BAR FLASHCARDS - CL Part 5_ First Amendment

Question

Compelled speech - Mandatory Financial Support

Answer 1

Although the government may not compel a person to express a message, it may tax people and use revenue from the tax to express a message with which they disagree (for example, a beef producer can be required to pay an assessment to support government-sponsored generic advertising of beef even if the producer thinks generic advertising is a waste of money). However, people cannot be compelled to subsidize private messages with which they disagree. Thus, while lawyers may be compelled to pay bar dues, non-union members cannot be compelled to pay union dues because the money may be used to support political views with which the non-union members disagree. Exception—University Activity Fees The government can require public university students to pay a student activity fee even if the fee is used to support political and ideological speech by student groups whose beliefs are offensive to the student, as long as the program is viewpoint neutral.

Answer 2

Anonymous speech is protected. Anonymous speech (that is, the right to speak without disclosing one’s identity) is protected by the First Amendment.

Answer 3

Speech by the government cannot be challenged as violating the speech clause of the First Amendment. Government speech cannot be challenged as violating the Free Speech Clause of the First Amendment. The Free Speech Clause restricts government regulation of private speech; it does not require the government to aid private speech or restrict the government from expressing its views. Absent some other constitutional limitation, such as the Establishment Clause or Equal Protection Clause, the government is generally free to voice its opinions and to fund private speech that furthers its views while refusing to fund other private speech. Because government speech does not implicate the First Amendment, it is not subject to the various levels of scrutiny that apply to government regulation of private speech. Generally, government speech and government funding of speech will be upheld if it is rationally related to a legitimate state interest.

Answer 4

Limitation—Not All Speech Activity on Government Property Is Government Speech Determining whether speech, particularly speech that occurs on government property, is government speech requires a holistic approach. While this review is context-driven and not mechanical, some factors that may be relevant include: • The history of the expression at issue • The public’s likely perception as to who (government or private person) is speaking • The extent to which the government has shaped the message

Answer 5

A city’s placement of a permanent monument in a public park is government speech and thus is not subject to Free Speech Clause scrutiny, even if the monument is privately donated.

Answer 6

When a city did not exercise meaningful control over the flags flown on a particular flagpole outside City Hall, did not shape the messages the flags sent, and had previously granted all flag-raising requests without exception, the flags were private—not government—speech. Therefore, the First Amendment applied.

Answer 7

Spending programs may not impose conditions that limit First Amendment activities of fund recipients outside of the scope of the spending program itself. For example, the government cannot require recipients of federal funds to combat HIV/AIDS to state in their funding documents that they oppose prostitution.

Answer 8

When the government chooses to fund private messages (for example, public college group newsletters), it generally must do so on a viewpoint-neutral basis. Exception—Funding of the Arts: From a financial standpoint, the government cannot fund all artists. Choosing who will receive funding will inevitably involve the content of the art—doing so is not unconstitutional.

Answer 9

Trademark protection is not government speech, but rather it is private speech. Thus, it is subject to strict scrutiny.

Answer 10

Prior restraints are court orders or administrative systems that prevent speech before it occurs, rather than punishing it afterwards. They are rarely allowed. Strict scrutiny applies to prior restraints and the government must show that some special societal harm would result absent the restraint. Note: If a person violates an unconstitutional statute or ordinance, they can argue that it’s unconstitutional as a defense. This is not true for court orders—procedurally proper court orders must be complied with until vacated or overturned. If somebody violates a court order, they are barred from later challenging it. Example: A city required parade permits. Under the permit ordinance, officials could deny permits if they judged that the parade would go against public welfare, safety, and peace—a clear violation of the First Amendment. Hearing that a civil rights group intended to hold a march without a permit, the city obtained an injunction against prohibiting the group from holding the march. The group marched anyway, despite knowing of the injunction and members of the group (including Dr. Martin Luther King Jr.) were arrested and held in contempt. At their contempt hearings, the marchers were prohibited from raising allegations regarding the constitutionality of the ordinance as a defense to violating the injunction.

Answer 11

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 the following procedural safeguards: • The standards must be narrowly drawn, reasonable, and definite • It must be possible for an injunction to be promptly sought • There must be prompt and final determination of the validity of the restraint. A number of other cases, especially in the area of movie censorship, require that the government bear the burden of proving that the speech involved is unprotected.

Answer 12

Licensing schemes must contain the following procedural safeguards: • The standards must be narrowly drawn, reasonable, and definite • It must be possible for an injunction to be promptly sought • There must be prompt and final determination of the validity of the restraint.

Answer 13

a prior restraint will be upheld only if it is the only sure way of preserving a fair trial for the defendant. Although prejudicial publicity can pose a serious problem, the Supreme Court held that it virtually always should be dealt with by means other than prior restraints.

Answer 14

The government may punish speech if there is a substantial likelihood of imminent illegal activity and the speech is directed at causing imminent illegality. Unprotected by 1A: - Substantial likelihood of imminent illegal activity, AND - Speech directed at causing imminent illegal activity.

Answer 15

True threats (for example, cross-burning carried out with an intent to intimidate) are not protected by the First Amendment. Speech also can be burdened if it constitutes fighting words (personally abusive words that are likely to incite immediate physical retaliation in an average person). Words that are merely annoying are not sufficient. Thus, calling someone a “mother f*****” to their face constitutes fighting words but wearing a jacket that say “F*** the Draft” does not. Likewise, burning a cross at a Ku Klux Klan rally does not qualify as a true threat but burning a cross in a Black neighbor’s yard does. The Supreme Court will not tolerate fighting words statutes that are designed to punish only certain viewpoints (for example, proscribing only fighting words that insult on the basis of race, religion, or gender).

Answer 16

While this classification of punishable speech exists in theory, as a practical matter, statutes that attempt to punish fighting words are usually vague or overbroad (see supra). Thus, on the examination, they typically will be invalid.

Answer 17

Obscene speech is not protected.

Answer 18

i. The material must appeal to the prurient interest ii. The material must be patently offensive under the law prohibiting obscenity iii. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value

Answer 19

Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person: • Appeals to the prurient interest in sex (based on a community standard) • Is patently offensive (based on contemporary community standards) AND • Lacks serious literary, artistic, political, or scientific value (using a national reasonable person standard)

Answer 20

Appeal to the prurient interest and offensiveness are judged by contemporary community standards (local or statewide, not necessarily national standards), but value is judged on a national reasonable person basis.

Answer 21

Community/local standard

Answer 22

State or local law

Answer 23

National standard

Answer 24

Erogonous zonign is permissible! The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters. Zoning Regulations A land use (or zoning) regulation may limit the location or size of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such businesses (for example, increased crime rates or decreased property values). However, regulations may not ban such establishments altogether. A zoning ordinance prohibiting the location of adult bookstores and theaters in areas close to residential zones and restricting such theaters to a limited area of the city is permissible if it is designed to promote substantial government interests (e.g., property interests) and does not prohibit all such entertainment in the community.

Answer 25

To protect minors from exploitation, the government may prohibit the sale or distribution of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children. Child pornography may be completely banned, even if not obscene. (To be child pornography, children must be used in production of the material.)

Answer 26

The government may not bar visual material that only appears to depict minors engaged in sexually explicit conduct, but which actually uses young-looking adults or computer-generated images.

Answer 27

A state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience. However, government may not prohibit the sale or distribution of material to adults merely because it is inappropriate for children.

Answer 28

The government may not punish private possession of obscene materials; but the government may punish private possession of child pornography. Private possession of obscene material in the home cannot be punished (except for possession of child pornography). However, the protection does not extend outside the home.

Answer 29

Profane and indecent speech is generally protected by the First Amendment i) Exception: over the broadcast media ii) Exception: in schools

Answer 30

Seizure of a single book or film may be made with a warrant based on probable cause. If the item is available for sale to the public, a police officer may purchase a book or film to use as evidence without a warrant. Large-scale seizures must be preceded by a full-scale adversary hearing and a judicial determination of obscenity.

Answer 31

Profane and indecent speech is generally protected by the First Amendment. But there are exceptions allowing for regulation of broadcast media and in schools.

Answer 32

The Court has found that time delays incident to censorship are less burdensome on movies than on other forms of expression. Thus, the government can establish censorship boards to screen movies before they are released, as long as the procedural safeguards discussed above are followed. (See 16.2., supra.)

Answer 33

As a general rule, commercial speech is afforded First Amendment protection if it is truthful. a. Advertising for illegal activity, and false and deceptive ads are not protected by the First Amendment b. True commercial speech that inherently risks deception can be prohibited i. The government may prevent professionals from advertising or practicing under a trade name ii. The government may prohibit attorney, in-person solicitation of clients for profit iii. The government may not prohibit accountants from in- person solicitation of clients for profit c. Other commercial speech can be regulated if intermediate scrutiny is met d. Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.

Answer 34

False and Deceptive Speech or Illegal Activity The government can prohibit commercial speech that proposes unlawful activity or that is inherently misleading or fraudulent.

Answer 35

Risk of Deception True commercial speech that inherently risks deception can be prohibited. For example: • 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 soliciting clients in-person

Answer 36

Other commercial speech can be regulated if intermediate scrutiny is met. Specifically, any other regulation of commercial speech will be upheld only if it: • Serves a substantial government interest; • Directly advances that interest; and • Is narrowly tailored to serve that interest.

Answer 37

Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to a lack of tailoring.

Answer 38

The government may require commercial advertisers to make disclosures if the disclosures are not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.

Answer 39

If the defamatory statement is about a public official or public figure or involves a public concern, the First Amendment requires the plaintiff to prove all the elements of defamation plus falsity and some degree of fault. If the plaintiff is a public official or public figure, that degree of fault is actual malice. Actual malice will be found where the statement was made with knowledge that it was false or with reckless disregard as to whether it was false.

Answer 40

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, with CLEAR AND CONVICNING EVIDENCE.

Answer 41

If the plaintiff is a “public figure” the plaintiff can recover for defamation by proving falsity of the statement and actual malice

Answer 42

those who thrust themselves into the limelight and who likely have access to media to respond to the attack.

Answer 43

If the plaintiff is a “private figure” and the matter is of “public concern,” that state may allow the plaintiff to recover compensatory damages for defamation by proving falsity and negligence by the defendant. However, the plaintiff may recover presumed or punitive damages only by showing actual malice.

Answer 44

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. SC never made standard for compensatory damages.

Answer 45

public has a legitamte concern.

Answer 46

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

Answer 47

LIABILITY STANDARD: Actual Malice DAMAGES: Compensatory Presumed/Punitive BURDEN OF PROOF: Plaintiff Must Prove Falsity

Answer 48

LIABILITY STANDARD: Actual Malice DAMAGES: Compensatory Presumed/Punitive BURDEN OF PROOF: Plaintiff Must Prove Falsity

Answer 49

LIABILITY STANDARD: Negligence and Actual Injury DAMAGES: Compensatory for Actual Injury; Presumed or Punitive Damages Require Actual Malice BURDEN OF PROOF: Plaintiff Must Prove Falsity

Answer 50

LIABILITY STANDARD: Unclear - Negligence DAMAGES: Compensatory for Actual Injury; Presumed or Punitive Damages Do Not Require Actual Malice BURDEN OF PROOF: Unclear - Burden on Defendant to Prove Truth

Answer 51

1A inapplicable to government speech a. Permanent monuments on government property a form of government speech b. Government funding of private speech—generally must be viewpoint neutral 1) Exception: Government funding of the arts c. Limitation: Not all speech on government property is government speech 1) Holistic approach to determine government versus private speech

Answer 52

Regulation of speech based on content—generally prohibited a. Exceptions: Unprotected categories (see 7., infra) b. Speech of government employees 1) Official duties—government may punish public employee for unwanted speech made as part of employee’s official duties 2) Private speech of government employee a) Matter of public concern—balance employee’s right as a citizen to comment against government’s interest as employer in efficient perfor- mance of public service b) Not a matter of public concern—employer has broad discretion to punish employee’s disruptive speech

Answer 53

a. Prohibition against substantially more speech than necessary voidable as to affected person for overbreadth b. Prohibition including a substantial amount of protected speech compared to its legitimate sweep—void as to everyone c. Regulation failing to give reasonable notice of what is prohibited has chilling effect on speech and violates due process d. Official cannot have unfettered discretion over speech issues

Answer 54

1) Official duties—government may punish public employee for unwanted speech made as part of employee’s official duties 2) Private speech of government employee a) Matter of public concern—balance employee’s right as a citizen to comment against government’s interest as employer in efficient perfor- mance of public service b) Not a matter of public concern—employer has broad discretion to punish employee’s disruptive speech

Answer 55

a. Mandatory financial support of government speech—no 1st Amendment concerns b. Mandatory financial support of private speech—protected c. Speech includes symbolic conduct

Answer 56

Public forums vs limited public forums

Answer 57

(such as, sidewalks and parks) and designated public forums (such as, schoolrooms open for use after school for social events)—regulation will avoid strict scrutiny and be upheld if: 1) Content neutral 2) Narrowly tailored to serve an important government interest 3) Leaves open alternative channels of communication

Answer 58

regulation will avoid strict scrutiny and be upheld if: 1) Content neutral 2) Narrowly tailored to serve an important government interest 3) Leaves open alternative channels of communication

Answer 59

(that is, public property open for expressive activities only on a certain topic) and nonpublic forums (that is, public property not open for expressive activities)—regulation valid if: 1) Viewpoint neutral 2) Reasonably related to a legitimate government purpose

Answer 60

regulation valid if: 1) Viewpoint neutral 2) Reasonably related to a legitimate government purpose

Answer 61

NO. The Supreme Court has held that curriculum-based public high school activities are not public forums. Content regulation of nonpublic forums is allowed as long as the regulation is viewpoint neutral and reasonably related to a legitimate government purpose.

Answer 62

a. Clear and present danger of imminent lawless action b. Fighting words (including true threats): Statutes often overbroad or vague c. Obscenity d. Defamation

Answer 63

1) Test: a) Appeals to the prurient interest in sex; b) Portrays sex in a patently offensive way; and c) Does not have serious literary, political, or scientific value judged from a national standard 2) Standard for minors may be different 3) Can prohibit pictures of minors engaging in sex that would not be obscene if engaged in by adults 4) Zoning ordinances may limit the location of adult entertainment establish- ments if designed to reduce the secondary effects of such businesses (for example, rise in crime or reduction of property values)

Answer 64

1) Public official or figure—plaintiff must prove actual malice a) Actual malice = knowledge of falsity or reckless disregard as to truth 2) Private individual suing on matter of public concern—must prove at least negligence 3) Privacy torts—media defendant cannot be sued for publishing a true fact about a public record lawfully obtained

Answer 65

a. If speech about unlawful activity or untrue or misleading speech—unprotected b. Speech regarding lawful activity and not false or misleading—regulation valid if it: 1) Serves a substantial government interest 2) Directly advances that interest 3) Is narrowly tailored to serve that interest c. Complete bans usually invalid

Answer 66

a. Invalid unless justified by a special societal harm or pursuant to contract b. Procedural safeguards 1) Standards must be narrowly drawn, reasonable, and definite 2) Injunction must be sought promptly 3) There must be a prompt and final determination of validity of restraint c. Broadcast media may be more closely regulated than press; cable TV between the two; Internet regulation subject to strict scrutiny if content-based

Answer 67

a. No punishment of beliefs—total freedom to believe as desired b. Conduct cannot be punished solely because religious c. No exclusion from government benefits solely because organization is religious d. General conduct regulation that incidentally burdens religious practice—generally valid e. Religious exemptions for religious belief generally not required except: 1) Amish exempt from mandatory secondary education 2) Conscientious objectors who refuse munitions work from unemployment compensation laws requiring applicants to accept any job.

Answer 68

Establishment Clause—government cannot aid or formally establish a religion In determining whether government action is valid under the Establishment Clause, courts will consider whether the action is neutral with regard to religion. Next, courts will consider whether the government action accords with history and faithfully reflects the understanding of the Founding Fathers. If so, the action is unlikely to violate the Establishment Clause. a. Compels neutrality b. But if not neutral, may still be permitted based on historical tradition/practice and understanding of Founding Fathers: 1) Not violated every time a government entity fails to censor religious speech 2) Neutral benefit program valid even if independent choices of recipients leads public money to go to religious organization 3) School-sponsored religious activity invalid (for example, requiring Bible study as part of public school curriculum) but accommodation of religion may be valid (for example, coach’s silent prayer on field after public high school game)

Answer 69

Bill of Rights applies directly only to the federal government. Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment. Except: a. The Third Amendment right to not have a soldier quartered in a person’s home. b. The Fifth Amendment right to grand jury indictment in criminal cases. c. The Seventh Amendment right to jury trial in civil cases.

Answer 70

Under the rational basis test a law is upheld if it is rationally related to a legitimate government purpose.

Answer 71

Under intermediate scrutiny a law is upheld if it is substantially related to an important government purpose.

Answer 72

Under strict scrutiny a law is upheld if it is necessary to achieve a compelling government purpose.

Answer 73

The government may not punish the truthful reporting of information that was lawfully obtained from the government. Neither is punishment 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. But, the government may limit dissemination of information to protect privacy.

Answer 74

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

Answer 75

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

Answer 76

The government may limit its dissemination of information to protect privacy

Answer 77

Speech by government employees on the job in the performance of their duties is not protected by the First Amendment. (This is discussed further in the module on freedom of association.)

Answer 78

Other government restrictions based on the content of speech must meet strict scrutiny. (Example: restrictions on violent speech must meet strict scrutiny.)

Answer 79

restrictions on violent speech must meet strict scrutiny.)

Answer 80

Generally gov can limit. BUT, criminal trials theres a right for public to access.

Answer 81

The government has power to regulate the conduct associated with speech and assembly, although the breadth of this power depends on whether the forum involved is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.

Answer 82

Public forums, Designated Public forums, limited public forums, non-public forums

Answer 83

government properties that the government is constitutionally required to make available for speech. Public property that has historically been open to speech-related activities (for example, streets, sidewalks, and public parks) is called a public forum. To avoid strict scrutiny, a government regulation on speech and assembly in public forums must be: • Content neutral (that is, subject matter neutral and viewpoint neutral), • A time, place, or manner regulation that serves an important government purpose and that leaves open alternative channels of communication (note that almost every legitimate governmental interest satisfies the significant/important standard), and • Narrowly tailored to serve that important interest (however, it does not have to be the least restrictive means of achieving the interest). Note: City officials cannot have discretion to set permit fees for public demonstrations.

Answer 84

Subject and viewpoint neutral, (or else itll be strict scrutiny); - A time, place or manner regulation... - that serves an important government purpose, - adequate alternatives - Narrowly tailored, not necessarily least restrictive If all of these are met, INTERMEDIATE SCRUTINY

Answer 85

a. Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met b. Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication c. Government regulation of public forums need not use the least restrictive alternative, but must be narrowly tailored.

Answer 86

Public forums Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met

Answer 87

Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communicatio

Answer 88

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

Answer 89

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.

Answer 90

Injunctions against speech in public forums are treated differently from generally applicable laws. If the injunction is content-based, it must be necessary to achieve a compelling interest. If the injunction is content-neutral, it must burden no more speech than is necessary to achieve an important government interest.

Answer 91

Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy (for example, schoolrooms that are open for after-school use by social, civic, or recreation groups), is called a designated public forum. A government regulation on speech in a designated public forum must meet the same test applicable to speech in a public forum. 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.

Answer 92

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. Speech and assembly can be more broadly regulated in limited public forums (that is, government property not historically linked with speech and assembly but that are opened for specific speech activity, such as a school gym opened to host a debate on a particular community issue). The government can regulate speech in such a forum to reserve the forum for its intended use. In such locations, regulations are valid if they are: • Viewpoint neutral and • Reasonably related to a legitimate government purpose.

Answer 93

- Opened for certain groups or topics - Reg must be reaosnable and viewpoint neutral (subject matter restrictions fine, viewpoint no).

Answer 94

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, airports,

Answer 95

Nonpublic forums are government properties not historically linked with speech and assembly and not held open for speech activities (for example, military bases, sidewalks on post office property, schools while classes are in session, and government workplaces). The test applicable to speech in such forums is the same as for limited public forums—regulations have to be reasonable and viewpoint-neutral.

Answer 96

NON-Public forum.

Answer 97

Nonpublic forum. Gov can prohibit soliciation of money, gov cannot prohibit distribution of literature.

Answer 98

There is no First Amendment right of access to private property for speech purposes.

Answer 99

Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person: a. actively affiliated with the group; b. knowing of its illegal activities; and c. with the specific intent of furthering those illegal activities.

Answer 100

Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny

Answer 101

Laws that prohibit a group from discriminating are constitutional unless - they interfere with intimate association or expressive activity/ - discrimination integral to activities to grpoup

Answer 102

- Intiminate association. (small dinner party) - Discrimination integral to activites of group. (KKK, Nazi Party)

Answer 103

The gov can make no law prohibitng the free exercise thereof. Must be a neutral law of general applicability, or else strict scrutiny will apply. The free exercise clause cannot be used to challenge a neutral law of general applicability. (peyote Indian case). If not neutral or not generally applicable, strict scrutiny.

Answer 104

Not neutral, so strict scrutiny. (Catholic adoption case)

Answer 105

The denial of benefits to a religious school that are provided to a secular private school must meet strict scrutiny.

Answer 106

a. The government cannot coerce religious beliefs or behavior. b. The government cannot discriminate against religious speech or among religions unless strict scrutiny is met. c. Government-sponsored religious activity in public schools is unconstitutional. A football coach praying on the field does not violate the Establishment Clause; punishing him for doing so violates free exercise of religion and free speech. But religious student and community groups must have the same access to school facilities as non-religious groups. d. The government may give assistance to parochial schools, so long as it is not used for religious instruction. i) The government may provide parents vouchers which they use in parochial schools. ii) The denial of funds for religious schools that are provided to secular private schools violates free exercise of religion unless strict scrutiny is met.

Answer 107

Government-sponsored religious activity in public schools is unconstitutional. A football coach praying on the field does not violate the Establishment Clause; punishing him for doing so violates free exercise of religion and free speech. But religious student and community groups must have the same access to school facilities as non-religious groups.

Answer 108

Focus = school intiiated, school sponsored, or school-approved. BUT, a teacher praying on his own time allowed under Free Exercise Clause.

Answer 109

d. The government may give assistance to parochial schools, so long as it is not used for religious instruction. i) The government may provide parents vouchers which they use in parochial schools. ii) The denial of funds for religious schools that are provided to secular private schools violates free exercise of religion unless strict scrutiny is met.

Answer 110

they can do this. i) The government may provide parents vouchers which they use in parochial schools.

Answer 111

The Free Exercise Clause prohibits government from punishing someone on the basis of their religious beliefs. For example, the Clause forbids: • State governments from requiring office holders or employees to take a religious oath (the federal government is similarly restricted by Article VI) • States from excluding clerics from holding public office • Courts from declaring a religious belief to be false

Answer 112

The Supreme Court has not defined what constitutes religious belief, but it is clear that religious belief need not come from an organized religion or involve a supreme being. For First Amendment purposes, a religious belief includes the tenets of traditional religions, as well as beliefs that play a role in the life of believers similar to the role that religion plays in the life of traditional adherents. Notably, the Court has never held an asserted religious belief to be not religious for First Amendment purpose

Answer 113

When deciding whether a person holds a religious belief or even just whether the belief qualifies as religious, courts can question the sincerity of a person’s belief, but not the truthfulness of the belief.

Answer 114

a. Neutral Laws of General Applicability—Not Covered: The Free Exercise Clause cannot be used to challenge a neutral law of general applicability. In other words, the Free Exercise Clause cannot be used to challenge government action unless the action was specifically designed to interfere with religion. b. Discriminatory Laws Subject to Strict Scrutiny: A law or other government conduct that discriminates on the basis of religion is subject to strict scrutiny. A law is discriminatory if it is either: • Not neutral on its face (that is, the law is motivated by a desire to interfere with religion or the law expressly provides favored or disfavored treatment based on religious belief, conduct, or status) OR • Facially neutral but not generally applicable (that is, the law is silent with regard to religion but, by design, it targets religion generally or a religion in particular)

Answer 115

A law that gives government officials discretion to grant exemptions from the law is not generally applicable. Thus, if someone seeks an exception from such a law on religious grounds and the government refuses to grant the exception, that person can challenge the denial on Free Exercise Clause grounds. Strict scrutiny would apply.

Answer 116

The Free Exercise Clause does not require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct. Thus, a law that regulates the conduct of all people can be applied to prohibit the conduct of a person despite the fact that their religious beliefs prohibit them from complying with the law.

Answer 117

If a state’s unemployment regulations allow persons to refuse work for “good cause,” then the state can’t refuse to grant unemployment benefits to persons who quit their jobs for religious reasons (that is, the work or conditions of work conflict with tenets of the worker’s religion). Note that the worker doesn’t need to belong to a formal religious organization in such a situation, as long as the belief is sincere.

Answer 118

The government may not hold a religious institution liable for its choices regarding who will serve as ministers or its teachers. Thus, ministers and teachers cannot sue religious organizations for employment discrimination (for example, a Catholic schoolteacher was barred from bringing suit against the school for age discrimination). This exception includes any position considered by the congregation to be ministerial. Note: Imposing an unwanted minister would violate the Free Exercise Clause, and allowing the government to determine who will minister within a faith also would violate the Establishment Clause.

Answer 119

The Supreme Court has granted the Amish an exemption from a law requiring compulsory school attendance until age 16, based on the Free Exercise Clause and the fundamental right to educate one’s children.

Answer 120

The current test focuses on the rule that government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) their religion. The Court has not clearly defined what constitutes coercion, but it has said that the test is based on the Framers’ intent in 1791.

Answer 121

The government cannot discriminate against religious speech or among religions unless the government’s action meets strict scrutiny. If a government regulation allows secular speech but not religious speech in a particular place (such as a public meeting room available for private use), it would be a content-based restriction and strict scrutiny would apply. Government action that prefers one religious sect over another violates the Establishment Clause, at least if such favoritism is not necessary to achieve a compelling interest.

Answer 122

The Court has said that the government may provide aid to religious schools so long as the funds are not actually used in religious instruction. It is not clear whether that will change under the newer reading of the Establishment Clause. It seems that most of the time, programs that include both religious and secular private schools will be valid. Also, as noted above, the Court has said that the denial of funds for religious schools that are provided to secular private schools violates free exercise of religion unless strict scrutiny is met.

Answer 123

The government may give aid in the form of financial assistance, including vouchers, to a defined class of persons as long as the class is defined without reference to religion or religious criteria. This is true even if most of the recipients use the vouchers for parochial schools.

Answer 124

In cases not connected to financial aid or education and not involving a sect preference, a good rule of thumb is that a law favoring or burdening religion or a specific religious group will be invalid (for example, exempting only “traditional religions” from state registration requirements), but a law favoring or burdening a large segment of society that happens to include religious groups will be upheld (for example, a Sunday closing law).

Answer 125

Coerces religious participation. Government cannot coerce religious participation. Kennedy v. Bremerton.

Answer 126

Generally, the press has no greater First Amendment freedom than a private citizen.

Answer 127

Generally the press has a right to publish truthful information regarding a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further an interest of the highest order.

Answer 128

The First Amendment guarantees the public and press a right to attend criminal (and probably civil) trials. However, the right may be outweighed by an overriding interest stated in the trial judge’s findings (for example, to protect children who are victims of sex offenses). The right includes the right to be present at voir dire and at other pretrial proceedings unless the judge makes specific findings that closure is narrowly tailored to preserve a higher value.

Answer 129

Members of the press may be required to testify before grand juries.

Answer 130

The First Amendment does not give journalists a right to interview specified prisoners of their choice or to inspect prison grounds.

Answer 131

The press and broadcasting companies can be subject to general business regulations or taxes but cannot be targeted for special regulation or taxes. A tax or regulation impacting on the press or a subpart of the press cannot be based on the content of a publication (for example, a tax exemption cannot be given to “medical journals”) absent a compelling justification.

Answer 132

Radio and television broadcasting may be more closely regulated than the press. The paramount right is the right of viewers and listeners to receive information of public concern rather than the right of broadcasters to broadcast what they please. This paramount right allows government to forbid newspaper ownership of radio stations and to prohibit indecent speech over the airwaves.

Answer 133

The First Amendment does not require broadcasters to accept political advertisements. However, a radio station may constitutionally be required to offer free broadcasting time to certain individuals (for example, opponents of political candidates or views endorsed by the station, or persons who have been personally attacked in a broadcast).

Answer 134

While generally regulations of newspapers are subject to strict scrutiny, and regulations of the broadcast media are subject to less critical review, regulations of cable television transmissions generally are subject to review by a standard somewhere between these two. For example, a law requiring cable operators to carry local stations is subject to “intermediate scrutiny”—because it is content neutral (see 16.1.1, supra)—and is constitutional because it serves the important interest of preserving economic viability of local broadcasters. However, content-based restrictions (such as a law forbidding sexually oriented cable programs before 10 p.m.) are subject to strict scrutiny.

Answer 135

The strict standard of First Amendment scrutiny, rather than the more relaxed standard applicable to broadcast regulation, applies to regulation of the internet.

Answer 136

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 • With the specific intent to further those illegal activities

Answer 137

Laws that require disclosure of group membership must meet strict scrutiny if that disclosure would chill the right to association.

Answer 138

Discrimination: Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity.

Answer 139

Laws regulating elections might impact the First Amendment freedoms of speech, assembly, and association. The Court uses a balancing test to determine whether a regulation of the electoral process is valid: • If the restriction on First Amendment activity is severe, it must be narrowly tailored to achieve a compelling interest (that is, strict scrutiny applies). • If the restriction is reasonable and nondiscriminatory, it generally will be upheld.

Answer 140

A statute limiting election campaign contributions is subject to intermediate scrutiny—it must be closely drawn to match a “sufficiently important interest.” To prevent corruption or the appearance of corruption, laws may limit the amount of money that a person, group, or corporation can contribute to a political candidate. However, the government may not limit the amount of money that may be spent to support or oppose a ballot referendum. There is an exception for groups or corporations formed specifically to participate in the political debate.

Answer 141

The government may not limit the aggregate amount one person or entity contributes to political candidates or committees during an election even though it may limit the amount given to a single candidate. Aggregate limits violate the First Amendment’s protection of political speech because unlike individual contribution limits, they do not further the government’s interest in preventing quid pro quo corruption (or the appearance of such), and they seriously restrict participation in the democratic process.

Answer 142

Laws may not limit the amount that a candidate spends on a political campaign. Furthermore, the government may not limit the amount that a person spends to get a candidate elected, as long as the expenditures are not contributed directly to the candidate or coordinated with those of the candidate (that is, the expenditures must be independent of the candidate and not disguised contributions).

Answer 143

Regulation of “core political speech” (for example, electioneering or distributing campaign literature), rather than regulation of the process surrounding an election, must satisfy strict scrutiny. However, even under this standard, a state may ban personal solicitation of campaign funds by judicial candidates because such a ban advances the state’s compelling interest in preserving public confidence in the integrity of the judiciary. An ad concerning a political issue will be considered protected core political speech unless the only reasonable interpretation is that it is an appeal to vote for or against a particular candidate.

Answer 144

Under the First Amendment, speech generally cannot be regulated or punished based on the content of the speech unless the regulation or punishment is necessary to achieve a compelling government interest. However, special rules apply when the government seeks to punish a government employee for speech or speech-related activities.

Answer 145

A government employer may punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties, even if the speech touches on a matter of public concern.

Answer 146

If speech is not made pursuant to an employee’s official duties, two tests apply: • If the speech does not involve a matter of public concern, the courts give the government employer a wide degree of deference and allow the employer to punish the employee if the speech was disruptive of the work environment. • If a matter of public concern is involved, courts must balance the employee’s right as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service.

Answer 147

The federal government may prohibit federal executive branch employees from taking an active part in political campaigns.

Answer 148

A provision banning government employees from accepting an honorarium for making speeches, writing articles, or making appearances was held to violate the First Amendment when applied to “rank and file” employees. Such a rule deters speech within a broad category of expression by a massive number of potential speakers and, thus, can be justified only if the government can show that the impact the speech would have on government operations outweighs the employees’ and their potential audiences’ rights.

Answer 149

A public employee may not be hired, fired, promoted, transferred, 102 or the like, based on party affiliation or political views except as to policymaking positions, where party affiliation and views are relevant.

Answer 150

The government may require employees to take loyalty oaths, as long as the oaths are not overbroad or vague. a. Overbreadth An oath cannot prohibit membership in the Communist Party or require abstention from advocating overthrow of the government as an abstract doctrine.

Answer 151

The government may not force disclosure of every organizational membership in exchange for a government employment or other benefit; rather, it may inquire only into those activities that are relevant to the employment or benefit sought. A person can, however, exercise his Fifth Amendment right to remain silent if the disclosure would be incriminating.

Answer 152

The Supreme Court has held that the compelling interest test does not apply to infringement cases involving public school sponsorship of extracurricular clubs. The test used in limited-public-forum-speech cases applies— sponsorship of associations can be subject to regulation that is viewpoint neutral and reasonably related to a legitimate government interest.

Answer 153

Speech creating a clear and present danger of imminent lawless action, Fighting words, Obscenity.

Answer 154

Commercial speech is protected by the First Amendment. However, false or misleading commercial speech is not protected by the First Amendment. Moreover, commercial speech can be regulated if the regulation serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest.

Answer 155

Speech may be punished or banned under the clear and present danger test whenever it is directed to producing or inciting imminent (NOW!) lawless action and is likely to produce such action.

Answer 156

A state can forbid advocating the use of force or of law violation if such advocacy (i) is directed to producing or inciting imminent lawless action, and (ii) is likely to produce or incite such action. ***BUT, words MUST be interpreted as a true threat of immediate harm to be interpreted as a true threat of immediate harm - not just political commentary.

Answer 157

Statements meant to place a person in fear of bodily harm and statements likely to incite physical retaliation are both classic examples of fighting words subject to government regulation. True threats-statements meant to communicate an intent to place an individual or group in fear of bodily harm-may be punished; Fighting words-words or epithets that, when addressed to an ordinary citizen, are inherently likely to incite immediate physical retaliation-may also be punished; Conduct undertaken with the intent to cause fear of bodily harm (e.g., cross burning) is considered to be a form of fighting words, even though there is no actual spoken threat. This is because the conduct is intended to convey a message that is unprotected by the First Amendment. and Fighting words statutes are often struck down for overbreadth. The overbreadth problem arises because of the difficulty in precisely describing what is or is not a "fighting word."

Answer 158

hate crime statutes may NOT limit fighting words sanctions to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation. Such a limitation means the sanction is based on viewpoint, and the Court will not tolerate such sanctions

Answer 159

Even though fighting words are unprotected, the Supreme Court won’t allow fighting words statutes that are designed to punish only certain viewpoints (for example, prohibiting only fighting words that insult on the basis of race, religion, or gender).

Answer 160

A park is a public forum. The government can limit rights of speech in such a forum only when there is a serious and imminent threat to the public order.