1st Amendment Expressive Freedoms: speech, press, association, religion Flashcards
Generally, what’s the concern?
gov’t regulation of expressive activities
Freedom of speech: basic principles
Free speech only restricts regulation of what kind of speech?
PRIVATE speech
Content-based vs. content-neutral regulations:
When is a restriction content-BASED?
when it restricts the SUBJECT MATTER (prohibiting any advertising for products or services) or VIEWPOINT of speech (prohibiting any advertising for dolls that reinforce sexist stereotypes)
viewpoint almost always unconstitutional
Content-based vs. content-neutral regulations:
What test must content-BASED regulations meet?
strict scrutiny
Content-based vs. content-neutral regulations:
When is a law content-NEUTRAL?
when it burdens expressive CONDUCT
Content-based vs. content-neutral regulations:
What test must content-NEUTRAL regulations meet (conduct)?
intermediate-level scrutiny (3-part test)
Exception for content-based regulations: These (3) categories of speech can be regulated using SUBJECT MATTER, as long as VIEWPOINT NEUTRAL:
(and will be constitutional if meet test for qualifying for category, i.e. doesn’t have to meet strict scrutiny)
1) unprotected speech (defamation, obscenity)
2) less protected speech
3) gov’t-funded speech
First amendment disfavors prior restraints. What does a prior restraint do?
prevents speech BEFORE it occurs
What level of scrutiny must prior restraint meet?
strict scrutiny
What’s an example of a prior restraint?
court “gag order” on press publication
Prior restraints: licensing & permitting authorities for expressive activities must operate under what kind of standards?
NARROWLY DRAWN and CLEAR standards
that leave NO DISCRETION
Prior restraints: licensing & permitting authorities for expressive activities - what if there’s a denial of license or permit?
must be opportunity for PROMPT JUDICIAL REVIEW
BUT procedurally proper court order must be followed UNTIL vacated or overturned (after challenged)
1st Amendment question: where to start? determine whether restriction is…
content-based OR content neutral
1st Amendment question: where to end? issue trio
vague, overbroad, unduly discretionary
Rule for a VAGUE regulation of speech: a regulation is…
void for vagueness if a RP cannot tell from the TERMS of the law what is prohibited and what is permitted
ex. indecency statute prohibiting “lewd and lascivious public speech”
Rule for OVERBROAD regulation of speech: a reg is overbroad if…
it affects SUBSTANTIALLY more speech than is necessary to serve the gov’ts legitimate purposes
ex. outlawing “all First Amendment activities” within an airline terminal
Rule for UNDULY DISCRETIONARY regulation of speech: a reg is unduly discretionary if…
it gives officials inadequate STANDARDS for applying the law’s requirements
ex. statute allows permit authority to charge fees for police protection at public parades and demonstrations, but provides no clear fee structure
Scope of speech: the freedoms of speech include (3)
1) freedom NOT to speak
2) symbolic speech
3) anonymous speech
Scope of speech: freedom NOT to speak example
can’t require citizens to salute flag
but can charge a general fee that flows in a neutral way to organizations
Scope of speech: example of symbolic speech
wearing arm bad in protest of war
Scope of speech: Gov’t may regulate symbolic speech ONLY if it has (3 things)
1) an IMPORTANT PURPOSE
2) that is UNRELATED to SUPPRESSION of the MESSAGE, and
3) if the burden on communication is NO GREATER THAN NECESSARY to achieve that purpose
Scope of speech: Anonymous speech
don;t have to disclose speaker identity
ex. gov’t can’t insist that all protest literature disclose identity of authors or distributors
gov’t can’t force public school teacher to reveal all political or social organizational memerships in order to demonstrate gov’t loyalty
If, after first determining whether regulation is content-based or content-neutral (conduct) and it’s content based, what’s the next step?
protected or unprotected category?
if protected, must meet strict scrutiny
if unprotected, must meet applicable rule to be constitutional
Content-based regulation: unprotected or less protected speech (that will be constitutional if qualify under applicable rule) (7 kinds)
1) incitement of illegal conduct
2) fighting words
3) true threat
4) obscenity and sexually-oriented speech
5) defamation
6) fraud
7) commercial speech
Content-based regulation: unprotected or less protected speech: Incitement of illegal conduct: for speech to be punished as “incitement,” the illegal CONDUCT must be…
likely and imminent and intended by the speaker
statute regulating speech must articulate ALL of these factors or else it’s FACIALLY UNCONSTITUTIONAL
Content-based regulation: unprotected or less protected speech: FIGHTING WORDS: fighting words are…
- ABUSIVE words
- DIRECTED PERSONALLY to the hearer
- that are LIKELY to produce
- IMMEDIATE AND PHYSICALLY VIOLENT REACTIONS
- in the average person
Content-based regulation: unprotected or less protected speech: FIGHTING WORDS: note on hate speech regulations
subject matter of hate speech can be regulated
BUT not certain disfavored viewpoints (if pick out certain words, facially unconstitutional)
Content-based regulation: unprotected or less protected speech: FIGHTING WORDS: why do regulations of fighting words almost always fail?
the trio:
- vague
- overbroad
- undue discretion
Content-based regulation: unprotected or less protected speech: True threat: a true threat is a statement that…
- a RP would interpret
- under the circumstances
- as the D’s SERIOUS DECLARATION
- of INTENT
- to MURDER or INFLICT BODILY HARM
Content-based regulation: unprotected or less protected speech: irrelevant factors under true threat (3)
1) whether threat made directly to intended target or not
2) whether threat made w/ knowledge that it would be communicated to the target
3) whether the threat was made in a private conversation or in public
Content-based regulation: unprotected or less protected speech: Obscenity and sexually-oriented speech (including production, sale, delivery of material): the material must…
- describe or depict sexual conduct that
- taken as a whole by the average person
1) appeals to the PRURIENT INTEREST in sex, using community standards
2) is patently OFFENSIVE, using community standards, and
3) LACKS SERIOUS VALUE of a literary, artistic, political, or scientific nature, using a national RP standard
Content-based regulation: unprotected or less protected speech: Obscenity and sexually-oriented speech: Must child pornography meet the test?
NO.
production, distribution, sale and POSSESSION of materials depicting ACTUAL minors engaging in sexual activities can be banned
Content-based regulation: unprotected or less protected speech: Obscenity and sexually-oriented speech: What about sale of virtual (fake) child pornography?
It’s protected, but can be regulated if meets obscenity test
can be punished if ADVERTISED as real
Content-based regulation: unprotected or less protected speech: Obscenity and sexually-oriented speech: Can location of adult bookstores and theaters be regulated by zonings regs?
YES if doesn’t eliminate possibility of all such places
Content-based regulations: unprotected or less protected categories can be regulated based on…
subject matter BUT must be viewpoint neutral
Content-based regulations: unprotected or less protected speech: commercial speech: commercial advertising that solicits for an ILLEGAL ACTIVITY or that is FALSE or MISLEADING is….
unprotected speech that can be prohibited
Content-based regulations: unprotected or less protected speech: commercial speech: TRUTHFUL advertising w/ an INHERENT RISK of DECEIVING or MISLEADING the public can…
be forbidden
Content-based regulations: unprotected or less protected speech: commercial speech: gov’t regulation of truthful commercial advertising for lawful products or services (w/ no risk of deceiving or misleading) will be upheld if it meets what level of scrutiny?
intermediate level scrutiny
Content-based regulations: for protected speech categories, all other content-based regulations of speech must meet…
strict scrutiny review
gov’t restrictions on speech activities that it funds must be viewpoint neutral
Content-neutral regulation (conduct): time/place/manner regulations of speech and assembly: examples of TRADITIONAL public forums
public streets and parks
Content-neutral regulation (conduct): time/place/manner regulations of speech and assembly: examples of designated public forums
public auditoriums and theaters
Content-neutral regulation (conduct): time/place/manner regulations of speech and assembly in traditional OR designated public forums ONLY permitted if regulation is (3 things)
1) is CONTENT NEUTRAL both as to subject matter AND viewpoint
2) is NARROWLY TAILORED to serve an important gov’t interest (mix of strict and intermediate) and
3) leaves open ALTERNATIVE AVENUES of communications
Content-neutral regulation (conduct): time/place/manner regulations of speech and assembly: examples of LIMITED or NONPUBLIC forums
gov’t workplaces, schools, military bases, post office, public library, airport terminal
Content-neutral regulation (conduct): time/place/manner regulations of speech and assembly in limited OR nonpublic forums permissible if (2 things)
1) viewpoint neutral (but can be content-based) and
2) meets rational basis review (rationally related, legitimate gov’t interest)
ex. school administrators can control subject-matter of student articles and speeches (e.g. sexually oriented topics) by view-point neutral regs
Content-neutral regulation (conduct): time/place/manner regulations of speech and assembly: what can gov’t do to protect private property?
gov’t may adopt REASONABLE regulations to limit access to private property for speech or assembly purposes
No 1A right to use for speech purposes!
Campaign funding: rule for contributions and expenditures
gov’t can’t limit the amounts that a person can spend on his/her OWN campaign or
on INDEPENDENT EXPENDITURES (not contributed directly to candidate or coordinated w/ campaign committee) (individuals, corps, unions, business ass’ns have same right)
to get candidate elected
but CAN limit CONTRIBUTIONS to political candidates and require that candidates DISCLOSE the names of contributors and amounts they contributed
Freedom of the press: basic principle
media enjoy no greater free speech freedoms than do private citizens
Freedom of the press: rule re: general regulations or taxes
general regulations or taxes imposed on businesses apply to the media
Freedom of the press: rule re: special regulations or taxes- level of scrutiny?
special regulations or taxes targeting media SPECIFICALLY must meet strict scrutiny
Freedom of the press: media MAY publish info originally obtained unlawfully IF (3 things)
1) the info is truthful and a matter of public concern
2) media did not obtain it unlawfully or know who did, AND
3) original speaker of the truthful info had reduced expectations of privacy
Freedom of the press: content-based regs of ALL media are subject to…
strict scrutiny (assuming not unprotected speech)
Freedom of the press: content-neutral regs of print, internet, cable tv are reviewed under…
strict scrutiny
Freedom of the press: content-neutral regs of radio and TV broadcasts subject to..
intermediate scrutiny
Freedom of Association: examples of association for political activities
political meetings, protests, parades
Freedom of Association: gov’t can’t…
prohibit politically unpopular groups or
unduly burden a person’s right to belong to such groups
Freedom of Association: association for political speech purposes is what kind of right? and what review must be applied?
fundamental right
strict scrutiny
Freedom of Association: association for illegal activities may be…
prohibited
and membership punished
Freedom of Association: what must gov’t prove (and appear on face of the law for it to be facially constitutional) about a person to prohibit association for illegal activities? 3 things
person
1) actively PARTICIPATES in the group
2) KNOWING of its illegal activities
3) INTENDING to further those activities
Freedom of Association: anonymous association: what standard of review must laws requiring disclosure of group membership that may CHILL association meet?
strict scrutiny
Freedom of Association: laws forbidding a group to discriminate are invalid IF they…
interfere w/ the group’s expressive activity
but gov’t not required to subsidize a discriminatory group on the same terms as a non-discriminatory group
ex. of activity upheld: exclusion of GLB groups from open participation in St. Patrick’s day parade
refusal to subsidize student religious group that excludes GLB members
Freedom of association: gov’t employees: a public EE or independent gov’t contractor can’t be fired or disciplined for expressing opinions in…
public as a citizen
on matters of public interest
UNLESS speech or association undermines the ER’s AUTHORITY or DISRUPTS ER’s POLICIES
But 1A DOESN’T protect statements made in EE’s or contractor’s OFFICIAL CAPACITY w/i the workplac
Freedom of ass’n: loyalty oaths: gov’t may require EEs to take loyalty oaths that are not…
vague or overbroad
Freedom of religion: free exercise clause: gov’t can’t specifically PUNISH or INTERFERE w/…
but it can…
religious beliefs
but it can INCIDENTALLY BURDEN religious PRACTICES by GENERAL regs of CONDUCT
Freedom of religion: establishment clause: gov’t disc AGAINST religion or AMONG religions must meet…
strict scrutiny
ex. state registration requirements except a certain religious group - would fail strict scrutiny
Freedom of religion: establishment clause: a NON-discriminatory regulation must meet the Lemon 3 part test:
1) it must serve a SECULAR purpose
2) its PRIMARY EFFECT must not ADVANCE or INHIBIT religion and
3) it must not create an excessive gov’tal entanglement w/ a religious administration or bureaucracy
ex. posting of 10 commandments in public school (struck) vs. holiday display w. nativity set and secular symbols (upheld)
Freedom of religion: establishment clause: financial bens to religious institutions: gov’t must remain ___ b/w religious and secular private school choices
neutral
if money goes INdirectly through uncoerced choice of private ppl, upheld
Freedom of religion: establishment clause: religious activity in public schools: distinction b/w SPONSORSHIP of religion (unconst) and ACCOMMODATION of religious exercise under “equal access” rule - examples of each
1) moment of silence laws aiming to promote religious prayer in public school- invalidated
2) student prayer groups must be accommodated on same basis as other non-religious student groups
