First Amendment Freedoms Flashcards
Where a government program prefers one religion, or one religious sect, over others, what applies
strict scrutiny analysis
The non-establishment clause kicks in
when there is a preference of one religion or religion generally
Where the legislation or government program is neutral on its face, but benefits religion, the Supreme Court will follow the three-part
Lemon test: is the gov’t favoring religion or treating like other organizations
- Statute must have a secular purpose
- The primary effect must neither advance nor inhibit religion
- cannot have excessive government entanglement with religion
Constitutionality of school prayer
per se uncontitutional
Constitutionality period of silence for prayer
unconstitutional because there is a religious motive
-probably just secular moment of silence is okay
Constitutionality of 10 commandments in classroom
no
Clergy giving prayers at graduation, constitutional
no
Student led prayer at high school football game, constitutional?
no
A religious club holding its meetings in a public school, constitutional
yes if there are a broad range of organizations using them
Can a school require creationism be taught alongside evolution
no, cannot teach it as truth
Can a city celebrate christmas?
Yes, if the religious symbols are surrounded with other symbols
constitutionality of Placement of the Ten Commandments on the walls of courthouses is
unconstitutional, unless it surrounded by other monuments
can a city grant a license permitting a private group to put up a cross in a city park near a statehouse
Yes, as long as open to others
Delegation of authority to religious organizations is . . .
unconstitutional
Tax deductions for religious institutions constitutionality depends upon
- can give them tax breaks if give the same breaks to the non-profits
- cannot go solely to religious organizations
Government aid to religious schools; The state can provide money to both public and private schools for
(6)
Can aid if treating like a non-religious school and fund
- provide bus fair
- secular textbooks
- standardized tests
- lunch
- library and media materials and computers
- interpreters for deaf students
Government aid to religious schools; The state cannot provide money
Directly fund religious instruction
- no money for religious instruction
- no money for secular teachers at religious schools (excessive entanglement)
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
upheld
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
upheld
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.
The free exercise clause protects
Belief
Courts can decide what in respect to religious beliefs?
The sincerity of beliefs
If a government has a general law that burdens religious activity, who wins?
The government if not meant to discriminate against religion.
Who wins on a religious regulation?
- if belief, citizen wins
2. if conduct, and does not single out, the gov’t wins
Freedom of Expression general principle?
1st amendment stops the government from distorting the marketplace of ideas; especially with political speech
What test is applied for freedom of expression regulations?
strict scrutiny if it engages in content-based discrimination
What is the exception to content-based discrimination?
5
- it passes strict scrutiny (child pornography)
- Unprotected or low value speech
- government as speaker
- conduct regulation
- time place and manner regulation
Unprotected and low-value Speech test
rational basis review
Unprotected Speech is
5
- Hostile audience
- Unlawful advocacy
- Obscene Speech
- Fighting Words
- Defamatory Speach
Unlawful advocacy occurs when
2
- speaker intends to bring about imminent unlawful action
2. will actually bring about
Fighting words test
3
words that are likely to provoke an immediate violent reaction
- direct personal insult
- ban on fighting words cannot be vague or overboard
- statutes is not to punish certain viewpoints
Hostile audience speech is
when words will incite a crowd reaction to harm the speaker
-first action must be to protect the speaker
For speech to be considered obscene, a three-part test must be satisfied:
- the work appeals to sexual interests
- the work depicts or describes in a patently offensive way sexual conduct specifically defined by state law (must say what you cannot show)
- work taken as a whole lacks serious artistic, literary, political, or scientific value
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?
Okay, constitutional to bar, strict liability
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
Negligence
≠ strict liability
When the plaintiff is a public official or public figure, the plaintiff must prove the state law requirements of defamation, plus
Must show actual malice
defined as knowledge of the falsity or reckless disregard of the truth or falsity of the statement
When can defamatory speech not completely be regulated by a state?
where the plaintiff is either a
- public official or public figure, or,
- where the defamatory statement involves a matter of public concern
If a private plaintiff suing a media defendant for false-light invasion of privacy, concerning a matter of public interest:
Must show actual malice
defined as knowledge of the falsity or reckless disregard of the truth or falsity of the statement
Commercial speech is unprotected if
- it is false
2. it is unlawful
If commercial speech is not false nor unlawful, when may it be regulated?
(3)
It serves a substantial governmental interest;
Directly advances that interest; and,
Not more extensive than necessary to serve that interest
Commercial speech that a state cannot ban
3
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.
Commercial speech that a state can ban
2
- lawyers from soliciting client in person
2. commercial billboards
When can indecent speech be regulated?
3
When the regulation is based upon secondary effects
1. there is a substantial gov’t interest
+
2. reasonable alternative channels
A law which regulates conduct, creating an incidental burden on speech, is allowable if
- regulation furthers an important interest that is unrelated to the speech; and,
- there is no greater burden than necessary to serve the interest
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)
- regulation must be content neutral;
- the regulation must be narrowly tailored to serve and important government interest;
- it must leave open alternative channels
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:
- viewpoint neutral;
2. reasonably related to a government interest
With respect to oath requirements for public entry:
the government can require (2)
support the constitution
or
oppose legal overthrow
Public employees may be disciplined or fired for speech if:
- not on a matter of public concern
2. if on public concern, if it is potentially disruptive of the workplace
Public school children can be disciplined for speech if:
potentially disruptive
Prisoners’ speech rights may be restricted if the regulation is
rationally related to a legitimate penal objective
What is a prior restraint?
government blocks speech before it is uttered
-strong presumption against
Exceptional cases in which prior restraints are allowed:
2
- military classification
2. employee writing pre publicaiton review
The Supreme Court required trial judges to consider three factors in determining if a restraining order against pretrial publicity is appropriate (gag order)
- nature of pre trial publicity
- availability of adequate alternatives
- likely effectiveness of the restraining order
Pretrial gag orders are usually unconstitutional if there are alternative means to prevent pollution of the jury pool
(3)
- voire dire
- post ponment
- change of venue
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)
- narrow and reasonable standards
- immediate injuction
- burden on the censor to prove obscenity
- prompt ruling on the obscentiy of the film
When a state has the power to regulate an area dealing with free speech, it must do so in a way that is
(2)
narrow
+
specific
The following statutes have been ruled “void for vagueness” under due process inquiries:
(2)
- contemptuously
2. subversives
The state is permitted, under the Due Process Clause, to inquire into the qualifications and fitness of candidates for admission to the bar.
- cannot be denied for membership to communist party
- must answer questions
- must take an oath.
Overbreadth is an exception to
third party standing
What are the rights of press under the first amendment
There are no special rights
In general, radio and television broadcasting rights
can be more closely regulated because the government is facilitating
The protection offered for cable tv
in-between broadcasting tv and a person
content neutral regulation on cable tv gets what test
intermediate scrutiny
What is a public form?
A place where the public generally goes and talks
(parks and sidewalks)
-unrestricted access
When can a newspaper publish offensive information?
When it is truthful and newsworthy.
Checklist for con law
- Is there jurisdiction?
- Is there state action?
- 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
Is the appointment of religious members to government offices unconstitutional?
No, it is not a per se violation of the establishment clause.
More factors could indicate that it is
What is the constitutionality of applicable laws that do not regulate speech directly (contract laws) but could have an effect speech?
They do not offend the first amendment
Any law that purposefully interferes with conduct because it is dictated by religion will be examined under what test?
Strict Scrutiny
When can a speaker be convicted for incitement?
3
- They intend to produce lawbreaking that is
- imminent; and,
- likely
How can a city suppress speech through the hostile audience rule? What must it be more than?
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”
The government may give to post-secondary schools with religious teachings so long as?
So long as the primary purpose and effect of the funding is non-religious
Can the state bar prevent other associations from recommending lawyers to their members?
No, it is no ambulance chasing or the unauthorized practice of law.
A regulation on content gets what type of scrutiny?
Strict scrutiny
When is a a licensing/permit statute void on it’s face? (3)
What is the effect?
Can be facially void for:
- Vagueness;
- Overbreadth
- Unfettered discretion
The effect is that a ∆ need not apply for a permit
