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Flashcards in First Amendment Freedoms Deck (13):

What tests govern the establishment clause?

Where a government program prefers one religion or religious sect over others, strict scrutiny analysis will be applied.

Where the legislation or government program contains no religious or sect preference, the Supreme Court will follow the following three-part test under Lemon:
1. the statute must have a secular legislative purpose;
2. the principal or primary effect or purpose must neither advance nor inhibit religion; and
3. the statute must not foster an excessive government entanglement with religion.


What is the free exercise clause?

A person's religious beliefs are absolutely protected. A government may not punish an individual by denying benefits or imposing burdens based on religious belief.

Where an individual's conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if the regulation is neutral in respect to religion and is of general applicability.

A state cannot deny unemployment compensation benefits to a person whose religious faith commands the observance of Saturday as the Sabbath.

A state cannot require Amish children to attend high school.

Where the government purposely interferes with particular conduct because it is dictated by religious beliefs, strict scrutiny analysis will be applied.


What is freedom of expression?

The government neither censor all categories of speech nor engage in content-based discrimination among different categories of speech.

1. The regulation of speech is allowable if it passes strict scrutiny (content-based discrimination).

2. Conduct regulation:

A law that regulates conduct but creates an incidental burden on speech is allowable if:
1. the regulation furthers and important or substantial government interest that is unrelated to the suppression of free expression; and
2. the incidental restriction on speech is no greater that is essential to the furtherance of that interest.

3. Government as speaker - Where the speaker is the government rather than a private actor, the government may discriminate based on the content of the speech

4. Unprotected Speech:

A regulation which relates to unprotected speech is permissible.

a. speech that advocates violence or unlawful action - Where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
b. fighting words - Words likely to incite an ordinary citizen to acts of immediate physical retaliation.
c. hostile audience speech - Speech which elicits an immediate violence response against the speaker by an audience may be grounds for prosecution. The police must make reasonable efforts to protect the speaker.
d. obscene speech - To be obscene, 1. the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
e. defamatory speech - Use tort standards for falsity and fault.


What are the certain categories of speech that receive lower levels of protection?

1. Commercial speech:

A state may prohibit commercial advertising of matters that are illegal or advertising that is untruthful, misleading, or deceptive.

Government regulation of the speech must satisfy the three part test where it must:
1. serve a substantial governmental interest;
2. directly advance the substantial governmental interest; and
3. not be more extensive than is necessary to serve that interest.

2. Sexual speech:

Regulation of sexual speech must serve a substantial government interest and leave open reasonable alternative channels of communication.


Are time, place, manner regulations permissible?

Reasonable regulation of the time, place, or manner of speech is allowed.


What is the test for time, place, and manner regulations in public forums?

A three part test is used to determine the constitutionality of time, place, or manner regulations of speech and assembly in public places:
1. be content-neutral as to both subject matter and viewpoint;
2. be narrowly tailored to serve a significant governmental interest; and
3. leave alternative channels of communication open.


What is the test for time, place, or manner regulations in non-public forums?

Speech-related activites at non-public forums, such as military bases, jails, government workplaces, and mailboxes, can be regulated . The test requires the regulation to be:
1. viewpoint neutral; and
2. reasonably related to a legitimate interest.


What is freedom of association?

State action which may curtail the freedom to associate is subject to the closest scrutiny.


How does the first amendment interact with public employment?

In general, an idividual cannot be denied public employment based upon membership in a political organization unless the position is a high-level policy-making position.

An individual may be deprived of public employment for political association if:
1. he is an active member of a subversive organization;
2. such membership is with knowledge of the illegal aims of the organization; and
3. he has a specific intent to further those illegal ends.


What is prior restraint?

As a general rule, the government cannot suppress or restrain speech in advance of its publication or utterance.

Exceptional cases in which prior restraints are allowed:
A government agency can require prepublication review of writings related to employment of past or present employees where such a review is necessary to protect national security.
Classified military information.
Any case involving a search and seizure is governed by the Fourth Amendment.

There are three factors in determining if a restraining order against pretrial publicity is appropriate:
1. the nature and extent of the pretrial publicity;
2. the availability of other measures to mitigate the effects of pretrial publicity; and
3. the likely effectiveness of the restraining order.

Statutes requiring films to be submitted to a board of censors before showing them are constitutional if the following requirements are met:
1. the standards for the denial of a license are narrowly drawn and reasonable;
2. when a license is denied, the censor promptly seeks an injunction;
3. the burden of proving that the material is obscene, or otherwise unprotected, is on the censor; and
4. a prompt judicial determination is provided.

A license or permit for a parade, demonstration, or rally is valid provided that it:
1. is content neutral as applied; and
2. does not give licensing officials unfettered discretion to determine who may receive a permit.

Where such a statute is facially void, a speaker need not even apply. Where such a statute is facially valid, the applicant must seek a permit and if they are denied, appeal.

As a general rule, if one is enjoined from speaking, he must either obey the injunction or appeal it, unless the licensing statute is facially void or the timing is such that an appeal would effectively frustrate the exercise.


What is overbreadth?

A regulation must not regulate by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.


What is vagueness?

Regulations must be drawn with narrow specificity.


What are the rights of the press?

The press has no greater freedom to speak than any ordinary member of the general public does.

In general, radio and television broadcasting can be more closely regulated than print media or a private individual because of the licensing and regulations of that industry.

Where cable television operators are subjected to content-neutral regulations, intermediate scrutiny is applied.

Where content-specific regulation is imposed, there is no selected review.