Flashcards in Con Law 4 - First Amendment Deck (53)
Per se unconstitutional because it's not neutral
School Prayer practices that have been held invalid
(1) Period of silence for meditation or prayer when there was a religious motive.
(2) 10 commandments in classroom.
(3) Graduation prayers.
(4) High school football game prayer.
Creationism and other religious doctrine
Can't teach creationism alongside evolution or other religious doctrine as truth.
Displaying baby jesus in a park
Can't unless you put other secular things around it so that it has a secular purpose of celebrating a holiday
Giving licenses to put a cross in a city park near a statehouse
Is fine as long as they're giving licenses to other groups to do other stuff there too
Posting ten commandments on walls of the courthouse
Posting 10 commandments monument along with other monuments surrounding state capitol
Sunday closing laws
Is ok, govt has secular purpose of coordinating a weekly day of rest, benefit to religion is incidental
Tax Deductions for Religious Institutions
Are ok if you're giving the same tax break to all the secular ones too, e.g. tax breaks for all non-profits
Govt aid to religious schools -- what's allowed
1. Secular textbooks.
2. Standardized tests.
4. Library, media materials, and computers.
5. Interpreters for deaf students.
Govt aid to religious schools - what's not allowed
1. Directly funding religious instruction
2. No money for even secular teachers in secondary schools. Ok in kindergarten and college.
Education Tax Deductions and Voucher Programs
Are ok if given to all parents based on actual expenditures for attending any public, private, or religious school
Providing Public Services Through Religious Institutions
Is ok if the religious organization will do a good job based on secular criteria
Free Exercise - Conduct (Smith)
Laws that inhibit free exercise conduct are ok if they're neutral and applied to everyone. e.g. peyote, air force headgear, amish paying social security taxes.
2 Exceptions to neutral laws that inhibit free exercise conduct
1. Sabbath observance unemployment benefits.
2. Amish people don't have to go to high school
Freedom of Expression - General Principle
First amendment stops the government from distorting the marketplace of ideas, especially with political speech.
Freedom of expression - strict scrutiny
Content-based and viewpoint-based discrimination
Unlawful Advocacy Test (Brandenburg)
Govt can regulate if speaker:
(1) subjectively intends to produce imminent unlawful action; and
(2) speech is objectively likely in fact to produce imminent unlawful action.
Words that are likely to incite an immediate violent reaction.
Hostile Audience Speech
Speech that elicits an imminent violent response against the speaker by a crowd. Cops first reaction has to be taking all reasonable measures to protect the speaker and control the crowd before they can arrest the speaker.
Obscenity - Miller Test
(1) The average person, applying local contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
(2) The work depicts, or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
(3) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Defamation - Private person, matter of private concern
Unprotected speech. Law only has to require falsity and damage to reputation.
Defamation - Private person, matter of public concern
Minimum requirement of proof of negligence
Defamation - public official or figure
Requires actual malice - knowing the falsity or reckless disregard for the truth or falsity of the statement.
Defamation - Newspapers
1. Private plaintiff suing for false-light invasion of privacy on a matter of public importance requires actual malice.
2. Newspapers cant be held liable for publishing truthful information obtained from public record.
3. Any newsworthy and true information is also protected.
Cant be false, deceptive, or relate to unlawful activity. Govt regulation must satisfy test:
(1) Substantial interest
(2) Directly advance that interest
(3) Not greater than necessary
Examples of Commercial Speech Regulation
(1) state cannot ban advertising of drug prices.
(2) State cannot ban attorneys advertising legal services
(3) State cannot ban all advertising for legal products
(4) State can ban lawyers from soliciting clients in person
(5) State can ban commercial billboards.
Sexual or Indecent Speech
Can be regulated on the basis of secondary effects, regulations must:
(1) Serve a substantial government interest
(2) Leave open reasonable alternative channels of communication
Can say what it wants or doesnt want, depends on whether the person speaking is speaking for the government or for himself.