Pg 40

Question 1

What is the requirement for inciting speech?

Answer 1

– it must be intended to immediately lead to violence or lawlessness, and
– it must be made in circumstances that are likely to lead to that behaviour

Question 2

Is it considered to be inciting speech if you advocate for violence but it doesn’t incite people to immediate action?

Answer 2

No. The key is incitement

Question 3

What is a heckler’s veto?

Answer 3

Suppression of speech by the government because of the possibility of a violent reaction by hecklers. The audience is so offended they want to engage in violence to shut up the speaker.

Question 4

What is the major difference between inciting speech and fighting words?

Answer 4

– Inciting speech: spoken to a crowd

– fighting words: spoken to another person

Question 5

What is freedom of association?

Answer 5

The freedom to engage in association for advancement of beliefs or ideas as an aspect of the liberty that is assured by the due process clause of the 14th amendment. This is a necessary feature of free speech, and also includes the right NOT to associate

Question 6

What are the three major aspects of the freedom of association?

Answer 6

– Economic
– intimate association/privacy
– expressive association

Question 7

What is involved in the economic aspect of freedom of association?

Answer 7

Individuals can associate to achieve economic or other goals unconnected to fundamental rights.

This includes labour unions and trade associations.

Question 8

What is the standard that is applied if legislation is restricting activities of business associations under the freedom of association?

Answer 8

Rational basis. If legislation is rationally promoting an arguably legitimate government goal that restricts the activities of business associations, it is upheld. The government just needs a legitimate reason for the restriction

Question 9

What is involved in the aspect of freedom of association that allows for intimate association or privacy?

Answer 9

Liberty based on maintaining relationships. This protects against undue government intrusion into those relationships because it is part of the individual freedom that is central to the constitution. Individuals have the freedom to choose their spouse, family relationships, childbirth, abortion, etc.

Question 10

What is the standard that is applied to intimate association if the government attempts to restrict those activities?

Answer 10

Strict scrutiny standard

Question 11

What is involved in the aspect of freedom of association that calls for expressive association?

Answer 11

This is the right to gather to exercise some kind of fundamental right protected by the first amendment, including things like: speech, voting, assembly, and petition for grievances. This is people getting together to speak

Question 12

What is the standard if the government wishes to regulate the expressive association of people?

Answer 12

The regulation must serve a compelling state interest that is unrelated to the suppression of ideas, and this interest cannot be achieved by less restrictive means

Question 13

Can a state impose liability on an individual solely because of his association with another person?

Answer 13

No

Question 14

If a group dislikes homosexuals, under expressive association do they have to admit homosexuals to the group?

Answer 14

No

Question 15

What happened in the Jaycees case that relates to expressive association?

Answer 15

The court forced the Jaycees to admit women. The reasoning was that they were excluding women simply because they thought women would have different views, but not because they were against women on moral grounds.

So the card said they were stereotyping and if they were to admit women that wouldn’t necessarily mean admitting people that didn’t agree with them. There was a compelling state interest in stopping discrimination and that is what justified this. It is important to drill down into the basics of what the group is associating for and look at the bona fide qualifications for membership

Question 16

Do groups have the right to maintain privacy about their beliefs and membership?

Answer 16

Yes, under freedom of association they can maintain privacy about their beliefs and their members can stay anonymous. If a group is perceived as legitimate, it has a standard of strict scrutiny

Question 17

Do people have the right not to associate?

Answer 17

Yes, people have the freedom not to speak, believe, or associate. Individuals can determine what identity they want to present to the world and the government cannot force people to identify with beliefs or ideas they disagree with

Question 18

Can an individual member of an association be punished by the government for something that the association did?

Answer 18

Only if the government can show:

• knowledge or scienter of the legal objectives of the association
• intent to further those objectives
• and active membership

Question 19

How do you approach a freedom of association essay?

Answer 19

– does the challenged law burden a right of association?
– If so, what was the magnitude of the burden?
• severe: use strict scrutiny
• not severe: what is the magnitude against the importance of the state interest and the necessity of burdening association rights to satisfy it. This is an intermediate scrutiny approach: requires a substantial government interest with means chosen being precisely drawn to achieve the state school. If the burden is slight, use rational basis approach.