The ABCs of: the First Amendment
Here is a collection of 26 important concepts, from A to Z, you need to know about the First Amendment for the bar exam:
A – Alternative channels of communication: Government regulations of speech and assembly in public forums and designated public forums must, among other requirements, leave open alternative channels of communication. This means that other reasonable means for communicating the idea must be available.
B – Burden: When the government adopts a content-based, prior restraint of speech, the government has the burden of proving that the restriction is the least restrictive alternative to accomplish its goal.
C – Content neutral: Government regulations of speech and assembly in public forums and designated public forums must, among other requirements, be content neutral. This means that the law must be subject matter neutral as well as viewpoint neutral.
D – Disclosure of group membership: Laws requiring disclosure of group membership must meet strict scrutiny if the disclosure would have the effect of chilling association.
E – Establishment Clause: The Establishment Clause compels the government to pursue a course of neutrality toward religion. Government action challenged under the Establishment Clause will be found invalid unless the action: (i) has a secular purpose; (ii) has a primary effect that neither advances nor inhibits religion; and (iii) does not produce excessive government entanglement with religion. This is the Lemon test.
F – False and Fault: When a person is sued for making a defamatory statement, the First Amendment places restrictions on the ability of the government to grant a recovery where the person suing is a public official or public figure, or where the defamatory statement involves an issue of public concern. In these cases, the plaintiff must prove not only the elements of defamation required by state tort law, but also that the statement was false and that the person making the statement was at fault to some degree in not ascertaining the truth of the statement.
G – Government speech: The Free Speech Clause restricts government regulation of private speech. Because government speech does not implicate the First Amendment, it is not subject to the various levels of scrutiny that apply to government regulation of private speech. Generally, government speech and government funding of speech will be upheld if it is rationally related to a legitimate state interest.
H – History: Despite the principle of separation of church and state, the Supreme Court has held that a state legislature could employ a chaplain and begin each legislative day with a prayer. In Marsh v. Chambers, the Court relied on the history of legislative prayer in America.
I – Internet regulation: The strict standard of First Amendment scrutiny, rather than the more relaxed standard applicable to broadcast regulation, applies to Internet regulation because the Internet has no scarcity of frequencies in contrast to broadcasting.
J – Jury question: The determination of whether material is obscene is a question of fact for the jury. Of course, the judge can grant a directed verdict if the evidence is such that a reasonable, unprejudiced jury could not find that all parts of the test have been met.
K – Knowledge: A public official may not recover for defamatory words relating to his official conduct or a matter of public concern without clear and convincing evidence that the statement was made with “actual malice.” Actual malice can be established by showing that the speaker had knowledge that the statement was false, or that the speaker had a reckless disregard as to the statement’s truth or falsity.
L – Limited public forums: A limited public forum is property that the government has opened for a specific speech activity, such as a school gym opened on a particular night to host a debate on a particular community issue. The government can regulate speech in limited public forums (and nonpublic forums) to reserve them for their intended use. Regulations will be upheld if they are: (i) viewpoint neutral; and (ii) reasonably related to a legitimate government purpose.
M – Miller test: The Miller test is the primary legal test for determining whether expression constitutes obscenity. The Court in Miller defined “obscenity” as a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards: (i) appeals to the prurient interest in sex; (ii) portrays sex in a patently offensive way; and (iii) does not have serious literary, artistic, political, or scientific value—using a national, reasonable person standard, rather than the contemporary community standard.
N – Nonpublic forum: The government can regulate speech in nonpublic forums (and limited public forums) to reserve them for their intended use. Regulations will be upheld if they are: (i) viewpoint neutral; and (ii) reasonably related to a legitimate government purpose.
O – Obscenity: Obscenity is not protected speech. The Court has defined “obscenity” as a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards: (i) appeals to the prurient interest in sex; (ii) portrays sex in a patently offensive way; and (iii) does not have serious literary, artistic, political, or scientific value—using a national, reasonable person standard, rather than the contemporary community standard.
P – Public forum: Government property that has historically been open to speech-related activities (e.g., streets, sidewalks, public parks and the Internet) is called a public forum. To avoid strict scrutiny, government regulations of speech and assembly in public forums and designated public forums must: (i) be content neutral (i.e., subject matter neutral and viewpoint neutral); (ii) be narrowly tailored to serve an important government interest; and (iii) leave open alternative channels of communication.
Q – Quotation: In defamation cases, proof that a plaintiff was inaccurately quoted does not, by itself, prove actual malice, even if the quotation was intentionally altered by the defendant. To show actual malice, the public figure plaintiff must prove that the defendant’s alteration of the quotation materially changed the meaning of the actual statements made by the plaintiff.
R – Reasonable fit: False advertising is not protected by the First Amendment, although commercial speech in general does have some First Amendment protection. If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid only if it: (i) serves a “substantial” government interest; (ii) “directly advances” the asserted interest; and (iii) is narrowly tailored to serve the substantial interest. This third prong does not require that the “least restrictive means” be used. Rather, there must be a reasonable fit between the legislation’s end and the means chosen.
S – Strict scrutiny: Content-based regulations are presumptively unconstitutional. To justify a content-based regulation of speech, the government must show that the regulation meets strict scrutiny—that is, it is necessary to serve a compelling state interest.
T – Tinker: The Court in Tinker v. Des Moines Independent Community School District held that public school officials cannot censor student expression unless they can reasonably forecast that the speech will substantially disrupt school activities or invade the rights of others. The Tinker decision firmly established that public school students possess First Amendments rights. Tinker remains the seminal decision on student speech.
U – Unprotected speech: Unprotected speech is speech that is completely prohibited subject to governmental regulations. Unprotected speech includes clear and present danger of imminent lawless action, fighting words, obscenity, defamation, and fraudulent misrepresentation.
V – Vagueness doctrine: The vagueness doctrine, an aspect of the due process requirement of notice, holds that a law is facially invalid if it is unclear what speech is regulated. The Court has indicated that a higher degree of clarity is demanded when the law in question threatens fundamental First Amendment Rights.
W – Words (fighting): States are free to ban the use of “fighting words,” i.e., those personally abusive epithets that, when addressed to the ordinary citizen, are inherently likely to incite immediate physical retaliation.
X – X-rated: The Supreme Court has generally held that X-rated motion pictures possess some “redeeming social value,” making them not obscene by judicial standards when restricted to viewing by willing adults.
Y – Yoder: The Supreme Court in Wisconsin v. Yoder required an exemption for the Amish from a neutral law that required school attendance until age 16 because a fundamental tenet of Amish religion forbids secondary education. The Yoder Court ruled that the right to educate one’s children and the Free Exercise Clause outweighed the state’s interest.
Z – Zones: Laws restricting expression within “buffer zones” are often found in the context of cases dealing with demonstrations on streets and sidewalks outside facilities entrances. The Supreme Court has for the most part found buffer-zone laws to be reasonable, content-neutral regulations of speech that further the important state interest of preserving access to facilities and maintaining public order.
