Regulating Religion & Speech Flashcards
What does the Free Exercise Clause protect?
Belief in religion.
What is the principal behind the freedom of expression?
Prohibiting the government from distorting the marketplace of ideas
Unlawful advocacy occurs when?
- The speaker intends to bring about imminent unlawful action, and;
- Will actually bring about the action.
* More Info:* Unlawful Advocacy
What qualifies as fighting words as a form of unprotected speech?
Fighting words are likely to provoke an immediate violent reaction (e.g. direct personal insult).
Statutes banning fighting words cannot be: (1) vague or overboard; and, (2) cannot punish specific viewpoints.
Define hostile audience speech.
Hostile audience speech occurs when words will incite a crowd reaction to harm the speaker.
Define a prior restraint on speech.
When the government blocks speech before it is uttered. There is a strong presumption against this type of government action.
Define a public forum.
A place where the public generally goes and talks (i.e. parks and sidewalks) with unrestricted access.
More Info: Public Forum
What are the elements required for unprotected obscene speech?
- The work appeals to sexual interests +
- The work depicts or describes in a patently offensive type of sexual conduct specifically banned by state statute +
- The work taken as a whole lacks serious artistic, literary, political, or scientific value.
If commercial speech is neither false nor unlawful, what is the test for government regulation of that speech?
(1) The speech serves a substantial governmental interest +
(2) The speech directly advances that interest +
(3) The regulation is not more extensive than necessary to serve that interest.
What is the test applied to a regulation on indecent speech?
The regulation is based upon secondary effects of the speech +
There is a substantial government interest +
There are reasonable alternative channels for expression.
What is the test applied to a regulation of conduct which creates an incidental burden on speech?
The regulation will stand if:
The regulation furthers an important interest that is unrelated to the speech +
There is no greater burden imposed than is necessary to serve the interest.
What test is applied to determine the constitutionality of time, place, and manner regulations of speech and assembly in public places?
The regulation must be content neutral +
The regulation must be narrowly tailored to serve an important government interest +
The regulation must leave open alternative channels of expression.
Speech-related activities in non-public forums, such as military bases, jails, government workplaces, and mailboxes can be regulated by viewpoint-neutral regulations. What is the test applied by the Court to evaluate these regulations?
The regulation must be:
Viewpoint neutral +
Reasonably related to a government interest.
What factors must be evaluated to determine if a restraining order against pretrial publicity (gag order) is appropriate?
The nature of the pretrial publicity +
The availability of adequate alternatives +
The likely effectiveness of the restraining order.
What elements are required for a speaker be convicted for incitement?
They intend to produce lawbreaking that is:
Imminent +
Likely.
Overbreadth is an exception to what doctrine?
Third Party Standing.
What level of scrutiny is applied to a government program preferring one religion, or one religious sect, over another?
Strict Scrutiny Analysis.
What triggers the Non-Establishment Clause?
Government action that results in the preference of one religion or religion generally.
What test is applied to legislation or a government program that is neutral on its face, but benefits a particular religion?
- *Lemon test:** is the government favoring a particular religion or treating like other organizations?
1. Statute must have a secular purpose+
- The primary effect must neither advance nor inhibit religion+
- There cannot be excessive government entanglement with religion.
* More Info:* Lemon Test
What is the constitutionality of school prayer?
Per se uncontitutional.
What is the constitutionality of a period of silence for school prayer?
Unconstitutional because there is a religious motive.
What is the constitutionality of having the Ten Commandments in a classroom?
Unconstitutional.
What is the constitutionality of clergy giving prayers at a public school graduation?
Unconstitutional.
What is the constitutionality of student led prayer at a public high school football game?
Unconstitutional.
What is the constitutionality of a religious club holding its meetings in a public school?
Constitutional if there are a broad range of organizations using the facilities.
Can a public school require creationism to be taught alongside evolution?
No, the government cannot teach creationism as truth.
Can a city celebrate christmas?
Yes, if the religious symbols are surrounded with other symbols.
What is the constitutionality of placing the Ten Commandments on the walls of courthouses?
Unconstitutional, unless they are surrounded by other monuments.
Can a city grant a license permitting a private group to put up a cross in a city park near a statehouse?
Yes, as long as the park is similarly open to others.
What is the constitutionality of government delegation of authority to religious organizations?
Unconstitutional.
What is the constitutionality of tax deductions given to all parents based on actual expenditures for children attending any public, private, or religious school?
Constitutional.
What is the constitutionality of a voucher program that allows parents to send their children to parochial or religious schools with state aid instead of to failed public school?
Constitutional.
Where an individual’s conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity under what circumstances?
The regulation is neutral in respect to religion and is of general applicability.
Courts can decide what in respect to religious beliefs?
The sincerity of the beliefs held.
More Info: Courts and Religious Beliefs
If a government has a general law that burdens religious activity are they violating the Establishment Clause?
No, if the government does not mean to discriminate against religion.
Which party will win in a suit over a religious regulation?
- If regulating a belief, citizen wins.
- If regulating conduct, and does not single out religion, the government wins.
What test is applied to freedom of expression regulations?
Strict scrutiny if it engages in content-based discrimination.
List the five exceptions to content-based discrimination.
The government can prohibit speech if:
- It passes strict scrutiny (child pornography)
- Unprotected or low value speech
- Government is the speaker
- The regulation is a conduct regulation
- Using a time place and manner regulation
Unprotected and low-value speech regulations recieve what type of scrutiny?
Rational Basis Review.
List the types of unprotected speech.
- Hostile audience
- Unlawful advocacy
- Obscene Speech
- Fighting Words
- Defamatory Speach
When the plaintiff is a private person and the subject of the defamatory statement is a matter of purely private concern, can the statement be banned? What is the liability of the speaker?
Yes, it is constitutional to ban this type of defamatory speech. The defamatory speaker is strictly liable for any resutling damage.
When the plaintiff is a private person and the subject of the defamatory statement is a matter of public concern, can the statement be banned? What is the liability for the speaker?
No, the speech cannot be banned because the matter is of a public concern. The speaker is liable only if their speech was negligent.
When the plaintiff is a public official or public figure, the plaintiff must prove the state law requirements of defamation and what additional element?
The plaintiff must show actual malice. Malice requires that the plaintiff show knowledge of the falsity or reckless disregard of the truth or falsity of the statement
In a fales-light invasion of privacy, where a private plaintiff is suing a media defendant pursing a matter of public interest, what must the plaintiff show to prevail?
The plaintiff must show actual malice. Malice means that the plaintiff must show knowledge of the falsity or reckless disregard of the truth or falsity of the statement
When can public school children be disciplined for speech?
If the speech is potentially disruptive.
When may a prisoner’s speech rights be restricted?
If the regulation is rationally related to a legitimate penal objective.
What are the requirements of a state when regulating free speech?
The regulation must be narrow and specific.
More Info: State Regulating Free Speech
What are the rights reserved for the press by the 1st Amendment?
There are no special rights reserved for the press.
What are the government’s rights in regulating radio and television broadcasting?
Broadcasting be more closely regulated because the government is facilitating the broadcasting by licensing the airways.
More Info: Government Regulation of Radio and TV
What are the government’s rights in regulating cable tv?
In-between the regulations allowed for broadcasting tv/radio and a person. Stricter than radio broadcasting; however, less strict than regulating a person’s speech.
What test will be applied to a content neutral regulation on cable tv?
Intermediate Scrutiny.
When can a newspaper publish offensive information?
When it is truthful and newsworthy.
More Info: Free Speech and Press
Is the appointment of religious members to government offices unconstitutional?
No, it is not a per se violation of the Establishment Clause; however, more factors could indicate that it is.
What is the constitutionality of laws that do not regulate speech directly (e.g. contract laws) but potentially could limit speech?
The regulations do not offend the first Amendment.
Any law that purposefully interferes with conduct because it is dictated by religion will be examined with what test?
Strict Scrutiny.
The government may fund colleges with religious teachings so long as…
So long as the primary purpose and effect of the funding is non-religious.
Can the state bar prevent other associations from recommending lawyers to their members?
No, associations can recommend lawyers to their members.
A regulation on speech content gets what type of scrutiny?
Strict Scrutiny.
When can defamatory speech not completely be regulated by a state?
When the plaintiff is either a
- public official or public figure, or,
- where the defamatory statement involves a matter of public concern.
What government aid can be given to religious private schools?
The government can aid these schools if they are treating them like non-religious schools. They can fund:
- Bus fair
- Secular textbooks
- Standardized tests
- Lunch
- Library and media materials and computers
- Interpreters for deaf students.
What government aid can NOT be given to religious private schools?
Direct funding of religious instruction:
- No money for religious instruction
- No money for secular teachers at religious schools (excessive entanglement).
When is commercial speech unprotected?
- It is false; or,
- it is unlawful.
List three examples of commercial speech that a state cannot ban.
- A state cannot place a ban on the advertisement of drug prices
- A state cannot prohibit attorneys from advertising legal services
- States cannot ban all advertising for legal products
List two examples of commercial speech that a state can ban.
- Lawyers from soliciting client in person
- Commercial billboards
What oaths can a government employer require an employee to take?
- Oath to support the Constitution
- Oath to oppose a legal overthrow
When can public employees be disciplined or fired for speech?
The speech is:
Not on a matter of public concern; or,
If speech is regarding a public concern, if the speech is potentially disruptive to the workplace.
In what cases are prior restraints on speech allowed?
Speech that regards:
- Classified military information; or,
- A public employee writing a pre-publicaiton review.
What are three alternatives to pretrial gag orders that can prevent pollution of the jury pool?
- Voire dire;
- Postponment; and,
- Change of venue.
When is a statute requiring films to be submitted to a Board of Censors constitutional?
The regulation provides:
Narrow and reasonable standards+
Immediate injuction available+
Burden on the censor to prove obscenity+
Prompt ruling on the obscentiy of the film.
More Info: Prior Restraint
What are the constitutional requirements imposed on a state’s bar admission program?
- A bar applicant cannot be denied for membership to communist party;
- The bar applicant must answer questions; and,
- The bar applicant must take an oath.
When is a licensing/permit statute void on it’s face? What is the effect?
Can be facially void for:
- Vagueness;
- Overbreadth; or,
- Unfettered discretion.
How can a city suppress speech through the hostile audience rule?
Through a regulation that allows for the supression of speech that elicits an immediate violent response against the speaker by the audience. The effect of the speech must be greater than having the possibility to induce a provocation or violent reaction.
