First Amendment Freedoms

Front 1

What are the First Amendment freedoms?

Back 1

Religion, Speech, Press, Assembly and Association, and to Petition government for redress of grievances.

MNEMONIC: GRASP (Grievances, Religion, Assembly, Speech, Press)

NOTE: First Amendment freedoms are "incorporated" by the Due Process Clause of the 14th Amendment so as to apply to the states.

Front 2

Are First Amendment rights absolute?

Back 2

No; 1st Amendment rights are subject to regulation. The validity of such regulations is determined by a balancing test:

1. Importance of 1st Amendment rights (very great);
2. Nature and scope of restraint;
3. Governmental interest sought to be served;
4. Whether restraint is narrowly tailored to serve the interest (can't be vague or overbroad).

Front 3

When is a statute regulating 1st Amendment activity invalid due to vagueness?

Back 3

When it is not drawn with sufficient clarity and definiteness to inform person of ordinary intelligence what actions are prescribed. There are 3 basic problems with vague laws:

1. They fail to give adequate notice of precisely what conduct is being prohibited;
2. By failing to explicitly define what conduct is unlawful, they invite arbitrary and discriminatory enforcement; and
3. Coupled with the prospect of arbitrary enforcement, they will inevitably cause people to steer far wider of the unlawful zone than if the boundaries were clearly marked (i.e. they "chill" speech).

NOTE: These 3 problems with vague laws are problems of substantive due process.

NOTE: A vague or overbroad statute can be saved if it is authoritatively interpreted in a way that cures the vagueness or oberbreadth (e.g. state court construes state statute, or federal court construes federal statute). The statute can even be applied to unprotected conduct that occurred prior to the limiting interpretation, providing the person had fair warning the conduct was covered.

Front 4

When is a statute regulating 1st Amendment activity invalid due to overbreadth?

Back 4

When it is designed to prohibit activity that is not constitutionally protected, but its scope includes a substantial amount of activity that is protected by the 1st Amendment.

NOTE: A vague or overbroad statute can be saved it it is authoritatively construed to cure the vagueness or overbreadth (e.g. state court construes state statute, or federal court construes federal statute). The statute can even be applied to unprotected conduct occurring prior to the limiting construction, providing the person had fair warning the conduct was covered.

EXAMPLES:

1. Statutes prohibiting "annoying" language in public--language can be "annoying" without being prohibitable under the 1st Amendment.
2. Statutes prohibiting membership in organizations promoting the violent overthrow of the government--membership can only be prohibited, constitutionally, if the person knows of the organization's aims and has the specific intent that they be accomplished.

NOTE: When a statute is unconstitutional on this basis, the court will strike the entire statute (not narrow it, as a court normally would.)

Front 5

A state statute prohibits the public use of "offensive" language. Ed Soapeater is convicted under the statute for hurling abuse at a police officer who ticketed him for parking in a no-parking zone. In fact, Soapeater's language was obscene, so it could be prohibited constitutionally. Nonetheless, he challenges the statute on grounds of overbreadth. Will he lose, since his own language was prohibitable?

Back 5

No--he'll prevail. In situations where overbreadth doesn't apply, a claimant must show, in a 1st Amendment case, that the amendment protects his own conduct or speech. However, where overbreadth applies (as it does here), the claimant can win his case by proving that the statute as drawn is overbroad and would unconstitutionally prohibit the conduct of some other person--not necessarily his own. Thus, a person challenging a law as unconstitutionally overbroad doesn't need standing.

Front 6

A city ordinance makes it unlawful for any person "to assault, strike, or in any manner oppose, molest, abuse, or interrupt any policeman in the execution of his duty." Godzilla is helping his friend Rodan move to a new house. Rodan tries to stop traffic to let Godzilla pull out of his driveway. When Officer Ito walks over to talk to Rodan, Godzilla yells at him to divert his attention: "Why don't you pick on someone you own size?" Ito asks Godzilla: "Are you interrupting me in my official capacity?" Godzilla says: "Yes." Ito cites him under the ordinance. Godzilla challenges the ordinance on grounds of overbreadth and vagueness. What result?

Back 6

The ordinance will be held to be unconstitutional overbroad and vague. When the government restricts speech on the basis of its content, unless the communication is likely to incite violence or is obscene, defamatory or commercial, it's entitled to constitutional protection. The statute here goes beyond these exceptions and criminalizes a substantial amount of constitutionally protected speech. In addition, it's unconstitutionally vague, because it doesn't explicitly define unlawful conduct, giving the police too much discretion in enforcing it. As a result, its unconstitutional. Houston v. Hill.

Front 7

A Klennebec state statute prohibits "all speech not protected by the 1st and 14th Amendments." Is this valid?

Back 7

No; it's unconstitutionally vague. A statute regulating free speech cannot be vague--that is, a person of common intelligence must understand what the statute proscribes or regulates. This can't be done with the statute here, making it unconstitutionally vague.

NOTE: The statute is not overbroad, because the government can prohibit all language not protected by the 1st and 14th Amendments.

Note: A vague or overbroad statute can be "saved" if it is authoritatively construed to cure the vagueness of overbreadth (e.g. a state court construes a state statute, or a federal court construes a federal statute). The statute can even be applied to unprotected conduct occurring prior to the limiting construction, providing the person had fair warning that the conduct was covered.

Front 8

A Huffenpuff city ordinance makes it a crime for 3 or more people to assemble on city sidewalks and conduct themselves so as to annoy passersby. The 3 Little Pigs, who were cited under the statute, challenge it validity on 1st Amendment grounds. Will the statute be upheld? (Assume pigs are treated as people.)

Back 8

No. A city sidewalk is a public forum. Therefore, speech may not be restricted, even in a content-neutral way, unless the restriction is a narrow one necessary to serve a significant state interest. "Mere public intolerance or animosity" is not a sufficient basis for making conduct a crime, and thus, isn't a "significant" state interest. In addition, the statute could be discriminatorily enforced against people with offensive ideas or appearances, and thus, isn't a "narrow" restriction. Therefore, it's an unconstitutional violation of the Pig's freedom of association. Coates v. Cincinnati.

RELATED ISSUE: The statute also violates due process because it is vague; a person of ordinary intelligence would not know which conduct it proscribes.