Final Exam

Question 1

Strict Scrutiny Rule

Answer 1

Statute must be narrowly tailored to satisfy a compelling government interest

Question 2

Rational Basis Test

Answer 2

Statute must be reasonably and rationally related to a legitimate government interest

Question 3

Vagueness

Answer 3

Leaves enforcer with unbridled discretion which causes issues with due process as to whether there was actual notice

Question 4

Overbreadth

Answer 4

Statute prohibits protected and unprotected speech

Question 5

Overbreadth 3rd person Exception

Answer 5

Can have someone whose speech that is not protected bring a suit for people whose speech would be protected had they brought a suit

Question 6

Prior Restraint

Answer 6

Government Speech that preceded the speech itself

Question 7

Prior Restraint and Permits Scheme Test

Answer 7

1) State must have explicit criteria for the grant or denial of the permit; and
2) The criteria must be content neutral

Question 8

Non-Topical Speech

Answer 8

Timing is not critical to the speech

Question 9

Non-Topical Speech Test

Answer 9

1) The government must show the speech is not protected
2) Quick determinations by the court
3) The government must be prompt to initiate court action

Question 10

Topical Speech

Answer 10

Timing is critical to the speech and must be a court determination before the government can restrain publication

Question 11

Clear and Present Danger Test

Answer 11

Brandenburg Test

1) Direct incitement to (Hand)
2) Lawless conduct, that is
3) Imminent, and (Present)
4) Likely to occur (Clear)

Question 12

Conduct as “Speech”

Answer 12

If a person gives material support to a terror organization, it is a form of unprotected speech

Question 13

Defamation- Public Official/Figure

Answer 13

1) Speaker must have knowledge that the statement is false; and
2) act with reckless disregard for whether the statement was false or not

Question 14

Defamation- Private Individual

Answer 14

1) The statement made is false; and

2) The speaker acted negligently

Question 15

Obscenity

Answer 15

Miller Test

1) Prurient Interest
2) Patently Offensive
3) Artistic Value

Question 16

Obscenity (1)

Answer 16

Prurient (Indecent) Interest-

Whether the average person would subjectively find the work appeals to a prurient interest

Question 17

Obscenity (2)

Answer 17

Patently Offensive-

Whether the work depicts or describes sexual conduct as defined by the applicable state law

Question 18

Obscenity (3)

Answer 18

Artistic Value-

Whether the work lacks artistic, scientific, or political value

Question 19

Child Pornography

Answer 19

Automatically unprotected, but must actually involve children

Question 20

Fighting Words

Answer 20

Unprotected speech where words are directed at a specific person or group and by their very utterance inflict injury or tent to incite an immediate breach of the peace

Question 21

True Threats

Answer 21

Speaker means to communicate a serious act of unlawful violence towards a particular person or group

Question 22

View Point Discrimination

Answer 22

Law which bars speech for only certain classes of individuals will always be met with strict scrutiny

Question 23

Commercial Speech

Answer 23

Intermediate Scrutiny-
Speech Related Solely to the economic speaker and its audience or speech proposing a commercial transaction (first two prongs of test = easier to prove)

Question 24

Commercial Speech Test

Answer 24

Central Hudson Test

1) Whether the expression is protected under the First Amendment (is it lawful)
2) Whether the asserted government interest is substantial
3) Whether the regulation directly advances the government interest asserred
4) Whether the restriction is no more extensive than necessary to secure that interest

Question 25

Content Neutral Restriction on Speech

Answer 25

Cannot have time, manner, or place, restrictions within the statute (not as difficult to meet)

Question 26

Content Neutral Restriction on Speech Test

Answer 26

Frisby Test

1) Is the restriction truly content neutral
2) Is there a significant government interest
3) Id the restriction narrowly tailored to serve the government interest
4) Does the restriction leave ample alternative channels for communication

Question 27

Traditional Public Forum

Answer 27

Very limited government property: public streets, sidewalks, parks (same type of analysis as before)

Question 28

Designated Public Forum

Answer 28

Government property opened intentionally and for general use (same type of analysis as before)

Question 29

Private Property

Answer 29

Given the highest level of protection

Question 30

Limited / Non-traditional Public Forum

Answer 30

Government intentionally opens for use by certain speakers of certain subject matter

Question 31

Limited / Non-traditional Public Forum Test

Answer 31

Government may ban even protected speech as long as the ban is:

1) reasonable; and
2) viewpoint neutral

Question 32

Viewpoint Neutral

Answer 32

If the speech being excluded is different in king from the speech that is being allowed, it is not viewpoint discrimination

Question 33

Government as a Speaker

Answer 33

The First Amendment does not apply, and, therefore, government speech can also be viewpoint discrimination

Question 34

Speech in Schools

Answer 34

Tinker- Strict Scrutiny

But Tinker is applied inconsistently so if the speech appears to be grossly “obscene” then it could be rational basis

Question 35

Establishment Clause

Answer 35

Congress may not pass a law that established religion

Question 36

Establishment Clause Main Test

Answer 36

Lemon Test:

1) The statute must have a secular purpose which cannot be pretextual
2) The statute’s principal/primary purpose can neither advance nor inhibit religion
3) Cannot have excessive government entanglement with religion

Question 37

Other factors in the Establishment Clause

Answer 37

1) Endorsement Test
2) Coercion Test
3) Passive Monuments

Question 38

Endorsement Test

Answer 38

Issues where a reasonable person would perceive the forms of speech as being sponsored by the government

Question 39

Coercion Test

Answer 39

Whether or not the religious item coerces the viewer into adopting or following a particular religion

Question 40

Passive Monuments

Answer 40

Lemon Test is not applicable

Question 41

Passive Monument Factors

Answer 41

1) Can the monument be easily avoided
2) If the monument has a duel significance
3) If the monument is indoctrinating an impressionable young person
4) If the monument was donated by a private indivdual

Question 42

Free Exercise Clause

Answer 42

Congress may not interfere with the free exercise of religion

Question 43

Free Exercise Clause Test

Answer 43

Oregon v. Smith

1) Law targeting religion on its face is Strict Scrutiny
2) A generally applicable law with incidental impact on religious beliefs is Rational Basis (but if the law also incites another First Amendment Protection, could get heightened scrutiny)