Freedom of Speech/Assembly Flashcards
1st Amendment
congress can’t establish religion, interfere with free exercise, abridge freedoms of speech/press, or right of assembly
- does not apply to gov’s speech
14th Amendment
state can’t establish religion, interfere with free exercise, abridge freedoms of speech/press, or right of assembly
Free speech clause
- restricts gov regulation of private speech
2. gov can choose which private speech to fund, subject to constitution (establishment clause, EPC)
Government speech
upheld, if RATIONAL BASIS
1st A does not apply to gov speech
- spending programs can’t impose conditions that limit 1st A activities
- city placement of monument is gov speech, even if privately donated
- must fund private messages on viewpoint neutral, except art (must be content based)
Categories of speech/assembly regulations
- content based- forbid communication of specific ideas
- can only place burdens on obscenity, defamation (STRICT)
- content neutral (INTERMEDIATE)
- conduct- regul of the conduct assod with speaking (time, place, manner, sound level) (INTERMEDIATE)
Overbroad regulation of speech
sweeping = facially invalid
Void for vagueness doctrine
criminal law or regulation fails to give persons reasonable notice of what is prohibited vio DPC
Freedom not to speak
extends to symbolic acts
unless, gov has important interest independent of speech aspects of the conduct and burden is no more than necessary
Compelling financial support
- gov can tax people and use to express message
- private associations can’t force people to pay them
- public schools can req student fee to support student groups as long as content neutral
Content neutral
subject matter neutral, viewpoint neutral
Time place manner restrictions depends on forum
- public/designated public- historically open to speech related activity (sidewalk, park); or gov opened for activity on limited basis (school room, rec area)
- gov may regulate time place manner of speech, if:
- content neutral
- narrowly tailored, important gov interest, need not be least restrictive means
- leaves open alternative channels of communication
- limited public forum/nonpublic forum- gov prop not historically open for speech except specific activity (school gym for community debate); gov property not held open for speech (military base, school in session, gov workplace).
- gov may regulate to reserve forum for use, if:
- viewpoint neutral
- reasonably related to a legit gov purpose
Content based injunction
STRICT
Content neutral injunction
INTERMEDIATE, no more burden than necessary
Content based, categories and analyze:
To restrict content based, STRICT
gov needs compelling interest in these unprotected areas of speech:
- imminent illegal conduct is likely and speaker intended to cause it
- fighting words (usually invalid, too broad)
- obscenity- depicts sexual conduct, avg person finds:
- appeals to prurient interest in sex (community)
- patently offensive (community)
- lacks serious value (literary, artistic, political, scientific) (national reasonable person)
Obscenity for minors
state can adopt specific definition for minors
1. may prohibit sale of sexual conduct involving real minors
Land use regulations
state may limit location/size of adult entertainment if designed to reduce secondary effects (rise in crime, drop in prop value).
- can’t ban completely
Defamatory speech
about public official/figure, public concern 1st A requires P to prove: 1. all elements of defamation 2. falsity 3. some degree of fault
Commercial speech
- 1st A protection if truthful
- may be regulated, if it proposes unlawful activity, misleads/fraudulent
- other regul of commercial speech upheld if:
- serves subs gov interest
- directly advances that interest
- narrowly tailored to serve that interest
- gov may require disclosures in ads
Prior restraints
- court order/admin system that prevent speech before it occurs (rare)
- gov must show special societal harm will otherwise result
- standard is narrowly drawn, reasonable, definite
- injunction promptly sough
- prompt and final determination of validity of restraint
- gov BOP
Press access to trials
1st A guarantees public right to attend criminal (probably civil) trials.
- may be outweighed by interest in protecting findings
Press testify
may be required to testify before grand juries
Press tax
can’t target for special taxes based on content of publication (STRICT)
Freedom to associate
STRICT to infringe right, compelling gov interest unrelated to the suppression of ideas, least restrictive means
Laws regulating elections, analyze:
- if the restriction on a 1st A activity is severe STRICT
- if the restriction is reasonable and nondsicrim, upheld
limit on election campaign contrib = INTERMEDIATE
Restraints on government employee speech
- gov er may punish gov ee speech if made on job, pursuant to official duties, even if speech is a matter of public concern
- speech not pursuant to official duties, NOT a matter of public concern = gov er has discretion if speech disruptive to work enviro
- speech not pursuant to official duties, matter of public concern = ct must balance gov interest in efficient performance and matter of public concern
Loyalty oaths
gov may require ee to take oaths.
- can’t prohibit membership or require abstention from advocating overthrow of gov
- can’t be overbroad or vague
Free exercise clause
forbids:
- state gov from req office holders or ee to take a religious oath
- states from excluding clerics from holding public office
- cts from declaring a religious belief to be false
- regulation must be specifically designed to interfere with religion
- clause does not req religious exemptions from generally applicable regulations that may burden religious conduct
Establishment clause
neutrality towards religion, no favoring/burdening of one religious group
Lemon test– gov action invalid, unless:
- has secular purpose
- has primary effect that neither advances nor inhibits religion
- does not produce excessive gov entanglement with religion
2 clauses for religion
establishment clause
free exercise clause
Lemon test
neutrality towards religion, no favoring/burdening of one religious group
Establishment clause– gov action invalid, unless:
- has secular purpose
- has primary effect that neither advances nor inhibits religion
- does not produce excessive gov entanglement with religion
Financial benefits to religious institutions
Establishment clause
- gov may aid to class without ref to religion, valid even if a religious affiliated school
- gov may aid as long as program req use for non religious purposes
School and religion
school sponsored religious activity - invalid
school accommodation - valid
