Individual Rights & Civil Liberties: First Amendment

Question 1

two general rules

Answer 1

o The First Amendment prohibits Congress from :

 Making any law abridging the freedom of speech or the press

 Making any law abridging the freedom of religion (Free Exercise Clause)

 Establishing a religion (Establishment Clause)

o The restrictions apply to state and local governments via the 14th Amendment

Question 2

free speech flowchart (three questions)

Answer 2

o QUESTION ONE: At what point in time is the speech being regulated?

 a. The government is trying to prevent the speech from occurring (e.g., a license to speak or gag order on the press). If so, see the Prior Restraint materials.

 b. The regulation punishes speech after it occurs. If so, move to Question Two.

o QUESTION TWO: What is being regulated?
 a. Pure Speech (e.g., oral or written language). If so, move to Question Three.

 b. Conduct/Symbolic Speech (e.g., burning draft cards or burning flags). If so, see Regulating Conduct materials.

o QUESTION THREE: What property does the speaker intend to use for speech?

 a. His or her own private property (or other private property with permission). If so, see Content-based v. Content-neutral materials .

 b. The government’s property. If so, see Government Property materials.

 c. Private property belonging to someone other than the speaker who objects to such use. There is no right to use another’s private property (including his or her mailbox) for speech.

Question 3

what to ask with content regulations; two types of content-based regs

Answer 3

o Does the law regulate the “content” of the speech or is it “content-neutral”?

 If the law regulates the content of the speech, the law must satisfy Strict Scrutiny.

 By contrast, content-neutral regulations (e.g., no amplified music after 10:00 p.m. or no loud speakers) are subject only to Intermediate Scrutiny (i.e., narrowly tailored to a significant government interest)

o There are two types of laws that are “content-based”:

 those that discriminate on the basis of subject matter (e.g., “all picketing is banned except for labor picketing”)

 those that discriminate on the basis of viewpoint (e.g., “all picketing is banned except for PRO-labor picketing”)

o ** KEY NOTE “content-based regulations” can also include a tax exemption for certain magazines if they stick to a certain type of content

Question 4

five categories of unprotected/less protected speech; level of scrutiny

**how does the analysis go?

Answer 4

o There are certain categories of speech that are unprotected or less protected and thus may be regulated or banned based on CONTENT (BUT NOT VIEWPOINT). These categories are:
 i. Clear and present danger
 ii. Threats and fighting words
 iii. Obscenity, pornography, and profanity
 iv. Defamation
 v. Commercial speech

o With the exception of the above categories, all other content-based regulations are subject to Strict Scrutiny.

o the analysis - a note on overbreadth/vagueness: even though something might fall into one of these categories (like they are definitely fighting words or obscenity) and thus be unprotected, always then check to see if the statute you are dealing with is nonetheless is overbroad/vague – remember, if the regulation punishes a substantial amount of PROTECTED speech, it is facially invalid

Question 5

less protected speech: clear and present danger

Answer 5

o i. clear and present danger: speech may be banned where it (a) is directed (i.e., intended) to produce or incite (b) imminent lawless action, and (c) is likely to produce or incite such action.

o however, most statutes attempting to ban such unprotected speech are unconstitutionally overbroad and/or vague.

Question 6

less protected speech: true threats and fighting words

Answer 6

o ii. threats and fighting words:

 true threats: “true threats”– statements meant to communicate an intent to place an individual or group in fear of bodily harm—are not protected by the First Amendment.

> > > examples: speech that willfully threatens the life of the president or cross burning with the intent to intimidate

> > > **intent to ACTUALLY carry out violence against them doesn’t matter – its just what you make the other person believe

 fighting words: speech personally directed to a specific listener or group that is likely to incite a physical retaliation (i.e., a direct personal insult or an invitation to fight) may be banned.

• but for the past 50 years, all fighting words laws have been found to be either unconstitutionally vague (e.g., laws prohibiting “offensive, annoying, or abusive” language) or not view-point neutral (laws prohibiting various types of hate speech).

Question 7

less protected speech: obscenity

Answer 7

 obscenity: obscenity is not protected by the First Amendment. Obscenity is defined as a depiction of sexual conduct that, taken as a whole, by an average adult, applying CONTEMPORARY COMMUNITY STANDARDS (state or local):

> > > appeals to the prurient (i.e., shameful or morbid) interest in sex;

> > > portrays SEX in a patently offensive way that is specifically defined by state (or federal) law; AND

> > > does not, taken as a whole, have serious literary, artistic, political, or scientific value, using a NATIONAL reasonable person standard

 the government may not ban material suitable for adults solely to protect children (e.g., banning “indecent” speech on the Internet to protect minors is invalid because it amounts to a total ban for adults)

 private possession of obscenity is protected by the First Amendment, but private possession of child pornography is not

Question 8

less protected speech: pornography and adult entertainment establishments

Answer 8

 pornography:
• adult pornography—as opposed to obscenity—is protected speech
• child pornography: material depicting sexual conduct involving actual minors may be completely banned, even if not “obscene”

 Adult entertainment establishments. Adult book stores, adult theaters, and strip joints may be limited to a particular part of the city by zoning ordinances if:

• the law is designed to promote a legitimate local interest (e.g., protect residential character of neighborhood, avoid crime or parking problems) and

• the law does not prohibit all such entertainment in the community (a zoning law may limit it to a very small part of the city)
»> **this factor is more commonly tested and often times the first factor will be a given!

Question 9

less protected speech: defamation

Answer 9

o iv. Defamation. Defamatory speech is not protected by the First Amendment. See the torts outline.

 Laws punishing false statements that do not constitute defamation or commercial speech (e.g., wearing unauthorized military medals) are subject to strict scrutiny (because they are content-based) and will rarely be upheld

 Privacy Torts/Crimes. The media may not be subject to criminal or civil liability for publishing truthful information about a public matter (e.g., rape victim’s name) that was either lawfully obtained (e.g., from court records) or was illegally obtained by someone other than the media.

 Neither the public nor the press has a constitutional right to government information or to attend federal government meetings, etc., except for criminal trials (all important parts of a criminal trial must be open to the public and the press).

Question 10

less protected speech: commercial speech (examples of invalidated restrictions)

Answer 10

 False, misleading, and deceptive commercial speech, as well as the advertisement of illegal activities, may be banned
• Under this rule, a state may ban attorney in-person solicitation of fee-paying clients and contact with accident victims within 30 days of an accident.

 All other commercial speech is protected by the First Amendment and may be regulated only if the government satisfies a test similar to Intermediate Scrutiny (i.e., the government shows that the law directly advances a substantial interest and is no more extensive than necessary).

Under this test, the following types of laws have been invalidated:
• total or near total bans on the advertisement of legal products or services, such as abortions, contraceptives, prescription drug prices, alcohol prices, alcohol content
• laws banning news racks for “commercial” publications, but allowing news racks for newspapers
• laws banning tobacco ads within 1000 feet of schools
• laws banning “for sale” signs on real estate
• laws banning in-person solicitation by accountants

Question 11

rule for profanity

Answer 11

 Profanity. Profane and indecent language is generally protected by the First Amendment.
• Exceptions: broadcast media (but not cable or the Internet) and public schools (K-12)

Question 12

how to analyze govt ppty questions (and 4 types)

Answer 12

 If a question involves a person or group wishing to use government property for speech, one must determine what type of property is at issue, as that will determine the test to apply.

public forums
designated/unlimited public forums
non-public forums
limited public forums

Question 13

public forums (and test)

Answer 13

 Public Forums. These include major sidewalks, streets, and parks.

• For the government to regulate speech in such public forums, the regulation must be:

o (a) content-neutral, OR
»> i.e. if its content-based, it gets strict scrutiny

o (b) a reasonable time, place and manner restriction that leaves open alternative channels of communication. (remember: for TPM restrictions, the government is NOT required to use the least restrictive means of accomplishing its goals.)

***** THE REAL TEST: to be a reasonable TPM restriction, the law must be (content neutral, and) narrowly tailored to a significant govt interest and leave open adequate alternatives of communication

Question 14

designated public forums (and test)

Answer 14

 Designated (Unlimited) Public Forums. These are non-public forums that the government has opened by policy or practice to speech. Designated public forums are subject to the same rules as public forums, but the government may close the property entirely at any point.

• Example: if a high school opens its classroom after hours to community groups, it must allow access to all groups, including religious groups (i.e., it must be content-neutral).

Question 15

non-public forums (and test and examples)

Answer 15

 Non-Public Forums. All other government property is non-public.

• The government may regulate speech in non-public forums if the regulation is:
»> (a) viewpoint neutral, AND
»> (b) reasonably/rationally related to a legitimate government purpose.

• Examples of non-public forums: military bases, schools, government workplaces, courthouses (and grounds), prisons and jails (and grounds), post office sidewalks, street signs, etc. (no right to post signs), airport terminals, political debates on public television, ad space on city buses, government radio stations, and polling places on election day.

Question 16

limited public forums (and test)

Answer 16

 Limited Public Forum: A limited public forum arises when the government opens a non-public forum but limits the expressive activity to certain groups or to certain subjects, such as state university meeting facilities available for student groups or open school board meetings. Limited public forums are subject to the same test as non-public forums.

Question 17

special govt ppty rule: schools

Answer 17

 Public Schools (K-12). The First Amendment protects the free speech rights of public school students.

• However, the Supreme Court has identified four categories of speech that school officials may constitutionally restrict:

o (1) school-sponsored speech (e.g., a school newspaper);

o (2) vulgar, lewd, or obscene speech;

o (3) speech promoting illegal drug use; and

o (4) speech that does not fit within the first three categories, but nonetheless causes a material disruption to the educational process, is reasonably likely to do so, or interferes with the rights of other students.

• Public schools usually may not regulate a student’s off-campus speech (e.g., a school may not punish a student for sending vulgar Snapchat messages off-campus).

Question 18

special govt ppty rule: govt workplace

Answer 18

 Government Workplace. If the speech is made pursuant to an employee’s official duties, a government employer may punish the employee for such speech, even if it involves a matter of public concern. If the speech is NOT made pursuant to the employee’s official duties, the following tests apply:

• If the speech does not involve a matter of public concern (e.g., petition circulated intra-office regarding the employer’s transfer policies), the government may punish the employee if the speech was disruptive to the work environment.
• If the speech involves a matter of public concern (e.g., letter to the media attacking superintendent’s proposals to raise revenue), the court will balance the employee’s right as a citizen to comment on a matter of public concern against the government’s interest in efficient performance of public service.

Question 19

special govt ppty rule: prisons

Answer 19

 Prisons. Speech may be regulated in prisons if reasonably related to legitimate penological interests. A restriction on incoming mail will be upheld if it is rational; a restriction on outgoing mail must be narrowly tailored.

Question 20

rule, test, and examples for regulation of conduct/symbolic speech

Answer 20

o Expressive Conduct requires:

 Intent to express and idea, AND

 a likelihood that that idea will be understood

o The government may regulate symbolic speech if:

 (a) the regulation furthers an important government interest

 (b) that is unrelated to the suppression of speech, AND

 (c) the burden on speech is no greater than necessary.

o Under this test, the Supreme Court has UPHELD regulation of the following conduct:

 draft-card burning, public nudity, nude dancing, littering, overnight sleeping in public parks

 However, the Court has INVALIDATED regulation of inherently expressive conduct, such as flag burning, cross burning (unless done with the intent to intimidate others), swastika painting, and the wearing of black armbands by students.

Question 21

rule on prior restraints and 3 types

Answer 21

o Prior restraints on speech are presumptively void. There are three types of prior restraints:

judicial orders
licensing/permit schemes
physical seizure/prohibition

**the key to distinguishing these from all other laws is that they must fit into one of these three categories!

Question 22

prior restraints: judicial orders prohibiting speech

Answer 22

 i. Judicial orders prohibiting speech: For a court to enter an injunction or other order prohibiting speech, such as a gag order on the press, the court must satisfy Strict Scrutiny, which it will rarely be able to do.

• According to the Collateral Bar Rule, a person must comply with a court injunction even if it is unconstitutional. Failure to do so will result in contempt.
• A prior restraint is permissible when the parties have contractually agreed to the restraint (e.g., court enforced agent’s agreement to give CIA prepublication review of any proposed publications) or in case of national security (e.g., First Amendment would not bar injunction against publishing the date of sailing for troop ships in time of war).

Question 23

prior restraints: licensing and permit schemes

Answer 23

 ii. Licensing and permit schemes: If there is an ordinance or other law requiring a person to obtain a permit or license to speak, march, etc., such system must provide (1) definite standards for the granting of the license or permit; (2) no discretion in the granting official (including discretion to charge different amounts); (3) prompt issuance; and (4) prompt judicial review.

• If a licensing scheme is procedurally improper, the speaker may ignore the scheme and raise a First Amendment challenge in later proceedings.
• If the scheme is facially proper, the speaker must follow these procedures or he or she will be barred from raising First Amendment issues in a later prosecution.

Question 24

prior restraints: physical seizure/prohibition

Answer 24

 iii. Physical Seizure or Prohibition: The government physically seizes the means of speech (e.g., printing press, film, computer) or prohibits certain types of speech from using the postal system.

Question 25

taxing/regulating the press; reporter’s privilege

Answer 25

o i. Taxing and Regulating the Press. The press and other media are subject to general business regulations and taxes, but may not be singled out for special regulations or taxes.

 There is no “reporter’s privilege” under federal law; thus, reporters may be forced to divulge their sources at grand jury proceedings and trials.

Question 26

freedom of association

Answer 26

o ii. Freedom of Association. There is an implied freedom of association in the First Amendment, which prohibits regulation (including anti-discrimination laws) of intimate, private groups and clubs, but not large clubs with unselective membership or that are used for business contacts. Also, expressive groups (Boy Scouts) can have exclusive membership, even if the group was not formed for the sole purpose of propagating a particular message.

Question 27

political contributions

Answer 27

o iii. Political Contributions. The government may limit the amount a person may give to a particular candidate, but may not limit the amount a person or group may spend on an election or referendum. The government also may not limit the amount a person spends on his or her own campaign. But the government may ban personal solicitation of funds by judicial candidates.

Question 28

loyalty oaths for govt employment/licenses

Answer 28

 The government MAY REQUIRE a person to swear to support the constitutions (state and federal) or swear to oppose unlawful attempts to overthrow the government to obtain government employment or become a member of the bar.

 Persons CANNOT be required to “support the flag” or swear not to “advocate” an overthrow of the government as an abstract idea.

Question 29

group membership

Answer 29

o v. Group Membership. A person may not be punished or precluded from public employment, etc. because of membership in an organization (e.g., the communist party), unless that person was a knowing and active member with the specific intent to further the organization’s unlawful aims. Laws that require groups to disclose membership are subject to strict scrutiny.

Question 30

govt funding of speech

Answer 30

o vi. Government Funding of Speech. Government funding may be content-based, as long as it is view-point neutral (e.g., the government may choose artists, etc. to which to give grants)

 But if a college gives financial support to student groups, it may not exclude religious groups.

 The First Amendment is violated when money is taken from nonconsenting government employees for a public-sector union; employees must choose to support the union before anything is taken from them.

Question 31

overbroad and vague

Answer 31

o vii. Overbroad and Vague. Laws that are vague or overbroad are not enforceable, and may be facially challenged (even by those whose speech would not be protected). A law is overbroad if it prohibits substantially more speech than required (e.g., “all live entertainment”). A law is vague if a reasonable person would not know what speech is prohibited (e.g., “all First Amendment activities”).

 A vague or overbroad state statute may be saved if the courts of that state have limited its application to unprotected speech.

Question 32

right not to speak

Answer 32

o viii. Right Not to Speak. The First Amendment protects a person’s right not to speak (e.g., a person may tape over the statement “Live Free or Die” on license plates; a person may not be forced to salute or pledge to the flag; and a clinic may not be forced to give patients a government-drafted notice about the availability of abortion and contraception); moreover, a person has the right to speak anonymously.

Question 33

intellectual ppty

Answer 33

o ix. Intellectual Property. The First Amendment does not protect the publication of a private performance (without the consent of the performer) or the republication of copyrighted material (without the consent of the author). In addition, the government’s denial of a trademark application on grounds that the trademark is “derogatory” is an unconstitutional suppression of free speech.

Question 34

free exercise clause (general rule)

Answer 34

FEC = laws LIMITING religion

o The First Amendment prohibits Congress from passing any law abridging the freedom of religion – i.e. this clause says that the gov’t can’t punish conduct solely because it is religious

o The 14th Amendment incorporates this clause, thus making it applicable to state and local governments. “Religion” includes any sincerely held religious-like beliefs.

o General Rule: The free exercise clause may not be used to challenge a neutrally applied law of general applicability (e.g., criminal laws or tax laws). If, however, the purpose of a law is to single out religion for adverse treatment or to hinder or discriminate against a particular religion, that law will be subject to strict scrutiny (e.g., the Court invalidated a law banning animal sacrifice that was motivated to exclude a religious sect from the city).

Question 35

free exercise clause - 5 special rules

Answer 35

o Special Rules:

 1. A person who quits a job or fails to take a job because of sincerely held religious beliefs may not be denied unemployment benefits (e.g., refusing to work on Sabbath, refusing to produce armaments); a person can, however, be denied such benefits if he or she is fired for a violation of the criminal laws (e.g., peyote use).

 2. Religious oaths may not be required for government employment.

 3. Amish children are exempt from mandatory secondary education.

 4. Religious organizations are exempt from employment discrimination suits brought by ministers and other ministerial employees.

 5. A state may not ban religious groups from receiving government benefits (e.g., a state program to provide free playground materials must provide such materials to eligible religious and nonreligious organizations).

Question 36

establishment clause (general rule)

Answer 36

establishment clause = laws SUPPORTING religion

o Congress shall make no law respecting the establishment of religion. The 14th Amendment incorporates this clause, thus making it applicable to state and local governments.

There is a three-part test (i.e., the LEMON TEST) for Establishment Clause issues; to be valid:

 i. The law’s primary PURPOSE must be secular

 ii. The EFFECT of the law must not be to advance or inhibit religion (in other words, the government must not symbolically endorse religion)

 iii. There must not be excessive government ENTANGLEMENT with religion

** so if it hits any of these, i.e. has a sect preference, the law gets strict scrutiny

** we use Lemon (or one of the lesser known tests) instead of strict scrutiny for Establishment Clause cases

Question 37

establishment clause: K-12; sponsoring activities

Answer 37

 Activities. Government sponsored religious activities in public schools (elementary, middle, and high school) are unconstitutional

• all school prayer (including voluntary, silent, and student-run) during school, at graduation, or at sporting events is unconstitutional
• bible reading and the teaching of creationism (or the prohibition of teaching evolution) is unconstitutional, but the academic study of religion is constitutional
• posting the Ten Commandments in public schools is unconstitutional
• but schools may allow students to leave early to attend religious instruction off-campus

Question 38

establishment clause: K-12 financial aid

Answer 38

 Financial Aid. As a general rule, government programs providing assistance to all elementary and secondary school students—including students at religious schools—is constitutional, but there are a few exceptions

• constitutional aid: free secular textbooks; reimbursement for transportation to and from school; public health services; reimbursement for diagnostic and state-prepared tests; sign-language interpreters; remedial education, guidance counseling
• unconstitutional aid: transportation for field trips, payment of teachers’ salaries, reimbursement for teacher-prepared tests

Question 39

establishment clause: K-12; tuition

Answer 39

 Tuition. Direct subsidies to religious schools are impermissible, but vouchers to parents, which may be used for religious and non-religious schools, are constitutional

• in addition, tax deductions and credits for tuition, school supplies, etc. are valid if they are available to the parents of all students

Question 40

5 misc establishment clause rules

Answer 40

 Holiday scenes are permissible if they include both religious and non-religious symbols (e.g., a snowman)

 The 10 Commandments may not be displayed on government property, unless they are displayed with other historical documents (e.g., Magna Carta, Declaration of Independence) in an appropriate context

 Longstanding monuments with historical significance (e.g., a 40-foot cross at a WWI memorial) do not violate the Establishment Clause

 Government action that prefers one religious sect over another violates the Establishment Clause (e.g., a law creating a public school for Jewish students is unconstitutional)

 State legislatures and town councils may have a chaplain for historical reasons

Question 41

establishment/free exercise play in the joints (and example)

Answer 41

• “play in the joints”: there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause

o ex) case where gov’t funds were given to student to pursue a degree in whatever they wanted, excluding theology
»> not a violation of the Establishment Clause because it was ultimately a private choice on how to use the funds
»> BUT also not required by Free Exercise because “that a state would deal differently with religious education for the ministry than with education for other callings is not evidence of hostility toward religion”