The First Amendment Flashcards
Content-based restrictions on speech must generally meet what level of scrutiny?
Strict
What are the two types of content-based restrictions?
Subject Matter Restr.
Viewpoint Restr.
Content-neutral laws burdening speech must generally meet what level of scrutiny?
Intermediate
What is true of content-neutral restrictions on speech?
They apply to all speech the same.
In the First Amendment context, what is a prior restraint?
A judicial order or administrative system that stops speech before it occurs
Court order suppressing speech must meet . . .
Strict scrutiny
For how long must a procedurally proper court order suppressing speech be complied?
Until vacated or overturned
True or False? A person who violates a court order suppressing speech is barred from challenging it at a later time.
True
The gov’t can require a license/permit for ONLY if what two things are true?
Important reason for licensing, AND
There exists clear criteria leaving almost no discretion to the licensing authority
Licensing scheme must contain what?
Procedural safeguards
What are two primary examples of procedural safeguards in a licensing scheme?
Prompt determination of requests for licenses
Judicial review
A law restricting speech is unconstitutionally vague if . . .
A reasonable person cannot tell what speech is prohibited and what is allowed.
A law is unconstitutionally overbroad if it does what?
Regulate substantially more speech than the constitution allows.
Fightings words laws are/aren’t vague and overbroad.
Are
While fighting word are not constitutionally protected, laws purporting to outlaw them are always _____ and ____
Vague and overbroad.
When can gov’t regulation symbolic speech? (2 criteria)
If it has an interest unrelated to suppression of the message AND if the impact on communication is no greater than necessary to achieve the gov’t’s purpose
Flag burning is/isn’t constitutionally protected symbolic speech.
Is
Draft card burning is/isn’t constitutionally protected symbolic speech.
Isn’t
Nude dancing is/isn’t constitutionally protected symbolic speech.
Isn’t
Cross burning is/isn’t constitutionally protected symbolic speech.
Is UNLESS it is done with the intent to threaten
_______ limits in election campaigns are generally constitutional, but _____ limits are unconstitutional.
Contribution
Expenditure
Anonymous speech is/isn’t protected
Is
Speech by the government can/cannot be challenged as violating the First Amendment.
Cannot
If speech is unprotected by the First Amendment, the gov’t can . . .
Punish
If speech is only minimally protected by the First Amendment, the gov’t can . . .
Regulate
What two things must be true in order for the gov’t to punish incitement speech?
There must be a substantial likelihood of illegal activity AND
The speech must be directed to causing imminent illegaltiy
To qualify is unprotected obscenity or sexually-oriented speech, which three elements must be met?
The material must appeal to the prurient interest
The material must be patently offensive under the law prohibiting obscenity; AND
Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value.
What is a prurient interest?
a shameful or morbid interest in sex.
Under the three-part test for obscenity, is the prurient interest assessed by the local or national standard?
Local
Under the three-part test for obscenity, is the “taken as a whole . . . art, lit., poli., sci., value” assessed by the local or national standard?
National
The gov’t may/may not use zoning ordinances to regulate the location of adult bookstores and movie theaters.
May
Even unobscene child pornography can be banned. True or False?
True.
The be child pornography, what must be true?
Children must be used in the production of the material. Adults acting as children does not count.
The gov’t may/may not punish private possession of obscene materials.
May not.
The gov’t may/may not punish private possession of child pron.
May
If a business is convicted of violating obscenity laws, what may the gov’t do?
Seize ALL assets.
Profane and indecent speech generally is/isn’t protected by the 1st.
Is
When is profane and indecent speech OK to be transmitted over broadcast media?
When is part of a subscription or on the internet.
Profane and indecent speech is/isn’t permitted in public schools.
Isn’t
Advertising for illegal activity is/isn’t still protected by the First.
Isn’t
False and deceptive ads are/aren’t protected by the First.
Aren’t
If true commercial speech does this, it can be prohibited.
Risk deception
The gov’t may/may not prevent professionals from advertising or practicing under a trade name.
May
The gov’t may/may not prohibit atty, in-person solicitation of clients for profit.
May
The gov’t may/may not prohibit accountants from in-person solicitation of clients for profit.
May not
Most forms of commercial speech can be regulated if what form of scrutiny is met?
Intermediate
Gov’t regulation of speech must be . . .
Narrowly tailored.
While gov’t regulation of speech must be narrowly tailored, it need not . . .
Be the least restrictive alternative.
If the plaintiff is a public official or is running for public office, he can recover for defamation by proving what two things?
Falsity
Actual Malice
If the plaintiff is a “public figure,” the plaintiff can recover for defamation by proving which two things?
Falsity
Actual malice
If the plaintiff is a private figure and the matter is of public concern, the state may allow the plaintiff to recover for defamation by proving what two things?
Falsity
Negligence
If the plaintiff is a private figure and the matter is of public concern, the state may allow the plaintiff to recover for defamation by proving falsity and negligence. What must be show to recovered presumed or punitive damages?
Actual malice
If the plaintiff is a private figure and the matter is NOT of public concern, the plaintiff can recover presumed or punitive damages without showing. . .
Without showing actual malice
Liability for IIED for defamatory speech must meet what standards?
Moreover, it cannot exist for which type of speech?
Defamation standard
Cannot exist for otherwise protected First Amendment speech.
Think Westboro Baptist Church
The government may/may not create liability for the truthful reporting of information that was lawfully obtained from the government.
May not
Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, IF what two things are true?
The media did not participate in the illegality AND
It involves a matter of public importance
The government may/may not limit its own dissemination of information to protect privacy
May
Speech by gov’t employees on the job in the performance of their duties is/isn’t protected by the First Amd?
Is not
Most government restrictions based on the content of speech must meet . . .
Strict scrutiny
What is a public forum?
Gov’t properties that the gov’t is constitutionally required to make available for speech.
What are the two classic examples of public forums?
Sidewalks
Public parks
Regulations restricting speech at public forums must be ____ _____ and _____ neutral. If they are not, then ____ _____ must be met
Subject matter and Viewpoint
Strict Scrutiny
Regulations restricting speech at public forums must be a ____ , _____ , or ______ regulations that serves this and does that.
Time, place, or manner
Serves an important gov’t purpose AND leaves open adequate alternative places for communication.
Gov’t regulation of public forums needs not use the least restrictive alternative, But must . . .
Be narrowly tailored.
True or False? City officials are given discretion to set permit fees for public demonstrations.
False. The fees must be set in advance and apply equally.
What is a designated public forum?
What rules apply?
Example?
Gov’t properties that the gov’t could close to speech but choose to leave open.
Same rules as public forums
e.g., school gym used at night for basketball league
What are limited public forums?
What rules apply?
Gov’t properties that are limited to certain groups or dedicated to the discussion of only some subjects.
Gov’t can regulation speech in limited public forums so long as the regulation is reasonable and the viewpoint is neutral.
What two things must be true for the gov’t to be able to regulate speech in a limited public forum?
Gov’t can regulation speech in limited public forums so long as the regulation is reasonable and the viewpoint is neutral.
What are nonpublic forums?
Gov’t properties that the gov’t constitutionally can and do close to speech.
What two things must be true for gov’t to regulate speech in a nonpublic forum?
Regulation must be reasonable
Regulation must be viewpoint neutral
There is/isn’t a First Amendment right of access to private property for speech purposes.
Isn’t
What are the four classic examples of nonpublic forums?
Military bases
Areas outside prisons and jails
Sidewalks on POST-OFFICE property*
Airports
Laws that prohibit or punish group members must meet what level of scrutiny?
Strict
To punish membership in a group, these three things must be proven of the person:
They actively affiliated with the group
They know of its illegal activities
They actively affiliated with the specific intent of furthering those illegal activities.
Laws that requires disclosure of group membership, where such disclosure would chill associations, must meet . . .
Strict scrutiny
Laws that prohibit a group from discriminating are constitutional UNLESS . . .
Example?
They interfere with intimate association OR expressive activity.
Boy scouts in DALE could discriminate against gay scout master because they have an anti-gay message and they are permitted to exclude in furtherance thereof.
The free exercise clause can/cannot be used to challenge a neutral law of general applicability.
Case?
Cannot
Employment Division v. SMITH
The government may/may not deny benefits to individuals who quit their job for religious reasons.
May not.
The gov’t may/may not hold a religious institution liable for the choices it makes as to who will be its ministers.
May not.
The Lemon Test applies in which situation?
Legislation concerning the Establishment Clause.
Under the Lemon Test, these three things must be true in order for a law concerning religion to be constitutional. . .
There must be a secular purpose for the law;
The primary effect of the law must be neither to advance nor inhibit religion; AND
There must not be excessive entanglement with religion.
What pneumonic do we use to remember the elements of the Lemon Test?
SEX
Secular Purpose
Effect (primary effect must be neither to advance nor inhibit religion)
eXcessive entanglement prohibited
The gov’t cannot discriminate against religion speech or among religions unless . . .
Strict scrutiny is met
Gov’t sponsored religious activities in public school is/isn’t unconstitutional.
Is.
Gov’t sponsored religious activities in public school is unconstitutional. however, religious student and community group must have . . .
The same access to school facilities as non-religious groups.
The government MAY give assistance to parochial schools SO LONG AS what is true of the money?
It is not used for religious instruction.
They government may/may not provide parents with vouches to send their kids to parochial schools.
May
Provide the the liability standard, damages, and BOP for public officials in a defamation action.
Actual malice
Compensatory and presumed/punitive
Plaintiff must prove falsity
Provide the the liability standard, damages, and BOP for public figures in a defamation action.
Actual malice
Compensatory and presumed/punitive
Plaintiff must prove falsity
Provide the the liability standard, damages, and BOP for private figure, matter of public concern in a defamation action.
Negligence and actual injury
Compensatory for actual injury; presumed/punitive if actual malice
Plaintiff must prove falsity
Provide the the liability standard, damages, and BOP for private figure, matter of private concern in a defamation action.
Negligence
Compensatory and presumed/punitive (no AM needed)
Burden on D to prove truth.
