A fundamental right is a right, such as the freedom of speech, that is essential because without it, the individual loses the ability to protect other rights. This term was coined in Palko v CT.
Justice Stone added this footnote to an opinion which became precedent for ruling on legislation that prohibits speech. It states that a law which prohibits a fundamental right, such as freedom of speech, must be subject to the strict scrutiny test. Once legislation infringes on the freedom of speech, it is more difficult for an individual to protect other freedoms and rights.
The strict scrutiny test is used when a law infringes on first amendment rights or another fundamental right. The test says that in order to be constitutional, a law must be narrowly tailored to a compelling state interest. This test is the most difficult for a state to prove necessary because in limiting the fundamental right, the law must show the limitation is the only way the state can achieve a vital and overwhelming important interest.
The intermediate scrutiny test was created as a part of the four-part test for symbolic speech as ruled in US v O'Brien and states that a law must be substantially related to an important state interest. This test is used for laws that target action and not speech directly, but in the effort of achieving that interest the law may indirectly prohibit speech. Easier for states to prove reason for law than strict scrutiny but harder than rational basis test. It is used for symbolic speech and other types of speech that are seen as less important such as commercial.
Rational basis test
A law must be rationally related to a legitimate state interest. This is the normal scrutiny the Supreme Court uses when testing whether legislation is constitutional. The language makes it easy for the state to prove constitutional. This is because the Supreme Court views legislation that does not touch on fundamental rights as the prerogative of the state.
Dual theory of free speech
There are two types of speech: 1. Speech that's protected and 2. Categories of speech that aren't protected, includes: the lewd and obscene, the profane, the libelous and the insulting or fighting words.
One of three types of speech that is not historically protected in constitution. SC test that determines if speech is "fighting words" with the following test established in Cohen v CA:
*Words directed at individuals
*Intended to incite
*Aimed at hostile crowds
If speech is fighting words, the SC will use rational basis scrutiny to rule on legislation.
Speech that is considered part-speech and part-action. It is regulated by intermediate scrutiny as determined in US v O'Brien. To determine if speech is expressive action, the SC uses the following test:
*The regulation is within the constitutional power of the govnt
*It furthers a substantial gov't intererst
*That interest is unrelated to free expression
*The restriction is no greater than is essential to the furtherance of that interest.
One of the three types of speech that is not historically protected in the C. SC determines if speech is libel with the following test as established in Gertz v Welch:
*Public persons must prove actual malice
*Private persons in matters of general public interest: state law, but must prove at least negligence (intermediate scrutiny) AND the actual malice standard required to award punitive damages
*Private persons in matters of private interest: state law
One of the three types of speech not historically protected in the C. SC determines if speech is obscenity with the following test as established in Miller v CA:
*Whether the average person, applying contemporary [local] community standards,
*Would find that the work, taken as a whole, appeals to the prurient interest
*Whether the work depicts sexual conduct in a patently offensive way
*Whether the work, taken as a whole, lacks serious literary value
Speech that was never particularly important to the SC. The first legal test to determine if the gov't can regulate commercial speech was established in VA State Board v VA Citizens Council :
*When it is misleading and untruthful
*When gov't interest is substantial
Later, two more prongs were added to the test in 44 Liquormarket v RI:
*When regulation advances the gov't interest
*When the regulation is no more extensive than necessary
When legislation makes distinctions between content of speech. Example: a Christian group is allowed to have a parade but a Jewish group is not allowed to parade. Legislation, to be ruled as constitutional, must either include all speech or ban it all, but not a type. Time, place and manner distinctions are allowed.
Important exception in early 20th century to libel claims. "Fair comment" was seen as appropriate during the contest between political opponents.
Printing something that is false with complete disregard of the truth and with an evil intent to harm a person's character
English rule in 1890s defines obscenity as anything with the intent to corrupt those whose minds can be influenced. This was made to protect or shelter women and children. It focuses on the audience rather than content.
Places where people have traditionally demonstrated for their rights/ traditionally used for public discussion (streets, parks, train stations, mall). Speech cannot be regulated in public forums.