The First Amendment Flashcards
Free speech methodologies
- Content-based v. content-neutral restrictions
- Prior restraints
- Vagueness and overbreadth
- Symbolic speech
- Anonymous Speech
- Speech by the government
Content-based restrictions
Content-based restrictions on speech generally must meet strict scrutiny.
Two type of content based laws:
- 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)
Content-neutral laws
Content-neutral laws burdening speech generally need only meet intermediate scrutiny
(law applies to all speech the same)
Prior restraints
- Judicial order stopping speech before it occurs
- Court orders suppressing speech must meet strict scrutiny.
- Procedurally proper court orders must be complied with until they are vacated or overturned.
- A person who violates a court order is barred from later challenging it.
- The government can require a license for speech only if 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 allows to be regulated.
Fighting Words
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 Protected & Unprotected Symbolic Speech
- flag burning is constitutionally protected speech
- draft card burning is not constitutionally protected speech
- local governments may prohibit nude dancing
- burning a cross is protected speech unless it is done with the intent to threaten
- contribution limits in election campaigns are generally constitutional, but expenditure limits are unconstitutional, even when applied to corporations
Anonymous speech
Anonymous speech is protected
Speech by the government
Speech by the government cannot be challenged as violating the First Amendment.
What speech is unprotected or less protected by the First Amendment?
- Incitement of illegal activity
- Obscenity and sexually-oriented speech
- Commercial speech
- Defamation and intentional infliction of emotional distress
- Privacy
- Speech by government employees
- Violent Speech
Other government restrictions based on the content of speech must meet strict scrutiny.
Incitement of illegal activity
The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
The Test for Obscenity and sexually-oriented speech
- 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
Prurient Interest
Local/comm Standard:
shameful or morbid interest in sex (lustful or insidious does not rise to prurient)
patently offensive under the law
prohibiting obscenity
Local/State Standard
lack serious redeeming
artistic, literary, political or scientific value
Value determined by national, not local standard
Regulation of Obscenity Rules
- The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters
- Child pornography may be completely banned, even if not obscene
- (To be child pornography, children must be used in production of the material).
- The government may not punish private possession of obscene materials; but the government may punish private possession of child pornography
- The government may seize the assets of businesses convicted of violating obscenity laws
- all of the assets, even if not obscene
Profane and indecent speech
Profane and indecent speech is generally protected by the First Amendment
Exceptions for when Profane/Indecent Speech is not protected
- Over broadcast media
- Over free television and radio
- In schools
Types of Commercial Speech that may be prohibited/limited
- Advertising for illegal activity, and false and deceptive ads are not protected by the First Amendment
- True commercial speech that inherently risks deception can be prohibited
Types of True commercial speech that inherently risks deception can be prohibited
- The government may prevent professionals from advertising or practicing under a trade name
- The government may prohibit attorney, in-person solicitation of clients for profit
- The government may not prohibit accountants from inperson solicitation of clients for profit
Scrutiny Applied to Commercial Speech
- Other commercial speech can be regulated if intermediate scrutiny is met
- Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.
Types of Plaintiffs in Defamation and intentional infliction of emotional distress cases
- public official or running for public office
- Public figure
- “private figure”
Public Official ( or running for office) has to show what to recover for defamation?
If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation by proving falsity of the statement and actual malice
How does a public figure recover for defamation?
If the plaintiff is a “public figure’” the plaintiff can recover for defamation by proving falsity of the statement and actual malice
How does a private person recover for defamation?
- If the plaintiff is a “private figure” and the matter is of “public concern,” that state may allow the plaintiff to recover for defamation by proving falsity and negligence by the defendant.
- However, the plaintiff may recover presumed or punitive damages only by showing 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 actual malice
Liability for intentional infliction of emotional distress for
defamatory speech
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
Privacy: Liability of the Media and Dissemination
- The government may not create liability for the truthful reporting of information that was lawfully obtained from the government
- 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
- The government may limit its dissemination of information to protect privacy
- Press and public only have a 1A right to criminal trial and pre-trial proceedings
Speech by government employees
Speech by government employees on the job in the performance of their duties is not protected by the First Amendment.
Violent Speech
Must meet strict scrutiny
What places are available for speech?
- Public forums
- Designated Public Forums
- Limited public forums
- Non-public forums
Where place is not available for speech?
Private Property
Likely privately owned shopping centers
What is a public forum?
government properties that the government is
constitutionally required to make available for speech.
- Sidewalks and parks
Rules for Public Forums
- Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met.
- Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication
- Government regulation of public forums need not use the least restrictive alternative, but must be narrowly tailored
- 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. The same rules apply as for public forums.
- school facilities
Limited public forums
government properties that are limited to certain
groups or dedicated to the discussion of only some subjects.
Thegovernment can regulate speech in limited public forums 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 in non-public forums so long as the regulation is reasonable and viewpoint neutral.
- (military bases, areas outside prisons and jails, sidewalks on post office property, airports)
Exception: cannot prohibit distribution of literature at airports
Freedom of association
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.
Laws that require disclosure of group membership
Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny
Laws that prohibit a group from discriminating
Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity
Freedom of religion Approaches
- The Free Exercise Clause
- The Establishment Clause
The free exercise clause
- The free exercise clause cannot be used to challenge a neutral law of general applicability, no matter how much it interferes with religion
- The government may not deny benefits to individuals who quit their jobs for religious reasons
- The government may not hold a religious institution liable for the choices it makes as to who will be its ministers.
Test for the establishment Clause
i. there must be a secular purpose for the law
ii. the effect must be neither to advance nor inhibit religion
iii. there must not be excessive entanglement with religion
- govt cannot directly pay teacher salaries in parochial schools
Establishment Clause Rules
- The government cannot discriminate against religious speech or among religions unless strict scrutiny is met.
- Government sponsored religious activity in public schools is unconstitutional.
- But religious student and community groups must have the same access to school facilities as non-religious groups
- The government may give assistance to parochial schools, so long as it is not used for religious instruction.
- The government may provide parents vouchers which they use in parochial schools.
