The First Amendment Flashcards
Content-based restrictions
Two types:
- subject matter restrictions
- application of the law depends on the topic of the message
- viewpoint restrictions
- application of the law depends on the ideology of the message.
Scrutiny level for content-based restrictions
strict scrutiny
Scrutiny for content-neutral laws burdening speech
Intermediate scrutiny
Court orders suppressing speech
- These orders must meet strict scrutiny
- But, if procedurally proper, must be complied with until they are vacated or overturned.
- If you violate it, you are later barred from challenging.
When the government can require a license for speech
- there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority.
- Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review.
Vagueness
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
Overbreadth
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allowed to be regulated.
Fighting words laws
fighting words laws are unconstitutionally vague and overbroad
Symbolic speech
The government can regulate conduct that communicates if:
- it has an important interest unrelated to suppression of the message, and
- if the impact on communication is no greater than necessary to achieve the government’s purpose.
Examples of symbolic speech
Constitutional:
- Flag burning
- local governments prohibiting nude dancing
- burning a cross if not intended to threaten
- contribution limits in election campaigns
Unconstitutional
- Draft card burning
- expenditure limits in election campaigns
Compelled speech protection
Compelled speech violates the First Amendment
e.g. government can’t force a person or group to voice support of something
Anonymous speech protection
anonymous speech is protected
Speech by the governmentt
Cannot be challenged as violating the speech clause of the First Amendment
Incitement of illegal activity
The government may punish speech if:
- there is a substantial likelihood of imminent illegal activity, and
- the speech is directed to cause imminent illegality
Obscenity and sexually-oriented speech test
Test:
- the material must appeal to the prurient interest;
- The material must be patently offensive under the law prohibiting obscenity
- Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value
Standard for obscenity test
The obscenity and sexually-oriented speech test is applied using a a national standard, not a local one
Regulation of adult shops
The government may use zoning ordinances to regulate the location of adult bookstores and movie theatres
Child porn regulation
May be completely banned, even if not obscene
(to be child porn, children must be used in production of the material)
Obscene material possession
- The government may not punish private possession of obscene materials
- But they may punish private possession of child porn
Government asset seizure and obscenity laws
The government may seize the assets of businesses convicted of violating obscenity laws
Protection of profane and indecent speech
- Profane and indecent speech is generally protected by the first amendment
- exception over the (public) broadcast media and in schools
Advertising protection
- Advertising for illegal activity
- false and deceptive ads are not protected by the first amendment
- true commercial speech that inherently risks deception can be prohibited
Deceptive commercial speech examples
- The government may prevent professionals advertising or practicing under a trade name
- The government may prohibit attorney, in-person solicitation of clients for profit
- but NOT accountant solicitations.
other commercial speech is analyzed using this level of scrutiny
intermediate scrutiny
Government regulation of commercial speech
Must be narrowly tailored, but it does not need to be the least restrictive alternative
Public official/figure defamation
If the plaintiff is a public official, public figure, or running for public office the plaintiff can recover for defamation by proving falsity of the statement and actual malice
Private figure/matter of public concern
- If the plaintiff is a private figure and the matter is of public concern, the state may allow the plaintiff to recover by proving falsity and negligence by the defendant.
- However, the plaintiff may recover presumed or punitive damages only by showing actual malice
Private figure/matter not of public concern
If the plaintiff is a private figure and the matter is not of public concern, the plaintiff can recover without showing actual malice
Liability for intentional infliction of emotional distress for defamatory speech
must meet the defamation standards and cannot exist for speech otherwise protected by the first amendment
Liability for reporting government info
the government may not create liability for the truthful reporting of information that was lawfully obtained from the government
Liability for broadcasting an illegally intercepted call
liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if:
- the media did not participate in the illegality, and
- it involves a matter of public importance
Government redaction of public records
The government may limit its dissemination of information to protect privacy
Speech by government employees on the job in the performance of their duties
not protected by the first amendment
Other government restrictions based on the content of speech
must meet strict scrutiny (e.g. restrictions on violent speech)
Public forums
(e.g. sidewalks and public parks)
government properties that the government is constitutionally required to make available for speech
Regulations of public forums
- must be subject matter and viewpoint neutral, or otherwise meet strict scrutiny
- must be a time, place or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication
permit fees for public demonstrations
City officials cannot have discretion to set permit fees for public demonstrations
Designated public forums
government properties that the government could close to speech, but chooses to open to speech.
Public forum rules apply
Limited public forums
- Government properties that are limited to certain groups or dedicated to the discussion of only some subjects.
- The government can regulate speech here so long as the regulation is reasonable and viewpoint neutral.
Non-public forums
- Government properties that the government constitutionally can and does close to speech.
- The government can regulate speech here so long as the regulation is reasonable and viewpoint neutral.
Non-public forums examples
- Schools (unless gov’t opens it on weekends, then it’s a designated public forum);
- military bases, even parts open to the public;
- post offices, even sidewalks on PO property;
- Airports (money solicitation banned, not distribution of literature);
Private property
No First Amendment right of access for speech purposes.
Laws that prohibit or punish group membership
must meet strict scrutiny.
To punish membership in a group it must be proven that the person:
- actively affiliated with the group;
- knowing of its illegal activities; and
- with the specific intent of furthering those illegal activities.
Group Membership Laws
- Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny
- Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity
Free exercise clause and challenging laws
The free exercise clause cannot be used to challenge a neutral law of general applicability
Government denial of benefits for religious reasons
The government may not deny benefits to individuals for religious reasons.
Government regulation of ministerial choice
The government may not hold a religious institution liable for the choices it makes as to who will be its ministers
The denial of benefits to a religious school that are provided to a secular private school must meet this standard
Strict scrutiny
Establishment clause test
- There must be a secular purpose for the law
- the effect must be neither to advance nor inhibit religion
- there must not be excessive entanglement with religion
Government discrimination against religious speech or among religions must meet this standard
strict scrutiny
Government-sponsored religious activity in public schools
- This is unconstitutional.
- But religious student and community groups must have the same access to school facilities as non-religious groups.
Government assistance to religious schools
The government may give assistance to religious schools so long as it’s not used for religious instruction
Vouchers for religious schools
The government may provide parents vouchers for use in religious schools.
