Kaplan Pgs 144-166 First Amendment

Question 1

If a government program prefers one religion or religious sect over others, what is the standard of analysis?

Answer 1

Strict scrutiny under the establishment clause

Question 2

When do you use the lemon test?

Answer 2

If legislation or a government program has no religious or sect preference on its face, then apply this test

Question 3

Is it OK to have a religious activity that is done in a public school?

Answer 3

No, this violates the establishment clause because its primary purpose is to promote religion

Question 4

What are some examples of religious activities happening in a public school that have been held to be invalid?

Answer 4

– Having prayer in the Bible reading
– having a period of silence for meditation or prayer
– posting the 10 Commandments on the wall
– having a rabbi or cleric do a nondenominational prayer as part of a grad ceremony

Question 5

What it be proper for a state legislature to have a chaplain do an opening day prayer? And would it be OK for a state court judge to do the same thing?

Answer 5

Yes to the chaplain no to the judge

Question 6

Why is it not OK for a student-delivered invocation to be given at a football game even when the students voted for it?

Answer 6

Because it forces those that are present at the school sponsored event to be subjected to religion

Question 7

If a state university has a regulation that prohibits the use of its school facilities by registered student religious organizations but does not prevent the facilities from being used by other student groups, is that a violation of the establishment clause?

Answer 7

No, it is a violation of the freedom of free speech

Question 8

If a state university requires student groups to open their membership to everyone, can they deny funding to a Christian society that refuses membership to gays?

Answer 8

Yes because this is viewpoint neutral restriction. The rule is reasonable in light of the goals of ensuring that all students are included, he university doesn’t have to inquire into the group’s motives, and the university wants to bring together diverse students and avoid discrimination

Question 9

Is it constitutional to have an anti-evolution law that prohibits the teaching of Darwinian principles in public schools?

Answer 9

No

Question 10

What is the key factor to determining if holiday displays by the government are an endorsement of religion or not?

Answer 10

Looking at the context surrounding the display to see if a reasonable observer would decide that they are an endorsement of religion

Question 11

What is the reasoning behind allowing legislative bodies to have prayers to open the meetings but not to allow schools?

Answer 11

– Legislative bodies: they are not engaging in impermissible coercion just because they expose constituents to prayer
– schools: is the opposite

Question 12

How has the court upheld property tax exemptions for religious institutions?

Answer 12

Because they are the same as other terrible organizations that are also exempt

Question 13

Why is it OK for the government to give grants to church related colleges but not to parochial high schools?

Answer 13

The colleges are presumed to have instructors that are restrained by their various academic disciplines and the students are older and more mature, so they are less susceptible to indoctrination

Question 14

Why can a state not require a person to have a message on their license plate like “live free or die“ if it offends their religious beliefs?

Answer 14

Because the free exercise clause absolutely protects a person’s beliefs regarding religion

Question 15

In what circumstances can the government regulate a person’s conduct that is motivated by his religious beliefs?

Answer 15

If the regulation is neutral in respect to religion and is of general applicability. The focus under the free exercise clause is a protection of beliefs, but not necessarily of acts

Question 16

Why is it OK for a state to criminalize the possession of peyote with no exemption for Indians that use it in ritual religious ceremonies?

Answer 16

Because it is a neutral lot of general applicability, so even though it prohibits or punishes conduct that is being engaged in as a religious observance or practice, that is not the point

Question 17

What is involved in the freedom of expression?

Answer 17

The first amendment says that Congress will make no law that:
– abridges the freedom of speech
– of the press
– the right of the people to peaceably assemble
– or to petition the government for a redress of grievances

Question 18

How is the first amendment held to be applicable to the states?

Answer 18

Through the due process clause of the 14th amendment

Question 19

Under the first amendment the government is not allowed to censor all categories of speech or engage in content based discrimination, but what is the exception to this?

Answer 19

The regulation of speech is allowed if it passes strict scrutiny

Question 20

What is conduct regulation under freedom of expression?

Answer 20

If a law regulates conduct and thus creates an incidental burden on speech, that is allowed so long as:
– the regulation furthers an important or substantial government interest that is unrelated to the suppression of free expression, and
– the incidental restriction on speech is no greater than is essential to the furtherance of that interest

Question 21

When the government is the speaker, and not a private actor, is it permissible for the government to discriminate based on the content of the speech?

Answer 21

Yes

Question 22

When a city erected monuments in a public park, some that were donated by private organizations, and a religious organization asked the city to erect a religious monument, but the city refused, why would that not be a violation of the First Amendment?

Answer 22

Because the monuments constituted speech of the government, even though some were donated by private organizations. When the government speaks, it can favor some views and disfavor others

Question 23

Why is a state allowed to reject specialty license plates that have a confederate flag on them?

Answer 23

Because the government, when they are speaking, can favour some views and disfavor others

Question 24

If private individuals engage in direct communication in a public park by making speeches or distributing leaflets, can the government discriminate among the speakers based on the content of the message?

Answer 24

No because the communication is my private actors and not the government

Question 25

Why must the city allow the KKK to temporarily erect a cross on a public park when other groups have been allowed to temporarily erect installations?

Answer 25

– Temporary installations: constitute private speech

– permanent installations: constitute government speech

Question 26

What are the different categories of unprotected speech where the government can regulate these things?

Answer 26

– speech that advocates violence or unlawful action
– fighting words
– hostile audience speech
– obscene speech (includes child porn)
– defamatory speech

Question 27

What is speech that advocates violence or unlawful action?

Answer 27

Speech that is directed to inciting or producing imminent lawless action and is likely to incite or produce that action

Question 28

What are fighting words?

Answer 28

Words that are likely to incite an ordinary citizen to acts of immediate physical retaliation. The speech has to be more than annoying or offensive, it must produce a genuine likelihood of immediate violence by a hostile audience. The conduct that is proscribed cannot be vague or overbroad either

Question 29

What is hostile audience speech?

Answer 29

Speech that elicits an immediate violent response against the speaker by an audience. Police have to make reasonable efforts to protect the speaker in order to guard against a “heckler’s veto“ of unpopular speech

Question 30

How can you be sure if material appeals to the prurient interest enough to be considered obscene speech?

Answer 30

You can look at the manner that the obscene materials are advertised and sold in as being probative of their prurient appeal

Question 31

What is the test that is applied to determine if something is obscene?

Answer 31

Miller test

Question 32

Why do you not need to apply the miller test to child pornography to determine if it is obscene enough to be regulated?

Answer 32

Because the state has a compelling interest in protecting minor children

Question 33

What kind of things can the state prohibit with regard to child pornography?

Answer 33

The sale and distribution of visual depictions of sexual conduct involving kids, as well as the possession of it in your home.

Question 34

What is the deal with actual child pornography versus virtual child pornography?

Answer 34

The Supreme Court recently held a statute that outlawed both actual and virtual child pornography was overly broad and violated the first amendment.

But a follow up case said that a statute that punished those that solicited or distributed pornography while believing it depicted real children, even when it didn’t, was OK

Question 35

Can newspapers or broadcasters be held liable for publishing truthful information gotten from the public record?

Answer 35

No

Question 36

What are the categories of speech that get lower levels of protection?

Answer 36

– Commercial speech
– speech by public employees
– sexual speech

Question 37

Why can a state prevent a doctor from claiming to be board-certified in a medical specialty if the certifying organization doesn’t meet certain state standards?

Answer 37

Because that is commercial speech and commercial speech does not protect fraudulent speech

Question 38

Can the government completely been vice advertising for products like cigarettes, liquor, and gambling?

Answer 38

No

Question 39

What is the deal with speech by public employees?

Answer 39

Just because a person accepts public employment does not mean that he forgoes his rights to freedom of speech. He retains the first amendment right to speak out on matters of public concern.

But the government as an employer has a legitimate interest in regulating the speech of its employees in order to promote efficiency of its public services.

Question 40

What are the two inquiries that should be made to determine the level of protection that is given to a public employee’s speech?

Answer 40

– determine if the employee spoke as a citizen on a matter of public concern. If not, he has no first amendment cause of action based on the government employer’s reaction to the speech.
– If he did speak on a matter of public concern, ask if the government employer has an adequate justification for treating the employee differently from any other member of the general public.

In weighing the public employee’s first amendment rights against the employer’s interest in promoting public efficiency, the courts balance these things:
• how much it impairs discipline by superiors
• how much it impairs harmony among coworkers
• how much of a detrimental impact it has a close working relationships
• how much is it impedes the performance of the public employees duties
• how much it interferes with the operation of the agency
• how much it undermines the mission of the agency
• if it is communicated to the public or to coworkers in private
• if it conflicts with the responsibilities of the employee within the agency
• if it makes use of the authority and public accountability which the employee’s role entails

Question 41

Regarding speech by public employees, the government entity has broader discretion to restrict speech when it acts in its role as an employer, but those restrictions must be what?

Answer 41

Directed at speech that has some potential to affect the entity’s operations

Question 42

What are the rules for the regulation of sexual speech?

Answer 42

The government can do this if it serves a substantial government interest and the government leaves open reasonable alternative channels of communication

Question 43

When would a ban on public nudity or nude dancing in adult entertainment establishments be OK under the first amendment?

Answer 43

This has been held constitutional because of the government’s need to protect the important government interests in societal order and morality as well as the purpose of dealing with the secondary effects of establishments where there’s nude dancing such as prostitution and criminal activity

Question 44

How do time, place, manner restrictions work?

Answer 44

The government can put reasonable restraints on the time, place, and manner of speech in public areas, such as streets, sidewalks, and parks [places historically associated with expressive conduct]. The focus is not on the content of the speech, but on its method

Question 45

What is the three-part test that you apply to a time, place, manner restriction for PUBLIC AREAS?

Answer 45

The regulation must be:
– content neutral regarding both subject matter and viewpoint. The regulation cannot prefer some messages over others
– narrowly tailored to serve a significant government interest
– leave alternate channels of communication open

This test is very similar to the one for intermediate scrutiny under equal protection

Question 46

What are some examples of reasonable time, place, manner restrictions?

Answer 46

– Cities cannot put complete bans on door-to-door solicitation because homeowners can protect their privacy by posting no solicitor signs
– it is OK for a city to require door-to-door solicitors to identify themselves to local authorities in order to prevent crime
– cities can’t make canvassers register with the mayor’s office and get a permit if they are canvassing for religious proselytizing, anonymous political speech, or distributing hand bills
– charitable solicitations for funds in residential neighbourhoods are generally protected
– face-to-face solicitation of funds in an airport terminal can be prohibited, but there cannot be a total ban on the distribution of literature
– post offices can, after being requested by the homeowner, order a mailer to stop all future mailings to that address

Question 47

What are examples of non-public forums that can be regulated under time, place, manner for the first amendment?

Answer 47

Military bases, jails, government workplaces, mailboxes

Question 48

What is the test that is applied to speech related activities that are occurring on non-public forums and are regulated according to time, place, manner?

Answer 48

The regulation must be:
– viewpoint neutral, and
– reasonably related to a legitimate interest

Question 49

What are some examples of the government regulating speech in non-public forums according to time, manner, place?

Answer 49

• A state can stop demonstrations on jailhouse grounds
  – military bases can be closed to political speeches and distribution of leaflets
  – the city can sell space for commercial advertising on city buses but refuse to do that for political advertising
  – public schools can’t deny use of their facilities to religious groups if other public and private groups are allowed similar access
• the owner of a private shopping center is not required to allow access to people for picketing or leafleting

Question 50

What is involved in freedom of association?

Answer 50

State action that may curtail the freedom to associate is subject to the closest scrutiny

Question 51

What is a good example of the freedom of association?

Answer 51

• the court struck down laws that prevented the NAACP from assisting people
  – it was held to be unconstitutional for the government to order the Boy Scouts to allow homosexuals in their organization, because they said homosexual conduct was inconsistent with their values

Question 52

When it comes to public employment, can an individual be denied public employment because of his membership and political organization?

Answer 52

Not unless the position is a high level policymaking position

Question 53

When can an individual be deprived of public employment for political association?

Answer 53

– if he is an active member of a subversive organization
– if the membership is with knowledge of the illegal aims of the organization
– if he has a specific intent to further those illegal ends [such as the violent overthrow of the government]

Question 54

What is prior restraint?

Answer 54

The government cannot suppress or restrain speech in advance of its publication or utterance

Question 55

What are some examples of unconstitutional prior restraint?

Answer 55

– The government trying to enjoin the publication of the Pentagon papers
– a post office confiscating mailed materials that the postmaster general determined to be obscene
– a restraining order by a trial judge to limit media reporting of a criminal trial

Question 56

What are the exceptional cases when prior restraints are allowed?

Answer 56

– A government agency can require a pre-publication review of writings that are related to the employment of past or present employees when this review is necessary to protect national security
– classified military information
– cases involving a search and seizure. Large scale seizure of obscene material has to first have a full adversary hearing and a judicial determination of obscenity. Seizing a single book or film to preserve it as evidence in a criminal proceeding only requires a warrant first that is gotten based on probable cause determined by a neutral magistrate

Question 57

If a trial judge is going to issue a restraining order against pretrial publicity, what are the three factors he must consider?

Answer 57

– The nature and extent of the pretrial publicity
– the availability of other measures to mitigate the effects of pretrial publicity
– the likely effectiveness of the restraining order

Question 58

What must be required before there can be the prior restraint of censorship or licensing of motion pictures before their exhibition?

Answer 58

– The standards for the denial of a license must be narrowly drawn and reasonable
– when a license is denied, the censor must promptly seek an injunction
– The burden of proving that the material is obscene is on the censor
– a prompt judicial determination must be provided

Question 59

What are methods that the government frequently uses to regulate time, place, and manner of speech?

Answer 59

Often through a license or permit for things like a parade, demonstration, or rally

Question 60

If the government is going to require a license or permit in order to regulate time, place, manner, what is required in order for it to be valid?

Answer 60

Dash it must be content neutral as applied. This means that the message of the people petitioning for a license cannot be considered in granting or denying the permit
– licensing officials cannot have unfettered discretion to determine who can get a permit

Question 61

If a statue is facially void because it does something like gives the licensing officials unrestricted discretion to decide who gets a license for certain activities, what happens?

Answer 61

The speaker does not even need to apply for a permit. He can just exercise first amendment rights on public property without a permit

If a statute is valid on its face though, the applicant must seek a permit

Question 62

If someone applies for a permit from the government to engage in some kind of exercise of his first amendment rights on public property, and is denied, what can be done?

Answer 62

He can appeal the adverse ruling to the proper administrative or judicial body

Question 63

What does it mean that a state can’t have overly broad regulations?

Answer 63

When the state has the power to regulate, it cannot do so by means that are unnecessarily broad and that invade protected freedoms. The wording of a statute must be narrow and specific and not so broad that it has a chilling effect on protected speech

Question 64

What are examples of things that are overbroad?

Answer 64

– an ordinance that says it’s unlawful to use opprobrious language toward police
– an ordinance that stops speech that stirs the public to anger

Question 65

What is vagueness?

Answer 65

Regulations must be drawn with narrow specificity to avoid a due process violation

Question 66

What are some examples of statutes that have been labelled void for vagueness?

Answer 66

• statute that makes it a crime to contemptuously treat the flag of the United States
  – a vacancy ordinance that defines vagrants as vagabonds and lascivious people
  – a city ordinance that defined loitering as staying in one place with no apparent purpose

Question 67

Does the press have special rights under the first amendment?

Answer 67

No. The press has no greater freedom to speak than any ordinary member of the general public does. The press has no special right of access to government information

Question 68

What is a gag order?

Answer 68

A pretrial order that prohibits the press from publishing certain types of information

Question 69

Why are gag orders almost never held to be constitutional?

Answer 69

Because the trial judge has other alternatives at his disposal like a change of venue, postponement of trail, careful voir dire, etc.

Question 70

What is the reason that radio and TV broadcasting can be more closely regulated than the press?

Answer 70

Because of the limited number of airwaves available.

Question 71

What kind of first amendment protection does cable television get?

Answer 71

Something between broadcast TV and newspapers

Question 72

If cable TV operators are subjected to content neutral regulations, what is the standard that applies?

Answer 72

Intermediate scrutiny

Question 73

When a radio commentator played a tape on his talk show that he legally got that was recorded by another person in violation of the law, did that make it so that the radio commentator couldn’t air the tape because of the first amendment?

Answer 73

No, this was protected under the first because a stranger’s illegal conduct is not enough to remove the first amendment’s shield from speech about a matter of public concern

Question 74

Generally speaking prior restraint of publication is illegal, but what about afterward?

Answer 74

After publication there can still be civil or criminal consequences

Question 75

When a state inquires about the qualifications and fitness of candidates for admission to the bar, how is that permitted?

Answer 75

Under due process

Question 76

Is it possible to deny someone membership in the State bar because they used to be a communist party member?

Answer 76

No

Question 77

Can a state refuse bar membership to an applicant that refuses to answer questions in such a way that obstructs the bar examiner’s investigation of the applicant’s qualifications?

Answer 77

Yes