Term
| Fundamental Fairness (1908) |
|
Definition
| there are certain rights that are so fundamental to democracy that ordered liberty and justice could not exist without them. |
|
|
Term
| Valid Secular Policy (1940) |
|
Definition
| law applied must have legitimate legislative purposes and must be neutrally and generally applied |
|
|
Term
|
Definition
| law applied must have a compelling governmental interest and must be applied through the least restrictive means |
|
|
Term
|
Definition
1. must have secular legislative purpose 2. neither advance nor inhibit religion
3. no fostering of excessive entaglement with religion |
|
|
Term
|
Definition
1. if case is a hybrid, deals with two legal issues, S2
2. if case is only free exercise, VSP |
|
|
Term
|
Definition
| must have a secular legislative purpose and neither advance nor inhibit a particular religion |
|
|
Term
|
Definition
1. cannot force anyone to participate in a religion against their will
2. cannot violate a particular religion |
|
|
Term
| Clear and Present Danger (1919) |
|
Definition
| when words are used in war circumstances and create a clear and present danger based on their proximity and degree, bringing about substantive evils |
|
|
Term
|
Definition
| do words have a tendency to bring about evil consequences? |
|
|
Term
|
Definition
| if speech is likely to cause a direct incitement of violence and force, the speech isn't protected |
|
|
Term
| Clear and Probable Danger (1951) |
|
Definition
| the gravity of evil discounted, by the probability they will incite violence/probability they will occur |
|
|
Term
|
Definition
| government may regulate if words, for a man of common intelligence, by their very utterance, tend to cause a direct incitement of violence with direct injury causing an immediate breach of peace |
|
|
Term
|
Definition
| law is unconstitutional if it places a substantial obstacle to a woman seeking the abortion of a nonviable fetus - if yes, STRICT SCRUTINY, if no, use RATIONAL BASIS |
|
|
Term
|
Definition
| right to engge in such conduct is deeply rooted in nations history and legal tradition or implicit in the concept of ordered liberty. worse than SS. Must also have a compelling governmental interest. |
|
|
Term
| O'Brien Test (1968) (speech and nonspeech and there is a compelling interest to limit the speech for the severity of the nonspeech - safety) |
|
Definition
When speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest must be present to limit free speech.
1) is this speech?
yes --> SS |
|
|
Term
| TEXAS v. JOHNSON Test of Symbolic Speech (1989) (figure out if action itself constitutes speech) |
|
Definition
1) if conduct is expressive w/ and intent to convey a particularized message is speech
2)whether the likelihood is so great that the message would be understood by those who viewed it --> SS |
|
|
Term
|
Definition
| a rational relation to a legitimate governmental interest (more lax than strict scrutiny - this is better than the state) |
|
|
Term
|
Definition
| 1. must have secular legislative purpose, 2. must be neutrally applied |
|
|
