VIII. First Amendment

Question 1

Content-based v. content- neutral restrictions

Answer 1

1. Content-based restrictions on speech generally must meet **strict
   scrutiny. ** (SS) Two type of content based laws:
   
   1. subject matter restrictions (application of the law depends on the topic of the message) laws that regulate speech based on the topic
   2. viewpoint restrictions (application of the law depends on the ideology of the message) laws that regulate speech based on its ideology
2. Content-neutral laws burdening speech generally need only meet intermediate scrutiny - SGI-NT-LOAC

Question 2

Prior restraints

Answer 2

1. 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.
2. The gov 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

Question 3

Vagueness and overbreath

Answer 3

1. Vagueness. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
2. Overbreadth. A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

• Fighting words laws are unconstitutionally vague and overbroad

Question 4

Symbolic speech

Answer 4

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. eg:

• flag burning is constitutionally protected
• draft card burning is not protected
• nude dancing is not protected
• the government may punish cross-burning only if there is the intent to intimidate or threaten
• Government may limit contributions in election campaigns, but not expenditure

Anonymous speech is protected

Speech by the government cannot be challenged as violating the First Amendment.

Question 5

Unprotected speech

Answer 5

1. 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.
2. Obscenity and sexually-oriented speech
   
   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
3. The gov may use zoning ordinances to regulate the location of adult bookstores and movie theaters
4. Child pornography may be completely banned, even if not obscene
   (To be child pornography, children must be used in production of the material). “Child pornography” requires children to be used in its production
5. The government may not punish private possession of obscene materials; but the government may punish private possession of child pornography
6. The government may seize the assets of businesses convicted of
   violating obscenity laws
7. Profane and indecent speech is generally protected by the First
   Amendment

Question 6

Commercial speech

Answer 6

1. Advertising for illegality, and false and deceptive ads are not protected by the First Amendment
2. True commercial speech that inherently risks deception can be prohibited
   
   1. The government may prevent professionals from advertising or practicing under a trade name
   2. The government may prohibit attorney, in-person solicitation of clients for profit
   3. The government may not prohibit accountants from inperson solicitation of clients for profit
3. Other commercial speech can be regulated if intermediate scrutiny is met
4. Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.

Question 7

Defamation

Answer 7

1. 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
2. b. If the plaintiff is a “public figure” the plaintiff can recover for defamation by proving falsity of the statement and actual malice
3. 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
4. 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
5. 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

Question 8

Privacy

Question 9

Places available for speech

Answer 9

1. Public forums—government properties that the government is constitutionally required to make available for speech. Sidewalks and parks are classic example. Regulation must be:
   
   1. subject matter and viewpoint neutral, or if not, strict scrutiny must be met
   2. a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication
   3. Government regulation of public forums need not use the least restrictive alternative
   4. City officials cannot have discretion to set permit fees for public demonstrations
2. 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. Example: If a school opens its facilities evenings and weekends
3. 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 in limited public forums so long as the regulation is reasonable and viewpoint neutral.
4. 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.
   Examples: Military Buses
   - Areas outside prisons and jails
   - Advertising space on city buses
   - Sidewalks on post office property
   - Airports (though government cannot bar distribution of literature)
5. There is no First Amendment right of access to private property for speech
   purposes

Question 10

Freedom of association

Answer 10

1. Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person:
   
   1. actively affiliated with the group;
   2. knowing of its illegal activities; and
   3. with the specific intent of furthering those illegal activities.
2. Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny
3. Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity

Question 11

Freedom of religion

Answer 11

1. The free exercise clause

1. The free exercise clause cannot be used to challenge a neutral law of general applicability.
2. The government may not deny benefits to individuals who quit their jobs for religious reasons
3. The government may not hold a religious institution liable for the choices it makes as to who will be its ministers

2. The establishment clause

1. Lemon test:
   
   1. there must be a secular purpose for the law
   2. the effect must be neither to advance nor inhibit religion
   3. there must not be excessive entanglement with religion
2. The government cannot discriminate against religious speech or among religions unless strict scrutiny is met.
3. 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
4. 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.

Question 12

Mnemonics

Answer 12

• Content-neutral: SGI-NT-LOAC
• Content-based: SS
• Lemon test: SEX