Con Law: First Amendment Flashcards
General Rules pertaining to Constitution’s protection of Free Speech
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.
The distinction between content-based and Content-neutral restrictions– Content based
Content based restrictions on speech generally must meet strict scrutiny.
There are two alternative ways of finding that a law is content based:
- Subject matter restriction (application of law depends on topic of message)
- View-point restriction (application of the law depends on the ideology of the speech)
The distinction between content-based and Content-neutral restrictions– Content Neutral
Content neutral laws burdening speech generally need only meet intermediate scrutiny
Prior restraint: stopping speech before it occurs
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.
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. In additional, there must be procedural safeguards such as prompt determination of requests for licenses and judicial review of license denials.
Vagueness and Overbreadth – Vagueness
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
Overbreadth
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
Fighting words are not protected speech but statutes attempting to punish the use of such words
Are often found to be void for vagueness.
Symbolic Speech
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.
Symbolic Speech–Specifically
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.
Anonymous Speech
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
Speech by govt-cant be challenged. Generally, government speech and govt funding of speech will be upheld as long as it is
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.
What types of speech are unprotected or less protected by 1A?
- Incitement of illegal activity is unprotected by 1A–
2. Obscene and Sexually Oriented Speech
Incitement of illegal activity
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.
Obscene and Sexually Oriented Speech
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.
Child pornography may be completely banned
even if not obscene– children must be used in production to be child porno
Government may not punish private possession of obscene materials BUT
govt may punish private possession of child porno
* govt can seize assets of businesses convicted of violating obscenity laws.
Profane and indecent is generally protected by the 1A
Exception: Free, over the air broadcast media – TV and Radio
and In schools – responsible for teaching civility
Falsity in and of itself does NOT make speech unprotected–where it is protect is
based on harm caused
Commerical Speech
Ads for illegal activity and false and deceptive ads are not protected
Even true commercial speech that inherently risks deception can be prohibited
States may prohibit attorney in person solicitation of clients for profit– NOTE:
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.
Who can’t the govt prohibit from in-person solicitation
accountants
Other commercial speech can be regulated by government if:
Intermediate scrutiny is met–>
Government regulation of commercial speech must be
Narrowly tailored but it does not need to be the least restrictive alternative.
A state may NOT prohibit the sales of violent video games to minors AND
The court refused to add violence as an additional area of unprotected speech
Defamation: If the P is a public official or running for public office, the P can recover for defamation only by proving with
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.
Defamation: I the P is a “public figure” the P can recover for defamation by
Proving falsity of the statement and actual malice
Defamation: If P is a “private figure” and the matter is of “public concern,”
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
Defamation: If P is a “private figure” and the matter is not of “public concern” the p can recover
presumed or punitive damages without proving actual malice.
*negligence it appears
Liability for intentional infliction of emotional distress for Defamatory speech–
Must meet defamation standards and CANNOT exist for speech otherwise protected by the 1A.
Privacy and First Amendment
- State may not create liability for the truthful reporting of information that was legally obtained from govt records
- 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
- Govt may restrict own dissemination of info to protect privacy. public only has right to attend criminal trials and crime pretrial proceedings
Speech by govt employees on the job in performance of their duties
is NOT protected by the First A.
Other government restriction based on the content of speech must
Meet strict scrutiny
What places are available for speech?
- Public forums (eg parks and sidewalks) –regulation must be subject matter and viewpoint neutral otherwise SS
- Designated public forums– govt voluntarily chooses to open to speech –same rules as public forums
- Limited public forums:
- Non-public forums
Public forums
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
Limited Govt Forums
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
NOn public forums
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
Examples of Non public forums
- military bases
- Areas outside of prison and jails
- 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
There is no First A right of access to
private property for speech purposes – ex shopping centers
Freedom of associations
Laws that prohibit or punish group membership must meet SS.
To punish membership in group is must be proven that the person:
- is actively affiliated with the group
- has knowledge of the group’s illegal activities; and
- has the specific intent of furthering those illegal activities or objectives
Laws that requires disclosure of group membership where such disclosure would chill association
must meet SS
Freedom of Association does not protect a right to discriminate UNLESS:
- Intimate Association – eg. small dinner party
2. Where discrimination is integral to the expressive activities of the group – eg. KKK
Freedom of Religion
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.
Establishment Clause– Three Part Test:
- (S) -there must be a Secular purpose for the law
- (E) - The primary Effect must be neither to advance nor inhibit religion
- (X)- There must not be excessive government entanglement with religion.
Government cannot discriminate against religious Speech or among religions unless
SS is met
Government sponsored religious activity in public schools is unconstitutional. BUT
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
The government may give assistance to parochial schools s long as it is not use for religious instruction
Government may provide parents vouchers which they use in parochial schools.
Who is Actor in the Question? Congress
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)
Who is Actor in the Question? President or Fed Exec Branch
- Issue is either or both
- has the president exceeded scope of exec power
and/or - Has the president exec branch violated a limit on the govt power?
Who is Actor in Question ? Fe Courts
Issue is:
Does the federal court have the authority to hear the case?
Who is the actor in the Question? State/Local GOct
Issue is:
Has the state/local govt violates a limit on its power?
Who is the actor in the Question? Private (non-govt)
Issues are
1) iS there state action?
and, if so,
2. Does it violate the Constitution ?
