The First Amendment

Question 1

Content-based restrictions

Answer 1

Two types:

1. subject matter restrictions
   
   • application of the law depends on the topic of the message
2. viewpoint restrictions
   
   • application of the law depends on the ideology of the message.

Question 2

Scrutiny level for content-based restrictions

Answer 2

strict scrutiny

Question 3

Scrutiny for content-neutral laws burdening speech

Answer 3

Intermediate scrutiny

Question 4

Court orders suppressing speech

Answer 4

• These orders must meet strict scrutiny
• But, if procedurally proper, must be complied with until they are vacated or overturned.
• If you violate it, you are later barred from challenging.

Question 5

When the government can require a license for speech

Answer 5

• there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority.
• Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review.

Question 6

Vagueness

Answer 6

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

Question 7

Overbreadth

Answer 7

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allowed to be regulated.

Question 8

Fighting words laws

Answer 8

fighting words laws are unconstitutionally vague and overbroad

Question 9

Symbolic speech

Answer 9

The government can regulate conduct that communicates if:

• it has an important interest unrelated to suppression of the message, and
• if the impact on communication is no greater than necessary to achieve the government’s purpose.

Question 10

Examples of symbolic speech

Answer 10

Constitutional:

• Flag burning
• local governments prohibiting nude dancing
• burning a cross if not intended to threaten
• contribution limits in election campaigns

Unconstitutional

• Draft card burning
• expenditure limits in election campaigns

Question 11

Compelled speech protection

Answer 11

Compelled speech violates the First Amendment

e.g. government can’t force a person or group to voice support of something

Question 12

Anonymous speech protection

Answer 12

anonymous speech is protected

Question 13

Speech by the governmentt

Answer 13

Cannot be challenged as violating the speech clause of the First Amendment

Question 14

Incitement of illegal activity

Answer 14

The government may punish speech if:

• there is a substantial likelihood of imminent illegal activity, and
• the speech is directed to cause imminent illegality

Question 15

Obscenity and sexually-oriented speech test

Answer 15

Test:

1. the material must appeal to the prurient interest;
2. The material must be patently offensive under the law prohibiting obscenity
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value

Question 16

Standard for obscenity test

Answer 16

The obscenity and sexually-oriented speech test is applied using a a national standard, not a local one

Question 17

Regulation of adult shops

Answer 17

The government may use zoning ordinances to regulate the location of adult bookstores and movie theatres

Question 18

Child porn regulation

Answer 18

May be completely banned, even if not obscene

(to be child porn, children must be used in production of the material)

Question 19

Obscene material possession

Answer 19

• The government may not punish private possession of obscene materials
• But they may punish private possession of child porn

Question 20

Government asset seizure and obscenity laws

Answer 20

The government may seize the assets of businesses convicted of violating obscenity laws

Question 21

Protection of profane and indecent speech

Answer 21

• Profane and indecent speech is generally protected by the first amendment
• exception over the (public) broadcast media and in schools

Question 22

Advertising protection

Answer 22

• Advertising for illegal activity
  
  • false and deceptive ads are not protected by the first amendment
  • true commercial speech that inherently risks deception can be prohibited

Question 23

Deceptive commercial speech examples

Answer 23

• The government may prevent professionals advertising or practicing under a trade name
• The government may prohibit attorney, in-person solicitation of clients for profit
  
  • but NOT accountant solicitations.

Question 24

other commercial speech is analyzed using this level of scrutiny

Answer 24

intermediate scrutiny

Question 25

Government regulation of commercial speech

Answer 25

Must be narrowly tailored, but it does not need to be the least restrictive alternative

Question 26

Public official/figure defamation

Answer 26

If the plaintiff is a public official, public figure, or running for public office the plaintiff can recover for defamation by proving falsity of the statement and actual malice

Question 27

Private figure/matter of public concern

Answer 27

* If the plaintiff is a private figure and the matter is of public concern, the state may allow the plaintiff to recover by proving falsity and negligence by the defendant. * However, the plaintiff may recover presumed or punitive damages only by showing actual malice

Question 28

Private figure/matter not of public concern

Answer 28

If the plaintiff is a private figure and the matter is not of public concern, the plaintiff can recover without showing actual malice

Question 29

Liability for intentional infliction of emotional distress for defamatory speech

Answer 29

must meet the defamation standards and cannot exist for speech otherwise protected by the first amendment

Question 30

Liability for reporting government info

Answer 30

the government may not create liability for the truthful reporting of information that was lawfully obtained from the government

Question 31

Liability for broadcasting an illegally intercepted call

Answer 31

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

Question 32

Government redaction of public records

Answer 32

The government may limit its dissemination of information to protect privacy

Question 33

Speech by government employees on the job in the performance of their duties

Answer 33

not protected by the first amendment

Question 34

Other government restrictions based on the content of speech

Answer 34

must meet strict scrutiny (e.g. restrictions on violent speech)

Question 35

Public forums | (e.g. sidewalks and public parks)

Answer 35

government properties that the government is constitutionally required to make available for speech

Question 36

Regulations of public forums

Answer 36

* must be subject matter and viewpoint neutral, or otherwise meet strict scrutiny * must be a time, place or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication

Question 37

permit fees for public demonstrations

Answer 37

City officials cannot have discretion to set permit fees for public demonstrations

Question 38

Designated public forums

Answer 38

government properties that the government could close to speech, but chooses to open to speech. Public forum rules apply

Question 39

Limited public forums

Answer 39

* Government properties that are limited to certain groups or dedicated to the discussion of only some subjects. * The government can regulate speech here so long as the regulation is reasonable and viewpoint neutral.

Question 40

Non-public forums

Answer 40

* Government properties that the government constitutionally can and does close to speech. * The government can regulate speech here so long as the regulation is reasonable and viewpoint neutral.

Question 41

Non-public forums examples

Answer 41

* Schools (unless gov't opens it on weekends, then it's a designated public forum); * military bases, even parts open to the public; * post offices, even sidewalks on PO property; * Airports (money solicitation banned, not distribution of literature);

Question 42

Private property

Answer 42

No First Amendment right of access for speech purposes.

Question 43

Laws that prohibit or punish group membership

Answer 43

must meet strict scrutiny. To punish membership in a group it must be proven that the person: * actively affiliated with the group; * knowing of its illegal activities; and * with the specific intent of furthering those illegal activities.

Question 44

Group Membership Laws

Answer 44

* Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny * Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity

Question 45

Free exercise clause and challenging laws

Answer 45

The free exercise clause cannot be used to challenge a neutral law of general applicability

Question 46

Government denial of benefits for religious reasons

Answer 46

The government may not deny benefits to individuals for religious reasons.

Question 47

Government regulation of ministerial choice

Answer 47

The government may not hold a religious institution liable for the choices it makes as to who will be its ministers

Question 48

The denial of benefits to a religious school that are provided to a secular private school must meet this standard

Answer 48

Strict scrutiny

Question 49

Establishment clause test

Answer 49

* There must be a secular purpose for the law * the effect must be neither to advance nor inhibit religion * there must not be excessive entanglement with religion

Question 50

Government discrimination against religious speech or among religions must meet this standard

Answer 50

strict scrutiny

Question 51

Government-sponsored religious activity in public schools

Answer 51

* This is unconstitutional. * But religious student and community groups must have the same access to school facilities as non-religious groups.

Question 52

Government assistance to religious schools

Answer 52

The government may give assistance to religious schools so long as it's not used for religious instruction

Question 53

Vouchers for religious schools

Answer 53

The government may provide parents vouchers for use in religious schools.