Con Law: First Amendment

Question 1

General Rules pertaining to Constitution’s protection of Free Speech

Answer 1

A regulation seeking to forbid communication of specific ideas (i.e. content regulation) is LESS likely to be upheld than a regulation of conduct incidental to speech.

Question 2

The distinction between content-based and Content-neutral restrictions– Content based

Answer 2

Content based restrictions on speech generally must meet strict scrutiny.

Question 3

There are two alternative ways of finding that a law is content based:

Answer 3

1. Subject matter restriction (application of law depends on topic of message)
2. View-point restriction (application of the law depends on the ideology of the speech)

Question 4

The distinction between content-based and Content-neutral restrictions– Content Neutral

Answer 4

Content neutral laws burdening speech generally need only meet intermediate scrutiny

Question 5

Prior restraint: stopping speech before it occurs

Answer 5

Court orders suppressing speech must meet strict scrutiny
I. Procedurally proper court orders must be complied with until they are vacated or overturned
II. A person who violates a court order is barred from later challenging it.
III. Gag Orders on the press to prevent prejudicial pretrial publicity are not allowed.

Question 6

The government can require a license for speech only if there is an important reason for licensing and

Answer 6

Clear criteria leaving almost no discretion to the licensing authority. In additional, there must be procedural safeguards such as prompt determination of requests for licenses and judicial review of license denials.

Question 7

Vagueness and Overbreadth – 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 are not protected speech but statutes attempting to punish the use of such words

Answer 9

Are often found to be void for vagueness.

Question 10

Symbolic Speech

Answer 10

Government may regulate conduct that communicates if it has an important interest unrelated to suppression of message and if the impact on communication is no greater than necessary to achieve the government’s goal.

Question 11

Symbolic Speech–Specifically

Answer 11

Flag burning: allowed
Nude Dancing: not protected can prohibit
Burning a Cross: Allowed unless done to threaten or intimidate
Contribution Limits in Election Campaigns are allowed; Expenditure Limits in Campaigns not allowed.

Question 12

Anonymous Speech

Answer 12

Protected by First Amendment

Note: A state’s interest in promoting transparency and accountability in elections is sufficient to justify public disclosure of names/addresses of who sign ballot petitions
Eg. Citizens United Case

Question 13

Speech by govt-cant be challenged. Generally, government speech and govt funding of speech will be upheld as long as it is

Answer 13

Rationally Related to Legitimate State Interest
*But spending programs may not impose conditions that limit 1A activities of fund recipients outside of scope of spending program itself.

Question 14

What types of speech are unprotected or less protected by 1A?

Answer 14

1. Incitement of illegal activity is unprotected by 1A–

2. Obscene and Sexually Oriented Speech

Question 15

Incitement of illegal activity

Answer 15

Modern Test: the govt may punish speech if there is substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.

Question 16

Obscene and Sexually Oriented Speech

Answer 16

The material must appeal to the prurient interest or a “shameful or morbid interest in sex”
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 as determined by a national standard
Govt may use zoning ordinances to regulate the number or location of adult bookstores and movie theaters.

Question 17

Child pornography may be completely banned

Answer 17

even if not obscene– children must be used in production to be child porno

Question 18

Government may not punish private possession of obscene materials BUT

Answer 18

govt may punish private possession of child porno

* govt can seize assets of businesses convicted of violating obscenity laws.

Question 19

Profane and indecent is generally protected by the 1A

Answer 19

Exception: Free, over the air broadcast media – TV and Radio
and In schools – responsible for teaching civility

Question 20

Falsity in and of itself does NOT make speech unprotected–where it is protect is

Answer 20

based on harm caused

Question 21

Commerical Speech

Answer 21

Ads for illegal activity and false and deceptive ads are not protected
Even true commercial speech that inherently risks deception can be prohibited

Question 22

States may prohibit attorney in person solicitation of clients for profit– NOTE:

Answer 22

Lawyers who advertise as debt relief agencies can be required to include information about their legal statute and nature of assistance provided–along with the possibility of debtors filing for bankruptcy.

Question 23

Who can’t the govt prohibit from in-person solicitation

Answer 23

accountants

Question 24

Other commercial speech can be regulated by government if:

Answer 24

Intermediate scrutiny is met–>

Question 25

Government regulation of commercial speech must be

Answer 25

Narrowly tailored but it does not need to be the least restrictive alternative.

Question 26

A state may NOT prohibit the sales of violent video games to minors AND

Answer 26

The court refused to add violence as an additional area of unprotected speech

Question 27

Defamation: If the P is a public official or running for public office, the P can recover for defamation only by proving with

Answer 27

Clear and convincing evidence the falsity of the statement and actual malice, meaning that the D knew the statement was false or acted with reckless disregard.

Question 28

Defamation: I the P is a “public figure” the P can recover for defamation by

Answer 28

Proving falsity of the statement and actual malice

Question 29

Defamation: If P is a “private figure” and the matter is of “public concern,”

Answer 29

a state may allow the P to recover compensatory damages for defamation by proving falsity and negligence by D.
However, the P may recover presumed or punitive damages only by showing actual malice

Question 30

Defamation: If P is a “private figure” and the matter is not of “public concern” the p can recover

Answer 30

presumed or punitive damages without proving actual malice.

*negligence it appears

Question 31

Liability for intentional infliction of emotional distress for Defamatory speech–

Answer 31

Must meet defamation standards and CANNOT exist for speech otherwise protected by the 1A.

Question 32

Privacy and First Amendment

Answer 32

1. State may not create liability for the truthful reporting of information that was legally obtained from govt records
2. Media may not be held liable for broadcasting a tape of an illegally intercepted and recorded call–so long as the media did not participate in the illegality and it involves a matter of public importance
3. Govt may restrict own dissemination of info to protect privacy. public only has right to attend criminal trials and crime pretrial proceedings

Question 33

Speech by govt employees on the job in performance of their duties

Answer 33

is NOT protected by the First A.

Question 34

Other government restriction based on the content of speech must

Answer 34

Meet strict scrutiny

Question 35

What places are available for speech?

Answer 35

1. Public forums (eg parks and sidewalks) –regulation must be subject matter and viewpoint neutral otherwise SS
2. Designated public forums– govt voluntarily chooses to open to speech –same rules as public forums
3. Limited public forums:
4. Non-public forums

Question 36

Public forums

Answer 36

regulation must be subject matter and viewpoint neutral otherwise SS
regulations must be a time, place or manner regulation -important govt purpose and leave open adequate alternative places for communication
Govt regulation of speech in public forum need not use least restrictive alternative
Permit fee reqs for parades or demonstrations are unconstitutional if city officials have discretion in setting the amount of fee

Question 37

Limited Govt Forums

Answer 37

Government properties that are limited to certain groups or designated for certain subject. The govt can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral

Question 38

NOn public forums

Answer 38

Govt constitutionally can and does close off to speech the govt can regulate speech in non-public forums so long as the regulation is reasonable (which means meeting rational basis test) and viewpoint neutral

Question 39

Examples of Non public forums

Answer 39

1. military bases
2. Areas outside of prison and jails
3. schools

• Note: public law school that officially recognized and funding student groups from activity fees could requires that the groups accepted all students regardless of their status or beliefs because it is viewpoint neutral and reasonably related to school purposes including tolerance.
  4. Signs on public property
  5. Sidewalks: post office *exception is public forum
  6. Airports: non-public but govt can’t prohibit dissemination of literature

Question 40

There is no First A right of access to

Answer 40

private property for speech purposes – ex shopping centers

Question 41

Freedom of associations

Answer 41

Laws that prohibit or punish group membership must meet SS.

Question 42

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

Answer 42

1. is actively affiliated with the group
2. has knowledge of the group’s illegal activities; and
3. has the specific intent of furthering those illegal activities or objectives

Question 43

Laws that requires disclosure of group membership where such disclosure would chill association

Answer 43

must meet SS

Question 44

Freedom of Association does not protect a right to discriminate UNLESS:

Answer 44

1. Intimate Association – eg. small dinner party

2. Where discrimination is integral to the expressive activities of the group – eg. KKK

Question 45

Freedom of Religion

Answer 45

Free exercise clause–> cannot be used to challenge a neutral law of general applicability
Govt may not deny benefits to individuals who quit their jobs for religious reasons.
Government may not hold a religious institution liable for the choices it makes as to who will be its ministers.

Question 46

Establishment Clause– Three Part Test:

Answer 46

1. (S) -there must be a Secular purpose for the law
2. (E) - The primary Effect must be neither to advance nor inhibit religion
3. (X)- There must not be excessive government entanglement with religion.

Question 47

Government cannot discriminate against religious Speech or among religions unless

Answer 47

SS is met

Question 48

Government sponsored religious activity in public schools is unconstitutional. BUT

Answer 48

Religious student and community groups must have the same access to school facilities as non-religious groups
Note School prayer–> even if voluntary is not allowed– not even a moment of silent pray is allowed

Question 49

The government may give assistance to parochial schools s long as it is not use for religious instruction

Answer 49

Government may provide parents vouchers which they use in parochial schools.

Question 50

Who is Actor in the Question? Congress

Answer 50

Issue is either or both: 1) does congress have the authority to act? (outline esp sec 11) and/or
2. Has congress violated a limit on its power? (outline , es ss VI VII and VIII)

Question 51

Who is Actor in the Question? President or Fed Exec Branch

Answer 51

1. Issue is either or both
2. has the president exceeded scope of exec power
   and/or
3. Has the president exec branch violated a limit on the govt power?

Question 52

Who is Actor in Question ? Fe Courts

Answer 52

Issue is:

Does the federal court have the authority to hear the case?

Question 53

Who is the actor in the Question? State/Local GOct

Answer 53

Issue is:

Has the state/local govt violates a limit on its power?

Question 54

Who is the actor in the Question? Private (non-govt)

Answer 54

Issues are
1) iS there state action?
and, if so,
2. Does it violate the Constitution ?