1ST AMENDMENT PROTECTIONS Flashcards
Freedom of Religion
Religion is protected under the Free Exercise Clause and the Establishment Clause of the 1st A
Free Exercise Clause–The FEC protects freedom to exercise religion. Strict scrutiny applies.
* Limitation–FEC only applies if the purpose of the law is to limit or interfere with religious practice
» Laws of general applicability (i.e. not designated to
regulate or interfere with religion) are valid
* Govt cannot deny benefits to individuals who quit jobs for religious reasons
Establishment Clause–If the govt discriminates against a specific religion or sect (as opposed to religion generally_ the EC applies and strict scrutiny is used.
- If the govt restricts or burdens religion WITHOUT discriminating against a specific faith or group, the Lemon test applies. A govt act burdening religion will only be upheld if:
1) The is a secular purpose behind the act
2) The act’s primary purpose neither advances nor inhibits religion; and
3) The act does not create excessive entanglement with religion
Freedom of Association: Membership & Disclosure Restrictions
Freedom of association issues arise when laws prohibit or punish group membership. Strict scrutiny applies.
Laws criminalizing membership–Govt must prove that D:
1) Actively affiliated with a group involved with illegal activities
2) Had knowledge go the group’s illegal activities
3) Acted with specific intent of furthering those activities
Disclosure Requirements–Laws requiring disclosure of group membership must meet SS if disclosure would have a “chilling” effect on the association (i.e. if it would inhibit groups ability or willingness to associate)
Freedom of Association: Prohibiting Group Discrimination
Prohibitions on group discrimination are unconstitutional only if they interfere with intimate association or expressive activities
Intimate Association–Small, intimate groups have absolute freedom of association
* E.g. Small groups or clubs, dinner parties
Expressive Association/Activities–Groups have the right to associate for the purpose of engaging in protected 1st A activities (i.e. activities integral tot the group’s purpose)
*Usually involves groups formed for excessive, non-intimate associative purposes (e.g. NAACP, Bout Scouts, KKK)
» E.g. The KKK is not required to accept African-American
members, as this exclusion is integral to its association
and thus protected
Free Speech Framework
Determining applicable test/levels of scrutiny
* ASK: Does the speech at issue fall within a lesser-protected category of speech (e.g. obscenity, symbolic speech, commercial speech, etc.)?
» YES–Apply the appropriate test for that category of
lesser-protected speech
» NO–Identify whether the speech restriction is content-
based or content-neutral to determine applicable
scrutiny
Content-BASED Speech–Content-based speech regulations restrict speech based on its subject matter and/or viewpoint (i.e. ideology of message) require SS analysis.
» E.g. Ordinance banning political protests–restricts speech on its subject matter (politics)
» E.g. City grants rally permit to liberal group but denies a rally permit for a conservative group–restricts speech based on viewpoint
Content-NEUTRAL Speech–Content-netural regulations restrict the time, place, or manner of the delivery of speech, not its content. These restrictions are analyzed under the public forum doctrine. The applicable scrutiny test depends on whether the speech is in a public or non-public forum
» Public Forum = Intermediate-type scrutiny
» Non-Public Forum = Rational Basis-type scrutiny
Speech in Public Forums
Public forums are govt property that the govt is constitutionally required to make available for speech (e.g. sidewalks, parks). Regulations must be content-NEUTRAL, if not, SS applies
Restrictions on speech in a public forum–To be upheld, the restriction must:
1) Be content-NEUTRAL (i.e. only regulates time, place or manner)
2) Must be narrowly tailored to serve an important govt purpose
3) Leave open adequate, alternative channels of communication (Does not need to be the least-restrictive alternative)
* Permit fees that vary depending on the type of speech are content-based and unconstitutional
Speech in Limited/Designated Public Forums
Govt properties that the govt open for speech, but can close anytime (e.g. public school facilities for girl scout meetings) are limited/designated public forums. The same rules apply as for public forum restrictions, but only apply when the govt property is open for speech
To be upheld, the restriction must:
1) Be content-NEUTRAL (i.e. only regulates time, place or manner); AND
2) Must be narrowly tailored to serve an important govt purpose; AND
3) Leave open adequate, alternative channels of communication (Does not need to be the least-restrictive alternative)
* When closed for speech or restricted to certain types of speech, analyze regulations the same as for non-public forums
Speech in Non-Public Forums
Govt property that can be closed to speech (e.g. military bases, airports, advertising on city buses, sidewalks on post office property, areas outside prisons & jails) are non-public forums. The govt can regulate speech if the regulation is:
1) Reasonably related to some legitimate purpose, AND
2) Viewpoint Neutral
» Note: Content-neutrality not requires; govt can allow speech on some subjects but not others, yet if it opens speech to a subject it cannot limit speech to only one view
Speech on Private Property
There is not 1st A right to use private property for speech purposes (e.g. privately owned shopping centers)
Prior Restraints
Prior restraints involve a prohibition on speech (or publication) before it occurs. SS applies.
Identifying Prior Restraints–Look for prevention of expression. Prior restraints prevent expression, whereas other speech restrictions punish expression after it has occurred
Injunctions–Most common type of prior restraint. It is extremely difficult to get an injunction prohibiting speech.
- “Gag orders” against pre-trial publicity almost never allowed
- Note: P buys compel with valid injunction until it is vacated or overturned; P cannot challenge a violated injunction (Collateral Bar Rule)
Permits/Licensing–Govt may require licenses or permits for speech only if there is a reasonable justification for doing so.
- License/permit requirements must be similar to a “rubber stamp” process and must provide procedural safeguards and judicial review for denied permits/licenses
- P can challenge a denial on constitutional grounds, even if violated
Vagueness
A law is vague if a reasonable person cannot tell whether speech is prohibited or permitted
- E.g. Law prohibiting people from assembling and conducting themselves “in a manner annoying to passersby”–unconstitutionally vague b/c a reasonable person must guess at to what behavior is punishable
Note: “Fighting words” statutes are unconstitutionally vague and overbroad and will not be upheld
Overbreadth
A law is overbroad if it regulates substantially more speech than the Const. allows to be regulated
- An overbroad law restricts unprotected speech, but in doing so restricts protected speech
» E.g. Law prohibiting all “live entertainment” restricts
obscenity (valid), but also prohibits protected speech in
concerts or theaters (invalid)
*If a speech restriction is overbroad, it cannot be enforced against anyone, even one whose speech is not protected
Note: “Fighting words” statutes are unconstitutionally vague and overbroad and will not be upheld
Symbolic Speech
Symbolic speech refers to expressive or communicative conduct (i.e. conduct intended to convey a message). Govt can regulate symbolic speech if:
1) The regulation furthers an important govt interest
2) The govt interest is unrelated to suppression of the message
» If the restriction is aimed at speech more than conduct, it is likely unconstitutional
3) The impact on speech is no greater than necessary to further the important govt interest
Examples:
- Burning U.S. flag– protected symbolic speech
- Burning a draft card– not protected
- Nude dancing– not protected
- Burning a cross– protected unless intended to threaten
