Law 19983 on

Matching:

• Abrahams (Bad tendency Test)

• Clark V CCNN (homeless people protest)

• Gitlow (applied bad tendency test to states)

• Boy Scouts v Dale (permitted it to be boys only)

• Krishna (airports not a public forum)

Short Answer

• Miller Test

  • Prior to the SCOTUS review of obscenity, courts followed the Hicklin test which stated asked whether the matter corrupted those whose minds are innocent and in whose hands would the publication fall

    • Determined to restrict artistic expression

  • Prurient Interest Test

    • Before descending into the Miller Test, the court changed the test to ask whether to the average person, when applying the standards of the community, if the matter appeals to a sexual interest

    • Problem: court never agreed on what a prurient interest was

  • Miller Test

    • 1. Whether the average person, applying contemporary community standards, would find that the work as a whole appeals to the prurient interest

      • Reasonable person standard

    • 2. Whether it depicts offensive sexual conduct

    • 3. Whether it lacks serious artistic, social, or political value

• Compelling interest/rational basis/strict scrutiny protections and what cases get which

  • Compelling state interest: The court has found that the state has compelling interest when an individual’s public safety, public health, etc. Has been intruded on Constitutional rights. Using the rational basis test and the strict scrutiny test SCOTUS can evaluate the state’s compelling interest

  • Cases:

    • In New York v. Ferber (1982), the Court held that a state has a compelling interest in protecting children from sexual abuse and found a close connection between such abuse and the use of children in the production of pornographic materials.

    • Ashcroft v. Free Speech Coalition, the Court struck down as “overbroad” a provision of federal law that banned virtual child pornography as well as that employing live subjects.

  • Strict scrutiny is applied to cases that deal with political speech

    • Government has to see if the speech deals with an issue that is narrowly tailored to a governmental interest that may harm national security

    • Cases

      • RAV - allowed stake burning because banning it did not fit the narrowly tailor aspect. It was too broad.

      • Black - not allowed because burning the cross caused disruption and imminent danger

  • Rational basis: whether a law is rationally related to a legitimate government interest

    • Commercial speech - speech done on behalf of a company or individual for the intent of making a profit