First Amendment Rights

Front 1

What are the First Amendment freedom?

Back 1

1. Religion
2. Speech
3. Press
4. Assembly and Association
5. To petition government for redress of Grievances.
Mnemonic: GRASP

Front 2

Are First Amendment rights absolute?

Back 2

No, First Amendment rights are subject t regulation.

Front 3

First Amendment rights are subject to regulation. What determines the validity of such regulations?

Back 3

A balancing test:
1. Importance of First 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 overboard)

Front 4

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

Back 4

When it is not drawn with sufficient clarity and definiteness to inform persons of ordinary intelligence what actions are prescribed.

Front 5

What are the three basic problems with vague laws?

Back 5

1. They fail to give "adequate notice" of precisely what conduct is being prohibited;
2. By failing to explicitly define what conduct is unlawful, the "invite arbitrary and discriminatory enforcement";
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)

Front 6

The three problems with vague laws are problems of ---------- due process.

Back 6

Substantive

Front 7

How can a vague or overbroad statute be saved?

Back 7

If it is authoritatively "interpreted" in a way that cures the vagueness or overbreath. (e.g., state court construes state statute, or federal court construes federal statute.)

Front 8

When is a statute regulating First Amendment activity invalid due to overbreath?

Back 8

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 First Amendment.

Front 9

When is a statute "overbroad"?

Back 9

When, in proscribing unprotected speech, it also proscribes protected speech.

Front 10

Why can a person without standing challenge a law as unconstitutionally overbroad?

Back 10

Because the overbreadth doctrine allows a party to whom the law may constitutionally be applied to challenge the statute on the ground that it violates the First Amendment rights of others. Because an overly broad law may deter constitutionally protected speech,

Front 11

What 4 types of communication "content" are not protected under the First Amendment?

Back 11

1, Advocating unlawful conduct
2. Fighting words
3. Obscenity
4. Defamation

Front 12

What is "commercial" speech?

Back 12

Speech that proposes a commercial transaction, such as an advertisement?

Front 13

Is "commercial" speech protected under the First Amendment?

Back 13

It is entitled to "limited" First Amendment protection.

Front 14

What is the level of scrutiny for speech protected by the First Amendment?

Back 14

Strict scrutiny, it must be necessary to achieve a compelling governmental interest and narrowly tailored to achieve that goal.

Front 15

What is the test used to determine the validity of a law designed to forbid advocacy of unlawful conduct?

Back 15

The "clear and present danger" test from Brandenburg v. Ohio (1969), which provides that advocacy can only be forbidden if:
1. Its "aim" is to produce or incite "imminent illegal action," and
2. It is "likely" to produce or incite such action.

Front 16

Under what circumstances may a person be punished for associating with a group that advocates unlawful conduct?

Back 16

Such association is only punishable if:
1. The group advocates conduct that is unlawful or otherwise unconstitutional; and
2. The person "know" of those activities "and specifically intends" that those aims be "accomplished."

Front 17

At a gathering of the Anarchists and novelists Association, their leader, Tom Klancy, makes a speech encouraging the overthrow of the United States government. As he works the crowd into a frenzy, he concludes with the statement, "We will march down Pennsylvania Avenue the week after next and torch the White House." Is this speech protected by the First Amendment?

Back 17

Probably. Mere advocacy of illegal conduct is not punishable until a "clear and present danger" of imminent lawless action arises; the illegal conduct here may not be deemed "imminent", since the leader advocates action some time in the future.

Front 18

John Q. Marx joins a local terroist group, the Citizens' Militia, that advocates the use of violence to redress what it considers to be an unwarranted federal intrusion into local affairs. John knows that the group is planning an imminent terrorist attack on a federal building in Nebraska. John approves of the group's overall purpose of curbing the federal government's influence, but disapproves of the group's proposed use of violence. May John be punished for his association with the group?

Back 18

No. A person may be punished for his association with a group only if the group advocates or engages in illegal conduct "and" the person not only knows of the illegal aims but "specifically intends" that those aims be accomplished. Here, the facts tell us that John does not approve of the use of illegal violence, so he doesn't satisfy the "specific intent" requirement.

Front 19

Define "fighting words."

Back 19

Fighting words are:
1. Personally abusive epithets,
2. Likely to incite immediate physical retaliation,
3. In the ordinary citizen.
`

Front 20

Can bumper stickers be considered "fighting words?"

Back 20

No, because fighting words require face-to-face confrontation.

Front 21

Under what circumstances can the government regulate profanity?

Back 21

Only:
1, In the context of fighting words, or
2. Where regulation is necessary to protect a captive audience or minors.

Front 22

Would a person's yelling at someone "You Goddamned Fascist" be speech-protected by the First Amendment?

Back 22

No. These particular words have been held to be fighting words, and fighting words are not protected by the First Amendment.

Front 23

Why are fighting words not protected by the First Amendment?

Back 23

The public interest in keeping order outweighs any slight social value of the expression.

Front 24

What is the test to determine whether a text or work is obscene and, thus, not protected by the First Amendment?

Back 24

To be obscene, all three of the following requirements must be met:
1. The "average person" applying "contemporary community standards," would find tha the text or work, taken as a whole, appeals to the "purient interest";
2. The text or work depicts or describes, in a "patently offensive way," "sexual conduct" specificaaly defined by the applicable state law; and
3. The text or work, taken as a whole, "lacks serious literary, artistic, political, or scientific value:.
*Knows as the Miller Test*