Constitutional Law 8: The First Amendment

Card Set Information

Author:
TheoneandonlyMJ
ID:
94031
Filename:
Constitutional Law 8: The First Amendment
Updated:
2011-07-14 16:11:49
Tags:
NY Bar Exam Handouts
Folders:

Description:
MBE Constitutional Law Part 8 The First Amendment
Show Answers:

Home > Flashcards > Print Preview

The flashcards below were created by user TheoneandonlyMJ on FreezingBlue Flashcards. What would you like to do?


  1. What level of scrutiny must CONTENT-BASED restrictions on speech meet? CONTENT-NEUTRAL?
    • Content-BASED restriction: STRICT SCRUTINY
    • Content-NEUTRAL restrictions: INTERMEDIATE SCRUTINY
  2. What are TWO ways of finding that a law is CONTENT-BASED?
    • SUBJECT MATTER restriction: application of th elaw depends on the TOPIC of the message
    • VIEWPOINT restriction: application of the law depends on the ideology scrutiny
  3. What is a PRIOR RESTRAINT in the context of the FIRST AMENDMENT?

    What level of scrutiny applies?
    Stopping speech before it occurs.

    Court orders suppressing speech must meet STRICT SCRUTINY.
  4. Are you free to stop complying with a procedurally proper court order once you appeal the order?
    No - you must comply until they are VACATED or OVERTURNED.
  5. What are the consequences of violating a court order?
    You are BARRED from later challenging it.
  6. Can a court place a gag order on the press to prevent PREJUDICIAL pretrial publicity?
    No - they are generally unconstitutional.
  7. When can the government require a LICENSE for speech?
    • There is an IMPORTANT reason for licensing
    • There must be CLEAR CRITERIA, leaving almost no discretion to the licensing authority
    • There must be PROCEDURAL SAFEGUARDS such as prompt determination of requests for licenses and judicial review of license denials
  8. When is a law unconstitutionally VAGUE?
    If a reasonable personal cannot tell what speech is prohibited and what is allowed ("morality of youth corrupted")
  9. When is a law unconstitutionally OVERBROAD?
    If it regulates substantially more speech than the constitution allows to be regulated ("all live entertainment")
  10. Can FIGHTING words be protected?
    Fighting words are NOT protected speech, but statutes attempting to punish the use of such words are often found to be void for VAGUENESS.
  11. What is SYMBOLIC speech? May the government regulate it?
    It is conduct that communicates.

    It may regulate symbolic speech if it has an important interest UNRELATED TO SUPPRESSION OF THE MESSAGE and if the impact on communication is NO GREATER THAN NECESSARY to achieve the government's goal.
  12. State whether the following examples of symbolic speech are constitutionally protected:
    - Flag burning
    - Draft card burning
    - Nude dancing
    - Burning a cross
    • Flag burning: YES
    • Draft card burning: NO
    • Nude dancing: NO
    • Burning a cross: YES (unless done to THREATEN or INTIMIDATE)
  13. Are CONTRIBUTION limits in election campaigns allowed? What about EXPENDITURE limits?
    Contribution limits ARE allowed.

    Expenditure limits are NOT allowed.

    The government CANNOT limit the amount a person SPENDS to get a candidate elected, as long as the expenditures are INDEPENDENT of the candidate and are not DISGUISED contributions.
  14. What is the maximum that corporations, unions, and other such entities can spend to get a candidate elected?
    Nothing. They can spend whatever they wish.
  15. Is ANONYMOUS speech protected by the First Amendment?
    Yes.
  16. May a state may publicly disclose the names and addresses of persons who sign ballot petitions?
    Yes. The state's interest in promoting transparency and accountability in elections is sufficient to justify this.
  17. Can speech by the government be challenged as violating the First Amendment?
    No. It is rationally related to a legitimate state interest.
  18. What types of speech are unprotected or less protected by the First Amendment?
    • Incitement of illegal activity
    • Obscenity and sexually-oriented speech
    • Commercial speech
    • Defamation
    • Private speech
    • Speech by government employees
  19. What is the test for the government's ability to regulate INCITEMENT OF ILLEGAL ACTIVITY?
    The government may punish speech if there is a SUBSTANTIAL LIKELIHOOD of IMMINENT illegal activity AND if the speech is directed to CAUSING imminent illegality.
  20. What is the test for OBSCENITY?
    • The material must appeal to the PRURIENT interest, or a "shameful or morbid interest in sex."
    • The material must be PATENTLY OFFENSIVE under the law prohibiting obscenity.
    • Taken as a whole, the materal must lack serious redeeming ARTISTIC, LITERARY, POLITICAL, or SCIENTIFIC value as determined by a NATIONAL standard.
  21. True or False:

    The government may NOT use zoning ordinances to regulate the number or location of adult bookstores and movie theaters.
    FALSE (it may use zoning ordinances to regulate them)
  22. May the government completely ban NON-OBSCENE child pornography?
    Yes. However, to constitute child pornography, children must be used IN PRODUCTION of the material.
  23. May the government punish private possesison of obsence materials?
    Only if it is private possession of CHILD PORNOGRAPHY (otherwise, no).
  24. What may the government do to businesses convicted of violating obscenity laws?
    Seize their assets
  25. Is PROFANE & INDECEDENT speech protected by the First Amendment?
    Generally, YES.

    • EXCEPTIONS:
    • - Free, over-the-air broadcast media (e.g., tv and radio)
    • - In schools
  26. What types of ADVERTISEMENTS are NOT protected by the First Amendment?
    • Ads for ILLEGAL activity
    • FALSE & DECEPTIVE ads
    • Professional ads under a TRADE NAME
    • Attorney, in-person soliciation of clients for profit
    • Lawyers' ads as "DEBT RELIEF" agencies (can be required to file information about legal status, nature of assistance provided, and the possibility of the debtor filing for bankruptcy)
  27. Can the government prohibit ACCOUNTANTS from in-person soliciation of clients for profit?
    NO
  28. What level of scrutiny is applied for regulation of commercial speech (not the "unprotected" speech)?
    INTERMEDIATE SCRUTINY.

    Government regulation must be NARROWLY TAILORED but it does NOT need to be the LEAST restrictive alternative.
  29. For a DEFAMATION claim regarding a PUBLIC OFFICIAL (or running for public office), what is the:
    - Liability standard
    - Burden of proof
    - Damages
    • Liability Standard: ACTUAL MALICE (defendant knew the statement was false or acted with reckless disregard of the truth)
    • Burden of Proof: Plaintiff must prove FALSITY with CLEAR & CONVINCING evidence
    • Damages: Compensatory, presumed, and punitive damages
  30. For a DEFAMATION claim regarding a PUBLIC FIGURE, what is the:
    - Liability standard
    - Burden of proof
    - Damages
    • Liability Standard: ACTUAL MALICE (defendant knew the statement was false or acted with reckless disregard of the truth)
    • Burden of Proof: Plaintiff must prove FALSITY with CLEAR & CONVINCING evidence
    • Damages: Compensatory, presumed, and punitive damages
  31. For a DEFAMATION claim regarding a PRIVATE FIGURE of a matter regarding PUBLIC CONCERN, what is the:
    - Liability standard
    - Burden of proof
    - Damages
    • Liability Standard: NEGLIGENCE & ACTUAL INJURY (defendant was not as careful as a reasonable speaker should have been)
    • Burden of Proof: Plaintiff must prove FALSITY with CLEAR & CONVINCING evidence
    • Damages: Compensatory for ACTUAL injury; Presumpted or punitive damages require a showing of MALICE
  32. For a DEFAMATION claim regarding a PRIVATE FIGURE of a matter NOT of a PUBLIC CONCERN, what is the:
    - Liability standard
    - Burden of proof
    - Damages
    • Liability Standard: (unclear, but probably) NEGLIGENCE (defendant was not as careful as a reasonable speaker should have been)
    • Burden of Proof: (unclear, but probably) Plaintiff must prove FALSITY with CLEAR & CONVINCING evidence
    • Damages: Compensatory for ACTUAL injury; Presumpted or punitive damages DO NOT require a showing of MALICE
  33. May the state create liability for the truthful reporting of information that was LEGALLY obtained from the government's records?
    NO
  34. May the state create liability for the media's broadcasting a tape of an ILLEGALLY intercepted and recorded call?
    NO, so long as the media did not PARTICIPATE in the illegality AND it involves a matter of PUBLIC IMPORTANCE
  35. May the government restrict its OWN dissemination of information to protect privacy?
    Yes
  36. Does the public have a right to attend government proceedings and to access government papers?
    No, EXCEPT for criminal trials and criminal trial proceedings
  37. What level of scrutiny is applied to protected speech?
    STRICT SCRUTINY
  38. What are PUBLIC FORUMS? Are they available for speech?
    Government properties that the government is CONSTITUTIONALLY required to make available for speech.
  39. What are the limitations regarding governmental regulation of PUBLIC FORUMS?
    • Regulations must be SUBJECT MATTER and VIEWPOINT NEUTRAL (if not, STRICT SCRUTINY must be met)
    • Regulations must be a TIME, PLACE, or MANNER regulations that serves an IMPORTANT GOVERNMENT PURPOSE and leaves open ADEQUATE alternative places for communication
    • NOTE: Government regulation of speech in public forums need NOT use the LEASE restrictive alternative
  40. Are PERMIT FEE requirements for parades or demonstrations constitutional?
    Yes, UNLESS city officials have DISCRETION in setting the amount of the fee.
  41. What are DESIGNATED PUBLIC FORUMS?
    Government properties that the government coul close off to speech, but chooses VOLUNTARILY to open to speech.
  42. What are the limitations regarding governmental regulation of DESIGNATED PUBLIC FORUMS?
    • Regulations must be SUBJECT MATTER and VIEWPOINT NEUTRAL (if not, STRICT SCRUTINY must be met)
    • Regulations must be a TIME, PLACE, or MANNER regulations that serves an IMPORTANT GOVERNMENT PURPOSE and leaves open ADEQUATE alternative places for communication
    • NOTE: Government regulation of speech in public forums need NOT use the LEASE restrictive alternative
  43. What are LIMITED PUBLIC FORUMS?
    Government properties that are limited to certain groups or dedicated to the discussion of certain subjects.
  44. What are the limitations regarding governmental regulation of LIMITED PUBLIC FORUMS?
    Government may regulate speech so long as the regulation is REASONABLE (RATIONAL BASIS TEST) and VIEWPOINT NEUTRAL.
  45. What are NON-PUBLIC FORUMS?
    Government properties that the government constitutionally can and does close off to speech.
  46. What are the limitations regarding governmental regulation of NON-PUBLIC FORUMS?
    Government can regulate speech so long as the regulation is REASONABLE (RATIONAL BASIS TEST) and VIEWPOINT NEUTRAL.
  47. What are examples of NON-PUBLIC FORUMS?
    • Military bases
    • Areas outside prisons and jails
    • Schools
    • Signs on public property
    • Sidewalks on post office propety
    • Airports (BUT government cannot prohibit distribution of literature in airports)
  48. Is there a First Amendment right of access to private property for speech purposes?
    NO
  49. (freedom of association)

    What level of scrutiny must law that prohibit or punish group memberhip meet?
    STRICT SCRUTINY
  50. What is required in order to punish membership in a group?
    • Proof that the person is ACTIVELY AFFILIATED with the group
    • Proof that the person has KNOWLEDGE of the group's illegal activities
    • Proof that the person has the SPECIFIC INTENT of FURTHERING those illegal activities or objectives
  51. May laws require disclosure of group membership?
    Not if the laws chill association and fail to meet STRICT SCRUTINY
  52. Is there a RIGHT TO DISCRIMINATE?
    No, unless:

    - it's an INTIMATE ASSOCIATION (small group of people)

    - discrimination is INTEGRAL to the EXPRESSIVE ACTIVITIES of the group
  53. True or False:

    The FREE EXERCISE CLAUSE (religion) may be used to challenge a neutral law of general applicability.
    FALSE
  54. Can the government deny benefits to an individual who quit their jobs for religious reasons?
    NO
  55. What is the THREE-PART TEST to the ESTABLISHMENT CLAUSE?
    • (sex)
    • S: there must be SECULAR purpose for the law
    • E: the primary EFFECT must be neither to advance nor inhibit relition
    • X: there must not be eXcessive government entanglement with religion
  56. True or False:

    The government cannot discriminate against RELIGIOUS SPEECH or among religions unless INTERMEDIATE scrutiny is met.
    FALSE - STRICT SCRUTINY must be met.
  57. Is government-sponsored religious activity in public schools allowed?
    No, it is unconstitutional.

    School prayer, even if VOLUNTARY, is NOT allowed. Not even a moment of SILENT PRAYER is allowed.
  58. Do RELIGIOUS student or community groups have a RIGHT to school facilities?
    They must have the SAME access as non-religious groups.
  59. May the government give assistance to PAROCHIAL schools?
    Only so long as it is not used for RELIGIOUS INSTRUCTION.

    e.g., the government may provide parents "vouchers" which they use in parochial schools.
  60. What are FUNDAMENTAL rights (not privacy rights) that trigger STRICT SCRUTINY?
    • Right to Travel: Equal Protection
    • Right to Vote: Equal Protection
    • Freedom of Speech: First Amendment
    • Freedom of Association: First Amendment
    • Free Exercise of Religion: First Amendment (note: the law is NOT a neutral law of general applicability)

What would you like to do?

Home > Flashcards > Print Preview