Term
| To determine whether a program violates the establishment clause, the court determines: |
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Definition
i) It has a secular purpose;
ii) Its principal or primary effect neither advances nor inhibits religion; and
iii) It does not result in excessive government entanglement with religion. |
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Term
| Government grants to religiously affiliated colleges or hospitals are upheld only if the government: |
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Definition
| Requires the aid be used only for non-religious purposes. |
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Term
| Name a few activities in school that have been held to violate the establishment clause. |
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Definition
Mandatory prayer/bible reading.
Designated period of silence for prayer or meditation.
Nondenominational prayer.
Posting the ten commandments at school.
Prohibiting Darwinism. |
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Term
| Can government use a holiday display? |
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Definition
| Only if a reasonable observer would conclude that the display is not an endorsement of religion. |
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Term
| Laws that intentionally target religious conduct garner which type of scrutiny? |
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Definition
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Term
| Neutral laws of general applicability which have the incidental effect of interfering with ones ability to engage in religious practices is subject to: |
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Definition
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Term
| If a minister or priest claims employment discrimination against a religious institution the employer may: |
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Definition
| Invoke the ministerial exception to bar suit brought on behalf of ministers against their churches. |
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Term
| What type of conduct is considered speech? |
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Definition
| Protected speech can include not only written, oral, and visual communication, but also activities such as picketing and leafleting. Expressive conduct (or symbolic speech) may be protected as speech, but it is subject to a lesser degree of protection. |
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Term
| Government regulation of speech will be upheld if: |
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Definition
i) The regulation is within the government’s power to enact (e.g., through a local government’s police power);
ii) The regulation furthers an important governmental interest;
iii) The governmental interest is unrelated to the suppression of ideas; and
iv) The burden on speech is no greater than necessary. |
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Term
| When is a government speech regulation overbroad? |
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Definition
| When the law burdens substantially more speech than is necessary to protect a compelling governmental interest. |
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Term
| When is a speech regulation void for vagueness? |
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Definition
| When it fails to provide a person of ordinary intelligence with fair notice of what is prohibited. |
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Term
| What is a prior restraint? |
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Definition
| A prior restraint is a regulation of speech that occurs in advance of its expression. They are generally presumed invalid with limited exceptions. |
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Term
| What is the exception to the general rule of a prior restraint's invalidity? |
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Definition
i) There is a particular harm to be avoided (like publication of troop movements); and
ii) Certain procedural safeguards are provided to the speaker. |
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Term
| Who bears the burden to justify a prior restraint? |
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Definition
| The burden is on the government to prove that the material to be censored is not protected speech. |
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Term
| Is a government official permitted to have discretion over a speech regulation? |
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Definition
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Term
| Does government speech need to be view-point neutral? |
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Definition
| No, because the government is not subject to the First Amendment, however, it must comply with the establishment clause. |
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Term
| Attempts to fire or penalize a government employee for speech on matters of public concern will be subject to: |
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Definition
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Term
| Statutes limiting campaign contributions are subject to |
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Definition
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Term
| What is a traditional public forum? |
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Definition
| Traditional public forums are those that are historically associated with expression, such as sidewalks, streets, and parks. |
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Term
| What is a designated public forum? |
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Definition
| one that has not historically been used for speech-related activities, but which the government has opened for such use, such as civic auditoriums, publicly owned theaters, or school classrooms that the public is allowed to use afterhours. |
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Term
| In a public forum, government may impose a reasonable time, place, or manner restriction on protected speech provided the restrictions: |
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Definition
) Are content-neutral as to both subject matter and viewpoint (i.e., it is not necessary to hear what is said in order to apply the regulation);
ii) Are narrowly tailored to serve a significant governmental interest; and
iii) Leave open ample alternative channels for communication of the information. |
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Term
| TPM restrictions that are not content neutral are subject to |
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Definition
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Term
| In a public place, not a public forum, government may restrict speech if: |
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Definition
| The regulation is (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest. |
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Term
| What types of speech are unprotected by the 1st amendment? |
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Definition
1. Obscenity
2. Child pornography
3. Incitement to violence
4. Fighting words
5. Defamation
6. False or misleading commercial speech. |
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Term
| What is obscenity and under what standard is it looked at? |
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Definition
An average person apply contemporary community standards would find the material taken as a whole:
1. Appeals to the prurient interest.
2. Depicts sexual conduct in a patently offensive way.
3. The speech lacks serious literary, artistic, political, or scientific value. (This uses a national standard) |
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Term
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Definition
A state may forbid speech that advocates the use of force or unlawful action if:
i) The speech is directed to inciting or producing imminent lawless action; and
ii) It is likely to incite or produce such action (i.e., creates a clear and present danger). |
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Term
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Definition
| Words which by their nature are likely to incite an immediate breach of the peace |
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Term
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Definition
| False statements that defame the character of a person. |
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Term
| A public figure cannot sue for defamation unless they can prove the speaker: |
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Definition
| Acted with actual malice, i.e., knowledge of the statement’s falsity or reckless disregard for whether it was true or false. |
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Term
| Commercial speech is entitled to: And uses a four-part test to determine whether government regulation on commercial speech is valid. |
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Definition
Intermediate scrutiny.
1. Concerns lawful activity and is neither false or misleading (false or misleading speech may be prohibited)
2.The government interest is substantial.
3.The regulation must directly advance the asserted interest.
AND
4. The regulation is narrowly tailored to serve the interest (does not need to be the least restrictive means like SS. |
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Term
| When can the government override the media's right to attend a criminal trial? |
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Definition
| When the judge finds an overriding interest that cannot be accomodated by less restrictive means. |
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Term
| Does a journalist have a first amendment right to refuse to testify regarding the content or source of information relevant to a criminal inquiry? |
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Definition
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Term
| Can a person be denied public employment based on membership in a public organization? |
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Definition
Not generally. Only if the person:
i) Is an active member of a subversive organization;
ii) Has knowledge of the organization’s illegal activity; and
iii) Has a specific intent to further those illegal objectives. |
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