1A

Question 1

freedom of speech and assembly

Answer 1

• the 1A bars Congress from abridging

freedom of speech and press; or

establishing a religion or;

interfering with free exercise of religion

• applicable to states via 14A

Question 2

make sure to check for state action

Answer 2

• 1A only protects against infringements on free speech IMPOSED BY THE GOV (e.g., shopping mall management making protesters leave – NOT state action)

Question 3

what is speech

Answer 3

words, symbols, expressive conduct (intended to convey a message, such as picketing)

Question 4

unprotected speech/gov’t can censor

Answer 4

• several categories of unprotected speech (lack 1A protections and can be censored by the gov’t)
• certain categories (defamation, commercial speech) only get partial protection (some is unprotected and gov’t can censor!)

Question 5

unprotected speech - incitement

Answer 5

speech can be censored as incitement – intended to produce imminent lawless action and likely to produce such action

Question 6

unprotected speech - fighting words & true threats

Answer 6

fighting words can be censored by the gov’t
- fighting words = words that are likely to incite immediate physical retaliation in average person

true threats can also be censored by the gov’t
- true threats = words intended to convey a serious threat of bodily harm

Question 7

fighting words statutes

Answer 7

even though fighting words can be censored, SCT won’t permit fighting words statutes designed to punish certain viewpoints (e.g., barring only fighting words that insult on basis of race — these are protected)

Question 8

unprotected speech - obscenity

SEX POV

Answer 8

gov’t can censor/regulate

speech is obsecene if it desribes sexual conduct specified by statute that, taken as a whole, by the average person
- appeals to prurient interest in sex - contemp comm standard
- patently offensive - contemp comm standard, and
- lacks serious value - using national standard

Question 9

obscenity and profanity regulations

Answer 9

• zoning regulation can limit location or size of adult entertainment places if the reg is designed to reduce secondary effects of such businseses (to protect children and unwilling adults from exposure, etc)
• porn: private possession is not punishable unless it involves child porn

Question 10

defamatory speech

Answer 10

• if defamatory statement is about a public official or involves a matter of public concern, the 1A requires pff to prove defamation elements plus falsity and some degree of fault to recover

Question 11

if pff is a public offficial

Answer 11

• regardless if defamation is matter of public or private concern – degree of fault the pff must show is actual malice (knowledge it was false or reckless disregard as to its truth or falsity)

Question 12

if pff is a private figure and defamatory statement involves matter of public concern

Answer 12

pff can only recover actual damages if pff shows negligence

Question 13

if pff is a private figure suing on a matter of private concern –

Answer 13

1A is not involved!

Question 14

commercial speech (some can be censored and some cannot be)

Answer 14

UNPROTECTED: commercial speech (ads, brand marketing, etc) can be censored if it’s false, misleading, or about illegal products/services

PROTECTED: commercial speech that the gov’t generally CANNOT regulate – speech that concerns lawful activity and is not misleading
- gov’t can censor this kind of commercial speech if there’s a substantial gov’t interest in regulation; reg advances that gov interest; and reg is narrowly tailored to serve that interest

Question 15

symbolic speech

Answer 15

• refers to expressive conduct
• gov’t can regulate symbolic speech if it passes intermediate scrutiny - gov’t needs to have important interest and the law is not related to suppression of free expression

burning a flag: gov’t cannot censor this symbolic speech
public nudity: gov’t can censor

Question 16

speech restrictions where protected (cannot be censored) speech is at issue

Answer 16

level of scrutiny depends on whether speech restriction is content-based

• content-based (restricts speech based on subject matter or viewpoint of speech - aimed at communicative impact of expression) reg: subject to strict scrutiny and likely unconstitutional
• content-neutral regulations: subject to intermediate scrutiny

Question 17

content-neutral regulations

Answer 17

• OFTEN in form of time, place, manner restrictions (restrictions on CONDUCT related to speech)
• need to pass intermediate scrutiny (narrowly tailored to achieve important gov’t interest)

Question 18

speech restrictions on GOVERNMENT PROPERTY

Answer 18

depends on whether the property is a public forum, designated public forum, a limited public forum, or a nonpublic forum

Question 19

public forum

Answer 19

sidewalks, streets, parks, county fairs

If regulation is content-based, it will be subject to strict scrutiny

to be upheld, restriction must be:
1. be content neutral
2. must be narrowly tailored to serve impt gov purpose
3. leave open alternative channels of communication (doesnt have to be least restrictive alternative)

REMEMBER: IF REG MEETS TIME, PLACE, MANNER REQUIREMENTS ABOVE… IT COULD STILL BE INVALID IF IT’S OVERBROAD, VAGUE, GIVES UNFETTERED DISCRETION

Question 20

when can gov’t limit speech rights in a park?

Answer 20

only when there’s serious threat to public order

Question 21

designated public forums

Answer 21

• public school facilities open after school for use by a social group
• same rules as public forums but only when property is open for speech

Question 22

nonpublic forums and limited public forums

Answer 22

• gov’t properties that are NOT public forums can impose greater restrictions on speech

Question 23

limited public forums

Answer 23

• school gym used for a debate on a community issue
• regulations are valid if they are: (1) viewpoint neutral, and (2) reasonably related to a legitimate gov’t purpose

viewpoint neutral = can’t permit presentation of one side and exclude the other side

**if the regulation is viewpoint based, it will be subject to strict scrut

Question 24

nonpublic forums

Answer 24

• gov’t property not open generally for speech (military bases, gov’t workplaces, airports, courthouse and its grounds)
• same test as limited public forums

Question 25

curriculum based public school activities

Answer 25

nonpublic forum

Question 26

speech restrictions in public schools

Answer 26

• personal student speech on campus: can’t be censored absent evidence of substantial disruption (exception: speech promoting drug use does not require showing any disruption)
• personal student speech off campus: harder to censor; schools are limited to restricting speech to prevent cheating, bullying, etc

Question 27

school speech

Answer 27

restrictions on speech re: school’s teaching must be reasonably related to legitimate pedagogical concerns

Question 28

loyalty oaths

Answer 28

• oath requiring public employees to support constitution and oppose overthrow of gov - valid
• oath requiring them to support flag – invalid

Question 29

void for vagueness

Answer 29

vague if a reasonable person can’t tell whether speech is allowed or barred

Question 30

overbreadth

Answer 30

• regulation of speech or speech-related conduct will be invalidated as overbroad if it punishes substantially more speech than is necessary
• if speech is overbroad, it can’t be enforced against anyone (even one whose speech can be censored)

NOTE that fighting words statutes are almost always vague and overbroad!

Question 31

prior restraints

Answer 31

• court orders or administrative systems that prevent speech before it occurs (can be a statute that requires speaker to acquire permit from administrative system before speaking; can also be an injunction that bars certain speech)
• ask: whether there is some special societal harm that justifies the restraint

Question 32

prior restraints requirements

Answer 32

to be valid, a system for prior restraint must provide following safeguards:
- standards have to be definite
- injunction must promptly be sought
- final judicial determination of validity of restraint (e.g., a review of a permit denial)

Question 33

cannot give officials unfettered discretion

Answer 33

if a statute gives licensing officials unbridled disretion, it is void on its face and speakers don’t need to apply for permit (speaker can’t ignore statute; they must seek permit and if denied, can challenge denial on 1A grounds)

Question 34

preliminary injunction and prior restraints

Answer 34

to prevent pretrial discussion to preserve fair trial; only valid if only way of preserving fair trial

Question 35

freedom of the press

Answer 35

• press has no greater 1A freedom than does private citizen (rules above apply)

Question 36

freedom of press and publication of truthful info

Answer 36

• pass has right to publish truthful info re matters of public concern
• content-based restrictions on press –> subject to strict scrutiny

Question 37

freedom of religion
free exercise clause

Answer 37

• bars gov’t from punishing someone on basis of their religious belief or religious status/conduct
• courts can question sincerity of a person’s belief

Question 38

discriminatory laws

Answer 38

• law that discriminates on basis of religion = subject to strict scrutiny
• law is discrim if it is EITHER: not netural on its face (law expressly provides favored/disfavored treatment based on religious belief or status), OR
• factually neutral but not generally applicable (law is silent re religion but, by design, it targets religion generally or one in particular)

***gov’t can deny benefits or impose burden on someone based on their religious beliefs ONLY IF gov’t has a compelling interest

Question 39

neutral laws of general applicability (not designed to regulate or interfere with religion – e.g., a ban on underage drinking)

Answer 39

• not subject to free execise clause
• free exercise clause cannot be used to challenge gov’t action unless action was specifically designed to interfere wtih relogion

Question 40

law with system for exemptions

Answer 40

• a law that gives gov’t officials discretion to grant exemptions from law is not generally applicable (it’s related to religion!)
• if someone seeks exception from such a law on religious grounds and gov’t refuses, that person can challenge denial on free exercise clause grounds – strict scrutiny would apply

Question 41

religious exemptions

Answer 41

• free exercise clause does not require religious exemptions from generally applicable gov’t regulations that happen to burden religious conduct
• BUT granting exemption to accomodate religious exercise generally would not violate establishment clause (e.g., for underage drinking of sacramental wine)

Question 42

establishment clause

Answer 42

bars gov’t sponsorship of religion (like the free exercise clause, compels gov’t to pursue a course of neutrality toward religion)

1. neutrality
2. coercion barred – gov’t can’t coerce people to exercise
3. history and tradition – religious practices/displays around for a long time tend to get upheld; court also looks at founder’s intent (what they intended to prevent)

Question 43

Freedom of Association

Answer 43

• protects right to participate in an organization
• gov’t interference is valid only if meets strict scrutiny (necessary to achieve a compelling state interest)