1st Amendment

Question 1

Content Regulation

Answer 1

Forbids, punishes, or burdens communications about a particular subject, but not other subjects.

Strict Scrutiny

Question 2

Vagueness and Overbreadth

Answer 2

A statute is vague if it is unclear what conduct or speech is prohibited.

A statute is overbroad if more speech than is targeted is made unlawful.

GIVE EXAMPLES.

Question 3

Content Neutral Regulation

Answer 3

upheld if gov’t shows that

(1) important interest
(2) unrelated to the suppression of speech, and
(3) does not burden substantially more speech than is necessary to further those interests. (Intermediate scrutiny.)

Discuss under TPM.

Question 4

Conduct

Answer 4

upheld if:
(1) within the constitutional power (such as police power) of the government;
(2) important government interest;
(3) unrelated to the suppression of speech; and
(4) the incidental burden on speech is no greater than necessary

(intermediate)

Question 5

Commercial Speech

Answer 5

If commercial speech is not misleading or fraudulent, regulation of that speech is valid if:
(1) substantial government interest;
(2) it directly advances the interest; and
(3) it is reasonably narrowly tailored
(intermediate)

Discuss misleading/fraudulent first.

Question 6

Time, Place, Manner Restrictions

Answer 6

Apply when content-neutral regulation regulates TPM:

4 kinda of fora:
- public forum
- designated public forum
- limited public forum, or
- nonpublic forum.

Question 7

Public Forum

Answer 7

Historically open to speech-related activities.

Question 8

Designated Public Forum

Answer 8

Not historically open to speech-related activities, but gov’t has opened to such activities on a permanent or limited basis.

Question 9

Limited Public Forum

Answer 9

All other public property other than a nonpublic forum.

Question 10

NonPublic Forum

Answer 10

Includes places like jails and gov’t buildings.

Question 11

Public/Designated Public Test

Answer 11

Reasonable time, place, and manner restrictions.

(1) content-neutral;
(2) narrowly tailored — significant government interest;
(3) open alternative channels of communication.

Question 12

Limited Public/Non Public Test

Answer 12

Gov’t can regulate speech in limited forum or nonpublic forum to reserve it for its intended use. Regulations will be upheld if they are:
(1) viewpoint neutral; and
(2) (rational basis test).

Question 13

Access to trials, courtroom as limited public forum

Answer 13

courtroom is limited public forum.

1st Am right may be outweighed by an overriding interest (usually D’s 6th Am right to fair trial).

Question 14

Prison Speech

Answer 14

a prison is a nonpublic forum

restrictions on prisoners’ speech will be upheld if reasonably related to a legitimate penological interest.

Question 15

Government Funding of Speech

Answer 15

Generally may do so on content-based criteria that reflects its own policies, so long as viewpoint neutral

Question 16

Campaign Contribution Test

Answer 16

closely drawn to match

a sufficiently important interest (intermediate scrutiny).

Question 17

Limit on Contributing to One Candidate

Answer 17

Valid - interest in avoiding corruption
Limits on aggregate amounts are not upheld

Question 18

Limits on Campaign Expenditures

Answer 18

Campaign spending limits on candidates are unconstitutional as restrictions on speech.

So long as third-party contributions supporting a candidate are not made directly to a candidate nor coordinated with candidate or candidate’s campaign, they may not be limited

Question 19

Unprotected Speech

Answer 19

(1) Clear and Present Danger
(2) Fighting Words
(3) Defamation of Private Persons
(4) Obscenity

Question 20

Clear and Present Danger

Answer 20

Speech that is
(1) directed at producing/inciting imminent lawless action, and
(2) is likely to produce/incite that action.

Question 21

Fighting Words

Answer 21

True Threats
Abusive Epithets likely to incite violent reactions in ordinary citizens

Question 22

Obscenity - Miller Test

Answer 22

(1) appeals to the prurient interest in sex;
(2) portrays sex in a patently offensive way; and
(3) does not have serious literary, artistic, political, or scientific value based on a national standard.

Question 23

Prior Restraints

Answer 23

Invalid unless

(1) standards must be narrowly drawn, reasonable, and definite;
(2) gov’t must promptly seek an injunction if required;
(3) must be a prompt and final determination of the validity of the restraint – prompt right of appeal.

Question 24

Free Exercise Clause

Answer 24

Prevents government from punishing based on religious beliefs.

Intentional Burden: strict scrutiny

Incidental Burden: If GAL incidentally burdens free exercise, rational basis (reasonably related to achieving secular purpose)

Question 25

Establishment Clause

Answer 25

Requires gov’t pursue course of neutrality toward religion.

Gov’t law or program is valid under establishment clause if it establishes no sect preference
(1) has a secular purpose;
(2) has a primary effect that neither advances nor inhibits religion; and
(3) does not produce excessive government entanglement with religion.

Question 26

Freedom of Press

Answer 26

Gov’t cannot punish publication of lawfully obtained truthful information absent compliance with strict scrutiny.

If unlawful, okay if it about matters of public concern, and publisher did not obtain it or know who did.

Question 27

Freedom of Association

Answer 27

It may be infringed only if necessary to achieve a compelling government interest. (Strict Scrutiny)