Learning Goals: Describe the key elements of SCOTUS and the judiciary's rhetorical situation Identify and explain the major court rulings that shape free speech law and media regulation in the United States Distinguish between major doctrinal elements of speech regulation, e.g. content-based vs content-neutral, chilling effects, imminent lawless action, etc. Apply existing regulatory frames to hypothetical situations Explain major intersections between communication and the law Analyze legal texts and summarize 1) content/argument and 2) persuasive strategies

Most of these questions can be answered adequately in 1-2 well developed paragraphs. Question 4 should probably have a well-developed paragraph for each of the four pieces. Question 1: Definition and Matchingmatch each term with the best definition for it.

1. Legal Fictions (LaRue): __ 2. Supreme Court Rhetoric (Prentice): __ 3. Stare decisis:___ 4. Certiorari: ___ 5. Strict Scrutiny:___ 6. Content-based regulation: ___ 7. Viewpoint discrimination: ___ 8. Time, Place, and Manner Regulation: ___ 9. Expressive Conduct:___ 10. Aeropagitica: ___

Definitions: a. Legal doctrine of precedent, meaning "let the thing stand" and generally meaning that earlier court decisions and legal cases should be respected and guide interpretation of later cases. b. A public argument against prior restraints and censorship that forms the basis of much of our public discourse about free speech. Written in the English Civil War. c. Also known as "symbolic speech," a mixture of speech and action through symbols that is established by an intent to send a message and likelihood that the message will be understood. d. A legal test used to review laws, asking whether the government has a rational basis for this law and has chosen a reasonable way to accomplish that goal. Most laws reviewed under this standard are found constitutional. e. A writ indicating that the Supreme Court has accepted a case for review. f. A communication theory holding that judicial opinions can be understood as a response to a set of factors including the exigence, audience, and constraints. It argues that judges are persuasive in their opinions in the way they address multiple audiences and work within the constraints of legal writing. g. A communication theory holding that judicial opinions use narratives in the factual history, history of precedent, and/or legislative history to be persuasive and communicate constitutional truths. h. Law(s) that go beyond a specific topic to single out a particular ideology or opinion for punishment or restriction. Such laws are presumptively invalid. i. Law(s) that target a particular topic or issue for restriction or punishment (rather than the way the message is sent). A different message delivered in the same way would be acceptable while this message is not. Such laws are presumptively invalid. j. A legal test used to review laws that infringe on fundamental rights or regulate speech based on content. Such laws must further a compelling state interest, be narrowly tailored, and must be the least restrictive means of accomplishing that interest. Most laws subjected to this test are found unconstitutional. k. A set of regulations that do not aim at what is said but rather how it is said. To be acceptable, such regulations must be content-neutral, narrowly tailored to serve a significant government interest, and leave ample alternate channels for communication.

Question 2: You're chatting with your friend Dwight, who recalls that you're taking a class about free speech and the law. As you talk about the Constitution and the Court (you know, typical conversations), Dwight expresses his frustration that there's all this talk about living constitutions, originalism, and interpretation. After all, Dwight says, the Court isn't making the law, they just need to discover what the correct answer is according to the Constitution. This isn't literature class, it is math class! Why do they even have to bother writing opinions and wasting everyone's time? 2+2=4 whether or not you show your work. It would be so much faster if they just voted yes or no on the cases and thus got to more cases. Using at least one case we've discussed and at least one reading or concept, explain to Dwight why SCOTUS bothers with opinions and what part they play in the Court's larger role in the government.

Question 3: As you're relaxing at home, you get a panicked phone call from your friend Creed. He had planned to have a rally in Central Park, complete with amplifiers for an impromptu concert and a set of speeches attacking the Macy's Thanksgiving Day Parade. When he started to set things up, the NYPD arrived and told him he'd need a permit from the city as well as from the parks department. When he contacted the parks department, they told him Central Park might be too busy and offered to let him hold his rally in Van Cortland Park. This is outrageous! Creed can't believe these blatant illegal laws are on the book! He has constitutional rights! The First Amendment protects his freedom of speech from these jack-booted thugs. As you help him calm down, explain to Creed whether or not (and why) his free speech rights have been violated.

Question 4: Paragraph for each. Andy, one of your best friends, has won a landslide majority in a recent election and now has full control of Albany as the Governor of New York. They are fed up with anti-vaxxers and anti-maskers in New York and want to quash these dangerous, unscientific arguments that are contributing to the pandemic and misinformation. They want to pass a law banning any gatherings of more than 100 people in streets or sidewalks if they involve the destruction or burning of masks or if those demonstrators are expressing anti-mask/vaccination messages or other messages that are demonstrably false, e.g. "COVID is a hoax," or "the vaccines contain microchips." They've brought you on as their legal consultant (you go-getter you). Using your expertise from free speech, offer them a memo or opinion that advises them regarding this law they're considering ( write it as in second person if you like, e.g. "Dear Andy, you should know X about this."). They've asked you to consult on 4 specific issues. For each issue/claim, you should explain whether your friend is on a solid legal footing or not and explain why with reference to cases or concepts.

A) Andy claims that at least part of the law should be fine because destroying masks is not speech the same way political slogans are so free speech protections shouldn't apply.

B) Andy has done a little googling and learned that since the law affects gatherings of more than 100 people and where it happens (sidewalks or streets), he should be able to do as he wishes. He is confident this is a perfectly acceptable time, place, and manner restrictions.

C) There's been some pushback from the darn ACLU about the ban on anti-mask and anti-vax messages. Andy argues that this is not an issue because New York has a good reason to enact the law.

D) Finally, Andy insists that his plan to criminalize certain anti-vax messages will work because messages like "COVID is a hoax" and "the vaccines are a mind control plan" are examples of fraud. Fraud is a category outside of the first amendment's protections, so these messages are entitled to no free speech protection.