First Amendment

Question 1

First Amendment: Content-Based Regulations are allowed for what types of speech?

Answer 1

1. Incitement of Illegal Activity
2. Obscenity
3. Commercial Speech

Question 2

First A: Content-Based Regs:

Incitement of Illegal Activity

Answer 2

1. SUBSTANTIALl likelihood of IMMINENT illegal activity

2. Speech DESIGNED to cause the activity

Question 3

Press and Public Access to Criminal Trials

Answer 3

First Amendment guarantees the press and public a right to attend criminal trials.

Right may be outweighed by OVERRIDING INTEREST articulated in the findings by the trial judge, and restriction is NARROWLY TAILORED to meet that interest.

Accused’s right to a fair trial and need to keep trial free from disruption may outweigh public’s right to attend the trial if order is NARROWLY tailored to meet overriding interest.

Question 4

Regulation at a Nonpublic Forum

Answer 4

Time place and manner restrictions at a nonpublic forum.

Upheld if

1) VIEWPOINT NEUTRAL and
2) REASONABLY related to a
3) LEGITIMATE gvmt interest.

(Content Neutral)+
(RBT)

Question 5

ESTABLISHMENT CLAUSE

Answer 5

Lemon Test. S E X

1. Secular purpose
2. secular Effect: neither advances nor impedes exercise of religiion
3. no eXcessive gvmt entanglement

Question 6

Facial attacks on Speech Limitations?

Answer 6

1. Vagueness

2. Overbroad

Question 7

Vagueness (First Amendment)

Answer 7

Facial attack.

R person must be given R notice of what’s allowed and what’s protected

e.g. Prohibition of books “tending to corrupt the morals of youth”

Question 8

Overbreadth (First Amendment)

Answer 8

Facial attack.

Regulates SUBSTANTIALLY MORE speech than the Constitution permits.

e. g. city ordinance prohibits all live entertainment. Intended to affect nude dancing but also plays, theater.
e. g. outlawing all first A activity in an airport terminal

Question 9

Fighting Words Laws

Answer 9

Always vague and over-broad

Question 10

Symbolic Speech

Answer 10

Gvmt can regulate if:

1) IMPORTANT state interest is UNRELATED to SUPPRESSION of message and
2) burden is NO GREATER THAN NECESSARY.

e. g. burning flag - protected
e. g. burning cross – protected unless intended to threaten

e. g. NOT draft card burning
e. g. NOT nude dancing

Question 11

First A: Election Campaigns: Contribution Limits and Expenditure Limits

Answer 11

Campaign Contribution Limits are Constl;

Expenditure Limits are UnConstl

Question 12

First Amendment: Anonymous Speech protected?

Answer 12

YES. protected by First A

Question 13

First Amendment: Government Speech protected?

Answer 13

Kinda. Gvmt Speech CANNOT BE CHALLENGED as violating First Amendment.

e. g. City park w/whatever monuments it wants
e. g. School curriculum guide

NB: However, note the distinction with gvmt regulation of private speech. First A applies there.

Question 14

First Amendment: Free Association

Laws Prohibiting or Punishing Membership in a group – ok?

Answer 14

Only if meet SS.

And, only if person has:

1. ACTIVE affiliation
2. KNOWLEDGE of group’s illegal activities
3. SPECIFIC INTENT to FURTHER group’s illegal activities

Question 15

Freedom of Association – Fundamental right?

Answer 15

Fundamental Rt under 1st A

Question 16

Laws prohibiting a group from discriminating

Answer 16

Constitutional, unless it’s INTEGRAL to group membership or message.

e. g. Klan can exclude blacks (message)
e. g. Boy scouts can exclude gays (message)

Question 17

Public Forum: definition

Answer 17

Public property that historically has been open to speech activity

Question 18

Public Figure suing for Defamation – minimum level of intent?

Answer 18

Malice

Question 19

Private Figure suing for Defamation – minimum level of intent?

Answer 19

Negligence

Question 20

The First Amendment (as relates to speech)…

Answer 20

restricts government regulation of private speech.

Question 21

Protected Speech under First Amendment?

Refusal to salute the flag

Answer 21

YES. Therefore may not be forced to salute.

Question 22

Protected Speech under First Amendment?

Display of a state license plate motto

Answer 22

YES. Therefore, may not be forced to display.

Question 23

Protected Speech under First Amendment?

Organization of a Private Parade

Answer 23

YES. Therefore, may not be forced to take gay participants.

Question 24

Protected Speech under First Amendment?

Gvmt placement of monument in public park.

Answer 24

NO. First Amendment doesn’t apply to gmvt speech. (This doesn’t violate it.)

Question 25

Limited Public Forum: definition

Answer 25

Public property that has been open to speech-
related activity for a particular purpose.

e.g., a school gym that has been opened up to host a political debate).

Question 26

Regulation of Speech in a Public Forum

Answer 26

1) content NEUTRAL
2) NARROWLY TAILORED to serve important gvmt interest
3) leaves ALTERNATIVE places for communication

Question 27

Prior Restraint is only allowed WHEN…

Answer 27

… some SOCIETAL HARM would otherwise result…

1. standards must be NARROWLY drawn, REASONABLE, and DEFINITE.
2. INJUNCTION must be PROMPTLY sought
3. PROMPT and FINAL determination of validity.

Question 28

Prior REstraint – definition:

Answer 28

Any regulatory system, injunction, or other action by the government that serves to stop speech from reaching the public is called __________.

Question 29

Clear and Present Danger Test

Answer 29

For Speech inciting imminent lawless action.

Under the clear and present danger test, speech may be sanctioned whenever it:
is DIRECTED to producing or inciting imminent lawless action and is LIKELY TO PRODUCE such action.

Question 30

A pretrial criminal proceeding may be closed to the press if…

Answer 30

A pretrial criminal proceeding may be closed to the press if…
the closure is essential to preserve a higher value and the order is narrowly drawn.

Question 31

What does the Free Exercise Clause say?

Answer 31

The government may not punish someone on the basis of “religious beliefs.”

Question 32

What are “religious beliefs,” for Free Exercise Clause purposes?

Answer 32

“Religious beliefs” has not been defined by the Supreme Court, but it is clear that it need not come from an organized religion or involve a supreme being.
(Court has never held an asserted religious belief to not be one for Free Exercise purposes.”

Question 33

When can the Free Exercise Clause be used?

Answer 33

Only to challenge laws that are SPECIFICALLY DESIGNED to interfere with religion.

Question 34

Does the Free Exercise Clause PERMIT religious EXEMPTIONS from generally applicable government regulations that happen to interfere with religious conduct?

Answer 34

Trick question. The Free Exercise Clause DOES NOT REQUIRE religious exemptions because of an interference w/religious conduct.

Question 35

Does the Free Exercise Clause prohibit government regulation of religious CONDUCT?

Answer 35

No – only government interference with religious BELIEFS.

Question 36

What does the Establishment Clause say?

Answer 36

The Est Clause prohibits laws respecting the establishment of religion.

Question 37

If the government demonstrates a sect preference, under the establishment clause, what standard is used to assess the law?

Answer 37

Law must be NARROWLY tailored to promote a COMPELLING interest.

Question 38

If there is NOT a sect preference, what standard is used?

Answer 38

The Lemon Test:
law VALID if:
1. Secular purpose
2. Primary Effect neither advances nor inhibits religion
3. Does not produce eXcessive government Entanglement.

Question 39

What are the Exceptions with the Free Exercise Clause – where a religious exemption IS required?

Answer 39

1. Unemployment Compensation – if someone quit job bc work conflicted w/tenets of religion
2. Right of Amish not to Educate Children. (Also based on fundamental right to home school)