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CA Bar 2023: Con Law > (20) Constitutional Law: First Amendment > Flashcards

(20) Constitutional Law: First Amendment Flashcards

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1
Q

1st Amendment

Overview

A

The 1st amendment protects the following rights: (1) Freedom of Speech; (2) Freedom to Exercise Religion; (3) Freedom of the Press; (4) Freedom to Peaceably Assemble; AND (5) The Right to Petition (the government for a redress of grievances).

*And Congress shall make no law concerning the establishment of religion.
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2
Q

Speech

1st Amendment / Overall Rule

A

The 1st Amendment protects the freedom of speech and the freedom not to speak.

Always ask yourself is it content based or content neutral.

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3
Q

1st Amendment Speech Analysis Structure

A
  1. Is it Content Based or Content Nuetral.
  2. If Content Based does it meet strict scrutiny or fall into an unprotected speech category?
  3. If Content Nuetral does it meet intermediate scrutiny and what type of forum is it in?
  4. Look at the other types of speech rules that could apply (a) Prior Restraint, (b) Expressive Conduct, (c) Gov Speech/Gov Employee Speech, (d) Corporate/Union Political Speech, (e) Political Campaign Contributions
  5. Defenses to Speech Regulations: (1)Overbreadth, (2) Vagueness, (3) Unfettered Discrettion.
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4
Q

Content Based Restrictions

1st Amendment - Speech

A

Government regulation on speech that is content based will only be upheld if it meets the strict scrutiny test (the regulation is necessary to achieve a compelling government interest and is narrowly tailored).

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5
Q

Content Based Restriction Exception

1st Amendment - Speech - Content-Based Restrictions

A

The government may restrict speech on the basis of content if the speech falls into one of the unprotected speech categories: (1) obscenity, (2) Speech that incites violence, (3) fighting words, (4) defamation, or (5) commercial speech.

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6
Q

Obscenity and Child Porn

1st Amendment - Speech - Content-Based Restrictions

A

Obscene speech nor child porn is protected. A 3 part test is used to determine if speech is obscene:

An average person applying the community standards must find the material taken as a whole (1) appeals to the prurient interest; (2) depicts sexual conduct in a patently offensive way; (3) AND lacks serious literary, artistic, political or scientific value.

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7
Q

If speech is established as porn is it obscene?

1st Amendment - Speech - Content-Based Restrictions

A

NO, merely establishing the speech is porn does not establish it is obscene.

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8
Q

Can adult stores be banned entirely?

1st Amendment - Speech - Content-Based Restrictions

A

NO, zoning ordinances can limit where adult stores are located but a regulation may not ban them entirely.

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9
Q

Can material that appeals to the prurient interests of minors only be regulated?

1st Amendment - Speech - Content-Based Restrictions

A

YES, material that appeals to the prurient interests of minors may be regulated but not in such a manner that it blocks adults access.

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10
Q

Incitement to Violence

1st Amendment - Speech - Content-Based Restrictions

A

The government may prohibit speech that advocates the use of force or unlawful action if (1) the speech is directed to incite or produce imminent lawless action; AND (2) it is likely to incite or produce such action (there is a clear and present danger).

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11
Q

Fighting Words

1st Amendment - Speech - Content-Based Restrictions

A

Fighting words are words that by their nature are likely to incite an immediate breach of peace. (There must be a genuine likelihood of imminent violence by a hostile audience).

*Attempts to prohibit fighting words almost always fail as vague or overbroad.

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12
Q

Defamation

1st Amendment - Speech - Content-Based Restrictions

A

Same rule as Tort Law

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13
Q

Definition:

Commercial Speech

1st Amendment - Speech - Content-Based Restrictions

A

Commercial speech is any economically oriented expression such as ads.

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14
Q

Commercial Speech

1st Amendment - Speech - Content-Based Restrictions

A

The government may regulate commercial speech if it passes this 4 part test: (1) the commercial speech concerns lawful activity and is neither false nor misleading; (2) the asserted government interest is substantial; (3) the regulation directly advances the asserted interest; AND (4) the regulation is narrowly tailored to serve that interest. (narrowly tailored here means reasonable fit between the governments ends and means to accomplish the interest).

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15
Q

Content Neutral Restrictions

1st Amendment - Speech

A

The government may regulate the time, place and manner of content neutral speech if the regulation satisfies intermediate scrutiny (the regulation is substantially related to an important government interest – the actual interest in passing the law; AND narrowly tailored – leaving alternate channels open).

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16
Q

Public Forum

1st Amendment - Speech - Content Neutral Restrictions

A

A public forum may be traditional or designated. Traditional public forums are those that are historically associated with expression (ex. Sidewalks, streets and parks).

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17
Q

Definition:

Designated Public Forums

1st Amendment - Speech - Content Neutral Restrictions

A

Is one that has not historically been used for speech related activities, but the government has opened for such use.

Ex. Civic auditoriums, publicly owned theaters, or school classrooms that the public is allowed to use afterhours.

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18
Q

Rule:

Applies for Traditional Public Forums and Designated Public Forums

1st Amendment - Speech - Content Neutral Restrictions

A

In either type of public forum the government may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions (1) are content-neutral as to subject matter and viewpoint; (2) are narrowly tailored to serve a significant government interest; AND (3) leave open ample alternative channels for communication.

*Restrictions that are not content neutral will be subject to strict 	scrutiny. 

*Absolute prohibition of a particular type of expression is subject 	to strict scrutiny.
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19
Q

Licensing Requirements (Public Forums)

1st Amendment - Speech - Content Neutral Restrictions

A

Licensing requirements are permitted in public forums if (1) the government has an important reason for licensing; (2) the standards are specific, articulated so that there is no unfettered discretion AND; (3) procedural safeguards are in place for assuring a prompt and final decision.

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20
Q

Definition:

Non-Public Forum

1st Amendment - Speech - Content Neutral Restrictions

A

Non-public forums are other public places that have been traditionally limited for free speech such as schools, military bases, jails, airports, the inside of a courthouse.

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21
Q

Non-Public Forum Rule

1st Amendment - Speech - Content Neutral Restrictions

A

The government may regulate speech in non-public forums if the regulation is (1) reasonably related to a legitimate government interest; AND (2) viewpoint neutral.

Aka: rational basis test + viewpoint neutral

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22
Q

Can a school force a student to participate in a flag salute?

1st Amendment - Speech - Content Neutral Restrictions - Non-public Forum

A

NO, eventhough this satisfies the rule.

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23
Q

Is it viewpoint neutral for the government to restrict all speech on guns?

1st Amendment - Speech - Content Nuetral Restrictions - Non-Public Forum

A

YES, it is viewpoint neutral if the government restricts all speech on guns. It would be unconstitutional to only limit the NRA from speaking on gun issues at the airport because that would be limiting only one viewpoint.

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24
Q

Definition

Limited Public Forum

1st Amendment - Speech - Content Nuetral Restrictions

A

Limited public forums are non-public forums that have been specifically designated by the government as open to certain groups or topics (ex. Municipal meeting rooms).

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25
Q

Limited Public Forum Rule

1st Amendment - Speech - Content Nuetral Restrictions

A

Limited public forums are treated the same as non-public forums which means the government may regulate speech if the regulation is (1) reasonably related to a legitimate government interest; AND (2) viewpoint neutral.

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26
Q

Rule & Exception

Prior Restraint

1st Amendment - Speech

A

Prior restraints are usually presumed to be unconstitutional because it is a regulation of speech prior to its expression. However, the following is an exception: (1) there is a particular harm to be avoided; AND (2) certain procedural safeguards are provided to the speaker.

27
Q

Prior Restraint

What is considered a “Procedural Safeguard”?

1st Amendment - Speech

A

Procedural safeguards: (a) standards must be narrowly drawn, reasonable and definite; (b) the censoring body must promptly seek and injunction; AND (c) there must be a prompt and final judicial determination of the validity of the restraint.

28
Q

Prior Restraint:

Who has the burden to prove the material to be censored is not protected speech?

1st Amendment - Speech

A

The burden is on the government to prove the material to be censored is not protected speech.

29
Q

Prior Restraint:

When did the court find prior restraint constitutional?

1st Amendment - Speech

A

Prior restraint has been rejected when national security was an issue and even when press coverage threatened the fairness of a trial.

30
Q

Define

Expressive Conduct

1st Amendment - Speech

A

Expressive conduct = picketing, leafleting, signing a petition.

31
Q

Expressive Conduct

1st Amendment - Speech

A

Government regulation of expressive conduct is upheld if (1) the regulation is within the governments power to enact; (2) the regulation furthers an important government interest; (3) the government interest is independent of the suppression of speech; AND (4) the burden on speech is no greater than necessary (to achieve the purpose).

32
Q

Government Speech

1st Amendment - Speech

A

When the government speaks it is not constrained by the free speech clause of the 1st amendment. Therefore it’s speech does not need to be view-point neutral.

33
Q

Government Employees Speech

1st Amendment - Speech

A

A government employee is protected under the 1st amendment when speaking as a citizen on a matter of public concern.

However if the employee is speaking pursuant to their official duties then they are not protected.

To determine if the employee is speaking pursuant to their duties one looks at whether the speech is ordinarily within the scope of an employees duties, not whether it merely concerns those duties.

34
Q

Government Employees Speech:

When is speech in the public concern?

1st Amendment - Speech

A

Speech is within public concern when it related to any matter of political, social, or other concern to the community.

35
Q

Corporate & Union Political Expenditures

1st Amendment - Speech

A

The supreme court has held that Corporations and Unions have a right to engage in political speech (it is a fundamental right) under the 1st Amendment. However, shareholders may limit and regulate this speech through corporate democracy.

36
Q

Rule:

Political Campaign Contributions

1st Amendment - Speech

A

Statutes limiting campaign contributions are subject to intermediate scrutiny.

37
Q

When may the Government limit contributions?

1st Amendment - Speech

A
  1. Government may limit contributions to a political party that are used to expressly advocate for the election or defeat a particular candidate, or promote the party itself.
  2. Government may limit contributions to a PAC (political action committee).
  3. The government may limit contributions to individual candidates because excessive contributions could lead to corruption or the appearance of.
38
Q

Is there a limit on how much corporations and unions may spend on election communications?

1st Amendment - Speech

A

There is no limit on how much corporations and unions may spend on election communications if there is a restriction it will be subject to strict scrutiny.

39
Q

Defenses against Government Regulations

1st Amendment - Speech

A
  1. Overbreadth
  2. Vagueness
  3. Unfettered Discretion
40
Q

Overbreadth

1st Amendment - Speech

A

A law that burdens a substantial amount of speech or other conduct constitutionally protected by the 1st Amendment is “overbroad” and therefore void.

41
Q

Who bears the burden of proving Overbreadth?

1st Amendment - Speech

A

The P bears the burden of proving substantial overbreadth exists.

42
Q

Does Overbreadth apply to commercial speech?

1st Amendment - Speech

A

NO, this defense does not apply to commercial speech.

43
Q

Vagueness

1st Ammendment - Speech

A

A statute is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited.

44
Q

Unfettered Discretion

1st Amendment - Speech

A

A law or regulation which allows government officials to issue a permit (which may restrict speech) must provide definite standards as to how to apply the law in order to prevent government officials from having unfettered discretion over its application.

45
Q

Rule:

Religion - Overview

1st Amendment - Religion

A

The 1st Amendment states Congress shall make no law respecting an establishment of religion or prohibiting the exercise thereof. The 14th Amendment Due Process Clause also incorporates it to apply to States.

46
Q

Establishment Clause

1st Amendment - Religion

A

Strict scrutiny applies when a governmental program shows preference to one religion over another or to religion over nonreligion. The Lemon test is used to determine if a program violates the Establishment clause. (Strict Scrutiny: the government must show the law is necessary to achieve a compelling government interest and is narrowly tailored)

47
Q

Lemon Test

1st Amendment - Religion - Estbalishment Clause

A

A government action that benefits religion is valid if: (1) it has a secular purpose; (2) Its principal or primary effect neither advances nor inhibits religion; AND (3) It does not result in excessive government entanglement with religion.

48
Q

Financial Aid to Religious School

1st Amendment - Religion - Establishment Clause

A

Government assistance is permitted when it is secular in nature and used only for a secular purpose and aid is distributed among secular and religious institutions.

49
Q

Tax Exemption

1st Amendment - Religion - Establishment Clause

A

Religious organizations receive property tax exemptions. However tax exemptions that are only available for religious activities or organizations violate the establishment clause.

50
Q

Tax Deductions for Religious School Expenses

1st Amendment - Religion - Establishment Clause

A

Tax deduction to reimburse parents of students in religious schools is invalid. If the deduction is allowed to parents of private and public school students then it is valid.

51
Q

Is providing parents with a voucher to pay for Religious School constitutional?

1st Amendment - Religion - Establishment Clause

A

YES, Providing parents with vouchers to pay for religious schooling is not unconstitutional.

52
Q

Is it constitutional to deny a scholarship for a religious major/career?

1st Amendment - Religion - Establishment Clause

A

YES, the government may deny a scholarship to a student pursing a religious career without violating the free exercise clause.

53
Q

Are religious activities allowed in/at Public Schools?

1st Amendment - Religion - Establishment Clause

A

Generally religious activities in public schools or at public school violates the establishment clause.

Ex. Prayer, reading the bible, meditation or voluntary prayer, nondenominational prayer, posting the ten commandments, prohibiting the teaching of Darwinism.

54
Q

Can regligious groups use public school facilities?

1st Amendment - Religion - Establishment Clause

A

If a public school allows student groups to use its facilities when classes aren’t in session, allowing a religious group to use the facilities doesn’t violate the establishment clause. Prohibiting a group based on the religious topic would violate the 1st amendment freedom of speech right.

55
Q

Religious Displays

1st Amendment - Religion - Establishment Clause

A

A display of the 10 commandments on public property is a violation of the establishment clause if the display has a predominantly religious purpose. However, if the display also communicates a secular moral message, historical meaning then it may be valid.

56
Q

Government Holiday Displays

1st Amendment - Religion - Establishment Clause

A

Government holiday displays are valid unless a reasonable observer would conclude that the display is an endorsement of religion.

57
Q

Rule:

Free Exercise Clause

1st Amendment - Religion

A

The Free Exercise Clause is comprised of 2 freedoms, the freedom to believe and the freedom to act. The amount of protection from government interference depends on if it is a religious belief or religious conduct.

58
Q

Religious Belief Rule

1st Amendment - Religion - Free Exercise Clause

A

The freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law. [Note: The government may determine the sincerity of a person asserting the belief.]

59
Q

Religious Conduct Rule (Freedom to Act)

1st Amendment - Religion - Free Exercise Clause

A

Only state laws that intentionally target religious conduct are subject to strict scrutiny (the government must show the regulation is necessary to achieve a compelling government interest that is narrowly tailored).

Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test (exception Religious Freedom Restoration Act).

60
Q

What standard applies when the government limits a regious entities access to public benefits?

1st Amendment - Religion - Free Exercise Clause

A

Strict scrutiny applies when the government purposely denies a religious entity access to an otherwise available public benefit purely on account of its religious status. (The avoidance of the entanglement of church and state is not a sufficient governmental interest to justify this denial).

61
Q

Religious Freedom Restoration Act

1st Amendment - Religion - Free Exercise Clause

A

Applies to the federal government only – Strict scrutiny applies to neutral laws of general applicability if they substantially burden the free exercise of religion.

62
Q

Association

1st Amendment

A

The government may only regulate the right to freely associate in a group (including the groups activities or compel disclosure of group membership) if it satisfies strict scrutiny (The government must show the regulation is necessary to achieve a compelling government interest and that it is narrowly tailored).

63
Q

Exception to Association Rule

1st Amendment - Association

A

The government may punish a person’s membership in a group if it proves that: (1) the group is actively engaged in illegal activity or incites imminent lawless action; (2) the person has knowledge of the group’s illegal activities; AND (3) the person has specific intent to further the illegal activities.

64
Q

Rule & Standard applies

Press

1st Amendment

A

Government may ban offensive sexual content and speech on broadcast television.

The intermediate scrutiny is applied.

(Harsher regulations on radio/tv that print media/individuals).

CA Bar 2023: Con Law (8 decks)

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