American Constitutional Law

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 OBrien 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

• Govt cannot impose prior restraints
• Govt 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