Indiv Rights: Freedom of Speech, Association, Religion Flashcards
Scope of “Speech”
The freedom to speak includes the freedom NOT to speak. Thus, the government generally cannot require people to salute the flag or display other messages with which they disagree (e.g., a person need not display the state motto “live free or die” on a license plate).
The freedom can extend to SYMBOLIC ACTS undertaken to communicate an idea (e.g., wearing a black armband to protest war), although the government may regulate such acts if:
The government has an important interest independent of the suppression of speech;
AND
The incidental burden on speech is no greater than necessary to further that interest.
Overbreadth Doctrine
Void for Vagueness Doctrine
Overbreadth Doctrine. If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid
(e.g., a regulation outlawing ALL 1st Amendment activity in an airport terminal; a regulation prohibiting all canvassers from going onto private residential property to promote ANY cause without first obtaining a permit).
Void for Vagueness Doctrine. A statute or regulation is void for vagueness IF it does not put the public on reasonable notice as to what is prohibited. (Look for “any or all form” “any or all kind” “any speech”
Free Speech Prior Restraints
A prior restraint is a regulation of speech that occurs before its expression. Generally, prior restraints are presumed to be unconstitutional with limited exceptions, including:
There is a particular harm to be avoided (e.g., restraining a newspaper from publishing troop movements, gag orders, injunctions, ban publishing of a book).
Procedural safeguards are provided to the speaker (e.g., the standards must be narrowly drawn, reasonable, and definite).
Content v. Conduct based speech regulations
Speech regulations can generally be categorized as either:
Content-based (regulations forbidding communication of specific ideas);
OR
Conduct-based (regulations of the conduct associated with speaking, such as the time of speech, sound level, etc.).
Content-Based Restrictions. It is presumptively unconstitutional to place burdens on speech because of its content, except for certain categories of unprotected speech (e.g., obscenity, defamation, etc.). However, content-neutral speech regulations generally are subject to intermediate scrutiny – they must:
Advance important interests unrelated to the suppression of speech;
AND
NOT burden substantially more speech than necessary (i.e., narrowly tailored) to further those interests.
Conduct-Based Restrictions. Conduct related to speech can be regulated by content- neutral time, place, and manner restrictions.
Time, place, and manner restrictions for conduct-based restrictions on free speech
The government has power to regulate the conduct associated with speech, although the breadth of this power depends on whether the forum involved is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.
Time, place, and manner restrictions for conduct-based restrictions on free speech: Public Forums and Designated Public Forums
Public property that has historically been open to speech-related activity is called a PUBLIC FORUM (e.g., streets, sidewalks, and public parks).
Public property that has NOT historically been open to speech-related activities, but which the government has made open for such activities on a permanent or limited basis, by practice or policy is called a DESIGNATED PUBLIC FORUM (e.g., schoolrooms that are open for after-school use by social, civic, or recreation groups).
The government may regulate speech in public forums and designated public forums with reasonable time, place, and manner regulations that:
Are content-neutral (i.e., are subject matter and viewpoint neutral)
Are narrowly tailored to serve an important government interest;
AND
Leave open alternative channels of communication.
Time, place, and manner restrictions for conduct-based restrictions on free speech: LIMITED Public Forums and NonPublic Forums
Government property that has NOT historically been linked with speech and assembly but has been opened for specific speech activity is called a LIMITED public forum (e.g., school gym opened to host a debate on a particular community issue).
Government property that has NOT historically been linked with speech and assembly and has NOT been opened for specific speech activity is called a NONPUBLIC forum (e.g., military bases, schools while classes are in session, government workplaces, etc.).
The government may regulate speech in limited public forums and nonpublic forums if the regulations are:
Viewpoint neutral; AND
Reasonably related to a legitimate government purpose
Unprotected Speech
To be valid, restrictions on the content of speech must be necessary to achieve a compelling government interest. The government has a compelling interest in the following categories of speech, which are deemed “unprotected speech” under the 1st Amendment:
Inciting imminent lawless action;
Fighting words;
Obscenity;
Defamatory speech; AND
Some commercial speech
Inciting imminent lawless action
Speech can be restricted if it creates a clear and present danger of imminent lawless action. It must be shown that:
Imminent illegal conduct is likely; AND
The speaker intended to cause it.
Fighting words
True threats are NOT protected by the 1st Amendment (e.g., cross-burning carried out with an intent to intimidate).
Speech also can be limited if it constitutes fighting words. Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person. Words that are merely insulting or annoying are not enough.
The Supreme Court will NOT tolerate fighting words statutes that are designed to punish only certain viewpoints (e.g., prohibiting only fighting words that insult on the basis of race, religion, or gender).
Obscene speech
Obscene speech is NOT protected. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:
Appeals to the prurient interest in sex, using a LOCAL community standard;
Is patently offensive; AND
Lacks serious literary, artistic, political, or scientific value, using a NATIONAL reasonable person standard.
Commercial Speech
Generally, commercial speech is afforded 1st Amendment protection if it is truthful.
However, commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent may be restricted as unprotected speech.
Any other regulation of commercial speech will be upheld only if it:
Serves a substantial government interest;
Directly advances that interest; AND
Is narrowly tailored to serve that interest.
Therefore, complete bans on truthful advertising of lawful products are very unlikely to be upheld due to a lack of narrow tailoring.
Freedom of Association
Freedom of Association protects the right to form or participate in any group, gathering, club, or organization without government interference.
However, the government may infringe upon this right if they can satisfy strict scrutiny.
Public Employment. A person may only be punished or deprived of public employment
based on association if that individual:
Is an active member of a subversive organization;
Has knowledge of the organization’s illegal activity; AND
Has a specific intent to further those illegal objectives
The Free Exercise Clause
The Free Exercise Clause prohibits the government from punishing someone on the basis of her religious beliefs or interfering with her exercise of religion. E.g., it forbids:
State governments from requiring office holders or employees to take a
religious oath;
States from excluding clerics from holding public office; AND
Courts from declaring a religious belief to be false.
The Supreme Court has not defined what constitutes religious belief, but it is clear that religious belief need not come from an organized religion or involve a supreme being. The court has NEVER held an asserted religious belief to be not religious for 1st Amendment purposes.
NOTE. The government can deny benefits or impose a restriction on someone based on her religious beliefs so long as there is a compelling interest (i.e., meets strict scrutiny). However, the Supreme Court has never found an interest so compelling that it justifies such action.
The Establishment Clause
The Establishment Clause, along with the Free Exercise Clause, compels the government to pursue a course of neutrality toward religion. Government action challenged under the Establishment Clause will be found invalid, unless the action:
Has a secular purpose;
Has a primary effect that neither advances nor inhibits religion;
AND
Does NOT produce excessive government entanglement with religion.
This is known as the Lemon Test. However, some recent cases have simply focused on whether the action is neutral between the religious and nonreligious when there is no endorsement of a particular religion.
