First Amendment Flashcards
First Amendment generally
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
What is speech
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
Incitement - speech
Speech can be censored as incitement if it is
- intended to produce imminent lawless action, and
- likely to produce such action
Fighting words
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
True threats
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
Obscene speech
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
Private possession of obscene material
Private possession of obscene material in the home cannot be punished
Except possession of child pornography
Child pornography and speech
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
Obscenity to minros
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
Defamatory speech generally
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
Defamatory speech - public official / figure as plaintiff
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
Definition of public officials and public figures
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
Matters of public concern
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
Private figure suing on matter of public and private concern
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
Intentional infliction of emotional distress and defamation
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
Commercial speech
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
Content-based regulations
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
Content-neutral regulations
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
Speech restrictions on government property generally
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
Traditional public forums - what is it
Public property that has historically been open to speech-related activities (streets, sidewalks, public parks) is called a public forum
Designated public forums - what is it
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
Traditional public forums and designated public forums - level of scrutiny
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
Limited public forum - what is it
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
Nonpublic forum - what is it
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
Limited public forums and nonpublic forums - scrutiny levels
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
Personal student speech and public schools
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
Personal student speech off campus
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
Speech related to schools’ teaching
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
Unprotected government employee speech
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
Unprotected governmental employee speech
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
Vagueness doctrine
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
Overbroad regulation
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
Prior restraints
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
Prior restraint and procedural safeguards
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
Officials unfettered discretion - prior restraints
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
Freedom of the press
Generally, press has no greater first amendment freedom than does a private citizen
Treated just like individual speaker
Access to trials
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
Freedom of press vs. broadcasting regulations
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
Government speech and government funding of speech
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
Compelling speech
The freedom to speak includes the freedom not to speak
generally cannot require people to salute the flag or display other messages they disagree
Regulation on electoral process
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
Free Exercise clause
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
What constitutes religious belief
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
Discriminatory law on basis of religion
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
Neutral laws of general applicability
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
Laws with system for exemptions
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
Religious Exemptions - required
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
Exception from required exemptions - ministers
Religious organizations must be granted an exemption from suits alleging employment discrimination by ministers against their religious organizations
Limit eligibility for governmental benefit and religion
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
Establishment Clause
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
Establishment clause and coercion
The government may not directly or indirectly coerce individuals to exercise their religion
Establishment clause interpretations - history and tradition
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
