First Amendment Freedoms Flashcards
(113 cards)
1
Q
Whenever the government seeks to regulate the freedoms of speech or assembly, the Court will weigh
A
speech and assembly rights
vs.
interests/policies served by regulation
2
Q
content based - scrutiny level
A
strict scrutiny
3
Q
types of content-based laws
A
subject matter restrictions
viewpoint restrictions
4
Q
content-neutral - level of scrutiny
A
intermediate scrutiny
5
Q
prior restraints define
A
judicial order or an administrative system that stops speech before it occurs - rarely allowed
6
Q
void of vagueness doctrine
A
unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
7
Q
overbroad regulation principle
A
unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated
8
Q
effect of overbroad regulation
A
may not be enforced against anyone—not even a person engaging in activity that is not constitutionally protected
9
Q
when will regulation be found overly broad?
A
SCOTUS says unconstitutional applications must be realistic, not fanciful, and substantially disproportionate to the statute’s lawful sweep.
10
Q
fighting words laws are always
A
unconstitutionally vague and overbroad.
11
Q
if a regulation gives officials broad discretion over speech issues
A
void!
must be defined standards
12
Q
when can symbolic speech be regulated?
A
important interest independent of the speech aspects of the conduct
and impact on communication no greater than necessary to achieve purpose.
13
Q
flag burning regulations?
A
cannot be banned in all circumstances -interest of respect for the flag insufficient
14
Q
draft card burning regulations?
A
Upheld - need for cards in facilitating draft is sufficient
15
Q
nude dancing regulations?
A
local governments may prohibit public nudity to control secondary effects (like prostitution, rise in crime)
16
Q
cross burning regulation?
A
all cross-burning cannot be banned
BUT cross-burning done to convey an immediate threat not protected.
17
Q
regulations on contribution limits?
A
Constitutional
18
Q
regulations on expenditure limits?
A
Unconstitutional
19
Q
law regulating trespass for First Amendment activity?
A
individuals/press have no right to trespass - regulations can be applied to gov. owned property
20
Q
regulations compelling speech? (salute flag, display motto on license plate)
A
Unconstitutional. The freedom to speak includes the freedom not to speak.
21
Q
regulations of mandatory financial support?
A
may tax people and use revenue from the tax to express a message with which they disagree
BUT cannot be compelled to subsidize private messages (ex. non-union member compelled to pay union dues)
BUT CAN require public university students to pay student activity fee
22
Q
public accommodation regulation?
A
States cannot use public accommodations statutes to deny speakers the right to choose the content of their own messages
23
Q
Anonymous speech protected.
A
Yes
24
Q
does government speech implicate 1st Amendment?
A
NO. government speech/government funding of speech will be upheld if it is rationally related to a legitimate state interest.
25
determining whether speech that occurs on government property is government speech?
The history of the expression at issue
The public’s likely perception as to who (government or private person) is speaking
The extent to which the government has shaped the message
26
spending programs that impose conditions that limit 1st Amendment activities of fund recipients outside of the scope of the spending program itself
Unconstitutional.
ex. cannot require recipients of federal funds to combat HIV/AIDS to state in their funding documents that they oppose prostitution.
27
how can government fund private speech
must do so on a viewpoint-neutral basis
EXCEPTION - Art funding. Choosing who receives funding involves content of the art, this is NOT unconstitutional.
28
is trademark protection government speech?
No - it is private speech.
29
scrutiny level of trademark protection
strict scrutiny
30
scrutiny level for prior restraints
strict scrutiny
31
prior restraints - what must gov show?
must show that some special societal harm would result absent the restraint.
32
procedural safeguards for licensing systems
1. standards must be narrowly drawn, reasonable, definite
2. must be possible for an injunction to be promptly sought
3. must be prompt and final determination of the validity of the restraint.
33
movie censorship - who bears burden of showing if speech is protected/unprotected?
government bear the burden of proving that the speech involved is unprotected.
34
inciting imminent lawless action - protected?
may punish speech if there is a substantial likelihood of imminent illegal activity and the speech is directed at causing imminent illegality.
35
what qualifies as a true fighting word?
personally abusive words that are likely to incite immediate physical retaliation in an average person
36
what qualifies as a true threat?
speaker must have had some subjective understanding that their threats were of a threatening nature, but a mental state of recklessness is sufficient
37
is obscene speech protected?
No
38
elements of obscene speech
1. Appeals to the prurient interest in sex (community standard)
2. Is patently offensive (contemporary community standards)
AND
3. Lacks serious literary, artistic, political, or scientific value (national reasonable person standard)
39
land use/zoning regulation limiting adult entertainment establishments
CANNOT ban altogether
CAN limit the location/size if regulation is designed to reduce the secondary effects (ex. increased crime rates or decreased property values).
40
child porn protected?
no. Gov may prohibit the sale or distribution of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children
41
simulated pictures of minors protected?
Yes. may not bar visual material that only appears to depict minors engaged in sexually explicit conduct, but which actually uses young-looking adults or computer-generated images.
42
adopting minor specific definition of obscenity applying to materials sold?
can adopt a specific definition of obscenity applying to materials sold to minor
CANNOT prohibit the sale or distribution of material to adults merely because it is inappropriate for children.
43
can private possession of obscene material be punished?
In the HOME ONLY - cannot be punished (unless child porn)
44
seizure of single book/film
made w/ warrant on probable cause OR
if available for sale to public - police may purchase to use as evidence without warrant
45
large scale seizures of books/films
must be preceded by a full-scale adversary hearing and a judicial determination of obscenity.
46
profane and indecent speech protected?
generally protected
BUT exceptions for regulation of broadcast media and in schools.
47
movie delays incident to censorship allowed?
government can establish censorship boards to screen movies before they are released, as long as the procedural safeguards are followed.
48
is commercial speech protected?
generally yes
49
commercial speech that proposes unlawful activity or is misleading/fraudulent?
can prohibit
50
can government prohibit professionals from advertising or practicing under a trade name?
may prohibit
51
can government prohibit attorney, in-person solicitation of clients for profit?c
may prohibit
52
can government t prohibit accountants from soliciting clients in-person?
No, may NOT prohibit
53
scrutiny level of other commercial speech regulations
intermediate scrutiny
54
can government require commercial disclosures?
may require commercial advertisers to make disclosures if the disclosures are not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.
55
if defamatory statement is about public officials, figures, or public concern
P must prove elements of defamation PLUS falsity and some degree of fault.
If public official/figure, fault is actual malice (made with knowledge of falsity or reckless disregard to falsity)
56
regulations relating to liquor that affect free speech rights?
generally will not be set aside unless they are irrational.
57
can government punish truthful reporting of information that was lawfully obtained from the government?
No
58
May government punish the media for broadcasting a tape of an illegally intercepted call?
No - if the media broadcasts a tape of an illegally intercepted call
59
Speech by government employees on the job in the performance of their duties - protected?
Not protected by 1st Amendment
60
restrictions based on content must meet what level of scrutiny?
strict scrutiny
61
public forums are
Public property that has historically been open to speech-related activities (for example, streets, sidewalks, and public parks)
62
a government regulation on speech and assembly in public forums must be:
1. content neutral (sjm and viewpoint)
2. serves important gov. purpose
3. alternative channels of communication
4. narrowly tailored
63
injunctions in public forums?
content-based - necessary to achieve a compelling interest.
content-neutral - burden no more speech than is necessary to achieve an important government interest.
64
designated public forums are
Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis
65
a government regulation on speech and assembly in designated public forums must be:
*same as public forum!
1. content neutral (sjm and viewpoint)
2. serves important gov. purpose
3. alternative channels of communication
4. narrowly tailored
66
limited public forums are
government property not historically linked with speech and assembly but that are opened for SPECIFIC speech activity
67
limited public forum regulations are valid if they are:
1. viewpoint neutral and
2. reasonably related to legit gov purpose
68
nonpublic forums are
government properties not historically linked with speech and assembly and not held open for speech activities
69
regulations in nonpublic forums must be:
* same as limited public forums!
1. viewpoint neutral and
2. reasonably related to legit gov purpose
70
does press have a right to publish truthful info regarding a matter of public concern?
Yes. Can be restricted only be narrowly tailored sanction to further interest of the highest order
71
right to access trials
1st Amendment right to public/press to attend trials/pretrial proceedings
MAY be outweighed by interest stated in judge's findings
72
requiring members of the press to testify before grand juries?
may be required
73
press right to interview prisoners?
The First Amendment does NOT give journalists a right to interview specified prisoners of their choice or to inspect prison grounds.
74
broadcasting regulations - what is the paramount right?
the right of viewers and listeners to receive information of public concern rather than the right of broadcasters to broadcast what they please.
75
can newspapers be forbidden from owning radio stations?
yes, paramount right of viewers and listeners to receive information of public concern allows this
76
can government prohibit indecent speech over airways?
yes, paramount right of viewers and listeners to receive information of public concern allows this
77
fairness doctrine
The First Amendment does not require broadcasters to accept political advertisements. However, a radio station may constitutionally be required to offer free broadcasting time to certain individuals
(for example, opponents of political candidates or views endorsed by the station, or persons who have been personally attacked in a broadcast).
78
cable television regulation standard of review
strict if content based
intermediate if content neutral
79
internet regulation standard of scrutiny
strict scrutiny
80
where is freedom of association found in the Constitution?
clearly implied from the rights that are explicitly noted
81
Laws that prohibit or punish group membership must meet what level of scrutiny?
strict scrutiny
82
To punish membership in a group it must be proven that the person:
1. Actively affiliated with the group
2. Knowing of its illegal activities
3. With the specific intent to further those illegal activities
83
Laws that require disclosure of group membership must meet what level of scrutiny
strict scrutiny if that disclosure would chill the right to association.
84
Laws that prohibit a group from discriminating - constitutional?
constitutional unless they interfere with intimate association or expressive activity.
85
Laws regulating elections - determining validity
If restriction on First Amendment activity is severe - strict scrutiny applies
If the restriction is reasonable and nondiscriminatory - generally will be upheld.
86
A statute limiting election campaign contributions is subject to what level of scrutiny?
intermediate scrutiny
87
can a law limit the amount of money that a person, group, or corporation can contribute to a political candidate?
Yes
88
can law limit the amount of money that may be spent to support or oppose a ballot referendum?
No
89
can law limit the aggregate amount one person or entity contributes to political candidates or committees during an election?
No. Unlike individual contribution limits, they do not further the government’s interest in preventing quid pro quo corruption (or the appearance of such), and they seriously restrict participation in the democratic process.
90
Can law limit the amount that a candidate spends on a political campaign?
No
91
Can laws limit the amount that a person spends to get a candidate elected?
No - if the expenditures are independent of the candidate and not disguised contributions
92
Regulation of “core political speech” must meet what level of scrutiny?
strict scrutiny
An ad concerning a political issue will be considered protected core political speech unless the only reasonable interpretation is that it is an appeal to vote for or against a particular candidate.
HOWEVER, state may ban personal solicitation of campaign funds by judicial candidates
93
official duty exception
government employer may punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties, even if the speech touches on a matter of public concern.
94
public employee speech test IF speech is NOT made pursuant to official duties and does NOT involve matter of public concern
government employer a wide degree of deference and allow the employer to punish the employee if the speech was disruptive of the work environment.
95
public employee speech test IF speech is NOT made pursuant to official duties and DOES involve matter of public concern
balance the employee’s right as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service.
96
may federal gov prohibit federal exec branch employees from taking an active part in politcal campaigns?
yes
97
provision banning government employees from accepting an honorarium for making speeches, writing articles, or making appearances?
held to violate the First Amendment when applied to “rank and file” employees.
justified only if the government can show that the impact the speech would have on government operations outweighs the employees’ and their potential audiences’ rights.
98
can a public employee be hired, fired, promoted, transferred, or the like, based on party affiliation or political views
No - except as to policymaking positions, where party affiliation and views are relevant.
99
can gov require employees to take loyalty oaths?
Yes, as long as the oaths are not:
overbroad (cannot prohibit membership in communist party or require absentation from advocating overthrow of gov in the abstract)
or vague (requiring employees to support the Constitution and to oppose the unlawful overthrow of the government is valid. requiring to salute the flag is invalid on religious grounds)
100
can gov force disclosure of every organizational membership in exchange for a government employment or other benefit?
No. it may inquire only into those activities that are relevant to the employment or benefit sought
A person can exercise his Fifth Amendment right to remain silent if the disclosure would be incriminating.
101
public school sponsorship of extracurricular clubs - what test applies?
Limited public forum test.
sponsorship of associations can be subject to regulation that is viewpoint neutral and reasonably related to a legitimate government interest.
102
the free excercise clause prohibits
government from punishing someone on the basis of their religious beliefs
103
what constitutes religious belief?
beliefs that play a role in the life of believers similar to the role that religion plays in the life of traditional adherents.
Court has never held an asserted religious belief to be not religious for First Amendment purposes.
104
When deciding whether a person holds a religious belief or even just whether the belief qualifies as religious, courts can question
sincerity, but NOT truthfullness
105
Can Free Excercise Clause be used to challenge a neutral law of general applicability?
No. Free Exercise Clause cannot be used to challenge government action unless the action was specifically designed to interfere with religion.
106
A law or other government conduct that discriminates on the basis of religion is subject to what level of scrutiny
strict scrutiny
107
a law is discriminatory if it is either:
Not neutral on its face (motivated by or expressly)
OR facially neutral but not generally applicable (by design targets religion)
108
laws with system for discretionary exemptions
if the program allows for some exceptions, then requests for exceptions related to religion must be considered as valid as other requests. If the government denied such a request, it would need to show the denial is necessary for a compelling purpose.
109
Can ministers and teachers cannot sue religious organizations for employment discrimination?
No - Imposing an unwanted minister would violate the Free Exercise Clause, and allowing the government to determine who will minister within a faith also would violate the Establishment Clause.
110
may gov limit eligibility for a generally available governmental benefit to nonreligious organizations?
No.
may not exclude an otherwise qualified individual or institution from receiving the benefit based solely on the basis of their religious status unless the state can meet strict scrutiny
111
establishment clause
government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) their religion.
112
Government-sponsored (or school-organized) religious activity in public schools - constitutional?
Unconstitutional
113
