First Amendment Freedoms

Question 1

What is speech?

Answer 1

Words, symbols, and expressive conduct (inherently expressive, intended to convey a message, or reasonably likely to be perceived as conveying a message

Question 2

What categories of speech are unprotected/nonspeech?

Answer 2

Incitement
Fighting words 
True threats
Obscenity 
Child pornography

Question 3

What categories of speech are still speech but subject to greater potential burdens?

Answer 3

Defamation and commercial speech

Question 4

What is incitement?

Answer 4

Incitement is advocacy of lawless action that is (1) intended to produce imminent lawless action and (2) likely to produce imminent lawless action. (Brandenburg)
Mere advocacy not enough.

Question 5

What are fighting words?

Answer 5

Face-to-face insults that are highly likely to provoke or harm their object (incite imminent physical retaliation in an average person). Must be directed at the person of the hearer.
Fighting words statutes cannot criminalize viewpoint specific fighting words – so cannot only criminalize fighting words that are bigoted
Always look for vagueness/overbreadth issues in fighting words statutes

Question 6

What is a true threat?

Answer 6

Words intended to convey a serious threat of bodily harm to someone. Possible that recklessness suffices

E.g., cross-burning with intent to intimidate may be banned/Virginia v. Black

Question 7

What counts as obscenity?

Answer 7

Not protected/Roth

(1) A depiction/description of sexual conduct specifically defined in a state statute, which
(2) taken as a whole, by the average person, applying contemporary community standards
(a) appeals to prurient interest in sex
(b) portrays sex in a patently offensive way, and
(c) does not have serious artistic, literary, scientific, or political value (using a national reasonable person standard)

Question 8

What is a prurient interest?

Answer 8

Includes that which abbeys to shameful/morbid interests in sex (does not include stuff that just incites lust)/the prurient appeal must be in the dominant theme of the work considered as a whole

Question 9

When is a portrayal of sex patently offensive?

Answer 9

Community standards for determining this may be with reference to a fact-finder’s specific community or be a statewide standard. Judge need not define the term in terms of precise geography

Question 10

What rules apply to obscenity sold to minors?

Answer 10

States may enact more stringent rules in this context – adopting definitions of obscenity specific to provisions prohibiting sale to minors. The government may not prohibit the sale or distribution of material to adults on the grounds that it is inappropriate for children.

Question 11

What rules apply to material depicting minors?

Answer 11

Government child pornography bans do not run afoul of the 1A regardless of the definition of obscenity (doesn’t matter if the material wouldn’t be obscene absent involvement of children). This is based on the compelling interest in protecting minors from exploitation. The government cannot ban simulated child pornography (using young looking adults or computer generated images)

Question 12

What are the privacy limitations on government obscenity censorship?

Answer 12

It must be on public display/in public commerce to regulate/curtail it. Private possession of obscene material cannot be criminalized. Private possession of child pornography obviously can be.

Question 13

Who determines whether material is obscene?

Answer 13

question of fact

Question 14

How may local government use zoning to regulate adult entertainment venues?

Answer 14

The location and size of adult entertainment businesses may be regulated if intended to reduced the secondary effects of such businesses (on crime rates, property values, and neighborhood quality) but cannot be a complete ban. When designed to decrease secondary effects rather than speech, subject to intermediate rather than strict scrutiny

Question 15

When does the constitution impose protections against the punishment of defamatory speech?

Answer 15

When the speech is about a public official or public figure or involves a matter of public concern. The plaintiff must additionally prove both falsity and fault. In the case of public officials/figures, the level of fault required is actual malice. For private persons on matters of public interest, negligence will suffice but actual malice necessary for presumed/punitive damages. This also applies to such parties/matters in IIED cases.

Question 16

What are examples of persons not deemed public figures (automatically anyway)?

Answer 16

Spouse/divorcee of a wealthy person
Person engaging in criminal conduct
Scientist in federally funded program

Question 17

What is a matter of public concern?

Answer 17

Case by case analysis; look at content form and publication context

Question 18

How is commercial speech protected under the 1A?

Answer 18

Commercial speech generally has 1A protections unless it is concerning an unlawful activity, fraudulent, or misleading.

A regulation of commercial speech otherwise will be only upheld if it

(1) serves a substantial government interest
(2) directly advances that interest
(3) is narrowly tailored to serve the interest (reasonable fit not least restrictive means)

Required disclosures are usually ok

Question 19

What is the general rule for restrictions of general applicability imposed on protected speech?

Answer 19

A content based regulation must survive strict scrutiny: least restrictive means of achieving a compelling government interest.

A content-neutral regulation must survive intermediate scrutiny: narrowly tailored (not a substantial speech burden) to serve an important government interest).

Question 20

What is the general rule for restrictions on conduct related to speech?

Answer 20

The state is allowed to adopt time, place and manner regulations so long as they are:

(1) justified without reference to the content of regulated speech;
(2) narrowly tailored to serve a significant government interest (less restrictive but not least restrictive);
(3) leave open ample alternative channels of communication.

(this is a form of intermediate scrutiny)

The court has recognized public safety, aesthetic interests, and peace and privacy interests as legitimate here

Question 21

What is the effect of forum analysis on speech regulations?

Answer 21

The government has different levels of authority with regard to different places where speech takes place.

Question 22

What are the categories of forum?

Answer 22

Traditional public forum – traditionally held open to the public as free speech zones (parks, streets, and sidewalks)
Designated public forum – opened by policy or practice as a free speech zone (can be undesignated)
Limited public forum – opened to specific speakers in specific contexts (can be undesignated)
Non-public forum – not opened to free speech

Question 23

How may the government regulate speech in a traditional/designated public forum?

Answer 23

Content-based: strict scrutiny

Content-Neutral: intermediate (narrowly tailored to important interest plus leave open alternatives)

Question 24

How may the government regulate speech in limited or non-public forums?

Answer 24

Viewpoint-based: strict scrutiny

Everything else: Reasonably related to a legitimate government purpose

Question 25

Can the state require people to obtain permits to canvas door to door for noncommercial/nonfundraising reasons?

Answer 25

No

Question 26

Can the state prevent residential picketing on a single residence happening on a sidewalk?

Answer 26

Yes if it meets the intermediate scrutiny/TPM test

Question 27

Can the state regulate charitable solicitations in residential areas?

Answer 27

Reasonable regulations ok

Question 28

When has the Court upheld buffer zone laws (usually related to hospitals, abortion providers)?

Answer 28

If reasonable and content neutral in furtherance of interest of preserving access to healthcare and maintaining public order
Usually narrowly tailored if it isn’t preventing all speech in the area/overbroad and the state has tried other means of protecting the access (did not uphold “floating buffer zone”)

Question 29

When is a public school or university a public forum?

Answer 29

Usually they are not but if they allow private orgs or members of the public to use school property for certain purposes then the property becomes a temporary designated public forum

Question 30

What analysis is applied to injunctions restricting 1A activity in public forums?

Answer 30

Content-based: upheld only if necessary to achieve a compelling government interest
Content-neutral: upheld if it burdens no more speech than necessary to achieve an important government interest

Question 31

Are military bases public forums?

Answer 31

No – with the rare Flowers exception where it leaves streets open as public thoroughfares

Question 32

Are government workplaces public forums?

Answer 32

no

Question 33

Is post office property a public forum?

Answer 33

no, and the sidewalk in front is not either (kokinda)

Question 34

Are publicly operated airport terminals public forums?

Answer 34

No – therefore solicitation can be be banned but not leafletting (only subject to TPM restrictions)

Question 35

Are public television election debates public forums?

Answer 35

no, held out only to select members. fine to exclude candidates who are not major party members or lack popular support (these are viewpoint neutral, reasonable regulations)

Question 36

Are mailboxes public forums?

Answer 36

No

Question 37

Are polling places public forums?

Answer 37

No – government can exclude some forms of advocacy

Question 38

What speech rights do students have in public schools?

Answer 38

students have free speech in schools and have the presumptive right to speech about non-school topics if they do so without material and substantial interference in school operations or collision with the rights of others (tinker)

Tinker appears to be limited to student speech not occurring as part of official school events and is most fully in force when the speech is political.

Question 39

When is student speech school speech?

Answer 39

Schools have greater power to restrict student’s speech at official school events and as part of school activities: at assemblies, published in school-run student paper, e.g. (During normal school hours, with involvement of teachers/administrators, sanctioned school event/activity even if off-premises)
Ok to censor if reasonably related to legitimate pedagogical interest.
Less protection for sexual speech and drug use advocacy.

Question 40

What limitations are placed on the government’s regulation as an employer of the speech of public employees?

Answer 40

General rule:

• • unprotected: private speech at the workplace, speech as a matter of public concern as part of official duties (Garcetti)
• • protected: private speech outside the workplace, speech on matter of public concern as a citizen separate from workplace duties

Question 41

What test is applied for determining protections for employee speech on matters of public concern?

Answer 41

Pickering test – (1) is the speech of public concern? (2) if yes, balance the importance of the employee’s freedom of expression on matters of public concern against the interests of the state as an employer.
(Extends to independent contractors)

Question 42

What constitutes “public concern”?

Answer 42

public concern does not include internal employment matters. Where employee speech concerning office policy arises from an employment dispute concerning application of policy to speaker, greater weight given to supervisor’s view that speech challenges their authority.

Question 43

Can a public employee be fired/disciplined for speech on a matter of public concern made pursuant to their official duties?

Answer 43

When public employees make statements pursuant to their official duties, they are not speaking as citizens for 1A purposes and are not insulated from employer discipline.

Question 44

Can public employees be fired on the basis of political affiliation?

Answer 44

No. patronage dismissals of public employees are not permissible unless the government can demonstrate that party affiliation is an appropriate requirement of the position (e.g., high level policymakers/advisers). Elrod/Branti rule. Applies to independent contractors

Question 45

How may the government use speech restrictive conditions on government funds?

Answer 45

The government may not use leverage of a subsidy to demand that someone refrain from speech they would otherwise engage in but does not have to subsidize speech it disagrees with.

Cannot: condition receipt of benefits on a loyalty oath (speiser), place conditions that are viewpoint discriminatory, require opposition to a particular policy position in order to receive funds (AID)
Can: prohibit use of federal funds to advocate for/support abortion (Rust), deny tax deductibility to nonprofits conducting lobbying (TWR); apply selective criteria to funding decisions (NEA v. Finley)

Question 46

When is a statute overbroad?

Answer 46

A statute is overbroad (and therefore facially invalid) where it regulates more speech than permissible.

Test – the substantial overbreadth approach (Broaddrick) – the statute’s overbreadth must be real and substantial:
– Substantial (look at the percentage of valid to invalid applications of the statute)
– Real (the overbreadth is not merely hypothetical).
burden on challenger

Question 47

How do over breadth rules alter traditional standing requirements?

Answer 47

Overbreadth strikes down a statute on the basis of its ability to apply to the constitutionally protected speech of others not before the court, rather than reaching the question of whether the challenger’s speech is or isn’t constitutionally protected.

Question 48

When is a statute void for vagueness?

Answer 48

Laws are impermissibly vague where they allow too much state discretion risking unchecked viewpoint discrimination. Persons of common intelligence cannot tell what speech is prohibited and what is permitted.

Question 49

What are prior restraints?

Answer 49

The government is largely barred from preventing/punishing speech in advance but there are two categories of exception: licensing schemes and injunctions.

Question 50

When is a government licensing scheme for 1A activity permissible?

Answer 50

If it has defined standards and procedural safeguards (like a prompt review process for denials) that prevent unchecked official discretion. A viewpoint-neutral licensing scheme is not a prior restraint but a time, place, and manner restriction

Question 51

When can the government obtain an injunction against 1A activity?

Answer 51

The government has a high burden of proof, and prior restraints are presumptively invalid. Government’s justifications are limited to narrow circumstances: national security (very core nat sec issues like troop movements), obscenity, incitement

Question 52

What is the effect of facial invalidity on the requirement of citizen compliance?

Answer 52

Facial invalidity of a licensing law is a defense to non-compliance (but an as-applied challenge to a facially valid licensing law would require the challenger to have attempted to obtain a permit). Lovell. This is out of concern for the risk of self-censorship by applicants to avoid being denied a permit and the difficulty in detecting censorship on an as-applied basis.

Question 53

What counts as government speech?

Answer 53

1A does not prevent government from espousing views and policies (though is limited by establishment clause). Government cannot compel private parties to convey that message

Question 54

What is included in the right not to speak?

Answer 54

The right as an individual not to be a platform for government views. Barnette and Wooley.
The right to anonymity. Talley and McIntyre.
The right not to be compelled to grant reply space or access to hostile viewpoints. Tornillo.

Question 55

What is the freedom of expressive association?

Answer 55

The freedom is for expressive association but not solely political expression. Purely social association is not a recognized 1A right. The government may infringe the right to serve a compelling government interest unrelated to the suppression of ideas which cannot be achieved through means significantly less restrictive of associational freedoms and not a significant burden on associational freedom

Question 56

Can the government make material support fo terrorist organizations criminal?

Answer 56

Yes, no 1A violation to criminalize material support for a foreign terrorist organization with knowledge of its designation as a FTO

Question 57

Can the government require that an organization include certain groups (e.g, LGBTQ people) in the organization?

Answer 57

No – a significant burden on associational freedom (contrary to sincerely held values of org)

Question 58

When can the government regulate the electoral process in a manner restricting associational rights?

Answer 58

Balancing test: a severe restriction will be upheld if it survives strict scrutiny. Reasonable nondiscriminatory restrictions will be upheld on the basis of state regulatory interests

Question 59

Can the govt require a candidate get signatures to get on the ballot and disclose the names of those signers?

Answer 59

Yes and yes – reasonable interests in running efficient election and promoting transparency and accountability.

Question 60

What primary voting regulations may the state enforce?

Answer 60

Can enforce party rule require party registration w/in a reasonable amount of time prior to the primary or that they be registered w/ a particular party (strict scrutiny not applicable). Can’t prevent party from allowing independents to vote in primary. State has less interest in governing party activities than elections

Question 61

Can the state prevent an individual from appearing on the ballot for more than one party?

Answer 61

yes – interest in ballot integrity and political stability

Question 62

When is privacy of association protected?

Answer 62

privacy of association may in some instances be indispensable to preserving the freedom of association and disclosure requirements that act as a substantial restraint on freedom of association must survive strict scrutiny. naacp v. alabama

Question 63

What standard of review is applied to campaign finance statute limiting contributions?

Answer 63

Closely drawn to match a sufficiently important interest

Question 64

What contribution limits are constitutional?

Answer 64

Contribution limits are treated as less restrictive of speech rights and get an intermediate scrutiny (closely drawn to a sufficiently important government interest).
State can limit money to political candidates.
States cannot increase contribution limits for a candidate facing a wealthy opponent, limit contributions to a ballot referendum committee, or limit the aggregate amount one person can give to all candidates/committees in an election year

Question 65

What expenditure limits are constitutional?

Answer 65

Cannot limit the amount an individual spends on their own campaign or the amount someone spends to get a candidate elected (must be independent of candidate). Applies to corps and unions. No limitations on express advocacy expenditures

Question 66

What freedoms does the press have?

Answer 66

no greater 1A rights than the public

Question 67

What public and press access rights exist for trials?

Answer 67

Guaranteed right to attend criminal trials, but may be outweighed by an overriding interest by trial judge. Includes access to void dire proceedings and other pretrial proceedings

Question 68

Can a journalist be required to testify before a grand jury?

Answer 68

The 1A does not grant the press any greater right to resist testifying before a grand jury or complying with a valid search warrant. Branzburg and Zurcher.

Question 69

What taxes and regulations can the government enforce against media companies?

Answer 69

You cannot treat the press less well or subject them to special burdens like taxes but the press also does not get special exemptions from generally applicable laws.

Question 70

How is broadcast treated differently than other forms of media?

Answer 70

Radio and tv broadcasting may be more closely regulated. The court has struggled to fit broadcast into the 1A, allowing it lesser protections based on its special characteristics (invading the home, scarcity, heavy government regulation).

Broadcast media (at least at one point) could be subject to forced right of access to reply (Red Lion), whereas the court has rejected that in the print media context (Tornillo).
o	The court has allowed more content-restrictive regulations in broadcast (compare Pacifica to Cohen)

Question 71

What does the free exercise clause prohibit?

Answer 71

clearly bars either outlawing or compelling belief

Question 72

What constitutes a religious belief?

Answer 72

Not clearly defined but does not require recognition of a supreme being, need not be a traditional organized religion. It has been said to have to occupy a place in the believer’s life similar to that occupied by orthodox religious beliefs.

Question 73

Can the government or courts assess the veracity of someone’s religious beliefs?

Answer 73

No - though the government may inquire into the sincerity of the beliefs

Question 74

How may a law/action discriminate based on religion?

Answer 74

Facially discriminatory law
Law that is neutral on its face but state official makes disparaging remarks about religion during enforcement/intentionally uses it to target religious beliefs (masterpiece cakeshop)
law is generally applicable but has disparate impact
law is facially neutral but actually aimed at religious belief

Question 75

Can the law require religious oaths of public employees?

Answer 75

no (prohibited by 1A and at federal level Art IV)

Question 76

Can a state limit eligibility for government benefits to nonreligious orgs?

Answer 76

no

Question 77

What is a religiously gerrymandered law?

Answer 77

ordinances neutral on their face have been crafted to punish a particular religious belief are unconstitutional. Lukumi. Religious gerrymanders, like the Minnesota tax law which exempted some religious groups and not others, can also violate the Establishment Clause’s prohibition on choosing one religion over another.

Question 78

Does the government have to provide religious exemptions for laws of general applicability?

Answer 78

No, a law regulating the conduct of all people can be applied to the conduct of a person despite a conflict between their religious beliefs and compliance with the law (e.g., no religious exemption for criminalization of peyote, can deny tax exemptions for racially discriminatory religious schools (bob jones), can require compliance with federal minimum wage).

EXCEPTION: The ministerial exemption – The Court has rejected the ability of the government to tell churches who they can and cannot hire as ministers or teachers of faith as violating both the Free Exercise and Establishment clauses. Hosanna-Tabor.
EXCEPTION: not on exam, but strict scrutiny requirement applied to federal government for denial of religious exemption through operation of RFRA

Question 79

What does the establishment clause require?

Answer 79

Government neutrality toward religion

Question 80

What is the lemon test for establishment clause claims?

Answer 80

The original Establishment Clause jurisprudence established the Lemon test – to survive an Establishment Clause challenge, the law (1) must have secular purpose; (2) must have a principal or primary effect that neither advances nor inhibits religion; and (3) must not foster government entanglement with religion.

Question 81

What is the endorsement analysis for establishment clause claims?

Answer 81

Focuses on whether there is some kind of religious favoritism but allows for acknowledgment of religion. From the standpoint of a reasonable and informed observer, the government must not appear to endorse or disapprove of religion.

Question 82

What is the coercion analysis for establishment clause claims?

Answer 82

Government may not directly or indirectly coerce individuals to exercise or not exercise religion. (e.g., can’t have prayer at school graduation)

Question 83

What is the history and tradition test for establishment clause claims?

Answer 83

religious establishments or practices embedded in the history and tradition of the community may be found acceptable

Question 84

Can a state legislature employ a chaplain and start the day with prayer?

Answer 84

Yes – extends to town boards

emphasis on history of legislative prayer in America

Question 85

When does the display of a religious symbol on public property violate the establishment clause?

Answer 85

If it has a predominantly religious purpose.

History and tradition may render something constitutional if it has historical significance and its original purpose was not clear (American legion)
Holiday displays that mix religious symbols with other decorations will be fine if they have a secular purpose, primary nonreligious effect, and no excessive entanglement. Won’t be ok if it only has a single religion’s symbols

Question 86

May states require an absolute right not to work on a sabbath?

Answer 86

no

Question 87

Can religious organizations discriminate in employment on the basis of religion?

Answer 87

yes, at least wrt nonprofit activities

Question 88

Can the government give financial aid to religious institutions?

Answer 88

Yes, if the class of recipients is defined without reference to religion and it passes the lemon test. Stricter analysis where aid is going to a religiously affiliated school.

Question 89

Is prayer allowed in public school?

Answer 89

Absolutely not – Engel. It violates neutrality, is coercive, etc

Question 90

Can schools allow religious groups to participate in after school extracurriculars?

Answer 90

yes – they have to under free exercise

Question 91

Can the government delegate the authority to grant liquor licenses or draw school districts to religious groups?

Answer 91

Absolutely not. Cannot delegate civic authority to religious groups