FIrst Amendment Flashcards
General Rules
- specific ideas versus conduct incidential to speech
- Prior restraints
- Vaguness and overbreadth
- Symbolic Speech
- Anonymous Speech
- SPeech by the Government
Specific Ideas versus conduct incidental to speech
Generally: regulation seeking to forbig communicaiton of specific ideas (content regulation) is less likely to be upheld than a regulation of conduct incidental to speech
Content-based versus content-neutral
-
Content based: generally must meet strict scrutiny (e.g. state may not prohibit the sale or rental of violent video games to minors–violence not an additional area of unprotected speech). Two alternatives to finding a law is content-based
- Subject-matter restriction–> application of the law depend on the topic of the message
- Viewpoint Restriction–> application of the law depends on the ideology of the speech.
- Content-Neutral Laws burdening Speech: Generally need only meet intermediate scrutiny
Prior Restraints
Stopping speech before it occurs
- Comes in two forms:
- Court orders
- Government licensure
COurt orders suppressing speech
- Standard: Must meet strict scrutiny
- those orders that are procedurally proper must be complied with until they are vacated or overturned
- one who violates a court order is barred from challenging it later
- Gag orders on the prss to prevent prejudicial pretrail publicity are not allowed
Government License on speech
- Can requires a license only if there is
- an important reason for licensing AND
- clear criteria leaving almost no discretion to the licensing authority.
- Must also have procedural safeguard such as prompt determination of requests for licenses and judicial review of license denials
Vagueness and Overbreadth
- Vagueness: unconstitutionally vague if a reasonable person cannot tell what speehc is prohibited and what is allowed.
- Overbreadth: if it regulates substantially more speech than the constitution allows to be regulated
- Fighting words not protected speech but statutes attemption to punish the use of such words are often found to be void.
Symbolic Speech
- Government may regulate conduct that communicates if it has
- an important interested unrelated to the suppression of the message AND
- if the impact on the communication is no greater than necessary to achieve the government’s goal
- Specific examples:
- Flag burning–allowed
- Draft card burning–not allowed
- Nude Dancing–not allowed
- Burning a cross–not allowed when done to intimidate someone
- Contribution limits in election campaigns are allowed
- expenditure limits in campaigns are not
- government cannot limit amount person spends to get candidate elected as long as expenditures are independent of the candidate and are not disguised contirbutions. Corps unions and other entities may spend as much as they wish.
Anonymous Speech
Protected by 5th Amendment
state’s interest in promoting transparency and accountability in elections is sufficient to justify public disclosure of names and addresses of persons who signed ballot petitions
Speech by the government
cannot be challenged as violating 1st Amendment
government speech and government funding of speech will be upheld as long as its rationallyr related to legitimate state interest
Types of speech receinving less protection or left unrpotected by 1st Amendment
- Incitement of illegal activity
- Obscenity and sexually-oriented speehc
- Commercial Speech
- Defamation
- PRivacy
- Government employees on the job
Incitement of illegal activity
- unprotected by the first amendment
- Test: government may punish speech if
- there is a substantial likelihoood of imminent illegal activity AND
- if speech is directed to causing imminent illegality
Obscenity and Sexually-oriented Speech
-
Test:
- Prurient Interest: Must appeal to the prurient interest or a shameful or morbid interest in sex
- Patently offensive: material must be patnetly offensive under the law porhibit obscenity
- Value: Taken as a whole, Must lack serious redeeming artisitc, literary, policitacl or scientific value as judged by a national standard
- Zoning Obscenity: may use zoning ordinances to regulate number of adult bookstores or movie theaters
- _Child porn: _may be completely banned for obscenity
- children must be used in production of material
- Private possession: not not punish private possession of obsence materials but for child porn.
- Assets of businesses: gov may seize assets of business convicted of violating obscenity laws
-
Profane and indecent speech: genearlly protected EXCEPT:
- free over the air broadcase media
- in schools
Commercial Speech
- Falsity in and of itself does not make speech unprotected. WHere it’s unprotected, it’s based on the harm cuased.
- Advertising for illegal activity and false and deceptive ads are not protected
- Even true commercial speech that inherently risks deception can be prohibited
- prevent professions from ad or practicing under trade name
- prohibit attorny in person soliciations for profit
- lawyers and debt relief agencies may need to state legal status, nature of service nad possibility of bankrupcy
- may not prohibit accountants from in0person solicitation of clients for profit
- Other commercial speech may be regulated if meets intermediate scrutiny
- regulation needs to be narrowly tailored but does not need to be least restrictive alternative
- e.g. upheld ny law prohibiting solicitation in dorms despite less restrictive alternative
Defamation–public official or running for public office
defamation only if can prove by clear and convincing evidence the falsity of statement and actual malice
reckless disregard or knew the statement’s falsity
Defamation–public figure
must prove falsity of the statement and actual malice
Private figure/public concern
state ma allow plaintiff to recover damages for defamation by proving falsity and negligence by the defendant and that the speaker was not as careful as a resaonble speaker should have been
for presumed (Statutory) or punitive damages, must show actual malice
Private figure/not of public concner
can recover presumed or punitive damages w/out actual malice
Liability for interntional inflication of emotional distress
must meet defamation standards and cannot exist for speech otherwise protected by the first amendment
Privacy and the First Amendment
- state may not create lability for the truthful reporting of information that was illegally obtained from the governments records
- rape victim identity
- media may not be held liabile for broadcasting a tape of an illegal intercepted and recorded calls so long as the media did not particiapte in the illegality and it involves matter of public concern
- government may restrict its own dissemination of info to protect privacy.
- only have right to attend and access gov papers is crim trials nd proceedings
Speech by gov employees on the job in perofrmance of duties
not protected
Other gov restrictions based on content of speech
must meet strict scrutiny
Places to consider for speech
- Public forums
- Designated public forums
- limited public forums
- non-public forums
- prviate property
Public Forums
-
defined. government properties that the government is constitutionally required to make available for speech
- parks and sidewalks
-
Regulations:
- must be subject matter and viewpoint neutral or will have SS applied
- must be a time place or mneer that serves an important government purpose and leaves adequate alternative spots for communication (sound trucks at night)
- need not use the least restrictive alternative
- permit fee requiresments for parades or demonstrations unconstitution if city officials have discretion in setting the amount of the fee
*
Designated public forums
gov props that gov could close off to speech but voluntarily chooses to open to speech
when done, same rule as public forums
Limited public focums
government properts that are limited to certain groups or designiated to a certain subject
can regulated as long as regulation is reasonable and viepoint neutral
Non-public forums
- Gov props that gov can and does close off to speech. Cna regulate as long as reasonable (rational basis) and viewpoint neutral
- Examples:
- military bases
- areas outside prisons
- school (public law school require student group to accept all students b/c viepoint aneutral and reasonably related to school purpose)
- signes on public property (even if temp)
- Sidewalks
- Airports (may restrict solicitation of money but not literature)
Private property
no first amendment right to private property
Freedom of Association: law that prohibit or punish group memebership
must meet SS
Must prove that the person is:
- actively affiliated with the group
- has knowledge of the groups illegal activities AND
- has the specific intent of furthering those illegal activities or objectives
*
Freedom of association: disclosure of group membership
where such disclosures would chill association, must meet SS
Freedom Association: right to discirminate
not protected unless:
intimate association(dinner party)
discrimination is integral to the expressive acitivites of the group (KKK, boy scouts)
Free Exercise Clause
cannot be used to challenge a neutral law of general applicability
gov may not deny benefitis to invidiuals who quit jobs for religious resaons
Establishment Clause
- _Three Part Tes_t:
- S–must be a secular purpose for the law
- E-primary effect must be neither to advance nor inhibit religion
- X–must not be excessive government entaglement with religion
- Government cannot discriminate against religious speech or among religions unless SS is met
- gov sponsored religious activity in public schools is unconst
- religious studnet and community groups must have same school access as non-religious groups
- school prayers, even if voluntary is not allowed; not even a moment of slient prayer is allowed
- Government may give assistance to parochial schools so long as it is not used for religious instruction. Gov may provide parents vouchers which they use in parochail schools .
