First Amendment Flashcards
What are the six methods for analyzing free-speech issues?
- Content-based vs content-neutral
- Prior restraints
- Vagueness and overbreadth
- Symbolic speech
- Anonymous speech (protected)
- Speech by the government (cannot be challenged)
What are the rules for content-based restrictions on speech?
STRICT SCRUTINY
Subject matter restrictions (application depends on the topic)
Viewpoint restrictions (application of the law depends on the ideology of the message)
What are the rules for content-neutral restrictions?
Intermediate scrutiny
What are the rules for prior restraints on speech?
Strict scrutiny for court orders suppressing speech (procedurally proper orders must be complied with until overturned; violation prevents later challenge)
Government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority (must contain procedural safeguards)
What are the rules for vagueness and overbreadth?
Unconstitutionally vague if a reasonable person cannot tell what’s permitted and what’s not
Unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated
(Fighting words laws are both too vague and overbroad)
What are the rules for symbolic speech?
Must have important interest unrelated to suppression of the message AND
Impact on communication is no greater than necessary to achieve the purpose
What are the classic bar exam symbolic speech cases?
Flag burning is protected;
Draft card burning is not;
Local governments may prohibit nude dancing;
Burning a cross is protected unless threatening intent;
Election contribution limits are constitutional;
Election expenditure limits are prohibited
What speech is unprotected or less protected by 5A?
6
- Incitement of illegal activity
- Obscenity and sexually-oriented speech
- Commercial speech
- Defamation and IIED
- Privacy
- Speech by government employees on the job in performance of duties not protected
Strict scrutiny for all other content restrictions
What are the rules for speech inciting illegal activity?
May punish if substantial likelihood of imminent illegal activity AND
Speech is directed to causing imminent illegality
What is the test for obscenity and sexually-oriented speech?
- The material must appeal to the prurient interest (shameful or morbid interest in sex; community standard)
- The material must be patently offensive under the law prohibiting obscenity (based on level of regulation)
- Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (national standard)
What are the bar exam examples of obscenity and sexually oriented speech?
- Government may use zoning ordinances to regulate the location of adult bookstores and movie theaters
- Child pornography may be completely banned, even if not obscene (children must be used in production)
- May not punish private possession of obscene materials (but may punish child porn possession)
- May seize the assets of businesses convicted of violating obscenity laws
- Profane and indecent speech is generally protected by 1A, EXCEPT: (i) over the broadcast media; (ii) in schools
What are the rules for commercial speech?
- Advertising for illegal activity; false and deceptive ads: not protected
- True commercial speech that inherently risks deception can be prohibited
- Intermediate scrutiny for other commercial speech
- Regulation of commercial speech must be narrowly tailored, but does not need to be the least restrictive alternative
What commercial speech inherently risks deception?
- May prevent professionals from advertising or practicing under a trade name
- May prohibit attorney, in-person solicitation of clients for profit
- May NOT prohibit accountants from in-person solicitation of clients for profit
What are the rules for defamation and IIED?
Usual tort rules apply
No IIED liability for protected speech
What are the rules for privacy speech?
- No liability for truthful reporting of information that was lawfully obtained from the government
- No liability if the media broadcasts a tape of an illegally intercepted call, if the mediate did not participate in the illegality and it involves a matter of public importance
- Government may limit its dissemination of information to protect privacy
What places are available for public speech?
- Public forums
- Designated public forums
- Limited public forums
- Non-public forums
- No right to access private property for free speech purposes: shopping centers
What are the rules for public forums?
- Regulations must be subject matter and viewpoint neutral (or meet strict scrutiny)
- Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication
- Regulation of public forums need not use least restrictive alternative, but must be narrowly tailored
- City officials cannot have discretion to set permit fees for public demonstrations
What are the rules for designated public forums?
Same rules apply as public forums
What are designated public forums?
Government properties that the government could close to speech, but chooses to open to speech,
e.g., public schools on evenings and weekends
What are public forums?
Government properties that government must make available for speech,
e.g., sidewalks and parks
What are the rules for limited public forums?
The government can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral
What are limited public forums?
Government properties that are limited to certain groups or dedicated to the discussion of only some subjects.
e.g., city buses
What are the rules for non-public forums?
The government can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral
What are non-public forums?
Government properties that the government constitutionally can and does close to speech,
e.g, military bases; areas outside prisons and jails; sidewalks on post office property; airports
What are the rules for freedom of association?
- Laws that prohibit or punish group members must meet strict scrutiny
- Govt may require disclosure even where disclosure will chill membership only if strict scrutiny is met
- Laws that prohibit groups from discriminating are constitutional unless: (i) interfere with intimate association or (ii) expressive activity (kkk can exclude)
What satisfies strict scrutiny for punishing group membership?
- Active affiliation
- Knowledge of group illegal activities AND
- Specific intent of furthering illegal activities
What are the two parts of freedom of religion?
Free exercise clause
Establishment clause
What are the rules of the free exercise clause?
- Cannot be used to challenge a neutral law of general applicability
- Government may not deny benefits to individuals who quit their jobs for religious reasons
- The government may not hold a religious institution liable for the choices it makes as to who will be its ministers
What is the test for the establishment clause?
SEX
- There must be a SECULAR purpose for the law
- The EFFECT must be neither to advance nor inhibit religion
- There must not be EXCESSIVE entanglement with religion (Govt can’t pay teacher salaries in parochial schools)
What are the specific bar exam cases for the establishment clause?
- Government cannot discriminate against religious speech or among religions unless strict scrutiny is met
- Government sponsored religious activity in public schools in unconstitutional (BUT, religious student and community groups must have the same access to school facilities as non-religious groups)
- The government may give assistance to parochial schools, so long as it is not used for religious instruction. (Government may provide parents vouches which they use in parochial schools)
When is strict scrutiny applied to equal protection challenges?
(6 cases)
Race National origin Most state Alienage choices Religion Statutes substantially affecting voting Statutes substantially affecting travel
When is intermediate scrutiny applied to equal protection challenges?
(2 cases)
Gender
Undocumented/illegitimate children
