First Amendment Rights

To be valid, the government must prove the prior restrain on speech is:

1. narrowly drawn, reasonable 2. injunction promptly sought and 3. prompt and final determination of the validity of the restraint.

If the Plaintiff is a public figure who is running for public office, the Plaintiff can recover for DEFAMATION if:

1. the Plaintiff can prove the prima facia elements of defamation (defamatory statement made of and concerning the Plaintiff published to a third party) + 2. the speech was false AND 3. they were made with actual malice (knowledge they were false or reckless disregard as to their truth or falsity)

Speech is obscene or sexually oriented and therefore unprotected if: (3 part test)

1. the material appeals to purient interests compared to (community - local or statewide - standards) 2. The material is patently offensive under the law prohibiting obscenity compared to (community -local or statewide - standards) 3. Taken as a whole, the material lacks serious or redeeming artistic, literary, political or scientific VALUE compared to the (national standard)

If the law passes the Lemon Test, it does not violate the establishment clause. The Lemon Test is:

1. there must be a SECULAR PURPOSE for the law 2. the EFFECT must be to neither advance nor inhibit religion 3. there must NOT be EXCESSIVE ENTANGLEMENT with religion.

If the regulation of speech IS subject matter and viewpoint neutral, the regulations must be a

TIME PLACE MANNER regulation that serves an important government purpose AND leaves open alternative places for communication.

In order to punish membership in a group, it must be proven that the person:

1. Actively affiliated with the group 2. Knowing of its illegal activities and 3. with the specific intent to further those illegal activities

If the Plaintiff is a private figure and the matter is of PUBLIC CONCERN a Plaintiff will recover if he can show:

1. The statement was false and 2. The statement was said with at least negligence To get punitive damages, the Plaintiff must prove that the statement was made with actual malice.

What is a prior restraint on speech? Level of scrutiny?

A court order preventing speech before it occurs rather than just punish it afterwards. Rarely allowed because a prior restraint of speech must meet STRICT SCRUTINY. Violates 1st amendment rights of freedom of speech and the press. Invalid: prohibiting publications of the pentagon papers because it might have an effect on the Vietnam War. Prohibiting grand jury witness from ever disclosing testimony was held invalid. VALID: prohibiting publishing troop movements in times of war. Enforcing contractual prepublication review of CIA agent's writings. If it is the only sure way of preserving a fair trial for the defendant.

Overbreadth

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

Vagueness

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed. Violates the Due Process Clause of the 14th amendment (state law) and Due Process Clause of the 5th Amendment (federal law). If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the Due Process Clause. This principle is applied somewhat strictly when First Amendment activity is involved in order to avoid the chilling effect a vague law might have on speech.

Laws regulating elections might impact the First Amendment freedoms of speech, assembly and association. The court uses a

Balancing test. Strict scrutiny applied if restriction on 1st amendment rights is severe, but upheld if the restriction is reasonable and nondiscriminatory.

Religious student organizations can/cannot be discriminated against.

CANNOT be discriminated against because of religion

Limited public forum

Government property that are limited to certain groups or dedicated to the discussion of only some subjects. Examples: sides of buses.

Silent prayers even if voluntary is ... Silent reflection is ...

Not ok Ok

Fighting Word LAWS

Fighting word laws are unconstitutionally vague and overbroad. Fighting words are those that are directed at someone, meant to provoke a reaction. Fighting words and profanity are not speech that is protected under the 1st amendment.

Content neutral regulation of speech

Government may regulate the conduct associated with speech if the regulation: (i) is content neutral, (ii) is narrowly tailored to serve an important government interest, and (iii) leaves open alternative channels of communication. However, it is presumptively unconstitutional for government to place burdens on speech because of its content. "Because the statute regulates the content of the speech rather than the conduct, the state would need to establish a compelling interest behind the legislation for the law to be valid. This puts the burden on the state to prove the need for the legislation." The strongest constitutional defense would be based on free expression and assembly grounds.

Public Forums

Government properties that the government is constitutionally required to make available for speech. Examples: Parks, sidewalks

Speech by government employees on the job in the performance of their duties .... is/is not protected?

IS NOT protected speech under the First Amendment

Overbroad Regulations

If a regulation prohibits a substantial amount of protected speech when judged in relation to its plainly legitimate sweep, it is facially invalid and cannot be enforced against anyone. If a regulation is not too overbroad, the Court allows it to be enforced against people whose speech or speech activities are not protected by the Constitution.

Commercial Speech is generally protected speech unless:

It is untrue or advocates illegal activities. Advertising for illegal activity and false and deceptive ads are not protected by the First Amendment.

Speech that is unprotected or less protected by the First Amendment

Incitement of Illegal activity Obscenity and sexually-oriented speech

True Commercial speech can still be prohibited if the speech:

Inherently RISKS DECEPTION: 1. professionals cannot advertising or practicing under a trade name 2. lawyers cannot solicit clients in person for profit (but accountants are not prohibited from in person solicitation)

Content neutral restrictions on speech get what level of scrutiny?

Intermediate scrutiny

A statute that limits election campaign contributions to a political candidate is subject to what type of scrutiny?

Intermediate. But laws may not limit the amount of money that may be spent to support or oppose a ballot referendum.

The government may limit speech as long as ...

It is done with a reasonable time, place, and manner limitation that is not content based.

Regulation of true, nondeceptive Commercial speech must be:

NARROWLY tailored to serve a SUBSTANTIAL government interest directly advanced by the regulation. Does NOT need to be the least restrictive means. Intermediate/strict scrutiny HYBRID.

Is there a first amendment right to use Private Property for speech purposes?

NO

If there is no sect preference for a rule, does the rule violate the Establishment clause?

No. Same analysis as the Lemon test. Under the Establishment clause, if there is no sect preference, government action will be upheld if it passes the Lemon test: 1. the law serves a secular purpose, 2. it's primary effect neither prohibits or encourages religion and 3. it does not excessively entangle the government with religion. Here, there is no sect preference under the school board's corporal punishment rule, the rule's purpose is to maintain order in the classroom (the fact that one of the sect's tenants coincides with the rule does not change anything), it's main purpose does not advance or inhibit religion and there is no excessive entanglement.

Government restrictions of speech that is not content neutral or viewpoint neutral must meet what level of scrutiny?

Strict scrutiny

Content based restrictions on speech get what level of scrutiny? Examples of content based restrictions

Strict scrutiny Examples: Subject matter restrictions Viewpoint restrictions of ideology

Laws that require disclosure of group membership, must meet what level of scrutiny?

Strict scrutiny IF if the disclosure would chill membership

Laws that prohibit or punish group membership (freedom of association) must meet what level of scrutiny?

Strict scrutiny.

Regulation of core political speech (electioneering, distributing campaign pamphlets) get what type of scrutiny?

Strict scrutiny.

Symbolic speech

The government CAN regulate CONDUCT that COMMUNICATES IF 1. it has an important interest unrelated to suppression of the message AND 2. if the impact on communication is no greater than necessary to achieve the government's purpose. Examples: Constitutional protected symbolic speech - flag burning. Burning a cross is protected speech UNLESS it is done with the intent to threaten. (ok in an isolated field, not ok if in front of someone's house). Unconstitutional symbolic speech: Draft card burning. Local governments may prohibit nude dancing.

Can the government discriminate against religious speech or between religions?

The law is invalid unless is passes strict scrutiny.

Government SPONSORED religious activity in public schools is:

UNCONSTITUTIONAL

Regulations of speech on City-owned property are allowed

Viewpoint neutral and Reasonably related to a legitimate government purpose. City-owned buses and city owned billboards are not traditional public forums, but are considered commercial ventures by a city. Supreme court found that cities can limit the speech if the regulation differentiated between broad categories of speech (allow commercial speech, but not political or religious speech) in accepting advertising on buses and billboards. The regulation would be valid to limit the buses and billboard to commercial speech as long as the restriction was VIEWPOINT NEUTRAL and REASONABLY RELATED to a LEGITIMATE government interest.

Is there a constitutional right to speak anonymously?

YES. Anonymous speech is protected.

Liability for intentional infliction of emotional distress for defamatory speech must meet the defamation standards, but ...

cannot exist for speech otherwise protected by the first amendment.

Corporal punishment in school ...

doesn't violate the 8th (cruel and unusual punishment) or 14th amendment (violation of due process). The supreme court has found that paddling students in school does not constitute a violation of the 8th amendment's prohibition against cruel and usual punishment.

Profane and indecent speech is _________. Exceptions:

generally protected by the first amendment. Except for: i. broadcast media (radio, public TV) and ii. in schools

Designated public forum

government properties that the government could close to speech, but chooses to open to speech. Example: Gym that opens for debate

Nonpublic forums are...

government property that the government constitutionally can and does close to speech. Examples: outside jails, military bases, sidewalks on POST OFFICE property, airports, solicitation of money at these locations, but cannot limit distribution of pamphlets.

Freedom of the Press

is generally equivalent to a private citizen's rights to free speech. The press has a right to publish truthful information regarding a matter of public concern, laws restricting this right is subject to SS. The 1st amendment guarantees the public and press a right to attend criminal and civil trials, but this right may be outweighed by an overriding interest stated in the trial judge's findings. The right includes right to be present at voire dire and other pretrial proceedings, unless the judge makes specific findings that the closure is narrowly tailored to achieve a higher value. No right to interview prisoners or inspect prison grounds.

The government may give assistance to parochial schools, so long as . . .

it is not used in religious instruction. The government may provide parents vouchers which they use in parochial schools.

The government may limit _______ to protect privacy

its own dissemination of information

Privacy - The government cannot pass laws limiting the truthful reporting of information that was ...

lawfully obtained from the government.

The government may use zoning ordinances to regulate the __________ and _______ of adult bookstores and movie theaters

location and number. Erogenous zoning is permitted.

Child pornography may be completely banned, but children:

must appear in the material to be considered child pornography. Animations are ok or adults acting like children.

The the Plaintiff is a private figure and the matter is not of public concern, the plaintiff can recover:

presumed or punitive damages without showing actual malice.

The government may not punish private possession of obscene materials, BUT the government may punish _________.

private possession of child pornography.

Freedom of association is

protected as a fundamental right under the first amendment

City officials do not have discretion to ...

set permit fees for public demonstrations

The test used to determine if a law establishes religion in violation of the establishment clause is:

the Lemon Test

Freedom of religion - the free exercise clause prohibits . . .

the government from _____

Freedom of religion - the establishment clause prohibits...

the government from making laws that establishes religion.

Businesses who violate obscenity laws - result

the government may seize the assets of a company who is convicted of violating obscenity laws.

If the media broadcasts a tape of an illegally intercepted call, the media outlet does not have liability as long as

the media did not participate in the illegality and it involves a matter of public importance.

The government can regulate speech in a LIMITED PUBLIC FORUM as long as ....

the regulation is reasonable and viewpoint neutral

The government can regulate speech in a NONPUBLIC FORUM as long as ...

the regulation is reasonable and viewpoint neutral.

The government can regulate speech in a DESIGNATED PUBLIC FORUM if ...

the regulation must be subject matter and viewpoint neutral OR strict scrutiny must be met.

The government can regulate speech in a PUBLIC FORUM as long as ...

the regulation must be subject matter and viewpoint neutral OR strict scrutiny must be met. (narrowly tailored to achieve an important government purpose, but do not need to use the least restrictive means)

Incitement of Illegal activity is speech that the government may punish if:

there is a substantial likelihood of imminent illegal activity AND if the speech is directed to causing imminent illegality. Incitement of illegal activity is speech that is less protected under the first amendment.

Laws that prohibit a group from discriminating are constitutional UNLESS

they interfere with the intimate association or discrimination is integral to the expressive activity of the group.