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Flashcards in Con Law 4 - First Amendment Deck (53)
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School Prayer

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

Is ok


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.
3. Lunch.
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.


Fighting Words

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.


Commercial Speech

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


Government Speech

Can say what it wants or doesnt want, depends on whether the person speaking is speaking for the government or for himself.


Conduct Regulation creating an incidental burden on speech

(1) Regulation must further important interest
(2) no greater burden than necessary