First Amendment Flashcards
Content-based regulation
- Regulation seeking to forbid communication of specific ideas
- Strict scrutiny applies when there are subject matter or viewpoint restrictions by the gov’t.
Conduct incidental to speech regulation
- Can be regulated by content-neutral time, place, and manner restrictions
- Intermediate scrutiny applies. Example the city prohibits all parades in the park
Prior Restraints on Speech
- Strict scrutiny when gov’t stops speech before it occurs.
- However, if there is a court order to stop someone from speaking and that person violates it then they are barred from challenging the order. The speaker must get the court order vacated or overturned firs.
- Gag orders on the press to prevent prejudicial pretrial publicity are not allowed
Vagueness
- A law is unconstitutionally if a reasonable person cannot tell what speech is prohibited and what is allowed. (“magazine tending to corrupt the moral youth”)
- Fighting words are not protected speech but statutes attempting to punish the use of such words are often found void for vagueness
Overbreadth
-A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
Symoblic Speech
-Gov’t may regulate conduct that comunicates if it has an important interest unrelated to suppression of the message and if the impact on the communication is no greater than necessary to acheive the goal.
- Flag burning - ok
- Draft Car burning - not protected because Gov’t need people to have cards
- Nude Dancing - not protected
- Burning a cross - protected unless to intimidate
Campaign Finance
- Ok to limit the amount of money donated to candidates
- Not ok to limite the amount that a candidate spends on a political campaign.
- However Gov’t CANNOT limite the amount a person spends to get a candidate elected, as long as expenditures are independent of the candidate and are not disguised contributions. Corps, unions, and other entities may spend whatever they wish to get a candidate elected - just can’t do it through typical campaign contribution
Anonymous Speech
Protected
Gov’t Speech
Cannot be challeged as violating First Amendment. Gov’t can pick and choose who it supports and aids
Unprotected Speech
- Incitement
- Obscenity,
- False and illegal advertising,
- Defamation
Incitement of Illegal Activity
- Not protected
- Gov’t may punish speech if there is a “substantial likelihood of imminent illegal activity and if the speec is directed to cause imminent illegality”
Obscenity - 3 elements
Test for obscenity:
(1) material must appeal to the prurient interest – “a shameful or morbid interest in sex”;
(2) must be patently offensive; and
(3) Taken as a whole, the material must lack serious, redeeming artistic, literary, political, or scientific value as determined by a NATIONAL STANDARD.
Zoning Ordinances and 1st Amendment
OK to use zoning ordinances to regulate the number of location of adult bookstores and movie theaters
Profane and indecent speech
Protected except over air broadcase and in schools
Regulation of Commercial speech
- Illegal and false advertising not protected
- Other commercial speech can be regulated if intermediate scrutiny met
Defamation
Public official - must prove false statement with malice (intent)
Private figure - false statement and negligence by the speaker
Privacy and 1st Amendment
- No liability for Media for:
a. Truthful reporting of information legally
obtained.
b. For broadcasting a tape of illegally recorded
call, so long as media did not participate in the
illegality and it involves a matter of public
importance - Gov’t may restrict its own dissemination of information to protect privacy.
Exception: Criminal trials and criminal pretrial
proceedings
Places available for free speech
Public Forums, designated public forums, limited public forums, non-public forums
Public forums
Gov’t properties required to be available for speech
(parks and sidewalks)
Regulation must be:
1. Subject matter and viewpoint neutral
2. Time, place, or manner that serves important government purpose and leaves open adequate alternative places for communications. Don’t have to be least restrictive alternative
3. Permits fee requirements for parades or demonstrations are unconstitutional if city officials have discretion in setting the amount of the fee.
Designated Public forums
- Gov’t properties (school at night/on weekends) that gov’t could close off to speech but has chosen to open for speech
- Regulation requirement same as public forums
Limited Public Forum
- Gov’t properties that are limited to certain or group or have dedicated the discussion to certain subjects.
ex. City auditorium for mayoral debate - Regulate so long as the regulation is reasonable and viewpoint neutral
Non-public forums
-Gov’t properties that the government constitutionally can and does close off speech.
Regulation:Gov’t can stop speech if regulation is reasonable (rational basis test) and viewpoint neutral
Military bases Areas outside of jails Schools Signs on public property Post-office sidewalks Airports (May not prohibit distribution of literature)
Freedom of association
-Laws that prohibit or punish group membership must meet strict scrutiny
FOA does not protect group from discrimination except:
intimate gatherings
discrimination is essential to the group (KKK)
Freedom of Religion Constitutional Provisions
1st Amendment:
- Free exercise Clause
- Establishment Clause
