Helix BBQ: Const. Law- First Amendment Freedoms of Speech, the Press, and Association with Explanations

Is a state requirement that all state license plates bear the state motto likely to implicate free speech protection under the First Amendment?

B.Yes, because the state is compelling specific speech.

Solution: The correct answer is B.

Answer option B is correct. Compelled speech, where the government requires a person to say something, is a type of expression protected by the First Amendment. The Supreme Court has held that a state requirement that cars carry license plates bearing the state motto “Live Free or Die” is unconstitutional government-compelled speech.

A municipal ordinance bans the placement of any political sign without a permit.

If the ordinance is challenged on First Amendment grounds, what standard of review will be used to evaluate its constitutionality?

A.Strict scrutiny.

Solution: The correct answer is A.

Answer option A is correct. Signage is a common form of content-based expression. When laws regulate content explicitly (e.g., “no political signs”) or contain exceptions that result in content-based regulation (e.g., “no signs except those concerning politics”), they are subject to strict scrutiny.

Which of the following statements accurately reflects the treatment of hate speech under the First Amendment?

D.A state law prohibiting insults based on race, religion, or gender would be subject to strict scrutiny.

Solution: The correct answer is D.

Answer option D is correct. The First Amendment protects hate speech, provided it does not constitute “fighting words” or a “true threat.” A prohibition on expression that insults on the basis of race, color, creed, religion, or gender, including burning crosses or wearing Nazi swastikas, would be content discrimination subject to strict scrutiny. However, the Supreme Court has held that content-based expressions of hate can be used to enhance a criminal sentence, even if the expression is not itself a crime.

A statute restricts the time and place of speech in a traditional public forum in a content-neutral way.

What standard of review will apply if a First Amendment challenge is brought against the statute?

C.Intermediate scrutiny.

Solution: The correct answer is C.

Answer option C is correct. Time, place, and manner restrictions in traditional public forums and their functional equivalents are evaluated under an intermediate scrutiny standard, which entails three requirements: (1) The government must have a significant (or substantial) interest unrelated to the suppression of speech; (2) The means chosen should be “narrowly tailored” (but not necessarily “the least restrictive means”); and (3) There must be “ample alternative channels of communication.”

 An ordinance requires all canvassers to register their identities with the municipality before they may go door-to-door.

C. No, because there is a constitutional right to anonymous speech.

Solution: The correct answer is C.

Answer option C is correct. Anonymity is not within the “manner” of time, place, and manner; there is a constitutional right to anonymous speech. When applied to religious groups, political campaigns, or persons seeking to enlist support for unpopular causes, identity registration requirements for canvassers are likely to fail, even in light of a government interest to prevent fraud.

 A state has traditionally allowed residents to rent classrooms in a public school building to hold after-hours meetings. The state adopts a new policy disallowing this practice, and a resident files suit alleging that the new policy violates her First Amendment rights.

Which statement below best describes how the court is likely to analyze this challenge?

A.The building is a limited or designated forum that the state is entitled to close.

Solution: The correct answer is A.

Answer option A is correct. A limited or designated forum is a place that the government can choose to open up to speech and for which the government has exercised that right. Although the traditional public-forum standards will apply equally to a limited or designated public forum, with respect to the latter, its restrictions are evaluated in light of the government purpose in designating the forum and the government can choose to close it entirely. Public school classrooms that the government has opened up after hours for speech fall into this category.

 All the following are elements of the constitutional test for obscene expression, except which?

B.The material contains nudity.

Solution: The correct answer is B.

Obscene expression is not protected under the 1st Amendment. Whether expression is obscene is a question of fact, and expert testimony can be offered. The test for obscenity is whether the fact finder concludes that the material taken as a whole:

1. Appeals to prurient interest, meaning goes beyond a healthy depiction of sex and depicts a morbid or shameful depiction of sex ( a community-based standard);

2. Is patently offensive, meaning the material depicts, in a patently offensive way, sexual conduct as defined by state law. The regulated conduct must be patently described (sexual innuendo does not suffice); and

3. Lacks other value, meaning the material has no serious literacy, artistic, political or scientific value, as judged by a national standard.

Which statement below accurately describes the treatment of child pornography under the First Amendment?

B.The government may punish persons for possessing child pornography in their own homes.

Solution: The correct answer is B.

Answer option B is correct. Child pornography is not protected by the First Amendment. Unlike the possession of obscene material, the possession of child pornography in one’s home may be subject to criminal penalties. Answer options A and D are incorrect because the depiction must involve children, not adults who look like children or virtual images of children.

 

9. All the following could be entitled to First Amendment protection, except which?

A.A state-issued license plate bearing a Confederate flag.

Solution: The correct answer is A.

Answer option A is correct. Falsehoods and depictions of violence and animal cruelty are not categorically excluded from First Amendment protection. However, a license plate is government speech that does not implicate the First Amendment, even if it is expressing a viewpoint.

Which of the following accurately describes the “fighting words” exception to First Amendment expression?

C. It applies only where there is a face-to-face interaction.

Solution: The correct answer is C.

Answer option C is correct. The Supreme Court has limited the fighting words exception to face-to-face interactions that would likely provoke a violent reaction.

 Government regulation of commercial speech is subject to what standard of review, if any?

B.Intermediate scrutiny.

Solution: The correct answer is B.

Answer option B is correct. Commercial speech includes speech that proposes a commercial transaction or occurs in commercial contexts. It was originally unprotected but is now generally subject to a type of intermediate scrutiny.

Which of the following statements accurately describes a public school’s ability to infringe on the free expression of students?

C.Schools may sanction students for speech encouraging the use of illegal drugs.

Solution: The correct answer is C.

Answer option C is correct. Generally, a public school may infringe on the free expression of students only if the expression would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school. However, schools may sanction students who undertake speech that may be reasonably regarded as promoting illegal drug use.

Under what circumstances will a public employee’s expression be entitled to First Amendment protection?

D.Where she expresses herself as a member of the public on a matter of public concern.

Solution: The correct answer is D.

Answer option D is correct. Expression by public employees receives First Amendment protection if the employees express themselves as “citizens” (i.e., members of the public) on matters of public concern. A court will balance the interest of the employees in making the statement (and the public in hearing it) against the government employer’s interest in promoting efficiency and effectiveness in the workplace.

A state law requires public employees to pay the union an “agency fee,” even if the employees choose not to join the union.

If the law is challenged on First Amendment grounds, what is the most likely outcome?

C.The law will be struck down, using the exacting scrutiny standard.

Solution: The correct answer is C.

Answer option C is correct. A public-employee union’s compelled subsidy is subject to so-called “exacting scrutiny” requiring a compelling government interest that cannot be achieved through means significantly less restrictive of associational freedoms. Exacting scrutiny is less than strict scrutiny but generally higher than the intermediate scrutiny test. The Supreme Court has ruled that union agency fees imposed on public employees who chose not to join the union do not satisfy the exacting scrutiny test and are impermissible compelled speech.

Public employees can be required to take a loyalty oath in all the following situations, except which?

D.Where the oath is that they are not members of the Communist party.

Solution: The correct answer is D.

Answer option D is correct. Requiring state employees to sign a loyalty oath that they were not members of the Communist party violates the First Amendment as overbroad, and also infringes on free association.

Regulations limiting what a person may contribute to a political campaign are generally subject to what standard of review?

B.Exacting scrutiny.

Solution: The correct answer is B.

Answer option B is correct. Campaign finance regulations, such as those limiting what a person may expend on his own political campaign or on issues, and what a person may contribute to the campaigns of others, are generally subject to an “exacting scrutiny” test. This is less than strict scrutiny but higher than the intermediate scrutiny test afforded expressive conduct. There must be a sufficiently important interest and the regulation must be closely drawn to that interest.

 Immediately after taking office, the newly elected state district attorney dismisses all current state assistant district attorneys who do not belong to his political party.

If the dismissals are challenged under the First Amendment, are the dismissals likely to be upheld?

D. No, because the employees have a First Amendment right to belong to a political party and retain their employment.

Solution: The correct answer is D.

Answer option D is correct. Government employees (other than those who serve at the pleasure of the president or similar state executive) have a First Amendment right to belong to a political party and retain their employment.

What standard of review would apply to a First Amendment challenge to a government regulation of expressive conduct in a way that places an incidental burden on speech?

A.Intermediate scrutiny.

Solution: The correct answer is A.

Answer option A is correct. Government regulation of expressive conduct that has an incidental burden on speech is analyzed under an intermediate scrutiny test. The government action must further an important or substantial government interest that is unrelated to the suppression of speech, and the regulation must prohibit no more speech than is essential to further that interest. By contrast, symbolic speech is subject to strict scrutiny.

What standard of review would apply to a First Amendment challenge to a government action to stop the media from publishing certain information?

C.Strict scrutiny.

Solution: The correct answer is C.

Answer option C is correct. A prior restraint (i.e., a government prohibition on speech before it occurs) is subject to strict scrutiny and will be upheld only if it serves a compelling governmental interest that is achieved by narrowly tailored means.