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1st Amendment tests
Widener Law Con Law II with Prof. Ray
| Question | Answer |
|---|---|
| c. Abrams v. United States | "bad tendency" permits restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity. No longer used. |
| Brandenburg v. Ohio | (clear and present danger test) where such advocacy is (i) directed to inciting or producing imminent lawless action and (ii) is likely to incite or produce such action. |
| Miller v. California (first of 3) | (i) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest |
| Central Hudson Gas v. Public Service Commission | i.Lawful activity/not misleading; ii.Substantial gov't interest; iii. Reg. directly advances government interest—not an issue A. "immediate connection between advertising and demand for electricity" iv. Not more extensive than necessary—issue in case |
| United States v. O'Brien (content neutral restriction--first 2) | Court will uphold a conduct regulation if: i.Regulation w/in government's constitutional power ii.Furthering an important government interest |
| ii. Clark v. Community for Creative Non-Violence | TPM test; like O'Brien test; (i) content neutral (VP subject matter); (ii)narrowly tailored to serve an important government interest; (iii)leave open alternative channels of communication |
| Pickering v. Board of Education | if matter of public concern is involved, then the court must balance the employee's rights as a citizen to comment on a matter of public concern against the government's interest as an employer in the efficient performance of public service. otherwise, go |
| Sherbert v. Verner | For the individual, the court must determine • whether the person has a claim involving a sincere religious belief, and • whether the government action is a substantial burden on the person’s ability to act on that belief. |
| c. Employment Division, Dept. of Human Resources v. Smith | Smith test applied if state or local statute (but there's no test, only that it must be upheld if neutral, generally applicable statute unless it can be shown that it was motivated by a desire to interfere with religion) |
| Neutrality test | Under the neutrality test, the government's actions must be "neutral" as between religion and non-religion, as well as between religions |
| Lemon v. Kurtzman | a.Statute must have a secular legislative purpose b.Its principal or primary effect must be one that neither advances nor inhibits religion c.The statute must not foster an excessive gov't entanglement w/ religion |
| For Sect Purpose (for federal statutes vs. Smith for state and local) | a preference for one religious sect over another is invalid unless it's necessary to promote and narrowly tailored to promote a compelling/overriding interest—it's unlikely that the gov't could ever have a compelling interest in preferring one rel |
| Endorsement test | purpose/primary effect? If either is the advancement/inhibition of religion then the enactment is unconstitutional. examines the governmental action from the standpoint of a reasonable observer of the challenged governmental action |
| Private Choice Test (first 1-3) | For a voucher program to be constitutional it must meet all of the following criteria: •the program must have a valid secular purpose, •aid must go to parents and not to the schools, •a broad class of beneficiaries must be covered, |
| 1. Overbreadth: | reaches speech that gov't can regulate, but also reaches speech that gov't shouldn't be able to regulate |
| 2. Vagueness | When a statute is too vague, people won't know if they are in or out, and thus their speech will be "chilled" and they will be reluctant to speak |
| prurient interest | (material having a tendency to excite lustful thoughts) |
| Miller v. California (second of 3) | (ii) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, |
| Miller v. California (3 of 3) | (iii) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value" |
| Neutrality cases | Employment Division v. Smith, Bob Jones University v. United States, US v. Lee, Wisconsin v. Yoder, Sherbert v. Verner |
| United States v. O'Brien (second half) | iii.Whether government interest is unrelated to free expression iv.The incidental burden on speech is no greater than necessary |
| Sherbert v. Verner (second half)(now Lemon Test used) | If these two elements are established, then the government must prove • that it is acting in furtherance of a "compelling state interest," and • that it has pursued that interest in the manner least restrictive, or least burdensome, to religion. |
| Private Choice Test (4-5) | • the program must be neutral with respect to religion, and • there must be adequate nonreligious options. |
| NYT v. Sullivan | A public official can't recover damages for defam. relating to his offic. conduct unless he proves that the statement was false and made with "actual malice"—that is, w/ knowledge that it was false or with reckless disregard of whether it was false or not |
| NYT v. US | inevitably, directly, and immediately (and irreparably) cause the occurrence of an event that imperils the national security |
| Near v. Minnesota | Prior restraints are presumptively unconstitutional |
| Nebraska Press Association v. Stuart | gag order: nature/extent of pretrial news coverage, whether other measures (besides closure) would be likely to mitigate the effects of unrestrained pretrial publicity, & how effectively a restraining order would operate to prevent the threatened danger |
| Cantwell v. CT | The use of streets and parks "has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens |
| R.A.V. v. City of St. Paul | content-based restrictions on speech are presumptively invalid. In addition, they are subject to strict scrutiny. |
| Ballard v. United States | he courts have been reluctant to define the term "religion" for purposes of the religion clauses. whether they were sincere believers, NOT whether their beliefs are empirically true |
| Lemon Test Cases | Wallace v. Jaffree, Engel v. Vitale, Lamb's Chapel v. Center Moriches Union Free School District, McCreary County v. American Civil Liberties Union of Kentucky |
| Lemon Test Cases supplemented with Endorsement test | Allegheny County v. American Civil Liberties Union |
| Endorsement test cases | Van Orden v. Perry, |
| Chaplinsky v. NH | fighting words: epithets that are likely to provoke the average person to retaliate and thus breach the peace |
| TPM for limited public forum and nonpublic forum | (i) VP neutral and (ii) reasonably related to a legitimate government purpose |
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