Freedom Of Speech Flashcards
Does membership in a subversive organization prevent acceptance in a state agency?
No membership alone is insufficient. Only if the person has a specific intention to further the illegal activities.
Does a law that advances a church constitute a breach of the establishment clause?
Yes. The establishment clause of the first amendment compels the gov. to pursue a course of neutrality toward religion.
Lemon test is the standard for the state statue and based in strict scrutiny.
Therefore; the action must have
1) secular purpose
2) have a primary affect that neither advances nor inhibits religion.
3) not produce excessive government entanglement.
Prayer and bible reading in schools are invalid as establishments of religion. See, e.g., Engel v. Vitale, 370 U.S. 421 (1962). It does not matter whether participation is voluntary or involuntary, and neither does it matter that the prayer period is designated as a period of silent prayer or meditation. This rule extends to prohibit public school officials from having clerics give invocation and benediction prayers at graduation ceremonies. Such an act would amount to coercing people to either support or participate in the exercise of religion or religion itself. Lee v. Weisman, 505 U.S. 577 (1992).
The Free Exercise Clause prohibits the government from punishing (denying benefits to or imposing burdens on) someone on the basis of the person’s religious beliefs.
A is correct. The minister’s prayer at the public high school graduation would be unconstitutional because it violates the Establishment Clause. In Engel v. Vitale, the U.S. Supreme Court found that prayer at a public school graduation cannot survive review under the Establishment Clause because students are essentially being coerced into forced participation in prayer that is state-sanctioned. This is true even if the prayer is considered “interdenominational” and passively heard without required participation.
Whether or not participation in the graduation ceremony prayer is required does not change its unconstitutionality. The fact that attendees (especially young, impressionable students) are essentially coerced into participating by just having to listen to the prayer, facilitated by the state-owned school, is in violation of the Establishment Clause.
It is irrelevant that the idea for the prayer came from the students and not school officials because the school’s act of facilitating the prayer at the ceremony violates the Establishment Clause.
The importance of the function of the school is irrelevant to an Establishment Clause analysis.
While the Constitution does not prohibit religious instruction in private schools, the support of those schools by the state could violate the Establishment Clause.
The Free Exercise Clause does not require the same kind of support to be given to private schools as that given to public schools.
What type of speech must meet strict scrutiny?
Content based speech rarely survives strict scrutiny regardless of the alternate forms of communication.
Although picketing is conduct, it is considered “expressive conduct” because: (i) the picketer intends to communicate a message; and (ii) the audience is likely to understand the message. Expressive conduct is protected by the Free Speech Clause of the First Amendment. As stated above, the ordinance is a content-based regulation of speech, which must satisfy strict scrutiny, a burden which the city would be unable to meet.
If the regulated speech concerns lawful activity and is not misleading or fraudulent what elements must be met?
The regulation will be valid if it serves a substantial government interest, directly advances the interest, and narrowly tailored to serve the government interest.
What are the requirements of commercial speech?
Commercial speech, in general, does have some First Amendment protection. In determining whether a regulation of commercial speech is valid, there is a four-step process:
1. The initial benchmark to determine whether the commercial speech concerns a lawful activity that is not misleading or fraudulent.
2. The regulation must serve a substantial government interest.
3. It must directly advance that interest.
4. It must be narrowly tailored to serve the substantial interest. This fourth part of the test does not require that the least restrictive means by used. Rather, it must be a reasonable fit between the government interest and the means chosen. Bd. of Tr. of State University of New York v. Fox, 492 U.S. 469 (1989).
The U.S. Supreme Court has held that a law barring the solicitation of accident victims within a limited time period following an accident was narrowly tailored to serve the state’s substantial interest in protecting the privacy of the victims. See Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995).
C is correct. The First Amendment invalidates any law regulating commercial speech unless the law is narrowly tailored to serve a substantial government interest. The Court has held that a law barring the solicitation of accident victims within a limited time period following an accident was narrowly tailored to serve the state’s substantial interest in protecting the privacy of the victims. See Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995). Thus, this would be the most effective argument for defending the constitutionality of the law.
What constitutes obscenity?
If an expression falls in a pre-defined “unprotected category” of speech, the government will be able to impose content-based restrictions on it, as long as the regulation is not overbroad or vague. Unprotected speech includes, but is not limited to, obscenity. “Obscenity” is defined as a description or depiction of sexual conduct that an average person would find: (i) appeals to the prurient interest in sex; (ii) portrays sex in a patently offensive way; and (iii) does not have any serious literary, artistic, political or scientific value.
“Prurient” is defined as “material having a tendency to excite lustful thoughts” and excludes materials which, although they “excite lustful thoughts,” provoke “only normal, healthy sexual desires.” See Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985). The appeal to prurient interest has been defined to include that which appeals to a shameful or morbid interest in sex. Nudity, by itself, is not considered obscene. See, e.g., Erie v. Pap’s A.M., 529 U.S. 277 (2000).
In general, commercial speech does have some First Amendment protection. In determining whether a regulation of commercial speech is valid, there is a four-step process: (i) initially, whether the commercial speech concerns a lawful activity that is not misleading or fraudulent; (ii) the regulation must serve a substantial government interest; (iii) it must directly advance that interest; and (iv) it must be narrowly tailored to serve the substantial interest.
C is correct. The store owner is likely to prevail because the video containing pictures of nude sunbathers does not constitute “obscene” and is therefore protected speech. To be considered obscene, the pictures on the video would have to amount to a depiction that an average person would have found to be excessively appealing to sex or portraying sex in a patently obvious way. However, the nude sunbathing was common where the pictures were taken, and nudity alone is not enough to be considered obscene. The images would have to appeal to morbid or shameful interests in sex, not healthy sexual desires. Here, there are no sexual activities depicted or even implied. Therefore, selling the videos would not be considered obscene speech and thus, the man would have a proper free speech defense.
A is incorrect. It is a misstatement of the law to assert that commercial speech does not receive First Amendment protection. Commercial speech does receive protection, although it is more limited than private or non-commercial speech. Specifically, when commercial speech is not unlawful, misleading, or fraudulent, a regulation placed upon it must directly advance a substantial government interest in a narrowly tailored way. As explained above, the man IS likely to prevail because selling the videos did not amount to unprotected obscene speech, which means he does have a First Amendment defense available to him.
B is incorrect. For the portrayals of nudity to appeal to the prurient interest of viewers, they must do more than incite lust. The pictures must appeal NOT to normal, healthy sexual desires, but to a shameful or morbid interest in sex. Here, there is nothing in the facts that indicate the pictures appeal to such a type of interest. Moreover, nudity alone is not considered obscene.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. The store owner is likely to prevail, but not because the nude portrayals on the videos originated outside the country. The sale of the video is the issue, and the sale itself did not occur in a foreign country. The location where the pictures on the video were taken is not relevant to whether the store owner’s constitutional rights were violated when he was prosecuted for selling the video. If the regulation had otherwise been constitutional, the state would be able to regulate it.
