First Amendment Freedoms Flashcards
Freedom of Religion & Separation of Church and State
The 1st Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Also applies to states through the 14th Amendment.
Establishment Clause (Discriminatory Legislation)
Laws that prefer one religion or religious sect over others invoke strict scrutiny.
Establishment Clause (Neutral Legislation)
Where legislation or gov program is neutral on its face the court will apply the Lemon test:
- the statute must have a secular legislative purpose
- the principal or primary effect or purpose must neither advance nor inhibit religion; and
- the statute must not foster an excessive gov entanglement with religion
Public Schools: Common Activities that Are Prohibited
- School Prayer
- Posting Ten Commandments on the walls of classrooms
- Prayer before a high school football game
- Rabbi/other cleric to conduct a non-demoninational prayer as part of a graduation ceremony
- However, religious clubs on school grounds are permitted.
Delegation of Authority to Religious Organizations
Is unconstitional
Tax Deductions for Religious Institutions
Tax exemptions for religious institutions will be upheld if the org. are treated the same as other non-profits. But tax exemptions only available to religious organizations will violate the Establishment Clause.
Government Aid to Religious Schools
Providing general funds such as bus fare to both public and religious schools is generally permissible. However, states cannot give money:
- to be used directly for religious instruction; or
- to religious secondary schools - even for the salaries of teachers of secular subjects because of the risk of “excessive government entanglement” (does not apply to universities).
Funding for Religious Colleges & Universities
The U.S. SC has upheld grants of public funding for religious colleges and universities when the funds are used for non-religious purposes.
Nondenominational Legislative Prayers
Do not violate the establishment clause.
Free Exercise Clause
A person’s religious beliefs are absolutely protected. The government may not punish an individual by denying benefits or imposing burdens based on religious belief.
Rule for Free Exercise Clause
Where an individual’s conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if the regulation is “neutral in respect to religion and is of general applicability.”
Cases That Have Been Held to Violate the Free Exercise Clause
- The state can’t deny unemployment compensation benefits to a person whose religious faith commands the observance of Saturday as the Sabbath.
- The state can’t require Amish children to attend high school.
Free Exercise Clause: Inquiry Into Beliefs
-The Free Exercise Clause prohibits inquiring into the truth or falsity of a person’s religious beliefs. However, the gov. can look into the sincerity of a person’s professed religious beliefs
Freedom of Expression
Prohibits Congress from making a law that abridges:
- freedom of speech
- freedom of press
- the right of the people peaceably to assemble
- the right of people to petition the government for a redress of grievances
Standard of Review For Restrictions of Speech
-SS applies when the government engages in content-based discrimination
Exceptions to Strict Scrutiny
Include:
- Child pornography
- Unprotected or low-value speech
- Government as speaker
- Content-neutral conduct regulation
- Content-neutral time, place, and manner regulation
Unprotected and Low-Value Speech
A regulation that relates to unprotected speech must pass the rational basis test. Include:
- speech that advocates violence or unlawful action
- fighting words
- hostile audience speech
- obscene speech
- defamatory speech
Unprotected Speech: Speech that Advocates Violence or Unlawful Action
Speech that is:
- directed to inciting or producing imminent lawless action, and
- is likely to incite or produce such action
Unprotected Speech: Fighting Words
Words likely to incite an ordinary citizen to commit acts of immediate physical retaliation may be punished. Must be a direct personal insult (cannot be merely annoying or offensive or directed to general public).
Fighting Words Statutes
That are designed to punish certain viewpoints are unconstitutional
Unprotected Speech: Hostile Audience Speech
Speech which elicits an immediate violent response from the audience may be prosecuted (e.g. disturbing police). However, the police must make a reasonable effort to protect the speaker.
Unprotected Speech: Obscene Speech
Obscene speech is speech that:
- the average person applying local contemporary community standards would find that the speech invokes prurient interest
- the work depicts or describes in a patently offensive way, sexual conduct that is specifically defined by state law; and
- the work, taken as a whole lacks serious literary, artistic, political, or scientific value
Defamatory Speech
- Private P + matter of private concern –> P does not need to prove malice or negligence
- Private P + matter of public concern –> P must prove negligence about the truth of falsity of the statement
- Public official/figure P + matter of public or private concern –> P must show actual malice
When Private Persons Sue Media for False-Light Invasion of Privacy Concerning Matter of Public Interest
A newspaper or broadcaster cannot be held liable for publishing truthful information obtained from the public record. Any newsworthy and true information is also protected.
Low-Value Speech: Commercial Speech
- Is not protected if false or deceptive or if it relates to an unlawful activity.
- If these flaws are not present the commercial speech is protected.
Test for Commercial Speech
Government regulation must:
- serve a substantial governmental interest
- directly advance the substantial governmental interest
- not be more extensive than is necessary to serve that interest
Examples of Permissible Regulation of Commercial Speech
Include:
- Discipline lawyers for in-person solicitation of clients for personal gain because of the potential for overreaching
- Prohibit commercial billboards
Examples of Impermissible Regulation of Commercial Speech
- Bans on advertisement of drug prices
- Prohibitions of attorneys from advertising legal services.
Low-Value Speech: Sexual or Indecent Speech
Secondary-effects regulations must serve a substantial government interest and leave open reasonable alternative channels of communication
Government as Speaker
Where the government is the speaker (not a private actor), the government may say what it wants
Conduct Regulation
Laws that regulate conduct and create an incidental burden on speech are allowed if:
- the regulation furthers an important or substantial gov interest that is unrelated to the suppression of free expression; and
- the incidental restriction on speech is no greater than is necessary to further that interest
- e.g. - Restricting people from burning their draft cards.
Public Forums: Time, Place, Manner
The gov may place reasonable restraints on the time, place, and manner of speech in public forums, such as streets, sidewalks, and parks – places historically associated with expressive conduct.
Req. for Public Forum Regulations
The regulation must:
- be content neutral, as to both SM and viewpoint
- be narrowly tailored to serve an important gov. interest
- and leave open alt. channels of communication
Common Permissible Regulation of Public Forums
- req. for large gatherings to get a permit to use public property
- restrict the volume and hours of amplifiers
Impermissible Regulation
- req. for parades or marches to pay for police protection
- enact a complete ban on door-to-door solicitation
Non-Public Forums
Include:
- military bases
- jails
- government
- workplaces
- mailboxes
Test for Non-Public Forums
Can be regulated by viewpoint-neutral regulations.
Common Permissible Regulations of Non-Public Forums
- Prohibitions on demonstrations on jailhouse grounds
- Close military bases to political speeches and leaflet distribution
- Regulate speech in gov. workplaces
- Sell commercial advertising on a city bus but refuse to sell such space for political advertising
Public Employment Rule
Under the First Amendment, an individual cannot be denied public employment based upon membership in a political org., unless the position is a high-level policy-making position.
Exceptions to the Public Employment Rule
- The individual:
- is an active member of a subversive org. (seeking to overthrow gov.); and
- has knowledge of the illegal aims of the org.; and
- has a specific intent to further those illegal aims
Termination of Public Employees
Allowed if:
- Speech is not a matter of public concern; or
- Speech is potentially disruptive to the workplace
Student Speech
School children can be disciplined for speech that is potentially disruptive.
Compelled Student Speech?
A state may not compel public school students to make an affirmation of political or religious belief, such as a compulsory flag statute.
Prisoner Speech
Can be restricted by a regulation that is rationally related to a legitimate penological objective.
Prior Restraint Rule
Generally, the government cannot suppress or restrain speech in advance of its publication or utterance (presumption of illegality)
Exceptions to the Prior Restraint Rule
- Classified military information
- A gov. agency can require prepublication review of writings related to employment of past or present employees where such a review is necessary to protect national security
Overbreadth
When a state has the power to regulate an area dealing with free speech, it must do so in a way that is narrow and specific and not overly broad so as to have a chilling effect upon protected speech.
Vagueness
Governmental regulations must be drawn “with narrow specificity” and not vague.
Pretrial Gag Orders
Important Factors include:
- nature and extent of pretrial publicity
- availability of other measures to mitigate the effects of pretrial publicity; and
- the likely effectiveness of the restraining order
Pretrial Gag Order: Alt.
Gag orders are usually unconstitutional if there are alt. means to prevent pollution of the jury pool, such as:
- careful voir dire of jury
- a change of venue; or
- postponement of the trial
Rights of the Press
The press has no greater freedom to speak than an ordinary member of the public.
Newsman’s Privilege?
A newsperson has no 1st Amendment right to refuse to testify before a grand jury
Regulation of Broadcasting
In generally, radio and television broadcasting can be more closely regulated than the print media or a private individual because they have a license from the gov. and are exercising a privilege the gov gives them.
Right Not to Speak or Express POV of Gov?
A state cannot enforce an individual to be an instrument of an ideological POV with which he disagrees
