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First Amendment Tests

Incitement to Violence (Group Reaction) Bad Tendency (Pre-WWI) Government could punish speech that had ANY TENDENCY to produce bad acts no matter how remote Clear + Present Danger Test (WWI) To determine if speech was an incitement to violence, look at 1. How serious is the harm? 2. How close in time is the bad effect to the speech? 3. How likely is the speech to produce a bad effect? Focus - Majority: Likelihood - Holmes: Immediacy (close in time) - Early Hand: Words (direct incitement) - Late Hand/Smith Act: Serious x Likelihood Government may prohibit/punish speech only if it is 1. Directed at inciting or producing, 2. Imminent illegal action, and 3. It is likely to produce such illegal action Government may regulate speech that incites imminent, illegal action True Threats (Individual Reaction) Threats against a person or a group of persons that is intended to place them in imminent fear of bodily injury or death are unprotected Exceptions - Threats may not be punished / are protected by the 1st if it is obvious hyperbole to a reasonable person - Threats of social ostracism or politically motivated boycotts may not be punished / are protected by the 1st (threats must be physical) Fighting Words (Individual Reaction) Speech may be punished / is not protected if it is likely to cause a violent response against the speaker Speech is unprotected as FW if 1. The speech incites an immediate breach of the peace by provoking violence against the speaker 2. It is directed at a particular person 3. That person construes it (reasonably) to be a personal insult FW only applies to situations that provoke PHYSICAL VIOLENCE (no emotional harm / offensive speech punished)

Modern Incitement Test: Brandenburg v. Ohio

Sexually Explicit Speech Obscenity Defined: Material that deals with sex in a manner that appeals to the prurient interest Material is obscene if 1. Prurient interest (community std) 2. Patently offensive (community std) 3. No serious literary, artistic, or scientific value (reasonable person std) Cannot be prohibited in the home, but CAN be prohibited in receipt, sale, distribution, or display Defined: Deals with people below the age of majority engaging in sexual activity or displaying their genitals in a lewd manner Completely unprotected under the 1st even if not obscene Pornography Nudity Bans Live Nude Dancing No right to possession in the home Triggers IS because it is low value speech Unconstitutional Protected by First Amendment

Child Pornography

Commercial Speech Commercial speech is semi-protected (IS) by the 1st Exceptions False Advertising - Even if made without malice Misleading/Deceptive Advertising Advertisement of illegal activity - Even if Brandenburg test is not satisfied Central Hudson Test 1. Is it false, misleading, or illegal advertising? (IS) 2. Does the government have a substantial interest? a. Prevent undue pressure upon vulnerable consumers 3. Does the law directly advance the governments interest? a. Effectiveness of statute 4. Is the regulation no more extensive than necessary? a. Reasonable fit Time, Place, and Manner Restrictions A time, place, and manner restriction is permissible if they 1. Are CN or aimed at secondary effects 2. Serve a substantial government interest 3. Are narrowly tailored to achieve that interest 4. Leave open ample alternative channels to communicate the message Expressive Conduct Spence Test (Is it EC) Regulation of Pure Conduct 1. Intent to convey a particular message 2. Likely to be understood by those who view it Apply RB (unless singles out people for

Regulation of Pure Speech Regulation of Expressive Conduct

expressive activity) rationally related Apply SS if CB (IS if CN) Aimed at speech component - If CB, apply SS - If CN, apply IS Aimed at conduct component apply OBrien - Within constitutional power of government to enact - Substantial government interest - Unrelated to the suppression of speech - Incidental restriction on speech is no greater than necessary to achieve the governments interest

Public Forum Analysis If regulation affects private speech on private property . . . - If property is a traditional public forum o Does regulation involve a standardless licensing scheme? If yes = unconstitutional o Is regulation a total medium ban? If yes = unconstitutional o Is regulation CN or CB? CN (+ TPM) = IS Substantial government interest + narrowly tailored + ample alternative channels CB = SS Compelling interest + no less restrictive means available - If property is a designated public forum o Consider Cannot be created by government inaction, acquiescence or selective access There must be an INTENT to open up the forum for expressive activity Creation by Policy or practice History or tradition Compatibility of property with expressive activity o If it is a limited public forum and there is a limit based on speaker identity or subject matter The limit must be reasonable in view of the purpose of the DPF and VP neutral o If it is an unlimited public forum CN = IS; CB = SS - If property is a nonpublic forum o Minimal scrutiny applies and it must be viewpoint neutral Speech in Public Schools Material Disruption Test A school may restrict noncurricular (private) student


speech if it materially disrupts the educational program of the school Standards - Materially disrupts the school day - Involves substantial disorder - Invades the rights of others Might is NOT enough (there must be a specific interference) Contains an illegal drug use exception students can engage in private speech that does not materially disrupt the school day as long as it does not promote illegal drug use A school may exercise control over the STYLE and CONTENT of student speech in school-sponsored expressive activity so long as the restriction is reasonably related to legitimate pedagogical concerns Pedagogical concerns include - Ensuring students learn appropriate lessons - Are not exposed to material inappropriate for their age - Ensuring students do not attribute the speakers views to the school

Curricular + Quasi-Curricular Speech Test

Public Employee Speech Dismissal because of public employee speech (ICs)

Is it of private or public concern? - Content, form, and context of statement? - Did employee think it was public or private? If it is of public concern, apply Pickering balancing test - Importance of speech to employee and public vs. importance of efficiency to the governments operation If it is of private concern, courts defer to the agencys decision (deferential standard) Non-policy making employees CANNOT be fired because they are not affiliated with a particular political party Dismissal will be upheld only if it furthers some vital government end by a means that is least restrictive of freedom of belief and association AND the benefits gained outweigh the loss of the constitutionally protected rights Ultimate issue is whether hiring/firing authority can demonstrate that political party affiliation is essential to the effective performance of the public office involved

Patronage hiring or dismissal (ICs)

Denial of employment because of membership in a subversive organization or prior seditious words/acts

Protection extends to policy making and confidential positions Government CANNOT deny employment UNLESS the organization is truly subversive and the person actually intends to further that organizations unlawful goals Government CAN impose loyalty oaths to uphold the constitution and oppose those who aim to overthrow the US government

Speech Subsidized by Public Funds Unconstitutional Conditions - Cannot condition a benefit on the requirement that someone give up a right - Cannot deny a benefit because someone exercised a right Government can say whatever it wants (not subject to FS laws) even if it favors one VP over another Government CANNOT condition partial payment of funds on requirement that a right be relinquished - Ex) League of Women Voters: Partial Payment + Right to Editorialize Government CAN purchase speech through funding by restricting what is done with its money - Ex) Planned Parenthood - Only limit is that it cannot suppress other speech / leverage control Governments use of a speaker to express its own message is CONSTITUTIONAL Vagueness, Overbreadth, and Prior Restraint Overbreadt A law is overbroad if it regulates substantially more speech than what the h constitution permits to be regulated Two Aspects - Must be substantially overbroad - Can be asserted by one for others (unconstitutional for me, unconstitutional for them) Vagueness Rationale: Risk of Chilling Speech A law is vague if a reasonable person cannot tell what speech is permitted and what speech is prohibited Rationale - Unjust to punish someone without providing clear notice of what is prohibited - Risk of selective and standardless prosecutions - Chilling speech Prior restraint results from either an administrative law requiring a permit/license before speech can be engaged in OR a court order preventing speech on the pain of contempt - DP involved; Specific + Targeted One of the worst forms of government regulation

Prior Restraint

Restricts what might not even be punishable Collateral Bar Rule (cant violate a court order and defend against contempt on the ground that it was unconstitutional) After the fact punishment is just as effective

Court Orders - To suppress speech + to protect national security + to ensure gets a fair trial Licensing - Ok if o o o Important reason for license No discretion to authority Procedural safeguards

Compelled Speech Implicit in the right to free speech is the right NOT to speak The government is NOT subject to FSC rules in its own speech, but it CANNOT force individuals to speak/communicate its message Analysis for Compelled Speech - Is the government compelling a person to utter or be associated with undesirable speech? o If no, minimal scrutiny is applied - Is the compelled speech related to content? o If compelled speech is of a particular content, SS applies o If the speech is compelled for reasons UNRELATED to content, IS applies Freedom of Association Freedom of association is a right IMPLICIT in the freedom of speech (helps with effective advocacy) Government can require disclosure of group members when a chilling would result ONLY if SS is satisfied Government can require political candidates to disclose their contributors People have a right NOT to associate (analogue to the right NOT to speak) - There is a right to intimate association (family + friends) it is NOT absolute - Right of expressive association is implicit in the First Free Exercise There is a fundamental right to religious freedom There is NO difference between religious belief and religious conduct (both trigger SS) Before Smith, free exercise exemption claims were viewed under SS (although IS was really used) After Smith, there could be NO free exercise exemption claim from a generally applicable and facially neutral law subject to RB - FEC does NOT require govt to exempt religious practice from laws that burden religious practice - FEC does prevent govt from targeting or discriminating against religion Despite Smith, SS still applies to generally applicable and neutral laws regulating 1. Parental choice for childs education 2. Flat taxes that act as a prior restraint

3. Hybrid cases involving a FE claim and another constitutional right

4. System of exemptions involving individualized government assessment 5. Regulation of religious belief Free Exercise Analysis - Does a law significantly burden a sincerely held belief? - Is the law generally applicable / facially neutral OR does the law discriminate against religion? o If it is a generally applicable and facially neutral law, there is NO FE claim (RB applies) Exceptions: UNLESS (and then SS applies) it is Regulation of religious belief Hybrid situation involving FE and another constitutional right Flat tax that operates as a prior restraint Regulation of parental control of a childs education System of exemptions involving individualized government assessment If an exception exists, SS applies Compelling interest? o Elimination of racial discrimination o Conducting internal government affairs o Functioning of the social security system No less restrictive means available? o If it is a law that targets / discriminates against religion, SS applies because there is a FE claim and SS applies Compelling interest? Elimination of racial discrimination Conduct internal government affairs Function of the SS system No less restrictive means available? o Exception to FE claims: Exclusion of religion from government benefit program No Establishment Tests Lemon / Purpose + Effect Test NE = government have a strict neutrality when it comes to religion Strict neutrality principle is violated / religion is established when - Predominant purpose is religious rather than secular - Primary effect is to advance religion - Excessive entanglement between religion and government Government establishes religion when it conveys a message of endorsement of religion rather than a message of pluralism and freedom to choose ones own religion Two views of endorsement - Government endorses religion when it conveys that one religion is preferred - Government endorses religion when it makes nonadherents feel like political outsiders

Endorsement Test

Coercion Test

Recognizes that historical establishments of religion compelled religious observance under the threat of legal sanction Government establishes religion when it coerces persons to participate in or support any religion or its exercise - Coercive pressure + coerced act that signifies approval of or participation in religious exercise Two types of coercion - Direct: By force of law + penalty for noncompliance - Indirect: Social pressure coerces compliance Inquires into whether a practice is deeply embedded in the history and tradition of this country

History + Tradition Test

Financial Aid to Religion Early Approach Apply Lemon 1. Predominant purpose cannot be religious in nature (must be secular) 2. Primary effect cannot be to advance religion 3. No excessive entanglement Considerations 1. Funds could not be used or diverted for religious purposes 2. No direct aid to religion 3. Equality of benefits / no discrimination in provision of benefits Modified Lemon Test for Financial Aid 1. Is purpose or effect to indoctrinate religion? 2. Is purpose or effect to define recipients by religion, thus creating an incentive to indoctrinate? 3. Is effect to create excessive entanglement between government + religion? Apply Modified Lemon Test 1. Is purpose or effect to indoctrinate religion? 2. Is purpose or effect to define recipients by religion, thus creating an incentive to indoctrinate? 3. Is effect to create excessive entanglement between religion and government? Considerations 1. Is the aid secular in content? 2. Are the beneficiaries chosen by neutral/secular criteria? 3. Are benefits received by religious groups due to a private choice of the beneficiaries? Establishment Clause Analysis Official Religious Message or Observance I. Is it coercive? a. Directly or indirectly? II. Does it pass the Lemon test?

After Agostini + Mitchell

Analysis Per Wallace

a. Secular purpose? b. Primary effect does not advance religion? c. No excessive entanglement? III. Is it an endorsement of religion? a. Preference OR nonadherents = political outsiders? IV. Is it denominationally neutral? a. One religion favored over another? V. Financial Aid to Religion VI. Is the practice deeply embedded in our history and tradition? Apply Modified Lemon Test a. Is purpose or effect to indoctrinate religion? b. Is purpose or effect to define recipients by religion, thus creating an incentive to indoctrinate? c. Is effect to create excessive entanglement between religion and government? VII. Considerations a. Is the aid secular in content? b. Are the beneficiaries chosen by neutral/secular criteria? c. Are benefits received by religious groups due to a private choice of the beneficiaries? Religious Accommodations i. Is the accommodation required by the FEC?

ii. If not, does the accommodation advance or endorse religion / do benefits flow to nonreligious groups as defined by secular criteria? 1. NO = Government must show it applies equally to everyone iii. If it is an exclusively religious accommodation 1. Does the accommodation alleviate an obstacle to the exercise of religious choice or does it create an incentive for making that choice? 2. Does the accommodation impose substantial burdens on nonbeneficiaries?

3. Is the accommodations provided to all similarly situated religions without favoritism? 4. Is discretionary government power delegated to religious authorities? Resolution of Ecclesiastical Disputes i. Courts CANNOT decide who has true faith and CANNOT resolve theological disputes Only time court can enter into a dispute of this nature is to decide neutral disputes of contract or property law

ii. Does the issue involve religious doctrine or policy? 2. If yes, defer to the religious body to avoid doctrinal entanglement 3. If no, apply neutral principles of law