First Amendment

Question 1

First Amendment - compelled speech

Answer 1

The First Amendment prohibits the government from requiring persons to say what they do not want to say.

Question 2

First Amendment - school/students

Answer 2

The Supreme Court has found that public school students do not shed all of their constitutional rights at the door. Public schools can reasonably restrict First Amendment rights of public school students to allow schools to accomplish their mission of educating students and keeping them safe.

Question 3

Free speech - general rule

Answer 3

The First Amendment generally prohibits the government from restricting the content of speech unless the government can prove that the restriction is necessary to achieve a compelling government interest. Regulations of the content of speech must meet strict scrutiny.

Question 4

Content-neutral speech regulation

Answer 4

Content-neutral regulation of the conduct associated with speech need only pass intermediate scrutiny. The government must prove it is narrowly tailored to achieve an important (or significant) government interest.

Question 5

First Amendment - fighting words/imminent lawless action

Answer 5

Certain categories of speech are not protected by the First Amendment, including speech that incites imminent lawless action and fighting words. Fighting words has been defined as personally abusive communications that, when addressed to an ordinary person, are likely to incite immediate physical retaliation. The Supreme Court has held that a statute may not constitutionally regulate mere advocacy of lawless action in the abstract; only speech that incites imminent lawless action can be regulated.

Question 6

First Amendment - overbroad regulation

Answer 6

A regulation of speech will not be upheld if it is overbroad, i.e., prohibits substantially more speech than is necessary. A regulation punishing a substantial amount of protected speech judged in relation to its litigate sweep is facially invalid and cannot be enforced against anyone. There is an exception to the above rule if a court has limited construction of the restriction so as to remove the threat to constitutionally protected speech.

Question 7

First Amendment - defamation

Answer 7

At common law, a plaintiff may bring a defamation action against a defendant who makes a false statement about the plaintiff. Under the First Amendment, public figures cannot recover for defamation unless they can show that the defaming statement was made with actual malice. Actual malice will be found where the statemetn is made with knowledge that it is false or with reckless disregard of its truth or falsity.

Question 8

First Amendment - press and trespass

Answer 8

The First Amendment does not provide the press with any special right to trespass, even if the trespass was done in order to investigate a story about a public figure or a matter of public concern. Trespass is an intentional physical invasion of a plaintiff’s real property caused by the defendant.

Question 9

First Amendment - freedom of the press tax exemption

Answer 9

The freedom of the press is guaranteed by the First Amendment. As with other areas within the First Amendment, the freedom does no prohibit all government regulation of the press, but it does place limits on regulation. The press and broadcasting companies can be subject to general business regulations and taxes, but generally may be singled out for a special tax. Moreover, a tax impacting on the press or a subpart of the press cannot be based on the content of the publication absent a compelling justification.

Question 10

First Amendment - free exercise clause

Answer 10

The free Exercise Clause generally prohibits government from acting in a way that interferes with the free exercise of religion. The Supreme Court has found the Clause to provide almost absolute protection for religious belief. Punishment of religious belief is prohibited, either absolutely or at least unless the discrimination is necessary to achieve a compelling government interest. The Free Exercise Clause does not require exemptions from government regulations for a person whose religious beliefs prevent him from conforming his behavior to the requirements of the law. Unless the law was motivated by a desire to interfere with religion, it can be applied to regulate the conduct of one whose religious beliefs conflict with the law (neutral law of general applicability).

Question 11

First Amendment - commercial speech

Answer 11

Although commercial speech is protected by the First Amendment, it is subject to significant regulation. A state may outlaw commercial speech that proposes an unlawful transaction or that is misleading or fraudulent. If commercial speech concerns a a lawful activity and is not misleading or fraudulent, the government regulation, to be valid, must directly advance a substantial government interest and must be no more extensive than necessary to serve that interest. The regulation must be narrowly drawn and there must be a reasonable fit between the legislation’s end and the means chosen.

Question 12

First Amendment - speech categories subject to intermediate scrutiny

Answer 12

1. Zoning laws on adult theaters and bookstores
2. Nude dancing bans
3. Symbolic speech
4. Content-neutral time, place, manner restrictions

Question 13

First Amendment -forum doctrine

Answer 13

A government body may reasonably regulate speech-related conduct in public forums and designated public forums through reasonable time, place, and manner regulations. Some public property, such as streets, sidewalks, and parks, is so historically associated with the exercise of First Amendment rights that it is categorized as a traditional public forum. Other public property may become a designated public forum when the government, by policy or practice, opens it for expressive activity. However, most locations other that streets, sidewalks, and parks are not public forums and may be reserved by the government for their intended activity. When a limited or nonpublic forum is involved, government regulations designed to reserve the forum for its intended use will be upheld if they are (i) viewpoint neutral, and (ii) reasonably related to the intended purpose of the nonpublic forum (which must be a legitimate government purpose).

Question 14

First Amendment - freedom of the press/matter of public concern

Answer 14

Generally, the press has a right to publish information about a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further a state interest of the highest order. The right applies even if the information has been unlawfully obtained in the first instance, as long as (1) the speech relates to a matter of public concern, (2) the publisher did not obtain it unlawfully or know who did, and (3) the original speaker’s privacy expectations are low.

Question 15

First Amendment - Establishment Clause Lemon test

Answer 15

A state law may not respect the establishment of a religion, and generally will be unconstitutional if it fails to pass any of the three following tests: (i) it has a secular purpose; (ii) its primary effect neither advances nor inhibits religion; and (iii) it does not product excessive government entanglement with religion.

Question 16

First Amendment - leafleting in a public forum

Answer 16

The First Amendment to the United States Constitution guarantees the freedom of speech. The First Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Under the First Amendment, regulations on the content of speech are subject to strict scrutiny and, therefore, are generally invalid. Government may regulate the conduct of speech with time, place, and manner regulations. A time, place, and manner regulation of speech in a public forum must (i) be content neutral; (ii) be narrowly tailored to serve a significant government interest; and (iii) leave open alternative avenues of communication.

Question 17

First Amendment - public property thrown open for public use

Answer 17

X places are not traditional public forums and generally are not available for the exercise of First Amendment speech or assembly rights. If X chooses to throw open its facilities for public use, the facilities become designated public forums. At the time designated public forums are open for speech or assembly activities, their use may be limited only by regulations that would be allowed in public forums. A time, place, and manner regulation of speech in a public forum must (i) be content-neutral; (ii) be narrowly tailored to serve a significant government interest; and (iii) leave open alternative avenues of communication.

Question 18

First Amendment - limited public forum

Answer 18

Limited public forums’ use may be limited only by regulations that are (i) viewpoint neutral and (ii) reasonably related to a legitimate government purpose.

Question 19

First Amendment - Establishment Clause: school opening up its facilities to religious speech or assembly activities

Answer 19

A school that opens its facilities to religious speech or assembly activities under a content-neutral policy does not violate the Establishment Clause. Opening classrooms passes the Lemon test of a secular purpose, primary effect neither advances nor inhibits religion, and will cause no excessive entanglements between government and religion.

Question 20

First Amendment - nonpublic forum

Answer 20

A nonpublic forum is government property not traditionally open for speech activities. A person does not have any right to access nonpublic forums for speech activities, and speech can be regulated in such forums by viewpoint neutral laws reasonably related to a legitimate government purpose.

Question 21

First Amendment - government employee speech-related conduct

Answer 21

Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. If a government employer seeks to fire an employee for speech-related conduct when the speech involved a matter of public concern but is not made pursuant to her official duties, the courts must carefully balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service.