Tests

Question 1

Brandenburg- Incitement

Answer 1

1. did the statement encourage imminent lawless conduct
2. the facts must show that the speech might actually cause imminent lawless conduct

Question 2

Daily Mail Test-

Answer 2

Public Disclosure of Private Facts

For government actors to regulate:

1. the dissemination of truthful information;
2. when the information was lawfully obtained;
3. and the information concerns a matter of public significance;

the government must:

1. establish a need of the highest order; and
2. narrowly tailor the statute so as to regulate the minimum amount of speech necessary to accomplish the governments need.

Question 3

Obscenity

Answer 3

Miller Test- Obscenity

1. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interests;
2. whether the work depicts or describes in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and
3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Question 4

Fighting Words- Hess

Answer 4

Hess with Brandenburg

1. be directed to a specific recipient; and
2. the words must move a ‘reasonable person’ to anger or violence.

Profanity can’t be fighting words because it’s not directed at a specific person.

Question 5

Time/Place/Manner

Answer 5

TPM

1. they are content neutral;
2. they are narrowly tailored to serve a significant government interest; and
3. they leave open ample alternative channels for communication of the information

Question 6

Expresive/Symbolic Speech

Answer 6

O’brien Test

1. it is within the government’s power to regulate;
2. the regulation furthers an important or substantial governmental interest;
3. the regulation is content neutral;
4. the regulation is narrowly tailored to regulate the minimum amount of speech necessary

Question 7

Strict Scrutiny Test

Answer 7

Strict Scrutiny

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All racial classifications imposed by government must be analyzed by a reviewing court under strict scrutiny. This means that such classifications are constitution only:

1. the law must further a compelling state interest of the highest order; and
2. the law is narrowly tailored to achieve that interest

Question 8

Commercial Speech

Answer 8

Commercial Speech

1. the speech must concern lawful activity and not be misleading;
2. the governmental interest in regulating the speech must be substantial.
3. If these two prongs are met then it must be determined whether the regulation directly advances the governmental interest asserted; and
4. narrowly tailored to serve this interest

Question 9

Actual Malice Test

Answer 9

• knowing false statement; or
• act with reckless disregard for statement’s truth

Question 10

Zelman Test

Answer 10

Establishment Clause Violation?

Government action must:

1. have a secular legislative purpose
2. have multiple ‘nets’/options that government funds
3. be the result of a private, independant choice

Question 11

Rational Basis Test

Answer 11

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Classifications in laws that do not draw distinctions on the basis of a suspect class must be upheld so long as

1. the classification is rationally related
2. to a legitimate state interest

Question 12

Intermediate Scrutiny Test

Answer 12

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Intermediate-Scrutiny Test- all gender claissifications imposed by government must be analyzed by a reviewing court under the intermediate-scrutity standard.

This means that such classifications are constitutional only:

1. if they serve important government objectives; and
2. are substantially related to the achievement of those objectives

This test tolerates some level of separate but equal if its non-stigmatic.

Question 13

Speech Outline

Answer 13

1. 1st A text
2. Theories of speech
3. 14A Due Process
4. Threshold question
5. symbolic or pure speech

Question 14

Inciting Action

Answer 14

Hess

3 factors to determine if speech is inciting action (under Brandenburg)

• directed at specific person or group
• tone of speech consistent with others
• advocacy for action later or vague

Question 15

R.A.V.

Answer 15

Neutrality & Secondary Effects

• government may not proscribe some words and permit others, when distinction is based on content or viewpoint; restriction need to be viewpoint neutral
• can regulate speech (content) based on secondary effects
  
  • ex: burning cross would cause a fire as a secondary effect
  • secondary effects must be content neutral for it to be restricted

Question 16

Free Exercise

Answer 16

Smith

A prohibition of religious conduct is valid if it is a:

• criminal law of general applicability(applies to everyone);
• law is content neutral