Tests Flashcards
(28 cards)
What is the requirement for Strict Scrutiny?
The means must be necessary (narrowly tailored) towards a compelling state purpose.
What does Rational Basis Scrutiny require?
The means must be rationally related to a legitimate government purpose.
What is the requirement for Intermediate Scrutiny?
The means must be substantially related to an important government interest.
What are the steps to analyze FR DPC?
- State Action 2. Right involved (Fundamental Right or Non-Fundamental Right area of life) 3. Apply appropriate standard.
What are the steps to analyze EPC?
- State Action 2. Class (Suspect/Non-Suspect/Quasi-Suspect; Discriminatory impact and intent?) 3. Apply standard.
What is the standard for discrimination against noncitizens?
SS (Graham) except [SF] 1. Self-government/democratic process (Foley) 2. Discriminatory federal laws.
What are the steps to analyze Religious Freedom?
- State Action 2. Bears on religious practice 3. 1st Amdmt + 14th Incorporation 4. Smith test.
What are the components of the Smith test?
- Neutral (no animus) 2. Generally Applicable 3. Incidental Burden.
What are some Free Exercise Fact Patterns?
- School Prayer (Bremerton) 2. State Denial of Public Funding (Trinity Lutheran) 3. State Interference with Choice of Clergy (Hosanna Tabor).
What are the steps to analyze the Establishment Clause?
- State endorsement/coercion/involvement 2. Bremerton test 3. Fact pattern analogies.
What does Establishment entail?
(endorsing, favoring, promoting, coercing into religion).
What is the standard for discrimination among religions?
SS (Larson).
What does the Bremerton test focus on?
Historical 1. understanding and 2. practice.
What are some Establishment Fact Patterns?
- School prayer Bremerton 2. State aid to religious institutions Zelman 3. Religious Symbols/Public Practice American Legion.
What is the difference between Content Based and Content Neutral?
Content Based (SS) or Content Neutral (IS+Intermediate Tailoring).
What are the issues related to Vagueness, Overbreadth, and Prior Restraint?
- Vagueness: A person of common intelligence can’t tell what speech is prohibited. 2. Overbreadth: (substantial/real). 3. Prior Restraint: 1. Administrative licensing or 2. judicial system prevents speech.
What is involved in Forum Analysis?
- Public forum (traditional/designated) 2. Limited Public Forum (Lamb’s Chapel) 3. Private forum.
What does ‘Public forum means Content neutral’ imply?
1IS for content neutral; Content based = SS.
What can be regulated in limited/private forums
Can be limited groups or topics; permissible if 1. Reasonable 2. Viewpoint Neutral.
What is the distinction between high value and low value speech?
High value (SS) vs low value speech (depends on type).
What are the categories of speech?
Political vs. Incitement, True threats, Fighting words.
What is required for Incitement under Brandenburg?
Harm caused by speech must be: 1. Imminent 2. Intended 3. Likely.
What does the Cantwell case establish regarding crowds? (CP)
If there is a clear and present danger to the public peace or order, may prevent or even punish.
What defines True Threats?
Expression directed to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.
