United States Constitutional Law | Attorney Vincent J. Russo

First Amendment to the Constitution: Free Speech, Establishment Clause, & Free Exercise.

1st Amendment. The 1st amendment reads as follows: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. This amendment is chalk full of legal rights and someright established through penumbras to this amendment. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. First Amendment to the Constitution: Free Speech, Establishment clause, free exercise. First Amendment to the Constitution: Free Speech, Establishment clause, free exercise.

Free Speech: Free speech is not absolute there are restrictions on the 1st amendment of the consittution

Prior Restraint: We disfavor prior restriant. Free speech is not absolute there are restrictions on the 1st amendment of the consittution

Time, Place, & Manner Regulation: Time Place Manner Regulation

1. Is it content nuetral? The challenger can look to the effects of the regulation.

2. Does the government have a significant interest?

3. Does it leave ample alternatives?

4. Is the regulation narrowly tailored?

Public Forum Doctrine: Public Forum Doctrine

1. Traditional Public Forum: Strict Scrutiny

2. Designated Public Forum: Strict Scrutiny

3. Non-Public Forum: The legistaion will be held constitutional if reasonable and viewpoint neutral

Traditional Public Forum: First Amendment Law First Amendment Law First Amendment Law First Amendment Law Religion (free exercise, endorsement clause, Speech, assembly, First Amendment Law First Amendment Law First Amendment Law First Amendment Law Religion (free exercise, endorsement clause, Speech

Freedom of Press: First Amendment Law First Amendment Law First Amendment Law First Amendment Law Religion (free exercise, endorsement clause, Speech, assembly, First Amendment Law First Amendment Law First Amendment Law First Amendment Law Religion (free exercise, endorsement clause, Speech

Clear and Present Danger Test: The clear and present danger test is sed to protect against hte substantive evils and intent to direct and incite or produce imminent lawless action and is likely to do so. The classic example is that you can't yell fire in a crowded theatre. This test is also utilized in several other manners.

Fighting Words: Fighting Words are not constitutionally protected.

Defamation: Defamatory words are not constitutionally protected. The common test regarding constitutionality under a defamation claim is "Actual Malice" simply translated as knowledge of the falisty or with reckless disregard for the truth. For a more detailed discussion on defamation, please refer to our sister site. Defamation

Obsenity: Miller Test: (1) Is it highly offensive to a reasonable person in the (local) community; (2) Does the speech lack serious artistic, litieray, political, scientific value; (2) Does the speech appeal to the prurient interests.

The Miller test is more particularly described as follows:

1. Whether the average person applying contemporary community standards would find the work taken as a whole appeals to prurient interest?

2. Is the speech specifically defined and presented in a pattonly offense way? (Due Process/Notice prong)

3. Does the speech lack any serious literary, scientific or political value? (Value Prong)

Under Roth/Memoirs analysis:

1. Is the speech without redeeming social value or importance?

2. Deals with sex in a manner that appeals to prurient interest?

3. Taken as whole offends the common conscience of the community by present day standards?

If not necessarily obscene speech consider the nature of the speech, the nature of the context, and government interest in regulating the speech (e.g. zoning & land use planning).

Commercial Speech: Commercial speech analysis:

1. Is the expression protected by the first amednment?

2. Is the government interest substantial?

3. Does the government regulation directly advance its important interest?

4. Is the government regulation no more restrictive than necessary?

Newspaper: Strict Scrutiny

Television: Rational Basis

Cable: Intermidiate Scrutiny

Parade: Strict Scrutiny

Radio: Rational Basis

Free Exercise Clause: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; The 2 clauses are inheirantly in conflict.

The standard generally tends to be a sincere and meaningful exercise of the religion. Is the agrevied sincerely and meaningfully exercsing the religion?

In theAlternative, If there is a substantial burden on the free exercise of relgion by the government, the court has in the past balanced the government's compelling interest versus the individual's right of free exercise of religion.

Establishment Clause: Under the 1st Amendment of the Constitution, Congress shall make no law respecting an establishment of religion. Generally speaking the the high court has utilized the so called "Lemon Test" to interpret the law. Under the Lemon test:

1. The Statute must have a secular legislative purpose.

2. The Principal or primary effect can neither advance or inhibit religion.

3. The Statute must not promote an excessive entanglement between government and Religion.

In the alternative, the Supreme Court has also utitlized a different test applying tradition and context as the standard, incorporated concepts of or desiginated public forums, pluralistic societies, and accommodation.