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Constitutional Law > First Amendment > Flashcards

First Amendment Flashcards

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1
Q

Content-based regulation

A
  • Regulation seeking to forbid communication of specific ideas
  • Strict scrutiny applies when there are subject matter or viewpoint restrictions by the gov’t.
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2
Q

Conduct incidental to speech regulation

A
  • Can be regulated by content-neutral time, place, and manner restrictions
  • Intermediate scrutiny applies. Example the city prohibits all parades in the park
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3
Q

Prior Restraints on Speech

A
  • 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
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4
Q

Vagueness

A
  • 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
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5
Q

Overbreadth

A

-A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

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6
Q

Symoblic Speech

A

-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
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7
Q

Campaign Finance

A
  • 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
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8
Q

Anonymous Speech

A

Protected

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9
Q

Gov’t Speech

A

Cannot be challeged as violating First Amendment. Gov’t can pick and choose who it supports and aids

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10
Q

Unprotected Speech

A
  • Incitement
  • Obscenity,
  • False and illegal advertising,
  • Defamation
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11
Q

Incitement of Illegal Activity

A
  • 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”
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12
Q

Obscenity - 3 elements

A

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.

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13
Q

Zoning Ordinances and 1st Amendment

A

OK to use zoning ordinances to regulate the number of location of adult bookstores and movie theaters

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14
Q

Profane and indecent speech

A

Protected except over air broadcase and in schools

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15
Q

Regulation of Commercial speech

A
  • Illegal and false advertising not protected

- Other commercial speech can be regulated if intermediate scrutiny met

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16
Q

Defamation

A

Public official - must prove false statement with malice (intent)

Private figure - false statement and negligence by the speaker

17
Q

Privacy and 1st Amendment

A
  1. 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
  2. Gov’t may restrict its own dissemination of information to protect privacy.
    Exception: Criminal trials and criminal pretrial
    proceedings
18
Q

Places available for free speech

A

Public Forums, designated public forums, limited public forums, non-public forums

19
Q

Public forums

A

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.

20
Q

Designated Public forums

A
  • 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
21
Q

Limited Public Forum

A
  • 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
22
Q

Non-public forums

A

-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)
23
Q

Freedom of association

A

-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)

24
Q

Freedom of Religion Constitutional Provisions

A

1st Amendment:

  1. Free exercise Clause
  2. Establishment Clause
25
Q

Free Exercise Clause

A

-Cannot be used to challenge a neutral law of general applicability (Law prohibiting peyote ok as long as not targering religion for reason to prohibit)

26
Q

Test to Determine if Law Violates The Establishment Clause

A

Three-part test: SEX

(1) law must have a SECULAR purpose;
(2) law’s primary EFFECT must be neither to inhibit or advance religion; and
(3) there cannot be EXCESSIVE gov’t entabglment with religion

27
Q

Gov’t Requiring License for Speech

A
  • Only if there is an important reason for licensing and clear criteria leaving almost no discretion in the licensing authority
  • In addition thre must be procedural safeguards such as prompt determination of requests for licenses and judicial review of license demands
28
Q

Child Porn

A
  • Can be completely banned
  • To be considered child porn it must have used children in the production of the material. (Can’t be cartoons or someone who is over 18)
29
Q

Private Possession of Obscene Material

A
  • Gov’t may not punish

- Unless it’s child porn

30
Q

Gov’t Employees in Performance of Duties

A

Not protected by 1st amendment

31
Q

Discrimination Against Religious Groups by Gov’t

A

Strict scrutiny if gov’t discriminates against a particular religious group.

32
Q

School Prayer in Public Schools

A

No school prayer or gov’t sponsored religious programs at schools

33
Q

Gov’t Assistance to Parochial Schools

A

Yes

  • So long as not used for religious instruction
  • Gov’t may also provide parents vouchers which they use in parochial schools

Constitutional Law (8 decks)

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