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First Amendment > First Amendment > Flashcards

First Amendment Flashcards

1
Q

What are the 3 ways a private entity can qualify as a state actor?

A
  1. When the private entity performs exclusive public functions (ie company towns)
  2. When the Gov’t compels the private entity to take particular action; OR
  3. When the Gov’t acts jointly with the private entity.
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2
Q

What level of scrutiny applies to regulations targeting view point?

A

Severe Strict Scrutiny

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3
Q

What level of scrutiny applies to regulations targeting content based?

A

Strict Scrutiny

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4
Q

What level of scrutiny applies to content neutral regulations?

A

Intermediate Scrutiny

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5
Q

What is necessary to survive strict scrutiny?

A

The restriction must:
* further a compelling government interest and
* be narrowly tailored

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6
Q

In order for a Time, Place, and Manner restriction to be constitutional, what is required?

A

The regulation must be
* Appropriately limited and truly intended to regulate only time, place, and manner
* narrowly tailored to serve a significant state interest
* leave open ample alternative channels for communication

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7
Q

What is necessary for a regulation to be content neutral?

A

The regulation must be both viewpoint neutral and subject matter nuetral.

This applies to all speech regardless of the message.

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8
Q

What is viewpoint neutral?

A

The Gov’t can’t regulate speech based on the ideology of the message

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9
Q

What is subject-matter neutral?

A

The gov’t can’t regulate based on the topic of the speech.

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10
Q

When is a law unconstitutionally vague?

A

When a reasonable person cannot tell what speech is prohibited and what is permitted.

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11
Q

When is a law unconstitutionally overbroad?

A

When a law regulates substantially more speech than the Constituiton allows to bre regulated, and a person to whom the law constitutionally can be applied can argue that it would be unconstitionally applied to others.

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12
Q

What is the Collateral Bar Rule?

A

Precludes a person who disobeys a judicially ordered prior restraint from raising arguments about its invalidity as a defense to contempt proceedings.

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13
Q

What is the Unconstitutional Conditions Doctrine?

A

The gov’t cannot contain a benefit on the requirement that a person forgo a constitutional right.

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14
Q

What is the Brandenburg Test for?

A

Language that could incite others to violence

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15
Q

Under Brandenburg, what does the speech need to be in order to be deemed unprotected?

A
  1. Time: Imminent Harm;
  2. Probability: A likelihood of producing illegal action; and
  3. Intent: An intent to cause imminent illegality
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16
Q

What are fighting words?

A

Speech that is directed at another and is likely to provoke a violent response from a reasonable person.

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17
Q

What case governs Fighting Words?

A

Chaplinsky v. New Hampshire (1942)

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18
Q

What are the 3 techniques that the Supreme Court uses for overturning Fighting Words convictions?

A
  1. Narrowed the scope of the fighting words doctrine by ruling that it applies only to speech directed at another person that is likely to produce a violent response
  2. Unconstitutionally vague or overbroad
  3. Finding laws that prohibit some fighting words, such as expressions of hate based on race or gender, to be impermissible content-based restrictions of speech.
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19
Q

What are the 4 types of government regulations for Commercial Speech?

A
  1. Laws that outlaw advertising of illegal activities
  2. The prohibition of false and deceptive advertising
  3. The gov’t may prohibit true advertising that inherently risks becoming false or deceptive
  4. Laws that limit commercial advertising to achieve other goals
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20
Q

What case regulates commercial speech?

A

Central Hudson

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21
Q

What is the Central Hudson test for commercial speech?

A
  1. Illegality or misleading representations: Does the speech advertise illegal activities or consitute false or deceptive advertising that is unprotected by 1A?
  2. Substantial Gov’t Interest: Is the government’s restriction justified by a substantial governmental interest?
  3. Regulation Direct Advances Interest: Does the law directly advance the government’s interest?
  4. No more extensive than necessary: Is the regulation of speech no more extensive than necessary to achieve the gov’ts interest? Now, modified to ask if it is narrowly tailored and a reasonable fit between the means and the ends.
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22
Q

What is the major case governing defamation?

A

New York Times v. Sullivan

23
Q

What are the 4 requirements for winning a suit of defemation as a public individual?

A
  1. Plaintiff must be a public official, running for public office, or public figure;
  2. The Plaintiff must prove his or her case with clear and convincing evidence;
  3. The Plaintiff must prove the falsity of the statement; and
  4. The Plaintiff must prove actual malice
24
Q

What is necessary to prove actual malice in a defemation suit?

A

Requires proof that the statements were made with a “high degree of awareness of their probable falsity”

25
Q

What is the tort of public disclosure of private facts?

A

A tort for invasion of privacy, it exists if there is a publication of nonpublic information that is not “of legitimate concern to the public” and that the reasonable person would find offensive to have published.

26
Q

What case controles conduct that communicates?

A

United States v. O’Brien (1968)

27
Q

What is the O’Brien test?

A

If conduct contains both speech and nonspeech elements, an important or substantial gov’t interest in regulating the nonspeech element may justify incidental limitations on the protection of speech if:
1. the regulation is within the constitutional power of the gov’t;
2. the regulation furthers an important or substantial gov’t interest;
3. the gov’t interest is unrelated to the suppression of free expression; and
4. the incidental restriction on alleged 1A freedoms is no greater than is essential to the furtherance of that interest.

28
Q

In campaign finance, what are contributions?

A

Money given directly to a candidate

29
Q

In campaign finance, what are expenditures?

A

Money going to something that helps a candidate (ie, an ad)

30
Q

In campaign finance, when can an expenditure become a contribution?

A

When there is coordination with the candidate.

31
Q

What major case controls campaign finance?

A

Citizens United v. Federal Election Commission (2010)

32
Q

What is a public forum?

A

Government property that the government is constitutionally obligated to make available for speech.

Ex: sidewalks and parks

33
Q

When may government regulate speech in a public forum?

A

The government may regulate speech in a public forum only if certain requirements are met:
1. the regulation is content-neutral or it is content-based that can survive strict scrutiny;
2. the regulation is a reasonable time, place, or manner restriction that serves an important gov’t interest and leaves open adequate alternative places for speech;
3. A licensing or permit system must serve an important purpose, gibe clear criteria to the licensing authority that leaves almost no room for discretion, and provides procedural safeguards such as a requirement for prompt determination of license requests and judicial review of license denials.
4. Need not use the least restrictive alternative, although they must be narrowly tailored to fit the gov’ts purpose.

34
Q

What is a designated public forum?

A

Exist when a gov’t property has not traditionally be regarded as a public forum is intentionally opened up for that purpose.

35
Q

What is a Limited Public Forum?

A

Gov’t entities open property limited to use by certain groups or dedicated solely to the discussion of certain subjects.

36
Q

When can the gov’t impose regulations on a limited public forum?

A

When the restrictions are:
1. Reasonable; and
2. Viewpoint Neutral

37
Q

What is a non-public forum?

A

Gov’t properties that the gov’t can close to all speech activies.

38
Q

When can the gov’t impose restrictions on a nonpublic forum?

A

When the restrictions are:
1. Reasonable; and
2. Viewpoint Neutral

39
Q

What factors help determine is a place is public or nonpublic forum?

A
  1. the tradition of availabliity of the place
  2. the extent to which speech is incompatible with the usual functioning of the place
  3. whether the primary purpose of the place is for speech
40
Q

What test is used to determine speech restrictions in prisons?

A

The Rational Relation Test
1. Legitimate
2. Neutral
3. Rationally related to the objective

41
Q

What case governs speech by gov’t employees?

A

Garcetti v. Ceballos (2006)

42
Q

When can the government not punish speech by a government employee?

A

The gov’t may not punish the speech of public employees if it involves matters of public concern unless the state can prove the needs of the gov’t outweigh the speech rights of the employee.

43
Q

When may the gov’t infinge on the right of association?

A
  1. If the regulations are “adopted to serve compelling state interests”
  2. If the regulations are “related to the suppression of ideas”
  3. When the state interest “cannot be achieved through means significantly less restrictive of association freedoms”
44
Q

When can gov’t punish memberships?

A

The gov’t may punish membership only if it proves that the person actively affiliated with a group, knowing of its illegal objectives, and with the specific intent to further those objectives.

45
Q

What factors does the court consider when deciding whether a group can discriminate?

A
  • Size
  • Policies
  • Pourpose
  • Selectivity
  • Congeniality
46
Q

When does the freedom of association allow for groups to discriminate?

A

The freedom of association would protect a right to discriminate only if it is intimate association or where the discrimination is integral to express activity.

47
Q

What is the Richmond Newspaper test for determining if a case should be closed?

A
  1. Particularized overriding Interest
  2. Judicial findings that closure is necessary in that specific case
48
Q

What case governs whether the government has infringed on Free Exercise?

A

Employment Div. v. Smith

49
Q

What is necessary for a law to survive under Smith?

A

The law must be:
1. Neutral (Is law motivated by animus directed towards a particular faith or people of faith?); and
2. Generally applicable (Does law regulate only religious activity?)

50
Q

What is the Strict Separationist view of the Establishment Clause?

A

Wall Between Church & State
To the greatest extent possilbe, government and religion should be separated. The gov’t should be, as much as possible, secular; religion should be entirely in the private realm of society

51
Q

What is the Neutrality view of the Establishment Clause?

A

Reasonable Observer
The gov’t must be neutral on religion; the gov’t cannot favor religion over secularism or one religion over the other. Would a reasonable observer believe the gov’t is endoring religion?

52
Q

What is the Accommodation view of the Establishment Clause?

A

The court should interpret the Establishment Clause to recognize the importance of religion in society and accommodate its presence in the gov’t.

The gov’t violates the establishment clause only if it literally establishes a church or coerces religious participation.

53
Q

Under the accommodation view of the Establishment Clause, what is considered coercion?

A

Coercion only exists if the law requires and punishes the failure to engage in religious practice.
Only legal coercion matters, not the ‘subtle coercive pressures;

54
Q

What was the Lemon test for Establishment Clause violations?

A
  1. Requirement for secular purpose for a law;
  2. Requirement for secular effect (neutral, can’t advance or inhibit religion)
  3. Prohibition of excessive entanglement (state doesn’t need to monitoer religious institutions).

First Amendment (1 decks)

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