Test and Stuff

Question 1

Palko

Answer 1

A right is “fundamental” if it is:

1) Of the essence of ordered liberty

AND

2) A principle of justice so rooted in our Nation’s history and tradition

*If a law interferes w/a fundamental right, default is Strict Scrutiny

Question 2

Categories of Speech Content That Justify Government Restrictions (& Test)

Answer 2

i. Incitement – listeners will react violently against 3Ps (Brandenburg)

ii. Fighting words – listeners will be violent against speaker
(Chaplinsky modified by Cohen)

iii. True threats (Watts)

v. NYT–Tortious Speech (defamation/libel/slander, invasion of privacy, IIED) Public Figure

vi. Obscenity (Miller)

vii. Child pornography (Miller)

viii. Porn distributed to minors (Ginsberg)

ix. Commercial speech (Central Hudson)

Question 3

Schenck Test

Answer 3

Not current law

Do these words under these circumstances create a clear and
present danger of a result that the law is allowed to forbid?

“Clear and Present Danger Test”

Question 4

Brandenburg Test

Answer 4

Test for Incitement:
Speech directed at 3rd party where the intent is to accomplish some unlawful act against them

(1) Speech was directed (intended) to incite imminent lawlessness;

AND

(2) Likely under the circumstances to have that effect
a. If actually occurs = easy to prove

Question 5

Chaplinsky/Cohen

Answer 5

Fighting words must be face to face, individually directed, and likely under the circumstances to cause the listener to fight (beach of peace)

Question 6

Watts/Elonis (True Threats)

Answer 6

Threats that sound serious to a reasonable observer

Question 7

Obscenity

Answer 7

Miller

1. Avg. person in the community would find the work as a whole appeals to [prurient interest], AND
2. Depicts or describes patently offensive sexual conduct by law and
3. Lacks serious literary, scientific, artistic, political value (SLAPS)

Question 8

CP

Answer 8

Depiction of a real minor thats intended to appeal to prurient interest

Question 9

Commercial Speech

Answer 9

Central Hudson Test
1. Speech concerns lawful activity and not misleading
2. Substantial govt. interest (significant, important)
3. Regulation directly advances stated interest
4. Regulation narrowly tailored to interest
a. NOT least restrictive means (more relaxed standard)

Question 10

Sullivan Test

Answer 10

Tortious speech (ACTUAL MALICE TEST)

Public figure P’s must prove:
Statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

Question 11

For Law NOT Aimed at Expression

Answer 11

O’Brien Test
1. Law is within govts power
2.Furthers a substantial govt interest
3. Regulation is not aimed at expression:
(Can you violate without expressing yourself?)
–Yes = NOT aimed at expression
–No = apply WARD
4. Regulation is narrowly tailored (Rough Proportionality)

Question 12

Ward Test

Answer 12

Content-neutral regulations that DO target expression
“Time Place Manner”
b. Substantial govt. int.
c. Ample alternative forums/channels for communication
d. Narrowly tailored (NOT least restrictive means)

Question 13

Sherbert/Yoder

Answer 13

Govt is burdening exercise of a sincere religious belief

If so, then govt must satisfy s.s

Question 14

Strict Scrutiny

Answer 14

Govt must show a compelling govt interest and must be narrowly tailored (LRM)

Question 15

Intermediate Scrutiny

Answer 15

court considers whether the law/regulation involves an important governmental interests and whether the law is substantially related to the achieving the objective

Question 16

Rational Basis

Answer 16

To pass the rational basis test, the statute or ordinance must have a legitimate govt interest, and there must be a rational connection between the statute’s/ordinance’s means and goals.

CHALLENGER MUST PROVE

Question 17

Lemon Test

Answer 17

i. Secular purpose
ii. Primary effect must be neither to advance/inhibit religion, AND
iii. No excessive entanglement between govt. and religion

Question 18

Marsh Test

Answer 18

Uphold practices engaged in by founders

If it’s old, we must uphold

Question 19

Endorsement Test

Answer 19

Govt must show:

1. No purpose to endorse religious matters
2. Reasonable person/observer would not think this is a govt endorsement in religious matters
3. No excessive govt entanglement w/ religion

Question 20

Coercion Test

Answer 20

Lee
Govt must show:
it was not coercing anyone in religious matters
–harder to apply to adults

Question 21

List of Fundamental Rights

Answer 21

i. Most of the BoR
ii. Acquire useful knowledge
iii. Parental right (control education/upbringing of kids)
iv. Right of Procreation Choices
1. Use contraceptives (Griswold)
2. No mandatory sterilization (Skinner)
v. Marriage
1. Who to marry (sometimes)
2. Whether to marry
vi. Sexual Acts in private
vii. Refuse life-saving nutrition
viii. Refuse unwanted medical care

Question 22

Is it a fundamental right?

Answer 22

If so apply strict scrutiny

Question 23

Roe/Casey/Dobbs

Answer 23

Roe=Trimester
Casey=viabilityx
Dobbs= Not fundamental

Question 24

Smith Test

Answer 24

(Threshold) Claimant has to show state has burdened the exercise of claimants sincere religious beliefs

(Govt) Law or action is neutral towards religion and generally applicable to religion and non religion
–If govt proves=rational basis review

UNLESS
–system of individualized exceptions or official has discretion to apply exception
–hybrid claim involving 2 const. rights

Question 25

Fundamental Rights Under Equal Protection

Answer 25

Electoral rights
interstate travel
Access to courts/appeals
Choices about procreation
Choices about marriage

Question 26

Suspect Classifications

Answer 26

Race (SS)
Alienage–State (SS)
Gender(IS)
Non-marital (IS)

APPLY STRICT SCRUTINY

Question 27

Quasi-Suspect Classification

Answer 27

Gender
Non-Marital Children

Apply INTERMEDIATE SCRUTINY