Con Law -- First Amendment

Front 1

First Amendment -- Content-Based / Content-Neutral

Back 1

Content Based -->STRICT SCRUTINY
-subject-matter?
-viewpoint?

Content Neutral --> INTERMEDIATE SCRUTINY

Front 2

First Amendment -- Prior Restraints

Back 2

Stoping speech before it occurs

Court orders --> strict scrutiny
Procedurally proper Court order must be complied with until vacated or overturned
Gag order to minimize pre-trial publicity --> ALWAYS unconstitutional

Procedural Safeguards:
1) Standards that are narrowly drawn
2) Injunctions must promptly be sought
3) Prompt and final determination of validity of restraint

Government has burden of showing regulated speech is unprotected

Front 3

First Amendment -- Vagueness

Back 3

Law unconst if a r/s person cannot tell what speech is prohibited/allowed

Front 4

First Amendment -- Overbreadth

Back 4

Law unconst if regulates substantially more speech than constitutionally allowed

Front 5

First Amendment -- Fighting Words Laws

Back 5

Unconstitutionally vague and overbroach

Front 6

First Amendment -- Symbolic Speech

Back 6

Gov can regulate IF:
1) Important interest unrelated to suppression of message
2) Impact on communication no greater than necessary to achieve gov purpose

Flag burning --> protected

Draft Card burning --> not protected speech

Nude Dancing --> not protected speech

Cross-burning --> protected UNLESS intended to threaten

Contribution Limits in Election Campaigns --> not protected

Expenditure Limits in Election Campaings --> protected

Front 7

First Amendment -- Anonymous Speech

Back 7

Protected

Front 8

First Amendment -- Speech by Government

Back 8

Not a First Amendment violation

Front 9

First Amendment -- Incitement of Legal Activity

Back 9

Unprotected

1) Substantial likelihood of imminent illegal activity
2) Speech directed to causing imminent illegality

Front 10

First Amendment -- Obscenity

Back 10

Unprotected

1) Appeals to prurient interest
2) Patently offensive
3) Lacks redeeming "value" (artistic, literary, political, scientific) -- NATIONAL standard

Front 11

First Amendment -- Obscenity & Zoning Laws

Back 11

Constitutional for adult bookstores and movie theaters

Front 12

First Amendment -- Child Pornography

Back 12

Can be prohibited, even if not obscence. Children must be used in production, including drawings and child-like adults.

Front 13

First Amendment -- Punishment for Possession of Obscene Materials

Back 13

Unconstitutional UNLESS child porn involved

Gov can seize assets of business convicted of violating obscenities law

Front 14

First Amendment -- Profane and Indecent Speech

Back 14

Generally protected by First Amendment

Exceptions:
1) Over broadcast media (consider -- tv/radio v. cable/internet)
2) Schools

Front 15

First Amendment -- Commercial Speech -- Specific Professions

Back 15

Generally --> Intermediate Scrutiny

Illegal, False, Deceptive --> unprotected

True, but Deceptive --> unprotected

Front 16

First Amendment -- Commercial Speech

Back 16

Attorneys -- in-person solicitation of clients UNPROTECTED

Accountants -- in-person solicitation of clients for profit PROTECTED

Front 17

First Amendment -- Defamation PUBLIC Figure

Back 17

PUBLIC OFFICIAL OR CANDIDATE
PUBLIC FIGURE --

Pltf can recover for defamation if:
1) falsity
2) actual malice (knowledge statement false or acted w/ reckless disregard for truth
C+C

Front 18

First Amendment -- Defamation PRIVATE Figure

Back 18

PRIVATE INDIVIDUAL, MATTER OF PUBLIC CONCERN: Qw1) Falsity
2) Negligence

--> Compensatory

Presumed or Puntive ALSO requires 3) Actual Malice


PRIVATE FIGURE, NOT MATTER OF PUBLIC CONCERN: same as above, plaintiff can recover presumed or punitive damages W/O actual malice

Front 19

First Amendment -- Privacy -- Media

Back 19

Truthful reporting --> no violation privacy

Broadcast of illegally intercepted call --> no violation if they did not illegally intercepted call

Government's own dissemination --> it can limit

Government speech of EE in execution of duties --> unprotected

Front 20

First Amendment -- Places & Free Speech --
Public Forums

Back 20

Gov properties; gov constit. Required to make available for speech

Regulations ok if:
1) Subject-matter/viewpoint neutral
2) Time, place, or manner that Serves important gov. purpose and leaves adqeuate alternative places for communication
--need not use least restrictive methods
--city officials cannot have discretion to set permit fees for public demonstrations

Front 21

First Amendment -- Places & Free Speech --
Designated Public Forum

Back 21

Gov property that it could close off to speech, but allowing speech creates designated public forum

Required to make available for speech

Regulations ok if:
1) Subject-matter/viewpoint neutral
2) Time, place, or manner that Serves important gov. purpose and leaves adqeuate alternative places for communication
--need not use least restrictive methods
--city officials cannot have discretion to set permit fees for public demonstrations

Front 22

First Amendment -- Places & Free Speech --
Limited Public Forum

Back 22

Gov property that it decides to open to certain speech only

Regulation OK IF: 1) regulation r/s
2) regulation is viewpoint neutral

Front 23

First Amendment -- Places & Free Speech -- Non-Public Forum

Back 23

Gov property that it can and does close off to speech (ex. military, areas outside of prisons and jails, airports, sidewalks on post office property)
Regulation IF: 1) regulation r/s
2) regulation viewpoint neutral

Front 24

First Amendment -- Places & Free Speech --
Private Property

Back 24

No First Amendment rights, but states can give more constitutional rights

Front 25

First Amendment -- Freedom of Association

Back 25

Strict Scrutiny

Laws that prohibit or punish group membership

Group membership disclosure --> Strict Scrutiny

Discrimination in Group Membership --> can be regulated by Gov
EXCEPTIONS: 1) intimate associations, 2) expressive activity

Front 26

First Amendment -- Freedom of Association

Membership in a Group (when punishable)

Back 26

1) Actively affiliation w/ a group
2) Knowledge of illegal activities
3) Specific intent of furthering illegal activities

Front 27

First Amendment -- Religion -- Free Exercise Clause

Back 27

Cannot be used to challenge a neutral law of general applicability

Gov cannot deny benefits to individuals who quit jobs for religious reasons

Front 28

First Amendment -- Religion -- Establishment Clause
(3) SEX

Back 28

Constitutional IF: 1) Secular purpose
2) Neither advances or inhibits religion
3) Not excessive entanglement with religion

Front 29

First Amendment -- Religion -- Religious Speech

Back 29

Strict Scrutiny

Front 30

First Amendment -- Religion -- State-sponsored religious activity in public schools

Back 30

NOT constitutional (incuding payment of salaries for parochial schools; INCLUDING SILENT PRAYERS)

BUT must provide same access to school facilities

Gov can give parents vouchers for use w/ parochial schools

Front 31

Con Law -- Licensing Systems

Back 31

1) important government interest
2) clear criteria leaving no discretion
3) prompt review of requests for licenses