First Amendment Rights

Question 1

What rights are protected under the First Amendment?

Answer 1

free exercise of religion, freedom of speech and press, freedom of assembly

Question 2

What is speech?

Answer 2

Words, symbols, expressive conduct

Question 3

Generally, content-based regulation is subject to what level of scrutiny?

Answer 3

Strict scrutiny

Question 4

Generally, content-neutral regulation is subject to what level of scrutiny?

Answer 4

Intermediate scrutiny

Question 5

When is a law invalid due to overbreadth?

Answer 5

When the law prohibits a substantial amount of protected speech in relation to the unprotected speech it is meant to target. Often, this results if the state fails to specifically limit construction of the regulation.

Question 6

When is a law invalid due to vagueness?

Answer 6

When a person of common intelligence cannot tell what is prohibited and what is permitted.

Question 7

Usually, a law must give officials ______ for applying the law to be valid?

Answer 7

Defined standards for applying the law.

Question 8

Generally, people cannot be compelled to pay for messages that they do not agree with (unless the message is being funded by regular tax revenue). What is the exception?

Answer 8

Public university activity fees. Students can be compelled to pay these fees even if the fees are used to support speech they disagree with, as long as the program is viewpoint neutral.

Question 9

What does viewpoint neutral mean?

Answer 9

Neutral application of a content-neutral regulation.

Question 10

In a public and designated public forum, a time-place-manner regulation must be ______ to avoid strict scrutiny (3 factors).

Answer 10

1) Viewpoint neutral
2) Narrowly tailored
3) Leave open alternative channels of communication

Question 11

As long as it is viewpoint neutral, regulation of speech in a limited or nonpublic forum is subject to what type of review? What if it is viewpoint based?

Answer 11

If viewpoint neutral, then rational basis review (presumptively valid).

If viewpoint based, then strict scrutiny (presumptively invalid).

Question 12

Incitement is unprotected speech. To qualify as incitement, the speech must ___________? The speaker must _________?

Answer 12

Create a danger of imminent lawless action. The speaker must have intended to cause imminent lawless action.

Question 13

Speech is unprotected because it is a true threat when it is ______.

Answer 13

Intended to convey to someone a serious threat of bodily harm.

Question 14

Speech is unprotected because it counts as fighting words when it is ______.

Answer 14

Intended to incite immediate physical retaliation in an average person.

Question 15

When is speech unprotected as obscenity?

Answer 15

1) Appeals to the prurient interest in sex (designed to turn someone on), using a community standard.
2) Is patently offensive, using a community standard.
3) Lacks serious value (literary, artistic, political, or scientific) using a national standard.

Question 16

When does actual malice (knowledge of falsity/reckless disregard of truth) have to be shown to succeed in a defamation lawsuit? (2 types of situations)

Answer 16

1) When the plaintiff is a public official or public figure

2) When the plaintiff is a private person speaking about a matter of public concern.

Question 17

When is commercial speech unprotected?

Answer 17

When commercial speech promotes an unlawful activity or when it is misleading or fraudulent.

Question 18

What are prior restraints? (brief description)

Answer 18

Restrictions on speech before it occurs, by way of court order or administrative systems.

Question 19

T/F: prior restraints are never valid. Why?

Answer 19

False. Prior restraints are highly disfavored and subject to very strict scrutiny. However, there are times when prior restraints are justified, such as to prevent special societal harm.

Question 20

T/F: generally, the press has greater freedom of speech than individuals.

Answer 20

False. the press has no greater First Amendment freedom than does a private citizen.

Question 21

T/F: a radio station may be constitutionally required to offer free broadcasting time to someone that has been personally criticized in a broadcast. Why?

Answer 21

True. Due to the fairness doctrine, a radio station may be constitutionally required to offer broadcasting time to certain individuals.

Question 22

T/F: Speech restrictions on newspapers are subject to more scrutiny than speech restrictions on broadcasts (radio and TV). Why? (hint: paramount rights).

Answer 22

True. The paramount right in relation to regulating broadcasts is the paramount right of viewers and listeners to receive information of public concern, rather than the right of broadcasters to broadcast whatever they please.

Question 23

A statute limiting the amount of money someone can contribute to a single political candidate is subject to what level of scrutiny? May the government impose a limit on such a contribution?

Answer 23

Intermediate scrutiny, but the government can limit the amount of money that someone can contribute to a single candidate.

Question 24

T/F: a government may not limit the amount of money that may be spent to support or oppose a ballot referendum.

Answer 24

True.

Question 25

T/F: A government can limit the aggregate amount one person or entity can contribute to political campaigns, just like how it can limit the amount one entity can contribute to a single candidate.

Answer 25

False. It is unconstitutional for a government to limit the aggregate amount an entity can contribute to political campaigns. A government can only limit the amount one entity can contribute to a single candidate.

Question 26

When is a government employee’s speech unprotected? (two situations)

Answer 26

1) When the speech is public speech pursuant to the employee’s official duties.
2) When the speech is private speech made at the workplace (disruptive).

Question 27

When is a government employee’s speech better protected?

Answer 27

1) When the speech is public speech made pursuant to the employee’s rights as a citizen (eg. speech concerning a public concern matter unrelated to work)
2) When the speech is private speech made outside the workplace.

Question 28

T/F: the government may require its employees to take loyalty oaths, such as to support the Constitution and to oppose the unlawful overthrow of government.

Answer 28

True.

Question 29

T/F: the government may require its employees to salute the flag.

Answer 29

False.

Question 30

When can students’ speech be censored by the school or the government? (3 situations)

Answer 30

1) When the student’s personal speech is substantially disruptive.
2) When the student’s personal speech advocates for illegal drug use.
3) When the student makes speech as part of school speech (curricular, co-curricular, extra-curricular) and censorship is legitimately related to pedagogical concern.

Question 31

What is the Free Exercise Clause?

Answer 31

The Free Exercise Clause prohibits government from punishing someone on the basis of her religious beliefs.

Question 32

T/F: Neutral laws of general applicability are generally upheld even if they burden religion in some way and no exception is made to accommodate that religion.

Answer 32

True.

Question 33

T/F: If an exception is made to accommodate a religion by exempting it from a neutral law of general applicability, the Establishment Clause is violated.

Answer 33

False.

Question 34

T/F: Religious organizations must be granted exemptions from employment discrimination laws in order for states to not violate the Free Exercise Clause.

Answer 34

True.

Question 35

T/F: A state can refuse to grant unemployment benefits to people who quit their jobs for religious reasons. Why?

Answer 35

False. A state cannot refuse to grant unemployment benefits to people who quit their job due to religious reasons. This violates the Free Exercise Clause.

Question 36

What is the Establishment Clause?

Answer 36

The state must pursue a course of neutrality towards religion.

Question 37

What is the Lemon Test?

Answer 37

To ensure compliance with the Establishment Clause, state action must:

1) have a secular purpose
2) have a primary effect that neither advances nor inhibits religion
3) not produce excessive entanglement between government and religion

Question 38

T/F: ending classes early to allow students to attend off-school religious classes does not violate the Establishment Clause.

Answer 38

True.

Question 39

T/F: ending classes early to give voluntary in-school religious classes does not violate the Establishment Clause.

Answer 39

False.

Question 40

T/F: A state can inquire about an individual’s associations (memberships) in order to withhold a right or benefit because of the individual’s beliefs. Why?

Answer 40

False. A state is prohibited from inquiring about an individual’s associations in order to withhold a right or benefit because of the individual’s beliefs.