First Amendment

Question 1

Which regulation, content-based OR conduct-based, is more likely to be held unconstitutional?

Answer 1

Content-based!

In general, a regulation seeking to forbid communication of SPECIFIC IDEAS (content-based) is LESS likely to be upheld than regulation of CONDUCT incidental to speech

Question 2

What are the scrutiny standards for contest-based and content-neutral restrictions, respectively?

Answer 2

Content based restrictions on speech must meet STRICT SCRUTINY

Content-NETUTRAL restrictions(i.e. applies to ALL speech regardless of viewpoint) burdening speech generally need only meet INTERMEDIATE SCRUTINY

Question 3

What types of laws are content-based?

Answer 3

1) Subject matter restrictions: application of the law depends on the TOPIC of the message
2) Viewpt restrictions: application of the law depends on the IDEOLOGY of the speech

Question 4

What is a prior restraint and the level of scrutiny that it must meet?

Answer 4

Prior restraint = stopping speach BEFORE it occurs

Court orders surpressing speech MUST meet STRICT SCRUTINY

Gag orders on the press to prevent pejudicial PRE-trial publicity are NOT allowed

Question 5

Must a prior restraint challenger follow a court Gag Order?

Answer 5

YES!

Procedurally proper court orders MUST be complied with UNTIL they are VACATED or OVERTURNED

A person who violates a court order is BARRED from later challenging it

Question 6

What are requirements that must be met before the government can require a license for speech?

Answer 6

1) There has to be an IMPORTANT reason for licensing
2) There must be CLEAR CRITERIA, leaving almost NO discretion to the licensing authority
3) There must be PROCEDURAL SAFEGUARDS suh as prompt determination of requests for licenses and judicial review of license denials

Question 7

What is the standard for a speech regulation being struck down for vagueness OR overbreadth?

Answer 7

1) A law is unconstitutionally VAGUE if a reasonable person CANNOT tell what speech is prohibited and what is allowed

E.g. fighting words are NOT protected speech, BUT statutes attempting to punish the use of such words are often found to be VOID for VAGUENESS

2) A law is unconstitutionally OVERBROAD if it regulates substantially MORE speech than the constitution allows to be regulated

Question 8

What are the elements of defamation?

NOTE: NY Distinction

Answer 8

1) Defamatory language of OR concerning the π

Defamatory = if it adversely affects the reputation the subject of that statement

Has to be concerning a living person

Statements about a group:

(i) if the statements are about a large group, NO one is defamed;
(ii) if the statement is about a small group, π may recover if it can be reasonably be associated with π

2) Publication (intentionally OR negligently)by ∆ to a 3d person (NOT just π)
- NO de minimis req: ONE 3rd person is sufficient

** Primary publishers (newspapers, etc) are ALWAYS liable; secondary publishers (newspaper stand,) MAY be liable (if they knew of defamatory content)

3) Damage to π’s reputation (type depends on type of defamation)

Libel (written/printed/broadcasted publication of defamatory language): general damages are PRESUMED; no need to prove special damages

Slander (spoken defamatory language): π has to prove special economic damages UNLESS slander per se:

(i) related to π's business/profession; 
(ii) π has committed crime of moral torpitude (e.g. fraud); 
(iii) the woman π is unchaste; 
(iv) π has loathesome disease (leprosy; or STD)],					
(v) NY** imputation of homosexulaity

1A requirements ONLY IF matter of public concern..

4) Falsity of the dematory language			
5) Fault on ∆'s part (depending π's status)			

	If π is PUBLIC OFFICIAL OR FIGURE, π has to prove malice (knowledge that statement is false OR reckless disrgard as to its truth) to get damages

	If π is PRIVATE PERSON AND matter of PUBLIC CONCERN, π has to prove at least negligence as to statements falsity to get damages for ACTUAL INJURY

NOTE: liability for IIED for defamatory speech MUST meet the defamation stds and CANNOT exist for speech otherwise protected by the 1A

Question 9

When can the government regulate symbolic speech?

Answer 9

The government may regulate CONDUCT that communicates (symbolic speech) IF:

1) it has an IMPORTANT interest UNRELATED to the supression of the message; AND
2) the impact on communication is NO greater than NECESSARY to achieve the gov’t goal

Government ALLOWED to regulate…
- Draft card burning (potential for national emergency)
- Nude dancing
- Contribution limits to individual candidate campaigns

Government NOT ALLOWED to regulate…

- Flag burning
- Cross burning (AS LONG AS not done to threaten/intimidate)
- Overall EXPENDITURE limits in campaigns (government cannot limit the amount a person/corporation/union spends to get a candidate elected, SO LONG AS the expenditures are indpendent of the candidate and are not disguised)

Question 10

Is anonymous speech protected by the 1A?

Answer 10

YES!

BUT NOTE: A state’s interest in promoting transparency and accountability in elections is SUFFICIENT to justify public disclosure of the names and addresses of persons who sign ballot petitions

Question 11

Is speech BY the government restricted by the 1st Am?

Answer 11

Speech BY the government CANNOT be challenged as violating the 1A

Government speech AND government FUNDING of speech will be upheld SO LONG AS it is rationally related to a legitimate government interest (rational basis)

Question 12

Whatcategories of speech are UNPROTECTED by the 1A?

Answer 12

REMEMBER: CONTENT-based restrictions of speech must meet STRICT SCRUTINY (law is NECESSARY to achieve a COMPELLING government interest)

Regulation of the following is COMPELLING…

1) Incitement of illegal activity IF
(i) substantial likelihood of imminent illegality;AND
(ii) the speech is directed to causing such illegality
2) Obscenity
3) Defamatory speech
4) Fighting words: true threats or personally abusive actions (cross burning to intimidate)

ALSO REMEMBER: CONTENT-neutral restrictions of speech must meet INTERMEDIATE SCRUTINY (law is SUBSTANTIALLY RELATED to an IMPORTANT government interest)

Regulation of the following is IMPORTANT…

5) SOME commercial speech: Advertising for illegal activity; OR false/deceptive ads are NOT protected

EVEN true commercial speech that inherently risks deception can be prohibited (e.g. using certain trade names)

Question 13

What are the requirements for speech to be deemed obscene?

Answer 13

Speech is obscene (UNPROTECTED) IF…

1) the material appeals to the prurient interest(shameful or morbid interest in sex)based on COMMUNITY standards;
2) the material must be PATENTLY offensive (based on COMMUNITY standards); AND
3) the material LACKS serious redeeming artistic, literary, poltical OR scientific value (based on NATIONAL standards)

NOTE: The government MAY use zoning ordinances to regulate the number/location of adult bookstores/movie theaters

** CHILD PORN (children in the production) may be completely banned, even if it’s not obscene

** The government can’t punish the private possession of obscene materials; BUT the government can punish the private possession of child porn

** The government may seize the assets of businesses CONVICTED of violating obscentity laws

• • PROFANE/INDECENT speech is generally PROTECTED by the 1a; EXCEPT…
    
    • on free, over-the-air broadcast media (TV/radio); AND
    • in schools

Question 14

May the government restrict speech by government EMPLOYEES?

Answer 14

YES!

Speech by government employees on the job in the performance of their duties is NOT protected by the 1A

Question 15

May the government impose liability for TRUTHFUL reporting of LEGALLY obtained government information?

Answer 15

NO!

A state may NOT create liability for the TRUTHFUL reporting of information that was LEGALLY obtained from the government records (e.g. a rape victim’s identity obtained lawfully by a reporter)

Question 16

Can the media be held liable for broadcasting ILLEGALLY obtained information?

Answer 16

NO, SO LONG AS…

(i) the media did not PARTICIPATE in the illegality; AND
(ii) it involves a matter of public importance

Question 17

What is the ONLY instance where the public has a 1A right to attend a government proceeding?

Answer 17

Criminal trials and pre-trial proceedings: This right can ONLY be restricted by sanction that is NARROWLY TAILORED to further an interest of the HIGHEST order (e.g. to protect children who are victims of sex offenses)

Otherwise, the government MAY restrict its own dissimination of information

Question 18

What is the standard for regulating speech in public OR designated public forums?

Answer 18

Public forums = government properties that the government is constutionally requiredto make available for speech

Designated public forums = government properties that the government could close off to speech, but chooses VOLUNTARILY to open to speech

Standard = Government can pass time, place or manner regulations, IF they…

(i) are content-neutral (subject matter or viewpoint);
- If NOT, regulation must meet strict

(ii) are narrowly tailored to serve an important government interest; AND
- Does not have to be least restrictive alternative
- Permit fee requirements for parades/demonstrations are unconstitutional if city officials have discretion in setting the amount of the fee

(iii) leave open an alternative channel of communication

Question 19

What is the standard for regulating speech in limited public OR non-public forums?

Answer 19

Limited public forums = government properties that are limited to certain groupsORdedicated to discussion of only some subjects

Non-public forums = government properties that the government can constitutionally close off to speech:

- Military bases
- Areas outside prisons
- Public schools
- Sidewalks in front of POST OFFICE
- Airports (but can't prohibit distribution of literature)

Standard = Government CAN regulate speech to reserve the forum for its intended use, BUT regulations must be…

(i) viewpoint neutral (not necessarily subject matter neutral); AND
(ii) reasonably related to a legitimate government purpose (rational basis)

Question 20

What is the standard for regulating speech in private forums?

Answer 20

There is NO 1A right of access to private property for speech purposes

E.g., a shopping mall

Question 21

What is the scrutiny std for freedom of association?

Answer 21

Laws that PROHIBIT or PUNISH group membership must meet STRICT SCRUTINY

Laws that require DISCLOSURE of group membership where such disclosure would chill association MUST meet strict scrutiny

Question 22

What requirements must be met in order to punish based on group membership?

Answer 22

Assuming strict scrutiny is met, to punish membership in a group it must be proven that the person…

(i) is ACTIVELY affiliated with the group;
(ii) has KNOWLEDGE of the group’s illegal activities; AND
(iii) has SPECIFIC INTENT of furthering those illegal activities or objectives

Question 23

Does freedom of association protect the private right to discriminate?

Answer 23

NO!

EXCEPTIONS:

(i) Intimate association (e.g. a small dinner party)
(ii) where discrimination is integral to the expressive activities of the group (Klan, Nazis, Boy Scouts)

Question 24

What is the Free Exercise Clause?

Answer 24

Prohibits government from punishing someone on the basis of her religious beliefs

The government may not deny benefits to individuals who quit their jobs for religious reasons

NOTE: the Free Exercise Clause CANNOT be used to challenge NEUTRAL laws of general applicablity

Question 25

When is a law valid under the Establishment Clause?

Answer 25

Lemon Test: Government action is valid under the Establishment Clause, IF it… S-E-X

(i) has a SECULAR purpose
(ii) the primary EFFECT is neither to advance nor prohibit religion; the government cannot discriminate against or among religions
(iii) there must not be EXCESSIVE government entaglement with religion

Otherwise it HAS to meet STRICT SCRUTINY

• Government sponsored religious activity in public schools is unconstitutional
• Religious student and community groups MUST have the same access to school facilities as non-religious groups
• School prayer (even if voluntary or silent) is unconstitutional
• The government CAN give assistance to parochial schools, SO LONG AS it is NOT used for religious instruction (e.g. provide parents with vouchers, which they can use in parochial schools)