Con Law II Notes - Con Law II 1st amendment Freedom of...

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Con Law II 1st amendment Freedom of speech o Content based govt restrictions are usually struck down o Time place and manner restrictions are more likely to be upheld (no texting while driving) Freedom to not speak Freedom of association Separation of church and state o Free exercise clause 1st Amendment Govt shall make no law abridging freedom of speech (includes all levels of govt.) Symbolic speech may sometimes also be protected, flag burning etc. Some laws restricting speech are allowed when they are necessary to further a more important goal or policy objective Marketplace of ideas (Holmes) Freedom of speech makes it easier to get ideas into the “marketplace” and if they are not valid ideas they will not be subscribed to but it is not the govts role to restrict their entry (unless there is a valid reason) Govt should not determine what speech is okay and which is dangerous if it can be prevented bc that is at odds with the idea of democracy embodied in our constitution Brandeis view People should be allowed to criticize the law “cop killer” by ice t does not present an immediate danger of making someone commit murder and therefore should be allowed Court is very wary of laws restricting speech or designed to disadvantage minorities Court used to be more willing to enforce laws that today would run afoul of the first amendment that illegalized “dangerous speech” Brandenburg Decision 3 prong test to determine if speech may be criminal o Express advocacy of law violation o Advocacy must call for immediate law violation Even if the act is in the future as long as the urging is immediate speech may be dangerous (telling someone to detonate a bomb in a week who is likely to do it) o Immediate law violation must be likely to occur Freedom of association If you join an illegal organization you must actually intend to further
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the illegal activities of the group to be convicted of a crime, not just do something like carrying a membership card. Right to not speak or associate Inferred from the right to free speech Willy v. Maynard o New Hampshire tried to have all license plates say live free or die, court said it was unconstitutional to force people to express an idea bc they did not allow residents to do anything to cover up or not have the slogan on their license plate Govt argued that it would facilitate identification bc it only had to be on passenger non commercial vehicles and that it would promote an appreciation of history individualism and state pride Court uses a subjective test and held that the states interest in disseminating an ideology cannot outweigh an individuals first amendment right to avoid becoming the courier of such a message The Court used subjective test of how the driver felt (he was a Jehovah’s witness) not what others would think of them or what a reasonable person would think of the slogan. Rehnquist dissent says that license plate slogan does
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Con Law II Notes - Con Law II 1st amendment Freedom of...

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