First Amendment freedoms: the free-speech clause - Next Generation Bar Exam

1. What test governs content-neutral time, place, and manner restrictions in a public forum?

   Narrow tailoring to a significant government interest, leaving open ample alternative channels. Under Ward v. Rock Against Racism, the restriction need not be the least restrictive means.

2. What standard governs speech restrictions in a nonpublic forum?

   The restriction must be reasonable and viewpoint neutral. Examples of nonpublic forums include military bases and the interior of government offices.

3. What three elements define obscenity under Miller v. California?

   Appeal to the prurient interest, patently offensive depiction of defined sexual conduct, and lack of serious value. Prurient interest and patent offensiveness use community standards; serious value uses a national reasonable-person standard.

4. Under United States v. O'Brien, when may the government regulate conduct that has an expressive element?

   When it furthers an important interest unrelated to suppressing expression, with an incidental restriction no greater than essential. The regulation must also fall within the government's constitutional power.

5. Under Central Hudson, what test governs regulation of commercial speech that is lawful and not misleading?

   A substantial interest, directly advanced by the regulation, which is not more extensive than necessary. False, misleading, or unlawful commercial speech is not protected.

6. When is a law unconstitutionally overbroad?

   When it prohibits a substantial amount of protected speech relative to its legitimate sweep. A party may raise overbreadth even if its own speech is unprotected.

7. Under Counterman v. Colorado, what mental state must the government prove to punish a true threat?

   At least recklessness as to the threatening nature of the statements. The speaker must have consciously disregarded a substantial risk that the words would be viewed as threatening violence.

8. What limits does the Free Speech Clause place on the government's own speech?

   The clause does not restrict it; the government may choose the content of its own messages. Under the government speech doctrine, the Free Speech Clause restricts regulation of private speech, not the government's own expression.

9. What standard of review applies to content-based regulation of speech?

   Strict scrutiny. Under Reed v. Town of Gilbert, a law is content based if it applies because of the topic, idea, or message expressed.

10. In which forums is viewpoint discrimination permitted?

    Viewpoint discrimination is prohibited in every forum. Even in limited and nonpublic forums, the government may not favor one side of a debate.

11. Under Brandenburg v. Ohio, when may the government punish advocacy of unlawful action?

    When it is directed to inciting imminent lawless action and is likely to produce such action. Abstract advocacy of violence or lawbreaking is protected.

12. When is a speech regulation void for vagueness?

    When persons of ordinary intelligence must guess at its meaning and differ as to its application. Vague laws chill protected speech and invite arbitrary enforcement.

13. A town's sign code imposes stricter size and time limits on signs directing people to events than on political or ideological signs. What standard of review applies?

    Strict scrutiny, because the code is content based. Treating signs differently based on their message is content discrimination, as in Reed v. Town of Gilbert.

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