9. First Amendment Freedoms Flashcards
1
Q
What does the Establishment Clause prohibit?
A
The government cannot pass a law that formally sponsors or establishes a religion.
2
Q
What analysis is applied when a government program prefers one religion over others?
A
Strict scrutiny analysis.
3
Q
Why do religious activities conducted in public schools violate the Establishment Clause?
A
Their primary purpose is to promote religion.
4
Q
Where is there no violation of the Establishment Clause?
A
all persons affected will be treated the same, without any religious preference.
5
Q
List practices held invalid in public schools regarding religion.
A
- Prayer and bible reading
- Alabama law for silence for meditation or prayer
- Posting the Ten Commandments
- Sponsoring a rabbi for a graduation prayer
6
Q
What is the constitutional status of a truly neutral moment of silence in schools?
A
Likely constitutional as it shows no religious preference.
7
Q
Is it constitutional for a state legislature to employ a chaplain for opening day prayer?
A
Yes, it has been found constitutional.
8
Q
Is it constitutional for a state court judge to conduct a daily prayer?
A
No, it has been found unconstitutional.
9
Q
Are high school students allowed to vote on a student-delivered invocation at football games?
A
No, it is impermissible as it would be forced on all present.
10
Q
What did the Supreme Court rule regarding a state university’s prohibition on religious organizations using facilities?
A
It violated free speech under the First Amendment.
11
Q
What did the Supreme Court rule about prohibiting a religious club from meeting in a public school?
A
It amounted to religious viewpoint discrimination and violated the Free Speech Clause.
12
Q
What was held regarding a prohibition against showing religious films at a school?
A
It violated free speech.
13
Q
What did the Court rule about funding a student publication addressing religious issues?
A
It violated free speech.
14
Q
What is the status of anti-evolution laws in public schools?
A
They are unconstitutional.
15
Q
What is the constitutional status of displays celebrating the holiday season without favoring one religion?
A
Generally upheld.
16
Q
What was the ruling on placing a cross in a state-owned park in front of the State Capitol?
A
It did not violate the Establishment Clause.
17
Q
What did the Court say about opening town board meetings with sectarian prayers?
A
It was held permissible with no discrimination in prayer selection.
18
Q
What was the ruling on a granite monument of the Ten Commandments in a park?
A
It was held constitutional.
19
Q
What is the status of Sunday closing laws?
A
They have been upheld as having an incidental benefit to religion.
20
Q
What did the Court rule about blue laws giving churches veto power over liquor licenses?
A
They were held unconstitutional due to excessive government entanglement.
21
Q
Can a city deny a religious organization’s request for a ceremonial flag if it has accepted secular requests?
A
No, it cannot deny such a request.
22
Q
What is the ruling on property tax exemptions for religious institutions?
A
The Supreme Court upheld their validity.
23
Q
What did the Court rule about tax exemptions for religious magazines and books?
A
It violates the Establishment Clause.
24
Q
What is the status of government aid to parochial schools?
A
Most direct aid has been held to violate the Establishment Clause.
25
What is the status of providing bus transportation to parochial school students?
It was held valid.
26
What did the Supreme Court rule regarding providing textbooks to parochial school students?
It was permitted due to little entanglement.
27
What is the ruling on grants to parochial schools for salaries of teachers of secular subjects?
They have been held invalid due to excessive government entanglement.
28
What is the ruling on federal funds benefiting religious colleges?
Permissible if not used for teaching religion.
29
What did the Court rule about tax deductions for expenses incurred by children's education?
It was upheld for all parents, including those with parochial school children.
30
What is the status of giving tax deductions only to parents whose children attend parochial schools?
It was held unconstitutional.
31
What does the Free Exercise Clause protect?
A person's religious beliefs are absolutely protected.
32
Can the government punish individuals based on their religious beliefs?
No, it cannot impose burdens based on religious belief.
33
What is the ruling on requiring a person to carry a message on their license plate that offends their religious beliefs?
A state cannot require this.
34
Can the government determine the truth or falsity of a person's religious beliefs?
No, it may not determine truth or falsity.
35
Can the government determine a person's sincerity in their religious beliefs?
Yes, it may determine sincerity.
36
Is public employment allowed to be conditioned on taking an oath based on religious belief?
No, it cannot be conditioned on religious belief.
37
Under what conditions can a state regulate activity based on religious beliefs?
* The regulation is neutral with respect to religion
* It is of general applicability
38
State's Regulation not Valid based on religious beliefs
*The law was motivated by a desire to interfere with religion.
*Intent to target religion by the government.
39
What happens if the government purposely interferes with conduct dictated by religious beliefs?
Strict scrutiny will be applied.
40
Can members of the clergy hold government office?
Yes, it is allowed.
41
What does freedom of expression/speech encompass?
* The right to communicate a message
* The right NOT to be compelled to communicate a message
42
Can the government censor all categories of speech?
No, it may neither censor all speech nor engage in content-based discrimination.
43
What are laws considered content-based?
* Discriminate based on viewpoint
* Categorize speech based on subject matter
44
What must the government show to justify content-based regulation of speech?
It is presumptively unconstitutional for the government to place burdens on speech because of its content.
To justify such content-based regulation of speech, the government must show that the regulation is: (pass strict scrutiny)
i.) necessary to serve a compelling state interest; and
ii.) narrowly drawn to achieve that end, or that;
iii.) the speech falls under an unprotected category of speech, which includes any speech that creates a clear and present danger of imminent lawless action or constitutes "fighting words."
45
What is subject-matter discrimination?
Presumptively invalid due to concerns of distorting public debate.
46
What are viewpoint regulations?
A subset of content-based regulations that target a particular position.
DISFAVORED.
47
What is the rule regarding the regulation of speech?
It must pass strict scrutiny.
Speech restrictions rarely survive strict scrutiny; the government MUST prove that the restriction is necessary to further a compelling government interest.
48
What is allowable regarding laws that regulate expressive conduct?
1. If they further an important government interest unrelated to suppression of expression
AND
2. the incidental restriction on speech is no greater than is essential to the furtherance of that interest.
49
What is the government's ability regarding content when they are the speaker?
They may discriminate based on the content of the speech.
50
When is considered government speech?
when the government sets the overall message to be communicated and approves the message to be disseminated, the speech will be considered government speech even where the government solicits assistance from non-governmental sources in developing specific messages.
51
What is the standard for regulating unprotected speech?
Only needs to meet the rational basis test.
52
List six categories of unprotected speech.
1. speech advocating violence
2. Fighting words
3. Hostile audience speech
4. True threats
5. Obscene speech
6. Defamatory speech
53
What is the rule regarding speech that advocates violence or unlawful action?
There is no right to such speech if it incites imminent lawless action AND likely to incite or produce such action.
54
What are fighting words?
Words likely to incite imminent violence by a hostile audience.
55
Fighting Words statutes that are constitutional
-“Fighting words” statutes are subject to facial invalidity if the conduct proscribed is vague or overbroad.
-“Fighting Words” statutes designed to punish certain viewpoints are unconstitutional.
-A person cannot be punished for hyperbolic speech meant to express strong disapproval, but not likely to lead to lawless action.
56
What is the status of hostile audience speech?
There is NO RIGHT to Hostile audience speech if such speech elicits an IMMEDIATE violent response against the speaker by an audience.
The Police must make reasonable efforts to protect the speaker, to guard against a “heckler’s veto” of unpopular speech.
57
What constitutes a true threat?
A serious expression of intent to commit unlawful violence to a specific individual or group.
58
NO True Threat
*Statements made in jest, communicated to a large audience, which are political in nature
*Conditioned on an event that would never happen
59
What is required for speech to be considered obscene?
1. Appeals to prurient interest
2. Patently offensive sexual conduct defined by state law
3. Lacks serious literary, artistic, political, or scientific value
60
Is nudity considered obscene by itself?
Nudity, by itself, is NOT considered obscene.
61
True or False: A newspaper has a First Amendment right to publish an accurate representation of a newsworthy event, Even distasteful or disgusting depictions of newsworthy events.
True.
62
What are the three categories of speech that receive lower levels of protection?
* Commercial speech
* Speech by public employees
* Sexual speech
63
What are the requirements for commercial speech to be protected by the First Amendment?
* Not false
* Not deceptive
* Does not relate to unlawful activity
64
What must governmental regulation of commercial speech serve?
If speech is not misleading, illegal, or fraudulent, the regulation of it will be VALID only if it:
(i) serves a substantial government interest;
(ii) directly advances the substantial interest; and
(iii) “Narrowly tailored” and NOT be more extensive than is necessary to serve that interest.
65
Can a newspaper be held liable for publishing truthful information from public records?
A newspaper or broadcaster CANNOT be held liable for publishing truthful information obtained from the public records.
66
Is it constitutional for a state to prohibit attorneys from advertising routine legal services?
A state CANNOT prohibit attorneys from advertising routine legal services at stated fees.
67
What is the rule regarding the regulation of sexual speech?
Regulation of sexual speech MUST serve a substantial government interest and leave open reasonable alternative channels of communication.
The state may regulate the sale of violent or sexually explicit material, particularly to minors. The material need not be devoid of any redeeming value.
68
Does a public employee forgo their right to freedom of speech?
A person does not forgo her right to freedom of speech merely by accepting public employment.
The employee retains a First Amendment right to speak out on matters of public concern.
69
Government regulating the speech of its public employee
The government, as an employer, has a legitimate interest in regulating the speech of its employees to promote efficiency of its public services.
70
Speech Regulated Based On Time, Place, Manner
The government may employ a time, place, or manner regulation to regulate speech in a traditional public forum(streets, parks) so long as the:
i.) regulation promotes an important interest unrelated to the suppression of a particular message; and
ii.) does NOT unnecessarily restrict the ability to communicate the message
71
What is a public forum?
Public property that has historically been open to speech-related activities, such as streets, sidewalks, public parks, and the internet.
72
What are the requirements for valid government regulations of speech in public forums?
To be valid, government regulations of speech and assembly in public forums (and designated public forums) must:
i.) be content-neutral as to BOTH subject matter and viewpoint (i.e., the regulation cannot prefer some messages over others);
ii.) be narrowly tailored to serve an important government interest; and
iii.) Leave alternative channels of communication open(other reasonable means for communicating the idea must be available.)
73
Speech Regulation in Nonpublic Forums
The government may restrict access based on the speaker’s identity or subject matter in a nonpublic forum, as long as:
i.) the distinction is viewpoint-neutral; and
ii.) reasonably related to the purpose served by the forum.
74
Speech Regulation in Designated Public Forums
A designated public forum is evaluated the same as a public forum.
Content-based restrictions or the exclusion of a speaker that falls within the class of those to which the designated public forum has been made available are subject to strict scrutiny.
75
Speech Regulation in Limited Public Forums
Restrictions on speech not within the type of expression allowed in a limited public forum must only be:
i.) reasonable; and
ii.) viewpoint-neutral.
Additionally, the limitation on the forum MUST:
i.) NOT discriminate against speech on the basis of viewpoint; and
ii.) reasonable in light of the purpose served by the forum.
76
What is the close 'nexus' between freedoms of speech and association?
The right to join together with others for expressive or political activity is protected by the First Amendment.
77
True or False: an individual CANNOT be denied public employment based upon membership in a political organization UNLESS the position is a high-level policy-making position
True.
78
Individuals deprived of public employment for political association
An individual may be deprived of public employment for political association if:
i.) he is an active member of a subversive organization;
ii.) such membership is with knowledge of the illegal aims of the organization; and
iii.) he has a specific intent to further those illegal ends (e.g., violent overthrow of the government).
79
What is the rule regarding compelled speech?
The First Amendment does NOT allow public authorities to compel a person to utter a message to which they do not agree.
80
what is the rule regarding Compelled-Subsidy speech?
Whether or not compelled-subsidy speech is constitutional turns primarily on the identity of the speaker.
While a citizen has the right to challenge compelled support of private speech, there is NO First Amendment right not to fund government speech.
81
Government targeting individuals to pay for others to speak
The government CANNOT force targeted individuals to pay for others to speak.
The government CANNOT:
i.) require people to belong to an association engaging in private speech; or
ii.) require public employees to pay to subsidize a private association's private speech.
This includes requiring public employees to subsidize a union to which they do not belong.
82
What is prior restraint?
A government action that prohibits speech or other expression before it takes place.
The government CANNOT suppress or restrain speech in advance of its publication or utterance.
There is a strong presumption against the constitutional validity of any system of prior restraint of expression.
83
Exceptional cases where prior restraints are allowed
*a government agency can require a prepublication review of writings related to employment of past or present
*employees where such a review is necessary to protect national security.
*classified military information; and
*any case involving a search and seizure is governed by the Fourth Amendment.
84
Prior Restraint-Censorship or Licensing of Motion Pictures prior to Exhibition
Statutes requiring films to be submitted to a Board of Censors before showing them are constitutional if the following requirements are met:
i.) the standards for the denial of a license are narrowly drawn and reasonable;
ii.) when a license is denied, the censor promptly seeks an injunction.
iii.) the burden of proving that the material is “obscene,” or otherwise unprotected, is on the censor; and
iv.) a prompt judicial determination is provided.
85
Licensing Statutes
A method the government frequently uses for regulating the time, place, and manner of speech is to require a license or permit for such activities as a parade, demonstration, or rally.
Such a licensing statute is valid provided that it:
1. Is content-neutral as applied; and
2. Does NOT give licensing officials “unfettered discretion” to determine who may receive a permit.
86
What is overbreadth in law?
A law suffers from overbreadth when it punishes speech that is otherwise protected.
87
Overbreadth
When a state has the power to regulate an area dealing with free speech, it MUST NOT do so:
Thus, the wording of a statute MUST be:
i.) by means which sweep unnecessarily broadly; and
ii.) thereby invade the area of protected freedoms.
Thus, the wording of a statute MUST be:
i.) narrowly tailored and specific, and
ii.) NOT overly broad so as to have a "chiling effect" upon protected speech
88
What defines vagueness in legal terms?
A law is deemed unduly vague if a reasonable person is unable to distinguish what is permitted.
Governmental regulations MUST be drawn "with narrow specificity."
89
Fill in the blank: Commercial speech is protected by the First Amendment if it is _____ and does not relate to unlawful activity.
NOT false
90
True or False: The government can require individuals to pay for speech they disagree with if it is from a private organization.
False
91
What happens if a licensing statute gives officials unfettered discretion?
A speaker need not even apply for a permit and may exercise First Amendment rights on public property without a permit.
92
What must a state demonstrate to justify a regulation of speech in a public forum?
A compelling interest in suppressing the speech.
93
What is the rule regarding state action that may curtail the freedom to associate?
Such action is subject to the closest scrutiny.
94
What is the rule regarding public employment and political association?
An individual CANNOT be denied public employment based upon membership in a political organization UNLESS the position is a high-level policy-making position.
95
What is the rule regarding vagueness in law?
A law is deemed unduly vague if a reasonable person is unable to distinguish what is permitted.
## Footnote
Governmental regulations MUST be drawn 'with narrow specificity.'
96
What are some examples of statutes ruled 'void for vagueness'?
* A statute making it a crime to 'publicly mutilate, trample upon, deface or treat contemptuously the flag of the United States'
* A municipal vagrancy ordinance defining vagrants to include 'rogues and vagabonds, lewd, wanton, and lascivious persons,...[and] persons wandering or straying around from place to place without any lawful purpose or objective'
* A city ordinance defining loitering as 'to remain in any one place with no apparent purpose'
## Footnote
These examples illustrate how vague laws can lead to legal challenges under due process inquiries.
97
What does the First Amendment guarantee regarding criminal trials?
The First Amendment guarantees both the public and the press a right to attend criminal trials, but this right is not absolute.
## Footnote
It may be outweighed by an overriding interest that cannot be accommodated by less restrictive means.
98
What is the constitutional status of gag orders?
A gag order will almost NEVER be held constitutional because the trial judge has other alternatives at their disposal.
## Footnote
Gag orders are pretrial orders prohibiting the press from publishing certain types of information.
99
Does a newsperson have the right to refuse to testify before a grand jury?
A newsperson has NO First Amendment right to refuse to testify before a grand jury.
## Footnote
This indicates that journalistic privilege does not extend to grand jury testimony.
100
What standard is applied to cable television operators under content-neutral regulations?
Intermediate scrutiny is applied to cable television operators subjected to content-neutral regulations.
101
Is broadcasting a performance protected by the First Amendment?
Broadcasting a performance is NOT protected by the First Amendment.
## Footnote
This includes appropriating the action by the performer.
102
Does a television station have constitutional immunity from tort liability when depriving someone of the commercial value of a performance?
A television station does NOT have any constitutional immunity from being liable in tort when it deprives someone of the commercial value of their performance.
