Glossary of Con Law Spr06

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When did Congress adopt the clear and present danger test for dangerous speech cases?
Brandenburg v OH, 1969
What standard does the government currently have to meet to regulate "dangerous speech"?
Govt has to convince ct that the danger is real, that preventing the danger is govt’s true purpose, that the danger is imminent, and that the danger is reasonably likely to occur from the speech
commercial speech can be regulated when...
Must concern lawful activity & not be misleading
ii) Govt interest must be subs
iii) Reg must directly advance the govt interest asserted
iv) Must be no more extensive than necessary to achieve that purp
O’Brien Symbolic Speech Test: A governmental regulation is sufficiently justified if
i) it is within the constitutional power of the Government and
ii) furthers an important or substantial governmental interest
iii) that is unrelated to the suppression of free expression, and
iv) if the incidental restriction on alleged First Amendment freedom is no greater than is essential to that interest..
Is flag burning speech or conduct?
govt can’t regulate flag burning without regulating based on the content of the expression, so flag burning is treated like plain speech
Why did O'Brien go to jail after he burned his draft card to protest the Vietnam war?
O’Brien goes to jail not because we don’t protect speech, but because the govt was merely trying to protect the draft cards, not prevent O’Brien’s message
Can Eichmann burn a flag to protest the US government?
The Eichmann statute was trying to prevent what Eichmann was trying to say by burning the flag or to promote its own message. Since the govt was trying to prevent/promote a message, the statute no longer had only an incidental effect on speech. Therefore, the statute was unC. Trouble with the flag is that it is not merely an object, but also a message
Is whether something is obscene a question of law or of fact? What is the test?
The basic guidelines for the trier of fact must be:
i) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest,
ii) whether the work depicts or describes, in a patently offensive way,
iii) sexual conduct specifically defined by the applicable state law, and
iv) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
How could a city regulate pornographic (non-obscene) movie theaters?
1) purpose must be to control the secondary effects, not the primary effects (erotic message).
2) regulation must leave open some opportunity for the theaters--can't ban the movies altogether, can only incidentally impact them.
What restrictions can the govt put on expression in public fora?
In public forums (e.g. parks), state may not prevent all communicative activity
1) To make content-based exclusion, state must show a compelling interest & reg must be narrowly drawn to achieve that end [close scrutiny]
2) State may enforce reasonable TPM regs
a) that are content-neutral
b) that are narrowly tailored to serve significant govt interest &
c) that leave open ample alt. channels of communication
With respect to public property that is not by tradition or government designation a forum for public communication, what kind of restrictions on expressions may the govt put?
a State may reserve the use of the property for its intended purposes, communicative or otherwise, as long as a regulation on speech is reasonable given the nature of the facility and not an effort to suppress expression merely because public officials oppose the speaker's view
If a college refuses to allow military recruiters on campus, is that speech or conduct? Can the govt penalize the college for the refusal?
COnduct. Yes, govt can penalize conduct under its spending powers.
Does the 1st amendment prohibit the government from providing funding to artists to create pro-war pieces of art?
No. 1st amdt doesn’t prohibit favoring one kind of speech under its spending powers. Might raise EP problems tho.
T/F. Govt can selectively discriminate against certain viewpoints under its spending power.
How can the govt justify placing limits on campaign contributions (if contributions are regarded as plain-old speech)?
Govt will have to satisfy close scrutiny: govt needs compelling interest & this law is the narrowest way to achieve it.
Govt’s compelling interest is preventing the corrupting influence of big $ special interests buying access/votes—corrupts the democracy. The regs are not reducing/limiting speech, they are limiting corruption.
How can the govt justify placing limitations on campaign expenditures?
Ct almost never allows reg of expenditures—that is more pure speech. There are few limitations on expenditures that are narrow enough.
What is the lemon test?
A legislative enactment does not contravene the Establishment Clause
i) if it has a secular legislative purpose,
ii) if its principal or primary effect neither advances nor inhibits religion, and
iii) if it does not foster an excessive government entanglement with religion.
Can the govt give vouchers for students to attend secular schools in Cleveland? Why (not)?
Yes because its purpose is not to promote religion in general or a particular church, purpose is to solve problems in public schools, trying to solve a secular problem, govt has a secular purpose; 3) govt is not entangled w/ religion
What kind of protections (and level of scrutiny) does the WA state C give to bearing arms?
WA applies some kind of mid level scrutiny—not as limiting on govt power as close scrutiny, but clearly more limiting than rationality. Still WA C gives more protection to indivs than 2d amdt. State needs good, narrow reason to take away right to bear arms.

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