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First Amendment Flashcards

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0
Q

Establishment Clause - Strict Scrutiny

A

Where a government program prefers one religion or religious sect over others, strict scrutiny analysis will apply

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1
Q

Establishment Clause

A

Congress shall make no law respecting an
establishment of religion, or
prohibiting the free exercise thereof.

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2
Q

Establishment Clause
Legislation is Neutral on its Face
test applied

A

Lemon Test

  1. Purpose - must have a secular legislative purpose
  2. Purpose or effect must not advance or inhibit religion
  3. Must not foster entanglements with religion
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3
Q

Religious activities conducted in public schools

A

School Prayer is per se unconstitutional

Religious clubs holding meetings in a public school does not violate the establishment clause so long as allowed with no preference with other secular clubs

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4
Q

Other Government endorsement of Religion

A

So long as there is a secular purpose and other religions are included so as to not show preference for a particular religion it will be OK

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5
Q

Tax deductions for Religious Institutions

A

Where exemption for non-profits are neutral
share characteristics with secular orgs
they will be upheld

Secular Purpose
Does not affect or inhibit religion
does not cause unnecessary entanglements

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6
Q

Government Aid to Religious Schools

Government can provide money to public and private schools for:

A 
Secular Text books
Standardized Tests
Lunch
Library Media Materials and computers
Interpreter for deaf students
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7
Q

Government Aid to Religious Schools

State cannot give money for

A

Religious instruction

Secular teachers in secondary religious schools (excessive entanglements)

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8
Q

School Vouchers

A

programs neutral and
apply to a broad class of citizens
defined without reference to religion and
parents direct aid is a result of independent and private choice

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9
Q

Providing Public Services through Religious organizations

A

OK if the organization is not selected because of religious beliefs
And choice is based on secular criteria

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10
Q

Free Exercise Clause - Beliefs

A

religious beliefs are absolutely protected

May not punish, denying benefits, or impose burdens on religious belief

May not determine the truth or falsity of such beliefs but
may inquire as to sincerity in claim of belief

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11
Q

Free Exercise Clause - Conduct

A

conduct motivated by religious beliefs may be regulated or prohibited if neutral in respect to religion and
is of general applicability

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12
Q

Employment Division v Smith

A

Oregon prohibition against peyote.
Generally applicable law regarding conduct, not belief, was upheld.

Government also upheld prohibition on head gear in the Air Force
Amish Social Security - payment required despite religious prohibition

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13
Q

Narrow Exceptions not Overruled by Smith

A

Sabbath observance and Unemployment Benefits - Employer could not deny unemployment benefits to employee who refused to work on the Sabbath

Amish High School - state cannot require student to attend public high school

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14
Q

Freedom of Expression - General Principle

A

Prevents the government from distorting the marketplace of ideas especially with political speech

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15
Q

Freedom of Expression - Content-Based Discrimination

Test Applied

A

strict scrutiny if it engages in content based discrimination.

cannot be justified by proof of a compelling government interest
served by narrowly tailored means

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16
Q

Five Exceptions to the typical rule that content based regulation will face strict scrutiny and be found unconstitutional

A
  1. Government passes strict scrutiny - child pornography
  2. Unprotected or low-value speech
  3. Government as a speaker
  4. Content neutral conduct regulation
  5. Content Neutral Time, Place, and Manner regulation
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17
Q

Standard for Unprotected Speech

A

Rational Basis Test

HAFWOUD

hostile audience
fighting words
unlawful advocacy
defamation

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18
Q

Unprotected Speech Includes - List

A 
Unlawful Advocacy
Fighting Words
Hostile Audience Speech
Obscene Speech
Defamatory Speech
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19
Q

Test for Unlawful Advocacy

A

Brandenburg -

Speaker intends to produce an imminent unlawful action

and is likely in fact to produce an imminent unlawful action

clear and present danger

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20
Q

Fighting Words

A

likely incite immediate violence against the speaker.

Must be more than offensive and has to be a direct personal insult

Fighting words will be subject to facial invalidity if the conduct proscribed is vague or over broad.

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21
Q

Hostile Audience Speech

A

Speech inciting imminent violent response against the speaker by a crowd

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22
Q

Obscene Speech TEST

A

3 part test - Miller Test

  1. Prurient Interest based on Local community Standards
  2. Depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law.
  3. Work taken as whole lacks serious literary, artistic, political, or scientific value. SLAPS
23
Q

Defamatory Speech - Private Person-Private Concern

A

Defamation law is OK even if law requires only show falsity and damage to reputation and strict liability applies

24
Q

Defamatory Speech - Private Person-Public Concern

A

P must prove at a minimum D was negligent as to the truth or falsity.

SL not permitted

25
Q

Defamation - Public Official as Plaintiff-Public or Private Concern

A

P must prove state law requirements PLUS ‘actual malice’

Knowledge of falsity or reckless disregard of the truth or falsity of the statement.

26
Q

Defamation - Private Plaintiff-Media Defendant for False Light invasion of Privacy concerning a matter of public interest.

A

Law must provide for a finding of actual malice.

NO liability for publishing truthful information obtained from the public record. Any truthful newsworthy information is also protected.

27
Q

Categories of Quasi-Protected Speech - List

A

Commercial Speech - protected if not false or deceptive or does not relate to unlawful activity

Sexual or Indecent Speech

28
Q

Protected Commercial Speech Requirements

3 prong TEST

A
  1. Must serve a SUBSTANTIAL government interest
  2. Must DIRECTLY ADVANCE that interest
  3. Regulation is NO MORE EXTENSIVE THAN NECESSARY to serve that interest.
29
Q

Where the state has successfully Limited commercial speech

Examples

A

Lawyers prohibited from soliciting clients in person

Commercial Billboards in political campaigns

30
Q

Sexual or Indecent Speech - 2 part test for secondary effects

A

Sexual speech is fully protected but can be regulated on the basis of secondary effects.

SUBSTANTIAL government interest and
Leave open reasonable alternative channels of communication

31
Q

Government as Speaker

A

Speech of government employees in government clinics can be regulated.

Cannot regulate lawyers speech in government funded legal services clinics since the lawyers are representing the client and not the government.

32
Q

Content Neutral Conduct Regulation Incidentally Burdening Speech
Test

A
  1. further an important government interest unrelated to the content
  2. no greater burden than necessary
    * Restriction on burning draft card upheld*
33
Q

Time Place and Manner Restrictions - test

A

reasonable time place and manner restrictions will be found if:

  1. Restriction is content neutral - subject matter and viewpoint
  2. narrowly tailored to serve an IMPORTANT government interest.
  3. leaves open alternative channels of communication.
34
Q

Government permitted restrictions on large gatherings

A

Can require a permit for large gatherings so long as grounds are content neutral.
Can restrict the time and volume of amplifiers
Can require door to door solicitors register with local authorities for crime prevention
Peaceful protests in front of a private home can be restricted to area close by so long as restriction is content neutral

Cannot require parades to pay for police protection
Cannot completely ban door to door solicitation
Cannot require religious or political canvassers get a permit

35
Q

NON-Public forum restrictions on speech - test

A

Government can place restrictions on speech in non-public forums (military bases, jail) if

restriction - content neutral
and reasonably related to a legitimate government purpose
(rational basis)

36
Q

Examples of non-public forum restrictions

A

State prohibition of demonstration on jailhouse grounds
military bases can be closed to public demonstrations
city can sell space for commercial billboards but deny political
political candidates can be excluded from debates on TV

37
Q

Government Employment - denying employment for political views

A

Government can restrict employment for political views only for high level policy making positions and no others.

38
Q

Where an individual may be deprived of public employment for a political association - test

A
  1. Active Member of a subversive organization
  2. With knowledge of illegal goals
  3. and possessing an intent to further those goals.
39
Q

Oath requirement for public entry

A

oath to support the constitution and
oppose the illegal overthrow of the government.
OK

Thats it.

40
Q

Where a public employee may be terminated for speech

A

Speech was not on a matter of public concern

Political speech disruptive of the workplace, may be disciplined

41
Q

Schoolchildren and speech

A

discipline for speech that is potentially disruptive is OK

42
Q

Prisoners Restrictions of Freedom of speech - test

A

Restriction rationally related to a legitimate PENOLOGICAL interest

43
Q

Prior Restraint

A

There is a strong presumption against the government restraining speech before it is spoken

44
Q

Exceptional Cases where Prior Restraints are Allowed

A

Military Classification/classified material

Pre-Publication review of book to prevent disclosure of classified material by a former government employee. Relates to national security again

45
Q

Test for determining whether a restraining order against pre-trial publicity is appropriate

A
  1. Nature of pre-trial publicity
  2. Availability of other measures to mitigate
  3. Likely effectiveness of the restraining order
46
Q

Alternative means to gag orders to prevent pollution of the jury pool

A
  1. Voi Diere
  2. change of venue
  3. Postponement
47
Q

Film Board of Censors Statutes Requirements - test

Prior Restraint

A
  1. use narrow and reasonable standards
  2. Immediate injunction to allow immediate adjudication.
  3. Burden is on the censor
  4. Prompt ruling required.
48
Q

How to challenge time place and manner restriction in a licensing statute

A

If facially valid statute, a permit denial cannot be ignored -
must fight in court.

statute is facially void - giving licensing officials unrestricted discretion - it can be ignored

49
Q

How to protest an injunction

A

Injunctions must be obeyed or appealed.

Cannot be ignored even if erroneous

50
Q

Overbreadth

A

Where a state has the power to regulate an area dealing with free speech, it must do so in a way that is narrow and specific

51
Q

Vagueness

A

Government regulations on speech must be drawn with “narrow specificity” and not vague.

So a person of reasonable intelligence can tell what speech is prohibited and what is allowed.

If a statute is vague, it cannot be enforced against anyone

52
Q

Press

A

The press has no greater freedom to speak than any other ordinary member of the general public.

Radio and TV broadcasting can be closely regulated because government is facilitating speech on public airways. Can ban offensive sexual content and speech in broadcast TV

Cable regulation is somewhere in between Broadcast TV and ordinary citizens. Where Cable is subject to content neutral regulation Intermediate Scrutiny will apply

53
Q

Creationism in School

A

Unconstitutional - cannot teach religion in school

54
Q

content neutral regulation on cable TV test

A

intermediate scrutiny

55
Q

Constitutional Question Flow Chart

A

Jurisdiction Question - look for jurisdiction
Look for state action - no state action, no constitutional violation
State or Federal Action-
Federal Action-what power allowing fed to act
State action - state has police power

con law (6 decks)

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