BIAF-ConLaw-1st Amendment Flashcards
First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Freedom of Speech
The 1st Amendment provides that Congress shall make no law abridging the freedom of speech.
State Action
The 1st Amendment protects agains actions taken by the federal government and, through the 14th Amendment, state or local governments. It does not protect against private actors.
**Note: **Government speech is not protected by the 1st Amendment.
Freedom of Speech:
Content-Based Restriction
&
Content-Neutral Restriction
Content-based restrictions must meet strict scrutiny. Two types of content-based restrictios are possible:
- Subject-matter restrictions: Application of the law depends on the topic of the speech.
- Viewpoint restrictions: Application of the law depends on the ideology or viewpoint of the message.
**Note: **Laws restricting the sale or rental of video games are treated as content-based and must therefore meet strict scrutiny.
Content-Neutral Restrictions are regulations that apply to all speech in a given context or setting, regardless of the content of the speech (i.i. subject matter and viewpoint are immaterial). Content-neutral restrictions must meet intermediate scrutiny.
Freedom of Speech
Prior Restraint
**Definition: **A prior restraint is a court order or licensing scheme that prevents or prohibits speech. Both types of prior restraint are subject to strict scrutiny.
**Court Order: **Court orders suppressing speech must meet strict scrutiny. However, procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a procedurally proper court order is barred from later challenging it.
**Licensing: **For a licensing regulation to meet strict scrutiny, the government must demonstrate: an important reason for the licensing requirement, and the existence of clear criteria that give almost no discretion to the licensing authority to determine whether a licence will be issued.
**Note: **Licensing schemes must also contain procedural safeguards such as judicial review and procedures to ensure prompt determination of license requests.
Freedom of Speech:
Vagueness
and
Overbreadth
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what speech is allowed.
A law is unconstitutionaly overbroad if it regulates substantially more speech than is necessary.
Freedom of Speech:
Symbolic Speech
Anonymous Speech
Public Concern
Financial Political Contributions
Symbolic Speech is conduct that communicates a message. The government can regulate symbolic speech if an important interest unrelated to the suppression of the message is present, and the impact on speech is no more than necessary to achieve the government’s purpose. (Intermediate Scrutiny)
**Anonymous Speech **is protected under the 1st Amendment. The right to speak includes the right to not disclose one’s identity as the speaker.
**Public concern: **Speech on matters of public concern is speach that relates to any matter of political, social, or other concern in the community, or is a subject of general interest and of value and concern to the public. Such speech receives special protection under the 1st Amendment and cannot be restricted except for reasonable time, place, or manner restrictions.
- **Note: **Defense to civil tort actions,
- **Consider: ** content, form, and context of speech,
- **Do Not Consider: **Inappropriate or controversial character
Financial Political Contributions
**Individual: **Individuals are restricted in the amount of money they can contribute to an individual political candidate or political committee during each election, but not as to the number of candidates to whom they can contribute.
**Associations: **Associations (e.g. corporations) cannot be prohibited from donating to political campaigns. Financial contributions to politicians and campaigns are treated as a form of political speech. The restriction on individual contributions does not apply to organizations that spend their money endependently of candidates and parties. (PAC’s, Citizen United, etc.)
Freedom of Speech:
Unprotected or
Less Protected
Forms of Speech
Incitement to Lawlessness
The government may punish speech if the speaker intends to cause imminent illegal activity and a substantial likelihood of imminent illegal activity exists.
Obscenity
Obscene speech is not protected by the 1st Amendment. Material will be deemed obscene if the material:
- appeals only to the prurient interest in sex (community standard),
- depicts sexual conduct in a patently offensive way (text of law), and
- lacks any serious redeeming artistic, literary, political or scientific value (national standard).
Profane & Indecent Speech
Generally, Proafane and indecent speech is protected by the 1st Amendment. Exceptions:
- **Broadcast Media: **Because free broadcast media is uniquely intrusive into the home, laws restricting profanity or indecency on broadcast media need only meet rational basis review.
- **Schools: **Because schools are responsible for instructing youth to be mindful of social decorum, laws restricting profane or indecent speech in schools need only meet rational basis review.
- **Note: **Schools may also restrict student expression the school regards as promoting illegal drug use on school property or at public school-sponsored events.
Commercial Speech
- **Rule: **Generally, commercial speech is protected speech. However, such speech may be restricted if the speech: Proposes unlawful activity, or is misleading or fraudulent.
- To uphold a law restricting commercial speech, the law must pass intermediate scrutiny.
Defamation-Additional Elements
Public officials/figures or private persons regarding a matter of public concern must prove additional elements to establish defamation.
-
Public Official/Figure
- Statement was false and
- defendant acted with actual malice (knowledge or reckless disregard re: falsity of statement)
- Burden of proof on Plaintiff
-
Private Person/Public Concern
- False statement
- neglegence & actual harm or
- actual malice
Fighting Words
Fighting words are words that by their very uttarance inflict injry or tend to incite an immediate breach of the peace.
- Totally unprotected
- Laws regulating generally violate vagueness/overbreadth
Time, Place, & Manner
The government may generally place reasonable restrictions on the time, place, and manner of speech.
Locations where regulation is appropriate
- **Public Forums: **Government property that must be available to speech. (e.g. streets, sidewalks, parks) (reg. e.g. protest zones)
- Content Neutral
- Intermediate Scrutiny
- Alternative Channels
-
Limited Public Forums: Government property that can be closed but is left open. (public school after hours)
- If open, treat as public
- If closed, closed to all public
-
Non-Public Forums: Gov. Property that the Gov. can and does close. (e.g. Military Bases)
- Reasonably Related
- Not required to be subject-matter neutral.
-
Private Property
- No 1st Amendment protection of access to private property for speech purposes.
FoS: Licensing Schemes
Governments may require groups to obtain a license or permit before engaging in a demonstration. Licensing schemes are valid if the regulation is content neutral and the officials in charge of licensing do not have unlimited discretion in determining who will be granted a license.
- content neutral
- limited discretion
**Note: **If such a scheme is facially invalid, it need not be complied with. However, if such a scheme is facially valid, it must be complied with, then challenged legally.
Freedom of Association
**Regulating Association: **State Action that may infringe on the freedom to associate is subject to strict scrutiny.
**Punishing Membership: **The government may punish membership in an illegal and subversive organization if it can be shown tha the Plaintiff: actively affiliated with the group, had knoweledge of its illegal activities, and acted with the specific intent of furthering those illegal activities.
- Active Affiliation,
- Knowlege
- Specific Intent
**Association Discrimination: **The government acn prohibit a group from acting in a discriminatory manner unless the alw interferes with intimate association, expressive activity, or a religious group’s determination of who can act as its ministers.
- Intimate
- Expressive
- Religious Ministry
Free Exercise Clause
The government may not discriminate against people on the basis of their religion. However, the government may pass a law of general consideration and applicability that has a negative effect on a particular religion if the law was not specifically designed to inhibit religion.
- law of general considration
- not designed to inhibit relition
**Displays: **Public religious displays on government property ar permitted if the display does not favor one religion over another, and a reasonable person would not construe the display to be an endorsement of religion in general.
- no favoritism
- no endorsing religion in general
Establishment Clause
Congress may make no law respecting an establishment of religion or prohibiting the free exercise of religion.
- A law that overtly prefers one religion over another must meet strict scrutiny.
- A law that does not explicitly demonstrate a religious or sect preference must meet the following test:
- Secular purpose,
- primary effect/purpose not to advance or inhibit religion,
- no excessive gov. entanglement with religion.
Prayer at Public Meetings
Governmental bodies may hold sectarian prayers during public meetings if the pattern of prayers over time does not ednigrate, proselytize, or demonstrate an impermissible government purpose.
Journalist Privilege
**Shield Laws: **Though federal courts have inferred a qualified journalist privilege from the 1st Amendment, congress has not passed a shield law to create a journalist privilege.
