First Amendment

Question 1

What are the 3 ways a private entity can qualify as a state actor?

Answer 1

1. When the private entity performs exclusive public functions (ie company towns)
2. When the Gov’t compels the private entity to take particular action; OR
3. When the Gov’t acts jointly with the private entity.

Question 2

What level of scrutiny applies to regulations targeting view point?

Answer 2

Severe Strict Scrutiny

Question 3

What level of scrutiny applies to regulations targeting content based?

Answer 3

Strict Scrutiny

Question 4

What level of scrutiny applies to content neutral regulations?

Answer 4

Intermediate Scrutiny

Question 5

What is necessary to survive strict scrutiny?

Answer 5

The restriction must:
* further a compelling government interest and
* be narrowly tailored

Question 6

In order for a Time, Place, and Manner restriction to be constitutional, what is required?

Answer 6

The regulation must be
* Appropriately limited and truly intended to regulate only time, place, and manner
* narrowly tailored to serve a significant state interest
* leave open ample alternative channels for communication

Question 7

What is necessary for a regulation to be content neutral?

Answer 7

The regulation must be both viewpoint neutral and subject matter nuetral.

This applies to all speech regardless of the message.

Question 8

What is viewpoint neutral?

Answer 8

The Gov’t can’t regulate speech based on the ideology of the message

Question 9

What is subject-matter neutral?

Answer 9

The gov’t can’t regulate based on the topic of the speech.

Question 10

When is a law unconstitutionally vague?

Answer 10

When a reasonable person cannot tell what speech is prohibited and what is permitted.

Question 11

When is a law unconstitutionally overbroad?

Answer 11

When a law regulates substantially more speech than the Constituiton allows to bre regulated, and a person to whom the law constitutionally can be applied can argue that it would be unconstitionally applied to others.

Question 12

What is the Collateral Bar Rule?

Answer 12

Precludes a person who disobeys a judicially ordered prior restraint from raising arguments about its invalidity as a defense to contempt proceedings.

Question 13

What is the Unconstitutional Conditions Doctrine?

Answer 13

The gov’t cannot contain a benefit on the requirement that a person forgo a constitutional right.

Question 14

What is the Brandenburg Test for?

Answer 14

Language that could incite others to violence

Question 15

Under Brandenburg, what does the speech need to be in order to be deemed unprotected?

Answer 15

1. Time: Imminent Harm;
2. Probability: A likelihood of producing illegal action; and
3. Intent: An intent to cause imminent illegality

Question 16

What are fighting words?

Answer 16

Speech that is directed at another and is likely to provoke a violent response from a reasonable person.

Question 17

What case governs Fighting Words?

Answer 17

Chaplinsky v. New Hampshire (1942)

Question 18

What are the 3 techniques that the Supreme Court uses for overturning Fighting Words convictions?

Answer 18

1. Narrowed the scope of the fighting words doctrine by ruling that it applies only to speech directed at another person that is likely to produce a violent response
2. Unconstitutionally vague or overbroad
3. Finding laws that prohibit some fighting words, such as expressions of hate based on race or gender, to be impermissible content-based restrictions of speech.

Question 19

What are the 4 types of government regulations for Commercial Speech?

Answer 19

1. Laws that outlaw advertising of illegal activities
2. The prohibition of false and deceptive advertising
3. The gov’t may prohibit true advertising that inherently risks becoming false or deceptive
4. Laws that limit commercial advertising to achieve other goals

Question 20

What case regulates commercial speech?

Answer 20

Central Hudson

Question 21

What is the Central Hudson test for commercial speech?

Answer 21

1. Illegality or misleading representations: Does the speech advertise illegal activities or consitute false or deceptive advertising that is unprotected by 1A?
2. Substantial Gov’t Interest: Is the government’s restriction justified by a substantial governmental interest?
3. Regulation Direct Advances Interest: Does the law directly advance the government’s interest?
4. No more extensive than necessary: Is the regulation of speech no more extensive than necessary to achieve the gov’ts interest? Now, modified to ask if it is narrowly tailored and a reasonable fit between the means and the ends.

Question 22

What is the major case governing defamation?

Answer 22

New York Times v. Sullivan

Question 23

What are the 4 requirements for winning a suit of defemation as a public individual?

Answer 23

1. Plaintiff must be a public official, running for public office, or public figure;
2. The Plaintiff must prove his or her case with clear and convincing evidence;
3. The Plaintiff must prove the falsity of the statement; and
4. The Plaintiff must prove actual malice

Question 24

What is necessary to prove actual malice in a defemation suit?

Answer 24

Requires proof that the statements were made with a “high degree of awareness of their probable falsity”

Question 25

What is the tort of public disclosure of private facts?

Answer 25

A tort for invasion of privacy, it exists if there is a publication of nonpublic information that is not "of legitimate concern to the public" and that the reasonable person would find offensive to have published.

Question 26

What case controles conduct that communicates?

Answer 26

United States v. O'Brien (1968)

Question 27

What is the O'Brien test?

Answer 27

If conduct contains both speech and nonspeech elements, an important or substantial gov't interest in regulating the nonspeech element may justify incidental limitations on the protection of speech if: 1. the regulation is within the constitutional power of the gov't; 2. the regulation furthers an important or substantial gov't interest; 3. the gov't interest is unrelated to the suppression of free expression; ***and*** 4. the incidental restriction on alleged 1A freedoms is no greater than is essential to the furtherance of that interest.

Question 28

In campaign finance, what are contributions?

Answer 28

Money given directly to a candidate

Question 29

In campaign finance, what are expenditures?

Answer 29

Money going to something that helps a candidate (ie, an ad)

Question 30

In campaign finance, when can an expenditure become a contribution?

Answer 30

When there is coordination with the candidate.

Question 31

What major case controls campaign finance?

Answer 31

*Citizens United v. Federal Election Commission* (2010)

Question 32

What is a public forum?

Answer 32

Government property that the government is constitutionally obligated to make available for speech. Ex: sidewalks and parks

Question 33

When may government regulate speech in a public forum?

Answer 33

The government may regulate speech in a public forum only if certain requirements are met: 1. the regulation is content-neutral or it is content-based that can survive strict scrutiny; 2. the regulation is a reasonable time, place, or manner restriction that serves an important gov't interest and leaves open adequate alternative places for speech; 3. A licensing or permit system must serve an important purpose, gibe clear criteria to the licensing authority that leaves almost no room for discretion, and provides procedural safeguards such as a requirement for prompt determination of license requests and judicial review of license denials. 4. Need not use the least restrictive alternative, although they must be narrowly tailored to fit the gov'ts purpose.

Question 34

What is a designated public forum?

Answer 34

Exist when a gov't property has not traditionally be regarded as a public forum is intentionally opened up for that purpose.

Question 35

What is a Limited Public Forum?

Answer 35

Gov't entities open property limited to use by certain groups or dedicated solely to the discussion of certain subjects.

Question 36

When can the gov't impose regulations on a limited public forum?

Answer 36

When the restrictions are: 1. Reasonable; ***and*** 2. Viewpoint Neutral

Question 37

What is a non-public forum?

Answer 37

Gov't properties that the gov't can close to all speech activies.

Question 38

When can the gov't impose restrictions on a nonpublic forum?

Answer 38

When the restrictions are: 1. Reasonable; ***and*** 2. Viewpoint Neutral

Question 39

What factors help determine is a place is public or nonpublic forum?

Answer 39

1. the tradition of availabliity of the place 2. the extent to which speech is incompatible with the usual functioning of the place 3. whether the primary purpose of the place is for speech

Question 40

What test is used to determine speech restrictions in prisons?

Answer 40

The Rational Relation Test 1. Legitimate 2. Neutral 3. Rationally related to the objective

Question 41

What case governs speech by gov't employees?

Answer 41

*Garcetti v. Ceballos* (2006)

Question 42

When can the government not punish speech by a government employee?

Answer 42

The gov't may not punish the speech of public employees if it ***involves matters of public concern*** unless the state can prove the needs of the gov't outweigh the speech rights of the employee.

Question 43

When may the gov't infinge on the right of association?

Answer 43

1. If the regulations are "adopted to serve compelling state interests" 2. If the regulations are "related to the suppression of ideas" 3. When the state interest "cannot be achieved through means significantly less restrictive of association freedoms"

Question 44

When can gov't punish memberships?

Answer 44

The gov't may punish membership only if it proves that the person actively affiliated with a group, knowing of its illegal objectives, and with the specific intent to further those objectives.

Question 45

What factors does the court consider when deciding whether a group can discriminate?

Answer 45

* Size * Policies * Pourpose * Selectivity * Congeniality

Question 46

When does the freedom of association allow for groups to discriminate?

Answer 46

The freedom of association would protect a right to discriminate only if it is intimate association or where the discrimination is integral to express activity.

Question 47

What is the *Richmond Newspaper* test for determining if a case should be closed?

Answer 47

1. Particularized overriding Interest 2. Judicial findings that closure is necessary in that specific case

Question 48

What case governs whether the government has infringed on Free Exercise?

Answer 48

*Employment Div. v. Smith*

Question 49

What is necessary for a law to survive under *Smith*?

Answer 49

The law must be: 1. Neutral (Is law motivated by animus directed towards a particular faith or people of faith?); ***and*** 2. Generally applicable (Does law regulate only religious activity?)

Question 50

What is the Strict Separationist view of the Establishment Clause?

Answer 50

Wall Between Church & State To the greatest extent possilbe, government and religion should be separated. The gov't should be, as much as possible, secular; religion should be entirely in the private realm of society

Question 51

What is the Neutrality view of the Establishment Clause?

Answer 51

Reasonable Observer The gov't must be neutral on religion; the gov't cannot favor religion over secularism or one religion over the other. Would a reasonable observer believe the gov't is endoring religion?

Question 52

What is the Accommodation view of the Establishment Clause?

Answer 52

The court should interpret the Establishment Clause to recognize the importance of religion in society and accommodate its presence in the gov't. The gov't violates the establishment clause only if it literally establishes a church or coerces religious participation.

Question 53

Under the accommodation view of the Establishment Clause, what is considered coercion?

Answer 53

Coercion only exists if the law requires and punishes the failure to engage in religious practice. Only legal coercion matters, not the 'subtle coercive pressures;

Question 54

What was the *Lemon* test for Establishment Clause violations?

Answer 54

1. Requirement for secular purpose for a law; 2. Requirement for secular effect (neutral, can't advance or inhibit religion) 3. Prohibition of excessive entanglement (state doesn't need to monitoer religious institutions).