1st Amendment Free Speech and Religion Flashcards
What are the four protections under the 1st Amendment?
Expression: Right to communicate information & ideas through speech or conduct
Association: Right to form or participate in any group or organization
Press: Right to publish truthful information
Religion:
1) Free exercise – right to practice religion or no religion without government interference
2) Establishment – prohibits government from favoring particular religion or religion generally
How does the 1st Amendment protect members of the media?
The First Amendment shields the media from criminal and civil liability for publishing lawfully obtained private facts (e.g., crime victim’s identity) and other truthful information involving matters of public concern (i.e., newsworthy events).
Is the media shielded from liability for publishing truthful information that was unlawfully obtained by a third party?
Yes, if:
1) The information involves a matter of public concern; and
2) The publisher neither obtained it unlawfully nor knows who did.
Do public government employees enjoy the same 1st Amendment protections as private citizens?
No, if the employee’s speech is made within the scope of the public employee’s ordinary job duties.
How can a public employee speak as a private citizen, and how can the government react?
A public employee’s speech is made outside the scope of his/her ordinary job duties, even if that speech concerns those job duties. (I.E. TESTIFYING IN COURT)
When a public employee is speaking as a private citizen on a matter of public concern, the government can limit that speech only if its interest in efficient government function outweighs the employee’s right to free speech.
What are content-based regulations to speech?
Where the regulation of speech is content-based on it’s face, specifically prohibiting certain topics or forms of speech.
Will need to meet strict scrutiny.
What are content-neutral regulations to speech?
Where the speech is limited by time, place, and manner.
What is government property that is open for public speech?
1) Traditional Public Forum
2) Designated Public Forum
3) Nonpublic Forums
How may the government impose content-neutral restrictions in designated public forums?
Reasonable restrictions on time, place, and manner on protected speech, so long as:
1) Content neutral as to subject matter and viewpoint
2) Narrowly tailored
3) Serves significant government interest
4) Leaves open ample alternative channels for communication of the information.
Content Neutral Regulation: Symbolic Speech
The government may regulate speech that is expressed through symbolic acts if
1) It has an important issue
2) Regulation is independent of speech aspects
3) Burden is not greater than necessary
When is a speech regulation overbroad?
Will be overbroad if it burdens a substantial amount of speech or conduct that is constitutionally protected by 1st Amendment.
When is a speech regulation vague?
If a person of average intelligence cannot tell what speech is prohibited.
What is the Free Exercise Clause?
Allows the freedom to believe in any religion (or no religion). However, government can still regulate certain religious conduct.
Neutral Laws of General Applicability: Intentionally impact religious conduct. Rational basis.
Intentional Restrictions on Religion: Subject to strict scrutiny.
What is the Establishment Clause?
Requires the government to be neutral towards religion.
Generally reviewed under historical practice and understandings test, which imposes the presumption of constitutionality for longstanding monuments, symbols, and practices.
However, for laws that direct impact religion, strict scrutiny applies.
ESSAY TIP: In a 1st Amendment claim, how should you be prepared to discuss the issues?
1) General 1st Amendment; Content-Based or Content Neutral? Overbreath? Vague?
2) Religion (Establishment Clause, Free Exercise Clause)
