First Amendment

Question 1

Test for regulation of speech in PF or DPF

Answer 1

1. Reasonable TPM restriction
2. Content-neutral
3. Narrowly tailored to serve important gov interest (need not be LRM)
4. Leaves open alternative channels of communication

Question 2

Test for regulation of speech in LPF or NPF

Answer 2

1. Objective of the regulation is to reserve forum for its intended use
2. Viewpoint neutral
3. Reasonably related to legitimate gov purpose

Question 3

Elements for speech to be obscene:

Answer 3

Taken as a whole by average person:

1. Appeals to prurient interest in sex (community standard)
2. Patently offensive (community standard)
3. Lacks serious value (national reasonable person standard)

Question 4

Secondary effects exception to obscenity

Answer 4

Gov may issue land use or zoning restrictions to limit location/size of adult entertainment establishments if designed to reduce secondary effects of such businesses.

Restrictions must serve a substantial government interest and must not unreasonably limit alternate avenues of communication.

Question 5

Elements of proof of defamation when π is a public official or it involves public concern

Answer 5

1. All elements of defamation
2. Falsity
3. Fault

Question 6

When may the government regulate lawful and non-misleading commercial speech?

Answer 6

1. Serves substantial interest
2. Directly advances that interest
3. Narrowly tailored to that interest (need not be LRM – just a reasonable fit)

Question 7

Requirements for a prior restraint to be valid:

Answer 7

1. Standards narrowly drawn, reasonable, and definite
2. Injunction must promptly be sought, and
3. There must be prompt and final determination of validity of restraint

(Burden on gov to show speech is unprotected)

Question 8

Standard for infringement on freedom of association to be valid:

Answer 8

1. Compelling state interest, unrelated to suppression of ideas
2. LRM of protecting gov interest
3. Doesn’t singificantly affect group’s right to express its viewpoints

Question 9

2 standards for election laws that impact 1A freedoms of speech, assembly and association

Answer 9

If restriction is severe –> NT to achieve CSI

If restriction is reasonable and nondiscriminatory –> RBR, generally upheld

Question 10

Standard for statute limiting election campaign contributions

Answer 10

Intermediate scrutiny

Closely drawn to match a sufficiently important interest

Question 11

What test is used for infringement (freedom of association) cases involving public school sponsorship of extracurricular activities

Answer 11

Regulations must be

1. Viewpoint neutral
2. Reasonably related to a legitimate gov interest

Question 12

Gov action challenged under establishment clause will be invalid unless

(Lemon Test)

Answer 12

1. Has secular purpose
2. Primary effect that neither advances nor inhibits religion
3. Does not produce excessive gov entanglement w/ religion

Question 13

Standard for overbreadth in regulation of speech

Answer 13

Punishes a substantial amount of protected speech in relation to its plainly legitimate sweep

Question 14

Constitutionality of overbroad spech regulation

Answer 14

Facially invalid against ANYONE, unless a court has limited construction of the regulation so as to remove the threat to constitutionally protected speech

Question 15

What standard is applied to injunctions in PFs and DPFs?

Answer 15

If content-based, must be necessary to achieve a compelling interest.

If content-neutral, must burden no more speech than necessary to achieve important gov interest.

Question 16

What speech is considered “fighting words”?

Answer 16

1. True threats (e.g. cross burning w/ intent to intimidate)
2. Fighting words (personally abusive, likely to incite immediate phys reaction in average person)

Question 17

When may the government regulate child pornography?

Answer 17

The government may prohibit sale/distribution of visual depictions of sexual conduct actually involving minors, even if it doesn’t meet the test for obscenity.

It may not bar visual materials made with CGI or young-looking adults.

Question 18

Validity of injunction prohibiting publishing of troop movements in times ofr war

Answer 18

Valid

Question 19

Validity of injunction prohibiting publication of Pentagon Papers because it might have an effect on Vietnam War

Answer 19

Invalid

Question 20

Validity of injunction prohibiting grand jury witness from ever disclosing testimony

Answer 20

Invalid

Question 21

Limitations on business regulations and taxes on the press and broadcasting companies

Answer 21

May be subject to general business regs and taxes, but NOT those that impact press or sub-part of press based on content (e.g. medical journals) abent compelling justification.

Question 22

Standards for regulation of newspapers versus broadcast media

Answer 22

Broadcast media is less protected from regulation, so the government may regulate more freely (e.g. prohibit indecent speech, require cable operators to require local stations…). Content-based restrictions are still subject to strict scrutiny.

Generally, all regulations of newspapers are subject to strict scrutiny.

Question 23

Government regulations subject to FEC challenge

Answer 23

Can only challenge regs specifically designed to interfere with religion

Religious exemptions not required if law of general applicability

Question 24

Constitutionality of contribution limits

Answer 24

Gov cannot limit aggregate amont one person/entity contributes to political candidates or committees during election

Gov can limit amount one person/entity contributes to a single candidate

Question 25

Constitutionality of limits on campaign expenditures

Answer 25

Laws can’t limit how much candidate spends on campaign or how much someone spends to get a candidate elected, as long as the expenditures are independent of the candidate (not disguised contributions)

Question 26

Constitutionality of prohibiting judicial candidates from announcing their views on disputed legal and political issues

Answer 26

Invalid

Question 27

Constitutionality of prohibiting any campaigning on election day

Answer 27

Invalid (involves core political speech = overbroad)

Question 28

Constitutionality of requiring political parties to allow non-party members to vote in the parties’ primary elections

Answer 28

Invalid

Question 29

Constitutionality of prohibiting campaign activity w/in 100 feet of polling place on election day

Answer 29

Invalid (involves core political speech but is narrowly tailored on election day)

Question 30

Constitutionality of enforcing a party rule requiring voter to be registered w/ a political party to vote in the party’s primary

Answer 30

Valid

Question 31

Constitutionality of prohibiting personal solicitation of campaign funds by judicial candidates

Answer 31

Valid

Question 32

When is a restraint on a government employee’s speech exempt from strict scrutiny?

Answer 32

1. Speech made on job
2. In pursuant to official duties (even if speech is matter of pblic concern)

Question 33

What test is used for restraint on government employee’s speech when

1. the speech is not pursuant to official duties and
2. does NOT involve mattter of public conern?

Answer 33

RBR, can regulate if speech was disruptive of work envoronment

Question 34

What test is used for restraint on government employee’s speech when

1. the speech is not pursuant to official duties and
2. does involve mattter of public conern?

Answer 34

Court balances employee’s rights as citizen to comment on the matter against gov’s interest as employer in efficient performance of public service