1st Amendment Flashcards
(27 cards)
Content Regulation
Forbids, punishes, or burdens communications about a particular subject, but not other subjects.
Strict Scrutiny
Vagueness and Overbreadth
A statute is vague if it is unclear what conduct or speech is prohibited.
A statute is overbroad if more speech than is targeted is made unlawful.
GIVE EXAMPLES.
Content Neutral Regulation
upheld if gov’t shows that
(1) important interest
(2) unrelated to the suppression of speech, and
(3) does not burden substantially more speech than is necessary to further those interests. (Intermediate scrutiny.)
Discuss under TPM.
Conduct
upheld if:
(1) within the constitutional power (such as police power) of the government;
(2) important government interest;
(3) unrelated to the suppression of speech; and
(4) the incidental burden on speech is no greater than necessary
(intermediate)
Commercial Speech
If commercial speech is not misleading or fraudulent, regulation of that speech is valid if:
(1) substantial government interest;
(2) it directly advances the interest; and
(3) it is reasonably narrowly tailored
(intermediate)
Discuss misleading/fraudulent first.
Time, Place, Manner Restrictions
Apply when content-neutral regulation regulates TPM:
4 kinda of fora:
- public forum
- designated public forum
- limited public forum, or
- nonpublic forum.
Public Forum
Historically open to speech-related activities.
Designated Public Forum
Not historically open to speech-related activities, but gov’t has opened to such activities on a permanent or limited basis.
Limited Public Forum
All other public property other than a nonpublic forum.
NonPublic Forum
Includes places like jails and gov’t buildings.
Public/Designated Public Test
Reasonable time, place, and manner restrictions.
(1) content-neutral;
(2) narrowly tailored — significant government interest;
(3) open alternative channels of communication.
Limited Public/Non Public Test
Gov’t can regulate speech in limited forum or nonpublic forum to reserve it for its intended use. Regulations will be upheld if they are:
(1) viewpoint neutral; and
(2) (rational basis test).
Access to trials, courtroom as limited public forum
courtroom is limited public forum.
1st Am right may be outweighed by an overriding interest (usually D’s 6th Am right to fair trial).
Prison Speech
a prison is a nonpublic forum
restrictions on prisoners’ speech will be upheld if reasonably related to a legitimate penological interest.
Government Funding of Speech
Generally may do so on content-based criteria that reflects its own policies, so long as viewpoint neutral
Campaign Contribution Test
closely drawn to match
a sufficiently important interest (intermediate scrutiny).
Limit on Contributing to One Candidate
Valid - interest in avoiding corruption
Limits on aggregate amounts are not upheld
Limits on Campaign Expenditures
Campaign spending limits on candidates are unconstitutional as restrictions on speech.
So long as third-party contributions supporting a candidate are not made directly to a candidate nor coordinated with candidate or candidate’s campaign, they may not be limited
Unprotected Speech
(1) Clear and Present Danger
(2) Fighting Words
(3) Defamation of Private Persons
(4) Obscenity
Clear and Present Danger
Speech that is
(1) directed at producing/inciting imminent lawless action, and
(2) is likely to produce/incite that action.
Fighting Words
True Threats
Abusive Epithets likely to incite violent reactions in ordinary citizens
Obscenity - Miller Test
(1) appeals to the prurient interest in sex;
(2) portrays sex in a patently offensive way; and
(3) does not have serious literary, artistic, political, or scientific value based on a national standard.
Prior Restraints
Invalid unless
(1) standards must be narrowly drawn, reasonable, and definite;
(2) gov’t must promptly seek an injunction if required;
(3) must be a prompt and final determination of the validity of the restraint – prompt right of appeal.
Free Exercise Clause
Prevents government from punishing based on religious beliefs.
Intentional Burden: strict scrutiny
Incidental Burden: If GAL incidentally burdens free exercise, rational basis (reasonably related to achieving secular purpose)