First Amendment

Question 1

First Amendment generally

Answer 1

Prohibits Congress from abiding the freedoms of speech and press, or interfering with the right of assembly, or from establishing a religion or interfering with the free exercise of religion

Question 2

What is speech

Answer 2

Includes words, symbols, and expressive conduct

Expressive conduct is any kind of conduct that is either inherently expressive, or conduct that is
- intended to convey a message, and
- reasonably likely to be perceived as conveying a message

Question 3

Incitement - speech

Answer 3

Speech can be censored as incitement if it is
- intended to produce imminent lawless action, and
- likely to produce such action

Question 4

Fighting words

Answer 4

Speech can be censored if it constitutes fighting words - personally abusive words that are likely to incite immediate physical retaliation of an average person

Words that merely annoy won’t do

Question 5

True threats

Answer 5

First Amendment does not protect true threats - words intended to convey to someone a serious threat of bodily harm

To qualify as a true threat, the speaker must have had some subjective understanding that their threats were of a threatening nature, but a mental state of recklessness is sufficient
- mental state of recklessness means speaker is aware that others could regard the statements as threatening violence and delivers them anyway

But cannot be viewpoint-based

Question 6

Obscene speech

Answer 6

Not protected

Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, but the average person
- appeals to the prurient (arousing) interest in sex, using a contemporary community standard
- is patently offensive under contemporary community standards, and
- lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard

Obscenity statutes need to list the specific sexual acts that are banned

Mere nudity, soft-core porn, and dirty words are not obscene

Question 7

Private possession of obscene material

Answer 7

Private possession of obscene material in the home cannot be punished

Except possession of child pornography

Question 8

Child pornography and speech

Answer 8

To protect minors from exploitation, the government may prohibit sale or distribution of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children

Cannot bar visual material that only appears to depict minors engaged in sexually explicit conduct

Question 9

Obscenity to minros

Answer 9

The state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience

But government cannot prohibit the sale or distribution of material to adults just because its inappropriate for children

Question 10

Defamatory speech generally

Answer 10

If the statement is about a public official or public figure or involves a matter of public concern, the first amendment requires the plaintiff to prove all the elements of defamation plus falsity and some degree of fault in order to recover

Question 11

Defamatory speech - public official / figure as plaintiff

Answer 11

If the plaintiff is a public official or figure, then regardless of whether the defamation is on a matter of public or private concern, the degree of fault the pl must show is actual malice

To show actual malice, the pl must prove by clear and convincing evidence that the alleged defamatory statement was made with
- knowledge that it was false, or
- reckless disregard as to its truth or falsity

Question 12

Definition of public officials and public figures

Answer 12

Public officials include people
- holding or running for elective office at any level, and
- public employees in positions of public importance (prosecutor, school principal, cop, etc)

Public figures are people who have
- assumed roles of prominence in society, and
- achieved pervasive fame and notoriety, or
- thirst themselves into particular public controversies to influence their resolution

Question 13

Matters of public concern

Answer 13

Matters of public concern are issues important to society or democracy

Case-by-case basis whether the defamatory statement involves a matter of public concern, looking at the content, form and context of the publication

Question 14

Private figure suing on matter of public and private concern

Answer 14

If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the pl can only recover actual damages if the plaintiff only shows negligence
- need actual malice to recover punitive or presumed damages

If the pl is a private figure suing on a private concern matter, first amendment is not involved

Question 15

Intentional infliction of emotional distress and defamation

Answer 15

The SC has required proof of actual malice for recovery under torts where the pl is a public figure or official, or where the speech is on a matter of public concern

Question 16

Commercial speech

Answer 16

Not protected if it is
- false
- misleading, or
- about illegal products or services

Any other regulation of commercial speech will be upheld only if it
- serves a substantial government interest,
- directly advances that interest, and
- narrowly tailored to serve that interest

Narrowly tailored does not require the least restrictive means - reasonable fit

Question 17

Content-based regulations

Answer 17

Content-based regulations are subject to strict scrutiny and they are presumptively unconstitutional unless they fall within one of the categories of unprotected speech

A regulation is content-based if it restricts speech based on the subject matter or viewpoint of the speech

Question 18

Content-neutral regulations

Answer 18

Content-neutral restrictions on speech (both subject matter-neutral and viewpoint-neutral) generally are subject to intermediate scrutiny
- must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests

Form of time, place, and manner restrictions

Both subject matter-neutral and viewpoint-neutral, usually going to the time, place, or manner of speech

Question 19

Speech restrictions on government property generally

Answer 19

The extent to which the government may regulate speech or expressive conduct on government property depends on whether the property involved is a public forum, a designated public forum, a limited forum, or a nonpublic forum

Injunctions against speech in public forums are treated the same as other speech restrictions

Question 20

Traditional public forums - what is it

Answer 20

Public property that has historically been open to speech-related activities (streets, sidewalks, public parks) is called a public forum

Question 21

Designated public forums - what is it

Answer 21

Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities in a permanent or limited basis, by practice or policy, (a town hall) is a designated public forum

Question 22

Traditional public forums and designated public forums - level of scrutiny

Answer 22

If the regulation on a traditional public forum or designated public forum is content-based, it will be subject to strict scrutiny

But if it is content-neutral, it only needs to meet intermediate scrutiny, which in this context means
- be narrowly tailored to serve an important government interest (but does not need to be the least restrictive means), and
- leave open alternative channels of communication

Question 23

Limited public forum - what is it

Answer 23

Limited public forums are government forums not historically open generally for speech and assembly, but opened for specific speech activity, like a school gym opened to a speaker

Question 24

Nonpublic forum - what is it

Answer 24

Nonpublic forums are government property not historically open generally for speech and assembly and not held open for specific speech activities, like military bases or government workplaces

Question 25

Limited public forums and nonpublic forums - scrutiny levels

Answer 25

Speech and assembly can be more broadly regulated in limited public forums and nonpublic forums

The government can regulate speech in such forums to reserve the forum for its intended use - valid if
- viewpoint neutral, and
- reasonably related to a legitimate government purpose

If the regulation is viewpoint based, strict scrutiny

Question 26

Personal student speech and public schools

Answer 26

Not public forums so can be reasonably regulated to serve the school’s educational mission

A student’s own personal speech - their expression of themselves as individuals - on campus cannot be censored absent evidence of substantial disruption

But speech promoting illegal drug use does not require showing any disruption or credible threat of disruption

Question 27

Personal student speech off campus

Answer 27

When the student’s personal speech occurs off campus, harder to censor

Limited to restricting speech where pedagogical or safety interests clearly outweigh the speech interests of students as private citizens

Question 28

Speech related to schools’ teaching

Answer 28

Restrictions on speech related to the school’s teaching - speech by school faculty and by students as part of curricular or extracurricular activities - must be reasonably related to legitimate pedagogical concerns
- deferential to schools

Newspapers published as part of a class is school speech

Question 29

Unprotected government employee speech

Answer 29

If a government employee’s speech while at work involves a matter of private concern, the employer can punish the employee if the speech was disruptive of the work environment

A government employee may also punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties, even if the speech touches on a matter of public concern

No first amendment protection here

Question 30

Unprotected governmental employee speech

Answer 30

If the speech is on a matter of public concern but is not made pursuant to the employee’s official duties, the courts will use a balancing test
- balance value of the speech against the government’s interest in the efficient operation of the workplace

For speech on matters of private concern outside of the workplace, test is unclear
- speech appears protected absent a detrimental effect on the workplace

Question 31

Vagueness doctrine

Answer 31

If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the due process clause

Applied more strictly when first amendment activity is involved - like a ban on opprobrious and offensive words

Question 32

Overbroad regulation

Answer 32

A regulation of speech or speech-related conduct will be invalidated as over broad if it punishes substantially more speech than is necessary

Overbroad regulation is facially invalid unless a court has limited construction of the regulation so as to remove the threat to constitutionally protected expression

Invalidation is only justified if the unconstitutional applications are realistic and substantially disproportionate to the statute’s lawful sweep

If not substantially over broad, it can be enforced against persons engaging in activities that are not constitutionally protected

Question 33

Prior restraints

Answer 33

Court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards

Not favored and are rarely allowed, especially if content-based

No special test
- content based are strict scrutiny and content neutral are intermediate
- but the government’s burden in justifying a prior restraint is heavy

Exam purposes - whether there is some special societal harm that justifies the restraint

Injunctions and licensing schemes

Question 34

Prior restraint and procedural safeguards

Answer 34

To be valid, a system for prior restraint (licensing schemes), must provide for the following safeguards
- standards must be narrowly drawn, reasonable, and definite
- the injunction must promptly be sought, and
- there must be prompt and final judicial determination of the validity of the restraint

Number of other cases, especially in the area of movie censorship, require that the government bear the burden of proving that the speech involved is unprotected

Question 35

Officials unfettered discretion - prior restraints

Answer 35

A regulation cannot give officials broad discretion over speech issues - must be defined standards for applying the law

If a statute gives licensing officials unbridled discretion, void on its face and speakers don’t even need to apply for a permit
- if standards, need to apply and if its denied, can challenge on first amendment grounds

Question 36

Freedom of the press

Answer 36

Generally, press has no greater first amendment freedom than does a private citizen

Treated just like individual speaker

Question 37

Access to trials

Answer 37

The first amendment guarantees the public and press a right to attend criminal (and probably civil) trials

Right may be outweighed by an overriding interest stated in the trial judge’s findings

Question 38

Freedom of press vs. broadcasting regulations

Answer 38

Radio and television broadcasting may be more closely regulated than the press

May protect viewers and listeners from indecent speech over the airwaves because of the pervasive and accessible nature of broadcasting

Question 39

Government speech and government funding of speech

Answer 39

Government speech does not implicate the first amendment

Government speech and government funding of speech will generally be upheld if it is rationally related to a legitimate state interest

When government chooses to fund private messages, generally must do so on a viewpoint neutral basis

Question 40

Compelling speech

Answer 40

The freedom to speak includes the freedom not to speak

generally cannot require people to salute the flag or display other messages they disagree

Question 41

Regulation on electoral process

Answer 41

Laws regulating elections might impact the first amendment freedoms of speech, assembly, and association

Uses a balancing test to determine whether a regulation of the electoral process is valid
- if the restriction on first amend activity is severe, it must be narrowly tailored to achieve a compelling interest
- but if the restriction is reasonable and nondiscriminatory, it generally will be upheld

Question 42

Free Exercise clause

Answer 42

Prohibits government from publishing someone on the basis of their religious belief or other related religious status or conduct

Prohibits government from directly discriminating against religious belief, status, or conduct
- but does not prohibit gov from adopting generally applicable laws that regulate conduct subject to exceptions

Question 43

What constitutes religious belief

Answer 43

A religious belief includes the tenets of traditional religions, as well as beliefs that play a role in the life of believers similar to the role that religion plays in the life of traditional adherents

When deciding whether a person holds a religious belief or even just whether the belief qualifies as religious, courts can question the sincerity of a person’s belief
- but not the truthfulness of the belief

Question 44

Discriminatory law on basis of religion

Answer 44

A law or other government conduct that discriminates on the basis of religion is subject to strict scrutiny

A law is discriminatory if it is either
- not neutral on its face, or
- facially neutral but not generally applicable - by design, targets religion generally or a religion in particular

Question 45

Neutral laws of general applicability

Answer 45

A law that is facially neutral and generally applicable is not subject to the free exercise clause

Free exercise clause cannot be used to challenge gov action unless the action was specifically designed to interfere with religion

Question 46

Laws with system for exemptions

Answer 46

A law that gives government officials discretion to grant exemptions from the law is not generally applicable

Someone seeks an exception and it is denied, can challenge the denial on free exercise clause grounds
- with strict scrutiny

Question 47

Religious Exemptions - required

Answer 47

The Free Exercise Clause does not require religious exemptions from generally applicable government regulations that happen to burden religious conduct

But granting an exemption to accommodate religious exercise generally would not violate the establishment clause

Question 48

Exception from required exemptions - ministers

Answer 48

Religious organizations must be granted an exemption from suits alleging employment discrimination by ministers against their religious organizations

Question 49

Limit eligibility for governmental benefit and religion

Answer 49

A state may not limit eligibility for a generally available governmental benefit to nonreligious organizations

Not required to create a benefit but if it does, may not exclude an otherwise qualified individual or institution from receiving the benefit based solely on the basis of their religious status

Question 50

Establishment Clause

Answer 50

Prohibits government sponsorship of religion - government cannot aid or formally establish a religion

Course of neutrality toward religion - neither favoring it nor disfavoring it

Focus on neutrality, coercion, history, and founders’ intent

Question 51

Establishment clause and coercion

Answer 51

The government may not directly or indirectly coerce individuals to exercise their religion

Question 52

Establishment clause interpretations - history and tradition

Answer 52

The court has often stated that the establishment clause must be interpreted by reference to historical practices and understandings

Religious practices and displays that have been around for a long time tend to get upheld because the Court sees them as a tolerable acknowledgement of the role that religion has played

Looks to when the Constitution was first adopted to attempt to determine the founders’ intent