First Amendment

Question 1

Void for Vagueness Doctrine

Answer 1

If a law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the Due Process Clause. (i.e., if it is unclear what speech is regulated, people might refrain from speech that is permissible for fear that they will be violating the law). Also look for a law which grants too much discretion to law enforcement in which selective application could occur. Coates: Men of ordinary intelligence must guess at it’s meaning.

IF TOO VAGUE, THEN VOID ON IT’S FACE

Question 2

Overbreadth

Answer 2

A regulation will not be upheld if it is overbroad (prohibits substantially more speech then is necesary). Jews for Jesus: All first amendment activity at LAX was banned.

IF OVERBROAD, THEN VOID ON IT’S FACE

Question 3

To justify govt regulation of the content of Speech, govt must show:

Answer 3

1. Regulation is necessary to serve a compelling interest, and
2. Uses least restrictive means possible

Question 4

A regulation which effects the conduct, rather then content, will only be valid if:

Answer 4

1. Narrowly tailored (burden minimal amount of speech), and
2. Srve an Important gov’t interest

Question 5

First Amendment Defined

Answer 5

The 1st Amendment to the United States Constitution states that Congress shall make no law abridging the freedom of speech. Although the right to free speech is guaranteed, it is not absolute. Congress retains the right to regulate certain less protected or unprotected areas of speech, as well as certain non-verbal conduct, without offending the 1st Amendment. Applied to the states via the 14th amendment.

Question 6

Spence Test (Symbolic Speech)

Answer 6

1. Subjective Intent to Communicate a message; and
2. Whether or not the listener is reasonably likely to understand the conduct as communicating the message

If qualified, the conduct will be deemed symbolic speech and will be treated as actual speech for 1st Amendment purposes

Question 7

Prior Restraints

Answer 7

An administrative system that prevents speech before it actually occurs. (i.e. Licenses). A heavy presumption against constitutionality.

To be const:

1. Important reason for licensing req’t
2. Clear standards (leaving no discretion to th govt)
3. Procedural Safeguards

Question 8

Public Forum (Content Based Reg)

Answer 8

Gov’t property that the gov’t is obligated to make available for public speech.

Reg must be:

1. Necessary to serve a compelling interest; and
2. Narrowly tailored to meet that interest (Must burden minimal amount of speech)

Question 9

Public Forum (Content Neutral Reg) or Time, Place, Manner Regs

Answer 9

Intermediate Scrutiny

1. Narrowly tailored to achieve an importatnt gov’t interest, and
2. Leave alternative channels of communication open

Question 10

Limited Public Forums or Designated Public Forums

Answer 10

Are those which the government could close to speech, but has chosen to affirmatively and voluntarily open to speech.

Same rules as Public Forums

Question 11

Non-Public Forums

Answer 11

Gov’t properties that the Gov’t can close to all speech activity.

Regs must be:

1. Reasonable, and
2. Viewpoint neutral

(regs may be based on subject matter in NPF)

Question 12

O’Brien Test (To determine if symbolic speech will be content neutral and subject to Intermediate Scrutiny)

Answer 12

1. Is it within the constitutional power of the gov’t to regulate?
2. Does regulation further importatnt gov’t interest?
3. Interested must be unrelated to the supression of speech
4. The incidental restriciton on speech must be no more invasive than neccesary

Question 13

Texas v. Johnson Test (To determine if the symbolic speech regulation is content based and should be subject to Strict scrutiny)

Answer 13

Must be:

1. Neccessary to serve a compelling govt interest, and
2. Utilize the least restrictive means

Question 14

Incitement

Answer 14

Not protected when:

1. Intent to incite imminent lawless action, and
2. Liklihood that lawless action will occur

Question 15

Fighting Words

Answer 15

Not protected when:

1. Specifically uttered to someone else,
2. Likely to provoke a violent response, or
3. Likely to inflict emotional harm on listener

Question 16

Bolger Test (Commercial Speech)

Answer 16

Commercial Speech if:

1. Meant to be an advertisement
2. References a particular product
3. Economic motivation for dissemenating material

If qualified then commerical speech and subject to intermediate scrutiny

Question 17

Central Hudson Test (To determine if Commercial Speech regulation is constitional)

Answer 17

1. Ad cannon be for illegal purposes nor deceptive or untrutful
2. Is there a substantial gov’t interest in regulation
3. Does regulation directly advance that interest?
4. Is the regulation no more extensive than necesary

NOTE: Advertising that inherently risks deception calls for rational basis

a) Laws that prohibit professionals from advertising or practicing under trade names and; (public misunderstanding)
b) Restrictions on the ability of professionals to solicit clients

Question 18

Miller Test (Obscenity)

Answer 18

Material will be deemed obscene and thus not subject to first amendment protection if:

1. Appeals to the prurient interest (local standard)
2. Depicts sexual conduct in a patently offensive way
3. Lacks serious artistic, scientific, or polital merit (national standard)