First Amendment Freedoms Flashcards
First Amendment
prohibits Congress from establishing religion or interfering with the free exercise of religion, abridging the freedoms of speech and press, or interfering with the right of assembly. These prohibitions are applicable to the states through the Fourteenth Amendment.
Government Speech
The Free Speech Clause restricts government regulation of private speech; it does not require the government to aid private speech nor restrict the government from expressing its views. Generally, government speech and government funding of speech will be upheld if rationally related to a legitimate state interest.
Limitation to government speech rule
spending programs may not impose conditions that limit First Amendment activities of fund recipients outside the scope of the spending program itself. ex. the gov cannot require recipients of federal funds given to organizations to combat HIV/AIDS to agree in their funding documents that they oppose prostitution.
public monument
a city’s placement of a permanent monument in a public park is government speech, even if monument is privately donated.
When gov does fund private speech
must do so on viewpoint neutral basis unless its artists than it is based on the content of the art.
trademark protection
not government speech, private speech and is subject to strict scrutiny
content regulations
regulations forbidding communication of specific ideas
conduct regulations
regulations of the conduct associated with speaking, such as the time of the speech, sound level, etc.
content neutral speech regulations
subject to intermediate scrutiny - they must advance important interests unrelated to the suppression of speech and must not burden substantially than necessary (or must be narrowly tailored to further those interests.
conduct
can be regulated by content-neutral time, place and manner restrictions.
Overbroad
a regulation of speech or speech related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep is facially invalid.
Void for Vagueness
if a criminal law or regulation fails to give persons reasonable notice of what is prohibited it will violate the DPC
Cannot give officials unfettered discretion
a regulation cannot give officials broad discretion over speech issues there must be defined standards for applying the law. If a statute gives licensing officials unbridled defined standards it is void on its face and speakers dont need to apply for a permit.
Scope of Speech
includes the freedom not to speak, symbolic acts
Can the government require you to salute the flag or display other messages with which you disagree?
No
symbolic acts
government may regulate if it has an important interest in the regulation independant of the speech aspects of the conduct and incidentally burdens the speech is not greater than necessary.
Can government compel a person to subsidize private messages she disagrees with
no, non-union members do not have to pay union dues
Can gov tax people and use revenue to express a message with which they may disagree?
yes, ( a beef producer can be required to pay an assessment to support government-sponsored generic advertising of beef even if the producer thinks generic advertising is a waste of money)
exception University Fees
The government can require public university students to pay a student activity fee even if fee is used to support political and idealogical speech by student groups whose beliefs are offensive to the student, as long as the program is viewpoint neutral.
Test for time place and manner restrictions on public forums and designated public forums
content neutral
narrowly tailored to serve an important government interest
leave open alternative channels of communication
- most government interests pass this
Test for limited public forums and non-public forums
viewpoint neutral
reasonably related to a legitimate government purpose
public forums
streets, sidewalks, public parks, the internet.
designated public forums
school rooms that are open for after school use by social, civic, or recreation groups.
limited public forums
school gym opened to host a debate on a particular community issue
nonpublic forums
government property not historically linked with speech and assembly and not held open for speech activities, such as military bases, schools while classes are in session, government workplaces, etc.)
regulations on content test
must be necessary to achieve a compelling government interest.
unprotected speech
inciting imminent lawless action fighting words obscenity defamatory speech some commercial speech
inciting imminent lawless action
creates a clear and present danger of imminent lawless action. Must be shown that imminent illegal conduct is likely and that the speaker intednded to cause it
fighting words
true threats or personally abusive words that are likely to incite immediate physical retaliation in an average person. SC will not tolerate statutes that punish only certain viewpoints. usually vague or overbroad
obscenity elements
appeals to the prurient interest in sex, using a community standard
is patently offensive and an affront to community standards
lacks serious value (literary, artistic, political, or scientific) using a national reasonable person standard.
land use regulation
a land use or zoning may limit the location or size of adult entertainment if the regulation is designed to reduce secondary effects of such businesses. cannot all out ban
liquor regulation
under 21st A, states have broad power to regulate intoxicating beverages. Laws relating to this power that affect free speech rights generally will not be set aside unless they are irrational
defamatory speech
if it is about a public official or public figure or involves a public concern, the first A requires the plaintiff prove all elements of defamation plus falsity and some degree of fault.
Commercial Speech that proposes unlawful activity or that is misleading or fraudulent …
may be burdened not protected
Other commercial speech test
regulation must
serve a substantial government interest
directly advance that interest and
is narrowly tailored to serve that interest.
Prior Restraints
court orders or administrative systems that prevent speech before it occurs, rather than punish afterwards rarely allowed. Gov must show special societal harm will otherwise result
Prohibiting publishing of troop movements in times of war
valid
prohibiting publication of the pentagon papers because it might have an effect on the Vietnam War
invalid
Enforcing contractual prepublication review of CIA’s agent writings
valid
Prohibiting grand jury witness from ever disclosing testimony
invalid
Procedural safeguards for prior restraint to be valid
the standards must be narrowly drawn, reasonable, and definite
injunction must promptly be sought
there must be prompt and final determination of the validity of the restraint
Movie censorships
court allows the government to establish censorship boards to screen movies before they are release, as long as the procedural safeguards discussed are followed
Freedom of press
has no greater First Amendment Freedom than does a private citizen
Publication of truthful information
press has right to publish truthful information regarding a matter of public concern and right can only be restricted by a sanction that is narrowly tailored to further an interest of the highest order.
Press Access to Trials
the first a guarantees the public and press a right to attend criminal and probably civil trials. However, the right may be outweighed by an overriding interest stated in the trial judges findings. The right includes the right to be present at voir dire and at other pretrial proceedings, unless the judge makes specific findings that closure was narrowly tailored to preserve higher value
press and grand jury
members of press may be required to testify before a grand jury
fairness doctrine
first A does not require broadcasters to accept political advertisements However a radio station may constitutionally be requires to offer free broadcasting time to certain individuals (e.g. opponents of political candidates or views endorsed by the station or persons who have been personally attacked on the broadcast.
Internet regulation
strict standard
cable television
between intermediate scrutiny and strict
Freedom of Association
implied from the rights noted in First A. The gov may neither prohibit politically unpopular groups nor unduly burden a person’s right to belong to such groups. not absolute right justified by a compelling government interest unrelated to the ideas and is the least restrictive means of protecting government interest.
Electorial Process
court uses balancing test to determine whether a regulation of the electoral process is valid
Limits on contributions
statute limiting election contributions is subject to intermediate scrutiny - must be closely drawn to match a sufficiently important interest. gov cant limit support or oppose on ballot referendum
Limits on expenditures
gov cant do it
regulations of core political speech
must pass strict scrutiny to preserve public confidence in the integrity of the judiciary.
Goverment Employee Official Duty Exception
A government employer may punish a public employee’s speech whenever the speech is made on the job pursuant to the employee’s official duties, even if the speech touches on a matter of public concern.
Government Employee: Other Speech
If speech is not made pursuant to an employee’s official duties two tests apply :
If a government employee’s speech does not involve a matter of public concern, the courts give the government employer a wide deference and allow the employer to punish the employee if the speech was disruptive of the work environment.
However if a matter of public concern is involved, courts must balance employee’s rights as a citizen to comment on a matter of public concern against governments interest.
School Sponsorship if extracurricular activities
can be subject to regulation that is viewpoint neutral and reasonably related to a legitimate government interest
Free Exercise Clause
prohibits government from punishing someone on the basis of religious beliefs
Examples of Free Exercise Clause
State governments requiring office holders or employees to take a religious oath (fed gov cant do this either)
States from excluding clerics from holding public office
courts from declaring a religious belief to be false
a law that prohibits the precise type of animal slaughter used in ritual by a particular religious sect
unconstitutional
exemption for ministers
no suits alleging employment discrimination by ministers against religious organizations (includes any position in the congregation that is ministerial)
Exception - Unemployment Compensation cases
A state cannot refuse to grant unemployment benefits to persons who quit their jobs for religious reasons, as long as belief is sincere.
Right of Amish Not to Educate Children
SC has granted Amish an exemption from a law requiring compulsory school attendance until age 16
Establishment clause
invalid unless
- has a secular purpose
- has a primary effect that neither advances nor inhibits religion and
- does not produce excessive government entanglement with religion.
Sunday Closing
Valid
Invalid establishment clause cases - non financial aid and education cases
delegation of zoning power to religious organization
requirement that all employers grant all workers their Sabbath day off
Christmastime display of only religious symbols
displaying Ten Commandments when the purpose is predominantly religious
Invalid establishment clause cases - Recipient Based Aid
Tax credits only to parents of private school students for educational expenses
Invalid establishment clause cases - Aid to Religious Grade and High Schools
Reimbursement to private schools for writing achievement tests
Providing private schools with teachers, or money to pay teachers, of secular classes
Tax exemption only for religious associations or activities
Invalid establishment clause cases - Religious Activities in School
ending classes early to give voluntary in-school religious classes.
Prayer, bible reading, or posting Ten Commandments in classrooms or at school football games
Requiring creation science be taught
Ending classes early to allow students to attend off school religious classes
valid
