common law views

Question 1

absolutist position

Answer 1

interpreting the First Amendment to mean that “no law” abridging the freedom of speech or press literally meant that these constitutional guarantees were absolute and could not be infringed upon or violated by governmental action.

Question 2

hierarchy of classes of speech

-high value / intermediate value / low value

Answer 2

• high value = political speech vital to self gov. The core of first amend
• intermediate value = Art, advertising, dancing. Marginally protected by the 1st amd
• low value= Obscenity, defamation, fighting word. Categorical exceptions to the 1st amd protection.

Question 3

tests of speech restriction

Answer 3

involves some way of balancing..if we allow this then..vs if we restrict this then…

• narrowly tailored (to promote a specific interest?), –vagueness ( not clear enough)
• overbreadth (covers too much)

Question 4

preferred position

presumption / burden of proof / strict scrutiny

Answer 4

• presumption= an inference required or permitted by law as to the existence of one fact from proof of the existence of other facts
• burden of proof = burden of proof in on the accuser.
• strict scrutiny = Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest.

Question 5

judicial deference

Answer 5

the opposite of strict scrutiny

Question 6

ad hoc balancing

Answer 6

The court balances on a case by case basis