Keane-2013-Spring-ConLawII-Answer -...

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ESSAY QUESTION 1 Arnold starting the True Church of the Reborn Universal Aztec Religion invokes the First Amendment, specifically the right of free exercise of religion. The 1st amendment states that Congress shall not establish nor prohibit the free exercise of religion. Government has not defined religion, but it can question the sincerity of belief in the religion so as to prevent fraud. It appears that Arnold would have a sincere belief his new religion, even though it does champion human sacrifice (since other religions do sacrifices like animal sacrifices seen in Santeria). It would be a violation of Arnold's free exercise of religion right to prevent him from believing in this religion. Arnold wishing to hold a mass rally invokes the issue of free speech under the 1st amendment. There are several considerations when deciding whether free speech is invoked. First is the place. Speech can be in a public forum, a limited public forum, or a non-public forum. Public forums are traditionally trees and parks and have the highest protection. Regulations in public forums need to be content neutral and pass the intermediate scrutiny test. Licenses and permits that regulate public forums need to have set criteria that do not allow for great discretion and procedures of review need to be in place for procedural due process concerns (notice, a hearing, and a neutral decision maker). Government can turn a non-public forum into a limited public forum by allowing speech to be heard. This has been seen by the government allowing schools to be limited public forums after hours to various groups and meetings. Once a forum becomes a limited public forum, the same rules for a full public forum apply. The government can regulate a place to be a non-public forum as long as it is reasonable and viewpoint neutral (such as police departments and sidewalks outside the post office). In the case at hand, it appears that Arnold wants to hold his rally on Market street, which would qualify as a traditional public forum. Since it is a public forum, any prior restraint in the form of a permit needs to be content neutral, pass the intermediate scrutiny test, have set criteria, and also offer other alternatives for a denial. There seems to be some issues with the permit requirements. To pass intermediate scrutiny, the regulation needs to substantially relate to an important government purpose with the means being a fairly close fit to achieving that purpose. This means that the regulation cannot be too vague or over broad. If vague then a reasonable person would not be put on notice of what is or isn't allowed. If substantially over broad, anyone has standing to challenge it (unless commercial speech). This city ordinance is lacking specificity and is very vague. It also does not appear to have any set criteria and allows for too much discretion on the part of the city. The ordinance is also content based because it allows for demonstrations that are not offensive, but won't allow demonstrations that are.
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  • Fall '
  • Christiansen
  • Law, Constitutional Law, First Amendment to the United States Constitution, Intermediate Scrutiny, intermediate scrutiny test

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