Transcript Slide 1

American Constitutional Law
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Judicial Review
Constitutional interpretation
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Originalists/strict constructionists
“fundamental rightists”
State action requirement
Standing
Ripeness
Freedom of Speech
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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
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Crimes of language
Fighting words
Seditious speech
obscenity
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."
Time, place, and manner
restrictions
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In a “traditional public forum”
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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
Symbolic speech (the O’Brien test)
If an activity consists of both speech and conduct,
the government can regulate the (noncommunicative) 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."
Other issues relating to free speech
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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
Freedom of Religion
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The “establishment” clause (see handout)
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The test of Lemon v. Kurtzman:
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(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
The “free exercise” clause
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Traditional approach: strict scrutiny
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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