Constitutional Law 35-53 Flashcards
What rights does the 1st Amendment of the U.S. Constitution protect?
Freedom of speech and expressive activities;
Freedom to exercise religion;
Freedom of the press;
Freedom to peacefully assemble; AND
The right to petition the government for a redress of grievances.
*Congress also shall make NO law concerning the establishment of religion.
Priority: HIGH
What does the EstablishmentClause prohibit?
The government from establishing a religion or endorsing/supporting religion.
Laws that discriminateMUST satisfy strict scrutiny.
Laws that do not discriminate will be upheld if:
It has a secular purpose;
Its primary effect does not advance/prohibit religion; AND
It does not excessively entangle the gov’t with religion.
Priority: HIGH
What does the Free Exercise Clause prohibit?
The government from interfering with the exercise of religion.
Laws that interfere MUST satisfy strict scrutiny.
*Laws of general applicability that cause unintentional burdens on religion ARE constitutional, and do not offend the Free Exercise Clause.
Priority: HIGH
Free Speech:
Content-Based Restrictions
vs.
Content-Neutral Restrictions
Content-Based: Regulations regarding the content of protected speech (subject matter, viewpoint). Gov’t MUST satisfy strict scrutiny(narrowly tailored to achieve a compelling government interest AND it used the least restrictive means).
Content-Neutral: Gov’t may regulate the time, place, and matter of content-neutral speech if the regulation satisfies intermediate scrutiny(narrowly tailored to achieve a significant government interest AND leave open alternate channels of communication).
Priority: HIGH
Free Speech:
Public Forum
vs.
Designated Public Forum
vs.
Non-Public Forum
Public Forum: Traditionally available to the public for free speech.
Designated Public Forum: Not traditionally available for free speech, BUT the government chooses to make it available. Treated the same as a Public Forum.
Non-Public Forum: Public spaces that have traditionally been limited for free speech. The government may regulate speech here if the regulation is reasonable AND viewpoint neutral.
Priority: Medium
Free Speech:
When are licensing requirements permitted?
If:
The government has an important reason for licensing;
Specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; AND
Procedural safeguards are in place.
Priority: HIGH
Unprotected Speech:
What are fighting words?
Words, which by their very utterance:
Inflict injury; OR
Tend to incite an immediate breach of the peace.
*The 1st Amendment DOES NOT protect fighting words or true threats.
Priority: N/A
Unprotected Speech:
When does speech Incite Imminent Lawless Action?
When it:
Advocates the use of force or illegality;
It is directed to inciting or producing imminent lawless action; AND
It’s likely to incite or produce such an action.
*Speech that Incites Imminent Lawless Action is NOT protected by the 1stAmendment and may be outlawed.
Priority: N/A
Unprotected Speech:
Obscenity is NOT protected under the 1st Amendment.
What speech/material is characterized as obscene?
When:
It appeals to the prurient interest;
It is patently offensive under the laws prohibiting obscenity; AND
It lacks any serious, artistic, literary, or scientific value based on a national standard.
Priority: Low
Commercial Speech:
When may the government regulate truthful, non-misleading commercial speech?
If the regulation:
Directly advances;
A substantial government interest; AND
Is no more restrictive than necessary.
*False or misleading speech is NOT protected under the 1st Amendment.
Priority: Low
Free Speech – Public Schools
Schools are given a greater latitude to regulate speech. When are school officials justified in the suppression of speech?
They must prove that the conduct would materially and substantially interfere with the operation of the school.
Priority: N/A
Free Speech – Gov’t Employees
For a government employee’s speech to be Constitutionally protected, what is required?
The employee must speak:
As a citizen; AND
On a matter of public concern.
*An employee’s statements made pursuant to their official duties are NOT protected.
Priority: Low
Free Speech – Expressive Conduct
When may expressive conduct or symbolic speech be regulated?
If:
The government has an important purpose;
The purpose is independent of the suppression of speech; AND
The restriction is no greater than necessary to achieve that purpose.
Priority: Medium
Free Speech – Prior Restraints
When are procedural safeguards for licensing Permitted?
If:
The government has an important reason for licensing;
Specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; AND
Procedural safeguards are in place, assuring prompt final judicial decision when a license is denied.
Priority: Medium
Free Speech – Prior Restraints
What is a prior restraint on speech?
When the government attempts to prohibit speech before it happensthrough a court order or licensing requirement.
*Prior restraints are generally disfavored and unconstitutional, and court orders preventing speech MUST satisfy Strict Scrutiny.
Priority: Medium
When is a statute unduly vague or overbroad?
A statute is unduly vague if it does not put the public on reasonable notice as to what is prohibited.
A statute is overbroad if it regulates more speech than is Constitutionally permitted.
*A defendant CANNOT be convicted under a law that is deemed overboard or vague.
Priority: Medium
Freedom of the Press & Defamation:
What are the elements needed to prove actual malice for a public and private figure?
For a Public Figure, the plaintiff needs to prove:
That the statement was false; AND
That the defendant spoke with either:
Recklessness as to the truth of the statement; OR
Knowledge of its falsity.
If a Private Figure, the plaintiff need only prove that the:
Statement is false; AND
Speaker was negligent.
Priority: N/A
Freedom of the Press:
The 1st Amendment protects the press from liability when publishing what?
Truthful private facts;
On a matter of public concern;
Where such information is legally obtained; AND
There is no knowledge that any information was obtained illegally.
*The 1st Amend. doesn’t protect the press from liability for violating generally applicable laws.
Priority: N/A
Freedom of Association:
When may the Government punish a person’s membership in a group?
If it proves that:
The group is actively engaged in illegal activityor incites imminent lawless action;
The person has knowledge of the group’s illegal activities; AND
The person has specific intent of furthering those illegal activities.
Priority: Low
