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Constitutional Law > First Amendment Freedoms > Flashcards

First Amendment Freedoms Flashcards

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1
Q

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

A

strict scrutiny analysis

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2
Q

The non-establishment clause kicks in

A

when there is a preference of one religion or religion generally

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3
Q

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

A

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
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4
Q

Constitutionality of school prayer

A

per se uncontitutional

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5
Q

Constitutionality period of silence for prayer

A

unconstitutional because there is a religious motive

-probably just secular moment of silence is okay

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6
Q

Constitutionality of 10 commandments in classroom

A

no

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7
Q

Clergy giving prayers at graduation, constitutional

A

no

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8
Q

Student led prayer at high school football game, constitutional?

A

no

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9
Q

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

A

yes if there are a broad range of organizations using them

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10
Q

Can a school require creationism be taught alongside evolution

A

no, cannot teach it as truth

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11
Q

Can a city celebrate christmas?

A

Yes, if the religious symbols are surrounded with other symbols

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12
Q

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

A

unconstitutional, unless it surrounded by other monuments

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13
Q

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

A

Yes, as long as open to others

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14
Q

Delegation of authority to religious organizations is . . .

A

unconstitutional

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15
Q

Tax deductions for religious institutions constitutionality depends upon

A
  • can give them tax breaks if give the same breaks to the non-profits
  • cannot go solely to religious organizations
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16
Q

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

A

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
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17
Q

Government aid to religious schools; The state cannot provide money

A

Directly fund religious instruction

  1. no money for religious instruction
  2. no money for secular teachers at religious schools (excessive entanglement)
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18
Q

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

A

upheld

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19
Q

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

A

upheld

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20
Q

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

A

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

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21
Q

The free exercise clause protects

A

Belief

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22
Q

Courts can decide what in respect to religious beliefs?

A

The sincerity of beliefs

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23
Q

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

A

The government if not meant to discriminate against religion.

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24
Q

Who wins on a religious regulation?

A
  1. if belief, citizen wins

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

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25
Q

Freedom of Expression general principle?

A

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

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26
Q

What test is applied for freedom of expression regulations?

A

strict scrutiny if it engages in content-based discrimination

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27
Q

What is the exception to content-based discrimination?

5

A
  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
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28
Q

Unprotected and low-value Speech test

A

rational basis review

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29
Q

Unprotected Speech is

5

A
  1. Hostile audience
  2. Unlawful advocacy
  3. Obscene Speech
  4. Fighting Words
  5. Defamatory Speach
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30
Q

Unlawful advocacy occurs when

2

A
  1. speaker intends to bring about imminent unlawful action

2. will actually bring about

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31
Q

Fighting words test

3

A

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
32
Q

Hostile audience speech is

A

when words will incite a crowd reaction to harm the speaker

-first action must be to protect the speaker

33
Q

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

A
  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
34
Q

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?

A

Okay, constitutional to bar, strict liability

35
Q

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

A

Negligence

≠ strict liability

36
Q

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

A

Must show actual malice

defined as knowledge of the falsity or reckless disregard of the truth or falsity of the statement

37
Q

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

A

where the plaintiff is either a

  1. public official or public figure, or,
  2. where the defamatory statement involves a matter of public concern
38
Q

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

A

Must show actual malice

defined as knowledge of the falsity or reckless disregard of the truth or falsity of the statement

39
Q

Commercial speech is unprotected if

A
  1. it is false

2. it is unlawful

40
Q

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

A

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

41
Q

Commercial speech that a state cannot ban

3

A

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.

42
Q

Commercial speech that a state can ban

2

A
  1. lawyers from soliciting client in person

2. commercial billboards

43
Q

When can indecent speech be regulated?

3

A

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

44
Q

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

A
  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
45
Q

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)

A
  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
46
Q

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:

A
  1. viewpoint neutral;

2. reasonably related to a government interest

47
Q

With respect to oath requirements for public entry:

the government can require (2)

A

support the constitution
or
oppose legal overthrow

48
Q

Public employees may be disciplined or fired for speech if:

A
  1. not on a matter of public concern

2. if on public concern, if it is potentially disruptive of the workplace

49
Q

Public school children can be disciplined for speech if:

A

potentially disruptive

50
Q

Prisoners’ speech rights may be restricted if the regulation is

A

rationally related to a legitimate penal objective

51
Q

What is a prior restraint?

A

government blocks speech before it is uttered

-strong presumption against

52
Q

Exceptional cases in which prior restraints are allowed:

2

A
  1. military classification

2. employee writing pre publicaiton review

53
Q

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

A
  1. nature of pre trial publicity
  2. availability of adequate alternatives
  3. likely effectiveness of the restraining order
54
Q

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

A
  1. voire dire
  2. post ponment
  3. change of venue
55
Q

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)

A
  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
56
Q

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

A

narrow
+
specific

57
Q

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

A
  1. contemptuously

2. subversives

58
Q

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

A
  1. cannot be denied for membership to communist party
  2. must answer questions
  3. must take an oath.
59
Q

Overbreadth is an exception to

A

third party standing

60
Q

What are the rights of press under the first amendment

A

There are no special rights

61
Q

In general, radio and television broadcasting rights

A

can be more closely regulated because the government is facilitating

62
Q

The protection offered for cable tv

A

in-between broadcasting tv and a person

63
Q

content neutral regulation on cable tv gets what test

A

intermediate scrutiny

64
Q

What is a public form?

A

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

-unrestricted access

65
Q

When can a newspaper publish offensive information?

A

When it is truthful and newsworthy.

66
Q

Checklist for con law

A
  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
67
Q

Is the appointment of religious members to government offices unconstitutional?

A

No, it is not a per se violation of the establishment clause.

More factors could indicate that it is

68
Q

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

A

They do not offend the first amendment

69
Q

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

A

Strict Scrutiny

70
Q

When can a speaker be convicted for incitement?

3

A
  1. They intend to produce lawbreaking that is
  2. imminent; and,
  3. likely
71
Q

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

A

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”

72
Q

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

A

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

73
Q

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

A

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

74
Q

A regulation on content gets what type of scrutiny?

A

Strict scrutiny

75
Q

When is a a licensing/permit statute void on it’s face? (3)

What is the effect?

A

Can be facially void for:

  1. Vagueness;
  2. Overbreadth
  3. Unfettered discretion

The effect is that a ∆ need not apply for a permit

Constitutional Law (9 decks)

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