con law

Question 1

the press clause

Answer 1

congress shall make no law abridging the freedom of speech, or of the press

only applies to congress through 1st amendment; but extends to all governments through the 14th amendment due process clause

Question 2

conduct is considered speech

Answer 2

spence test:
the Spence test; conduct will be considered expressive (1) if the person extending conduct intending to convey a message through conduct, (2) and were the people witnessing the conduct likely to understand the message

if spence test is passed, apply O’Brein to consider of abridgement is constitutional

Obrein:

gov has burden of showing (a) regulation is witbin power of gov (b) furthers an important gov interest (c) interest unrelated to suppression of speech (4) iany incidential restrictio on speech is not greater than essential to the furtherance of the gov interest

Question 3

ways speech can be abridged

Answer 3

• abridgment of speech is anything that punishes you for speaking:
  • *criminal punishment
  • *tort liability
  • *compelled speech
    
    • freedom of speech includes the right to not be compelled to speak
  • *interference with freedom of association
    
    • in addition to right to speak you have a right to get together to communicate message *unconstitutional conditions
    • when gov conditions get a benefit when surrendering free speech right
      
      • ex: you can have drivers license, but you can’t criticize gov
      • ex: rumsfeld case; you can have money if you don’t speak out against
• unconstitutional conditions
  • when gov conditions get a benefit when surrendering free speech right
    
    • ex: you can have drivers license, but you can’t criticize gov
    • ex: rumsfeld case; you can have money if you don’t speak out against

Question 4

in deciding if law is constitutional; content based v content nuetral

Answer 4

does the application of the law depend upon the message/content being communicated?

content based (strict scrutiny will apply)
- targets speech based on it communicative content
- when gov regulates based on content, the gov is deciding what ideas can be heard, and the court considers that to be the gravest threat to the marketplace of ideas
ex: subject matter & viewpoint discrimination

content nuetral (intermediate scrutunity will apply)
- egulates speech regardless of message
- rules for aesthetics, some rules for tranquility, so there isn’t parties in backyards at 3pm; need rules for
order purposes (15min)

time, place or manner test
- laws are valid if justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant gov interest and leave open ample alternative channels for communication of information

Question 5

strict scrtunity

Answer 5

very rarely passes

strict scrutinity:
- gov bears the burden of proof in showing that the law was necessary to serve a compelling state interest
- (1) gov end must be compelling and (2) the means used to achieve this end must be necessary or narrowly tailored
- necessary means the must be not be any least speech restrictive means to achieve the governments purpose

utilized when theres a realistic possibility that the suppression of ideas is afoot

Question 6

intermediate scrutinity

Answer 6

more likely to pass

intermediate:
- gov bears the burden of proof in showing that the restriction is substantially related to an important government interest
(1)- gov end must be important
and (2) means uses to advance this end must not burden substantially more speech than necessary

Question 7

how restraints can be unconst

Answer 7

vagueness
- a vague law is a law that fails to give a reasonable person adequate notice as to what actions are prohibited; where men of common intelligence must guest the law’s meaning

overbreadth → (facially or as applied challenge)
- law regulated unprotected speech, but it also regulates protected speech
- will be facially invalid if substantially overbroad
- otherwise, can challenge as applied to individual party
- chills protected speech which is why the courts do not like it

prior restraints → tries to stop people before they speak as opposed to after they speak
- very hostile to prior restraints (stemming from england and the origination of printing press)
- liberty of the press consists in laying no previous restraint supon publications
- any prior restraint, comes with a heavy presumption of unconstitutionality

Question 8

catergories of unprotected speech

Answer 8

incitement
fighting words
hostile audience
true threats
obscentity
child porno
speech intergral to a crime

Question 9

incitement

Answer 9

speech that encourages law breaking

test utilized is bradenburg which is:

(1) speech explicitly or implicitly encourages the use of violence or lawless action; (VOLLA) (2) the speaker intended that the speech would result in the use of violence or lawless action; (3) the imminent use of violence or lawless action was the likely result of speech

requires IIL
intent
immenient
likely

Question 10

fighting words

Answer 10

speech that encourages people to attack the speaker

(1) those which by their very utterance inflict injury or (2) tend to incite an immediate breach of peace

• mainly just (2) → speech that tends to incite an immediate breach of peace; only applies to remarks that would cause acts of violence
• what men of common intelligence, would understand be likely to cause an average addressee to fight → must be a (1v1 interaction)

such utterances are of no essential part of exposition of ideas; any value is outweighed by the social interest in order and morality (chaplinsky)

Question 11

hostile audience

Answer 11

speech to a audience, but saying something that audience hates

content of what you are saying provokes audience to want to attack

speech is protected unless (1)creates and present danger where speaker passes the bounds of argument or persuasion and (2) undertakes to incitement to riot; the police may arrest him to prevent a breach of peace

used to be determined based on the crowd usiing the hecklers veto but problem with allowing police to arrest speaker if crowd gets sufficiently rowdy is that it gives the crowd the power to decide who speaks which is called hecklers veto

Question 12

true threats

Answer 12

encompass those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular group of individuals
- speaker need not actually intend to carry out threat; but the prohibition of true threats protects individuals from the fear of violence and from the disruption that fear engenders

to establish someone made a true threat, a person must have a culpable reckless state of mind when they make the statement
- conscious disregard of a substantial and unjustifiable risk resulting in harm to another

Question 13

obscenity

Answer 13

implicit in the history of first amendment is the rejection of obscenity as utterly without redeeming social importance
(sex and obscenity are not the same thing)

miller test (affirms obscene speech as unprotected
- (1) whether the avg person applying contemporary community standards would find that the work taken as a whole, appeals to prurient interest (shameful morbid interest in nudity, sex going beyond societal limits of candor)
(2)whether the work depicts of describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law and
(3)whether the work taken as a whole, lacks serious literary, artistic , political, or scientific value (on a national level not community standard)**

Question 14

public officials burden in defamation

Answer 14

must show false statement of fact made knowledge or reckless disregard for the validity of statment and must be shown by a preoponderance of evidence

• must prove actual malice for public officials to recover for defamation
  
  • knowledge it was false
  • or with reckless disregard (KORD)
  • burden on plaintiff to show..
• must be shown by convincing clarity (higher standard then preponderance of evidence)

Question 15

types of public figures

Answer 15

• all purpose public figure
  
  • so prominent for everything
• limited public figure
  
  • someone with regard to some issue has thrust themselves into the public eye

if plaintiff is public figure they still have to meet actual malice

Question 16

private person matter of public concern

Answer 16

to get compensatory, they must prove the defendant acted with negligence
and statement is false
- burden to prove false
- can get actual damages just based on neg but if they want presumed or punitive must show actual malice

Question 17

private person, private concern

Answer 17

first amendment limitations are uncertain
- - can get presumed and actual without having to show actual malice
- but if they just want damages they just have to prove whatever standard case sets forth

Question 18

matters of public concern are

Answer 18

speech deals with matter of PC when it can be fairly considered as relating to any matter of political, social, or other concern to the community, and it is a subject of legitimate news interest

Question 19

false light privacy (for both private and public figures)

Answer 19

false statements, that are highly offensive to a RPP

false statements that are positive can still be actionable

Question 20

publication of private facts

Answer 20

• publication of true facts that CL would regard as private
  • states that allow, require disclosure be public and highly offensive to reasonable person of true facts (sex tape)

disclosing true facts that are highly offensive to a RP

Question 21

instrusion upon seclusion

Answer 21

one who intentionally intrude upon seclusion of another is liable to the other if the intrusion is highly offensive

Question 22

appropriation of right of publicity

Answer 22

protects commercial value of your NIL

Question 23

IIED

Answer 23

when defendant by extreme and outrageous conduct, intentionally recklessly caused victim severe emotional distress

public figures cannot recover unless they show
must show that a false statement of fact was made with actual malice with knowledge the statement was false with reckless disregard to whether or not it was true

Question 24

commercial speech

Answer 24

speech trying to sell you goods → in convential sense it is advertising, but it doesn’t encompass all advertising just advertising for goods and services

commercial speech is protected, but if its false of misleading or broadly defined or advertising illegal product it is not protected

central hudson test:
- does speech advertise illegal activities false or deceptive advertsing?

• does the restriction on speech serve a substaintial gov interest?
• does the regulation of speech directly advance the governments interest?
• is the regulation of speech no more extensive than necessary to achieve the governments interest? (intermediate)

Question 25

(1) traditional public forms

Answer 25

(parks, sidewalk, streets) gov cannot deny public right to use for speech, but can regulate content bssed - strict scrutinty to pass it must the restrictions of of intermediate scritnity and the regulation must impose only reasonable restrictions on time, place and manner of speech that are here and the test nearly tailored to serve a sig interest and leave open alternative channels - **content-nuetral regulations (time, place, manner regulation) are subject ot intermediate scrutinity (must show):** - **must be justisied without reference to the content of speech** - **must serve a significant gov interest** - **means it must narrowly tailor (reasonably fit, to achieve gov interest)** - **must leave open ample alternative channels for communication of the speech**

Question 26

non-public forums

Answer 26

- **gov property that has not been traditionally open to public for speech purposes** - military bases, jail, court, schools - **subject to any reasonable regulation of speech** - the gov may reserve the forum for its intended purpose, communicative otherwise, as long as the regulation of speech is reasonable and not an effort to suppress expression merely because public officials oppose the speakers view - **cannot have viewpoint discrimination**

Question 27

(3) designated public forum

Answer 27

- gov opens up gov building for broad speech purposes - gov could decide, to stop opening the property for speech purposes if it so chooses content based - strict - content nuetral - **must be justisied without reference to the content of speech** - **must serve a significant gov interest** - **means it must narrowly tailor (reasonably fit, to achieve gov interest)** - **must leave open ample alternative channels for communication of the speech**

Question 28

limited public forum

Answer 28

- when government opens up property for either limited groups (students) or limited topics (programs related to students) or both - **content based decision and speaker based which is fine, as long as they: subject to any reasonable regulation of speech: regulation must be reasonable and not engage in viewpoint discrimination** - content based decisions is allowed

Question 29

schools can regulate student speech if

Answer 29

- **state operated school cannot be enclaves of totaltaltirisim … in our system students cannot be closed circuit recieptiant of that the state chooses to communicate** - **want to create citizens that contribute to MPOI not robots who have been fed gov propoganda** can only regulate if below: - it is indecent, lewd, speech uttered during school assembly on school grounds - speech promtoing the use of drugs - materially and substantially interfere with the work of school & infringe on rights of other students** - speech that may be percieved as bearing the impiratur of school

Question 30

school sponsored activity & speech regulations

Answer 30

activities may be catergorized as school criculum as long as they are supervised and designed to impart particular knowledge educators do not offense first amend by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably to legitmate pedagocial concerns

Question 31

gov employee speech regulation

Answer 31

problem in any given case is to arrive at balance between the interest of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficency of the public service it performs through its employees pickering test: - **we hold that when public employees are not speaking as citizens for First amendment purpose, the Constitution does not insulate their communication from employeer disciple** - **when they are speaking pursant to official duties, they have no protection**

Question 32

gov as funder

Answer 32

have to decide whether its: conditions that define the limits of gov spending campaign, and conditions that seek to leverage funding that regulate speech outside contours of the program itself when gov itself if speaking, free speech clause does not apply; if you don’t like the message they are conveying, you can vote them out (bully pulplit) gov can just decide they can fund one program and not another opposing side, will say its an unconstitutional condition, as its a conditional benefit

Question 33

campaign finance

Answer 33

- **contribution** - give money directly to candidate and candidate campaign (expressive act) → symbolic speech - campaign contribution limits okay to prevent corruption or appearance of corruption independent expenditute - expenditures limits are almost always unconstitutional

Question 34

can schools regulate outside of school

Answer 34

- **usually schools dont have jursidiction but sometimes they do** - school in relationship with off campus, school will rarely stand in place of their parents - student speaker, regulation of off campus speech include and on campus speech, all of their speech would be regulated refuse to have brightline rule,

Question 35

free exercise (rule 1)

Answer 35

free exercises means first and foremeost the right to beleive whatever religious doctrine, one desires - and the gov excludes all gov regulation of religious beliefs as such gov cannot decide what people believe

Question 36

religion clauses

Answer 36

free exercise; normally when gov burdens religion establishment; when gov helps a religion - **goal of the clauses** - avoid religious strife - don’t want to compel participation

Question 37

rule 2 of free exercise

Answer 37

- **gov cant discriminate agains religious beliefs or conduct** - **at minimum, the protections of free exercise pertain if law discriminates against some or all of religious beliefs because it is undertaken for religious belief** if object of law is to infringe upon or restrict its not allowed; begin with text; words such as ritual or sacrifice

Question 38

neutral laws of general applicability

Answer 38

if its a neutral law of general applicability burdens someone religious practices, and its not targeted at that practice, the first amendment does not entitle them to any exemption (smith) free exercise does not require religious accomodation from neutral law applying strict scrutiny to neutral laws invites anarchy

Question 39

establishment clause

Answer 39

**establishment clause jurisprudence (no to private)** - congress should make no law establishing a religion - all levels of gov - **gov cannot discriminate in favor of one religion of overs** - one denomination cannot be officially preferred over another

Question 40

differing views over how much sepration of church and state it required

Answer 40

include high seperationalist, middle seperationalist, and low seperationalist

Question 41

high seperationalist

Answer 41

- **should jave no maximal amount of speration** - no religious symbols on gov property, no prayers at gov functions, no financial support for religon - recognizes total seperation not possible (police, fire, sewer system) - but even these people, do not think it should be complete seperation between church and state - of course, fire department can put out fire at church (as certain as hostility to church)

Question 42

- **middle seperationist**

Answer 42

- **requires some seperation but not macimal sepration** - sometimes associated with nuetraility principle that religion should be treated neither better nor worse than other groups

Question 43

- **law seperatinist**

Answer 43

- **law seperatinist** - **religion is part of who americans are and should be accomondated** - **allow public prayer religious symbols on gov property**

Question 44

for non-prential treatment: older practices to decide if it violated

Answer 44

- **lemon test (main test)** - **gov action must have secular purpose (b) the action must not have principle or primary effects of advancing religion (c) gov action must not foster and excessive gov entanglement with religio** - **endorsement test** - gov action must not endorse one religion over others or religion over secularism - whether the gov seemed to endorse one religion over another - usually judged from perspective of person - **coercion test** - gov may not coerce anyone to support or participate in religion

Question 45

for non-prential treatment: current practices to decide if it violated

Answer 45

- **using history and tradition practices as guide & coercion test** - does it fit within tradition - historic allowance of prayers in legislative - long standing monument, want to uphold lemon test - if its not done for a secular purpose - coercion test (disagreement as to what qualifies)

Question 46

religion in public schools

Answer 46

- **older cases were all higher separationist cases because kids are young and impressionable** - **no prayers can be said in schools** - but private prayer by teacher or coach is allowed - all recognize coercion (peer pressure) - curricular decisions: teaching evolution and creationism

Question 47

gov aid to religion

Answer 47

- **if you give it out, it has to go all schools not just rleious** - **cannot be religious content like bibles** - **cannot be something thats easily diverted to religious us**e

Question 48

collateral bar rule

Answer 48

When a court issues an order, it must be obeyed, even if you believe it is erroneous. The proper course of action is to comply with the order and simultaneously pursue an appeal. Failure to comply may result in sanctions or a finding of criminal contempt. Importantly, even if the order is later overturned on appeal, the individual may still be held liable for any sanctions imposed due to noncompliance. Courts emphasize that judicial orders must be respected unless and until they are reversed through proper legal channels. narrow exception is if the higher court considers the orginal order to be transparently invalid, then sanction may be overturned

Question 49

RAV case

Answer 49

just because speech is unprotected and regulation by gov doesn not mean the government can regulate in a content based manner; certainly no viewpoint discrimination

Question 50

defamation

Answer 50

the act of communicating false statements about a person that injure the reputation of that person falsity was normally presumed, and plaintiff just had to prove the statement was about them and that it was published.

Question 51

right to associate

Answer 51

Associational Rights of Government Employees: The question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. Ask yourself: Is party affiliation relevant to the job? High-level stuff like the presidential cabinet = OKAY! Laws requiring disclosure of membership - constitutional or unconstitutional? Not applicable to a janitor