First Amendment Freedoms

Question 1

Establishment clause

Answer 1

Strict scrutiny applies when govt program prefers one religion over another.
Three part lemon test for congressional legislation
1. Secular legislative purpose,
2. Principle effect or purpose of legislation must neither advance nor inhibit religion, and
3. Must not foster an excessive govt entanglement with religion.

Question 2

Free exercise clause

Answer 2

Person’s religious beliefs are absolutely protected.
Govt can’t place burden or deny benefits based on religion.
State can regulate an activity generally, even if it will effect religious practice, if there is a compelling state interest and a narrowly tailored means.

Question 3

Freedom of expression

Answer 3

Includes speech, press, assembly, and petition.
Must pass strict scrutiny.
Applies to states via 14th A.
Govt cannot censor all categories of speech or engage in content based discrimination.
statute that prohibits both protected and unprotected speech is too broad. Found to chill free speech.

Question 4

Regulation of conduct

Answer 4

If a law regulating conduct creates an incidental burden on speech, it is ok if it furthers an important or substantial govt interest unrelated to suppression of speech and the restriction is least possible to further that interest.

Question 4

Fighting words

Answer 4

Speech must be more than annoying or offensive and must be likelihood of inciting imminent violence.

Question 5

Unprotected speech

Answer 5

Speech that advocates imminent lawless action and is likely to incite such action.
ie. Fighting words, hostile audience speech, obscene speech, or defamatory speech.

Question 7

Obscene speech

Answer 7

Miller test to determine

1. Average person applying contemporary community standards could find the work appeals to prurient interests. (Not national standard).
2. Work depicts in a patently offensive way sexual conduct as defined by state law.
3. Work lacks literary, artistic, political, or scientific value.
   * but child porn does not need to pass this test to be unprotected.

Question 8

Defamatory speech

Answer 8

Where subject is public figure or official or involves a matter of public concern, defamation plus actual malice (ie knowledge that it is false)
For private person, but public concern, P must prove negligence about falsity.

Question 9

Commercial speech

Answer 9

Protected if it is not false and not related to unlawful activity. 
Govt regulation must: 
1. Serve substantial govt interest, 
2. Directly advance that interest, and
3. Not be more extensive than necessary.

Question 10

Govt restraint on assembly

Answer 10

May place reasonable restraint on time, place, and manner if the focus is not on content but only conduct and reg must be:

1. Content neutral,
2. Narrowly tailored to serve a significant govt interest. and
3. Leave alternative channels of communication open.

Question 11

Assemble at non public forums

Answer 11

Reg must be viewpoint neutral and reasonably related to a legitimate interest.
* on military bases, jails, govt workplaces.

Question 12

Employment

Answer 12

Can’t be denied employment based on political beliefs except if high level policy making position.
* Unless employee is involved in organization with illegal aims and knows of those illegal aims.