Constitutional Law: First Amendment Deep Dive

What is the modern test for incitement to violence under the First Amendment, and which case established it?

The Brandenburg test, which requires that the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. (Brandenburg v. Ohio)

What are the three prongs of the Miller test used to determine if speech is unprotected obscenity?

(1) Appeals to the prurient interest under contemporary community standards; (2) depicts sexual conduct in a patently offensive way; (3) lacks serious literary, artistic, political, or scientific value (SLAPS).

What First Amendment doctrine was established in Chaplinsky v. New Hampshire?

The 'fighting words' doctrine, which categorizes words that by their very utterance inflict injury or tend to incite an immediate breach of the peace as unprotected speech.

How does the Supreme Court define a 'true threat' that falls outside First Amendment protection?

A true threat is a statement where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group, regardless of whether they actually intend to carry it out.

Following Counterman v. Colorado (2023), what is the required mens rea for a statement to be considered an unprotected 'true threat'?

The state must prove that the defendant acted with at least recklessness regarding the threatening nature of the communication.

What landmark case established that burning the American flag is a form of protected symbolic speech?

Texas v. Johnson (1989) established that flag burning is expressive conduct protected by the First Amendment.

Under Tinker v. Des Moines, when can public school officials restrict student speech?

School officials can restrict student speech only if they can reasonably forecast that the speech will cause a material and substantial disruption to the educational process or collide with the rights of others.

What are the three major exceptions to the Tinker 'substantial disruption' standard for student speech, as established by Fraser, Hazelwood, and Morse?

(1) Vulgar/lewd speech at school assemblies (Fraser); (2) school-sponsored speech like newspapers (Hazelwood); and (3) speech promoting illegal drug use (Morse).

What is the four-part test used to determine if commercial speech regulations violate the First Amendment?

The Central Hudson test: (1) Is the speech protected (lawful/not misleading)? (2) Is the government interest substantial? (3) Does the regulation directly advance the interest? (4) Is it no more extensive than necessary?

What is a 'prior restraint,' and what is its presumptive constitutional status?

A prior restraint is a government action that prohibits speech or expression before it can take place. It is presumptively unconstitutional and faces strict scrutiny.