ConLaw 8

  1. Generally, what standard of scrutiny applies to a government restriction of speech?
    • Strict scrutiny |
    • To satisfy strict scrutiny (1) the law must be necessary to achieve a compelling government interest, and (2) the law uses the least restrictive means of achieving that compelling interest
  2. What are the major issues relating to Free Speech?
    • 1) Type of restriction (e.g., content vs. content-neutral)
    • 2) Whether the type of speech is protected (content)
    • 3) Where and how the speech may occur (content-neutral)
  3. Free speech analysis distinguishes between 2 types of restrictions. They are . . .
    • 1) Content based restrictions (e.g., regulation of subject matter or viewpoint), and
    • 2) Content neutral restrictions (e.g., regulation of manner, timing, or places where speech occurs)
  4. What level of scrutiny must a content-based restriction satisfy?
    • Strict scrutiny |
    • To satisfy strict scrutiny (1) the law must be necessary to achieve a compelling government interest, and (2) the law uses the least restrictive means of achieving that compelling interest
  5. What level of scrutiny must a content-neutral restriction satisfy?
    • Intermediate scrutiny |
    • To satisfy intermediate scrutiny (1) the law must be substantially related to an important government purpose, and (2) the restrictions have been narrowly-tailored to meet that important purpose
  6. Court orders that suppress speech before it occurs . . .
    • 1)Must meet strict scrutiny
    • 2) Be complied with until they are vacated or overturned (a person who violates a court order is barred from later challenging it)
    • 3) Are never enforceable against the press to prevent pretrial publicity (Exam tip–this is true, even if the judge believes that pretrial publicity is necessary to ensure a fair trial)
  7. If the gov't requires a license for speech, what is needed for that license to be constitutional?
    • 1) Important reason for the license
    • 2) Clear criteria, such that an award or denial of the license involves no discretion of the licensing authority
    • 3) Prompt procedural safeguards (e.g., prompt determination of requests and judicial review of denials)
  8. A restriction on speech is unconstitutionally Vague when . . .
    • Unconstitutionally vague when a reasonable person would not be able to tell what speech is prohibited and what is permitted. |
    • Example: A law making it a crime to distribute literature that "tends to corrupt the minds of youth" would be unconstitutionally vague
  9. A restriction on speech is unconstitutionally Over-broad when . . .
    It regulates substantially more speech than the Constitution allows to be regulated
  10. When may the government regulate Symbolic Speech (i.e., conduct)?
    • 1) Important interest unrelated to suppression, and
    • 2) Impact on communication is no greater than is necessary to achieve the government's goal
  11. Examples of Symbolic Speech
    • • Flag burning: Protected
    • • Anonymous speech: Protected
    • • Draft Card burning: Not protected
    • • Nude Dancing: Not protected
    • • Cross Burning: Protected UNLESS done in order to intimidate (then it's not protected)
  12. Can the government restrict monetary support of political campaigns?
    • • Particular campaigns: Maximum limits on contribution to a particular candidate are permissible
    • • Support of campaigns in general: No limit on the amount of money that can be spent in support of campaigns, in general
  13. Is speech that incites illegal activity protected by the First Amendment?
    • NO |
    • Speech is treated as inciting illegal activity if (1) there is a substantial likelihood of imminent illegal activity, and (2) if the speech is directed at causing imminent illegal activity
  14. Is obscene and sexually-oriented speech protected by the First Amendment?
    • NO, if all parts of the following 3-part test are met— |
    • 1) The material appeals to the prurient interest, or a "shameful or morbid interest in sex"
    • 2) The material is patently offensive under the law prohibiting obsenity
    • 3) As a whole, the material lacks serious redeeming artistic, literary, political, or scientific value as determined by national standards
  15. Can the government use zoning ordinances to regulate the number or location of adult bookstores and movie theaters?
  16. Child pornography . . .
    • May be completely banned, even if it is not obscene. |
    • Note–to be child pornography, actual children must be used in the production of the material. Drawings or adults of child-like appearance may not be banned, unless obscene (see separate card for protection of obscene materials)
  17. Can the government punish possession of obscene materials?
    • • No, mere possession of ordinary obscene materials is not punishable.
    • • However, the mere possession of child pornography is punishable
  18. Is profane and indecent speech protected by the First Amendment?
    • YES, generally EXCEPT where |
    • i) broadcast over free television or radio channels (uniqueness of intrusion), or
    • ii) where used in schools
  19. False and deceptive advertisements, or advertisements for illegal activity are . . .
    NOT PROTECTED by the First Amendment
  20. Can true commercial speech be prohibited?
    YES, if the speech has inherent risks of deception
  21. Commercial speech that is not false, deceptive, and that does not advertise illegal activity may be regulated by the government IF
    • Intermediate scrutiny is satisfied|
    • This means that the regulation of the commercial speech must (1) substantially relate to an important government purpose, and (2) the regulation is narrowly-tailored to further that important purpose (note: need not be least restrictive alternative)
  22. What must a public official or figure prove in order to recover on a claim of defamation?
    • 1) Defamatory statement
    • 2) Identifying π
    • 3) Published to at least one TP
    • 4) Injury to reputation AND
    • 5) Actual malice (this means the statement is (1) false, and (2) made intentionally or with reckless disregard of the truth)
  23. What must a private individual prove in order to recover on a claim of defamation?
    • • Defamatory statement
    • • Identifying π
    • • Published to at least one TP
    • • Injury to reputation |
    • Note: If the matter is one of "public concern," the private π must also show that the statement is FALSE and that the ∆ made the statement NEGLIGENTLY
  24. A state cannot impose liability for the reporting of information from government records if . . .
    • • The report is truthful, and
    • • The information was legally obtained
  25. Can a broadcaster (the media) be held liable for broadcasting an illegally intercepted and recorded phone call?
    No, so long as (1) the media did not participate in the illegal interception, AND (2) the broadcast involves a matter of public importance.
  26. What places are available for public speech?
    • • Public forums
    • • Limited public forums
    • • Non-public forums
  27. Speech regulation in a Public Forum (e.g., parks, most sidewalks)?
    • 1) Must be content-neutral—i.e., time, place, manner
    • 2) Must serve important govt interest and leave open adequate alternative places for speech
    • 3) Can't regulate subject matter or viewpoints, unless strict scrutiny satisfied
    • 4) City officials cannot have discretion in setting amount of permit fees charged for parades and demonstrations
  28. What is a Limited Public Forum, and what regulation can be imposed on speech there?
    • 1) What is it: Places the govt could close to speech, but keep open (e.g., schools at night or on weekends)
    • 2) What rules apply: Same as Public Forums (content neutral, serve important govt purpose, adequate alternative forums available, no discretion in setting permit fees
  29. What is a Non-Public forum, and what restrictions can be imposed on speech there?
    • 1) Government properties that the gov't constitutionally can and does close-off to speech. Examples include— |
    • • Military bases
    • • Areas outside Prisons and Jails
    • • Advertising space on city buses or subways
    • • Sidewalks outside of post offices
    • • Airports (can't prohibit distribution of literature, but can prohibit collection of money) |
    • 2) Government can regulate speech in a non-public forum so long as the regulation is viewpoint neutral and is "reasonable" (i.e., satisfies rational basis review)
  30. Is there a First Amendment right to free speech on private property?
    No. Private property includes places such as shopping centers.
  31. Laws that prohibit or punish group membership (i.e., free association) must meet . . .
    • Strict Scrutiny|
    • To satisfy strict scrutiny (1) the law must be necessary to achieve a compelling government interest, and (2) the law uses the least restrictive means of achieving that compelling interest
  32. To constitutionally punish membership in a group, what must be shown?
    • 1) ∆ member is actively affiliated with the group
    • 2) the group is engaged in illegal activities
    • 3) ∆ has knowledge of the group's illegal activities
    • 4) ∆ has the specific intent of furthering those illegal activities or objectives
  33. Laws that require disclosure of membership in a particular group must satisfy what level of scrutiny?
    Strict scrutiny IF disclosure would "chill" association with the group
  34. Does the Freedom of Association protect a right to discriminate?
    • No, unless the the discrimination is based on— |
    • • "intimate association" (e.g., private dinner party), OR
    • • activities integral to the expressive activities of the group (e.g., KKK, boyscouts)
  35. Free (Religious) Exercise Clause
    • • Can't be used to challenge a neutral law of general applicability (e.g., can't overturn ban on use of peyote)
    • • Protects the benefits (entitlements) of individuals who quit their jobs for religious reasons
  36. Violations of the Establishment (of Religion) Clause is the one time a π has standing to sue solely as a "Citizen," or as a "Taxpayer." In order for government action to withstand a challenge based on the Establishment Clause, what must be shown? (3 things)
    • S: there is a Secular purpose for the law
    • E: the primary Effect of the law neither advances nor inhibits religion
    • X: no eXcessive government entanglement with religion (e.g., balance Christian images with Jewish, Muslim, etc.)
Card Set
ConLaw 8
Constitutional Law 8 - The First Amendment