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39 Cards in this Set

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Standard review:
Is the law reasonable and necessary to achieving an important governmental purpose?
Strict Scrutiny test
Is the law narrowly tailored to achieving a compelling governmental interest?
Intermediate or mid-level scrutiny test
The regulation must be substantially related to an important governmental interest.
Must be narrowly tailored to meet that specific interest
Must leave open ample alternatives
Add for
Substantive due process (fundamental rights)
Is it implicit in the concept of ordered liberty or deeply rooted in the nation’s history or tradition.
Add Means end analysis
Is it over or under inclusive?
Is there a better way for the government to achieve it’s objective? Or
Are there alternate channels of communication?
Rational basis review:
Is the law rationally related to a legitimate public purpose?
Procedural Due Process is not a protected entitlement
1. The more significant the interest, the more procedural protections are provided or afforded
2. The amount of the procedure is dependent upon the nature of the property, liberty or other interest affected

Look at the
*** Private interest: what significance?
*** Erroneous deprivation: procedures fair?
*** Government’s interest?
Freedom of speech Analysis
Challenge can be facial or as applied
1. Facial - implicates speech on its face
2. As applied - discriminates not on its face but as applied to the circumstance
3. Is it content-neutral? Then government can regulate
4. Is it content-based? Then it must fall into one of the 5 unprotected areas
Advocacy of Illegal Action Brandenburg Test:
Is the speech advocating or directed at inciting or producing imminent lawless action likely to incite or produce such action? If so, it can be banned.
Defamation Test: Sullivan/Gertz/Greenmoss/Dun&Bradstreet
Public official/figure and speech defaming that person is a matter of public interest, in order to recover damages, the P must show
1. That the statement made was false
2. That it was made with actual malice
***Knowing it was false or with reckless disregard as to its truth or falsity***
3. That the identity of the defamed person must be clear
4. And P has the burden of proof of actual malice by clear and convincing evidence
Obscenity Test: Miller Test says obscenity can be banned when
Trier of facts determines that the average person would find the work, taken as a whole
**Appeals to the prurient interest
**Lacks serious literary, artistic, political or scientific value
**Depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law. **Suggested wording offered by the court: Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated
**Masturbation, excretory functions and lewd exhibition of the genitals
Child Pornography test: Miller test plus
involves a depiction of real children
taken with a lascivious intent or taken for lewd or lascivious purposes. All is needed for prosecution is to prove lasciviousness.
The children do not have to be nude and the situations depicted do not have to be sexual.
Fighting words test:
A personally abusive epitaph inherently likely to provoke an immediate violent reaction.
The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.
Vagueness and Overbreadth Tests
**Statutes/regs that are vague have a chilling effect on speech,
**Overbroad statutes tend to inhibit constitutionally protected activities.

A statute is vague and therefore unconstitutional on its face if a person of common intelligence can’t know what behavior is supposed to be prohibited. (Tends to be self-censoring)
Time, Place and Manner Test
1. Content neutral or Government’s interest is unrelated to the suppression of expression.
2. The law has to be narrowly tailored (or substantially/rationally related) to an important (significant) governmental interest.
3. Are there adequate alternative channels of communication?

Court changes the phraseology as required by the application to which it will be applied, i.e, political speech, pornographic speech, commercial speech.
Public Forum Test
Does the regulation effect a public forum?
Traditional - use t/p/m test
By designation - use t/p/m test
Non-public or limited public forum - use rational basis test
TPM Burson Exception Test
When the regulation is content-based and involves a public forum, it will be upheld so long as it is narrowly tailored to achieving a very compelling governmental interest (Strict Scrutiny applied).
Symbolic Speech Test O’Brien Test:
sets out the following four prongs:
1. Is the conduct that the statute is applied to done with the intent to communicate a message?
2. Then do t/p/m analysis
***talk about the manner in which the message was conveyed
Secondary Effects Exception Test:
The court creates an SECONDARY EFFECTS EXCEPTION that says that IF regulation is Content-Based, then the court will look to the “Secondary Effects” of the speech – the impact on the neighborhood., rather than the impact on the people (i.e., viewers) themselves.
Commercial Speech Central Hudson Test
Central Hudson four prong test: (language a little different to address commercial speech).
1. Protected speech must concern lawful activity and not be misleading.
2. The asserted governmental interest must be substantial.
3. The regulation must directly advance the governmental interests.
4. The regulation must not be more extensive than necessary to serve that interest (overinclusive).
RAV Test for sub-categories of speech
To ban a subcategory, must be done on something other than content of speech. For example, the government can ban all fighting words, but not just a subcategory.
True Threats Test
Must have objective and subjective components
Objective - intent to burn cross
Subjective - intent to intimidate
In California recipient must actually experience some sense of fear
Prior Restraints Test
1. All licensing schemes are subject to a constitutional challenge
a) Injunctions are also subject to prior restraints challenge
b) However, procedural safeguards are met with injunctions
2. Unconstitutional when subject to approval by a person or board

Note: Never apply in the context of a reg/stat. that is simply regulating or banning speech.
Licensing Scheme Test:
Regulations must contain
***substantive guidelines
***procedural safeguards and
***Must be related to an important governmental interest
Procedural Safeguards for Licensing Schemes Test
Must be contained in the law - if not, law is facially unconstitutional.

1. Censor must promptly institute the proceedings in order to
2. Minimize the deterrent effect of an interim and possibly erroneous denial of a license
3. Proceedings must be adversarial
4. The burden of proof must rest on the censor
5. The regulation must assure a prompt final judicial decision
Collateral Bar Rule Test
A court order must be obeyed until it is set aside
Parties subject to the order who disobey it may not defend against criminal contempt on the ground it was erroneous or even unconstitutional.
Publicity about Trials Test
The function of the court should not be frustrated and there are remedial measures available that will prevent this it at its inception:
1. Continue the case
2. Extensive voir dire
3. Sequester the jury
4. Change of venue
5. Close the court room (exhaust all other options first)
6. Issue a gag order (final option when all other exhausted)
Conditional Subsidies Test
The government can discriminate on the basis of content when it sponsors that speech through funding.

1. Determine the strength of the state’s interest
2. Is the government’s interest content-neutral?
3. Is the exemption/condition related to that governmental interest?
4. Is this an effort to penalize unpopular speech?

Although fundamental rights exist, the government does not have to fund those rights, e.g., the right to abort.
Tinker Test
The school must tolerate speech unless it would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school. (discuss school not being a traditional public forum - rbr need only be applied)
Government employee test
Did the public employee speak as a citizen on a matter of public concern and was the speech related to the employee’s work responsibilities?
Did the speech substantially interfere with the official responsibilities of the government agency?
Media cases Test
Apply the t/p/m test
Cable TV and Media cases test
Require intermediate scrutiny
1. What is the 1st amendment interest?
2. Is the regulation content-neutral or based?
3. Is the regulation sufficiently narrowly tailored to achieve an important governmental interest?
(add means-end)
Right to Associate Test
1. Identify the 1st amendment right implicated in the facts
- Significant (Boy Scouts v. Dale - gay scout master) or
- de minimus (Roberts v. United States Jaycees - females in male organization)
2. Then t/p/m analysis
3. Then Public Forum analysis
**Look to the actor
Incorporation Doctrine
Provides for the incorporation of the 1st amendment, the Establishment Clause, the Free Exercise Clause and the Equal Protection Clause through the 14th amendment as applicable to the state governments to the same extent they apply to the federal government.
Establishment Clause Lemon Test
1. Is there a secular (non-religious) legislative purpose?
***Yes, to accommodate religion or
***No, purely for religious reasons to benefit one particular religion. (appropriate to apply strict scrutiny here)

2. Is the PRIMARY EFFECT to ADVANCE religion?
***What is the breadth of class benefitted: religious ...
***Is it a direct or indirect benefit?

3. Is there entanglement?

O’Connor’s Endorsement test (alternative to prong 2 above)
2. Would a reasonable person view this governmental action as an endorsement of religion?
Prof’s Free Exercise Clause Four part test
is used when there is a conflict w/a state regulation:
Is there a sincerely held religious belief that compels this conduct
which is substantially burdened by and conflicts with the governmental action?

(The court will never inquire as to whether the belief is genuine)

If yes,
then the burden shifts to the government to show a compelling gov'tl interest
that cannot be achieved by granting an exemption to a generally applicable law.

Watch out for needing to use the Establishment Clause Lemon Test and the Free Exercise Clause test together with Strict Scrutiny.
Equal Protection Clause Analysis
To bring an Equal Protection challenge, there must be an intent to discriminate, which is shown in 3 ways:
1. Facial
2. Application (de jure)
3. Motive (de facto - impact)
- Yick Wo had motive / WA v. Davis=no motive
*Applicable standard of review for non-suspect classifications is rational basis review.
*Suspect classes receives Strict Scrutiny.
- Suspect classes include, race & ethnicity, alienage
*Quasi-suspect classes will be based on intermediate scrutiny.
- Includes gender, sexual orientation
Benign Discrimination
intended to assist
Invidious Discrimination
intended to demean or stigmatize