8. The First Amendment

Question 1

Test for content-based restrictions on speech

Answer 1

Content-based restrictions on speech generally must meet strict scrutiny.

Question 2

Two type of content based laws:

Answer 2

1. Subject matter restrictions (application of the law depends on the topic of the message)
2. Viewpoint restrictions (application of the law depends on the ideology of the message)

Question 3

Test for content-neutral restrictions on speech

Answer 3

Content-neutral laws burdening speech generally need only meet intermediate scrutiny

Question 4

Prior restraints

Answer 4

A judicial order or administrative system that stops speech before it occurs.

Question 5

Rules for court orders suppressing speech:

Answer 5

1. Court orders suppressing speech must meet strict scrutiny.
2. Procedurally proper court orders must be complied with until they are vacated or overturned.
3. A person who violates a court order is barred from later challenging it.

Question 6

Rules for free speech licenses

Answer 6

1. 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.
2. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review

Question 7

Vagueness

Answer 7

A law is unconstitutionally vague if a reasonable person

cannot tell what speech is prohibited and what is allowed

Question 8

Overbreadth

Answer 8

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

Question 9

Fighting Words

Answer 9

Fighting words laws are unconstitutionally vague and overbroad

Question 10

The government can regulate conduct that communicates if

Answer 10

1. It has an important interest unrelated to suppression of the message and
2. If the impact on communication is no greater than necessary to achieve the government’s purpose.

Question 11

Is incitement of illegal activity protected?

Answer 11

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.

Question 12

Is obscenity and sexually-oriented speech protected?

Answer 12

The test

1. The material must appeal to the prurient interest (community standard)
2. The material must be patently offensive under the law prohibiting obscenity
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (National standard)

Question 13

May government use zoning ordinances to regulate the location of adult bookstores and movie theaters?

Answer 13

Yes

Question 14

How is child pornography treated?

Answer 14

Child pornography may be completely banned, even if not obscene

(To be child pornography, children must be used in production of the material).

Question 15

May the government punish private possession of obscene materials or child pornography?

Answer 15

The government may not punish private possession of obscene materials; but the government may punish private possession of child pornography

Question 16

When is profane and indecent speech no longer protected by the First Amendment?

Answer 16

1. Over the broadcast media

2. In schools

Question 17

Is advertising for illegal activity, or false and deceptive ads protected by the First Amendment?

Answer 17

No

Question 18

Can true commercial speech that inherently risks deception be prohibited?

Answer 18

1. The government may prevent professionals from advertising or practicing under a trade name
2. The government may prohibit attorney, in-person
   solicitation of clients for profit
3. The government may not prohibit accountants from in-person solicitation of clients for profit

Question 19

Can regular commercial speech be regulated?

Answer 19

If intermediate scrutiny is met

Question 20

May a public official or someone running for office recover for defamation?

Answer 20

Yes, by proving:

1. Falsity of the statement and
2. Actual malice

Question 21

May a public figure recover for defamation?

Answer 21

Yes, by proving:

1. Falsity of the statement and
2. Actual malice

Question 22

May a private citizen recover for defamation, if the matter is of “public concern”?

Answer 22

Yes, by proving:

1. Falsity and
2. Negligence by the defendant.

However, the plaintiff may recover presumed or punitive damages only by showing actual malice

Question 23

May a private citizen recover for defamation, if the matter is not of “public concern”?

Answer 23

Yes. The plaintiff can recover presumed or punitive damages without showing actual malice

Question 24

Rules on privacy:

Answer 24

1. The government may not create liability for the truthful reporting of information that was lawfully obtained from the government
2. 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
3. The government may limit its dissemination of information to protect privacy

Question 25

Is speech by government employees on the job in the performance of their duties protected by the First Amendment?

Answer 25

No

Question 26

Public forums

Answer 26

Government properties that the government is constitutionally required to make available for speech.

Question 27

Test for regulating speech in public forums

Answer 27

Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met.

Question 28

Restrictions on public forum regulations:

Answer 28

Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication

Question 29

May city officials have discretion to set permit fees for public demonstrations?

Answer 29

No

Question 30

Designated public forums

Answer 30

1. Government properties that the government could close to speech, but chooses to open to speech.
2. The same rules apply as for public forums.

Question 31

Limited public forums

Answer 31

1. Government properties that are limited to certain groups or dedicated to the discussion of only some subjects.
2. The government can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral.

Question 32

Non-public forums

Answer 32

1. Government properties that the government constitutionally can and does close to speech.
2. The government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral.

Question 33

Laws that prohibit or punish group membership must meet:

Answer 33

Strict Scrutiny

Question 34

To punish membership in a group it must be proven that the person:

Answer 34

1. Actively affiliated with the group;
2. Knowing of its illegal activities; and
3. With the specific intent of furthering those illegal activities.

Question 35

Laws that require disclosure of group membership, where such disclosure
would chill association, must meet:

Answer 35

Strict Scrutiny

Question 36

Laws that prohibit a group from discriminating are constitutional unless:

Answer 36

They interfere with intimate association or expressive activity

Question 37

May the free exercise clause be used to challenge a neutral law of general applicability?

Answer 37

No

Question 38

May the government deny benefits to individuals who quit their jobs for religious reasons?

Answer 38

No

Question 39

May the government hold a religious institution liable for the choices it makes as to who will be its ministers.

Answer 39

No

Question 40

The Establishment Clause Test

Answer 40

1. There must be a secular purpose for the law
2. The effect must be neither to advance nor inhibit religion
3. There must not be excessive entanglement with religion

Question 41

May the government discriminate against religious speech or among religions?

Answer 41

Only if strict scrutiny is met

Question 42

Rules regarding parochial schools:

Answer 42

1. The government may give assistance to parochial schools, so long as it is not used for religious instruction.
2. The government may provide parents vouchers which they use in parochial schools.