Con Law: 1st Amendment Flashcards
Establishment Clause:
prohibits gov from establishing a religion, preferring a particular religion, or preferring religion over non-religion.
A government action that has the effect of benefitting a religion is valid if (Lemon test) ∑:
(a) PURPOSE – it has a secular purpose,
(b) EFFECT – its primary effect neither advances nor inhibits religion;
(c) ENTANGLEMENT – it does not result in excessive government entanglement with religion
Financial aid to religious institutions is valid if
if the
(a) aid is used only for secular purposes,
(b) secular in nature, and is
(c) distributed according to religiously neutral criteria
Constitutionality of government holiday displays
permitted unless a reasonable observer would conclude that the display is a religious endorsement.
Standard for laws that intentionally target religious conduct
strict scrutiny
Standard for neutral regulation of conduct that impact religion:
rational basis
Ministers exception to freedom of religion
religious organization are free to select its ministers without governmental interference.
Test for regulation of expressive conduct ∑ 3
is valid if ∑ 3:
(a) INTEREST – it furthers an important interest;
(b) INTEREST – interest is unrelated to suppression of expression and
(c) BURDEN – burden on expression is no greater than necessary
Speech regulation is impermissibly overbroad if
if it regulates substantially more speech than necessary to protect a compelling interest
Speech regulation is void for vagueness if
if it fails to provide a person of ordinary intelligence with fair notice of what’s prohibited.
Prior restraints on speech:
- standard of review
- presumption
Subject to strict scrutiny
Presumption: presumed to be unconstitutional unless procedural safeguards are in place.
Prior restraints on speech–burden of proof
government bears the burden to prove that the material is not protected speech, even when national security is at issue.
Media’s right to publish
standard of review
prohibits gov from unduly restricting the right to publish (a) lawfully obtained and (b) truthful info about (c) matters of public significance
strict scrutiny for matters of public concern.
Media restrictions on media–Illegally obtained info
Media can publish if
(a) info was obtained by third party unknown to the media / media didn’t unlawfully obtain it; and
(b) the info involves matter of public concern.
Media restrictions on media–lawfully obtained private fact
Media can publish if the matter involves matter of public concern (e.g., the identity of a rape victim)
Standard for content-based regulation
Strict scrutiny.
5 Exceptions to content-based regulation:
Commercial speech, Obscenity/Child porn, incitement to violence, fighting words, defamation
Is commercial speech protected under 1st Amendment?
Commercial speech is protected unless false, misleading, or unlawful.
Regulation of commercial speech
standard
test
Subject to intermediate scrutiny
4-part Central Hudson Test:
(a) speech is not false, misleading or unlawful
(b) regulation directly advances
(c) a substantial government interest (not compelling); and
(d) is narrowly tailored to serve that interest (there is a reasonable fit between the regulation and its purpose)
Defamation burden of proof–
if P is a public figure or the defamatory statement involves a matter of public concern
In addition to prima facie elements of defamation, P must prove
(a) fault; and
(b) falsity.
Defamation: fault element for public officials/figures
requires proof of actual malice (knowing or reckless falsity)
Defamation: fault element for private persons with statement involving public concern
requires proof of negligent falsity
Obscenity
test
requirement
(not protected) : 4S ∑—
(a) sexy
(b) society sick
(c) standards
(d) serious value
[1] Sexy: content must be erotic
[2] Society sick: must be patently offensive to an average person in the society.
[3] Standard: must be defined by proper standards for determining what’s obscene. cannot be vague or overbroad
[4] Serious value: material must lack serious value—determined by court, not jury, based on national standard, not local.
© city can regulate but not impose a blanket ban on porn
Incitement to violence
(not protected): advocates immediate lawless action/use of force and likely to produce such.
Fighting words
(not protected): likely to provoke an IMMEDIATE breach of the peace, must be aimed at specific someone and that person might hit back.
© Cannot restrict fighting words that express only certain viewpoints. (e.g., Supreme Court has struck down an ordinance that applied only to fighting words that insulted or provoked on the basis of race, religion, or gender. )
Public forum definition
is a place traditionally reserved for speech activities: streets, parks, sidewalks
Content-neutral regulation:
definition
standard of review
applies neutrally to all content regardless of subject matter or viewpoint (e.g. time, place or manner restrictions).
Subject to intermediate scrutiny.
Test for time/place/manner regulation of speech in a public forum
(a) be content neutral (both subject matter and viewpoint)
(b) narrowly tailored to serve
(c) a significant government interest; and
(d) leave open ample alternative channels of communication (not a flat prohibition on speech)
Nonpublic forum definition
Government property that is not a public forum. (e.g. government office, jail, military bases, power plants)
Test for speech regulations in nonpublic forum ∑ 3
allowed if ∑
(a) viewpoint-neutral (no need to be content-neutral);
(b) rationally related to
(c) a legitimate government interest.
Standard for regulations of campaign contribution
subject to intermediate scrutiny.
generally can be regulated if the limits are not unreasonably low.
Standard for regulations of campaign expenditure
subject to strict scrutiny.
generally cannot be regulated.
© Coordinated expenditures (when campaign asks individual to spend for them) can be regulated because they are disguised contributions.
Regulation of political parties: primary elections
states cannot require political parties to have open primaries (open primary: primary where you don’t have to be registered in a party to participate)
Regulation of political parties: ballot access
state can refuse to grant a party candidate access to general election ballot, unless the party demonstrates public support
(e.g. voter signatures on petition, voter registrations, previous electoral success)
Does 1st Amd protect government employee speech?
Protection if speaking as a citizen on a matter of public concern.
No protection if speaking pursuant to official duties (he is speaking pursuant to official duties if speech is ordinarily within the scope of those duties)
Freedom of association definition
right to form or participate in any group.
unless
(1) subversive org,
(2) loyalty oath,
(3) forced inclusion,
(4) electoral process
Standard for regulations of freedom of association
Generally strict scrutiny (compelling interest)
Test for restriction on public employment based on political affiliation
May not be punished or deprived of based on their political affiliation, unless
(a) is an active member of a subversive organization,
(b) has knowledge of the organization’s illegal activities, and
(c) has a specific intent to further those illegal objectives.
Leafleting
leafleting is protected speech © leafleting on private property even when its open to the public, such as a mall.
limited public forum:
opening of private property to the public does not convert it to limited public forum where leafleting must be permitted over the owner’s objection.
Prior restraints on speech: exceptions
Prior restraints on expression are generally not allowed. Exception ∑
(a) there is a particular harm to be avoided and
(b) certain procedural safeguards are provided to the speaker.
1st amendment protections
- expression
- press
- association
- religion
freedom of expression:
right to communicate information and ideas through speech/conduct
Freedom of the press:
prohibits gov from unduly restricting the right to publish
(a) lawfully obtained and
(b) truthful info about
(c) matters of public significance
strict scrutiny (must be narrowly tailored to further a compelling government interest)
Loyalty oath:
Gov can require oath for public employment unless overbroad (infringes upon constitutionally protected behavior) or vague
Protection against forced inclusion
Gov cannot interfere with org’s discriminatory policy unless (a) no significant burden on org’s mission and (b) necessary to achieve compelling interest
