First Amendment Flashcards
Establishment Clause Lemon Test for religious related statutes (3 points)
1- statute must have a secular purpose
2- statute must not advance or inhibit a specific religion
3- statute must not foster excessive govt. tanglement
When are government endorsements of religion ok?
When its a holiday season and no one religion is singled out
When can religious-related conduct be permissibly regulated?
Where the prohibited activity is neutral in respect to religion and is of general applicability
***if regulation purposefully interferes w/ religion it must pass strict scrutiny
Freedom of Speech Generally:
The govt may neither censor all categories of speech nor engage in content-based discrimination among diff categories of speech with some exceptions
Regulation of Speech requires what type of scrutiny?
Strict Scrutiny
A law that regulates conduct that has an incidental burden on speech is allowable if:
1- regulation furthers an important or substantial govt interest that is unrelated to the suppression of free expression
2- the incidental restriction is no greater than is essential to the furtherance of that interest
When can the government regulate speech content?
If the government is speaking rather than a private actor
Which types of speech are unprotected?
1- speech that advocates violence or unlawful action
2-fighting words
3- hostile audience speech
4- obscene speech
5- defamatory speech
When is speech considered obscene?
1- average person would be offended
2- the work depicts sexual conduct as defined by state law in patently offensive way
3- the works lack serious literacy, artistic, political, or scientific value
Defamatory Speech Analysis:
private person- public concern: negligence standard
public official-public figure: actual malice standard (knowledge or recklessness)
Govt regulation of commercial speech requires:
*commercial speech must not be false, deceptive or relate to unlawful activity
1- it must serve a substantial interest
2- it must directly advance the substantial interest
3- it must not be more extensive than is necessary
***govt can ban “vice” advertising
What is the 3-part test to determine the constitutionality of time, place, manner regulations of speech/assembly in public places?
Regulation must be:
1- content neutral as to subject and viewpoint
2- narrowly tailored to serve important interest
3- leave alternative channels of communication open
When can an individual be denied public employment based on political affiliations?
if the position is a high-level policy position; and
1- he is an active member of a subversive organization
2- the membership is with knowledge of the illegal aims of the organization
When are prior restraints allowed?
1- national security implications
2- classified military info
3- any case involving search/seizure
Void-for-vagueness examples
1- defacing flags
2- vagrancy definition
3- loitering definition
