First Amendment Freedoms

Question 1

Where a government program prefers one religion, or one religious sect, over others, what applies

Answer 1

strict scrutiny analysis

Question 2

The non-establishment clause kicks in

Answer 2

when there is a preference of one religion or religion generally

Question 3

Where the legislation or government program is neutral on its face, but benefits religion, the Supreme Court will follow the three-part

Answer 3

Lemon test: is the gov’t favoring religion or treating like other organizations

1. Statute must have a secular purpose
2. The primary effect must neither advance nor inhibit religion
3. cannot have excessive government entanglement with religion

Question 4

Constitutionality of school prayer

Answer 4

per se uncontitutional

Question 5

Constitutionality period of silence for prayer

Answer 5

unconstitutional because there is a religious motive

-probably just secular moment of silence is okay

Question 6

Constitutionality of 10 commandments in classroom

Answer 6

no

Question 7

Clergy giving prayers at graduation, constitutional

Answer 7

no

Question 8

Student led prayer at high school football game, constitutional?

Answer 8

no

Question 9

A religious club holding its meetings in a public school, constitutional

Answer 9

yes if there are a broad range of organizations using them

Question 10

Can a school require creationism be taught alongside evolution

Answer 10

no, cannot teach it as truth

Question 11

Can a city celebrate christmas?

Answer 11

Yes, if the religious symbols are surrounded with other symbols

Question 12

constitutionality of Placement of the Ten Commandments on the walls of courthouses is

Answer 12

unconstitutional, unless it surrounded by other monuments

Question 13

can a city grant a license permitting a private group to put up a cross in a city park near a statehouse

Answer 13

Yes, as long as open to others

Question 14

Delegation of authority to religious organizations is . . .

Answer 14

unconstitutional

Question 15

Tax deductions for religious institutions constitutionality depends upon

Answer 15

• can give them tax breaks if give the same breaks to the non-profits
• cannot go solely to religious organizations

Question 16

Government aid to religious schools; The state can provide money to both public and private schools for
(6)

Answer 16

Can aid if treating like a non-religious school and fund

1. provide bus fair
2. secular textbooks
3. standardized tests
4. lunch
5. library and media materials and computers
6. interpreters for deaf students

Question 17

Government aid to religious schools; The state cannot provide money

Answer 17

Directly fund religious instruction

1. no money for religious instruction
2. no money for secular teachers at religious schools (excessive entanglement)

Question 18

If a tax deduction is given to all parents based on actual expenditures for children attending any public, private, or religious school, it will be

Answer 18

upheld

Question 19

A voucher program that allows parents to send their children to parochial or religious schools with state aid instead of to failed public schools is allowed because aid is

Answer 19

upheld

Question 20

Where an individual’s conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if

Answer 20

the regulation is neutral in respect to religion and is of general applicability.

Question 21

The free exercise clause protects

Answer 21

Belief

Question 22

Courts can decide what in respect to religious beliefs?

Answer 22

The sincerity of beliefs

Question 23

If a government has a general law that burdens religious activity, who wins?

Answer 23

The government if not meant to discriminate against religion.

Question 24

Who wins on a religious regulation?

Answer 24

1. if belief, citizen wins

2. if conduct, and does not single out, the gov’t wins

Question 25

Freedom of Expression general principle?

Answer 25

1st amendment stops the government from distorting the marketplace of ideas; especially with political speech

Question 26

What test is applied for freedom of expression regulations?

Answer 26

strict scrutiny if it engages in content-based discrimination

Question 27

What is the exception to content-based discrimination? | 5

Answer 27

1. it passes strict scrutiny (child pornography) 2. Unprotected or low value speech 3. government as speaker 4. conduct regulation 5. time place and manner regulation

Question 28

Unprotected and low-value Speech test

Answer 28

rational basis review

Question 29

Unprotected Speech is | 5

Answer 29

1. Hostile audience 2. Unlawful advocacy 3. Obscene Speech 4. Fighting Words 5. Defamatory Speach

Question 30

Unlawful advocacy occurs when | 2

Answer 30

1. speaker intends to bring about imminent unlawful action | 2. will actually bring about

Question 31

Fighting words test | 3

Answer 31

words that are likely to provoke an immediate violent reaction 1. direct personal insult 2. ban on fighting words cannot be vague or overboard 3. statutes is not to punish certain viewpoints

Question 32

Hostile audience speech is

Answer 32

when words will incite a crowd reaction to harm the speaker -first action must be to protect the speaker

Question 33

For speech to be considered obscene, a three-part test must be satisfied:

Answer 33

1. the work appeals to sexual interests 2. the work depicts or describes in a patently offensive way sexual conduct specifically defined by state law (must say what you cannot show) 3. work taken as a whole lacks serious artistic, literary, political, or scientific value

Question 34

When the plaintiff is a private person and the subject of the defamatory statement is a matter of purely private concern, what must be shown?

Answer 34

Okay, constitutional to bar, strict liability

Question 35

When the plaintiff is a private person and the subject of the defamatory statement is a matter of public concern: then what must the law require

Answer 35

Negligence | ≠ strict liability

Question 36

When the plaintiff is a public official or public figure, the plaintiff must prove the state law requirements of defamation, plus

Answer 36

Must show actual malice defined as knowledge of the falsity or reckless disregard of the truth or falsity of the statement

Question 37

When can defamatory speech not completely be regulated by a state?

Answer 37

where the plaintiff is either a 1. public official or public figure, or, 2. where the defamatory statement involves a matter of public concern

Question 38

If a private plaintiff suing a media defendant for false-light invasion of privacy, concerning a matter of public interest:

Answer 38

Must show actual malice defined as knowledge of the falsity or reckless disregard of the truth or falsity of the statement

Question 39

Commercial speech is unprotected if

Answer 39

1. it is false | 2. it is unlawful

Question 40

If commercial speech is not false nor unlawful, when may it be regulated? (3)

Answer 40

It serves a substantial governmental interest; Directly advances that interest; and, Not more extensive than necessary to serve that interest

Question 41

Commercial speech that a state cannot ban | 3

Answer 41

2) A state cannot place a ban on the advertisement of drug prices. 3) A state cannot prohibit attorneys from advertising legal services. 4) States cannot ban all advertising for legal products.

Question 42

Commercial speech that a state can ban | 2

Answer 42

1. lawyers from soliciting client in person | 2. commercial billboards

Question 43

When can indecent speech be regulated? | 3

Answer 43

When the regulation is based upon secondary effects 1. there is a substantial gov't interest + 2. reasonable alternative channels

Question 44

A law which regulates conduct, creating an incidental burden on speech, is allowable if

Answer 44

1. regulation furthers an important interest that is unrelated to the speech; and, 2. there is no greater burden than necessary to serve the interest

Question 45

A three-part test is used to determine the constitutionality of time, place, manner, regulation of speech and assembly in public places. The regulation must: (3)

Answer 45

1. regulation must be content neutral; 2. the regulation must be narrowly tailored to serve and important government interest; 3. it must leave open alternative channels

Question 46

Speech-related activities at non-public forums, such as military bases, jails, government workplaces, and mailboxes can be regulated by viewpoint-neutral regulations. The test used by the Court requires a government regulation to be:

Answer 46

1. viewpoint neutral; | 2. reasonably related to a government interest

Question 47

With respect to oath requirements for public entry: | the government can require (2)

Answer 47

support the constitution or oppose legal overthrow

Question 48

Public employees may be disciplined or fired for speech if:

Answer 48

1. not on a matter of public concern | 2. if on public concern, if it is potentially disruptive of the workplace

Question 49

Public school children can be disciplined for speech if:

Answer 49

potentially disruptive

Question 50

Prisoners’ speech rights may be restricted if the regulation is

Answer 50

rationally related to a legitimate penal objective

Question 51

What is a prior restraint?

Answer 51

government blocks speech before it is uttered | -strong presumption against

Question 52

Exceptional cases in which prior restraints are allowed: | 2

Answer 52

1. military classification | 2. employee writing pre publicaiton review

Question 53

The Supreme Court required trial judges to consider three factors in determining if a restraining order against pretrial publicity is appropriate (gag order)

Answer 53

1. nature of pre trial publicity 2. availability of adequate alternatives 3. likely effectiveness of the restraining order

Question 54

Pretrial gag orders are usually unconstitutional if there are alternative means to prevent pollution of the jury pool (3)

Answer 54

1. voire dire 2. post ponment 3. change of venue

Question 55

The Court has held that statutes requiring films to be submitted to a Board of Censors before showing them are constitutional if the following requirements are met: (4)

Answer 55

1. narrow and reasonable standards 2. immediate injuction 3. burden on the censor to prove obscenity 4. prompt ruling on the obscentiy of the film

Question 56

When a state has the power to regulate an area dealing with free speech, it must do so in a way that is (2)

Answer 56

narrow + specific

Question 57

The following statutes have been ruled “void for vagueness” under due process inquiries: (2)

Answer 57

1. contemptuously | 2. subversives

Question 58

The state is permitted, under the Due Process Clause, to inquire into the qualifications and fitness of candidates for admission to the bar.

Answer 58

1. cannot be denied for membership to communist party 2. must answer questions 3. must take an oath.

Question 59

Overbreadth is an exception to

Answer 59

third party standing

Question 60

What are the rights of press under the first amendment

Answer 60

There are no special rights

Question 61

In general, radio and television broadcasting rights

Answer 61

can be more closely regulated because the government is facilitating

Question 62

The protection offered for cable tv

Answer 62

in-between broadcasting tv and a person

Question 63

content neutral regulation on cable tv gets what test

Answer 63

intermediate scrutiny

Question 64

What is a public form?

Answer 64

A place where the public generally goes and talks (parks and sidewalks) -unrestricted access

Question 65

When can a newspaper publish offensive information?

Answer 65

When it is truthful and newsworthy.

Question 66

Checklist for con law

Answer 66

1. Is there jurisdiction? 2. Is there state action? 3. State or Fed 3a. if fed: does it have the power to do it 3b. if state: is there an individual right that constrains state action

Question 67

Is the appointment of religious members to government offices unconstitutional?

Answer 67

No, it is not a per se violation of the establishment clause. More factors could indicate that it is

Question 68

What is the constitutionality of applicable laws that do not regulate speech directly (contract laws) but could have an effect speech?

Answer 68

They do not offend the first amendment

Question 69

Any law that purposefully interferes with conduct because it is dictated by religion will be examined under what test?

Answer 69

Strict Scrutiny

Question 70

When can a speaker be convicted for incitement? | 3

Answer 70

1. They intend to produce lawbreaking that is 2. imminent; and, 3. likely

Question 71

How can a city suppress speech through the hostile audience rule? What must it be more than?

Answer 71

Through a Regulation + that surpasses speech that elicits an immediate violent response against the speaker by the audience Must be > "may induce a provocation or violent reaction"

Question 72

The government may give to post-secondary schools with religious teachings so long as?

Answer 72

So long as the primary purpose and effect of the funding is non-religious

Question 73

Can the state bar prevent other associations from recommending lawyers to their members?

Answer 73

No, it is no ambulance chasing or the unauthorized practice of law.

Question 74

A regulation on content gets what type of scrutiny?

Answer 74

Strict scrutiny

Question 75

When is a a licensing/permit statute void on it's face? (3) What is the effect?

Answer 75

Can be facially void for: 1. Vagueness; 2. Overbreadth 3. Unfettered discretion The effect is that a ∆ need not apply for a permit