Constitutional Law #6

First Amendment - The Clear and Present Danger Test

The 1st Amendment even protects subversive speech advocating for the use of illegal force or conduct except where is intended to produce imminent lawless violent actions and under circumstances that is likely to incite or produce such actions.

First Amendment - Obscenity - Complete Ban

A complete ban on obscene sexually explicit content adult bookstore or theaters is an overly broad and unlawful content base regulation of erratic speech. But zoning laws restricting a concentration of such establishment by prohibiting them from one another or one thousand free from a church, school, or residential zone is valid provided alternative avenues of communications remain open. This does not violate the 1st Amendment because the government has a substantial interest in regulating the adverse effect of adult establishments rather than regulating the speech itself.

First Amendment - Freedom of Speech - Nudity on Drive in Movie Screens

A law banning nudity on drive-in movie screens from the street was struck down because it failed the strict scrutiny test. The state interest of preventing accidents on the street was not sufficiently compelling but prohibiting all driving screens from visibility from the street will be upheld as a content neutral regulation of speech.

First Amendment - Prior Restrain of Speech

A prior restraint of speech is a law is a regulation or court order that suppress speech on the basis of its content in advance of its actual expression.

First Amendment - Content-Neutral Restrictions in Speech - Public Schools

A school may limit access to rooms to school related activities but cannot preclude a religious group from meeting.

First Amendment - Freedom of Speech - Flag desecration

A state law prohibits a flag desecration is a content base restriction. Burning a flag is a symbolic expression of speech. The state interest on: 1) preserving the flag status as a national symbol; and 2) Concern for its communicative impact are not considered sufficiently compelling.

First Amendment - Freedom of Speech - State law prohibiting the display or distribution of campaign literature or any attempt of solicited votes

It was upheld because the court found a compelling state interest to protect voters from fraud or intimidation on voting day.

First Amendment - Prior Restrain of Speech - Censorship

Censorship in advance of publication is constitutionally tolerated only upon showing that such expression will immediately and irreparably create public injury. Applications for prior restrains typically fail and the moving party must wait for the other party to exercise its freedom of expression before suing civilly for money damages.

First Amendment - Content Neutral Restrictions in Speech #2

Content neutral restrictions restrict speech regardless of its message. A content neutral regulation is one coincidently burdening speech without any reference to its content.

First Amendment - Freedom of Speech - Contribution to Political Candidates

Corporate contribution to political candidates can be limited and prohibited because of the danger of corruption but spending by unions and corporations cannot longer be limited or prohibited because spending money on candidate's political issues is speech. However, there cannot be direct coordination with the candidate and the money must be paid to political action's committees (PACs)

First Amendment - Prior Restrain of Speech - Defamatory Speech

Courts generally will not enjoin defamatory speech but appellate courts have permitted injunction on defamatory speech but only after a full trial has decided is defamation.

First Amendment - Freedom of Speech - Content Base Regulation

Government regulation is content base when the law applies to a particular speech because of the topic discussed or the idea of topic expressed. Even where the regulation does not address content-specific it will be considered content-base if it cannot be justified without reference to the content of the regulated speech and even if the government has a venial motive in content-neutral justification to the regulation.

First Amendment - Fighting Words - Why fighting words are not given 1st Amendment protection?

Fighting words are not given 1st Amendment protection because the right to use this type of language is outweigh by its present danger of violent conduct.

First Amendment - Fighting Words

Fighting words are words that made the listener immediately to punish the speaker. It is a provocativ personal insult directed to one person that would provoke the average person to commit an immediate unthinking breach of the peace.

First Amendment - X rated Business License

If an ordinance requires the X-rated business to first acquire a license, then in order to satisfy the 1st Amendment a denial of a license requires a prompt: 1) Judicial review; and 2) Judicial determination.

First Amendment - Untenured Teacher

If an untenured teacher is discharged for several reasons and one of which is protected by the 1st Amendment, but the other reasons were not protected, then the employee has to show: 1) His conduct or speech was constitutionally protected; and 2) His conduct protected by the 1st Amendment was a substantial or motivating factor in the employer's decision. Once one or two are established, then the burden shift to the public employer to probe by the preponderance of the evidence that it would be reached to the same result without considering the freedom of speech or conduct protected by the 1st Amendment.

First Amendment - Content-Neutral Restrictions in Speech - Designated Public Forum

If the government opens a non-public forum to an expression activity, it is considered a designated public forum, and the same limitations on regulation of speech for a public forum apply. The government may limit access to a designated public forum to certain classes of speaker or types of speech but it may not discriminate on viewpoint neutral.

First Amendment - Prisoner Speech - no violation of the 1st Amendment

If the prisoner violated the prison rules, the prisoner visits could be restricted only to his attorney and members of the clergy. Since the restriction was logical related to its penalogical interest, it was upheld.

First Amendment - Obscenity - Obscene Material

In determining whether a material is obscene, the manner in which could be presented can be decisive. The court held that when material is advertised with emphasis on sexual provocation, will be enough to tip the skills on the issue of obscenity.

First Amendment - Government Employee Speech - Court considerations when deciding if a government employee was disciplined for exercising his 1st Amendment Right

In determining whether a public employee was disciplined, demoted, fired, or denied a promotion in retaliation for exercising the 1st Amendment Rights, the court looks at: 1) Whether the employee speech was a motivating factor in the adverse employment action; 2) Whether the speech involved the matter of public concern and the speech was made outside of the employee's employment duties; 3) If the answer to 1 or 2 are yes, then the court applies a balancing test weighing the employee's right as citizen to comment publicly on matters of public interest against the state's need for efficiency, discipline or confidentiality in the workplace.

First Amendment - Content Neutral Restrictions in Speech in a Public Forum

It is subject to strict scrutiny and will be upheld if: 1) The restriction must be justified by a significant governmental interest unrelated to the content of the expression. 2) Must leave open ample multiple channels of communication; and 3) The regulation must be narrowly drawn to further the content neutral goal but not need the less restict means of doing so.

First Amendment - Obscenity - Constitutional Protection

Material is obscene and not constitutionally protected if 1) Lack scientific, literary, artistic, or political value. 2) Patently offensive portrayal of sex 3) Purient Interest Appeal, in which the material tends to excite lewd, lascivious and lustful thoughts in a person of average sensitivity; here, the whole material must be weighed by the court.

First Amendment - Freedom of Speech - Nude Sun Meeting

Mere conduct that lacks a particular message such as nude sun meeting is not expressive activity and thus not entitled to free speech protection. Nude Dancing, however, is a form of expression that has a minimum protection under the first amendment. When nudity takes on a lure nature, then it sheds its first amendment protection.

First Amendment - Fighting Words - Offensive or Vulgar Speech

Merely offensive or vulgar speech cannot be prohibited. Statutes prohibiting fighting words must be narrowly drawn, limited to violent provoking words but cannot be overly broad and prohibiting vulgar and annoying speech which has first amendment protection.

First Amendment - Content Neutral Restrictions in Speech #1

Most government regulations are content neutral and are directed at the content in which the speech is made, that is, restrictions on the time, place or manner of sppech.

First Amendment - Content-Neutral Restrictions in Speech - Non-Public Forum

Non-Public Forum such as school, post office, state hospital, court house or libraries may be placed off limits to all forms of public expressions.

First Amendment - Private Possession of Obscene Material

Private Possession of Obscene Material cannot be prohibited.

First Amendment - Freedom of Speech - Public Parades

Public Parades are private events. The government cannot dictates who can or cannot march or what messages can be displaced. If this is public parade sponsored by the government, then all view points would have to be allowed because the free speech clause prohibits the government to take sides favoring one view of point over the other.

First Amendment - Speech in Schools - Prohibitions by School Officials

School Officials can prohibit: 1) Lure speech; 2) Speech advocating for illegal activities; and 3) Speech that is part of the school curriculum, that is, schools can exercise auditorium control over school sponsors, publications and article production.

First Amendment - Obscenity

Sexually explicit pictures and obscenity are not sinonymous. Obscenity is a hardcore pornography and does not have 1st Amendment protection.

First Amendment - Freedom of Speech - Solicitation by Judicial Candidates

Statutes prohibiting solicitation of campaign funds by judicial candidates had been upheld, that is, survived strict scrutiny. Unlike other elected officials, judges should not be responsible to their financial supporters.

First Amendment - Speech in Schools - Students

Students receive less protection under the First Amendment. Shool officials cannot prohibit public political speech unless substantially interfere with appropriate discipline and the operation of the school.

First Amendment - Freedom of Speech - How the Constitution distinguish speech

The Constitution distinguish speech on the basis of its content. Content base speech is subject to strict scrutiny, that is the law must be narrowly drawn necessary to serve a compelling state interest and with the less restrictive means to carry out that interest.

What speech is not protected by the first amendment?

The First Amendment does not protect speech that is: 1) Defamatory; 2) Fraudulent; 3) Obscene; 4) Fighting words; 5) Riot causing speech; 6) Speech integral to Criminal Conduct.

First Amendment - The Clear and Present Danger test - National Security

The First Amendment right can be subordinate to the compelling interest of national security. When espionage is directed by terrorism against the US, the court balances the danger against the probability of occurring in determining whether the law justifies an invasion of free speech. In those situations the danger does not have to be clear and present. Such speech can be punished even though in the preparatory stage. Advocating present act of terrorism can be prohibited and punished if that speech is likely to incite and produce future lawless actions.

First Amendment - Content-Neutral Restrictions in Speech - Trespassing

The citizen's right of free speech does not allow trespassing onto private property to protest. Shopping malls are private property. The owner can freely prohibit or regulate demonstration at a mall.

First Amendment - Obscenity - Test

The court has established a 3 prong test: 1. The material must present and portrait sex in an apparently offensive way. 2. The material when taking as whole by a person of average sensitivity and applying the community standard appeal to the prurient interest of its intended audience; it incite lure, licentious and lustful thoughts; and 3. The material when taken as a whole utterly serious literary, artistic, political or scientific value. Here, the value of the material does not vary from town to town and the jury will be instructed on whether a nationwide of an objectively reasonable person of any US community would find value in the material.

First Amendment - Prior Restrain of Speech Defamatory Speech - Enjoin

The court has permitted the following speech to be enjoined: 1. Copyrights infringement. Requires a clear show of lie and that the public interest will be harmed by the injunction. 2. Obscene Films; 3. Fraudulent or false commercial speech which does not enjoy First Amendment Protection; and 4. Attorney's out of court statements, especially on the eve of trial which could pose a serious threat to a fair trial.

First Amendment - Freedom of Speech

The first amendment regulates restrictions of speech through state action. Where a private actor takes a government function, the constitution applies to private actors.

First Amendment - Content-Neutral Restrictions in Speech - Requirements for a permit in a public forum

The government can require a permit to speak in a public forum if: 1) there is a significant reason; 2) The permitting authority has no discretion in awarding permits; 3) There are clear criteria for awarding permits; 4) Applicants can quickly review of permit denials.

First Amendment - Public Employee - Discipline

The government can restrict and discipline its employees for using disrupted, vulgar, or rude speech to fellow employees or member of the public. The government as an employer has a significant interest in officially and effectively dealing with its employees.

First Amendment - Private Child Pornography

The state can prohibit private child pornography because the state compelling interest is not to protect the viewer but to protect minors to detroying the market for sexually exploited children.

First Amendment - Obscenity - Zoning Laws

These zoning laws satisfy the commercial speech test because they advance substantial government interest. They leave open alternative avenues of communication and the statutes are narrowly drawn.

First Amendment - Commercial Speech

Today, if an add is false, deceptive or advertises unlawful activity, then it has not first Amendment Protection but advertisements of lawful activity that are not false or misleading have some 1st Amendment protection.

First Amendment - Content Neutral Restrictions in Speech - Traditional Forums

Traditional forums such as streets, sidewalks, or parks cannot be totally put off limit to demonstration absent a significant reason but the state can reasonable and uniformily regulate the time, manner or direction of such expression.

First Amendment - Commercial Speech - Truthful Commercial Speech

Truthful Commercial Speech may be subjected to content regulation that would not be tolerated in other forms of speech.

First Amendment - Commercial Speech - Truthful Commercial Speech - Scrutiny Test

Under the court's intermediate level of scrutiny review, the following test is applied: 1) The government must have a substantial interest in restricting truthful commercial speech. 2) The advertisement must be truthful and concern a lawful product or service. 3) The restriction on commercial speech must materially advance the state's substantial test. That is, there is a reasonable fit between the state's goal and the restriction use to achieve that goal; and 4)The regulation must be narrowly drawn and it cannot be more extensive that necessary to achieve a substantial interest.

First Amendment - Prisoner Speech - Test

When evaluating free speech and association claims on prisoners, courts uses a very deferential rational basis test. Prison's Regulations Prevail if they are rationally related to a legitimate penalogical interest.

First Amendment - Content-Neutral Restrictions in Speech - Government Speech

When the government speaks is not barred by the free speech clause from determining what is being said, as a general matter. Government speech is entitled to promote a program, spouse a policy or take a position. It cannot be forced to display an image, sculpture, or painting on private property because what is displayed conveys a thought and speaks for the government.