First Amendment - con law

Establishment clause when Government discriminates among religions

"compelling government test" applied (rather than Lemon) There must be a compelling government interest to allow for discriminating among different religious groups

Privacy and 1st amendment

A state may NOT create liability for the truthful reporting of information that was legally obtained from government records Media may NOT be held liable for broadcasting a tape of an illegally receipted and recorded call so long as media did not participate in illegality AND involves a matter of public importance Government may restrict its own dissemination of information to protect privacy. Only time public has 1st amendment right to attend government proceedings and have access to government papers is for Criminal trials and criminal pre trial proceedings. Speech by public employees on the job in performance of duty is NOT protected by 1st amendment Other government restrictions based on content of speech (not on above list) must meet strict scrutiny

Commercial speech

Advertising for illegal activity - NOT protected (government can prohibit it) False and deceptive ads - NOT protected (government can prohibit it) True commercial speech that inherently risks deception can also be prohibited (professionals using a trade name, in-person attorney solicitation of clients) All other commercial speech can be regulated only if intermediate scrutiny is met - government regulation of commercial speech must be substantially related to important government interest BUT does not need to be the best means

Free exercise clause

Applies when the government (or its laws) burdens one person due to their religion Will NOT invalidate a neutral law of general applicability (even if burdens a person due to their religion - so long as this was not the intent of the law) E.g., law against consuming peyote - constitutional because facially neutral AND not motivated to attack a person's religion A law that facially discriminates against a person due to their religion must meet strict scrutiny (necessary to achieve a compelling government interest- very rare)

Contribution limits in election campaigns

Apply intermediate scrutiny to these issues Contribution limits in ELECTION CAMPAINGS are allowed (avoid appearance of corruption) BUT expenditure limits in campaigns are not allowed Can NOT limit the amount individuals (etc) can contribute to political committees or other organizations - free speech AND freedom of association problem Note - government can not limit the amount a person spends to get a candidate elected - as long as the expenditures are INDEPENDENT of the candidate AND are not disguised contributions. (e.g., PACs)

Oaths required of government employees

Can require an oath to uphold the Constitution AND to oppose the overthrow of the government Can NOT require respect or saluting the flag because might refuse to do so for religious reasons

Establishment clause

Comes up when government appears to be getting too involved in a certain religion (promoting it, establishing it as US religion, etc) Test (SEE) Secular purpose AND (primary) Effect is neither to advance nor inhibit religion AND Excessive government entanglement with religion is impermissible E.g., courthouse nativity scene endorses Christianity is unconstitutional BUT if put a menorah too then it is ok

Freedom of association and 'right' to discriminate

Freedom of association does NOT protect the right to discriminate EXCEPTIONS - intimate association (small dinner party), OR where discrimination is integral to expressive activities of the group

Content-based regulations of speech

Generally must meet strict scrutiny Content based regulations of speech include - Subject matter restriction (can not talk about certain topics - all views on the subject are banned) AND Viewpoint restriction - law only applies to certain ideologies note: State may NOT prohibit the sale or rental of violent video games to minors. Court refused to add violence as an additional area of unprotected speech

Content-neutral laws that burden speech

Generally only need to meet intermediate scrutiny "Time, place and manner" regulations- constitutional if Content-neutral Serve an important government purpose AND leaves open adequate alternative places for communication note: if a time, place and manner regulation is only enforced against certain groups, a conviction based on it is less likely to be upheld because it no longer seems content neutral/may have an equal protection clause violation problem

Profane and indecent speech

Generally protected by the 1st amendment (swear words, etc) EXCEPTION - FREE, over the air, broadcast media (TV, radio) because it is uniquely intrusive into the home (not cable though) EXCEPTION - in school because responsible to teach civilized discourse

Government licenses for speech

Government can require this ONLY If there is an important reason for licensing AND Clear criteria leaving almost no discretion to the licensing authority AND Procedural safeguards (prompt determination of requirements for licenses, judicial review of denials)

Government benefits and free exercise clause

Government may not deny benefits to individuals who quit their jobs for religious reasons

Incitement of illegal activity

Government may punish speech IF there is a substantial likelihood of imminent illegal activity AND the speech is directed at causing this imminent illegality

Symbolic speech

Government may regulate CONDUCT that communicates something symbolically IF Government has an important interests that is UNRELATED to suppression of a message AND Impact on communication is no greater than necessary to achieve the government's goal Flag burning = protected speech Burning cross = protected speech UNLESS done to threaten or intimidate Draft card burning - not protected speech (1) important interest unrelated to suppression = National emergency means government needs to see these cards so can not burn AND (2) Impact on communication is no greater than necessary to achieve that - yes because only way to keep the records is not to burn them Nude dancing - NOT protected

Limited public forums

Government properties that are limited to certain groups or discussion of certain subjects (e.g., civil auditorium for political debate - must invite all candidates) Government can constitutionally regulate speech in these forums so long as the regulation is reasonable AND viewpoint neutral

Non-public forum

Government properties that government constitutionally can and does close off to speech (Courts, military base, area outside prison, schools, sidewalk OUTSIDE POST OFFICE, signs on public property) Same test is applied to a government's commercial ventures (e.g., billboards owned by town, city bus advertisements) Apply same test as limited public forum (rational basis test PLUS viewpoint neutral) Public law school that officially recognized and funded school groups from activity fees could require the groups accept all students regardless of beliefs because it is officially viewpoint neutral, reasonably related to school purposes like encouraging tolerance Airports - can prohibit requests for money but can not prevent distribution of literature

Designated public forum

Government properties that government could close off to speech but voluntarily keeps them open (e.g., public school facilities at night) Apply same rules as public forums Can not allow use of these spaces for some subjects of speech and not for others

Public forums and speech

Government properties that the government is REQUIRED to make available for speech (parks, sidewalks UNLESS in front of post offices OR actually on a buildings steps/front door) If non-neutral speech regulation - strict scrutiny applies If neutral regulation - apply the time, place, manner test note: The restriction does NOT need to be the least restrictive means Permits (and fees) required to demonstrate are unconstitutional if city officials have pure discretion is setting the fee

Establishment and public schools

Government sponsored religious activity in public schools is unconstitutional. BUT religious student and community groups must have the same access to religious facilities as non-religious groups School prayer, even if voluntary, is not allowed, not even a moment of silent prayer is allowed Government can assist parochial schools so long as it is NOT used for religious instruction (there must be adequate protections in place to ensure avoiding entanglement - e.g., secular purpose, public school teachers, use the public school's books/equipment) Government may provide parents vouchers which they use for parochial schools (only indirect relationship - parents choose where to use them)

If public employee is fired for speech related conduct (and no tenure procedural due process at issue)

IF THE SPEECH INVOLVED A MATTER OF PUBLIC CONCERN (broadly defined) - balance employee's rights as a citizen to speak out on a matter of public concern vs. government's interest as an employer to encourage efficient employees (not distracted by this speech) This employee is entitled to a hearing to determine this issue

Unprotected/less protected speech includes

Incitement of illegal activity Obscenity and sexually oriented speech

Anonymous speech

Is protected speech - even though the speaker is not identified EXCEPTION - State's interest in promoting transparency and accountability in elections is enough to Justify public disclosure of the names and addresses of persons who sign ballot petitions

Overbreadth

Law unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated - Some of the speech is properly regulated but go too far Law intended to prohibit nude dancing but then also impacted plays, art, etc so overbroad

Freedom of Association

Laws that prohibit or punish group membership must meet STRICT scrutiny Must prove the person is Actively affiliated with the group AND has knowledge of the group's illegal activities AND has specific intent of furthering those illegal activities or objectives

Disclosure of group membership

Laws that requires disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny

Schools and punishment of students

No 8th amendment violation to paddle a student because it is not considered cruel and unusual punishment Corporal punishment may involve a liberty interest - but there is no requirement for pre-punishment hearing (possibility of common law battery claim is procedural protection instead) Doctrine of parens patriae - allows the state to step into the shoes of a parent BUT does NOT allow the state to invoke any punishment it wishes to

Private property

No first amendment right of access to private property for speech purposes (e.g., shopping centers)

Defamation

Plaintiff is public official/running for public office - plaintiff must prove with clear and convincing evidence falsity AND actual malice (defendant knew statement was false OR acted in reckless disregard of truth) Plaintiff is 'public figure' (in limelight) - plaintiff must prove with clear and convincing evidence the statement's falsity and defendant's malice Plaintiff is a private figure but matter is of public concern - Compensatory damages if can prove falsity AND negligence by defendant (not as careful as a reasonable speaker would have been) Punitive damages only if shows actual malice Liability for intentional infliction of emotional distress for defamatory speech must meet the defamation standard AND can NOT exist for speech otherwise protected by 1st amendment

General rules for speech

Regulation seeking to forbid communication of specific ideas (content regulation) is LESS likely to be upheld than regulation of conduct incidental to speech

Prior restraints

Stopping speech before it occurs Court orders suppressing speech must meet strict scrutiny Gag orders on the press to prevent prejudicial pretrial publicity - only allowed in exceedingly narrow circumstances where closure is necessary to achieve an overriding government interest AND closure order is narrowly tailored to achieving this (criminal standard and probably applicable to civil too)

Freedom of the press and taxes

Tax applicable ONLY to the press and broadcasting companies will not be upheld unless it meets strict scrutiny (compelling justification - mere need for revenue is NOT enough)

Obscenity and sexually oriented speech

Test for obscenity - Material appeals to prurient interest of 'shameful or morbid' interest in sex AND Material is patently offensive under the law prohibiting obscenity AND As a whole, the material lacks serious redeeming artistic, literary, political or scientific value based on a NATIONAL standard The first 2 elements are based on a community standard (can be state or local) and the last element is based on a OBJECTIVE national standard note: third element requires "serious" artistic value, such as a showing the film has proven artistic merit. It must be MORE than "some" artistic value to satisfy this.

When courts hear a free exercise clause claim - they can only inquire into

The SINCERITY of the plaintiff's beliefs NOT if the beliefs or religion are true, well established or why they have those beliefs

Religion and speech

The government can not discriminate against religious speech or among religions unless strict scrutiny is met

Impact of obscenity rules

The government may use zoning ordinances to regulate the number or location of adult bookstores and movie theaters (important government interest of removing secondary impacts of those establishments such as lowering property values AND does not prohibit all such entertainment in the community) Child pornography may be completely banned, even if not obscene (To be child pornography - children must be used in production of the material) The government may not punish private possession of obscene materials but the government can punish private possession of child pornography The government may seize the assets of businesses convicted of violating obscenity laws E.g., Even though only 7 items were obscene - the government could seize 9 million dollars from the business

Fighting words

are not protected speech - but statutes attempting to punish the use of such words are often found to be void for vagueness Fighting words - tending to incite violence But very difficult to draft a valid law that is not vague

If court order/gag order put in place - the parties' whose speech was restricted must

comply with these laws until they are vacated or overturned If a person violates a court order, they can not later challenge it

Speech by the government

government speech AND government funding of speech will be upheld so long as it is rationally related to a legitimate state interest (rational basis test) Does not require the government to aid private speech Does not prevent the government from expressing its own views (Including funding private speech so long as no establishment clause issue) Government can remain silent too

Vagueness

law is unconstitutionally vague if a reasonable person can not tell what speech is prohibited and what is allowed Prohibition of books 'tending to harm the morals of youth' - too vague