1st Amendment Flashcards
what is more likely to be upheld content based regulation or content neutral regulation?
content neutral regulation is more likely to be upheld
what does content-based restrictions on speech get?
generally strict scrutiny
how to determine if something is content based?
1) subject matter restriction
2) view point restriction
what is subject matter restriction for free speech?
the application of the law depends on the TOPIC of the message
what is view point restriction for free speech
application of the law depends on the IDEOLOGY of the speech
what do content neutral restrictions receive for test
generally intermediate scrutiny
what type of test needs to be met for court orders suppressing speech?
strict scrutiny
what happens if a court does order an injunction on speech? what must happen?
must be complied with until it is vacated or overturned
when can the govt require a license for speech
only when there is an important reasoning for the licensing and
1) clear criteria leaving almost NO DISCRETION to the licensing authority.
2) there must be procedural safeguards for review of licenses
ways to attack speech by a statute
1) vagueness
2) overbreadth
vagueness
if a reasonable person cannot tell what speech is prohibited and what is allowed
overbreadth
if it regulates regulates substantially more speech than the const allows to be regulated
are fighting words protected?
No but statutes attempting to punish fighting words generally void for vagueness
when can govt regulate symbolic speech
when it is
1) UNRELATED to suppression of message and if the impact on communication is
2) NO GREATER THAN NECESSARY to achieve the governments goal
what can a city do with nude dancing?
cannot ban it outright, but can regulate to certain areas because of “secondary effect”
when is cross burning not allowed
when it is on a private persons yard to threaten
are contribution limits on Election campaigns allowed?`
Yes
are expenditure limits on Election campaigns allowed?
NO government may not limit the aggregate amount
when can the government not limit the person spends to get a candidate elected?
as long as the expenditures are INDEPENDENT of the candidate, and are not disguised as contributions it is ok.
- Unions, Corporations and other entities can spend w/e they want to get them elected
can the government speech be limited by 1st amendment?
NO. speech by the govt cannot be challenged for violating 1st amendment.
- Generally govt speech and government funding of speech will be upheld as long as it is RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT PURPOSE
what types of speech are unprotected or less protected under 1st amendment?
1) incitement of illegal activity
2) Obscenity and sexually-oriented speech
3) Commercial speech
4) Defamation
incitement of illegal activity
the government may punish speech if there is a SUBSTANTIAL likelihood of
1) IMMINENT ILLEGAL ACTIVITY and
2) if that speech is DIRECTED at causing imminent illegality
test for obscenity (all 3 must be met)
1) the material must appeal to the prurient interest or a”shameful or morbid interest in sex”
- local std
2) the material must be patently offensive under the law
- community, statewide, national std
3) taken as a whole the material must lack serious value (artistic, literally, political or scientific value) determined by a national std.
when can the government not punish possession of obscene materials
when it is in someones private home
-EX: child pornography
child pornography
can be banned even if not obscene and even if in private home. BUT must actually be children not just actors or CGI
generally is profane speech allowed
yes
X/C when profane speech is not protected
1) FREE over the air broadcast media (radio, tv)
2) in schools
commercial speech for false, misleading
not protected
even if TRUE commercial speech that inherently risks deception can be prohibited when?
1) prevent professionals from using trade names
2) stop attorney in person solicitation of clients
generally what type of test does commercial speech get
intermediate
- government regulation must be narrowly tailored, but does not need to be the least restrictive way.
may a state create liability for the truthful reporting of information it gets legally?
NO
may the media be held liable for broadcasting a tape of an illegally intercepted and recorded call/
NO, as long as the media did not participate in the illegality and it involves a matter of public importance
is speech by government employees on the job in the performance of duties protected
no
what are public forums
government properties that the government const required to make available speech
-Sidewalks, parks
are buffer zones allowed in public forums?
yes but only if they burden no more speech than necessary to achieve the purposes of protecting access and maintaining order.
what are designated public forums?
government properties that the government could close off speech, but choice voluntary to open speech.
limited public forums
government properties that are limited to certain groups dedicated to discussion of some messages.
when may the government regulated limited public forums (test)
so long as the
1) regulation is REASONABLE and
2) viewpoint neutral
non public forums
govt properties that the govt can close off speech entirely.
what can govt do to speech in non public forums?
as long as the
1) regulation is reasonable (RBR) and
2) viewpoint neutral
examples of non public forums
1) military bases
2) jails
3) schools
4) signs on public property
5) airports: cannot stop distribution of literature
the sidewalk exception where speech can be regulated instead of public forum?
outside the post office
is there a 1st amendment right to access of private property for speech purposes
NO.
- Ex: shopping centers
that that prohibit or punish group membership must meet what test
SS
to punish membership of a group must 3 things must be proven
1) actively affiliated with group
2) has knowledge of groups illegal activities and
3) has specific intent of FURTHERING those illegal activities or objectives
laws that require disclosure of group membership have to meet what std
if disclosure would chill association, must met SS
does freedom of association allow freedom to discriminate generally?
NO
X/C that freedom of association allows freedom to discriminate (2)
1) intimate association (small groups)
2) discrimination is integral to the EXPRESS ACTIVITIES of the group
(ex: KKK)
2 ways to attack freedom of religion
1) free exercise clause
2) establishment clause
what can the free exercise clause not be used for
cannot be used to challenge a neutral law of general applicability
(ex: bans drugs)
- but if targeting ok
can the govt deny benefits to people who quit their job for religious reasons?
NO
acyronom for Establishment clause test
SEX
what must be made for the establishment clause to pass
1) S: must be a Secular purpose
2) E: the primary EFFECT must be neither to advance nor inhibit religion
3) X: there must not be eXcessive government entanglement
what test applies if govt discriminates against religion
SS
is voluntary school prayer ok?
NO
can the govt give assistance to private schools
Yes, so long as not used for religious instruction
can the govt give parents vouchers which they can use in parochial schools??
yes
Public forum test
regulation must be
1) content-neutral (reasonable time, place, or manner regulation) and
2) must be NARROWLY TAILORED (but not necessarily the least restrictive way)
3) to achieve an IMPORTANT GOVERNMENT interest and
4) leave open ample alternative channels for communication
is a court house a public forum
NO
what is a designated pubic forum
a place designated by the government for free speech
what is the test for designated pubic forum
same as public forum
1) content neutral (reasonable time, place, or manner regulation) and
2) necessary to achieve an important government interest
3) leave open ample alternative channels for communication
what is a limited public forum
a non-public form that government opens up for limited speech
(ex: school)
what happens if non-public forum allows ALL speech?
do designated public form test
what is a limited public forum
a non-public form that government opens up for limited speech
(ex: school)
what is the test for limited public forum
1) regulation must be REASONABLE and
2) view point neutral
what is a limited public forum
a non-public form that government opens up for limited speech
(ex: school)
what is the obscenity test
taken as a whole, by the average person, applying contemporary community standards
1) appeals to the PRURIENT INTEREST in sex;
- local/ state std
2) portrays sex in PATENTLY OFFENSIVE WAY
- local/state standard
3) does not have serious LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE
- national reasonable person standard
will the SC generally uphold a total ban on any kind of speech
no
SC rule for speech and printing leaflets
SC has found that printing and distrusting leaflets is a uniquely inexpensive and direct method of getting messages into hands w/o a sufficient alternative
- for failing to requirement of leaving open alternative channels of communications
generally what do regulations on speech must meet what test
strict scrutiny
can the government say whatever it wants
yes, if its government speech or government funded speech no problem
steps for free speech
1) is it government speech
(yes, no 1st amendment problem)
2) private: is the government regulation vague or overbroad?
(yes, unconstitutional)
3) is it a prior restraint on speech
(yes- apply rules on permits for injuctions (gag orders)
4) government regulation content-based or viewpoint-based (yes- but speech is (a) incitement (b) fighting words (c) true threats (d) obscenity (e) profanity (f) defamation (g) commercial speech (h) or does the government regulation apply to conduct as speech - if one of these: apply the appropriate test - if not: apply strict scrutiny
5) if none of the above, apply rules for time, place, manner regulations of speech
what is overbreath
regulation of speech punishes substantial amount of protected speech, regulation FACIALLY INVALID, cannot be enforced against anyone
is over broad regulation statute of speech valid
NO, not valid against anyone. FACIALLY INVALID. cannot be enforced against anyone.
- Even if engaging in unprotected speech, not constitutional protected, cannot still be enforced if over broad
Over-breath: even if a person is engaging in unproteced speech can it be enforced against them
NO. not valid against anyone, FACIALLY INVALID.
1st Amendment Prior Restraint:
Prior restraint not allowed, unless government can show prior restraint narrowly tailored to compelling government interest
- SS
what does free exercise clause test apply
SS
x/c general law of applicability
establishment clause: Is it violated where there is a long history of prayer in country allowing prayer at legislation sessions
NO
are curriculum-based public high school actives public forums
No.
how to argue free exercise clause of general applicability
cannot argue Free exercise clause unless it can be shown that the law was MOTIVATED BY A DESIRE TO INTERFERE with religion
- RBR DOES NOT APPLY TO FREE EXERCISE CLAUSE
Does RBR apply to Free Exercise Clause
NO
- challenging law of general applicability, challenger must show that the legislation was motivated by a desire to interfere with religion
is a courthouse building and grounds a public forum
NO. thy are limited public forum/
1) viewpoint neutral AND
2) reasonably related to a legitimate government interest
examples of designated public forums
Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis by practice or policy
- Ex: schoolrooms that are open for after-school use by social, civic, or recreation groups)
loyalty oaths and disclosures of associations
Loyalty oaths: ok to allow government employees to take loyalty oaths, as long as they are not vague or overbroad
Disclosures of Association: may not force disclosures of EVERY organizational membership, it may only inquire into those actives that are relevant to the employment or benefit sought
