The First Amendment

Question 1

Content-Based vs. Content-Neutral Restrictions (Free Speech)

Answer 1

Content-based Restrictions = Strict Scrutiny
* Subject Matter Restrictions (application of the law depends on the topic of the message)
* Viewpoint Restrictions (application of the law depends on the ideology of the message)

Content-neutral Restrictions = Intermediate Scrutiny
* Law applies to all types of speech the same

Question 1

Prior Restraints - Court Orders (Free Speech)

Answer 1

Typically restraining order or injunction
* Subject to strict scrutiny
* But must be complied with until vacated if procedurally proper (person who violated court order is barred from challenging it)

Licensing and permits can be required for speech if:
* Important reason for licensing
* Clear criteria + Almost no discretion
* Procedural safeguards

Ex: A defendant stood accused of murdering a family of six in a small town. The judge, concerned not only about prejudice to the defendant’s right to a fair trial but also about media attention and public opinion in such a small locale, issued an order forbidding the press from attending the trial or publishing any details of the testimony at trial.
If a local newspaper sues in federal court to have the judge’s gag order overturned, will the newspaper prevail?
* Yes, because the judge has attempted to impose a prior restraint in violation of the First Amendment.

Question 2

Vagueness & Overbreadth (Free Speech)

Answer 2

Vagueness: Unconstitutional if reasonable person can’t tell what’s prohibited and what’s allowed

Overbreadth: Unconstitutional if law regulates substantially more speech than Constitution allows

Question 3

Fighting Words (Free Speech)

Answer 3

Words directed at another that are likely to provoke a violent response
* Unprotected category of speech
* But law often unconstitutionally vague & overbroad

Question 4

Symbolic Speech (Free Speech)

Answer 4

Government can regulate conduct that communicates if
* Imporant interest unrelated to suppressing message; and
* Impact on communication is no greater than necessary to achieve purpose

Examples:
* Flag burning is constitutionally protected speech
* Draft card burning is not constitutionally protected speech
* Local governments may prohibit nude dancing
* Burning a cross is protected speech unless it is done with the intent to threaten
* Contribution limits in election campaigns are generally constitutional, but expenditure limits are unconstitutional

Question 5

1st Amendment - Other Free Speech Principles

Answer 5

• Compelled speech violates 1st Amendment (It is impermissible compelled speech to require a web designer to provide websites for same-sex weddings when that would violate her religious beliefs.)
• Anonymous speech is protected
• Government speech isn’t covered by Free Speech Clause

Question 6

Incitement of Illegal Activity (Unprotected Speech)

Answer 6

Unprotected by 1st Amendment
* Substantial likelihood of imminent illegal activity
* Speech directed at causing imminent illegal activity

True Threats (also unprotected):
* Needs to be Recklessness
* “There has to be a conscious disregard of a substantial risk that the speech will be regarded as a threat of violence”

Question 7

Obscenity & Sexually-Oriented Speech (Lesser Protected Speech)

Answer 7

Test for Obscenity (all 3 parts must be satisfied to be obesene):
* Appeals to prurient interest in sex = Community/local standard
* Patently offensive = Based on state or local law
* Taken as a whole, No serious artistic, literary, political, or scientific value = National standard

Key Points:
* The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters
* Child pornography may be completely banned, even if not obscene. (To be child pornography, children must be used in production of the material.)
* The government may not punish private possession of obscene materials; but the government may punish private possession of child pornography
* The government may seize the assets of businesses convicted of violating obscenity laws

Question 8

Profane & Indecent Ppeech

Answer 8

Profane and indecent speech is generally protected by the First Amendment

Exception: Over Broadcast Media
* Applies to the free over-the -air broadcast media
* Government can’t prohibit profane & indecent language over cable television, or over the internet & social media

Exception: Schools
* Schools have an important interest in teaching civilized discourse to children
* Ability to regulate out-of-school speech is more limited = Must have been disruptive of school activities

Question 9

Commercial Speech (Lesser Protected Speech)

Answer 9

• False & Deceptive advertisements not protected by 1st Amendment
• Government can prohibit ads for illegal activities

True commercial speech that inherently risks deception can be prohibited:
* The government may prevent professionals from advertising or practicing under a trade name
* The government may prohibit attorney, in-person solicitation of clients for profit
* The government may not prohibit accountants from in- person solicitation of clients for profit

Other commercial speech = Intermediate Scrutiny
* Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.

Question 10

Defamation of Public Official/Figure

Answer 10

Plaintiff must show:
* Clear & convincing evidence
* Falsity
* Actual Malice: Speaker knew the statement was false or acted with reckless disregard as to the truth

Public Figures (same rules as officials): Those who thrust themselves into the limelight & who likely have access to media to respond to any attack

Question 11

Defamation of Private Figure on Matter of Public Concern

Answer 11

Compensatory damages if plaintiff proves:
* Falsity of statement; and
* Negligence of speaker

Presumed/punitve damages if plaintiff proves:
* Actual Malice

Question 12

Defamation of Private Figure on Matter Not of Public Concern

Answer 12

• Presumed/punitive damages don’t require proof of actual malice
• Compensatory = No standard articulated by the Court

Question 13

Liability for Intentional Infliction of Emotional Distress

Answer 13

• Must meet defamation requirements
• Cannot exist for speech otherwise protected by the 1st Amendment

Question 14

Privacy (1st Amendment)

Answer 14

• The government may not create liability for the truthful reporting of information that was lawfully obtained from the government
• Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance
• The government may limit its dissemination of information to protect privacy

Question 15

Speech of Government Employees (1st Amendment)

Answer 15

No protection if within scope of duties

Question 16

Regulation Based on Content

Answer 16

Any other government regulation of speech based on content must meet strict scrutiny
* Example: restrictions on violent speech must meet strict scrutiny

Question 17

Speech on Government Property - Public Forums

Answer 17

Not Subject & Viewpoint Neutral = Strict Scrutiny

Subject & Viewpoint neutral = Intermediate Scrutiny
* Time, Place, & Manner
* Important government purpose
* Adequate alternatives

Narrowly Tailored, not least restrictive

Permit fees for parades & demonstrations unconstitutional if within official’s discretion

Question 18

Speech on Government Property - Designated Public Forums

Answer 18

• Government chooses to open to speech
• Use public forum rules

Question 19

Speech on Government Property - Limited Public Forums

Answer 19

• Opened for certain groups or topics
• Regulation must be reasonable & viewpoint neutral

Question 20

Speech on Government Property - Nonpublic Forums

Answer 20

• Government closes to speech
• Regulation must be reasonable & viewpoint neutral
• Ex: Military Bases; areas outside prisons & jails; sidewalks on post offices; airports

Question 21

Freedom of Association

Answer 21

• Fundamental Right
• Leases that prohibit or punish membership = Strict Scrutiny

To prohibit or punish must prove:
* Active affiliation;
* Knowledge of illegal activities; and
* Specific intent to further these activities

Requiring Disclosure of Membership:
* Strict Scrutiny if disclosure likely to chill association

No Right to Discriminate: Right to discriminate not protected unless
* Intimate association; or
* Discrimination integral to activities of group

Question 22

Free Exercise Clause

Answer 22

• Can’t be used to challenge neutral law of general applicability
• If not neutral = Stict Scrutiny
• Discretion to grant exemptions = Not neutral
• Can’t deny benefits if people quit jobs for religious reasons
• Can’t hold religious schools liable for choosing teachers
• Can’t deny religious schools benefits given to secular private schools