414 test 1

Texas v. Johnson

A 1989 case in which the Supreme Court struck down a law banning the burning of the American flag on the grounds that such action was symbolic speech protected by the First Amendment.

Overbreadth

A First Amendment doctrine by which courts determine that legislation is unconstitutional because it restricts more expression than necessary.

Strict Scrutiny

A Supreme Court test to see if a law denies equal protection because it does not serve a compelling state interest and is not narrowly tailored to achieve that goal

Marketplace of Ideas Theory

Belief that truth will emerge out of the competition of ideas in free, public discourse.

Strict scrutiny basics

Burden of proof is on the government to show: Compelling interest is present, Restriction is necessary to advance the compelling interest, Means used to achieve compelling interest is least restrictive of expression, i.e. no non-speech alternatives will work or no alternatives that restrict less speech will work, Means used to achieve the objective is NOT underinclusive or overinclusive, Ample alternative forums exist for communicating the message to its intended audience (Applied to TPM regulations)

Intermediate Scrutiny basics

Burden of proof is on the government to show: Regulation actually furthers an important govt interest, Regulation is content neutral, any incidental restriction on free speech does not burden substantially more speech than is necessary to advance govt.'s interest, i.e. the regulation is not overinclusive.

open public forum first amendment

Historically devoted to public assembly & debate. Signifies our willingness to tolerate dissent, discomfort & even instability Examples: Parks, sidewalks, court house steps, city squares, public streets, Govt.'s ability to restrict speech is sharply curtailed, Speech regs are constitutional if: Valid TPM restrictions, includes permits Content-based regulations must pass strict scrutiny

nonpublic forum

Intent & nature of nonpublic forum is incompatible w/ free speech activity. Nonpublic forums are not open or designated for public discussion. Examples: Courthouses, govt. offices, public schools, morgues, public hospitals, military bases, airports, polling places. Dedicated and used for business, education and other dedicated govt. purposes. Reasonable in light of purpose of forum & No viewpoint discrimination But more freedom to exclude certain perspectives when primary function is administrative (not to facilitate discussion) or content selectivity is essential to purpose, e.g. library

Designated limited public forum

Intentionally opened by govt. for speech of a particular type/topic and/or to a particular group of speakers. DLPF can't be created by inaction. Examples: Ad space on buses, benches & public transit terminals, spaces open to student groups or members of public for discussion of specific issues, student media. Functions as open PF for groups & topics included. But functions as nonpublic forum for groups & topics excluded. Reasonable in light of purpose of forum & surrounding circumstances, Not an effort to suppress viewpoint, TPM & SS can be applied to speakers/topics included.

designated unlimited public forum

Intentionally opened by govt. for unlimited public expression, i.e. Public at large can speak freely. DUPF can't be created by inaction. Examples: University mall, free speech zones, open townhall meeting (not many like this) Once open—govt. is not obligated to keep it open. But as long as forum is open, it receives same protections as a historically open public forum.Speech regs are constitutional if: Valid TPM restrictions, includes permits Content-based regulations must pass strict scrutiny

Questions for content-based

Is govt. regulating speech b/c it disagrees with message speech conveys or favors some ideas over others? Are govt's justifications for regulating speech related to content of speech? Does govt need to examine what is actually being communicated to determine whether a violation of law has occurred? Does govt need to examine who is actually communicating the message to determine whether a violation of law has occurred?

Intermediate Scrutiny Test

The middle level of scrutiny the courts use when determining whether unequal treatment is justified by the effect of a law; this is the standard used for gender-based discrimination cases and for many cases based on sexual orientation.

Rational Basis Review

The standard used by the courts to determine the constitutionality of a law or government action if neither strict scrutiny nor intermediate scrutiny applies.

intermediate scrutiny must prove

action furthers important interest, content/viewpoint neutral, narrowly tailored, alternative forums (for tpm cases)

symbolic speech

an act that conveys a political message

strict scrutiny must prove

compelling interest, furthers the interest, does the government need to restrict this much, does the restriction need to encompass more speech (under-inclusive)

Compelled Speech

expression that government requires a person or group to utter or to carry in its medium

prior restraint

government censorship of information before it is published or broadcast

clear and present danger test

law should not punish speech unless there was a clear and present danger of producing harmful actions

Content Based

laws enacted because of the message, the subject matter or the ideas expressed in the regulated speech

permit requirements

must be objective

Open Public Forum

open to everyone; government must accommodate all voices

Rational Basis basics

regulation presumed constitutional if not rationally related to govt interest, plaintiff has burden of proving regulation does not serve any conceivable govt. objective, Court largely defers to govt.'s judgment and does not seriously examine whether other ways of achieving the objective would be more effective.

content neutral

the government may not regulate assemblies on the basis on what might be said

Expressive Association

the right to associate for the purpose of engaging in those activities protected by the First Amendment: speech, assembly, petition for the redress of grievances, and the exercise of religion.

pure speech

the verbal expression of thought and opinion before an audience that has chosen to listen

Intermediate scrutiny due to

time place manner, restricted content used to send a message, imposed permit requirement for speech activity in a public forum

time, place, and manner test

to be constitutional, restrictions on free speech can't be based on the content of the speech, must serve a significant government interest, and leave open other channels of expression

Content-neutral questions

underlying purpose or motivation for: enacting law, policy, regulation; making decision; taking action; or adopting a custom anguage of statute or policy Activities law or legal action actually regulates Amount of discretion statute/policy gives to govt. official Facts surrounding arrest—How it was:o Applied, Enforced, How evenhandedly law was/can be applied to all speakers.