Con Law I Final - Unit 3 and 4 (Free Expression and Religion))

What are categorical exceptions to the first amendment? Examples? (10) Standard of Review?

• Government targets expression as expression, but the court has recognized the expression in question as having no 1st amendment value

• Examples:

  • True threats

  • fighting words

  • incitement

  • obscenity

  • child porn

  • false advertising

  • lawyers soliciting clients in-person

  • soliciting personal injury claimant before 30 days after accident

  • advertising for illegal activity

  • placement of an illegal advertisement

• Rational Basis

What is viewpoint-specific discrimination? What is the constitutionality and what is the government’s burden?

• Government targets speech BECAUSE of the message

• Presumptively unconstitutional

• Government must rebut that presumption by satisfying strict scrutiny

What is content-neutral discrimination? Examples? Level of scrutiny?

• Suppression is incidental to regulation of something not related to the speech itself

• Like crowd controls and permits

• Intermediate scrutiny

What type of speech is Schenck v. United States about? Test?

• Context specific right to speech—some things may be protected under normal times, but in the context of war, may not be

• Apply Clear and present danger test— The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

What is Debs v. United States about? Test?

Bad tendency test - they could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, and unless the defendant had the specific intent to do so in his mind

What does Abrams v. United States say?

The First Amendment does not protect speech that is designed to undermine the United States in war by fueling sedition and disorder

What does Gitlow v. New York say? Standard?

• it’s entirely reasonable for the US congress to regulate speech threatening to overthrow government

• Standard: with incitement, government’s action presumes constitutionality; the other party bears burden of rebutting the presumption by showing government’s action is capricious

What does Whitney v. California say?

Mere membership, without speech, is enough for government to arrest and jail you for the crime of syndicalism

What did the court in Dennis v. United States hold? What test was applied?

• Given the gravity of the consequences, the Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech

• Clear and Present danger test

What does Brandenberg v. Ohio say? What is the three prong test?

• "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action."

• Three Prong test

  • Intended to produce lawless action

  • it is likely the lawless action will materialize because of this speech

  • The lawless action will likely materialize with relative immediacy

What does Chaplinsky v. New Hampshire say?

• fighting words doctrine requires: 1) uncivility; and 2) that uncivility is addressed to a specific person in their presence

• fighting words directed at a dead person does not count because it is not personal and individuated

What does Cohen v. California say?

At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the position on the immorality of the draft his jacket reflected

What does RAV v. City of St. Paul say? What standard of review?

• court applies strict scrutiny where there is content selection within a protected category, unless the restriction is done for the very reason the category exists as an exception to the 1st amendment

• narrowly drawn, content-based regulations are presumptively unconstitutional if the object of that legislation could be accomplished by banning a wider category of speech

What does Virginia v. Black say?

• categorical exception to first amendment - true threats

• if the burning of the cross is regulated because it is a true threat, then that regulation is constitutional

What is Miller v. California’s 4-part test for content-based restrictions of obscene material?

1. material must be sexually explicit

2. must be patently offensive as defined by state law

3. material must appeal to prurian (morbid) interest in sex; AND

4. taking national standards, the material lacks serious literary, artistic, political, or scientific value

What does US v. Playboy Entertainment Group say?

If content-based, the government must have the least restrictive law possible to achieve their goal

What does Ashcroft v. Free Speech Coalition say?

• Ferber - court held child porn can be criminally banned as its own categorical exception

• HOWEVER, child porn only pertains to when actual children are used in that material

What is Liquormart v. Rhode Island’s 3-step analysis for whether commercial speech is protected? What are the factors that the court considers (3) ?

Analysis:

1. Is it covered by the 1st amendment?

2. does the government have a substantial interest in limiting that advertisement?

3. is it substantial and narrowly tailored?

Factors:

1. must be advertisement for services for hire or goods for sale

2. intent in context (why is the person speaking?)

3. maintained by commercial gain / profit

What does WV Board of Education v. Barnette say? standard of review?

Government can neither suppress nor require/compel us to reiterate governmental messages (ex: cannot force kids to salute the flag)

What does United States v. O’Brien say? standard of review?

• When the government restricts non-verbal expressive conduct, the court applies intermediate scrutiny +

• test: 1) regulation of the conduct must be about the conduct and not a viewpoint; 2) must meet balancing test (government must show narrowly tailored law to meet a substantial goal)

What does Texas v. Johnson say?

flag burning is protected speech because punishing for someone for flag is content-based, since some forms of flag burning are allowed

What are the 3 categories of public forums? What restrictions are allowed?

1. Traditional public forum

   1. Ex: public park, town square, public sidewalk, trains, buses

   2. strict scrutiny for content-based bans

   3. government may only constitutionally engage in content-neutral manner of expression, eg time, place, and manner

2. Non-public forum

   1. Ex: military base

   2. must show reasonableness in the ban

   3. must have an express designation as a nonpublic forum

3. Designated public forum / limited public forum

   1. Ex: schools, rooms you can rent out in a government building, airports

   2. content-neutral restrictions allowed

      1. exception: government may restrict certain subject-matter (eg climate change) as long as that restriction meets a reasonableness standard

   3. content-based subject to strict scrutiny

What are the requirements for time-place-manner restrictions (as outline in Ward v. Rock against Racism)?

1. must be content-neutral

2. substantial / important interest

3. substantial fit

4. ample alternatives

What does United States v. Kokinda say?

government inaction does not make a non-public forum a public forum; it must be specifically designated as such

What does Good News Club v. Milford Central School say?

subject-matter discrimination is allowed, as long as it is not viewpoint discrimination

What does International Society for Krishna Consciousness v. Lee say?

• government declined to treat an airport like a public forum

• public access is immaterial to whether a space is public or not

What did Morse v. Frederick say?

students do have free speech rights EXCEPT student speech that encourages the use of illicit drugs

What did Tinker v. Des Moines say?

in order for schools to suppress student speech, they must show a material disruption

What does New York Times v. Sullivan say?

In defamation suits, there is a higher burden for public officials and there must be a show that the defamatory material was maliciously posted

What does Employment Division v. Smith say? standard of review?

• Smith standard (applies when there is not a legislative exception): a law that is, neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice (aka, rational basis)

• Religious Freedom Restoration Act / Sherbert test: strict scrutiny must be satisfied where any federal law has the collateral side effect of somehow abridging or intruding on a plaintiff’s religious beliefs

What does Church of the Lukumi v. City of Hialeah say?

Although a law targeting religious beliefs as such is never permissible, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest

What are the two provisions in the constitution about religion?

1. free exercise clause

2. establishment clause

What does the Fulton case say?

If you have a law that provides for possibility of exemption, grant the exemption, or you’ll be subject to strict scrutiny

What is the Lemon test for endorsement of a religion?

1. government may not give direct aid to religion

2. government cannot take action that enforces or prohibits religion

3. government cannot take action that would lead to excessive entanglement

Can the government support a clear religious message? what is the unnecessary entanglement test?

• virtually anything is fair game for the government, as long as they are not coercing any citizen into a religious practice and does not make an official religion of the country

• unnecessary entanglement test - whether the government had to engage in too must oversight in religion