Constitutional Law - 1St Amendement

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1st Amendment - Free Speech

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Prohibits congress from abridging freedom of speech and is applicable to states via incorporation by the 14th amendment. The first amendment is meant to promote the search and free flow of information and encourage the market place of ideas.

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4 Things That make restriction facially unconstitutional

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UP [&] OV[er]

1. Unfettered Discretion
2. Prior restraint
3. Overbreadth
4. Vagueness

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Overbreadth

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A law is unconstitutional if it regulates more speech than it constitutionally allows. (i.e. fighting words)

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Vagueness

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A law is unconstitutional if reasonable person can't tell what speech is prohibited and what is allowed (i.e. "tending to corrupt morals of youth")

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Unfettered Discretion

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There must be definite standards. If it gives unbridled discretion to another to decide, then it is void on its face.

i.e. A regulation cannot give officials broad discretion over speech issues; there must be definite standards for applying the law.

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Prior Restraint

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Judicial order or administrative system that stops speech before it occurs.

General Rule - Court orders suppressing speech must meet strict scrutiny.

LICENSING - Allowable IF:

1. Important reason
2. Clear criteria
3. procedural safeguards

a. Prompt determination of requests and judicial review.

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Content Based vs. Content Neutral

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The first inquiry under the 1st amendment is whether the government action attempts to regulate speech on its face or as applied.

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Content Based

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A regulation seeking to forbid communication of specific ideas (i.e. content) is less likely to be upheld than a regulation of conduct (i.e. time, place, manner) incidental to speech.

Content Based restrictions are subject to Strict Scrutiny (must be necessary and least restrictive means of achieveing compelling gov interest)

2 Types of Content Based Laws:

1. Subject Matter Restrictions
2. Viewpoint restrictions

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Content - Neutral

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Must meet Intermediate Scrutiny

CONTENT NEUTRAL: If public forum, APPLY 3 part test: regulation must (1) further a significant gov interest such as noise control or traffic safety (2) be narrowly tailored (no more restrictive than necessary) (3) leave open alternative channels of communication;

If non-public forum such as jails, military bases, billboards, public buses, APPLY

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Symbolic Speech/ Communicative CONDUCT

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Can be regulated if:

1. Important interest unrelated to suppression of the message, AND

2. Impact on communication is no greater than necessary to achieve governments purpose.

a. Examples: Flag burning is protected speech; draft card burning is not, nude dancing is not protected; burning cross is protected unless done with intent to threaten.

NOTE: When Government is the speaker a First Amendment challenge can not be used!

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Restricted Speech

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1. Incitement of Illegal Activity
2. Obscenity/ Sexual Speech
3. Commercial Speech
4. Defamation
5. Privacy

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Incitement of illegal Activity

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The government may punish speech if there is a substantial likelihood of imminent illegal activity and speech is directed to causing immenient illegality.

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Fighting words

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The 1st Am does not protect "fighting words", meaning language that is likely to incite immediate physical retaliation.

a. But "fighting words" statutes will ALWAYS be struck down for being vague and overbroad.

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Obscenity

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Speech is considered to be obscene if the material:

1. Appeals to prurient interest (shameful or morbid interest in sex; community standard)

2. Is patently offensive under law prohibiting obscenity, AND

3. taken as a whole, lacks serious literary, artisitic, political or scientific value (national standard).

Zoning for obscenity - Allowed to regulate location of adult bookstore/movie theaters

Child Porn - may be completely banned. Children must be used in the production of material. Private possession is punishable.

Convicted Businesses - gov can seize assets if obscenity laws violated.

Profane/ Indecent Speech - Generally protected by first amendment

a. Exceptions: (1) over broadcast media (2) in schools

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Commercial Speech

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Advertising - Advertising of illegal activity, and false and deceptive ads are not protected by the 1st amendment. True commercial speech that inherently risks deception can be prohibited:

a. The government may prevent professionals from advertising or practicing under a trade name.

b. The government may prohibit attorney, in-person solicitation of clients for profit.

c. The government may not prohibit accountants from engaging of in-person solicitation of clients for profit.

Other Commercial Speech - can be regulated if INTERMEDIATE SCRUTINY is met. The government regulation of speech must be narrowly tailored, but does not need to be least restrictive.

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Defamation

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1. Public Figure - P must prove falsity of statement and there needs to be actual malice by the D (malice - intent or reckless disregard for truth)

2. Private Figure - If it is a matter of public concern P must prove falsity and negligence, but actual malice required for presumed and punitive. If it is a matter of merely PRIVATE CONCERN, P can recover presumed and punitive damages without proving actual malice.

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Privacy

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1. Truthful Reporting: The government may not create liability for the truthful reporting of information that was lawfully obtained from the government.

2. Intercepted Call - 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.

3. Government Dissemination - gov't may limit its dissemination of information to protect privacy, except in criminal trials and most crim. pretrial proceedings.

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Conduct Regulation - Time, Place, Manner

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If regulation is content- neutral, regulation must be time, place, manner regulations that serves important government purpose and leaves open adequate alternative places for communication.

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Forums

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1. Public Forums and Designated Public Forums - Government properties that the government is constitutionally required to make available for speech. Requirements:

a. Regulation must be content neutral (Subject Matter and View Point neutral) to avoid strict scrutiny

b. Time, Place, Manner restrictions allowed IF (1) important government interest (2) that leaves open adequate alternative places for communication (doesnt have to be least restrictive). (i.e SIDEWALKS, PARKS)

c. Permit fees are unconstitutional when city officials have discretion to set

2. Limited Public Forums - Government properties voluntarily opened for speech. Government can regulated speech in limited forum so long as the regulation is reasonable and viewpoint neutral. (i.e Government properties limited to certain groups or dedicated to the discussion of only some subjects.)

3. Speech regulation of non-public forums - areas NOT historically open to speech related activities.

a. Must be viewpoint neutral and meet RATIONA

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Freedom of Association

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Is the right to join together with other persons for expressive or political activity, to pursue political and social goals, is protected by the first amendment.

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Prohibiting and Punishing group membership

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Modified Strict Scrutiny: Person must be:

1. actively affiliated with group
2. knowing of its illegal activites
3. acting with intent to further those illegal activities of the group.

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Required Disclosure of group membership

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Strict Scrutiny - where disclosure would chill association. (would make people not want to associate if forced to disclose)

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Prohibiting Group from Discrimination

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Laws prohibiting a group from discrimination are constitutional unless they interfere with intimate association OR expressive activity.

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Freedom of Religion

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1st Amendment provides that "congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

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Free Exercise Clause

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Prohibits the government from punishing someone on the basis of a person's religious beliefs.

General Rule - Free Exercise Clause cannot be used to challenge a neutral law of generally applicability, no matter how much it burdens free exercise of religion.

a. If incidentally interferece with a persons practice of their religion it is okay for government to regulate general conduct of all persons.

b. Government may not deny unemployment benefits to people who quit their jobs due to religious reasons.

c. religious belief does NOT have to be a traditional belief. can still be protected as long as beliefs parallel to orthodox religious beliefs.

d. Religious Oaths for government jobs are prohibited

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Establishment Clause

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If government action includes a preference for one religious sect over another, it is INVALID unless its NARROWLY TAILORED to promote a COMPELLING INTEREST (Strict Scrutiny).

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Lemon Test

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If there is no religious sect preference, the action is valid IF: (S.E.X)

1. Has a secular purpose

2. Has a primary effect that neither advances nor inhibits religion; and

3. Does not produce excessive government entanglement with religion.

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Government aid to Parochial Schools or religiously affiliated hospitals

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is permissible ONLY IF it is used for secular purposes and not religious instruction.

a. Government may provide parents vouchers, which they may use for parochial schools but they may not tender salaries.

b. If school opens to student groups, it can not exclude religious groups. This is impermissible exclusion based on religious beliefs.