First Amendment Flashcards
Speech
First Amendment guarantees freedom of speech BUT it does NOT provide freedom to say whatever someone wants, whenever or wherever it wants.
General Rule: Gov can regulate content of speech if the reg is necessary to achieve a compelling gov interest
Time, Place, and Manner
Gov has more leeway to regulate conduct of speech - the time, place, and manner (TPM) in which it can take place. Gov’s ability to regulate TPM depends on type of forum involved.
Supreme Court has specified four types of forums: public forums, designated public forums, limited public forums, and non-public forums.
Public Forums and Designated Public Forums
Public forums: government properties historically left open for speech activities (sidewalks, public parks)
Designated public forums: government properties NOT historically left open for speech activities, but which have been opened by gov for such activities, either at specified times or all the time
TPM regulations in public forums/designated public forums must be:
(i) content neutral
* subject matter neutral and viewpoint neutral
(ii) narrowly tailored to an important government interest:
* Narrowly tailored: regulation doesn’t substantially burden more speech than is necessary to achieve an important gov interest
(iii) leave open alternative channels of communication
* Other reasonable means of communication are available
If regulations are NOT content neutral, they are subject to strict scrutiny
Subject matter neutral: doesn’t regulate based on topic of speech
Viewpoint neutral: doesn’t regulate based on ideology
Limited Public Forums and Non-Public Forums
Limited Public Forums: Government properties not historically left open for speech activities but which have been opened by gov for a PARTICULAR purpose
Non-Public Forums: government properties not historically left open for speech activities and NOT held open for speech activities in any way
TPM regulations for limited public forums and non-public forums must be:
* (i) viewpoint-neutral
* (ii) REASONABLY related to a legitimate government interest
Commercial Speech
Regulation of commercial speech depends on:
(i) whether speech concerns LAWFUL ACTIVITY and is not misleading or fraudulent
* If no, then it can be prohibited
(ii) if yes, regulation can limit speech if it’s narrowly tailored to achieve a SUBSTANTIAL government interest and directly advances that interest
* Narrowly tailored: if there is a reasonable fit between the legislation’s ends and means
Vagueness
Under Due Process Clause, laws must provide reasonable notice of what is prohibited. If a reasonable person can’t tell what speech is prohibited/allowed, the law regulating speech is deemed UNCONSTITUTIONALLY VAGUE.
Overbroad
Law is UNCONSTITUTIONALLY OVERBROAD if it regulates substantially more speech than is necessary to achieve a legitimate purpose
Ex. Prohibition against ALL live entertainment, ALL First Amendment activity at an airport, etc.
Freedom of Association
Constitution doesn’t expressly mention freedom of association, but Supreme Court has held that First Amendment guarantees it.
* Right to associate with, or not associate with, people of one’s choosing
NO CLEAR TEST: sometimes strict scrutiny, sometimes more lenient standard.
General Rule: Groups have right to limit memberships
Free Exercise Clause
Government shall not interfere with free exercise of religion.
* Gov cannot target religious practices
* Gov cannot regulate conduct for purposes of interfering with religious beliefs
*
Issues:
* Whether religious belief/practice is involved
* Whether belief/practice is sincerely held
* Whether gov is interfering with belief/practice
Whether Belief is Religious
* Belief is “religious” if it occupies a place in believer’s life PARALLEL to that occupied by orthodox religious beliefs
* Court prohibited from determining VALIDITY of religious belief
* Not clear what constitutes religion/religious belief, but Free Exercise Clause does NOT only protect traditional, established, and organized religions
* Court has NEVER found asserted religious belief to be nonreligious
Whether Belief is Sincerely Held
* Court can assess whether belief is sincerely held; belief that’s NOT sincerely held is not protected by Free Exercise Clause
* Court looks at common factors to determine if person is lying
Whether Gov is INTERFERING with Belief
* Gov can adopt religiously neutral, GENERALLY APPLICABLE laws that might incidentally interfere with person’s religious beliefs
* Laws of generally applicability do NOT need to have exceptions for religiously motivated conduct
* Strict Scrutiny: Gov can interfere with religion if it’s necessary to achieve a compelling interest (including where generally applicable law was motivated by desire to interfere with religion)
Establishment Clause
Gov prohibited from respecting an establishment of religion (gov must be NEUTRAL toward religion)
If law is not neutral, it’s still permissible IF it accords with historical practices and understandings of the Founding Fathers
