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19 Cards in this Set

  • Front
  • Back

Strict Scrutiny

-the government must prove that the classification is necessary to achieve a compelling government interest and there is no less restrictive means


-race, alienage, national origin, impairing a fundamental right

Intermediate Scrutiny

-the government must prove that the classification is substantially related to achieve an important government purpose


-gender, illegitimacy/non-marital children

Rational Basis

-law presumed unconstitutional and the challenger must prove that the classification is not rationally related to a legitimate government interest

Fundamental Rights and Substantive Due Process

-right to privacy


-right to marry, procreate, and raise children


-right to vote, access to courts


right to interstate travel


-right to refuse medical treatment, but no corresponding right to commit suicide


-freedom of speech


-freedom of religion




If the statute involves a fundamental right, then it will be reviewed with strict scrutiny

Procedural Due Process

-before there can be a deprivation, one must have had entitlement


-if there is entitlement, was individual provided an appropriate amount of procedural due process? (was there notice and opportunity to be heard by a fair and impartial decision maker before or soon after the deprivation?)

Content-Based Regulations

-content-based regulation of protected speech is presumed unconstitutional and will be met with strict scrutiny


-the government must prove that the statute or regulation is necessary to serve a compelling objective and is drawn as narrowly as possible to achieve that objective

Content Neutral Regulations

-a content neutral regulation of speech will be sustained by the First Amendment if it advances an important governmental interest unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests

Content Neutral Regulation (Time, Place, and Manner)

in order for a time, place, and manner restriction to be valid, it must


-be content neutral


-serve a significant government interest


-be narrowly tailored


-leave open ample alternative channels for communicating information

Vagueness and Overbreadth

-a statute or regulation is vague if a reasonable person cannot tell what speech is prohibited and what is allowed


-a statute or regulation is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows and a person to whom the statute can constitutionally be applied can argue that it is unconstitutional as applied to others


-the supreme court regards the over breadth doctrine as strong medicine because it involves the facial invalidation of a law and it permits individuals standing to raise claims of others not before the court

Prior Restraints

-government is intruding before communication occurs


-

Licensing as a Prior Restraint

in order for a licensing scheme to be valid:


-there must be an important reason for licensing


-there must be clear standards leaving almost no discretion to the licensing authority; and


-there must be procedural safeguards (prompt decision, full and fair hearing before speech is prevented; and a prompt and final judicial determination of the validity of any preclusion of speech)

Infringement of Speech

A finding that a law substantially burdens or infringes speech does not mean that is automatically unconstitutional, but it does mean that it will have to meet heightened scrutiny unless it is regulating a category of unprotected speech


-GR: content based regulations will be met with strict scrutiny


-GR: content neutral regulations will be met with intermediate scrutiny

Incitement

incitement of illegal activity is unprotected by the first amendment


Brandenburg Test: A conviction for incitement is constitutional if there is


-imminent harm


-a likelihood of producing illegal action; and


-an intent to cause imminent illegality

Fighting Words

fighting words are unprotected by the first amendment.


-fighting words: speech directed at another likely to provoke a violent response


-Chaplinsky v New Hampshire: Chaplinsky called a city marshal a God damn racketeer and damned Fascist. He was arrested for breach of the peace. Court held that Chaplinsky uttered fighting words.

Hostile Audience Cases

the court applies the clear and present danger test to hostile audience cases


-clear and present danger test: whether the words used are in such circumstances and of such a nature as to create a clear and present danger of the substantive evils that Congress has a right to prevent


-Feiner v New York: Feiner giving speech to crowd of 75 people. Crowd spills out into street obstructing traffic. Police called and orders Feiner to stop speaking. Feiner refused and was arrested for breach of peace. Court held a person has no right to free speech when it will result in a riot.

Racist Speech

Virginia v Black: VA statute that made it a felony to burn a cross on the property of another, highway, or public place and any such burning will be prima facie evidence of intent to intimidate. Court held state could ban cross burning but could not hold that all cross burning is prima facie evidence of an intent to intimidate

Obscenity

obscene material is material that deals with sex in a manner appealing to prurient interest


Miller Test:


-whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to prurient interest


-whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined in the applicable state law; and


-whether the work, taken as a whole, lacks serious literary, artistic, scientific, or political value

Profanity and Indecent Speech

profanity is generally protected by the first amendment


-Cohen v California: Cohen wore a shirt that said **** the draft, stop the war. CA statute that prohibited maliciously and willfully disturbing the peace by offensive conduct. Court said statute violated freedom of expression protected by the First Amendment

Commercial Speech

commercial speech is protected by the first amendment


Central Hudson Gas Test:


-does the speech advertise illegal activities or constitute false or deceptive advertising not protected by the first amendment?


-is the government's restriction justified by a substantial government interest?


-does the law directly advance the government's interest?


-is the regulation of speech no more extensive than necessary to achieve the government's interest? Fox: while government need not use least restrictive alternative, it must use a means narrowly tailored to achieve the desired objective