Flashcards in First Amendment - Prior Restraints and Speech Deck (9)
What is a prior restraint?
Essentially a gag order. An agency action, government action, or judicial order restricting speech before it is able to occur.
What is the collateral bar rule?
Cannot challenge a court order after the court order has been violated. To challenge a court order, the individual must abide by the order and then continue to abide by it while challenging it.
What is the scrutiny for prior restraints.?
It is unclear. However, it appears to be strict scrutiny.
Is the presumption for or against prior restraints when they are challenged?
Any system of prior restraints of expression will have a heavy presumption of being unconstitutional. The Government thus carries a heavy burden of showing justification for the imposition of such restraint.
What is required for a licensing or permit requirement prior to speech to be valid?
1) The government have a compelling/substantial reason for the licensing requirement; and
2) Only if there is a clear criteria leaving essentially no discretion for the licensing authority; and
3) Substantial procedural safeguards to protect the rights of the individual.
United States v. Treasury Employees
The government did not allow federal employees to get compensation for their published writings while working for the government. The government's goal was to avoid impropriety. What did the court decide?
This law did not prohibit any speech based on its viewpoint or subject matter. However, this was a substantial burden on the individuals rights to speech. Thus, it is unconstitutional because there was no compelling reason for the law.
Is there a right to not speak?
Yes. There is a right to speech and a right to not speech.
Rumsfeld v. Forum for Academic Rights
Law schools refused to allow military recruiters on their campus because of the militaries views on homosexuality. Congress passed a law cutting their funding if they did not allow the recruiters on their campuses. The law schools challenged. What was the outcome?
The court held this was fine. Simply allowing military recruiters on their campus does not mean that the school is speaking in support of the military. If the school is receiving funds, then the government can force them to act.