1st Amendment Flashcards
First Amendment – Protections Provided
• The First Amendment of the U.S. Constitution protects the following rights:
(1) freedom of speech and expressive activities that constitute speech;
(2) freedom to exercise religion;
(3) freedom of the press;
(4) freedom to peaceably assemble;
(5) the right to petition the government for a redress of grievances; and
(6) provides that Congress shall make no law concerning the
establishment of religion.
Freedom of Religion: Establishment Clause
The Establishment Clause prohibits the government from establishing a religion or endorsing/supporting religion.
Laws that discriminate against a religion MUST satisfy strict scrutiny (the government must show that the law is narrowly tailored to achieve a compelling government interest, and that the least restrictive means was used).
Under the Lemon test, a law that has some relationship to religion but that DOES NOT discriminate against religion will be upheld if: (1) it has a secular purpose; (2) its primary effect does not advance or inhibit religion (incidental effects are allowed); AND (3) it does not excessively entangle the government with religion
Freedom of Religion: Free Exercise Clause
The Free Exercise Clause prohibits the government from interfering with the exercise of religion.
Laws designed to interfere with religion must meet strict scrutiny (the government must show that the law is narrowly tailored to achieve a compelling government interest, and that the least restrictive means was used). Religious beliefs are protected if they are genuine, sincere, and hold a place in one’s life similar to a traditional religion.
HOWEVER, laws of general applicability that cause unintentional burdens on religion ARE CONSTITUTIONAL and do not offend the Free Exercise Clause (i.e. prohibiting illegal drug use or human/animal sacrifice).
Freedom of Speech: Content-Based vs. Content-Neutral Restrictions
• Content-Based Restrictions: Government regulations regarding the content of protected speech (subject matter or viewpoint) must satisfy strict scrutiny.
Under strict scrutiny, the government must show:
(1) that the regulation is narrowly tailored to achieve
a compelling government interest; AND (2) it used the least restrictive means to accomplish its purpose.
Content-Neutral Restrictions: Generally, the government MAY regulate the time, place, and manner of content- neutral speech if the regulation satisfies intermediate scrutiny.
o Under intermediate scrutiny, the government must show that the regulation: (1) is narrowly tailored to achieve a significant government interest; AND (2) leaves open alternative channels of communication. The regulation DOES NOT need to be the least restrictive means.
Freedom of Speech: Prior Restraint
- Prior restraints on speech occur when the government attempts to prohibit speech before it happens through a court order or licensing requirement. Prior restraints are generally disfavored and unconstitutional, except in extremely limited circumstances (i.e. when national security is at stake). Court Orders preventing speech must satisfy strict scrutiny (compelling governmental interest, narrowly tailored, and least restrictive means).
- Procedural Safeguards for Licensing are permitted if: (1) the government has an important reason for licensing; (2) specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; AND (3) procedural safeguards are in place, including assuring prompt final judicial decision when a license is denied.
Freedom of Speech: Public Forum
A public forum is one that has traditionally been available to the public for free speech (i.e. public sidewalks, parks, and streets).
Content-Based Restrictions: The government CANNOT regulate speech in public forums based on content UNLESS it satisfies strict scrutiny.
o Under strict scrutiny, the government must show: (1) that the regulation is narrowly tailored to achieve a compelling government interest; AND (2) it used the least restrictive means to accomplish its purpose.
Content-Neutral Restrictions: However, the government MAY regulate the time, place, and manner of content- neutral speech in public forums if the regulation satisfies intermediate scrutiny.
o Under intermediate scrutiny, the government must show the regulation: (1) is narrowly tailored to achieve a significant government interest; AND (2) leaves open alternative channels of communication. The regulation DOES NOT need to be the least restrictive means.
Freedom of Speech: Limited Public Forum
A limited public forum (a/k/a designated public forum) is one that has not traditionally been available to the public
for free speech, but that the government chooses to make available (i.e. where a school makes classrooms available for club meetings). Limited public forums are treated the same as public forums.
Freedom of Speech: Non-Public Forum
Non-public forums are other public places that have traditionally been limited for free speech (i.e. schools, military bases, and airports). The government may regulate speech in non-public forums if the regulation is: (1) reasonable; AND (2) viewpoint neutral. However, schools CANNOT force students to participate in a flag salute, and any punishment for failing to participate violates the 1st and 14th Amendments.
Freedom of Speech: Licensing Requirements for Speech in Public Forums
- Licensing requirements are permitted for speech in public forums if: (1) the government has an important reason for licensing; (2) specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; AND (3) procedural safeguards are in place, including assuring a prompt final judicial decision when a license is denied.
- A regulation or licensing scheme is UNCONSTITUTIONAL if it gives officials unfettered discretion to apply the law or scheme.
(also pair with Prior Restraint card)
Freedom of Speech: Regulation of Expressive Conduct
Expressive conduct or symbolic speech (the expression of ideas through actions) may be regulated if:
(1) the government has an important purpose;
(2) the purpose is independent of the suppression of speech; AND
(3) the restriction is no greater than necessary to achieve that purpose.
Freedom of Speech: Regulation of Commercial Speech
• Commercial speech (i.e. advertisements) is given fewer protections under the First Amendment. The government MAY regulate truthful, non-misleading commercial speech if the regulation:
(1) directly advances;
(2) a substantial government interest; AND
(3) it is no more extensive than necessary (reasonably tailored) to serve that interest.
• False or misleading commercial speech is NOT protected. The government may prohibit professionals from advertising or practicing under a trade name
Freedom of Speech: Government Employees
For a government employee’s speech to be constitutionally protected under the First Amendment, an employee must have spoken: (1) as a citizen; AND (2) on a matter of public concern. An employee’s statements made pursuant to their official duties are NOT protected.
• The Supreme Court has set forth a two-step inquiry to determine whether the speech of a government employee is constitutionally protected under the First Amendment:
▪ Step 1: Did the employee speak as a citizen on a matter of public concern? If the answer is no, the employee has no First Amendment claim based on her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises.
▪ Step 2: If the possibility of a First Amendment claim arises, then the question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public based on the government’s interests as an employer.
As to the “citizen” requirement, the U.S. Supreme Court has held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. To fall within the realm of “public concern” an employee’s speech must relate to any matter of political, social, or other concern to the community.
Freedom of Speech: Vague & Overbroad Laws
- Laws that are unduly vague or overbroad are UNCONSTITUTIONAL because they apply to constitutionally protected speech. A statute is unduly vague if it does not put the public on reasonable notice as to what is prohibited. A statute is overbroad if it regulates more speech than is constitutionally permitted.
- A defendant CANNOT be convicted under a law that is deemed overbroad or vague (where the law applies to constitutionally protected speech), even if the speech falls within an unprotected category. However, where a court has previously deemed a law applicable to only unprotected speech (i.e. imminent lawless action, fighting words), then any alleged overbreadth/vagueness will NOT bar a conviction.
Unprotected Speech: Obscenity
Obscenity is NOT protected under the First Amendment, and therefore may be regulated. Material is obscene when it:
(1) appeals to the prurient interest;
(2) is patently offensive under the law prohibiting obscenity; AND
(3) it lacks any redeeming artistic, literary, or scientific value (based on a national standard).
Freedom of Association
- The Supreme Court has held that the freedom of association is a fundamental right under the 1st Amendment (as applied to state/local governments through the 14th Amendment). Thus, the government may only regulate the right to freely associate in a group (including the group’s expressive activities or compel disclosure of group membership) if it satisfies strict scrutiny: The government must show that the regulation is (1) necessary to achieve a compelling government interest; AND (2) that the least restrictive means was used).
- The government MAY punish a person’s membership in a group if it proves that: (1) the group is actively engaged in illegal activity or incites imminent lawless action; (2) the person has knowledge of the group’s illegal activities; AND (3) the person has the specific intent of furthering those illegal activities.
