Final- Short Answer Outlines Flashcards
0
Q
Sherbert test
A
- Is there compelling gov interest
2. Is it being pursued in the least restrictive means?
1
Q
RFRA 1993
A
- Clinton, return to Sherbert test
- Congress disagrees with ED v. Smith decision
- Boerne v. Flores, church renovation, RFRA cannot protect state decisions
2
Q
Clear and present danger
A
- After Schneck v. US this becomes public metaphor and standard 1st amendment cases
- Laws prohibiting C&PD speech are constitutional
- Replaced by Brandenburg v. Ohio where speech must promote “imminent lawless action”
3
Q
Lemon Test (establishment clause)
A
- Pennsylvania superintendents purchase secular & non materials
- Contrasts with Everson v. BOE
- Creates Lemon test
4
Q
Lemon Test
A
- Statutes must have secular legislative purpose
- May neither advance nor prohibit religion
- May not foster any “excessive entanglements” with religion
5
Q
State Action Docterine
A
- Protections in the constitution only apply to the coercive power of state against individual, not individual against individual
- CR case of 1883 clarifies discrepancies regarding this from CR 1875
6
Q
Sherbert Test (Free Exercise Clause)
A
- Sherbert v. Verner Sabbath work
- Court rules in her favor and makes text
- Free exercise clause states congress shall make no law respecting or prohibiting religion
7
Q
Categories of unprotected speech in Chaplinsky
A
- Establishes fighting words
- His preaching was offensive to men of common intelligence and average understanding
- Lude and obscene, profane, liablest, and fighting/injuring through speech
8
Q
Prior Restraint and the First Amendment
A
- Imposed gov censorship
- 1st amendment makes this unconstitutional
- Certain provisions like Miller Test exist
9
Q
Miller Test
A
Requires people and businesses to consider
- Would the average person find this prurient or offensive
- Does the work depict sexual conduct or excretory functions in an offensive way
- Does it as a whole lack literary, artistic, political, or scientific value.
10
Q
O’Brien Test (Freedom of Speech)
A
- Burns draft card
- Court respects communication, but not destruction of gov property
- Creates O’Brien test
11
Q
O’Brien Test
A
Laws must
- Be within the constitutional power of the gov to enact,
- Further important or substantial gov interest
- Be unrelated to the suppression of expression
- If the gov interest outweighed suppression of speech
12
Q
Flag Burning and First Amendment
A
- Texas v. Johnson
- Convicted under Texas statute
- Overturned by SC because communicative action is protected under freedom of speech. Offensive does not hold grounds of illegal
- Hard to carve our freedoms of speech
13
Q
Espionage Act 1917
A
- Similar to 1878 sedition act
- Failure to comply = fine or prison
- Brings panic to citizens
- Also leads to Schneck decision, calculus different
14
Q
Standards of Review under Equal Protection Clause
A
- Advancement > conflicting decisions
- Stare decisis defied in racial and religious freedom cases protected by Equal Protection over time
- Court allows for “Benine” discrimination, we see standards change from decisions like Plessy to Brown
