First Amendment freedoms

Question 1

First Amendment - Establishment Clause & Lemon v. Kurtzman Test

Answer 1

Where a gov’t program prefers one religion or religious sect over others, SS analysis will be applied. Where the legislation or governmental program is neutral on its face, SCOTUS will follow the 3 part test under Lemon v. Kurtzman test.

Question 2

What are the Lemon v. Kurtzman factors?

Answer 2

Where the legislation or govrnment program contains no religious or sect preferences, SCOTUS will follow this 3 prong test, the failure of which will results in the act failing:1. Purpose - the statute must have a secular purpose2. Effect - the principal or primary effect or purpose must neither advance nor inhibit religion; and3. Entanglement - the statute must not foster an excessive gov’t entanglement with religion

Question 3

Religious Activities Conducted at Public Schools

Answer 3

As a general rule, religious activities conducted in public schools violate the Establishment Clause b/c their primary purpose is to promote religion

Question 4

What practices involving religion have been held invalid?

Answer 4

1. school prayer and bible reading is not considered neutral and is per se unconstitutional2. Posting the 10 commandments on the walls in public school classrooms3. Clergy given prayers at a high school graduation (the idea is that non-believers will feel like outsiders and not full members of the community if they do not participate.

Question 5

Does holding a meeting by a religious club in a public school violate the establishment clause?

Answer 5

No. This is true b/c the school has a secular purpose and the effect is not to advance religion. Also, there is no entanglement issue. The school is acting neutral and is not the primary actor in this.

Question 6

Anti-Evolution Laws in Public School Curriculum

Answer 6

Anti-evolution laws prohibiting the teaching of Darwinian principles in public school is unconstitutional

Question 7

Can a city include a creche in a X-Mas display in a park?

Answer 7

Yes, if it is for a secular purpose. The city is just celebrating a holiday. It is not religious.

Question 8

Can the 10 commandments be placed on walls of courthouses?

Answer 8

You cannot do this in a state courthouse. There is no secular purpose

Question 9

Can you post the 10 commandments as a monument along with many other monuments?

Answer 9

This is okay. If there are several monuments, then it is not singling out any one religion. The difference is that an objective observer would not perceive the 10 commandment posting as a governmental endorsement of religion.

Question 10

Sunday Closing laws

Answer 10

These are gov’t endorsement with only an incidental benefit to religion.

Question 11

Tax Deductions for Religious Institutions

Answer 11

General rule: if the state grants a property tax exemption for religious properties as well as other non-profits, then it is okay (as long as religion is being treated neutrally).

Question 12

Direct aid to parochial and elementary schools

Answer 12

Most gov’t programs providing direct aid to parochial elementary and high schools have been held to violate the Establishment Clause b/c they involve “excessive gov’t entanglement” with religion. However, providing aid to all elementary and secondary students have been held to pass the three prong test (Lemon test).

Question 13

For what can a state provide money to both public and private schools?

Answer 13

1. secular textbooks2. standardized secular exams3. bus transportation4. interpreters for deaf students 5. Tax deductions given to all parents based on actual expenditures for children attending any public, private or religious school6. Public health services (including lunch program)

Question 14

Providing public services through religious institutions

Answer 14

federal grants to church-affiliated hospitals for maintenance and care of indigents have been upheld. The gov’t chooses the religious institution b/c it believes it can do a great job at providing these services. It has nothing to do with the facts that they are religious.

Question 15

Free Exercise - what is the general rule?

Answer 15

A person’s religious beliefs are absolutely protected. The gov’t may not punish an individual by denying benefits or imposing burdens based on religious beliefs. The gov’t may not determine the truth or falsity of a person’s religious beliefs, but it may determine a person’s sincerity in his or her claim of religious belief, if necessary.

Question 16

Free Exercise - where conduct is motivated by an individual’s religious beliefs, how can a state regulate it?

Answer 16

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 generally applicability. Ex: Valid law - criminalizing possession of all peyote.

Question 17

The two fact patterns where religious motivated individual actions are excepted from the Employment Division v. Smith (peyote case) holding:

Answer 17

1. a state cannot deny unemployment compensation benefits to a person whose religious faith commands the observance of Saturday as the Sabbath2. Amish children must be exempt from a state law requiring all children to attend high school

Question 18

Freedom of Expression - General Rule

Answer 18

the government may neither censor all categories of speech nor engage in content based discrimination among different categories of speech . . with some exceptions

Question 19

Freedom of Expression - When will strict scrutiny be applied?

Answer 19

The gov’t will face SS if it engaged in content-based discrimination. This is the form of discrimination censorship would take. An even more obvious form of this is viewpoint discrimination (i.e., ordinance prohibiting political speech in the park; desecration of the american flag-can’t prohibit this; etc.)

Question 20

When can a state regulation Freedom of Expression? I.e., what are the exceptions to the general rule?

Answer 20

1. if the gov’t passes strict scrutiny (i.e., banning child porn)2. Conduct regulation (there’s a different test)3. Gov’t as speaker4. Unprotected speech5. Time, place and mannerThink: SoCo GUT

Question 21

Freedom of Expression - Conduct Regulation

Answer 21

A law which regulates conduct but creates an incidental burden on speech is allowable if:1. the regulation furthers an important or substantial gov’t interest that is unrelated to the suppression of free expression; and2. the incidental restriction on speech is no greater than is essential to the furtherance of that interestEx: Va v. Black: prohibition on cross-burning with the intent to intimidate is constitutional b/c it banned conduct (i.e., it banned cross burning done with the intent to intimidate).

Question 22

Freedom of Expression - Gov’t As Speaker

Answer 22

Where the speaker is the gov’t rather than a private actor, the gov’t may discriminate based on the content of the speech. Where the gov’t speaks, it may favor some views and disfavor othersEx: city may refuse to erect a permanent monument donated by private organizations in a public park - can discriminate b/c gov’t is the speaker in thisEx: gov’t may not discriminate private individuals or organizations from engaging in direct communications in a public park based on contentEx: city must allow KKK members to temporarily erect crosses on a public park when other groups have been able to erect other temporary installations

Question 23

Freedom of Expression - Unprotected Speech (Gen’l Rule)

Answer 23

A regulation which relates to unprotected speech only must pass the rational basis test

Question 24

Freedom of Expression - Unprotected Speech: what speech does it include? Think: Very Few Heroine Over-Doses (VFHOD)

Answer 24

1. Speech that advocates violence or unlawful action2. Fighting words3. Hostile audience speech4. Obscene speech5. Defamatory speech

Question 25

Freedom of Expression - Unprotected Speech-Speech that advocates Violence or Unlawful Action

Answer 25

States cannot regulate the advocacy of the use of force or of violation of law, EXCEPT WHERE SUCH ADVOCACY IS DIRECTED TO INCITING OR PRODUCING IMMINENT LAWLESS ACTION AND IS LIKELY TO INCITE OR PRODUCE SUCH ACTIONEx: a speaker who yells to a loud angry crowd to go smash the windows at Starbucks may be punishedEx: A speaker who yells to a loud crowd to go smash the windows at Starbucks at a later time may not be punishedEx: Va. law saying that cross burning is prima facie evidence of an intent to intimidate a person(s) is unconstitutional b/c of its indiscriminate coverage. However, a state law can ban cross burning done to intimidate. The state must prove the intent to intimidate.

Question 26

Freedom of Expression - Unprotected Speech: Fighting Words

Answer 26

Words that are likely to incite an ordinary citizenS to acts of IMMEDIATE physical retaliation may be punished.

Question 27

Fighting Words - what falls in this category?

Answer 27

speech must be more than annoying or offensive; THERE MUST BE A GENUINE LIKELIHOOD OF IMMINENT VIOLENCE BY A HOSTILE AUDIENCE.

Question 28

Vague “Fighting Words” statutes

Answer 28

these are subject to facial invalidity if the conduct prohibited is vague or overbroad

Question 29

Freedom of Expression - Unprotected Speech: Hostile Audience Speech

Answer 29

Speech which elicits an immediate violent response against the speaker by an audience may be grounds for prosecution. The police, however, must make reasonable efforts to protect the speaker, to guard against a “heckler’s veto” of unpopular speech

Question 30

Freedom of Expression - Unprotected Speech: Obscene Speech, Three Part Test

Answer 30

For speech to be considered obscene, a three-part test must be satisfied:1. it appeals to prurient interests (must use a local standard)2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and3. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (use a national standard)

Question 31

Freedom of Expression - Unprotected Speech: Defamatory Speech (generally)

Answer 31

Constitutional restrictions apply to a defamatory speech where the pf is either a public official or public figure, or where the defamatory statement involves a matter of public concern

Question 32

Defamatory Speech: pf is private person; matter is private concern

Answer 32

pf need not prove actual malice or negligence, and may recover according to common law defamation principles

Question 33

Defamatory Speech: pf is private person; matter is of public concern

Answer 33

pf need not prove actual malice, but must prove negligence about the truth or falsity of the statement

Question 34

Defamatory Speech: Public official; matter of private or public concern

Answer 34

pf must prove the state law requirements of defamation PLUS ACTUAL Malice

Question 35

Defamatory Speech: Actual Malice

Answer 35

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

Question 36

Defamatory Speech: Newspaper or Broadcaster publications

Answer 36

SCOTUS held that a private pf suing a media-df for false-light invasion of privacy concerning a matter of public interest must prove actual malice. They cannot be held liable for publishing truthful info obtained from the public record

Question 37

Freedom of Expression - Quasi-Protected Speech

Answer 37

1. Commercial Speech2. Sexual or indecent speech

Question 38

Freedom of Expression - Quasi-Protected Speech: Commercial Speech (3-Part test)

Answer 38

Commercial speech is protected by the 1st Amendment if it is not false or deceptive and does not relate to unlawful activity. If commercial speech satisfies these requirements, gov’t regulation of the speech must pass this 3-part test: The regulation must:1. Serve a substantial gov’t interest2. Directly advance the substantial governmental interest;3. Not be more extensive than is necessary to serve that interest

Question 39

Freedom of Expression - Quasi Protected Speech: Commercial Speech - what can a state NOT do?

Answer 39

1. cannot ban advertisements of drug prices2. cannot prohibit attorneys from advertising legal services3. cannot ban all advertising for legal products

Question 40

Freedom of Expression - Quasi Protected Speech: Commercial Speech - what CAN a state do?

Answer 40

1. Can ban lawyer from in-person solicitation2. A state can use its police-power to prohibit billboards carrying commercial advertising. Unclear as to an absolute ban of this is constitutional.

Question 41

Freedom of Expression - Quasi Protected Speech: Sexual or Indecent Speech

Answer 41

regulation of sexual speech must serve a substantial gov’t interest and leave open reasonable alternative channels of communicationEx: a city can impose zoning restrictions on adult theaters, even if it restricts the theaters from 95% of the cityEx: an absolute ban on public nudity is constitutional

Question 42

Freedom of Expression - Time, Place, Manner

Answer 42

Gov’t may place reasonable restraints on the time, place, and manner of speech in public areas, such as streets, sidewalks, and parks–places historically associated with expressive conduct. The focus is not on the “content” or “message” of the speech, but rather its “conduct” or “method”.

Question 43

Freedom of Expression - Time, Place, Manner: what is the three-part test to determine the constitutionality of TPM regulations of speech and assembly in public places?

Answer 43

The regulation must:1. be content-neutral as to both subject matter and viewpoint (i.e., the regulation cannot prefer some messages over others);2. be narrowly tailored to serve a significant (important) government interest; and3. leave alternative channels of communication open

Question 44

Freedom of Expression - Time, Place, Manner: large gatherings

Answer 44

states can require that large gatherings obtain a permit to use public property as long as it has specific defined grounds on which the permit will be granted or denied and those grounds are content-neutral

Question 45

Freedom of Expression - Time, Place, Manner: door-to-door canvassing

Answer 45

An ordinance requiring door-to-door solicitors, or canvassers, to identify themselves to local authorities was upheld in the interests of crime prevention. However, a city may not require them to register with the mayor’s office and receive a permit where the canvassing consists of religious proselytizing, anonymous political speech or distribution of handbills.

Question 46

Freedom of Expression - Time, Place, Manner: peace protests on sidewalk in front of private home

Answer 46

generally it is protected. If the gov’t has a law against this kind of protest, it can be enforced as long as other areas of the neighborhood are open to protest (alternative channel; content-neutral restriction).

Question 47

Freedom of Expression - Time, Place, Manner: Non-Public Forums (3-part test)

Answer 47

Speech related activities at non-public forums, such as military bases, jails, gov’t workplaces, and mailboxes, can be regulated by reasonable time, place, manner regulations. The regulation must be:1. viewpoint-neutral; and2. reasonably related to a legitimate interest

Question 48

Freedom of Expression - Public Employment (generally)

Answer 48

In general, an individual cannot be denied public employment based upon membership in a political organization unless the position is a HIGH-LEVEL POLICY-MAKING position

Question 49

Freedom of Expression - Public Employment: When can an individual be deprived of public employment for political association?

Answer 49

If:1. he is an active member of a subversive organization;2. such membership is with knowledge of the illegal aims of the organization; and3. he has a specific intent to further those illegal ends

Question 50

Freedom of Expression - Public Employment: Oath requirements for public entry

Answer 50

Gov’t can require public EEs to take an oath to support the constitution and oppose the overthrow of the federal gov’t via illegal means

Question 51

Freedom of Expression - Prior Restraint

Answer 51

As a general rule, the gov’t cannot suppress or restrain speech in advance of its publication or utterance. There is a strong presumption against the constitutional validity of any system of prior restraint of expression

Question 52

Freedom of Expression - Prior Restraint: exceptional cases in which it is allowed

Answer 52

1. classified military information2. a gov’t 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

Question 53

Freedom of Expression - Prior Restraints: 3 factors in determining if a restraining order against pretrial publicity is appropriate:

Answer 53

1. nature and extent of the pretrial publicity;2. availability of other measures to mitigate the effects of pretrial publicity; and3. the likely effectiveness of the restraining order

Question 54

Freedom of Expression - Prior Restraints: censorship or licensing of motion pictures prior to their exhibition

Answer 54

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:1. the standards for denial or a license are narrowly drawn and reasonable2. when a license is denied, the censor promptly seeks an injunction3. burden of proving obscenity is on the board of censors4. prompt judicial determination is provided

Question 55

Freedom of Expression - Prior Restraints: Time, place and manner regulation requiring a license or permit for activities such as parades, demonstration, or rally

Answer 55

1. a licensing statute is valid if valid on its face2. where a statute is facially void (i.e., gives the licensing officials unrestricted discretion), then you are allowed to carry on with your protest if the reason your license was denied was based on the facially void regulation

Question 56

Freedom of Expression - Prior Restraints: what happens if you are enjoined from speaking?

Answer 56

Generally, if one is enjoined from speaking, he must either obey the injunction or appeal it, unless the licensing statute is facially void or the timing is such that an appeal would effectively frustrate the exercise of his rights.

Question 57

Freedom of Expression - Overbreadth

Answer 57

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 as to have a chilling effect upon protected speech

Question 58

Freedom of Expression - Vagueness

Answer 58

Governmental regulations must be drawn “with narrow specificity” and not vague (judged by a reasonable person standard). The following have been ruled “void for vagueness” under DP inquiries:1. state law that prohibits treating an American flag contemptuously2. state law that denied a gov’t job to people who are subversive

Question 59

Freedom of Expression - Press

Answer 59

In general, the press has no greater freedom to speak than any ordinary member of the general public.

Question 60

Freedom of Expression - Press: can a newsperson refuse to testify before a grand jury under the first amendment?

Answer 60

No.

Question 61

Freedom of Expression - Press: radio and tv broadcasting

Answer 61

in general, radio and tv broadcasting can be more closely regulated than the press, due to the limited number of airwaves available. A radio broadcast of “patently offensive sexual and excretory speech” can be sanctioned to protect the privacy interest of children likely to be listening.

Question 62

Freedom of Expression - Press: cable tv

Answer 62

Cable tv receives 1st amendment protection somewhere b/w that of broadcast tv and newspapers. Where cable TV operators are subjected to content-neutral regulations, intermediate scrutiny will be applied.

Question 63

Freedom of Expression - Bar Admission

Answer 63

The state is permitted, under the DP clause, to inquire into the qualifications and fitness of candidates for admission to the bar. 1. A candidate cannot be denied admission for past membership in the Communist party. however, the state can refuse bar membership to an applicant who refuses to answer questions if his refusal obstructs the bar examiner’s investigation of his qualifications.2. A state can require a candidate to make an oath as a condition to admittance to the bar.3. A residency requirement by a state bar requiring an out-of-state resident to establish a home address in the state prior to being sworn in was held to violate the P&I clause of Art IV Sec 2.