First Amendment (Speech and Religion) Flashcards
(23 cards)
First Amendment Free Speech Methodology
- Content-Based vs Content Neutral Restrictions
(a) Content-based restrictions subject to strict scrutiny
(i) Subject Matter Restrictions
(ii) Viewpoint Restrictions
(b) Content-Neutral Restrictions –> intermediate scrutiny - Prior restraints
(a) court orders
(b) licensing and permits - Vagueness and Overbreadth
(a) vague laws unconstitutional if a reasonable person can’t tell what is allowed
or if law regulates substantially more speech than the constitution - Symbolic Speech
(a) Govt can regulate conduct if it (i) has important interest unrelated to suppressing message and (ii) impact on communication no greater than necessary to achieve purpose - Compelled speech violates First Amendment
- Anonymous speech is protected
- Government speech cannot be challenged as violating the speech clause of the First Amendment (e.g., public school board puts out curricular guide, Texcas refused to put conferederate flag on license plates)
Content-based vs Content Neutral
Content-based restrictions –> strict scrutiny
- Subject Matter Restrictions
- Viewpoint Restrictions
Content-Neutral Restrictions –> intermediate scrutiny
Prior restraints
(a) court orders
–> Typically a restraining order or injunction preventing speech
–> subject to strict scrutiny
But must be complied with if procedurally proper
–> person who violates procedurally proper court order is barred from challenging it
(b) licensing and permits
–> can be required if (1) important reason for licensing, (2) clear criteria + little discretion to deny, and (3) procedural safeguards in place
Vagueness and Overbreadth
(a) vague laws unconstitutional if a reasonable person can’t tell what is allowed
(b) overbreadth: unconstitutional if law regulates substantially more speech than the constitution
(c) “Fighting words” - words directed at another likely to evoke a violent response
- Fighting words are not protected by the constitution BUT the Supreme Court has always ruled “fighting word” statutes as unconstitutionally overbroad
*Barbri note - MBE answer will always be “the fighting words law is unconstitutional bc it is vague and overbroad”
Symbolic Speech
- Symbolic Speech
(a) Govt can regulate conduct if it (i) has important interest unrelated to suppressing message and (ii) impact on communication no greater than necessary to achieve purpose
IMportant examples:
- Flag bringing is constitutionally protected speech
- Draft card burning is not protected speech
- Nude dancing is not protected speech (local govts can prohibit)
- Burning a cross is protected speech unless done to threaten
- election campaign contribution limits are constitutional, but expenditure limits are unconstitutional
Unprotected Free Speech
- Incitement of Illegal Activity
- Obscenity and sexually-oriented speech
- Commercial speech (false/deceptive ads and ads for illegal activities)
- Defamation and IIED (public officials, public figures, private figures, IIED)
- Privacy
- Speech of government employees
- Other government regulations of speech based on content must meet strict scrutiny
Incitement of Illegal activity and True Threats
INcitement of Illegal Activity Test: Under the current version of the “clear and present danger” test, a state cannot forbid advocating the use of force or violation of law unless such advocacy is (1) speech is directed to causing imminent illegal activity AND (2) is substantially likely to produce said illegal activity
“True Threats”: The Constitution does not protect true threats, defined as speech meant to communicate an intent to place a person in fear of bodily harm. While the First Amendment requires proof that the defendant had some subjective understanding that their threats were of a threatening nature, a mental state of recklessness is sufficient, meaning that the speaker is aware that others could regard the statements as threatening violence and delivers them anyway.
Obscenity and sexually oriented speech
Test for obscenity: Material must (1) appeal to the prurient interest (community/local standard), (2) be “patently offensive” (defined by state/local law), and (3) offer no serious artistic, literary, political or scientific value (national standard)
Govt can use zoning ordinances for adult entertainment establishments if it has important interest. (*Frequently tested)
Can ban all child pornography even if obscenity test isn’t met. But must actually include child in production to be child pornography. (Because govt interest is protecting children).
Can’t punish possession of obscene materials (except child pornography).
Can seize assets of business convicted of violations.
Profane and indecent speech is usually protected (except free, over-the-air broadcast media and in schools).
Obscenity in schools: ability to regulate out-of-school is more limited. Must be disruptive to school activities.
Commercial Speech
(A) False and deceptive advertisements, or ads for illegal activities, are not protected by First Amendment.
(B) True commercial speech that inherently risks deception can be prohibited:
- govt can prevent professionals from advertising or practicing under trade name
- govt can prohibit attorney IN-PERSON solicitation of clients FOR PROFIT (ambulance chaser approaches victim). However, lawyers can solicit if they are doing the work pro bono. They can also send letters soliciting clients for profit.
- govt cannot prohibit accountants from in-person solicitation of clients for profit.
(C) Other commercial advertising can be restricted if it passes intermediate scrutiny.
(D) Govt regulation does not have to be the least restrictive option but must be narrowly tailored
Free Speech and Defamation/IIED
For a government plaintiff to prevail on a defamation claim, must show (1) by clear and convincing evidence, (2) that the statement is false and (3) actual malice (speaker knew statement was false or acted with reckless disregard as to the truth).
Public figures follow the same defamation test. Basically, public figures are those “who thrust themselves in the limelight” and have access to media to respond to attacks (i.e., celebs).
Defamation of PRivate Figure on Matter of public Concern: Compensatory damages if P proves (1) falsity of statement and (2) negligence. But punitive damages only available if there is actual malice.
Defamation of private figure on a matter not of public concern: punitive damages don’t require showing of actual malice.
IIED for Defamation: Liability requires meeting of defamation standards and cannot exist for speech otherwise protected by the First Amendment.
Free Speech and Privacy
(a) Govt can’t create liability for truthful reporting of info lawfully obtained from govt
(b) No media liability if media broadcasts a tape of an illegally intercepted call if media (1) didn’t participate in the illegality and (2) it involves a matter of public importance
(c) Govt may limit its dissemination of info to protect privacy
Free Speech and Govt Employees
No First Amendment protection of speech of govt employees on the job acting within scope of their duties
Places Available For Speech
- Public Forums
- Designated Public Forums
- Limited public forums
- Non-public forums
- Private Property
Public Forums
A public forum is public property that historically has been open to speech-related activity. Examples include sidewalks and public parks. Government properties the government is constitutionally required to make available for speech.
Regulation must be subject matter and viewpoint neutral. If not, strict scrutiny applies.
If regulation is content (subject and viewpoint) neutral, then intermediate scrutiny applies–> Regulation must (1) be a time, place, or manner regulation (2) narrowly tailored to an important government purpose and (3) leaves adequate alternative places for communication.
Permit fees for parades and demonstrations are unconstitutional if within govt discretion. Bc discretion could lead to content-based restrictions.
Archetypes: sidewalks and parks
Designated Public Forums
A designated public forum is public property that usually is not used for speech-related activity, but that the government has opened for such activity at particular times (e.g., a public school gym that can be reserved by the public for use when not being used by the school). Government properties that are closed to speech but the government chooses to open speech.
Regulation must be content (subject matter and viewpoint) neutral, narrowly tailored to serve an important government interest, and leave open alternative methods of communication. If not, strict scrutiny applies.
If regulation is subject and viewpoint neutral, then intermediate scrutiny applies–> Regulation must (1) be a time, place, or manner regulation (2) that serves an important government purpose and (3) leaves adequate alternative places for communication.
Limited Public Forums
A limited public forum is public property that usually is not used for speech-related activity, but that the government has opened up for such activity for a particular purpose (e.g., a school gym that has been opened up to host a political debate). Limited Public Forums are government forums opened to only certain groups and topics.
The government can regulate speech in limited public forums so long as regulation is (1) reasonable and (2) viewpoint-neutral.
Non-Public Forums
Government properties that the government can and does close to speech.
Government can regulate speech in non-public forums as long as the regulation is (1) reasonable and (2) viewpoint-neutral.
Archetype: Military bases (even if open to public); areas outside prisons and jails, airports, *sidewalks on post office property (frequently tested); curriculum-based public school activities (e.g., school newspaper)
Private Property and Free Speech
No right to use privately owned property for speech purposes
Archetype: A private shopping mall
Freedom of Association
Freedom of association is a fundamental right under the FIrst Amendment.
Laws prohibiting or punishing group membership must meet strict scrutiny to be constitutional.
To punish group membership, Govt must show (1) D actively affiliated with group; (2) knew of its legal activities; and (3) had specific intent to further the illegal activities
Law requiring disclosure of membership that would chill association, law must meet strict scrutiny.
Law prohibiting a group from discriminating are constitutional unless they interfere with intimate association (i.e., a dinner party) or expressive activity (Nazi party can exclude Jews).
Time, Place, and Manner Restrictions on Speech
If a law limiting speech in a public forum or designated forum, then intermediate scrutiny applies.
Although a municipality can place reasonable time, place, and manner restrictions on certain aspects of speech, it may not adopt a regulation that gives officials broad discretion over speech issues. If a statute gives licensing officials unbridled discretion, it is void on its face, and speakers need not even apply for a permit.
Free Exercise Clause
The First Amendment’s Free Exercise Clause prohibits government from punishing conduct just because it is religious. If the intent of the law is to interfere with religion, or if the law punishes conduct solely because it is religious, the law must pass strict scrutiny (and is probably invalid). For example, a law may not prohibit ritual slaughter of chickens while otherwise allowing the slaughter of chickens.
The Free Exercise Clause does NOT prohibit every government regulation that interferes with religious practices and that can’t pass the strict scrutiny test or intermediate scrutiny test.
If a law/government action is religiously neutral and generally applicable, and incidentally burdens religious practices, it will be upheld under the Free Exercise Clause unless it can be shown that the law or action was motivated by a desire to interfere with religion (in which case, it will be upheld only if it passes strict scrutiny).
Free Exercise Clause and Sincerity
A court MAY assess the sincerity of a person’s religious beliefs when relevant to a particular case. Although the Free Exercise Clause protects the freedom of belief, perhaps absolutely, a court may assess whether a person who says he acted based upon religious beliefs actually held the beliefs claimed.
For example, if a person says that he performed an act because “God told him to,” a court may assess whether the person really believes that “God told him to” so act.
A court may NOT assess: (a) whether the religious beliefs are true (is there a god?); whether the religion is “established” or “traditional”; whether the religion is “theistic.”
Free Establishment Clause
If government action does NOT include a sect preference: In determining whether government action is valid under the Establishment Clause, courts will consider (1) NEUTRALITY: whether the action is neutral with regard to religion. If neutral, likely no FEC violation.
(2) HISTORY? Next, courts will consider whether the government action accords with history and faithfully reflects the understanding of the Founding Fathers. If so, the action is unlikely to violate the Establishment Clause.
If government action DOES include a sect preference: A law or government program must be necessary to serve a compelling government interest if it includes a preference for some religious groups over others.
