First amendment

Question 1

Free speech methodology – content-based vs. content-neutral restrictions

Answer 1

i. Content-based v. content-neutral restrictions

1. Content-based restrictions on speech generally must meet SS. Two types of content based laws
   a. Subject matter restrictions (where application of law depends on the topic of the message.
   i. for ex no picketing in residences unless related to labor protest. SS applies→ unconst
   ii. for ex: no signs on public property unless they’re political signs. application of law depends on the topic of the sign→ SS so unconst
   b. Viewpoint restrictions- application oof the law depends on ideology.
   i. for ex only pro war demonstrations.
   ii. almost never allowed.
   iii. for ex. cant have demonstration within 100 ft of embassy if embarrassing to foreign gov’t
2. must meet SS
3. Content neutral law must only meet intermediate sructiny
   a. For ex: ordinance prohibiting ALL demonstratioins in city park. only must meet intermediate scrutiny

Question 2

Prior restraints methodology

Answer 2

1. Court orders suppressing speech must meet SS. for ex temporary restraining order, preliminary injunction.
   a. for ex. pentagon papers—ruled in favor of NYT. fed govt must meet burden of SS to justify.

b. HOWEVER, Proceduurally proper court orders must be complied with until they are vacated or overturned. IF you violate–> cannot later contst
ii. compare if you violate unconst law, can later challenge it

c. Prior restraint must be the ONLY sure way of preserving a fair trial for the ∆.
i. For ex. prior restraint on publicity during criminal trial is almost never upheld, because there’s almost always a way to deal with prejudicial publicity OTHER THAN through prior restraint

2. Govt can require a license or permit for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Must also have procedural safeguards like prompt determination of request for licenses and judicial review

Question 3

Freedom of the press

Answer 3

generally the press has no greater first amdt rights than does a private citizen.

1. Publication – riht to publish true info if a matter of public concern. can only be restricted if sanction is narrowly tailored to further a very important interest.
2. no right to interview prisoners of their choice or inspect prison grounds.
3. press cannot be targeted for special regulation or taxes.

Question 4

Vagueness and overbreadth

Answer 4

Vagueness: can’t tell what’s prohibited, overbroad: if it regulates substantially more speech than const allows

1. Vagueness- law is unconst vague if RP cannot tell what speech is prohibited and what is allowed. court worried about chilling speech
   a. ex. prohibition on books tending to corrupt moral of youth. too vague
2. Ovjerbreadth—uunconst overbroad if it regulates substantially more speech than const allows.
   a. for ex prohibition on live performance, even though it targets strippers, is overbroad.
3. Fiighting wods laws are unconst vague and overbroad ALWAYS
   a. fighting words are unprotected by 1st amdt. technically
   b. BUT not once since 1940s not once has SC upheld fighting words const. has always found the laws too be unconst broad and vague.
   c. fact pattern: speaker says mean things to victim. law prohibiting fighting words is too vague.

Question 5

Symbolic speech

Answer 5

conduct that communicates can bbe regulated if the govt has important interest unrelated to suppression of the message and if the impact on communication iis no greater than necessary to achieve the govt purpose

1. ex: cnt beat someone upp and say it was your expression oof dissatisfaction. govt has interest in preventing battery. impact on communication no greater than amount necessary to seve govt purpose
   b. flagburning is const protected speech
   c. draft card burninig is NOT constitutionally protected speech
   i. govt had interest in making sure men kept their cards
   d. nude dancing isn’t constitutionally protected
   e. burning a cross is protected,unless done with intent to threaten.
   i. has racist history, member of the KKK do it. but burning it on lawn of black family = intent to threaten.

Question 6

Anonymous speech

Answer 6

vi. anonymous speech is protected—prohibition on anonymous pamphlets re an election was unconstitutional. right to be anonymous is pprotected under 1st amd

Question 7

Can speech by the government be challenged as violating the 1st amdt

Answer 7

vii. Speech bby the government cannot be challenged as violating the 1st amdt.
1. govt has right to speak. if govt is speaker, no basis for 1st amdt claim.
2. Walker v. texas confederate- texas allows noonprofits too put insignias oon license plats. State of texas refused license plates with confederate flag. license plates are government speech. if govt is speaker, its choice cannot be challenged as violating the first amendment.

Question 8

Speech that is unprotcted or less protected by the first amendment

Answer 8

incitement, obscenity, commercial speech, defamation and IIED, privacy, speech by gov’t employees on the job in the performance of their duties, political participation by gov’t employees or public articles,

x. other govt restrictions based on the content of speech must meet SS
1. ex restrictions on violent speech must meet SS
a. for ex. CA llaw prohibiting sale of violent games oot kids, unconst because no exception to first amdt based n volent speech. bc content based restriction, must meet SS

Question 9

Less protected speech: incitement of illegal activity

Answer 9

unprotected. test: substantial likelihood of imminent illegal activity and if speech is directed to causing the imminent illegality.
1. for ex: saying lets beat up chemerinsky bc of his terrible puns

Question 10

less protected speech: obscenity

Answer 10

ii. obscenity and sexually oriented speech
1. The test: 1) appeals to prurient interest (local) 2) patently offensive under the law, 3) must lack serious rdeeming artistic,literary, political or scientific value (national standard)

a. material must appeal to the prurient interest
i. shameful or morbid fascination with sex.
ii. that which incites lustful thoughts
iii. must not just be healthy interest in sex, not shameful or morbid fascination in sex. line isn’t completely clear
v. local test—based on what local community thinks
b. material must be patently offensive under the law prohibiting obscenity
i. law must delineate what is patently offensive
ii. depends on the law
c. taken as a whole, the material must lack serious redeeming artistic, literary, political oor scientific a value
i. determine value by a national standard not local value

3. Child porn may be completely banned even if not obscene
   a. govt interest in drying up market
   b. but must actually have children
   i. if adults are childlike, or computer generated, no use of children, so no substantial government interest
4. Government may not punish private possession of obscene materials, but may punish possession of child porn
   a. interest in drying up market
5. govt may seize assets of biz convicted of violating obscenity laws
   a. can burn all books and videos. even ifonly a few were found to be obscene.

Question 11

less protected speech: commercial speech

Answer 11

basically we allow restrictions of commercial activity in order to protect the public from falsehoods/ deception.

1. ads that are false and deceptive, or for illegal activity are not protected
2. true commercial speech with inherent risk of deception can be prohibited

a. govt may prevent professionals from advertising or practicing under a trade name.
i. cant call selves “four eyes” no indication these were deceptive. but bad optomotrests could keep changing their names to fool public
b. govt may prohibit lawyers from in person solicitation of accident victims for 30 days for profit. ambulance chasers.
i. no one to monitor communication. too much danger of deception or pressure
iii. sending letters is ok→ less fear of deception bc written record, and no pressure we all throw away junk mail
ii. but offering to rep someone for free to fight forced euthanization is OK
c. govt may not prohibit accountants from engaging in-person solicitation from clients
i. accountants are different. Attorneys are trained in advocacy. accountants trained in accuracy

3. Other commercial speech can be regulated if intermediate scrutiny is met. assuming not deceptive, reasonable. Need not be narrowly tailored/ the least restrictive alternative.
   a. for ex prohibiting ads in dorms. can place outright ban, even though theres less restrictive alternatives, like requiring badges/ security

Question 12

Less protected speech: defamation and IIED and Invasion of privacy

Answer 12

1. first amd limits recovery for defamation
2. if π is a public figure, can recover only by clear and convincing by proving falsity AND actual malice
   a. public figure: thrust self in public lfie. have access to media to respond.
3. If the π is a private figure and the matter is of public concern, that state may allow te π to recover for defamation by proving falsity and negligence by the ∆.
   a. presumed or punitive damages require proof of malice
4. if the π is a private figure and the matter is not of public concern, π can recover presumed or punitive damages without showing malice
   a. still must be false?.
5. Liability for IIED must meet standards of defamation and it cannot be for speech otherwise protected by first amendment
   a. for ex: ad showing reverend having sex with his mom. to recover for IIED, must show lall elements of defamation
   b. for ex: westboro Baptist church demonstrations at funeral. SCOTUS→ no liability just because its offensive. this speech is protected by first amendment, so no IIED liability
6. Invasion of privacy – publication of private info about a person that would be objectionable to a reasonable person
   a. truth is not a defense
   b. but if matter of public concern, publication is privileged absent actual malice.
   c. ESP if published material was obtained legitimately

Question 13

Less protected speech: privacy

Answer 13

1. Government may not create liability for truthful reporting of info that was lawfully obtained from gov’t
   a. for ex rape victim ID was lawfully obtained frm court/ police record. NOT an invasion of privacy
2. Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media didn’t participate in the illegality and it involves a matter of public concern
3. Government may limit its dissemination of info to protect privacy
   a. nothing equires govt to open its papers
   b. only oone instance with first amendment right –
   i. attending criminal trials and most pretrial proceedings
   ii. trials and pretrial proceedings can be closed only if closure is necessary to preserve an overriding interest and the closure order is narrowly tailored.
   iii. Civil matters—similar standard but not certain.

Question 14

Less protected speech: speech by gov’t employees on the job in the performance of their duties

Answer 14

vi. Speech by government employees on the job in the performance of their dutes is not protected by the First amendment
1. for ex. DA believed one of his witnesses was lying and wrote a memo the witnesss was lying. gave a copy to other side even tho boss said not to, and so boss transferred him. sued saying violation of first amendment—no protection for speech on the job in scope of duty

Question 15

Less protected speech: speech made by gov’t employees NOT made pursuant to official duties

Answer 15

vii. Speech by government employee is not made pursuant to official duties, two tests:
1. if not a matter of public concern, employer is given wide amount of deference and allowed to punish employee if speech was disruptive of work environment
2. if matter of public concern, must balance employee rights as a citizen to comment against government interest as an employer to have efficient workplace.
a. definition of “public concern” is expansive.

Question 16

Less protected speech: political participation by EEs and EEs receiving honoraria

Answer 16

viii. Government CAN ban political participation by employees
ix. Can ban employees from receiving honoraria, making speeches, writing articles only if employees and audience right outweighed by necessary impact the speech would have on the government’s operation.

Question 17

What places are available for speech: when case involves right to use a property for certain kind of speech

Answer 17

ii. Place concerns only applies to content-neutral regulations→ content-based will face SS!!

Public forums, designated public forums, limited public forums, nonpublic forums, private property: vi. No first amendment right to access private property for speech purposes
1. for ex shopping centers

Question 18

Public forums

Answer 18

government properties that the government is constitutionally required to make available for speech.
1. Remember if content-based–> meet SS
Basically, if content-neutral but in a public forum, must still be TPM regulation that serves IMPORTANT govt purpose and leaves open adquate alternative places (basically intermediate scrutiny)

If content neutral, and on a public forum, do this analysis

2. If both subject matter and viewpoint neutral, then regulation must be a time, place or manner regulation that serves important government purpose and leaves open adequate alternative place foor communication
   a. this is basically intermediate scrutiny
   b. ex no trucks with loud music at night in residential neighborhoods OK
3. Govt regulation of public forums need not use the least restrictive alternative, but must be narrowly tailored
   a. law: in oorder too have concert in city park, must use the city’s sound people. court upheld law, doesn’t have to use the leas trestrictive alternative
4. Permit fee reqs for parades are unconst if govt officials have discretion to set the fee.
   a. too much danger low fee if figure likes the speech and vice versa

Question 19

Designated public forums

Answer 19

govt properties that govt COULD close to speech, but chooses to open. same rules as public forums apply
1. for ex school facilities evening and weekend govt chooses to open to community groups.

1. Remember if content-based–> meet SS
   Basically, if content-neutral but in a designated public forum, must still be TPM regulation that serves IMPORTANT govt purpose and leaves open adquate alternative places (basically intermediate scrutiny)

Question 20

Limited public forums

Answer 20

basically any public forum except for sidewalks, parks and designated public forums (like the side of a bus)

if Content-based–> SS
if content-neutral–> can regulate only if reasonable and viewpoint neutral.
so can still have subject matter restrictions.

Question 21

Nonpublic forums

Answer 21

• gov’t property that can and does close to speech.
  1. for ex: military bases. even if open to public, nonpublic forums
  2. for ex: areas outside prison and jails
  3. for ex: sidewalks on post office property.
  4. for ex: airports therefore can prohibit soliciting money. but cant prohibit distribution of literature.

if Content-based–> SS
if content-neutral–> can regulate only if reasonable and viewpoint neutral.
so can still have subject matter restrictions.

Question 22

Freedom of association

Answer 22

i. Laws that prohibit oor punish group membership must meet SS. to punish membership in a group must prove that the person
1. actively affiliated with the group
2. knowing of its illegal activities and
3. with specific intent of furthering those illegal activities

ii. Laws that require disclosure of group membership, where such disclosure would chlill associateion, must meet SS
1. for ex law requiring NAACP to publish list is unconst

iii. Law prohibiting a group froom discriminating are constitutional unless they interfere with intimate association or expressive activity
1. for ex private club cant discriminate based on race, gender, religion or sexual association.
2. usually anti discrim laws are upheld
3. for ex. group that didn’t allow women to join isn’t allowed under freedom of association
a. govt has compelling interest in stopping sex discrimination so interference was justified
4. exceptions: intimate association or discrim integral to expressive activity of group
a. for ex: small dinner party.
b. KKK can exclude blacks
i. boy scouts CAN exclude gay scout leaders. boy scout expressive message is anti gay

Question 23

freedom of religion- free exercise clause

Answer 23

1. no punishment of beliefs – cannot punish someone on basis of beliefs. For ex cant
   a. require religious oath of office holders
   b. can’t exclude cleric from holding public office
   c. can’t declare a religious belief to be false
   d. religious belief need not be organized or involve a supreme being.
   i. SC never held a belief not to be religious
   ii. BUT court may assess sincerity of a person’s religious blief.
2. free exercise clause cannot be used too challenge a neutral law of general applicability – test for that law is NOT SS!!
   a. for ex native americans needed consumption of peyote for religion. Indians lost, because law was neutral and general applicability. no matter how much law burdens religion.
   i. but if motivated by desire to interfere with religion then must meet SS
   ii. or if not general applicability
   b. UNLESS that regulation was specifically designed to target a particular religion (for ex. a law allowing chicken slaughtering unless you are doing it in a ritual for a particular cult.
   c. EXCEPTION: Government may not deny benefits to individuals who quit their jobs, if they quit for religious reasons.
   i. for ex woman quit rather than work on Sabbath. cant deny her unemployment benefits. state was forcing her to choose bw religion and income.
   d. EXCEPTION: Government may not force kids to go to school if they are amish.
   e. EXCEPTION: Gov’t may not hold a religious institution liable for the choices as to who will be ministers
   i. school ordained elementary school teachers as ministers. sued under ADA. bc teacher is minister, cant hold the school liable because it was choosing ministers.

Question 24

Freedom of religion- establishent clause test

Answer 24

govt can make no law respecting the establishment of religion
1. test all 3 required. 1) secular purpose 2) effect cannot advance nor inhibit religion 3)no excessive govt entanglement

d. mnemonic: SEX.
i. S: secular purpose; E: primary effect cantt be to advance religion; X: entanglement cant be excessive

a. There must be a secular purpose for the law
i. if primary purpose is to advance religion then violation
ii. requiring 10 commandments to be posted is unconstitutional. they’re inherently religious

b. Effect must neither to advance nor inhibit religion
i. govt must not symbolically endorse religion or a particular religion
1. for ex nativity scene was unconst if it’s the ONLY thing on gov’t property, must also be accompanied by symbols of other religions and secular symbols (like menorah and proclamation of tolerance)
2. for ex: 10 commandment display that was huge, at corner of Texas supreme court. This was not a violation of establishment clause. not a symbolic endorsement of religion. wasn’t paid for by state of Texas. there are plenty of other monuments. not a violation.

c. There must not be excessive government entanglement with religion
i. govt cant pay teacher salaries in parochial schools.
ii. if they do they have to monitor what techer is teaching, which is excessive entanglement.

Question 25

Level of scrutiny for establishment clause

Answer 25

2. Govt cant discriminate against religious speech or among religions unless SS is met.

a. if govt allows secular speech but not religious speech this is a content based restriction
b. govt also cant favor some religions and disfavor other unless meet SS

Question 26

Gov’t sponsored reigious activity in public schools

Answer 26

3. Govt sponsored religious activity in public schools is unconst
   a. school prayer, even voluntary school prayer is unconstitutional.
   i. even if student led prayer
   ii. even moment of silent prayer is unconstitutional
4. hasn’t ruled on moment of “silent reflection”
   b. BUT!! religious student and community groups must have the same access to school facilities as non-religious group
   i. for ex lunchtime chess club, must also allow the lunchtime Christian club
5. Govt may give assistance to religious schools, so long as it is not used for religious instruction. Govt may provide parents vouchers which they may use in religious schools, no matter the % of vouchers used in religious schools. OK bc due to parent decisions

Question 27

Contribution limits and expenditure limits

Answer 27

Contribution limits in election campaigns are generally constitutional, expenditure limits are unconst. can’t llimit the amount someone spends overall, just what they spend on one candidate. also can’t limit how much to support or oppose a ballot referendum.
i. corporations have same 1st amendment rights as individuals.

Question 28

Zoning ordinances and secondary effects

Answer 28

2. Government may use zoning ordinances to regulate the location of adult bookstores and movie theaters
   a. for ex can limit number of adult bokostores/theaters on any city block
   b. for ex city can require that all bookstores/theaters can only take up 5% of city and only in one corner
   c. can do so in order to control the secondary effects of these biz.

Question 29

Profane and indecent speech

Answer 29

6. profane and indecent speech is generally protected by the First amendment
   a. jacket with “Fuck the draft” is ok. govt cant cleanse language to please most squeamish.
   b. exception: over the broadcast media.
   i. fcc v. pacifica. George carlin monologue of 7 dirty words.
   ii. uniquely intrusive in home and accessible to kids
   iii. only prohibited if free, not paid for TV or internet
   c. Exceptioon: in schools
   i. schools are responsible to teach civilized discourse. can punish this language