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Constitutional Law > 1st Amendment > Flashcards

1st Amendment Flashcards

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1
Q

How might a law prohibiting acts under the 1st Amendment be Unconstitutional on its face?

A

— Prior Restraint

— Vagueness

— Over-broad

— Unfettered Discretion

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2
Q

What are the safeguards for imposing a prior restraint on a person’s 1st Amendment right?

A

— Standards must be narrowly drawn and definite

— The Restraining body must promptly seek an injunction; AND

— There must be a prompt and final judicial determination of the validity of the restraint.

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3
Q

If a person fails to comply with a prior restraint order, can they stop challenge it after as unconstitutional?

A

No, proper court orders must be complied with until they are vacated or overturned.

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4
Q

When is a law prohibiting free speech unconstitutionally Vague?

A

When no reasonable person could tell what speech is permitted and what speech is prohibited

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5
Q

Laws prohibiting fighting words are what?

A

Unconstitutional

But that’s not the case for laws prohibiting true threats (i.e. causing a person to fear harm)

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6
Q

Content-based restrictions on speech must meet what level of scrutiny?

A

Strict Scrutiny

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7
Q

What are the two types of contents-based laws?

A

Subject matter restrictions (application of the law depends on the topic of the message)

AND

Viewpoint restrictions (application of the law depends on the ideology of the message).

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8
Q

If a content-neutral law burdens speech, it must meet what level of scrutiny?

A

Intermediate Scrutiny

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9
Q

Can the government regulate symbolic speech?

A

Yes, if there is an important interest

Unrelated to suppression of the message

And the impact on the communication is no greater than necessary to achieve the government purpose.

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10
Q

What are 3 examples of symbolic speech?

A

Flag burning

Burning a cross (provided that it’s not intended to threaten)

Contribution limits in election campaigns

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11
Q

Certain types of speech are less protected by the government, for example: incitement of illegal activity. When can the government punish such speech?

A

There is a substantial likelihood of imminent illegal activity; AND

If the speaker intends to cause it.

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12
Q

What is the three-part Test for obscene and sexually-orientated speech?

A

The material must appeal to the PRURIENT INTEREST (excites lustful or illicit thoughts)

Material is PATENTLY OFFENSIVE

Taken as a whole, the material lacks serious redeeming, artistic, literary, political or scientific value.

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13
Q

What can the government recover if a business is convicted of violating obscenity laws?

A

It can seize the business’s assets

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14
Q

Profane and indecent speech is generally protected under the 1st Amendment, except…?

A

It’s it’s broadcast over media that goes into the home

In schools

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15
Q

Commercial Speech is or is not protected by the first amendment?

A

It is

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16
Q

Government regulation of commercial speech must meet what level of scrutiny?

A

Intermediate Scrutiny, so regulation must meet a substantial government interest, the regulation actually advances that interest and its narrowly tailored to serve such interest.

17
Q

Which commercial speech is not protected by the 1st Amendment?

A

False or misleading commercial speech or true speech that inherently risks deception.

18
Q

Which of these can the government prohibit:

(1) professionals from advertising or practising under a trade name.
(2) attorneys making in-person solicitations of their clients
(3) accountants making in-person solicitations of their clients.

A

The government can prohibit (1) and (2), but not (3)

19
Q

Can defamatory language be restricted, thereby curtailing a person’s 1st Amendment right?

A

Yes, but it has to meet certain requirements

20
Q

For defamation involving a PUBLIC OFFICIAL or a PUBLIC FIGURE, when can the plaintiff recover presumed damages for defamation?

A

Where they can prove:

— Falsity of the statement; AND

— Actual Malice (speaker knew statement was false and acted with reckless disregard to the truth)

21
Q

For defamation involving a PRIVATE FIGURE, but a matter of PUBLIC CONCERN, when can the plaintiff recover for defamation?

A

The plaintiff can recover when they can prove:

— Negligence

— Actual injury

— Falsity of the statement

22
Q

What further step would the private figure who was suing for defamation for a matter of public concern need to show if they want to recover presumed/compensatory damages?

A

Rather than negligence, they need to show actual malice.

23
Q

For defamation involving a PRIVATE FIGURE, but a matter of PRIVATE CONCERN, when can the plaintiff recover for defamation?

A

Need to prove:

— Negligence

— Burden on D to prove truth

24
Q

Speech by a government employee who is on the job and performing their duty is: (1) still protected by the 1st Amendment; or (2) is not protected by the 1st Amendment?

A

NOT protected

25
Q

If the government seeks to restrict speech in either a PUBLIC PLACE or a DESIGNATED PUBLIC FORUM, the regulation must adhere to the following requirements…

A
  1. Regulation must be CONTENT-NEUTRAL (if not it must meet Strict Scrutiny Standard)
  2. Narrowly Tailored to meet an Important Government Interest (Intermediate Scrutiny) — Usually TIME, MANNER and PLACE restrictions.
  3. Leave open other channels of communication
26
Q

If the government seeks to restrict speech in either a LIMITED PUBLIC FORUM or a NON-PUBLIC FORUM, the regulation must adhere to the following requirements…

A
  1. The regulation must be REASONABLE; and

2. VIEWPOINT NEUTRAL

27
Q

Laws that prevent people’s freedom to meet must meet which level of scrutiny?

A

Strict Scrutiny

28
Q

When can and can’t the Free Exercise Clause be used to challenge a discriminatory law?

A

The Free Exercise Clause CANNOT be used to challenge a NEUTRAL law of general applicability, no matter how much it burdens a particular religion.

If the law is not neutral, then it must meet Strict Scrutiny

29
Q

What is the test for whether the government is making a law establishing religion (the Establishment Clause — a.k.a. The Lemon Test)?

A
  1. There must be a SECULAR PURPOSE to the law.
  2. The government cannot either ADVANCE nor INHIBIT religion
  3. No EXCESSIVE ENTANGLEMENT
30
Q

Is profane and indecent speech protected under the 1st Amendment?

A

Yes, except if broadcast into the home or in schools.

Constitutional Law (9 decks)

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