1st Amendment

Question 1

Scope of Speech

Answer 1

a) The freedom to speak includes the freedom not to speak. Thus, the government generally cannot require people to salute the flag or display other messages with which they disagree.

b) The freedom can extend to symbolic acts undertaken to communicate an idea, although the government may regulate such acts if:
1) the government has an important interest independent of the suppression of speech; and
2) the incidental burden on speech is no greater than necessary to further the interest.

Question 2

Overbreadth and Vagueness

Answer 2

Overbreadth Doctrine. If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid.

Void for Vagueness Doctrine. A statute or regulation is void for vagueness IF it does not put the public on reasonable notice as to what is prohibited.

Question 3

Prior Restraints (Censorship)

Answer 3

A prior restraint is a regulation of speech that occurs before its expression. Generally prior restraints are presumed to be unconstitutional with limited exceptions, including:

1) There is a particular harm to be avoided
2) Procedural safeguards are provided to the speaker.

Question 4

Content vs. Conduct - Speech Based Regulations

Answer 4

1) Content based; or
2) Conduct-Based

Content based restrictions. It is presumptively unconstitutional to place burdens on speech because of its content, except for certain categories of unprotected speech. However, content-neutral speech regulations generally are subject to intermediate scrutiny – they must:

1) advance important interests unrelated to the suppression of speech; and
2) not burden substantially more speech than necessary. (ie. narrowly tailored)

Conduct Based Restrictions. Conduct related to speech can be regulated by content-neutral time, place, and manner restrictions.

Question 5

Time, Place, and Manner Restrictions

Answer 5

The government has power to regulate the conduct associated with speech, although the breadth of this power depends on whether the forum is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.

Question 6

Public Forums and Designated Public Forms.

Answer 6

1) Public property that has historically been open to speech-related activity is called a public forum.
2) Public property that has NOT historically been open to speech-related activities but which government has made open for such activities on a permanent or limited basis, by practice or policy is called a designated public forum.

3) The government may regulate speech in public forums and designated public forums with reasonable time, place, and manner regulations that are:
a) content neutral
b) narrowly tailored to serve an important gov’t interest; and
c) leave open alternative channels of communication.

Question 7

Limited Public Forums and Nonpublic Forums

Answer 7

1) government property that has NOT historically been linked with speech and assembly but has been opened for specific speech activity is called a limited public forum
2) government property that has not been linked with speech and assembly and has not been opened for specific speech activity is called a nonpublic forum.

3) the government may regulate speech in limited public forms and nonpublic forums if the regulations are:
a) viewpoint neutral; and
b) reasonably related to a legitimate government purpose.

Question 8

Unprotected Speech

Answer 8

To be valid, restrictions on the content of speech must be necessary to achieve a compelling government interest. The government has a compelling interest int he following categories of speech, which are deemed “unprotected speech” under the 1st amendment:

1) inciting imminent lawless action
2) fighting words
3) obscenity
4) defamatory speech; and
5) some commercial speech.

Question 9

Freedom of Association

Answer 9

a) protects the right to form or participate in any group, gathering, club, or org without government interference. However, the government may infringe upon this right if they can satisfy strict scrutiny.
b) Public employment. A person may only be punished or deprived of public employment based on association if that individual: 1) is an active member of a subversive organization; 2) has knowledge of the illegal activity; and 3) has specific intent to further those illegal objectives.

Question 10

Establishment Clause

Answer 10

The Establishment Clause, along with the Free Exercise Clause, compels the government to pursue a course of neutrality toward religion. Government action challenged under the Establishment Clause will be found invalid, unless the action:

1) has a secular purpose
2) has a primary effect that neither advances nor inhibits religion; and
3) doesn’t produce excessive government entanglement with religion.