - -Law against inciting or advocating for
violence
-Applied in Brandenburg v. Ohio
Brandenburg Test - Answers - -The state may punish speech that may encourage
criminal behavior
-Intent to incite violence or unlawful activity
-The imminence of violence or unlawful activity
-Likelihood of violence or unlawful activity
Texas v. Johnson - Answers - -Protestor burned American flag during GOP convention
in Dallas
-Arrested and prosecuted under a state law prohibiting flag destruction
-His conviction was reversed by Texas appeals court but the case went to Supreme
Court
-Desecration of a venerated object was a criminal offense in Texas
-The flag was stolen by another protestor but Johnson was not prosecuted for this
-The burning was a direct political statement so it violated the 1st amendment
, -Is the regulation within the Constitutional power of the government? Yes, to a certain
extent.
-Does the government have a substantial interest under these regulations? Preventing
breaches of the peace and burning the flag goes against national unity because of
symbolism.
-Prosecution of intent limits freedom of expression
-This regulation is a content-based regulation of expression so it is unconstitutional
-O'Brien test only applies in content-neutral situations so they must apply strict scrutiny
Public Forums - Answers - -Traditional: parks, sidewalks and other places that have
traditionally been used for expressive purposes
-Designated: places set aside by government for public expression
-Nonpublic: government places used for expression but not generally open to the public
Regulation of Speech in Public Forums - Answers - Content-neutral time, place or
manner restrictions that are narrowly tailored to serve a significant governmental
interest and leave open ample alternative channels of communication...are
constitutional
Prior Restraints - Answers - A judicial order in an administrative system stops speech
before it occurs. For example the pentagon papers.
Elements of a Libel Suit - Answers - -Defamation
-Identification
-Publication
-Falsity
-Injury
-Fault (most important)
Defamation - Answers - Communication tends to so harm the reputation of another as
to lower him/her in the estimation of the community or deter third persons from
associating or dealing with him/her
Defamation Per Se - Answers - Words are defamatory on their face (examples are
statements implying criminal conduct, professional incompetence, sexual immorality,
loathsome disease)
Factual Nature - Answers - A statement a reasonable person might understand as
stating actual facts about the plaintiff
Defamation Per Quod - Answers - -Facially innocent statement becomes defamatory
when it is combined with unstated facts known to the audience
-Distinction between libel per se and libel per quod is not as important as it once was
-If statements are defamatory per quod, the plaintiff must prove special damages (prove
that you have lost money)
Levels of Speech/Expression - Answers - -Pure speech (public, writing a letter,
publishing a newspaper or book)
-Intermediate speech (symbolic, advertising, broadcasting)
-Unprotected speech (fighting words, libel, obscenity, threats, fraud)
United States v. O'Brien - Answers - court case that had to deal with the burning of draft
cards; said he can protest the Vietnam war but he can't burn the draft card
Outcome:charged with destroying draft cards, o'brien test came out of it
Content-Neutral, Content-Based Dichotomy - Answers - -Examines regulation not
expression
-Content-based regulations subjected to strict scrutiny
-Content-neutral regulations judged by a less demanding standard
-Shortcomings: content-neutral regulations could undermine 1st amendment, may be
hostile to newsgathering
Brandenburg v. Ohio - Answers - -Strict scrutiny and seditious speech
-The 1st amendment does not allow states "to forbid or proscribe the advocacy of the
use of force or law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such action"
-Brandenburg conviction overturned because his actions did not lead to violence
-Video evidence of him speaking of the necessity of criminal behavior
-Evidence of intent was too vague to condemn (use of the word "might")
Ohio Criminal Syndicalism Statute - Answers - -Law against inciting or advocating for
violence
-Applied in Brandenburg v. Ohio
Brandenburg Test - Answers - -The state may punish speech that may encourage
criminal behavior
-Intent to incite violence or unlawful activity
-The imminence of violence or unlawful activity
-Likelihood of violence or unlawful activity
Texas v. Johnson - Answers - -Protestor burned American flag during GOP convention
in Dallas
-Arrested and prosecuted under a state law prohibiting flag destruction
-His conviction was reversed by Texas appeals court but the case went to Supreme
Court
-Desecration of a venerated object was a criminal offense in Texas
-The flag was stolen by another protestor but Johnson was not prosecuted for this
-The burning was a direct political statement so it violated the 1st amendment
, -Is the regulation within the Constitutional power of the government? Yes, to a certain
extent.
-Does the government have a substantial interest under these regulations? Preventing
breaches of the peace and burning the flag goes against national unity because of
symbolism.
-Prosecution of intent limits freedom of expression
-This regulation is a content-based regulation of expression so it is unconstitutional
-O'Brien test only applies in content-neutral situations so they must apply strict scrutiny
Public Forums - Answers - -Traditional: parks, sidewalks and other places that have
traditionally been used for expressive purposes
-Designated: places set aside by government for public expression
-Nonpublic: government places used for expression but not generally open to the public
Regulation of Speech in Public Forums - Answers - Content-neutral time, place or
manner restrictions that are narrowly tailored to serve a significant governmental
interest and leave open ample alternative channels of communication...are
constitutional
Prior Restraints - Answers - A judicial order in an administrative system stops speech
before it occurs. For example the pentagon papers.
Elements of a Libel Suit - Answers - -Defamation
-Identification
-Publication
-Falsity
-Injury
-Fault (most important)
Defamation - Answers - Communication tends to so harm the reputation of another as
to lower him/her in the estimation of the community or deter third persons from
associating or dealing with him/her
Defamation Per Se - Answers - Words are defamatory on their face (examples are
statements implying criminal conduct, professional incompetence, sexual immorality,
loathsome disease)
Factual Nature - Answers - A statement a reasonable person might understand as
stating actual facts about the plaintiff
Defamation Per Quod - Answers - -Facially innocent statement becomes defamatory
when it is combined with unstated facts known to the audience
-Distinction between libel per se and libel per quod is not as important as it once was
-If statements are defamatory per quod, the plaintiff must prove special damages (prove
that you have lost money)
