First Amendment Flashcards
What is speech?
communication that is expressive conduct, can include activities and the freedman not to speak
what kind of restrictions can be at issue?
prior restraint
content based restriction
viewpoint based restriction
time place & manner
What is prior restraint
stops speech before it occurs presumed to be un constitutional UNLESS
prevent a particular harm
procedural safeguard without unfettered discretion
What is content based restriction?
regulation applies on its face or in application, conduct or view point
strict scrutiny applies
What is exception to strict scrutiny and content based regulation?
symbolic speech (regulating nudity) when the law regulates conduct and places incidental burden on speech is allowed If the regulation is narrowly tailored to important interest and unrelated to suppression of the speech
Is political speech protected?
type of content based regulation, protections apply to both individuals and corporations
if campaign contribution: regulations subject to intermediate scrutiny
campaign finances: regulation on expenditures are subject to strict scrutiny
Is commercial speech protected?
type of content based regulation
cna suppress if misleading or false
Is obscenity speech protecteD?
type of content based regulation
obscenity appeals to prurient interest and is offensive (community standard) and lacks literary, artistic, political value (national standard)
SS applied to porn
Is the regulation content neutral or based?
restriction that is time, place, and manner
What type of forum is consideded private?
for purposes of time place and manner, if it is public forum (streets, parks, or designated public forum):
must be (1) content and viewpoint neutral (2) narrowly tailored to significant interest and (3) leave open alternative channels for communication
What type of forum is considered private?
for purposes of time place and manner if it is private forum (military basis, airport, prison)
regulation must be viewpoint neutral and have reasonable relation to legitimate government interest
What is an vague regulation?
unconditional on its face if reasonable person could not tell what speech is prohibited
What is over breadth regulation?
if law substantially prohibits more expression than necessary
What does the establishment clause limit?
government can make no law respecting the establishment of religion and laws that discriminate against religious speech
Test: is this a historical practice? if yes, constitutional
What is scope of free exercise clause?
freedom to believe in any religion is highly protected
freedom to act on religious belief is less protected. the government may not intentionally target religious conduct but a neutral law that generally applies and impacts conduct is okay: Rational Basis Test
What is freedom of association?
Laws that prohibit participation in group of require disclosure of participation analyzed under Strict Scrutiny
What are types of speech that are unprotected
fighting words, obscenity, true threats
What is the first amendment for freedom of the press?
have the right to publish lawfully obtained information that is truthful about matters of public significance & right to attend criminal trial. If government infringes must pass strict strutiny.
EX: court refusing press in on trial to protect witness doesnt pass SS
When can the government interfere with first amendment freedom of association?
punishing of persons is okay. if (1) active members of subversive organization (2) illegal objectives (3) intend to further
EX: radical group that intends to position water to overthrow government, member was denied employment
What is ministerial exception and how does it apply?
first amendment free exercise clause prohibits gov interference with religious organization.
religious organization are protected fro civil liability for employment discrimination when they fire or hire employees who serve in ministerial roles
