ConLaw 8

• Strict scrutiny
•   • To satisfy strict scrutiny (1) the law must be necessary to achieve a compelling government interest, and (2) the law uses the least restrictive means of achieving that compelling interest

• 1) Type of restriction (e.g., content vs. content-neutral)
• 2) Whether the type of speech is protected (content)
• 3) Where and how the speech may occur (content-neutral)

• 1) Content based restrictions (e.g., regulation of subject matter or viewpoint), and
• 2) Content neutral restrictions (e.g., regulation of manner, timing, or places where speech occurs)

• Strict scrutiny
•   • To satisfy strict scrutiny (1) the law must be necessary to achieve a compelling government interest, and (2) the law uses the least restrictive means of achieving that compelling interest

• Intermediate scrutiny
•   • To satisfy intermediate scrutiny (1) the law must be substantially related to an important government purpose, and (2) the restrictions have been narrowly-tailored to meet that important purpose

1) Must meet strict scrutiny;

• 2) Must be complied with until they are vacated or overturned; and
•     • Collateral bar rule: a person who violates a court order is barred from later challenging it

• 3) Are never enforceable against the press to prevent pretrial publicity
• (Exam tip–this is true, even if the judge believes that pretrial publicity is necessary to ensure a fair trial)

• 1) Important reason for the license
• 2) Clear criteria, such that an award or denial of the license involves no discretion of the licensing authority
• 3) Prompt procedural safeguards (e.g., prompt determination of requests and judicial review of denials)

• Unconstitutionally vague when a reasonable person would not be able to tell what speech is prohibited and what is permitted. |
• Example: A law making it a crime to distribute literature that "tends to corrupt the minds of youth" would be unconstitutionally vague

It regulates substantially more speech than the Constitution allows to be regulated

• 1) Important interest unrelated to suppression, and
• 2) Impact on communication is no greater than is necessary to achieve the government's goal

• • Particular campaigns: Maximum limits on contribution to a particular candidate are permissible
• • Support of campaigns in general: No limit on the amount of money that can be spent in support of campaigns in general

• NO.  Speech is treated as inciting illegal activity if: 
• (1) there is a substantial likelihood of imminent illegal activity; and 
• (2) if the speech is directed at causing imminent illegal activity

• • Flag burning: Protected
• • Anonymous speech: Protected
• • Draft Card burning: Not protected
• • Nude Dancing: Not protected
• • Cross Burning: Protected UNLESS done in order to intimidate (then it's not protected)

• NO, if all parts of the following 3-part test are met— |
• 1) The material appeals to the prurient interest, or a "shameful or morbid interest in sex"
• 2) The material is patently offensive under the law prohibiting obsenity
• 3) As a whole, the material lacks serious redeeming artistic, literary, political, or scientific value as determined by national standards

Yes. “Erogenous zoning is permissible.”

• May be completely banned, even if it is not obscene. |
• Note–to be child pornography, actual children must be used in the production of the material. Drawings or adults of child-like appearance may not be banned, unless obscene (see separate card for protection of obscene materials)

• • No, mere possession of ordinary obscene materials is not punishable.
• • However, mere possession of child pornography is punishable

• YES, generally EXCEPT where |
• i) broadcast over free television or radio channels (uniqueness of intrusion), or
• ii) where used in schools

Govt has less power over cable or internet because you can control whether that comes into your home.

NOT PROTECTED by the First Amendment

YES, if the speech is advertising illegal activity or has inherent risks of deception

• Intermediate scrutiny
• This means that the regulation of the commercial speech must (1) substantially relate to an important government purpose, and (2) the regulation is narrowly-tailored to further that important purpose (note: need not be least restrictive alternative)

• 1) Defamatory statement
• 2) Identifying π
• 3) Published to at least one third party
• 4) Injury to reputation AND
• 5) Actual malice (this means the statement is (1) false, and (2) made intentionally or with reckless disregard of the truth)

• • Defamatory statement
• • Identifying π
• • Published to at least one third party
• • Injury to reputation |
• Note: If the matter is one of "public concern," the private π must also show that the statement is FALSE and that the ∆ made the statement NEGLIGENTLY

• • The report is truthful, and
• • The information was legally obtained

No, so long as (1) the media did not participate in the illegal interception, AND (2) the broadcast involves a matter of public importance.

Yes. EXCEPTION: Public has a right to attend govt proceedings and to access govt papers for criminal trials and criminal pre-trial proceedings.

Yes. Speech by govt employees was on the job in the performance of their duties is NOT protected. Other govt restrictions must meet strict scrutiny.

• • Public forums
• • Limited public forums
• • Non-public forums

• 1) Must be content-neutral—i.e., time, place, manner
• 2) Must serve important govt interest and leave open adequate alternative places for speech
• 3) Can't regulate subject matter or viewpoints, unless strict scrutiny satisfied
• 4) City officials cannot have discretion in setting amount of permit fees charged for parades and demonstrations

• 1) What is it: Non-public places the govt could close to speech, but keep open (e.g., schools at night or on weekends)
• 2) What rules apply: Same as Public Forums (content neutral, serve important govt purpose, adequate alternative forums available, no discretion in setting permit fees

• 1) Government properties that the gov't constitutionally can and does close-off to speech. Examples include— |
• • Military bases
• • Areas outside Prisons and Jails
• • Advertising space on city buses or subways
• • Sidewalks outside of post offices
• • Airports (can't prohibit distribution of literature, but can prohibit collection of money) |
• 2) Government can regulate speech in a non-public forum so long as the regulation is viewpoint neutral and is "reasonable" (i.e., satisfies rational basis review)

No. Private property includes places such as privately-owned shopping centers.

• Strict Scrutiny|
• To satisfy strict scrutiny (1) the law must be necessary to achieve a compelling government interest, and (2) the law uses the least restrictive means of achieving that compelling interest

• 1) ∆ member is actively affiliated with the group
• 2) the group is engaged in illegal activities
• 3) ∆ has knowledge of the group's illegal activities
• 4) ∆ has the specific intent of furthering those illegal activities or objectives

Strict scrutiny IF disclosure would "chill" association with the group

• No. Laws that prohibit a group from discriminating are constitutional unless it is— |
• • a”n intimate association" (e.g., private dinner party), OR
• • the discrimination activities are integral to the expressive activities of the group (e.g., KKK, Boy Scouts)

• • Can't be used to challenge a neutral law of general applicability (e.g., can't overturn ban on use of peyote)
• • Protects the benefits (entitlements) of individuals who quit their jobs for religious reasons

• S: there is a Secular purpose for the law
• E: the primary Effect of the law neither advances nor inhibits religion
• X: no eXcessive government entanglement with religion (e.g., balance Christian images with Jewish, Muslim, etc.)

• NO. Govt sponsored religious activity in public schools is unconstitutional, even voluntary school prayer. HOWEVER—
• • Religious student and community groups must have the same access to school facilities as non-religious groups.
• • Govt may give assistance to parochial schools, so long as it is not used for religious instruction.

When suing under the Establishment Clause