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
