1st Am

Question 1

Which regulation, content-based OR conduct-based, is more likely to be held unconstitutional?

Answer 1

Content-based! In general, a reg seeking to forbid communication of SPECIFIC IDEAS (content-based) is LESS likely to be upheld than regulation of CONDUCT incidental to speech

Question 2

What are the scrutiny stds for contest-based and content-neutral restrictions, respectively?

Answer 2

Content based restrictions on speech must meet STRICT SCRUTINY

Content-NETUTRAL restrictions(i.e. applies to ALL speech regardless of viewpt) burdening speech generally need only meet INTERMEDIATE SCRUTINY

Question 3

What are the 2 alternative ways of finding that a law is content-based?

Answer 3

1) Subject matter restrictions: application of the law depends on the topic of the msg
2) Viewpt restrictions: application of the law depends on the IDEOLOGY of the speech

Question 4

What is “prior restraint” and the level of scrutiny that it must meet?

Answer 4

Prior restraint = stopping speach BEFORE it occurs

Ct orders surpressing speech MUST meet STRICT SCRUTINY

Gag orders on the press to prevent pejudicial PRE-trial publicity are NOT allowed

Question 5

Must a prior restraint challenger follow a ct Gag Order?

Answer 5

YES! Procedurally proper ct orders MUST be complied w/ UNTIL they are VACATED or OVERTURNED

A person who violates a ct order is BARRED from later challenging it

Question 6

What are 3 requirements that must be met before the gov’t can require a license for speech?

Answer 6

1) There has to be an IMPORTANT reason for licensing
2) There must be CLEAR CRITERIA, leaving almost NO discretion to the licensing authority
3) There must be PROCEDURAL SAFEGUARDS such as prompt determination of requests for licenses and judicial review of license denials

Question 7

What is the std for a speech regulation being struck down for vagueness OR overbreadth?

Answer 7

1) A law is unconstitutionally VAGUE if a reasonable person CANNOT tell what speech is prohibited and what is allowed
E.g. fighting words are NOT protected speech, BUT statutes attempting to punish the use of such words are often found to be VOID for VAGUENESS

2) A law is unconstitutionally OVERBROAD if it regulates subtl MORE speech than the constitution allows to be regulated

Question 8

What is the test for defamation?

Answer 8

If π is PUBLIC OFFICIAL OR FIGURE, π has to prove malice (knowledge that stmt is false OR reckless disrgard as to its truth) and the falsity of the statement by clear and convincing evidence to get damages

If π is PRIVATE PERSON AND matter of PUBLIC CONCERN, π has to prove at least negligence as to stmts falsity to get compensatory damages for actual injury. To recover presumed or punitive damages π must show actual malice.

If πis PRIVATE PERSON AND matter NOT of public concern, then π can recover presumed or punitive damages w/o showing actual malice. Burden may be on ∆to prove truth (unlike other 3 scenarios)

NOTE: Liability of IIED for defamatory speech must meet defamation standards for 1st am.

Question 9

When can the gov’t regulate symbolic speech?

Answer 9

The gov’t may regulate CONDUCT that communicates (symbolic speech) IF:

1) it has an IMPORTANT interest UNRELATED to the supression of the msg; AND
2) the impact on communication is NO greater than NECESSARY to achieve the gov’t goal

Gov’t ALLOWED to regulate…
Draft card burning (b/c of potential for national emergency)
Nude dancing
Contribution ltds to individual candidate campaigns

Gov't NOT ALLOWED to regulate...			Flag burning			
Cross burning (AS LONG AS not done to threaten/intimidate)			
Overall EXPENDITURE limits in campaigns (gov't cannot ltd the amt a person/corp/union spends to get a candidate elected, SO LONG AS the expenditures are indpendent of the candidate and are not disguised)

Question 10

Is anonymous speech protected by the 1st Am?

Answer 10

YES! BUT NOTE: A state’s interest in promoting transparency and accountability in elections is SUFFICIENT to justify public disclosure of the names/addys of persons who sign ballot petitions

Question 11

Is speech BY the gov’t restricted by the 1st Am?

Answer 11

Speech BY the gov’t CANNOT be challenged as violating the 1st Am

Gov’t speech AND gov’t FUNDING of speech will be upheld SO LONG AS it is rationally related to a legitimate gov’t interest (rational basis)

Spending programs cannot limit 1st Am. actv outside the scope of the spending program itself

Question 12

What5 categories of speech are UNPROTECTED p/t the 1st Am?

Answer 12

REMEMBER: CONTENT-based restrictions of speech must meet STRICT SCRUTINY (law is NECESSARY to achieve a COMPELLING gov’t interest)

Regulation of the following is COMPELLING…

1) Incitement of illegal activity. The gov’t may punish speech IF (i) there is a SUBSTL likelihood of imminent illegal activity;AND (ii) the speech is directed to causing such illegality
2) Obscenity
3) Defamatory speech
4) Fighting words: true threats or personally abusive actions (cross burning to intimidate)

ALSO REMEMBER: CONTENT-neutral restrictions of speech must meet INTERMEDIATE SCRUTINY (law is SUBSTL RELATED to an IMP gov’t interest) Regulation of the following is IMPORTANT…

5) SOME commercial speech: Advertising for illegal activity; OR false/deceptive ads are NOT protected EVEN true commercial speech that inherently risks deception can be prohibited (e.g. using certain trade names) under intermediate scrutiny. Reg of comm speech must be narrowly tailored.

Question 13

What are the 3 reqs for speech to be deemed obscene?

Answer 13

Speech is obscene IF…

1) the material appeals to the prurient interest(“shameful or morbid interest in sex”)(based on COMMUNITY std);
2) the material must be PATENTLY offensive (based on COMMUNITY std); AND
3) the material LACKS serious redeeming artistic, literary, poltical OR scientific value (based on NATIONAL std)

NOTE: The gov’t MAY use zoning ordinances to regulate the number/location of adult bookstores/movie theaters

NOTE: CHILD PORN (i.e. children in the production of the material) may be COMPLETELY banned, even if it’s NOT obscene

NOTE: The gov’t CAN’T punish the PRIVATE possession of obscene materials; BUT the gov’t CAN punish the private possession of CHILD PORN

NOTE: The gov’t may seize the assets of businesses CONVICTED of violating obscentity laws

NOTE: PROFANE/INDECENT speech is generally PROTECTED by the 1st Am; EXCEPT… on free, over-the-air broadcast media (TV/radio); AND in schools

Question 14

May the gov’t restrict speech by gov’t EMPLOYEES?

Answer 14

YES! Speech by gov’t emps on the job in the performance of their duties is NOT protected by the 1st Am

Question 15

May the gov’t impose liability for TRUTHFUL reporting of LEGALLY obtained gov’t information?

Answer 15

NO! A state may NOT create liability for the TRUTHFUL reporting of information that was LEGALLY obtained from the gov’t records (e.g. a rape victim’s identity obtained lawfully by a reporter)

Question 16

Can the media be held liable for broadcasting ILLEGALLY obtained information?

Answer 16

NO, SO LONG AS… (i) the media did not PARTICIPATE in the illegality; AND (ii) it involves a matter of public importance

Question 17

What is the ONLY instance where the public has a 1st Am right to attend a gov’t proceeding and have access to govt papers?

Answer 17

Criminal trials and pre-trial proceedings: This right can ONLY be restricted by sanction that is NARROWLY TAILORED to further an interest of the HIGHEST order (e.g. to protect children who are victims of sex offenses). Otherwise, the gov’t MAY restrict its own dissemination of information.

Question 18

What is the std for regulating speech in public OR designated public forums?

Answer 18

Public forums = gov’t properties that the gov’t is constutionally req’dto make available for speech

Designated public forums = gov’t properties that the gov’t could close off to speech, but chooses VOLUNTARILY to open to speech

Std = Gov’t can pass “time, place or manner” regulations, IF they…

(i) are content-neutral (subject matter AND viewpt);
If NOT content neutral, reg must meet STRICT SCRUTINY

(ii) are narrowly tailored to serve an IMPORTANT gov’t interest
Narrow tailoring does NOT mean that it has to be least restrictive alternative
Permit fee reqs for parades/demonstrations ARE unconst if city officials have DISCRETION in setting the amt of the fee

(iii) leave open an alternative channel of communication

Question 19

What is the std for regulating speech in ltd public OR non-public forums?

Answer 19

Ltd public forums = gov’t properties that are ltd to certain groupsORdedicated to discussion of only some subjects

Non-public forums = gov’t properties that the gov’t can constitutionally close off to speech (e.g. Military bases, Areas outside prisons, Public schools, Sidewalks in front of POST OFFICE, Airports (but can’t prohibit distribution of literature))

Std = Gov’t CAN regulate speech to reserve the forum for its intended use, BUT regs must be…

(i) viewpt neutral (don’t have to be subject matter neutral!); AND
(ii) reasonably related to a legitimate gov’t purpose (rational basis)

Question 20

What is the std for regulating speech in private forums?

Answer 20

There is NO 1st Am right of access to private property for speech purposes (e.g., a shopping mall)

Question 21

What is the scrutiny std for freedom of association?

Answer 21

Laws that PROHIBIT or PUNISH group membership must meet STRICT SCRUTINY

Laws that require DISCLOSURE of group membership where such disclosure would chill association MUST meet strict scrutiny

Question 22

What 3 requirements must be met in order to punish based on group membership?

Answer 22

Assuming strict scrutiny is met, to punish membership in a group it must be proven that the person…

(i) is ACTIVELY affiliated w/ the group;
(ii) has KNOWLEDGE of the group’s illegal activities; AND
(iii) has SPECIFIC INTENT of furthering those illegal activities or objectives

Question 23

Does freedom of association protect the private right to discriminate?

Answer 23

NO!

EXCEPTIONS: (i) “Intimate association” (e.g. a small dinner party), (ii) where discrimination is integral to the expressive activities of the group (e.g. excluding black people from the KKK)

Question 24

What is the Free Exercise Cl?

Answer 24

Prohibits gov’t from punishing someone on the basis of her religious beliefs

The gov’t may NOT deny benefits to individuals who quit their jobs for religious reasons

The gov’t may not hold religious institutions liable for choices related to ministers

NOTE: the Free Exercise Cl CANNOT be used to challenge NEUTRAL laws of general applicability (e.g. Oregon law prohibiting peyote challenged by native americans upheld bc neutral)

Question 25

When is a law valid under the Establishment Cl?

Answer 25

Lemon Test: Gov’t action is valid under the Est. Cl, IF it…“S-E-X”

(i) has a SECULAR purpose
(ii) the primary EFFECT must be NEITHER to advance nor prohibit religion (the gov’t cannot discriminate AGAINST or AMONG religions) (iii) there must not be EXCESSIVE gov’t entaglement w/ religion

Otherwise it HAS to meet STRICT SCRUTINY

Examples:
Gov’t sponsored religious activity in public schools is unconst
Religious student and community groups MUST have the same access to school facilities as non-religious groups
School prayer (even if voluntary or silent) is unconst
The gov’t CAN give assistance to parochial schools, SO LONG AS it is NOT used for religious instruction (e.g. provide parents w/ vouchers, which they can use in parochial schools)