1st Amendment Flashcards
1st Amendment
The 1st Amendment has been made applicable to the states via the 14th Amendment.
Vague
A law is vague if it fails to provide fair notice of what is prohibited. If a reasonable person could NOT determine the meaning of the law, the court will hold that the law is void for vagueness.
Overbreadth
A statute is overbroad if it bands substantially more speech than necessary. It is over inclusive because it includes activity that is constitutionally protected. The result is that the entire statute will be invalidates because of its chilling effect on protected speech.
ESSAY TIP
A statute that is NOT narrowly tailored is usually overbroad as well.
Free Exercise Clause
The free exercise clause prevents the government from denying benefits to or imposing burdens on individuals because of their religious beliefs. Laws that target a particular religion receive strict scrutiny and must be justified by a compelling interest that is narrowly tailored to advance that interest.
1) However, the free exercise clause does NOT relieve an individual of the obligation to comply with a law of general applicability. If a generally applicable law incidentally affects the exercise of one’s religion, the 1st amendment has NOT been offended.
Free Exercise Clause - Sincerely Held Beliefs
In order to assert a free exercise challenge, a person only has to assert a sincerely held religious belief. The person does NOT need to be a member of an organized church or a formal religious organization and the government CANNOT inquire into the truth of falsity of the belief itself.
Establishment Clause
The establishment clause prevents the government from establishing or endorsing a religion. This means the government may NOT provide benefits to a particular religion or prefer one religion over another. The cornerstone principle of the establishment clause is that the government must separate itself from religion.
1) Any government action that has the incidental effect of aiding religion must 1) have a secular purpose, i.e. a purpose not connected with religion 2) have a primary effect that does NOT advance or inhibit religion and 3) avoid creating an excessive entanglement between the government and religion.
2) If any of these 3 prongs are violated, the government’s action is deemed unconstitutional.
Establishment Clause - Non-Religious (Secular) Purpose
Every law must have a non-religious purpose. The focus is on the reason behind the law.
Establishment Clause - Primary Effect that Does NOT advance or inhibit religion
A state law must NOT have a primary effect that advances or inhibits religion. This means the government CANNOT give preference to one religion over another.
Establishment Clause - Excessive Entanglement
If the law involves excessive monitoring or requires substantial supervision to ensure that it will NOT support religion, it creates an excessive entanglement between the government and religion.
Prior Restraint
A prior restraint prevents speech from being uttered prior to publication. Prior restraints are greatly disfavored and courts look with considerable disdain on imposing them. The reason is due to the chilling effect it has on the suppression of speech yet to occur. Injunctions, permit requirements, and gag orders are classic forms of prior restraints. Prior restraints bear a heavy presumption against their constitutional validity and are subject to strict scrutiny review.
1) Many prior restraints relate to the issue of obscenity. Courts have generally tolerated prior restraints in situations involving obscene movies, because obscenity is NOT protected by the 1st Amendment. Often a person must submit an allegedly obscene movie to a review board prior to dissemination. However, there must be procedural safeguards in place.
Unbridled Discretion
A law which makes the enjoyment of a 1st Amendment right contingent upon the uncontrolled will of an official, as by requiring a permit or license which may be granted or withheld in the discretion of such official, is an unconstitutional prior restraint. The result of such absolute power allows the individual to ignore the law and proceed without punishment.
Content Based Regulations (Strict Scrutiny)
A content based regulation is designed to prevent a certain message. Content based restrictions are subject to strict scrutiny, which means the government must show that the law is narrowly tailored to a compelling government interest and it must use the least restrictive means possible. The government only rarely meets this test.
Commercial Speech (Intermediate Scrutiny)
The constitution accords lesser protection to commercial speech. Commercial speech advertises a product or service, or proposes a commercial transaction. Because regulation of commercial speech is entitled to some protection, it cannot be totally banned. Thus, if an activity is legal, the state CANNOT prohibit advertising it.
1) The test use to determine the validity of a law that regulates commercial speech is 1) whether the asserted governmental interest is substantial 2) whether the regulation directly advances that interest AND 3) whether it is narrowly tailored to serve that interest. This only requires a reasonable fit between the legislature’s end and the means chosen to accomplish those ends.
2) Essentially, commercial speech receives intermediate review.
Obscenity
Obscene material is NOT protected by the 1st Amendment. The test for obscenity is 1) whether the average person applying modern community standards would find that the work, taken as a whole, appeals to the prurient interest in sex 2) whether the work portrays sexual conduct in a blatantly offensive way, and 30 whether the work, taken as whole, and applying a national standard, lacks serious literary, artistic, political, or scientific value.
