FIRST AMENDMENT Flashcards
First Amendment Checklist
Free Speech
- Free Speech
- Speech
- Protected Speech
- Symbolic Speech
- Content-Based Regulation
- Content-Neutral Regulation
- Unprotected and Lesser-Protected Speech
- Obscenity
- Incitement
- Fighting Words
- Commercial Speech
- Protected Speech
- Forum
- Public Forums
- Content-Neutral
- Time, Place, Manner
- Content-Based
- Content-Neutral
- Non-Public Forums
- Public Forums
- Limitations
- Vagueness
- Over-breadth
- Prior Restraint
- Speech
First Amendment Checklist
Freedom of Religion and Freedom of Association
- Freedom of Religion
- Establishment Clause
- Facially Religious Preference
- No Facially Religious Preference - Lemon Test
- Lemon Test
- Free Exercise of Religion
- Free Exercise Clause
- Religious Belief
- Laws Targeting Religious Conduct
- Laws of General Applicability
- Free Exercise Clause
- Establishment Clause
- Freedom of Association
First Amendment
The First Amendment protects freedom of expression, including freedom of speech, of press, of peaceful assembly, and of association and the right to petition the government for a redress of greivances
Free Speech - Protected Speech
Symbolic Speech
Symbolic speech is expressive or communicative conduct, which the government may regulate if
(1) the regulation furthers an important government interest,
(2) the government interest is unrelated to the suppression of the speech, and
(3) the regulation burdens the speech no greater than necessary to further government interest.
Free Speech - Protected Speech
Content-Based Regulation
Content-based restrictions occur when the government places restrictions on speech based on its content. Content-based restrictions are subject to strict scrutiny.
Free Speech - Protected Speech
Content-Neutral Regulation
Content-neutral restrictions occur when a government places restrictions on all speech, irrespective of the speech’s content or viewpoint. Content-neutral regulations are subject to intermediate scrutiny.
Free Speech - Unprotected and Lesser-Protected Speech
Obscenity
Obscenity is a form of unprotected speech, and therefore can be regulated based on content. To be considered obscene, the average person, applying contemporary standards, must find that the material, taken as a whole (1) appeals to the prurient interest, (2) depicts sexual conduct in a patently offensive way, and (3) lacks serious literary, artistic, political, or scientific value.
Free Speech - Unprotected and Lesser-Protected Speech
Incitement
The government may prohibit speech if it is
(1) directed at inciting or producing imminent lawless action and
(2) likely to incite or produce such action
Free Speech - Unprotected and Lesser-Protected Speech
Fighting Words
The government may prohibit speech which, by its very utterance, inflicts injury or tends to incite an immediate breach of the peace or violence against the speaker.
Commercial Speech
Commercial speech is protected unless it is false or misleading. Protected commercial speech can only be regulated if the regulation (1) is narrowly tailored to (2) directly advance a (3) substantial government interest.
Free Speech - Forum
Public Forum
Traditional public forums are those that the public has historically used for expressive activities (sidewalks, streets, parks, etc). Limited public forums (civic auditoriums, publicly owned theaters, etc.) are those that have been designated for a public expressive purpose but have not traditionally been used for those purposes otherwise.
Free Speech - Public Forums
Content-Neutral and Content Based
Content neutral regulations are subject to the time, place, and manner test:
In public forums, the government may impose content-neutral regulations as to time, place, and manner as long as the regulation satisfies INTERMEDIATE scrutiny by showing
(1) it is narrowly tailored to achieve (2) an important government interest and (3) it leaves open alternative means of engaging in the expression
Content Based regulations are subject to strict scrutiny.
Free Speech - Non-Public Forum
The government may regulate speech in non-public forums* as long as the regulation is (1) viewpoint neutral and (2) satisfies the rational basis test
*e.g. polling places, schools, airports, jails, government offices, military bases
Free Speech - Limitations
Vagueness
Regulations may be void for vagueness if a reasonable person cannot determine whether the speech is prohibited or permitted
Free Speech - Limitations
Overbreadth
A regulation may be void for overbreadth if it regulations substantially more speech than the Constitution allows
