8. The First Amendment Flashcards
Test for content-based restrictions on speech
Content-based restrictions on speech generally must meet strict scrutiny.
Two type of content based laws:
- Subject matter restrictions (application of the law depends on the topic of the message)
- Viewpoint restrictions (application of the law depends on the ideology of the message)
Test for content-neutral restrictions on speech
Content-neutral laws burdening speech generally need only meet intermediate scrutiny
Prior restraints
A judicial order or administrative system that stops speech before it occurs.
Rules for court orders suppressing speech:
- Court orders suppressing speech must meet strict scrutiny.
- Procedurally proper court orders must be complied with until they are vacated or overturned.
- A person who violates a court order is barred from later challenging it.
Rules for free speech licenses
- The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority.
- Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review
Vagueness
A law is unconstitutionally vague if a reasonable person
cannot tell what speech is prohibited and what is allowed
Overbreadth
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
Fighting Words
Fighting words laws are unconstitutionally vague and overbroad
The government can regulate conduct that communicates if
- It has an important interest unrelated to suppression of the message and
- If the impact on communication is no greater than necessary to achieve the government’s purpose.
Is incitement of illegal activity protected?
The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
Is obscenity and sexually-oriented speech protected?
The test
- The material must appeal to the prurient interest (community standard)
- The material must be patently offensive under the law prohibiting obscenity
- Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (National standard)
May government use zoning ordinances to regulate the location of adult bookstores and movie theaters?
Yes
How is child pornography treated?
Child pornography may be completely banned, even if not obscene
(To be child pornography, children must be used in production of the material).
May the government punish private possession of obscene materials or child pornography?
The government may not punish private possession of obscene materials; but the government may punish private possession of child pornography
When is profane and indecent speech no longer protected by the First Amendment?
- Over the broadcast media
2. In schools
Is advertising for illegal activity, or false and deceptive ads protected by the First Amendment?
No
Can true commercial speech that inherently risks deception be prohibited?
- The government may prevent professionals from advertising or practicing under a trade name
- The government may prohibit attorney, in-person
solicitation of clients for profit - The government may not prohibit accountants from in-person solicitation of clients for profit
Can regular commercial speech be regulated?
If intermediate scrutiny is met
May a public official or someone running for office recover for defamation?
Yes, by proving:
- Falsity of the statement and
- Actual malice
May a public figure recover for defamation?
Yes, by proving:
- Falsity of the statement and
- Actual malice
May a private citizen recover for defamation, if the matter is of “public concern”?
Yes, by proving:
- Falsity and
- Negligence by the defendant.
However, the plaintiff may recover presumed or punitive damages only by showing actual malice
May a private citizen recover for defamation, if the matter is not of “public concern”?
Yes. The plaintiff can recover presumed or punitive damages without showing actual malice
Rules on privacy:
- The government may not create liability for the truthful reporting of information that was lawfully obtained from the government
- Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance
- The government may limit its dissemination of information to protect privacy
Is speech by government employees on the job in the performance of their duties protected by the First Amendment?
No
Public forums
Government properties that the government is constitutionally required to make available for speech.
Test for regulating speech in public forums
Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met.
Restrictions on public forum regulations:
Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication
May city officials have discretion to set permit fees for public demonstrations?
No
Designated public forums
- Government properties that the government could close to speech, but chooses to open to speech.
- The same rules apply as for public forums.
Limited public forums
- Government properties that are limited to certain groups or dedicated to the discussion of only some subjects.
- The government can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral.
Non-public forums
- Government properties that the government constitutionally can and does close to speech.
- The government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral.
Laws that prohibit or punish group membership must meet:
Strict Scrutiny
To punish membership in a group it must be proven that the person:
- Actively affiliated with the group;
- Knowing of its illegal activities; and
- With the specific intent of furthering those illegal activities.
Laws that require disclosure of group membership, where such disclosure
would chill association, must meet:
Strict Scrutiny
Laws that prohibit a group from discriminating are constitutional unless:
They interfere with intimate association or expressive activity
May the free exercise clause be used to challenge a neutral law of general applicability?
No
May the government deny benefits to individuals who quit their jobs for religious reasons?
No
May the government hold a religious institution liable for the choices it makes as to who will be its ministers.
No
The Establishment Clause Test
- There must be a secular purpose for the law
- The effect must be neither to advance nor inhibit religion
- There must not be excessive entanglement with religion
May the government discriminate against religious speech or among religions?
Only if strict scrutiny is met
Rules regarding parochial schools:
- The government may give assistance to parochial schools, so long as it is not used for religious instruction.
- The government may provide parents vouchers which they use in parochial schools.
