First Amend Freedoms Flashcards
Freedom of religion: Establishment Clause
1st Amend: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
- Both the establishment and free exercise clauses are incorporated into DPC of 14th amend and are applicable to the states
- Strict scrutiny triggered when gvt program shows preference to one religion over another or to religion over non-religion
What is the lemon test?
Where legislation contains no religious preference, gvt action that benefits religion is valid if:
- It has a secularlegislative purpose,
- Its principle effect neither advances not inhibits religion, and
- It dn result in execessive gvt entanglement with religion
Free exercise of religion
Religious belief: protected absolutely
Religious conduct: gvt may regulate if regulation is neutral in respect to religion and is of general applicability
- Laws that intentionally target religious conduct are subject to strict scrutiny
- Neutral laws of general applicability that have an impact on religious conduct are subject to rational basis test
What does 1st amend provide for?
Congress shall make no law abridging freedom of speech, or of the press, or the rt of ppl peaceably to assemble, and to petition gvt for a redress of grievances
How is 1st amend applicable to the states?
1st Amend is applicable to the states through DPC of 14th amend
When is regulation of speech allowed?
If it passes strict scrutiny
What can’t gvt do wrt expression?
Gvt may neither
- Censor all categories of speech, nor
- engage in content-based discrimination among different categories of speech, with some exceptions
When will law regulating conduct be allowed even if it creates an incidental burden on speech?
Allowed if
- Reg furthers an important/substantial gvt interest that is unrelated to the suppression of free expression; and
- The incidental restriction on speech is no greater than is essential to the furtherance of that interest.
When is commercial speech protected by 1st amend?
- it is not false/deceptive, and
2. DN relate to unlawfula ctivity
When will regulation on fraudulent commercial speech be valid?
A lawful, narrowly tailored regulation will be valid if
- it directly advances
- a substantial gvt interest, and
- there is a reasonable fit btw means used and legislation’s end
What is std of review for content neutral restrictions on speech?
Content neutral restrictions on speech are subject to intermediate scrutiny std.
The law must be substantially related to an important gvt interest
When can gvt regulate symbolic speech?
Symbolic speech may be regulated where regulation furthers an important gvt interest unrelated to suppression of speech and the incidental burden on speech is no greater than necessary
Content Neutral Regulation of Time, Place, Manner Restrictions
Reasonable restrictions are allowed Reg must 1. Further a significant gvt interest 2. Be narrowly tailored, and 3. Leave open alt. channels of communication
Is freedom of expression absolute?
Nope.
Gvt regulation of time, place, and manner of speech is subject to less restriction
When is regulation on freedom of speech allowed?
Allowed if passes strict scrutiny
What is expressive conduct
Symbolic speech
May be protected but subject to a lessor degree of protection than protected speech
i.e. laws against public nudity ok bc aimed at public order
When is gvt regulation of expressive conduct upheld?
- Regulation is within gvt’s power to enact
- Regulation furthers an important gvt interest
- Gvt interest is unrelated to the supression of ideas; and
- Burden on speech is no greater than necessary
Vagueness
Staute is vague when person of ordinary intelligence would not, even with knowledge of the law, be certain of the legality of a conduct
Overbreadth
Statute punishes both protected as well as unprotected speech
What are prior restraints?
Regulations of speech that occurs in advance of its expression
- Disfavored and will be struck down even when other forms of regulations might be upheld
When are prior restraints allowed?
- there is particular harm to be avoided (troop positions); and
- certain procedural safeguards are provided to speaker
- safeguards inlcude
(i) stds must be narrowly drawn, reasonable, and definite
(ii) censoring body must promptly seek an injunction; and
(iii) there must be a prompt and final judicial determination of the validity of the restraint
Burden on gvt to prove that material to be censored is not protected speech
What factors should trial judge consider in determing if prior restraint is appropriate?
- Nature and extent of pretrial publicity
- Availability of other measures to mitigate the effects of pre-trial publicity, and
- Likely effectiveness of restraining order
How is gvt speech different from other speech?
Gvt not constrained by 1st amend
- Need not be viewpoint neutral - subject to establishment clause
- Display of a monument on public property, even if donated by pvt person, is gvt speech
Speech by gvt ees
Attempts to fire/penalize a gvt ee for speech on matters of public concern will be strictly scrutinized
- Speech made in furtherance of public ee’s job fcts receive less protection under 1st Amend than speech by a person acting outside of his job
- Ct balance 1st amend interest of ee against the interest of state as ER in promoting efficiency of public svcs it provides through its ees
When can gvt regulate speech in public forum?
Public forum: Includes streets, parks, public sidewalks
- Only time, place, or manner may be regulated in a public forum as long as restrictions
1. Are content neutral as to both subject matter and viewpoint
2. Are narrowly tailored to serve a significant governmental interest; and
3. Leave open ample alternative channels for communication of the information - Restrictions that are not content neutral are subject to strict scrutiny
Can gvt regulate speech in a ltd public forum?
Ltd Public Forum: Not a traditional public forum but gvt chooses top open it to public i.e. municipal theaters anyone can rent
Only time, place, or manner may be regulated in a public forum as long as restrictions
1. Are content neutral as to both subject matter and viewpoint
2. Are narrowly tailored to serve a significant governmental interest; and
3. Leave open ample alternative channels for communication of the information
- Restrictions that are not content neutral are subject to strict scrutiny
Can gvt regulate speech in a non-public forum?
Non-public forum: gvt property like jails, gvt offices, power plants, military bases
- Any reasonable regulation on speech will be upheld
- Regulation must be viewpoint neutral and reasonably related to a legitimate gvt interest
What is rqd for licensing statute (speech) to be valid?
- To be valid, licensing scheme must relate to an important gvt objective
- Be clearly written, narrowly draw, and
- Reasonably regulate time, place, and manner of speech
Can gvt regulate the content of a speech?
Gvt may regulate content of speech only if the regulation is necessary to achieve a compelling gvt interest and is narrowly tailored to meet that interest
- Subject to strict scrutiny test
- gvt must ID an actual problem, and the regulation must be necessary to solve the problem
When may fighting words be punished?
Words likely to incite ordinary citizen to acts of immediate physical retaliation may be punished if
- speech must be more than annoying or offensive; and
- there must be a genuine likelihood of imminent violence by a hostile audience
What is obscene speech?
To be obscene speech must
- Apeeal to prurient interest in sex, applying contemporary community stds
- Depict sex in a patently offensive way, and
- Lack serious literary, artistic, political, or scientific value
Defamation
Public officials/figure and ltd public figures must prove malice
i.e. knowing falsity/reckless disregard for the truth
Pvt persons: Constitutional limitations apply only where defamatory statement involves a matter of public concern.
Need to prove negligence
What speech falls under clear and present danger?
- Speech directed at producing imminent unlawful action, and
- likely to produce such a result
Gag orders
Judicial order prohibiting press from publishing information ab ct proceedings
- Subject to prior restraint analysis
- Almost always struck down bc they are rarely the least restrictive means of protecting the defendant’s rt to a fair trial
Freedom of association
Protects rt to form or participate in any group, gathering, club, or organization virtually without restriction
- But rt is not absolute
- an infringement on this rt may be justified by a compelling state interest
Freedom of association and public employment
Individual generally cant be denied public employment based simply upon membership in a political organization
- May only be punished or deprived of public employment based on political association if that individual
1. Is an active member of a subversive org
2. Has knowledge of the org’s illegal activity; and
3. Has specific intent to further those activities
