First Amendment Flashcards
First Amendment: Content-Based Regulations are allowed for what types of speech?
- Incitement of Illegal Activity
- Obscenity
- Commercial Speech
First A: Content-Based Regs:
Incitement of Illegal Activity
- SUBSTANTIALl likelihood of IMMINENT illegal activity
2. Speech DESIGNED to cause the activity
Press and Public Access to Criminal Trials
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.
Regulation at a Nonpublic Forum
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)
ESTABLISHMENT CLAUSE
Lemon Test. S E X
- Secular purpose
- secular Effect: neither advances nor impedes exercise of religiion
- no eXcessive gvmt entanglement
Facial attacks on Speech Limitations?
- Vagueness
2. Overbroad
Vagueness (First Amendment)
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”
Overbreadth (First Amendment)
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
Fighting Words Laws
Always vague and over-broad
Symbolic Speech
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
First A: Election Campaigns: Contribution Limits and Expenditure Limits
Campaign Contribution Limits are Constl;
Expenditure Limits are UnConstl
First Amendment: Anonymous Speech protected?
YES. protected by First A
First Amendment: Government Speech protected?
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.
First Amendment: Free Association
Laws Prohibiting or Punishing Membership in a group – ok?
Only if meet SS.
And, only if person has:
- ACTIVE affiliation
- KNOWLEDGE of group’s illegal activities
- SPECIFIC INTENT to FURTHER group’s illegal activities
Freedom of Association – Fundamental right?
Fundamental Rt under 1st A
Laws prohibiting a group from discriminating
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)
Public Forum: definition
Public property that historically has been open to speech activity
Public Figure suing for Defamation – minimum level of intent?
Malice
Private Figure suing for Defamation – minimum level of intent?
Negligence
The First Amendment (as relates to speech)…
restricts government regulation of private speech.
Protected Speech under First Amendment?
Refusal to salute the flag
YES. Therefore may not be forced to salute.
Protected Speech under First Amendment?
Display of a state license plate motto
YES. Therefore, may not be forced to display.
Protected Speech under First Amendment?
Organization of a Private Parade
YES. Therefore, may not be forced to take gay participants.
Protected Speech under First Amendment?
Gvmt placement of monument in public park.
NO. First Amendment doesn’t apply to gmvt speech. (This doesn’t violate it.)
Limited Public Forum: definition
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).
Regulation of Speech in a Public Forum
1) content NEUTRAL
2) NARROWLY TAILORED to serve important gvmt interest
3) leaves ALTERNATIVE places for communication
Prior Restraint is only allowed WHEN…
… some SOCIETAL HARM would otherwise result…
- standards must be NARROWLY drawn, REASONABLE, and DEFINITE.
- INJUNCTION must be PROMPTLY sought
- PROMPT and FINAL determination of validity.
Prior REstraint – definition:
Any regulatory system, injunction, or other action by the government that serves to stop speech from reaching the public is called __________.
Clear and Present Danger Test
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.
A pretrial criminal proceeding may be closed to the press if…
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.
What does the Free Exercise Clause say?
The government may not punish someone on the basis of “religious beliefs.”
What are “religious beliefs,” for Free Exercise Clause purposes?
“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.”
When can the Free Exercise Clause be used?
Only to challenge laws that are SPECIFICALLY DESIGNED to interfere with religion.
Does the Free Exercise Clause PERMIT religious EXEMPTIONS from generally applicable government regulations that happen to interfere with religious conduct?
Trick question. The Free Exercise Clause DOES NOT REQUIRE religious exemptions because of an interference w/religious conduct.
Does the Free Exercise Clause prohibit government regulation of religious CONDUCT?
No – only government interference with religious BELIEFS.
What does the Establishment Clause say?
The Est Clause prohibits laws respecting the establishment of religion.
If the government demonstrates a sect preference, under the establishment clause, what standard is used to assess the law?
Law must be NARROWLY tailored to promote a COMPELLING interest.
If there is NOT a sect preference, what standard is used?
The Lemon Test:
law VALID if:
1. Secular purpose
2. Primary Effect neither advances nor inhibits religion
3. Does not produce eXcessive government Entanglement.
What are the Exceptions with the Free Exercise Clause – where a religious exemption IS required?
- Unemployment Compensation – if someone quit job bc work conflicted w/tenets of religion
- Right of Amish not to Educate Children. (Also based on fundamental right to home school)
