ConLaw - 1st Amendment Flashcards
What is the 1st Amendment stance on Religion?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
What level of scrutiny applies to the 1st Amendment?
Strict scrutiny is used if the government favors one sect over another.
The government must prove that the rule is narrowly tailored to serve a compelling government interest.
3 part Lemon Test
Is used if a law or government program contains no religious or sectarian preference.
1) the statute must have secular purposes
2) the principle or primary effect must neither advance or inhibit religion; and
3) the statute in question does not have a sectarian preference and meets lemon test.
Government assessment on religion
The government cannot determine the truth or falsity of a person’s religion, they can determine that persons sincerity with regard to his religious beliefs.
US v. O’Brien (1968) free speech
A law that regulates conduct, but has an incidental burden on speech is allowable if the regulation furthers an important government interest that is unrelated to the suppression of speech, and the burden on free speech is no greater than necessary.
When can regulation for speech be void?
A regulation of speech is void for vagueness when persons of common intelligence would have to guess as its meaning.
What Amendment gives the right to free speech to the states?
The right to freedom of speech as guaranteed by the First Amendment (and made applicable to the states and local governments by the Fourteenth Amendment) does not protect violent or obscene speech.
Can the government censor all categories of speech?
No, The government cannot censor all categories of speech or engage in content-based discrimination among different categories of speech, even in circumstances where the speech is offensive.
However, the government does have the ability to regulate certain types of speech.
1) the regulation furthers an important or substantial state interest that is unrelated to the suppression of free speech
2) the restriction on speech is no greater than necessary to the furtherance of the state interest.
Can the government restrict cross burning?
The government can also regulate the time, place, and manner of speech [Virginia v. Black (2003).] the Supreme Court ruled that a state may ban cross burning carried out with the intent to intimidate.
In public areas such as: streets, sidewalks, and parks. (Focus on conduct and method, not content).
The regulation must be neutral on its face to subject matter and viewpoint, and be narrowly tailored to serve a significant and important government interest, leaving alternate channels of communication open.
Is sexual speech protected?
Sexual speech receives lesser constitutional protection. The regulation must serve a substantial government interest and leave open alternative channels of communication.
Bans on public nudity, including nudity at nude dancing establishments, have been upheld for reasons of protecting societal order and morality and protecting against possible secondary effects of nude dancing establishments, such as prostitution and other criminal activity.
What are the 3 Standards of Review
Rational Basis
Intermediate Scrutiny
Strict Scrutiny
What is Rational Basis
The rational basis standard of review is where the plaintiff must show that the measure being challenged is not rationally related to any legitimate governmental interest.
Classifications: Age, Alienage, disability, wealth, sexual orientation.
What is Intermediate scrutiny
Intermediate scrutiny
is where the government must show that the measure being challenged is substantially related to an important governmental interest.
Applies to gov discrimination on gender and illegitimacy, and sexual orientation/gender id under Title VII.
Strict Scrutiny Standard
The gov must prove that the measure being challenged serves a compelling gov interest, & that the measure is necessary to further that interest.
Applies to classifications based on RACE, Alienage, Voting, Domestic travel, National origin.
