Freedom of Speech and Religion Flashcards
What are some general restrictions that may be placed on the right to free speech?
Time, place, and manner in a public forum.
Content - obscenity restrictions to prevent unwelcome exposure; “fighting words” that may incite a breach of the peace
What prompted Texas v. Johnson?
Gregory Lee Johnson burned an American flag during a protest in Texas and was convicted of desecrating a venerated object in violation of a Texas statute
What is the O’Brien test?
Is the government interest unrelated to the suppression of free expression? If so, it is not a violation of the freedom of speech.
How did Texas contend its interests were not in the suppression of free speech?
It had an interest in preventing breaches of the peace and preserving the flag as a symbol
How did the majority respond to Texas’ assertions?
Johnson’s actions do not qualify as “fighting words”, and his general protest could not reasonably be construed as inciting a breach of the peace.
The flag may be a symbol, but where do we draw the line on what symbols cannot be used for expression? Texas clearly took issue with the content of Johnson’s expression, not the burning itself, given laws permitting the burning of flags for disposal.
What is defamation?
A cause of action for harm as a result of false statements
What is required for a finding of defamation involving a public figure, how is that different from private figures?
There must be “actual malice”, the “knowledge that it was false or with reckless disregard of whether it was false or not.”
A private figure does not have to show actual malice
When do government officials lose immunity from liability for defamation?
If their commentary is far removed from their governmental authority/position. Executive officials only have qualified immunity, meaning they must show good faith in making an allegedly defamatory statement.
What is “fair report privilege”?
Members of the media can report others’ false statements if they are fair and accurate.
What is the establishment clause?
Congress may make no laws respecting the establishment of religion (no official religion may be declared)
What is the lemon test?
In determining if a statute violates the establishment clause, three questions are asked:
- Does the statute have a secular legislative purpose?
- Does its principal effect advance or prohibit religion?
- Does the statute foster excessive government entanglement with religion?
What prompted Van Orden v. Perry?
Thomas Van Orden took issue with a monument inscribed with the Ten Commandments being on Texas State Capitol grounds. He said it violated the establishment clause
How did the majority avoid applying the Lemon Test to Van Orden v. Perry?
It said that, given the long history of christianity in the U.S., the Ten Commandments was both a religious and historical monument. This dual significance does not violate the establishment clause
What is the Free Exercise clause?
No law can prohibit the free exercise of religion. A law targeting a religion must be narrowly tailored to further a compelling government interest
