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Constitutional Law > 1st Amendment part 1 - Free Speech > Flashcards

1st Amendment part 1 - Free Speech Flashcards

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1
Q

What issues arise under first amendment?

A
  1. Freedom of speech (and press)
  2. Freedom of Association
  3. Freedom of Religion (Free Exercise, Establishment Clause)
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2
Q

What does the “Free Speech Clause” restrict?

A

The free speech clause restricts government regulation of private speech.

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3
Q

What is the rule regarding speech by government OR funding of private speech by government?

A

It DOES NOT implicate the 1st amendment, and therefore does NOT get the various levels of regulation of private speech.

It is upheld if “rationally related to a legitimate government interest”.

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4
Q

What are the limitations on speech by government OR funding of private speech by government?

A
  • Spending programs may NOT limit 1st amendment activities outside scope of funding
  • If private speech is funded, it must do so on a viewpoint neutral basis
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5
Q

With regards to “Free Speech” - what are “content” and “conduct” regulations?

A

“Content regulations” - regs forbidding communication of specific ideas

“Conduct regulations” - regs of conduct associated with speaking. Ex –> time, sound level etc.

NOTE: Different standards of scrutiny apply to the different types of regulations

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6
Q

With regards to “Free Speech” - what standard of review applies to “content regulations”?

A
  • content regulations –> STRICT SCRUTINY:
    1. must be necessary;
    2. to achieve a COMPELLING gov interest
  • Content neutral speech regulations are subject to INTERMEDIATE SCRUTINY:
    1. must advance IMPORTANT interests unrelated to the restriction of speech; AND
    2. must be NARROWLY TAILORED (ie..must not burden substantially more speech than is necessary) to accomplish that purpose
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7
Q

With regards to “Free Speech” - what standard of review applies to “conduct regulations” (time/manner/place restrictions)?

A

This will depend on whether it’s a

  1. public forum/designated public forum; OR
  2. limited public forum/non public forum
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8
Q

What limitations apply to ALL limitations on speech (whether content or conduct)?

A
  1. Overbroad regulation invalid
  2. Void for vagueness
  3. Unfettered discretion
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9
Q

What is the rule regarding “overbroad speech regulations”?

A

If it’s overbroad, it’s facially invalid

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10
Q

What is the rule regarding “void for vagueness speech regulations”?

A

If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate due process.

NOTE: This is interpreted strictly when 1st amendment is involved.

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11
Q

What is the rule regarding “free speech” and “unfettered discretion”?

A

A regulation cannot give officials broad discretion on speech issues.

  • if a statute gives licensing officials unbridled discretion, it is void on its face, and speakers need not even apply for a permit
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12
Q

Does “freedom of speech” include freedom not to speak?

A

YES.

Thus, gov cannot force people to salute the flag, or display messages with which they disagree.

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13
Q

What is a “public forum” or “designated public forum”?

A

“public forum” - public property that has historically been open to speech related activity (streets, sidewalks, public parks, internet)

“designated public forum” - public property that has not historically been open to speech related activity, but that the government has thrown open for such activities on a permanent or limited basis by practice or policies

Example –> school rooms that are open after-school for social, civic, or recreation groups

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14
Q

What is the standard of review for time/place/manner restrictions in “public forums” and “designated public forums”?

A

Gov may regulate speech in PUBLIC FORUMS and DESIGNATED PUBLIC FORUMS with reasonable time, place, and manner restrictions that:

  1. Are content neutral (subject matter and viewpoint neutral);
  2. Narrowly tailored to serve an IMPORTANT government interest (but not necessarily least restrictive);
  3. Leave open ALTERNATIVE channels of communication
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15
Q

What is a “limited public forum” or “non-public forum”?

A

“Limited public forum” - property not historically linked w speech and assembly, but opened for a specific speech activity (for example, debate at school).

“Non-public forum” - gov property not linked w speech (example –> military base, schools while classes are in session, government workplaces)

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16
Q

What is the standard of review for time/place/manner restrictions in “limited public forums” and “non-public forums”?

A

Gov can regulate speech to RESERVE THE FORUM FOR ITS INTENDED USE, provided that regs are:

  1. viewpoint neutral;
  2. reasonably related to a legitimate government purpose
17
Q

What is the general rule regarding “unprotected speech”?

A

Restrictions on content generally must be NECESSARY to achieve a COMPELLING state interest (strict scrutiny).

Courts have ruled that gov has a compelling interest in regulating the following:

  1. Inciting Imminent Lawless Action
  2. Fighting words
  3. Obscenity
  4. Defamatory
  5. Some commercial speech
18
Q

What is the rule regarding “free speech” and “inciting imminent lawless action”?

A

Speech can be burdened if it creates a CLEAR AND PRESENT danger of IMMINENT LAWLESS ACTION.

Must be shown that:

  1. imminent illegal conduct is likely; AND
  2. speaker intended to cause it
19
Q

What is the rule regarding “free speech” and “fighting words” ?

A

True threats are not protected by 1st amendment (Example –> burning of cross to intimidate)

Speech can also be burdened if it constitutes “fighting words” - personally abusive words that are likely to incite immediate physical retaliation in an average person.

NOTE –> Mere annoyance is not enough

NOTE –> statutes cannot punish fighting words that aren’t viewpoint neutral (for example, fighting words that insult on the basis of race, religion, or gender)

NOTE –> on exam, most laws on this issue will be invalid as overbroad

20
Q

What is the rule regarding “free speech” and “obscenity”?

A

Obscenity is not protected speech.

21
Q

When is speech obscene?

A
  1. appeals to prurient interest in sex (community standard);
  2. is patently offensive (community standard);
  3. Lacks serious value (literary, artistic, political, scientific) (National standard)
22
Q

What is the special rule regarding obscenity and minors?

A

Gov CAN adopt specific definition of obscenity for materials sold to minors (even if it might not be obscene to an adult audience).

HOWEVER –> gov cannot ban item for adults, simply bc it is obscene for kids

23
Q

What is the rule re: pictures of minors versus simulated pictures of minors?

A

May ban –> sale/distribution of visual depictions of sexual conduct involving minors

May NOT BAN –> depictions that APPEAR to be minors

24
Q

What is the rule re: speech and “land use regulations”?

A

Land use (zoning) reg MAY limit the size or location of adult entertainment establishments IF the reg is designed to reduce the secondary effects of such businesses (ie…rise in crime rates, drop in property values).

May not –> ban such establishments altogether

25
Q

What is the rule regarding private possession of obscene material?

A

In the home –> may not be punished

Outside the home –> may be punished

26
Q

What is the rule regarding free speech and defamatory speech?

A

Defamatory speech may be burdened

If defamatory statement is about a public figure or matter of public concern, must prove:

  1. Fault
  2. Falsity

(Action for IIED is similarly limited if it involved public figure or matter of public concern)

27
Q

What is the rule re: free speech and commercial speech?

A

Commercial speech is unprotected if it:

  1. promotes unlawful activity; OR
  2. is misleading or fraudulent

Restrictions on honest/lawful commercial speech are upheld if:

  1. serves a SUBSTANTIAL gov interest;
  2. DIRECTLY ADVANCES that interest; and
  3. is NARROWLY TAILORED (does not require least restrictive method, just needs to be reasonable fit)
28
Q

What is the rule re: complete bans on lawful and truthful commercial speech?

A

Not likely to be upheld, because they are not narrowly tailored

29
Q

What is the rule re: mandatory disclosures and commercial speech?

A

Gov may require commercial advertisers to make disclosures if:

  1. disclosure is NOT UNDULY BURDENSOME; and
  2. REASONABLY RELATED to state’s interest in preventing deception.
30
Q

What are “prior restraints on speech”?

A

Prior restraints are court orders or administrative systems that prevent speech before it occurs.

31
Q

What is the rule regarding “prior restraints on speech”?

A

Rarely permitted!

  1. gov must show SPECIAL SOCIETAL HARM
  2. There must be procedural safeguards:
    (i) standards must be narrowly drawn, reasonable, and definite;
    (ii) injunction must be PROMPTLY SOUGHT; and
    (iii) must be a PROMPT and FINAL determination of validity of restraint

NOTE –> gov has burden of showing that prior restraint is NARROWLY TAILORED to accomplish goal

32
Q

What is the rule regarding “free speech” and government employees?

A

If public employee’s speech is made in scope of official duty —> employer may punish EVEN if it touches on public concern

If speech NOT made in scope of official duty, and does NOT involve a matter of public concern —> employer may punish EE if speech was disruptive of work environment

If speech NOT made in scope of official duty, and is a matter of public concern —> Court must balance:

  1. employee’s rights as citizen to comment AGAINST;
  2. government’s interests as employer in efficiency
33
Q

May federal gov prohibit federal executive employees from taking part in political campaigns?

A

Yes.

34
Q

What is the rule re: public employees and party affiliation/political views?

A

A public EE may not be hired, fired, transferred based on political views.

Exception –> policymaking positions where party affiliation is relevant

35
Q

What is the rule re: public employees and loyalty oaths?

A

Gov MAY require EE’s to take loyalty oaths, as long as they are not:

  1. overbroad;
  2. vague

OK:
1. oath requiring EE’s to support constitution and oppose UNLAWFUL overthrow of government

Not Ok:

  1. oath requiring public EE’s saluting flag
  2. oath prohibiting membership in communist party
36
Q

What is the rule regarding forced disclosure of organizational membership?

A

Gov MAY NOT force disclosure of organizational membership in exchange for gov employment or benefit.

Gov MAY ONLY inquire as to those activities that are relevant to job/benefit sought.

NOTE: person may plead 5th if response is incriminating

Constitutional Law (18 decks)

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