Freedom of Expression and Association Flashcards
First Amendment Free Speech Clause
The First Amendment free speech clause prohibits the government from unduly restricting an individual’s right to freely communicate information and ideas.
Regulations based on the content of speech (i.e., its message, subject, or ideas) are presumptively invalid and will be upheld only if they survive strict scrutiny.
Content-based restrictions standard rule statement
Content-based restrictions on speech are presumptively invalid and will be upheld only if they survive strict scrutiny—i.e., if the government proves that the restriction is necessary and narrowly tailored to achieve a compelling government interest.
Free speech and Content-based restrictions
The First Amendment free speech clause protects the right to freely communicate and receive information and ideas.
To ensure such protection, content-based restrictions on speech are presumptively unconstitutional and subject to strict scrutiny.
This means that the government can restrict speech based on what is being said (i.e., its messages or ideas) only if it can prove that the restriction is necessary and narrowly tailored to achieve a compelling governmental interest—a nearly impossible task.
What does the First Amendment freedom of the press generally prohibit the government from restricting?
The First Amendment freedom of the press generally prohibits the government from restricting the right to publish lawfully obtained, truthful information about matters of public significance.
- A government action that abridges this right is presumptively unconstitutional and must survive strict scrutiny.
- This requires the government to prove that its action was the least restrictive means (i.e., narrowly tailored) to achieve a compelling government interest.
What level of scrutiny must an order for a closed criminal trial pass to be upheld?
Strict scrutiny
The First Amendment generally guarantees the press and the public the right to attend every stage of a criminal trial.
However, this right is not absolute, and a court can order that trial proceedings be closed if the court’s findings on the record demonstrate that the closure withstands strict scrutiny.
Rarely upheld.
Freedom of Association (chart)
- General rule
Infringing upon right to associate barred unless:
- necessary to achieve compelling interest
2. Subversive organization
Punishing member of subversive organization permitted if person:
- is active member
- knows of organization’s illegal objectives and
- specifically intends to further them
- Loyalty oath
Requiring loyalty oath for public employment permitted unless:
- overbroad – infringes on constitutionally protected behavior OR
- vague – reasonable person would not understand oath
- Forced inclusion
Interfering with organization’s discriminatory policy barred unless:
- no significant burden on organization’s mission AND
- necessary to achieve compelling interest
- Electoral process
Imposing restriction on electoral process:
- ordinary – permitted if rationally related to legitimate interest
- severe – barred unless necessary to achieve compelling interest
Is the right to associate with any group or organization an absolute right?
NO.
The First Amendment protects against government interference with a person’s right to associate with any group or organization.
But since t_his right is not absolute, the government can punish (i.e., deny public employment to or criminally prosecute) persons who:_
1) are active members of a subversive organization
2) know of the organization’s illegal objectives AND
3) specifically intend to further those objectives.
*** A person need not personally participate in an organization’s subversive plot for the government’s punishment to be constitutional. However, the person must be an active member of the organization, know about its illegal objectives, and intend to further them.***
When can the government impose content-based restrictions on speech in public forums?
The government can only impose content-based restrictions on speech in public forums if the government can satisfy the strict scrutiny test—i.e., prove that the restriction is necessary to achieve a compelling government interest.
When does the First Amendment shield the media from liability for publishing truthful information that was obtained unlawfully by a third party?
This amendment shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if:
1) the information involves a matter of public concern AND
2) the publisher neither obtained it unlawfully nor knows who did.
Does the First Amendment shield the media from criminal and civil liability for publishing lawfully obtained private facts and other truthful information involving matters of public concern?
YES.
The First Amendment shields the media from criminal and civil liability for publishing lawfully obtained private facts (e.g., crime victim’s identity) and other truthful information involving matters of public concern (i.e., newsworthy events).
What level of scrutiny must the government satisfy to impose content-based restrictions on speech in public forums?
The government cannot impose content-based restrictions on speech in public forums unless it can satisfy strict scrutiny—i.e., show that the restrictions are necessary and narrowly tailored to achieve a compelling government interest.
What must a government employee show when he/she contend that his rights under the Free Speech Clause of the First Amendment have been violated by his employer?
When a government employee contends that his rights under the Free Speech Clause of the First Amendment, as made applicable to state and local government action through the Fourteenth Amendment, have been violated by his employer, the employee must show that he was speaking as a citizen on a matter of public concern.
Even when an employee is speaking as a citizen on a matter of public concern, the First Amendment interest of the employee must be balanced against the interest of the state, as an employer, in effective and efficient management of its internal affairs.
Who can challenge overbroad First Amendment statutes?
In order to prevent a “chilling effect” on protected speech (i.e., frightening people into not speaking for fear of prosecution), overbroad statutes may be challenged as “facially invalid” even by those who are validly regulated on behalf of those who are not.
The challenger of a law bears the burden of establishing that substantial overbreadth exists.
What level of First Amendment protection is commercial speech entitled to?
Commercial speech (i.e., advertising and similarly economically oriented expression) is entitled to an intermediate level of First Amendment protection.
4-part test for restrictions on commercial speech
- First, the commercial speech must concern lawful activity and be neither false nor misleading.
- Second, the asserted governmental interest must be substantial.
- Third, the regulation must directly advance the asserted interest.
- Fourth and finally, the regulation must be narrowly tailored to serve that interest; this means there must be a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends.
