First Amendment Flashcards
Establishment Clause - Strict Scrutiny
Where a government program prefers one religion or religious sect over others, strict scrutiny analysis will apply
Establishment Clause
Congress shall make no law respecting an
establishment of religion, or
prohibiting the free exercise thereof.
Establishment Clause
Legislation is Neutral on its Face
test applied
Lemon Test
- Purpose - must have a secular legislative purpose
- Purpose or effect must not advance or inhibit religion
- Must not foster entanglements with religion
Religious activities conducted in public schools
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
Other Government endorsement of Religion
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
Tax deductions for Religious Institutions
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
Government Aid to Religious Schools
Government can provide money to public and private schools for:
Secular Text books Standardized Tests Lunch Library Media Materials and computers Interpreter for deaf students
Government Aid to Religious Schools
State cannot give money for
Religious instruction
Secular teachers in secondary religious schools (excessive entanglements)
School Vouchers
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
Providing Public Services through Religious organizations
OK if the organization is not selected because of religious beliefs
And choice is based on secular criteria
Free Exercise Clause - Beliefs
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
Free Exercise Clause - Conduct
conduct motivated by religious beliefs may be regulated or prohibited if neutral in respect to religion and
is of general applicability
Employment Division v Smith
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
Narrow Exceptions not Overruled by Smith
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
Freedom of Expression - General Principle
Prevents the government from distorting the marketplace of ideas especially with political speech
Freedom of Expression - Content-Based Discrimination
Test Applied
strict scrutiny if it engages in content based discrimination.
cannot be justified by proof of a compelling government interest
served by narrowly tailored means
Five Exceptions to the typical rule that content based regulation will face strict scrutiny and be found unconstitutional
- Government passes strict scrutiny - child pornography
- Unprotected or low-value speech
- Government as a speaker
- Content neutral conduct regulation
- Content Neutral Time, Place, and Manner regulation
Standard for Unprotected Speech
Rational Basis Test
HAFWOUD
hostile audience
fighting words
unlawful advocacy
defamation
Unprotected Speech Includes - List
Unlawful Advocacy Fighting Words Hostile Audience Speech Obscene Speech Defamatory Speech
Test for Unlawful Advocacy
Brandenburg -
Speaker intends to produce an imminent unlawful action
and is likely in fact to produce an imminent unlawful action
clear and present danger
Fighting Words
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.
Hostile Audience Speech
Speech inciting imminent violent response against the speaker by a crowd
Obscene Speech TEST
3 part test - Miller Test
- Prurient Interest based on Local community Standards
- Depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law.
- Work taken as whole lacks serious literary, artistic, political, or scientific value. SLAPS
Defamatory Speech - Private Person-Private Concern
Defamation law is OK even if law requires only show falsity and damage to reputation and strict liability applies
Defamatory Speech - Private Person-Public Concern
P must prove at a minimum D was negligent as to the truth or falsity.
SL not permitted
Defamation - Public Official as Plaintiff-Public or Private Concern
P must prove state law requirements PLUS ‘actual malice’
Knowledge of falsity or reckless disregard of the truth or falsity of the statement.
Defamation - Private Plaintiff-Media Defendant for False Light invasion of Privacy concerning a matter of public interest.
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.
Categories of Quasi-Protected Speech - List
Commercial Speech - protected if not false or deceptive or does not relate to unlawful activity
Sexual or Indecent Speech
Protected Commercial Speech Requirements
3 prong TEST
- Must serve a SUBSTANTIAL government interest
- Must DIRECTLY ADVANCE that interest
- Regulation is NO MORE EXTENSIVE THAN NECESSARY to serve that interest.
Where the state has successfully Limited commercial speech
Examples
Lawyers prohibited from soliciting clients in person
Commercial Billboards in political campaigns
Sexual or Indecent Speech - 2 part test for secondary effects
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
Government as Speaker
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.
Content Neutral Conduct Regulation Incidentally Burdening Speech
Test
- further an important government interest unrelated to the content
- no greater burden than necessary
* Restriction on burning draft card upheld*
Time Place and Manner Restrictions - test
reasonable time place and manner restrictions will be found if:
- Restriction is content neutral - subject matter and viewpoint
- narrowly tailored to serve an IMPORTANT government interest.
- leaves open alternative channels of communication.
Government permitted restrictions on large gatherings
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
NON-Public forum restrictions on speech - test
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)
Examples of non-public forum restrictions
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
Government Employment - denying employment for political views
Government can restrict employment for political views only for high level policy making positions and no others.
Where an individual may be deprived of public employment for a political association - test
- Active Member of a subversive organization
- With knowledge of illegal goals
- and possessing an intent to further those goals.
Oath requirement for public entry
oath to support the constitution and
oppose the illegal overthrow of the government.
OK
Thats it.
Where a public employee may be terminated for speech
Speech was not on a matter of public concern
Political speech disruptive of the workplace, may be disciplined
Schoolchildren and speech
discipline for speech that is potentially disruptive is OK
Prisoners Restrictions of Freedom of speech - test
Restriction rationally related to a legitimate PENOLOGICAL interest
Prior Restraint
There is a strong presumption against the government restraining speech before it is spoken
Exceptional Cases where Prior Restraints are Allowed
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
Test for determining whether a restraining order against pre-trial publicity is appropriate
- Nature of pre-trial publicity
- Availability of other measures to mitigate
- Likely effectiveness of the restraining order
Alternative means to gag orders to prevent pollution of the jury pool
- Voi Diere
- change of venue
- Postponement
Film Board of Censors Statutes Requirements - test
Prior Restraint
- use narrow and reasonable standards
- Immediate injunction to allow immediate adjudication.
- Burden is on the censor
- Prompt ruling required.
How to challenge time place and manner restriction in a licensing statute
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
How to protest an injunction
Injunctions must be obeyed or appealed.
Cannot be ignored even if erroneous
Overbreadth
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
Vagueness
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
Press
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
Creationism in School
Unconstitutional - cannot teach religion in school
content neutral regulation on cable TV test
intermediate scrutiny
Constitutional Question Flow Chart
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
