1st Amendment Expressive Freedoms: speech, press, association, religion

Question 1

Generally, what’s the concern?

Answer 1

gov’t regulation of expressive activities

Question 2

Freedom of speech: basic principles

Free speech only restricts regulation of what kind of speech?

Answer 2

PRIVATE speech

Question 3

Content-based vs. content-neutral regulations:

When is a restriction content-BASED?

Answer 3

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

Question 4

Content-based vs. content-neutral regulations:

What test must content-BASED regulations meet?

Answer 4

strict scrutiny

Question 5

Content-based vs. content-neutral regulations:

When is a law content-NEUTRAL?

Answer 5

when it burdens expressive CONDUCT

Question 6

Content-based vs. content-neutral regulations:

What test must content-NEUTRAL regulations meet (conduct)?

Answer 6

intermediate-level scrutiny (3-part test)

Question 7

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)

Answer 7

1) unprotected speech (defamation, obscenity)
2) less protected speech
3) gov’t-funded speech

Question 8

First amendment disfavors prior restraints. What does a prior restraint do?

Answer 8

prevents speech BEFORE it occurs

Question 9

What level of scrutiny must prior restraint meet?

Answer 9

strict scrutiny

Question 10

What’s an example of a prior restraint?

Answer 10

court “gag order” on press publication

Question 11

Prior restraints: licensing & permitting authorities for expressive activities must operate under what kind of standards?

Answer 11

NARROWLY DRAWN and CLEAR standards

that leave NO DISCRETION

Question 12

Prior restraints: licensing & permitting authorities for expressive activities - what if there’s a denial of license or permit?

Answer 12

must be opportunity for PROMPT JUDICIAL REVIEW

BUT procedurally proper court order must be followed UNTIL vacated or overturned (after challenged)

Question 13

1st Amendment question: where to start? determine whether restriction is…

Answer 13

content-based OR content neutral

Question 14

1st Amendment question: where to end? issue trio

Answer 14

vague, overbroad, unduly discretionary

Question 15

Rule for a VAGUE regulation of speech: a regulation is…

Answer 15

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”

Question 16

Rule for OVERBROAD regulation of speech: a reg is overbroad if…

Answer 16

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

Question 17

Rule for UNDULY DISCRETIONARY regulation of speech: a reg is unduly discretionary if…

Answer 17

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

Question 18

Scope of speech: the freedoms of speech include (3)

Answer 18

1) freedom NOT to speak
2) symbolic speech
3) anonymous speech

Question 19

Scope of speech: freedom NOT to speak example

Answer 19

can’t require citizens to salute flag

but can charge a general fee that flows in a neutral way to organizations

Question 20

Scope of speech: example of symbolic speech

Answer 20

wearing arm bad in protest of war

Question 21

Scope of speech: Gov’t may regulate symbolic speech ONLY if it has (3 things)

Answer 21

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

Question 22

Scope of speech: Anonymous speech

Answer 22

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

Question 23

If, after first determining whether regulation is content-based or content-neutral (conduct) and it’s content based, what’s the next step?

Answer 23

protected or unprotected category?

if protected, must meet strict scrutiny

if unprotected, must meet applicable rule to be constitutional

Question 24

Content-based regulation: unprotected or less protected speech (that will be constitutional if qualify under applicable rule) (7 kinds)

Answer 24

1) incitement of illegal conduct
2) fighting words
3) true threat
4) obscenity and sexually-oriented speech
5) defamation
6) fraud
7) commercial speech

Question 25

Content-based regulation: unprotected or less protected speech: Incitement of illegal conduct: for speech to be punished as "incitement," the illegal CONDUCT must be...

Answer 25

likely and imminent and intended by the speaker statute regulating speech must articulate ALL of these factors or else it's FACIALLY UNCONSTITUTIONAL

Question 26

Content-based regulation: unprotected or less protected speech: FIGHTING WORDS: fighting words are...

Answer 26

- ABUSIVE words - DIRECTED PERSONALLY to the hearer - that are LIKELY to produce - IMMEDIATE AND PHYSICALLY VIOLENT REACTIONS - in the average person

Question 27

Content-based regulation: unprotected or less protected speech: FIGHTING WORDS: note on hate speech regulations

Answer 27

subject matter of hate speech can be regulated BUT not certain disfavored viewpoints (if pick out certain words, facially unconstitutional)

Question 28

Content-based regulation: unprotected or less protected speech: FIGHTING WORDS: why do regulations of fighting words almost always fail?

Answer 28

the trio: - vague - overbroad - undue discretion

Question 29

Content-based regulation: unprotected or less protected speech: True threat: a true threat is a statement that...

Answer 29

- a RP would interpret - under the circumstances - as the D's SERIOUS DECLARATION - of INTENT - to MURDER or INFLICT BODILY HARM

Question 30

Content-based regulation: unprotected or less protected speech: irrelevant factors under true threat (3)

Answer 30

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

Question 31

Content-based regulation: unprotected or less protected speech: Obscenity and sexually-oriented speech (including production, sale, delivery of material): the material must...

Answer 31

- 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

Question 32

Content-based regulation: unprotected or less protected speech: Obscenity and sexually-oriented speech: Must child pornography meet the test?

Answer 32

NO. production, distribution, sale and POSSESSION of materials depicting ACTUAL minors engaging in sexual activities can be banned

Question 33

Content-based regulation: unprotected or less protected speech: Obscenity and sexually-oriented speech: What about sale of virtual (fake) child pornography?

Answer 33

It's protected, but can be regulated if meets obscenity test can be punished if ADVERTISED as real

Question 34

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?

Answer 34

YES if doesn't eliminate possibility of all such places

Question 35

Content-based regulations: unprotected or less protected categories can be regulated based on...

Answer 35

subject matter BUT must be viewpoint neutral

Question 36

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....

Answer 36

unprotected speech that can be prohibited

Question 37

Content-based regulations: unprotected or less protected speech: commercial speech: TRUTHFUL advertising w/ an INHERENT RISK of DECEIVING or MISLEADING the public can...

Answer 37

be forbidden

Question 38

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?

Answer 38

intermediate level scrutiny

Question 39

Content-based regulations: for protected speech categories, all other content-based regulations of speech must meet...

Answer 39

strict scrutiny review | gov't restrictions on speech activities that it funds must be viewpoint neutral

Question 40

Content-neutral regulation (conduct): time/place/manner regulations of speech and assembly: examples of TRADITIONAL public forums

Answer 40

public streets and parks

Question 41

Content-neutral regulation (conduct): time/place/manner regulations of speech and assembly: examples of designated public forums

Answer 41

public auditoriums and theaters

Question 42

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)

Answer 42

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

Question 43

Content-neutral regulation (conduct): time/place/manner regulations of speech and assembly: examples of LIMITED or NONPUBLIC forums

Answer 43

gov't workplaces, schools, military bases, post office, public library, airport terminal

Question 44

Content-neutral regulation (conduct): time/place/manner regulations of speech and assembly in limited OR nonpublic forums permissible if (2 things)

Answer 44

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

Question 45

Content-neutral regulation (conduct): time/place/manner regulations of speech and assembly: what can gov't do to protect private property?

Answer 45

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!

Question 46

Campaign funding: rule for contributions and expenditures

Answer 46

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

Question 47

Freedom of the press: basic principle

Answer 47

media enjoy no greater free speech freedoms than do private citizens

Question 48

Freedom of the press: rule re: general regulations or taxes

Answer 48

general regulations or taxes imposed on businesses apply to the media

Question 49

Freedom of the press: rule re: special regulations or taxes- level of scrutiny?

Answer 49

special regulations or taxes targeting media SPECIFICALLY must meet strict scrutiny

Question 50

Freedom of the press: media MAY publish info originally obtained unlawfully IF (3 things)

Answer 50

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

Question 51

Freedom of the press: content-based regs of ALL media are subject to...

Answer 51

strict scrutiny (assuming not unprotected speech)

Question 52

Freedom of the press: content-neutral regs of print, internet, cable tv are reviewed under...

Answer 52

strict scrutiny

Question 53

Freedom of the press: content-neutral regs of radio and TV broadcasts subject to..

Answer 53

intermediate scrutiny

Question 54

Freedom of Association: examples of association for political activities

Answer 54

political meetings, protests, parades

Question 55

Freedom of Association: gov't can't...

Answer 55

prohibit politically unpopular groups or unduly burden a person's right to belong to such groups

Question 56

Freedom of Association: association for political speech purposes is what kind of right? and what review must be applied?

Answer 56

fundamental right strict scrutiny

Question 57

Freedom of Association: association for illegal activities may be...

Answer 57

prohibited and membership punished

Question 58

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

Answer 58

person 1) actively PARTICIPATES in the group 2) KNOWING of its illegal activities 3) INTENDING to further those activities

Question 59

Freedom of Association: anonymous association: what standard of review must laws requiring disclosure of group membership that may CHILL association meet?

Answer 59

strict scrutiny

Question 60

Freedom of Association: laws forbidding a group to discriminate are invalid IF they...

Answer 60

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

Question 61

Freedom of association: gov't employees: a public EE or independent gov't contractor can't be fired or disciplined for expressing opinions in...

Answer 61

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

Question 62

Freedom of ass'n: loyalty oaths: gov't may require EEs to take loyalty oaths that are not...

Answer 62

vague or overbroad

Question 63

Freedom of religion: free exercise clause: gov't can't specifically PUNISH or INTERFERE w/... but it can...

Answer 63

religious beliefs but it can INCIDENTALLY BURDEN religious PRACTICES by GENERAL regs of CONDUCT

Question 64

Freedom of religion: establishment clause: gov't disc AGAINST religion or AMONG religions must meet...

Answer 64

strict scrutiny ex. state registration requirements except a certain religious group - would fail strict scrutiny

Question 65

Freedom of religion: establishment clause: a NON-discriminatory regulation must meet the Lemon 3 part test:

Answer 65

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)

Question 66

Freedom of religion: establishment clause: financial bens to religious institutions: gov't must remain ___ b/w religious and secular private school choices

Answer 66

neutral if money goes INdirectly through uncoerced choice of private ppl, upheld

Question 67

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

Answer 67

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