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American Constitutional Law

American Constitutional Law. Judicial Review Constitutional interpretation Originalists/strict constructionists “fundamental rightists” State action requirement Standing Ripeness. Freedom of Speech. First Amendment (see handout) Reasons for protecting free speech

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American Constitutional Law

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  1. American Constitutional Law • Judicial Review • Constitutional interpretation • Originalists/strict constructionists • “fundamental rightists” • State action requirement • Standing • Ripeness

  2. Freedom of Speech • First Amendment (see handout) • Reasons for protecting free speech • Basic principle: content neutrality • Another principle: offensiveness does not justify censorship • Exceptions to free speech protection • Crimes of language • Fighting words • Seditious speech • obscenity

  3. Miller test of obscenity An item is obscene if: • (1) the "average person, applying contemporary community standards," would find that the work as a whole, "appeals to the prurient interest" in sex; • (2) the work depicts "in a patently offensive way" sexual conduct specifically defined by the applicable state law; and • (3) the work, taken as a whole, "lacks serious literary, artistic, political, or scientific value."

  4. Time, place, and manner restrictions • In a “traditional public forum” • Government can impose reasonable time, place, and manner restrictions • The restrictions must be unrelated to content • The restrictions must leave open sufficient alternative means of expression

  5. Symbolic speech (the O’Brien test) If an activity consists of both speech and conduct, the government can regulate the (non-communicative) conduct if: • (1) if the regulation furthers an important or substantial governmental interest that is not related to the suppression of free expression, and • (2) if the "incidental restriction" on claimed First Amendment protected activity "is no greater than is essential to the furtherance of that interest."

  6. Other issues relating to free speech • Gov’t cannot impose prior restraints • Gov’t cannot compel people to speak • Vagueness and Overbreadth • Regulation of radio and television • Campaign financing • The reporter privilege • Commercial speech

  7. Freedom of Religion • The “establishment” clause (see handout) • The test of Lemon v. Kurtzman: • (1) the law or action must have a secular purpose, • (2) its primary effect must be that it neither advances nor inhibits religion, and • (3) it must not foster "excessive government entanglement" with religion

  8. The “free exercise” clause • Traditional approach: strict scrutiny • The law must be necessary to a compelling state interest • It must be narrowly drawn to accomplish that interest • There must be no less restrictive alternative • Modern approach: No free exercise problem if the law is generally applicable and valid

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