1st Amendment Flashcards
Central focus of the 1st Amendment
the free expression of ideas
The 1st Amendment provides
congress shall make no law no law respecting an establishment of religion, or prohibiting the free exercise thereof; abridging the freedom of speech, or of the press, or the right of the people peacefully to assemble, and to petition the goverment for a redress of grievances”
The basic divide in free speech is between goverment regulations that regulate speech on the basis of
its context and those that regulate speech on a context-neutral basis
content based regulations are generally
presumed to be void
content based regulations are those that
do not aim at the suppression of ideas
content neutral regulations are generally subject to
intermediate scrutiny
content neutral regulations are generally valid if
they are reasonable, well suited to the achievement of a significant goverment interest, and leave open ample alternative channels of communication
2 background principles of the 1st amendment
- The First Amendment only
applies to the government. - The text only tells us so much
about how the First Amendment
applies in practice.
Purposes Behind First
Amendment’s Protection of Speech
- Preserving a free marketplace of
ideas. - Providing a check on government
power. - Enabling the political process to
work properly. - Lowering the stakes of elections.
Viewpoint discrimination receives what kind of scruitny?
Viewpoint discrimination receives strict scrutiny
from courts.
To survive strict scrutiny, the
government must show:
- A compelling interest
- The viewpoint discrimination was narrowly
tailored. - The viewpoint discrimination is the least restrictive means of achieving the compelling interest.
The First Amendment limits only
government actions
and does not dictate what private citizens do
The First Amendment prohibits the government from
engaging in viewpoint discrimination AKA
punishing
speech because it disagrees with the message.
The First Amendment protects speech most people find
offensive or wrong
Can the persident write an executive order establishing a national religion?
no
Does the 1st Amend. protect speech to threaten?
No
Summary of the Law on Compelled Speech
Summary of the Law on Compelled Speech
What, Why
What: The First Amendment generally
forbids the government to compel
speech.
Why: Concerns about tyranny, too-
powerful government, and desire to
protect unpopular minorities.
Summary of the Law on Compelled Speech
Principals
- “Speech” has been construed broadly by courts in many instances.
- There is overlap between “free” exercise of religion and “free” speech.
Cant force a group to allow people expressing opposite viewpoints
into their group
Part of liberty is its ability to
exclude
Does the 1st amendment protect the witness refusal to answer?
Contempt of court
Summary of Unprotected Speech
What
Many categories of speech are outside the protection of the First Amendment. This includes
1. defamation/libel,
2. pornography/obscenity,
3. fighting words/incitement of crime/true threats.
Summary of Unprotected Speech
Why
Courts have decided certain kinds of speech have a low value or are harmful.
What Counts as Pornography/Obscenity?
Supreme Court Definition of
Obscenity
ontemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
and
(3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Prurient=having or encouraging an excessive interest in sexual matters.
Incitement/True Threats: The Law
What
You can’t incite violence or make threats and use the First Amendment as a shield.
Incitement/True Threats: The Law
why
We can’t have violence and need to preserve order.
The First Amendment doesn’t protect many kinds of speech, including
- defamation/libel
- incitement/true threats
- obscenity/pornography
First Amendment: Three Rules to
Live By
- Treating certain viewpoints better or worse than others
receives strict scrutiny and is generally disallowed. - Forcing someone to say something (compelled speech)
gets strict scrutiny and is generally disallowed. - Some speech normally receives no First Amendment
protection: libel/defamation, obscenity/pornography,
incitement/true threats, and fighting words
Viewpoint Discrimination Definition
Punishing or suppressing
speech because the
government disagrees with it
or disapproves of it.
viewpoint discrimination
always subject to
strict scrutiny
- generally disallowed
Compelled speech always gets
strict scruiny
- It does not matter how trivial you think the message is!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Courts have refused to give First Amendment protection
to many kinds of speech because they deem them to be of low value:
▪Libel/defamation
▪Obscenity/pornography
▪Incitement/true threats
▪Fighting words
First Amendment and Freedom of Religion/Establishment of Religion
(3 points)
- Laws or actions singling out religious conduct specifically are subject to strict
scrutiny. Example: Banning the Quran or eating Matzos on Passover. - Government can CONSTITUTIONALLY enforce criminal laws that it would
generally enforce even if that burdens a particular religion. Example: Banning
mind-altering substances even if used in a particular religious practice. However,
federal laws burdening religious practice are subject to strict scrutiny under the
Religious Freedom Restoration Act even if they didn’t intentionally target
religion. - Excluding people or institutions from public benefits the general public would get
merely because they are religious gets strict scrutiny and is disallowed. Example:
withholding grants for parking lot renovation because the institution is a synagogue.
