FIrst Amendment

Question 1

General Rules

Answer 1

1. specific ideas versus conduct incidential to speech
2. Prior restraints
3. Vaguness and overbreadth
4. Symbolic Speech
5. Anonymous Speech
6. SPeech by the Government

Question 2

Specific Ideas versus conduct incidental to speech

Answer 2

Generally: regulation seeking to forbig communicaiton of specific ideas (content regulation) is less likely to be upheld than a regulation of conduct incidental to speech

Question 3

Content-based versus content-neutral

Answer 3

• Content based: generally must meet strict scrutiny (e.g. state may not prohibit the sale or rental of violent video games to minors–violence not an additional area of unprotected speech). Two alternatives to finding a law is content-based
  
  • Subject-matter restriction–> application of the law depend on the topic of the message
  • Viewpoint Restriction–> application of the law depends on the ideology of the speech.
• Content-Neutral Laws burdening Speech: Generally need only meet intermediate scrutiny

Question 4

Prior Restraints

Answer 4

Stopping speech before it occurs

• Comes in two forms:
  
  • Court orders
  • Government licensure

Question 5

COurt orders suppressing speech

Answer 5

• Standard: Must meet strict scrutiny
• those orders that are procedurally proper must be complied with until they are vacated or overturned
  
  • one who violates a court order is barred from challenging it later
• Gag orders on the prss to prevent prejudicial pretrail publicity are not allowed

Question 6

Government License on speech

Answer 6

• Can requires a license only if there is
  
  • an important reason for licensing AND
  • clear criteria leaving almost no discretion to the licensing authority.
• Must also have procedural safeguard such as prompt determination of requests for licenses and judicial review of license denials

Question 7

Vagueness and Overbreadth

Answer 7

• Vagueness: unconstitutionally vague if a reasonable person cannot tell what speehc is prohibited and what is allowed.
• Overbreadth: if it regulates substantially more speech than the constitution allows to be regulated
• Fighting words not protected speech but statutes attemption to punish the use of such words are often found to be void.

Question 8

Symbolic Speech

Answer 8

• Government may regulate conduct that communicates if it has
  
  • an important interested unrelated to the suppression of the message AND
  • if the impact on the communication is no greater than necessary to achieve the government’s goal
• Specific examples:
  
  • Flag burning–allowed
  • Draft card burning–not allowed
  • Nude Dancing–not allowed
  • Burning a cross–not allowed when done to intimidate someone
  • Contribution limits in election campaigns are allowed
  • expenditure limits in campaigns are not
  • government cannot limit amount person spends to get candidate elected as long as expenditures are independent of the candidate and are not disguised contirbutions. Corps unions and other entities may spend as much as they wish.

Question 9

Anonymous Speech

Answer 9

Protected by 5th Amendment

state’s interest in promoting transparency and accountability in elections is sufficient to justify public disclosure of names and addresses of persons who signed ballot petitions

Question 10

Speech by the government

Answer 10

cannot be challenged as violating 1st Amendment

government speech and government funding of speech will be upheld as long as its rationallyr related to legitimate state interest

Question 11

Types of speech receinving less protection or left unrpotected by 1st Amendment

Answer 11

1. Incitement of illegal activity
2. Obscenity and sexually-oriented speehc
3. Commercial Speech
4. Defamation
5. PRivacy
6. Government employees on the job

Question 12

Incitement of illegal activity

Answer 12

• unprotected by the first amendment
• Test: government may punish speech if
  
  • there is a substantial likelihoood of imminent illegal activity AND
  • if speech is directed to causing imminent illegality

Question 13

Obscenity and Sexually-oriented Speech

Answer 13

• Test:
  
  • Prurient Interest: Must appeal to the prurient interest or a shameful or morbid interest in sex
  • Patently offensive: material must be patnetly offensive under the law porhibit obscenity
  • Value: Taken as a whole, Must lack serious redeeming artisitc, literary, policitacl or scientific value as judged by a national standard
• Zoning Obscenity: may use zoning ordinances to regulate number of adult bookstores or movie theaters
• _Child porn: _may be completely banned for obscenity
  
  • children must be used in production of material
• Private possession: not not punish private possession of obsence materials but for child porn.
• Assets of businesses: gov may seize assets of business convicted of violating obscenity laws
• Profane and indecent speech: genearlly protected EXCEPT:
  
  • free over the air broadcase media
  • in schools

Question 14

Commercial Speech

Answer 14

• Falsity in and of itself does not make speech unprotected. WHere it’s unprotected, it’s based on the harm cuased.
• Advertising for illegal activity and false and deceptive ads are not protected
• Even true commercial speech that inherently risks deception can be prohibited
  
  • prevent professions from ad or practicing under trade name
  • prohibit attorny in person soliciations for profit
  • lawyers and debt relief agencies may need to state legal status, nature of service nad possibility of bankrupcy
  • may not prohibit accountants from in0person solicitation of clients for profit
• Other commercial speech may be regulated if meets intermediate scrutiny
• regulation needs to be narrowly tailored but does not need to be least restrictive alternative
  
  • e.g. upheld ny law prohibiting solicitation in dorms despite less restrictive alternative

Question 15

Defamation–public official or running for public office

Answer 15

defamation only if can prove by clear and convincing evidence the falsity of statement and actual malice

reckless disregard or knew the statement’s falsity

Question 16

Defamation–public figure

Answer 16

must prove falsity of the statement and actual malice

Question 17

Private figure/public concern

Answer 17

state ma allow plaintiff to recover damages for defamation by proving falsity and negligence by the defendant and that the speaker was not as careful as a resaonble speaker should have been

for presumed (Statutory) or punitive damages, must show actual malice

Question 18

Private figure/not of public concner

Answer 18

can recover presumed or punitive damages w/out actual malice

Question 19

Liability for interntional inflication of emotional distress

Answer 19

must meet defamation standards and cannot exist for speech otherwise protected by the first amendment

Question 20

Privacy and the First Amendment

Answer 20

• state may not create lability for the truthful reporting of information that was illegally obtained from the governments records
  
  • rape victim identity
• media may not be held liabile for broadcasting a tape of an illegal intercepted and recorded calls so long as the media did not particiapte in the illegality and it involves matter of public concern
• government may restrict its own dissemination of info to protect privacy.
  
  • only have right to attend and access gov papers is crim trials nd proceedings

Question 21

Speech by gov employees on the job in perofrmance of duties

Answer 21

not protected

Question 22

Other gov restrictions based on content of speech

Answer 22

must meet strict scrutiny

Question 23

Places to consider for speech

Answer 23

1. Public forums
2. Designated public forums
3. limited public forums
4. non-public forums
5. prviate property

Question 24

Public Forums

Answer 24

• defined. government properties that the government is constitutionally required to make available for speech
  
  • parks and sidewalks
• Regulations:
  
  • must be subject matter and viewpoint neutral or will have SS applied
  • must be a time place or mneer that serves an important government purpose and leaves adequate alternative spots for communication (sound trucks at night)
  • need not use the least restrictive alternative
  • permit fee requiresments for parades or demonstrations unconstitution if city officials have discretion in setting the amount of the fee
    *

Question 25

Designated public forums

Answer 25

gov props that gov could close off to speech but voluntarily chooses to open to speech

when done, same rule as public forums

Question 26

Limited public focums

Answer 26

government properts that are limited to certain groups or designiated to a certain subject

can regulated as long as regulation is reasonable and viepoint neutral

Question 27

Non-public forums

Answer 27

• Gov props that gov can and does close off to speech. Cna regulate as long as reasonable (rational basis) and viewpoint neutral
• Examples:
  
  • military bases
  • areas outside prisons
  • school (public law school require student group to accept all students b/c viepoint aneutral and reasonably related to school purpose)
  • signes on public property (even if temp)
  • Sidewalks
  • Airports (may restrict solicitation of money but not literature)

Question 28

Private property

Answer 28

no first amendment right to private property

Question 29

Freedom of Association: law that prohibit or punish group memebership

Answer 29

must meet SS

Must prove that the person is:

• actively affiliated with the group
• has knowledge of the groups illegal activities AND
• has the specific intent of furthering those illegal activities or objectives
  *

Question 30

Freedom of association: disclosure of group membership

Answer 30

where such disclosures would chill association, must meet SS

Question 31

Freedom Association: right to discirminate

Answer 31

not protected unless:

intimate association(dinner party)

discrimination is integral to the expressive acitivites of the group (KKK, boy scouts)

Question 32

Free Exercise Clause

Answer 32

cannot be used to challenge a neutral law of general applicability

gov may not deny benefitis to invidiuals who quit jobs for religious resaons

Question 33

Establishment Clause

Answer 33

• _Three Part Tes_t:
  
  • S–must be a secular purpose for the law
  • E-primary effect must be neither to advance nor inhibit religion
  • X–must not be excessive government entaglement with religion
• Government cannot discriminate against religious speech or among religions unless SS is met
• gov sponsored religious activity in public schools is unconst
  
  • religious studnet and community groups must have same school access as non-religious groups
  • school prayers, even if voluntary is not allowed; not even a moment of slient prayer is allowed
• Government may give assistance to parochial schools so long as it is not used for religious instruction. Gov may provide parents vouchers which they use in parochail schools .