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Constitutional Law > The First Amendment > Flashcards

The First Amendment Flashcards

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1
Q

Content-based restrictions

A

Two types:

  1. subject matter restrictions
    • application of the law depends on the topic of the message
  2. viewpoint restrictions
    • application of the law depends on the ideology of the message.
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2
Q

Scrutiny level for content-based restrictions

A

strict scrutiny

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3
Q

Scrutiny for content-neutral laws burdening speech

A

Intermediate scrutiny

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4
Q

Court orders suppressing speech

A
  • 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.
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5
Q

When the government can require a license for speech

A
  • 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.
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6
Q

Vagueness

A

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

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7
Q

Overbreadth

A

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allowed to be regulated.

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8
Q

Fighting words laws

A

fighting words laws are unconstitutionally vague and overbroad

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9
Q

Symbolic speech

A

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.
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10
Q

Examples of symbolic speech

A

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
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11
Q

Compelled speech protection

A

Compelled speech violates the First Amendment

e.g. government can’t force a person or group to voice support of something

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12
Q

Anonymous speech protection

A

anonymous speech is protected

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13
Q

Speech by the governmentt

A

Cannot be challenged as violating the speech clause of the First Amendment

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14
Q

Incitement of illegal activity

A

The government may punish speech if:

  • there is a substantial likelihood of imminent illegal activity, and
  • the speech is directed to cause imminent illegality
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15
Q

Obscenity and sexually-oriented speech test

A

Test:

  1. the material must appeal to the prurient interest;
  2. The material must be patently offensive under the law prohibiting obscenity
  3. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value
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16
Q

Standard for obscenity test

A

The obscenity and sexually-oriented speech test is applied using a a national standard, not a local one

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17
Q

Regulation of adult shops

A

The government may use zoning ordinances to regulate the location of adult bookstores and movie theatres

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18
Q

Child porn regulation

A

May be completely banned, even if not obscene

(to be child porn, children must be used in production of the material)

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19
Q

Obscene material possession

A
  • The government may not punish private possession of obscene materials
  • But they may punish private possession of child porn
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20
Q

Government asset seizure and obscenity laws

A

The government may seize the assets of businesses convicted of violating obscenity laws

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21
Q

Protection of profane and indecent speech

A
  • Profane and indecent speech is generally protected by the first amendment
  • exception over the (public) broadcast media and in schools
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22
Q

Advertising protection

A
  • 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
23
Q

Deceptive commercial speech examples

A
  • 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.
24
Q

other commercial speech is analyzed using this level of scrutiny

A

intermediate scrutiny

25
Q

Government regulation of commercial speech

A

Must be narrowly tailored, but it does not need to be the least restrictive alternative

26
Q

Public official/figure defamation

A

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

27
Q

Private figure/matter of public concern

A
  • 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
28
Q

Private figure/matter not of public concern

A

If the plaintiff is a private figure and the matter is not of public concern, the plaintiff can recover without showing actual malice

29
Q

Liability for intentional infliction of emotional distress for defamatory speech

A

must meet the defamation standards and cannot exist for speech otherwise protected by the first amendment

30
Q

Liability for reporting government info

A

the government may not create liability for the truthful reporting of information that was lawfully obtained from the government

31
Q

Liability for broadcasting an illegally intercepted call

A

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
32
Q

Government redaction of public records

A

The government may limit its dissemination of information to protect privacy

33
Q

Speech by government employees on the job in the performance of their duties

A

not protected by the first amendment

34
Q

Other government restrictions based on the content of speech

A

must meet strict scrutiny (e.g. restrictions on violent speech)

35
Q

Public forums

(e.g. sidewalks and public parks)

A

government properties that the government is constitutionally required to make available for speech

36
Q

Regulations of public forums

A
  • 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
37
Q

permit fees for public demonstrations

A

City officials cannot have discretion to set permit fees for public demonstrations

38
Q

Designated public forums

A

government properties that the government could close to speech, but chooses to open to speech.

Public forum rules apply

39
Q

Limited public forums

A
  • 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.
40
Q

Non-public forums

A
  • 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.
41
Q

Non-public forums examples

A
  • 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);
42
Q

Private property

A

No First Amendment right of access for speech purposes.

43
Q

Laws that prohibit or punish group membership

A

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.
44
Q

Group Membership Laws

A
  • 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
45
Q

Free exercise clause and challenging laws

A

The free exercise clause cannot be used to challenge a neutral law of general applicability

46
Q

Government denial of benefits for religious reasons

A

The government may not deny benefits to individuals for religious reasons.

47
Q

Government regulation of ministerial choice

A

The government may not hold a religious institution liable for the choices it makes as to who will be its ministers

48
Q

The denial of benefits to a religious school that are provided to a secular private school must meet this standard

A

Strict scrutiny

49
Q

Establishment clause test

A
  • 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
50
Q

Government discrimination against religious speech or among religions must meet this standard

A

strict scrutiny

51
Q

Government-sponsored religious activity in public schools

A
  • This is unconstitutional.
  • But religious student and community groups must have the same access to school facilities as non-religious groups.
52
Q

Government assistance to religious schools

A

The government may give assistance to religious schools so long as it’s not used for religious instruction

53
Q

Vouchers for religious schools

A

The government may provide parents vouchers for use in religious schools.

Constitutional Law (10 decks)

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