First amendment- free speech Flashcards
What is the test for freedom of speech/ Assembly?
generally, weigh importance of rights of speech and assembly against interests or policies sought to be served by the regulation
what are first amendment protections? (FAR)
prohibits congress from establishing a religion or interfering with the exercise of religion, abridging the freedom of speech or press, or interfering with right of the people to assemble
FreeSpeech
Assembly
Religion
What does the free speech clause restrict?
government regulation of private speech
(it does not require government to aid private speech nor restrict government from expressing its views) (note for exam, if you see this, may be limited by establishment clause or equal protection clause)
government speech is upheld if rationally related to legitimate state interest
what is a limitation to the free speech restriction of government regulation of private speech?
spending programs may not impose conditions that limit first amendment activities of fund recipients outside of the scope of the spending program itself
ex. government can prohibit use of funds to advocate for or support abbortion, but could not require recipients of federal funds given to combat aids to agree that they oppose prostitution.
True or false:
a regulation seeking to forbid conduct is less likely to be upheld than a regulation of content
false. a regulation seeking to forbid communication of specific ideas (content) is less likely to be upheld than a regulation of the conduct incidental to speech.
May the government place burdens on speech due to its content?
no. to justify such content based regulation of speech, the government must show that the regulation (tax) is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.
when may the government place burdens (taxes) on speech due to its content?
when the regulation (tax) is
- necessary
- compelling interest is served
- regulation is narrowly tailed to serve the interest
what categories of speech are not protected?
Obsencity defemation "fighting words" still less likely to uphold prior restraint (prohibiting speech before it occurs) than a punishment for speech that has already occurred *falsity doesn't make it unprotected
what level of scrutiny does content based regulation receive?
STRICT SCRUTINY
what level of scrutiny does content neutral speech regulation get?
INTERMEDIATE SCRUTINY
the regulation will be upheld when government can show that
they advance IMPORTANT interests unrellated to suppression of speech
AND
they do NOT BURDEN SUBSTANTIALLY MORE SPEECH than needed OR are narrowly tailored to further those interests
what, on an exam, should trigger a freedom of speech analysis
a government regulation which seems to limit or burden content or conduct related to speech.
what is the test for regulating conduct related to speech
it may adopt content neutral time, place, and manner regulations. Regulations involving public forums must be Narrowly tailored to achieve an important government interest (i.e. prohibiting demonstration in hospital zone)
regulations involving non public forums must have reasonable relationship to legitimate regulatory purpose (law prohibiting billboards for purposes of traffice safety)
What is the analysis for freedom of speech in a school speech case?
While speech related activities of students in schools are not without some constitutional protection, they are also not unlimited and are subject to LEGITIMATE EDUCATIONAL RESTRICTION by SCHOOL AUTHORITIES when they interfere with school policy or with the legitimate educational mission of the school.
- Did speech in question incur inside or outside of school, thus, could it be considered a school sponsored activity
- Did message violate a school policy or interfere with the educational mission of school?
does an employee of the state lose her free speech rights?
no. however, rights as a public employee to speak freely are not as broad as the scope of the right of a citizen not otherwise employed in the public sector. Individuals right to free speech must be balanced against states interest in efficiently performing state functions.
anaylisis of state workers free speech
- does speech relate to matter of public concern?
- if so, can the government show that its interest in efficiently delivering public services outweigh the employee’s free speech rights?
- Can government justify its action (of firing) by asserting that a negative employment decision would have been reached for reasons unrelated to speech.
