Individual Rights - First Amendment

Question 1

What issues concern the Freedom of Religion?

Answer 1

1. The Free Exercise Clause

2. The Establishment Clause

Question 2

What is the Free Exercise Clause?

Answer 2

The Free Exercise Clause bars any law that prohibits or seriously burdens the free exercise of religion, unless there is compelling government interest.

Except: A law of general applicability that does not. intentionally burden religious beliefs and advances important public interests is allowable.

Question 3

What is the Establishment Clause?

Answer 3

The Establishment Clause prohibits laws respecting the establishment of religion. The government can’t endorse or favor specific religious groups.

If the government expresses a sect preference, then the court will apply strict scrutiny.

If no sect preference, the court will apply the Lemon Test

Question 4

What is the Lemon Test?

Answer 4

If the government action contains no sect preference, it must satisfy the Lemon Test:

1. The action must have a secular purpose
2. The action must have a primary secular effect, which neither advances, nor inhibits religion, and
3. The action must not foster excessive government entanglement with religion

Question 5

What are two classes of speech under consideration under the Freedom of Speech?

Answer 5

1. Content-based speech

2. Content-neutral speech

Question 6

What is the Religious Freedom Restoration Act?

Answer 6

The RFRA allows a person to challenge a federal law of general applicability if there is a substantial burden of religious free exercise and the government must meet strict scrutiny

Question 7

What level of review will be used to review content-based speech?

Answer 7

Strict Scrutiny. Regulations analyzed under strict scrutiny are rarely allowed.

Question 8

What speech is unprotected?

Answer 8

Unprotected categories of speech include obscenity, fraudulent misrepresentation and defamation, advocacy of lawless action, and fighting words

Question 9

How do you identity obscenity?

Answer 9

Obscenity is speech that depicts sexual conduct of some sort that

(1) Appeals to prurient interests
(2) Is patently offensive
(3) Lacks serious Literary, Artistic, Political, or Scientific value

Question 10

What level of scrutiny is used for content-neutral speech?

Answer 10

Content-neutral uses something like an intermediate level of scrutiny. The regulation must serve a significant/important government interest, be narrowly tailored to serve that interest, and leave alternate channels of communication open.

Question 11

What are time, place, and manner restrictions?

Answer 11

Time, place, and manner restrictions seek to regulate speech based on the external factors of the time, place, and manner in which the speech may be communicated.

These restrictions identify two spaces:

1. Public and designated public forums
2. Limited and nonpublic forums

Question 12

How do you define public and designate public forums>

Answer 12

Public forums are forums generally open to the public. Designated public forums are forums that are not traditionally open to the public but are opened to the public for a specific purpose.

Speech restrictions in public and limited public forums must:

1. Be content neutral and viewpoint neutral
2. Serve a significant/important government interest
3. Leave alternative channels of communication open

Question 13

How do you define limited and nonpublic forums?

Answer 13

Limited public forums are forums open to the public for limited use by certain groups or discussion. Nonpublic forums are forums that are closed to the public.

Speech restrictions in limited and nonpublic forums must:

1. Be viewpoint neutral
2. Serve a legitimate government interest
3. Be reasonably related to serve that interest

Question 14

What restrictions are placed on commercial speech?

Answer 14

The government may restrict commercial speech only if the regulation serves a substantial government interest, directly advances that interest, and is narrowly tailored such that there is a reasonable fit to serve that interest (not necessary for narrowly tailoring)

Question 15

What is symbolic speech?

Answer 15

Symbolic speech is the freedom not to speak or the freedom to communicate an idea by use of symbol or communicative conduct. The government may restrict symbolic speech if the regulation is within the constitutional power of the government to enact, furthers an important governmental interest, and prohibits no more speech than necessary

Question 16

What is a challenge for vagueness?

Answer 16

A speech regulation is unconstitutionally vague if it is so unclearly defined that a reasonable person would have to guess

Question 17

What is a challenge for overbreadth?

Answer 17

A speech regulation is unconstitutionally overbroad if it bans both protected and unprotected speech

Question 18

What is unfettered discretion?

Answer 18

A regulation, licensing scheme, or permit regulation is unconstitutional if it leaves unfettered discretion to the decisionmaker by not setting forth a narrow and specific grounds for denying a permit or where a permit discretion is not closely tailored to the regulation’s objective.

Question 19

What are prior restraints?

Answer 19

Prior restraints prevent speech from being heard before it even occurs. A prior restraint is rarely allowed, but only allowed where the government can show that some irreparable or serious harm to the public will occur and then there must be narrowly drawn standards and a final determination of the validity of the restraint.

Question 20

What is the freedom of association?

Answer 20

The freedom of association is the right of individuals to freely associate with others in a group. The government can only prevent freedom of association or require it if there are compelling government interests that are narrowly tailored.