Individual Rights Flashcards
Strict Scrutiny
The government must show it is:
(a) The least restrictive means
(b) To achieve a compelling government interest
Intermediate Scrutiny
The government must show it is:
(a) Substantially related
(b) To an important government interest
Rational Basis
The plaintiff must show the law is not:
(a) Rationally related
(b) To a legitimate government interest
Symbolic Speech–Expressive Conduct
Regulation is valid if:
1. It furthers an important government interest;
2. The interest is unrelated to the suppression of ideas; and
3. The burden on speech is not greater than necessary
Prior Restraints
- Must seek to avoid a particular harm
- Must have procedural safeguards in place
Content-based regulation
Strict Scrutiny
Content-neutral regulation
Intermediate Scrutiny
Commercial Speech
- The government interest is substantial;
- The regulation directly advances the interest; and
- The regulation is narrowly tailored
Obscenity
- Appeals to the prurient interest;
- Depicts sexual conduct in a patently offensive way; and
- Lacks serious literary, artistic, political, or scientific value
Incitement to Violence
- Directed to inciting or producing imminent lawless action; and
- Is likely to incite or produce such action
Fighting words
by their very nature, likely to incite an immediate breach of the peace
Traditional/Designated Public Forum
- Narrowly tailored;
- To serve a significant government interest; and
- Leave open ample alternative channels for communication
Non-Public Forum
- The regulation is viewpoint-neutral; and
- Reasonably related to;
- A legitimate government interest
Facially Religious Preference
If statute shows a preference over one religion to another, strict scrutiny applies
Facially Neutral Statute
Look at the “historical practices and understandings” of the environment in which the preference is occurring
Free Exercise Clause
Belief
A person’s beliefs are absolutely protected
Free Exercise Clause
Conduct
- Laws that intentionally target religious conduct are subject to strict scrutiny
- Laws that are generally applicable, but happen to impact religion, are subject to the rational basis test
