Regulating Religion & Speech

Question 1

What scrutiny is applied to a government program preferring one religion, or one religious sect, over another?

Answer 1

Strict Scrutiny Analysis.

Question 2

What triggers the non-establishment clause?

Answer 2

Government action that results in the preference of one religion or religion generally.

Question 3

What test is applied to legislation or a government program is neutral on its face, but benefits religion?

Answer 3

• *Lemon test:** is the government favoring religion or treating like other organizations?
  1. Statute must have a secular purpose+

2. The primary effect must neither advance nor inhibit religion+
3. There cannot be excessive government entanglement with religion.

Question 4

What is the constitutionality of school prayer?

Answer 4

Per se uncontitutional.

Question 5

What is the constitutionality of a period of silence for school prayer?

Answer 5

Unconstitutional because there is a religious motive.

Question 6

What is the constitutionality of having the Ten Commandments in a classroom?

Answer 6

Unconstitutional.

Question 7

What is the constitutionality of clergy giving prayers at a public school graduation?

Answer 7

Unconstitutional.

Question 8

What is the constitutionality of student led prayer at a public high school football game?

Answer 8

Unconstitutional.

Question 9

What is the constitutionality of a religious club holding its meetings in a public school?

Answer 9

Constitutional if there are a broad range of organizations using the facilities.

Question 10

Can a public school require creationism be taught alongside evolution?

Answer 10

No, the government cannot teach creationism as truth.

Question 11

Can a city celebrate christmas?

Answer 11

Yes, if the religious symbols are surrounded with other symbols.

Question 12

What is the constitutionality of placing the Ten Commandments on the walls of courthouses?

Answer 12

Unconstitutional, unless they are surrounded by other monuments.

Question 13

Can a city grant a license permitting a private group to put up a cross in a city park near a statehouse?

Answer 13

Yes, as long as the park is similarly open to others.

Question 14

What is the constitutionality of government delegation of authority to religious organizations?

Answer 14

Unconstitutional.

Question 15

What government aid can be given to religious private schools?

Answer 15

The government can aid if treating like school like non-religious school. They can fund:

1. Bus fair
2. Secular textbooks
3. Standardized tests
4. Lunch
5. Library and media materials and computers; and,
6. Interpreters for deaf students.

Question 16

What government aid can NOT be given to religious private schools?

Answer 16

Direct funding of religious instruction:

1. No money for religious instruction
2. No money for secular teachers at religious schools (excessive entanglement).

Question 17

What is the constitutionality of tax deduction given to all parents based on actual expenditures for children attending any public, private, or religious school?

Answer 17

Constitutional.

Question 18

What is the constitutionality of a voucher program that allows parents to send their children to parochial or religious schools with state aid instead of to failed public school?

Answer 18

Constitutional

Question 19

Where an individual’s conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity under what circumstances?

Answer 19

The regulation is neutral in respect to religion and is of general applicability.

Question 20

What does the free exercise clause protect?

Answer 20

Belief in religion.

Question 21

Courts can decide what in respect to religious beliefs?

Answer 21

The sincerity of the beliefs held.

Question 22

If a government has a general law that burdens religious activity are they violating the establishment clause?

Answer 22

No if the government does not mean to discriminate against religion.

Question 23

Which party will win in a suit over a religious regulation?

Answer 23

1. If regulating a belief, citizen wins.
2. If regulating conduct, and does not single out religion, the government wins.

Question 24

What is the principal behind the freedom of expression?

Answer 24

Prohibiting the government from distorting the marketplace of ideas.

Question 25

What **test** is applied for freedom of **expression regulations**?

Answer 25

Strict scrutiny if it engages in content-based discrimination.

Question 26

List the **five exceptions** to **content-based discrimination**.

Answer 26

The government can prohibit speech if: 1. It passes strict scrutiny (child pornography); 2. Unprotected or low value speech 3. Government is the speaker 4. The regulation is a conduct regulation; or, 5. Using a time place and manner regulation.

Question 27

**Unprotected** and **low-value speech regulations** recieve what type of **scrutiny**?

Answer 27

Rational Basis Review.

Question 28

List the **types** of **unprotected speech**.

Answer 28

1. Hostile audience 2. Unlawful advocacy 3. Obscene Speech 4. Fighting Words 5. Defamatory Speach

Question 29

**Unlawful advocacy** occurs when?

Answer 29

1. The speaker intends to bring about imminent unlawful action, and; 2. Will actually bring about the action.

Question 30

What qualifies for **fighting words** as a form of unprotected speech?

Answer 30

Fighting words are likely to provoke an immediate violent reaction (e.g. direct personal insult). Statutes banning on fighting words cannot be: (1) vague or overboard; and, (2) cannot punish specific viewpoints.

Question 31

Define **hostile audience speech**.

Answer 31

It occurs when words will incite a crowd reaction to harm the speaker.

Question 32

What are the **elements** required for **unprotected obscene speech**?

Answer 32

1. The work appeals to sexual interests + 2. The work depicts or describes in a patently offensive type of sexual conduct specifically banned by state statute + 3. The work taken as a whole lacks serious artistic, literary, political, or scientific value.

Question 33

When can **defamatory speech** **not** completely be **regulated** by a state?

Answer 33

When the plaintiff is either a 1. public official or public figure, or, 2. where the defamatory statement involves a matter of public concern.

Question 34

When the plaintiff is a **private person** and the subject of the **defamatory statement** is a matter of purely **private concern**, can the statement be banned? What is the **liability** of the speaker?

Answer 34

Yes, it is Constitutional to bar this type of defamatory speech. The defamatory speaker is strictly liable for any resutling damage.

Question 35

When the plaintiff is a **private person** and the subject of the **defamatory** statement is a matter of **public concern**, can the statement be banned? What is the **liability** for the speaker?

Answer 35

No, the speech cannot be banned because the matter is of a public concern. The speaker is liable if their speech was negligent.

Question 36

When the plaintiff is a **public official** or public figure, the plaintiff must prove the state law requirements of defamation and what **additional element**?

Answer 36

Must show actual **malice**. Must show knowledge of the falsity or reckless disregard of the truth or falsity of the statement

Question 37

In **fales-light invasion** of privacy, where a **private plaintiff** is suing a media defendant pursing a matter of **public interest**, what must the plaintiff show to prevail?

Answer 37

Must show actual malice. Must show knowledge of the falsity or reckless disregard of the truth or falsity of the statement

Question 38

When is **commercial speech** is **unprotected**?

Answer 38

1. it is false; or, 2. it is unlawful

Question 39

If **commercial speech** is not false nor unlawful, what is the **test** for government regulation of the speech?

Answer 39

(1) The speech serves a substantial governmental interest + (2) The speech directly advances that interest + (3) The regulation is not more extensive than necessary to serve that interest.

Question 40

List three **examples** of **commercial speech** that a **state cannot ban**.

Answer 40

1. A state cannot place a ban on the advertisement of drug prices; 2. A state cannot prohibit attorneys from advertising legal services; and, 3. States cannot ban all advertising for legal products.

Question 41

List two **examples** of **commercial speech** that a state **can ban**.

Answer 41

1. Lawyers from soliciting client in person; and, 2. Commercial billboards

Question 42

What is the **test** applied to a **regulation on indecent speech**?

Answer 42

The regulation is based upon secondary effects of the speech + There is a substantial government interest + There are reasonable alternative channels for expression.

Question 43

What is the **test** applied to a **regulation** which regulates **conduct**, creating an **incidental burden** on speech?

Answer 43

The regulation will stand if: The regulation furthers an important interest that is unrelated to the speech + There is no greater burden imposed than is necessary to serve the interest.

Question 44

What **test** is applied to determine the constitutionality of **time, place, manner, regulation of speech** and assembly in public places?

Answer 44

The regulation must be content neutral + The regulation must be narrowly tailored to serve an important government interest + The regulation must leave open alternative channels of expression.

Question 45

**Speech-related activities at non-public forums**, such as military bases, jails, government workplaces, and mailboxes can be regulated by viewpoint-neutral regulations. What is the **test** applied by the Court to evaluate these regulations?

Answer 45

The regulation must be: Viewpoint neutral + Reasonably related to a government interest.

Question 46

What **oaths** can a **government** employer **require** an **employee** to take?

Answer 46

Oath to support the Constitution; and, Oath to oppose a legal overthrow.

Question 47

When can **public employees** be **disciplined** or fired for **speech**?

Answer 47

The speech is: Not on a matter of public concern; or, If speech is regarding a public concern, if the speech is potentially disruptive to the workplace.

Question 48

When can **public school children** be **disciplined** for **speech**?

Answer 48

If the speech is potentially disruptive.

Question 49

When may a **prisoner's** **speech** rights be **restricted**?

Answer 49

If the regulation is **rationally related** to a legitimate penal objective.

Question 50

Define a **prior restraint on speech**?

Answer 50

When the government blocks speech before it is uttered. There is a strong presumption against this type of government action.

Question 51

In what cases are **prior restraints** on speech **allowed**?

Answer 51

Speech regards: 1. Classified military information; or, 2. A public employee writing a pre-publicaiton review.

Question 52

What **factors** must be evaluated to determine if a restraining **order against pretrial publicity** (gag order) is appropriate?

Answer 52

The nature of pre trial publicity + The availability of adequate alternatives + The likely effectiveness of the restraining order.

Question 53

What are three **alternatives** to pretrial **gag orders** that can **prevent pollution** of the jury pool?

Answer 53

1. Voire dire; 2. Post ponment; and, 3. Change of venue.

Question 54

When is a **statute** requiring **films** to be submitted to a **Board of Censors** constitutional?

Answer 54

The regulation provides: Narrow and reasonable standards+ Immediate injuction available+ Burden on the censor to prove obscenity+ Prompt ruling on the obscentiy of the film.

Question 55

What are the **requirements** of a **state** when **regulating free speech**?

Answer 55

The regulation must be **narrow** and **specific**.

Question 56

What are the **constitutional requirements** imposed on a **state's bar admission** program?

Answer 56

1. A bar applicant cannot be denied for membership to communist party; 2. The bar applicant must answer questions; and, 3. The bar applicant must take an oath.

Question 57

**Overbreadth** is an _exception_ to what doctrine?

Answer 57

Third Party Standing.

Question 58

What are the **rights reserved** for the **press** by the 1st Amendment?

Answer 58

There are no special rights reserved for the press.

Question 59

What are the government's rights in **regulating** radio and television **broadcasting**?

Answer 59

Broadcasting be more **closely regulated** because the government is facilitating the broadcasting **by licensing the airways**.

Question 60

What are the **government** rights in **regulating** **cable** tv?

Answer 60

In-between broadcasting tv/radio and a person. Stricter than radio broadcasting; however, less strict than regulating a person's speech.

Question 61

What **test** will be applied to a **content neutral** regulation on **cable tv**?

Answer 61

**Intermediate Scrutiny.**

Question 62

What is a **public forum**?

Answer 62

A place where the public generally goes and talks (parks and sidewalks) with unrestricted access.

Question 63

When can a **newspaper** publish **offensive** information?

Answer 63

When it is **truthful** and **newsworthy**.

Question 64

Is the **appointment** of **religious** members to **government** offices unconstitutional?

Answer 64

No, it is not a per se violation of the establishment clause; however, more factors could indicate that it is.

Question 65

What is the constitutionality of laws that do **not** **regulate speech directly** (e.g. contract laws) but potentially could limit speech?

Answer 65

The regulations do not offend the first Amendment.

Question 66

Any law that **purposefully interferes** with **conduct** because it is dictated by **religion** will be examined with what **test**?

Answer 66

**Strict Scrutiny.**

Question 67

What **elements** are required for a speaker be convicted for **incitement**?

Answer 67

They intend to produce lawbreaking that is: + Imminent + Likely.

Question 68

How can a **city suppress speech** through the **hostile audience rule**?

Answer 68

Through a regulation that allows for the supression of speech that elicits an immediate violent response against the speaker by the audience. The effect of the speech must be greater than having the possibility to induce a provocation or violent reaction.

Question 69

The **government** may fund **colleges** with **religious teachings** so long as?

Answer 69

So long as the primary **purpose** and effect of the funding is **non-religious**.

Question 70

Can the state bar prevent other **associations** from **recommending lawyers** to their members?

Answer 70

No, associations can recommend lawyers to their members.

Question 71

A **regulation** on **speech content** gets what type of **scrutiny**?

Answer 71

**Strict Scrutiny**.

Question 72

When is a **licensing/permit statute** **void** on it's face? What is the effect?

Answer 72

Can be facially void for: 1. Vagueness; 2. Overbreadth; or, 3. Unfettered discretion. The effect is there there is need not apply for a permit