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.
Conduct Regulation creating an incidental burden on speech
(1) Regulation must further important interest
(2) no greater burden than necessary
Time, manner, place restrictions on public forums
(1) Be CONTENT NEUTRAL as to both subject matter and viewpoint.
(2) Be NARROWLY TAILORED to serve an important government interest
(3) Leave open ALTERNATIVE CHANNELS of communication
Large Gatherings - Permits
Permits can be required as long as permitting statute gives specific content neutral grounds for granting or denying a permit
Large gathering regulations
(1) Can't require parades or marches to pay for police protection.
(2) Can restrict volume and hours of amplifiers.
(3) Can't complete ban door-to-door solicitation.
(4) Can require door-to-door solicitors to identify themselves to cops
(5) Cant require religous or political canvassers to register with the govt and get a permit
Peaceful Protest on sidewalk in front of a private home
Can be restricted as long as the protester can protest reasonably nearby and restriction is content neutral.
Regulation of speech-related activities in non-public forums
(1) Viewpoint neutral
(2) Reasonably related to a legitimate govt interest
(1) Can prohibit demonstrations on jail grounds
(2) Can prohibit all political speech on military bases
(3) Can regulate speech in government workplaces
(4) May sell space for commercial advertising but not political on bus
(5) Public school can't deny organizations access if it lets other groups have access.
(6) Public tv station can exclude candidate from debate based on content neutral criteria of how much public support he has.
Govt can deny you a job based on your political beliefs only in high-level policy making jobs.
How you can be fired from public employment for political association
(1) Active member of a subversive organization plotting to overthrow the govt;
(2) With knowledge of org's illegal goals; and
(3) With intent to further those illegal goals
Requirements for public employment
(1) govt can require public employees to take oath to support constitution or oppose illegal overthrow of the govt
(2) Public school teachers dont have to list all memberships in orgs
(3) Can't require public employees to swear not to aid, advise, or influence the communist party
(4) Can't require employees to swear to inspire reverence for the flag
(5) Kids don't have to recite pledge
(6) lawyer CAN be required to swear to support and defend the constitution even though they're not public employees
Public Employees may be disciplined or fired for speec if:
(1) its not on a matter of public concern
(2) even if it is, you can be fired if its' potentially disruptive of the workplace
School kids disciplined for speech
If its potentially disruptive
Prisoner's speech rights may be restricted if the regulation is
Rationally related to a legitimate penological objective
When govt blocks speech before it is uttered. Strong presumption against them.
Cases where prior restraint allowed
1. Military classification
2. Pre-publication review of employee writings. e.g. memoirs
3 Factors determining if a pre-trial gag order is appropriate
(1) The nature of pretrial publicity
(2) Availability of other measures to mitigate the pretrial publicity
(3) The likely effectiveness of the gag order
Alternative means to a pretrial gag order
1. Voir dire
2. Change of venue
Censorship and Licensing Boards
(1) Narrow and reasonable standards
(2) Immediate injunction if censor decides its obscene
(3) Burden on censor in judicial proceeding
(4) Prompt ruling issued by court
Ignoring a permitting requirement
(1) If valid on its face but applied unconstitutionally, still have to obey.
(2) If facially void you can ignore it.
Regulations of speech must be narrow and specific. Can't be overbroad to the point that it prohibits protected speech.
Govt regulation must be narrow and specific to not be vague. Can't use the words contemptuously or subversives, too vague.
Cable TV content-neutral regulations
Bar Admission Requirements
(1) Its ok if you're in the communist party.
(2) You have to answer questions.
(3) They can make you take an oath.