Constitutional Law - First Amendment

Front 1

Establishment Clause

Back 1

a. Where a government program prefers one religion, or one religious sect, over others, strict scrutiny analysis will be applied.

b. Where the legislation or government program is neutral on its face, the Supreme Court will follow the three-part test under Lemon v. Kurtzman

Front 2

Lemon Test

(Establishment Clause)

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1) Purpose: secular purpose
2) Effect: primary effect does not advance or inhibit religion
3) No excessive entanglement

Front 3

Religious Activities in Public Schools
School Prayer

(Establishment Clause)

Back 3

School prayer: per se unconstitutional

1) Moment of silence – flunks Lemon if there is religious motive
2) 10 Commandments in classroom – cannot post
3) Graduation prayers - cannot
a) A state legislature may employ a chaplain to conduct an opening day prayer.
4) High school football prayer - cannot

A religious club holding its meetings in a public school does not violate the Establishment Clause.

Front 4

Public School Curriculum

(Establishment Clause)

Back 4

Creationism: school cannot require this to be taught—schools cannot teach religious doctrine as truth.

Front 5

Other Government Endorsement of Religion

(Establishment Clause)

Back 5

1) A city can include a crèche in a Christmas display in a park. It is for a secular purpose. The city is just trying to celebrate a holiday, especially where there is also a Santa Clause and candy canes. It is not religious.

2) A city may grant a license permitting a private group to put up a cross in a city park near a statehouse. - private speech

3) Placement of the Ten Commandments on the walls of the courthouse is unconstitutional—religious if putting up just Ten Commandments

4) Posting the Ten Commandments as a monument along with many other monuments surrounding the State Capitol is constitutional—secularize if surrounded by other monuments.

5) Sunday closing laws are constitutional—secular purpose of coordinating a day of rest—relation to religion is incidental.

6) Delegation of authority to religious organizations is unconstitutional.

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Tax Deductions for Religious Institutions

(Establishment Clause)

Back 6

Base decision to give tax deductions on characteristics that secular non-profits share.

General rule: this is constitutional if neutral

A tax exemption from sales and use taxes available only for the sale of religious magazines and books violates the Establishment Clause as an endorsement f religion.

Front 7

Government Aid to Religious Schools

(Establishment Clause)

Back 7

Can provide to public and private for:
a) Secular textbooks
b) Standardized tests
c) Lunch
d) Library and media materials and computers
e) Interpreters for deaf students

Cannot provide money for:
a) Directly fund religious instruction (no salary for religious teacher)
b) Secular teachers in secondary religious schools (does not apply to universities)

Tax deduction to all parents for public or private is ok.
Voucher program is ok if private choice

Front 8

Public Services through Religious Institutions

(Establishment Clause)

Back 8

Constitutional

Front 9

Free Exercise

Back 9

Belief/Action Distinction:
--belief absolutely protected
--conduct can be prohibited

The government may not determine the truth or falsity of a person’s religious beliefs, but it may determine a person’s sincerity in his or her claim of religious belief.

Front 10

Employment Division v. Smith

(Free Exercise)

Back 10

Peyote case

Where an individual’s conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if the regulation is neutral in respect to religion and is of general applicability.

Other applications—no FE violation:
1) Polygamy
2) Air Force headgear
3) Amish social security

Two Exceptions Not Overruled in Smith:
1) Sabbath observance unemployment benefits
2) Amish high school

Front 11

Freedom of Expression

Back 11

Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances

Front 12

Content-Based Restrictions

(Freedom of Expression)

Back 12

strict scrutiny

Five Exceptions - don't get SS:
a) The government passes strict scrutiny (e.g., child pornography)
b) Unprotected or low-value speech
c) Government as speaker
d) Content neutral conduct regulation
e) Content-neutral time, place, and manner regulation

Front 13

Unprotected or Low Value Speech

(Freedom of Expression)

Back 13

rational basis

(HAFWOUD)
1. hostile audience
2. fighting words
3. obscenity
4. unlawful advocacy
5. defamation

Front 14

Unlawful Advocacy

(Unprotected or Low Value Speech)
(Freedom of Expression)

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Where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Test--rational basis:
1. speaker intends to produce imminent unlawful action (subjective)
2. speech likely in fact to produce imminent unlawful action (objective)

Front 15

Fighting Words

(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 15

Words likely to incite immediate violent action.

1. must be more than annoying or offensive; it has to be a direct personal insult
2. “Fighting words” statutes subject to facial invalidity if the conduct proscribed is vague
3. “Fighting words” statutes designed to punish certain viewpoints are unconstitutional.

Front 16

Hostile Audience

(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 16

Speech that elicits an imminent violent response against the speaker by a crowd

Heckler’s Veto: cannot do—police have to take efforts to protect speaker first.

Front 17

Obscene speech

(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 17

or speech to be considered obscene, a three-part test must be satisfied (Miller Test):
i. Prurient interests—local community standards
ii. Specifically defined sexual conduct—patently offensive based on local community standards
iii. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value—national standard

Front 18

Defamatory

(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 18

1. Private person - Private concern: standard defamation law (can be strict liability re: defendant's mental state)

2. Private - Public concern: must prove defendant is negligent re: truth or falsity

3. Public official/figure - actual malice

4. false light: actual malice
Exception:
1. truthful information obtained from public record
2. truthful and newsworthy

Front 19

Quasi-protected speech

(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 19

Two types:
1. commercial speech
2. sexual or indecent speech

Front 20

Commercial Speech

(Quasi-protected speech)
(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 20

Cannot be false, deceptive, or relate to unlawful activity.

Government regulation must meet three things:
1. serve substantial interest
2. directly advances the interest
3. regulation must not be greater than necessary

State cannot ban advirtisements for:
--drug prices
--legal services
--all advertising on legal products

Can ban:
--attorneys from in-person solicitation
--commercial billboards

Front 21

Sexual or Indecent Speech

(Quasi-protected speech)
(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 21

Fully protected but can be regulated on basis of secondary effects.

1. serve substantial government interest
2. leave open alternative reasonable channels of communication

Ok bans:
--zoning restrictions
--public nudity
--nude dancing

Front 22

Government as Speaker

(Quasi-protected speech)
(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 22

Government can say what it wants

Includes employees if they are speaking for the government

Front 23

Conduct Regulation

(Quasi-protected speech)
(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 23

A law which regulates conduct, creating an incidental burden on speech, is allowable if:
a) Important government interest that is unrelated to content of speech
b) No greater burden than necessary

Front 24

Time, Place, and Manner Restrictions

(Quasi-protected speech)
(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 24

Reasonable regulation of time, place, manner is allowed.

Applies to places historically associated with expressive conduct (public forums)

Test:
1. content neutral
2. narrowly tailored
3. leaves open alternative channels for communication

Front 25

Permits

(Quasi-protected speech)
(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 25

States can require permits if the statute has specific content-neutral grounds.

Front 26

Other speech restrictions - public places

(Quasi-protected speech)
(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 26

1) A state cannot require parades or marches to pay for police protection. This would not be content neutral.

2) A state can restrict the volume and hours of amplifiers.

3) A state cannot enact a complete ban on door-to-door solicitation, because a homeowner can protect his privacy by posting a “No Solicitors” sign.

4) An ordinance requiring door-to-door solicitors, or canvassers, to identify themselves to local authorities was upheld in the interests of crime prevention.

5) The Supreme Court held that a city may not require a religious or political canvasser to register or get a permit

Front 27

Other speech restrictions - random

(Quasi-protected speech)
(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 27

1) The Supreme Court has upheld the constitutionality of a federal law that permits the Post Office, upon a householder’s request, to order a mailer to stop all future mailings to that addressee.

2) A peaceful protest on a sidewalk in front of a private home may be restricted if protester can protest in other part of neighborhood and regulation is content neutral

3) In some cases, the Court has upheld buffer zones if not too big.

Front 28

Speech-related activities at non-public forums (Test)

(Quasi-protected speech)
(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 28

Ex: military base, jails, government workplaces, mailboxes

Test requires a government regulation be:
1) Viewpoint-neutral
2) Reasonably related to government interest

Front 29

Speech-related activities at non-public forums (random rules)

(Quasi-protected speech)
(Unprotected or Low Value Speech)
(Freedom of Expression)

Back 29

1) A state may prohibit demonstration on jailhouse grounds.

2) Military bases may be closed to political speech

3) The government can regulate speech in government workplaces.

4) A city may sell space for commercial but not political advertising on city buses.

5) A public school may not deny groups based on views, including religious groups (once create a public forum)

6) A public television station can exclude a candidate from its debate if it is content neutral based on current support.

Front 30

Public Employment

(Freedom of Expression)

Back 30

Only applies to high level policy-making jobs

An individual may be deprived of public employment for political association, if:
1) Active member of a subversive organization (one plotting to overthrow the government)

2) With knowledge of illegal goals

3) Intent to further these illegal goals

Front 31

Oath Requirements

(Public Employment)
(Freedom of Expression)

Back 31

Can require oath:
1) to support the constitution
2) oppose illegal overthrow of the government

Front 32

Other oath issues

(Public Employment)
(Freedom of Expression)

Back 32

1) Public school teachers do not have to report a list of all organizations to which they belong

2) The government cannot require public employees to swear not to aid, advise, or influence the Communist Party

3) The government cannot require employees to swear to inspire reverence for the flag.

4) School children do not have to recite the Pledge of Allegiance (they are not public employees)

5) Lawyers can be required to swear to support and defend the constitution.

Front 33

Public Employee Speech

(Public Employment)
(Freedom of Expression)

Back 33

Can be fired for speech if:
1. not on a matter of public concern; or
2. could potentially disrupt the workplace (even if matter of public concern)

Front 34

Prisoners' Speech

(Freedom of Expression)

Back 34

Prisoners’ speech rights may be restricted if the regulation is rationally related to a legitimate penalogical objective.

Front 35

Prior Restraint

Back 35

Where the government blocks speech before it is uttered

General rule: strong presumption against prior restraints

Exceptions:
1) Military classification - national security
2) Employee writing—pre-publication review (of classified information)

Front 36

Pre-trial publicity & gag orders

(Prior Restraint)
(Freedom of Expression)

Back 36

Publicity:
Trial judges are required to consider:
1. nature of the pre-trial publicity
2. availability of other measures to mitigate the publicity
3. likely effectiveness of restraining order

Pollution of Jury Pool
Factors:
1. voir dire
2. changing venue
3. postponement

Front 37

censorship or licensing of motion pictures

(Prior Restraint)
(Freedom of Expression)

Back 37

Constitutional to require submission to board of censors if:
1. narrow and reasonable standards
2. immediate injunction
3. censor has burden to prove obscenity
4. prompt ruling

Front 38

Licensing

(Prior Restraint)
(Freedom of Expression)

Back 38

A licensing statute that is valid on its face must be obeyed and a permit denial cannot be ignored, even if the statute is applied unconstitutionally.

Where a statute is facially void (i.e., gives the licensing officials unrestricted discretion), then can ignore.

Front 39

Injunctions

(Prior Restraint)
(Freedom of Expression)

Back 39

must be obeyed or appealed - cannot ignore, no matter how erroneous

Front 40

Overbreadth

(Freedom of Expression)

Back 40

When a state has the power to regulate an area dealing with free speech, it must do so in a way that is narrow and specific.

Overbreadth is an exception to third party standing to assert speaker's rights.

Front 41

Vagueness

(Freedom of Expression)

Back 41

Governmental regulations must be drawn “with narrow specificity” and not vague.

The following statutes have been ruled “void for vagueness” under due process inquiries:
1) Contemptuously—(e.g., state law prohibits treating state flag contemptuously)
2) Subversives

Front 42

Press

(Freedom of Expression)

Back 42

Press has no greater freedom than the ordinary public.

Front 43

Press - random rules

(Freedom of Expression)

Back 43

1) A newsperson has no 1st Amendment right to refuse to testify before a grand jury.

2) In general, radio and television broadcasting can be more closely regulated than ordinary person.
a) Airwaves are limited and allocated by the government—government is facilitating so has greater control

3) The Court has held that cable television receives 1st Amendment protection somewhere between network TV and ordinary citizen and newspaper speech.

4) The government can ban offensive sexual content and speech on broadcast television.

5) Where cable TV operators are subject to content-neutral regulations based on intermediate scrutiny.

6) On the other hand, where content-specific regulation is imposed, the Court has yet to select a standard of review; however, the Court allows cable TV operators the right to ban “indecent” programming on channels that are leased outright to unaffiliated third parties (but not to public access channels).

Front 44

Bar Admission

(Freedom of Expression)

Back 44

Due Process allows the state to inquire into candidate qualifications and fitness:

1. Communist Party affiliation is ok
2. Cannot refuse to answer
3. Can require oath to support constitution