Ross - Tests _ Standards.docx

1. Clear and Present Danger Test 

Key case: Schenck v. United States (1919)

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. 

Notes: 

The specific context of wartime in Schenck v. US served as the justification for government restriction of speech. The speech would have been permissible if it was uttered in the context of peacetime. Justice Holmes formulated this more permissive test to refine the bad tendency test, which based restriction on the belief that a form of speech has a sole tendency to incite or cause illegal activity.

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In Abrams v. US, the Supreme Court resorted to using the bad tendency test to uphold the conviction of Abrams. In Holmes’ dissenting opinion, he expressed that the publishing of the propaganda leaflets did not present any clear and imminent danger to the state and its war efforts. Intent to produce the desired outcome of the leaflets literally was lacking.

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The Court clarified in Gitlow v. New York that the test is to be used in a class of cases that involves acts that have not yet been legislatively determined to have a ‘substantive evil’. Consequently, the test did not apply in Gitlow since the conviction was based on an already-existing criminal anarchy statute.

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Justice Brandeis’ concurring opinion in Whitney v. California emphasized that the State had the right to restrict speech not just on the basis of a “fear of serious injury” but on the “probability of serious injury to the State” will occur.

2. Balancing of Interests 

Key Case: Dennis v. United States (1951)

When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented. 

Notes: 

Justice Frankfurter in Dennis v. US rejected the use of the clear and present danger test in this case, stating that the “demands of free speech in a democratic society as well as the interest in national security” are better served by the weighing of competing interests. According to him, the primary responsibility of ‘balancing’ belonged to Congress, which determines acts that pose danger to public interest.

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The effect of the introduction of the ‘balancing test’ in Dennis was to refurbish governmental power that was seemingly restricted by the clear and present danger test.

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The balancing test in Dennis revises the clear and present danger test in the sense that it recognizes the validity of governmental restriction in situations where the authorities would already have knowledge about a threat to public interest. In other words, the government need not wait for such plans to be taken into action before it does something about it.

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The Philippine Supreme Court preferred this test to the clear and present danger test in deciding Soriano v Laguardia. The latter’s use, the Court qualified, was restricted to cases that involve the overthrow of the government and “other evils” that undermine national security. The balancing test was more appropriate since the interest to protect children from immoral content in accessible television shows was a Constitutional mandate of the State.

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The conviction in Cox v. Louisiana on the grounds of obstruction of public passages was based on a balancing test. While the rights to free speech and to assemble peaceably are fundamental rights, their regulation was justified if it meant protecting the public convenience and access to roadways (likewise related to content-neutral regulation).

3. Brandendburg Test (Imminent Lawless Action) 

Key Case: Brandenburg v. Ohio (1969)

“…the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 

Notes: 

The standard of this test determined that speech advocating the use of force or crime could only be proscribed where two conditions were satisfied: (1) the advocacy is “directed to inciting or producing imminent lawless action,” and (2) the advocacy is also “likely to incite or produce such action.”

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The main opinion in Brandenburg essentially discredits the doctrine in Whitney and the clear and present danger rule in general, where “probability” of lawless action is used as a standard rather than the fear or threat of it. Rather, it affirms the reasoning used in Dennis (the “not improbable test” as described by Justice Douglas). Some of the opinions concur in the idea that the ruling in Brandenburg was just a restating of the balancing test laid out in Dennis.

4. Content-Based vs. Content-Neutral Test 

Key Case: Bayan v. Ermita (2006)

The reference to "lawful cause" does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the definition of public assembly content based, since they can refer to any subject. The words "petitioning the government for redress of grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. 

Notes: 

“Content-based” regulation refers to restriction of speech on the basis of what is intends to communicate. “Content-neutral” regulation, on the other hand, refers to the regulation of the place, time, and manner of public assemblies and other forms of expression.

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This principle is used to test restrictions on the freedom to assembly. Specifically, it has been invoked in our jurisdiction to raise the constitutionality of BP 880. The Court repeatedly held the legality of the law in different cases, and authoritatively stated in Bayan that it is a content-neutral law. Simply stated, the content of the speech is not relevant to the regulation performed by the government.

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In Bayan, the Court used the clear and present danger test to uphold the constitutionality of BP 880 (Sir Hilbay was not in favor of this reasoning).

5. O’Brien Test 

Key Case: U.S. v. O’Brien (1968)

“…government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” 

Notes: 

Used for cases that involve symbolic speech (acts that convey or express a particular idea). The O’ Brien tests regulations if they violate Constitutional prohibition on legislation of measures that abridge free speech. The Court ruled in O’ Brien that the law prohibiting the tampering of draft cards was constitutional and that the conviction was not related to a restriction of speech.  To pass the test, the law must: be within the Constitutional power of the government to enact; further a substantial government interest and be content-neutral; and prohibit no more speech than is essential to further that interest. 6. Rational Basis Test 

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Illustrative cases: Lofton v. Secretary (2004), Goodridge v. Department (2003), White Light v. City of Manila

“There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth…. It is unnecessary to consider now whether legislation which restricts these political processes such as voting, expression, and political association which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the prohibitions of the Fourteenth Amendment than are most other types of legislation, Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Notes: 

Originally formulated by the US Supreme Court in Footnote 4 of US v. Carolene Products Co., and is considered as the “most famous footnote” in constitutional law. Usually applied to economic legislation.

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Considered as the lowest level of scrutiny that the court may use in exercising judicial review.

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A controversy passes this standard as long as there is a substantial relation (White Light v. City of Manila) between the acts sought to be regulated by Congress some legitimate governmental purpose.

7. Strict Scrutiny Test

A legal standard to determine the constitutionality of a statute, used when the statute implicates a fundamental right or relates to a suspect classification under the equal protection clause (such as race). To determine if a statute passes the test, a court considers whether the government has a compelling interest in creating the law, whether the statute is "narrowly tailored" to meet the government's objectives, and whether there are less restrictive means of accomplishing the same thing. 

Notes: 

Strictest test applied in the exercise of judicial review. Usually used in equal protection cases where fundamental rights are at controversy. As opposed to the rational basis test where only a substantial government interest is needed, strict scrutiny demands a compelling government purpose to uphold the validity of a law.

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If a less restrictive means of achieving such compelling interest may be devised, the legislation must fail. In White Light v. City of Manila, the Court decided against the use of this standard for reviewing an ordinance for the reason that it might be “myopic” since the legislation affected different classes of individuals (hotel owners and their patrons).

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The Court must use strict scrutiny if one of these tests is met: 1. the impact is so "stark and dramatic" as to be unexplainable on non-racial grounds, as in Yick Wo v. Hopkins 2. the historical background suggests intent 3. the legislative and administrative records show intent

8. Intermediate Scrutiny Test 

Key case: Craig v. Boren

A legal standard to determine the constitutionality of a statute, when the statute applies to a quasi-suspect classification (such as gender). To determine if a statute passes the test, a court considers whether the statute involves important governmental interests and whether the law is substantially related to the achievement of important government objectives. 

Notes: 

Formulated in Craig v. Boren, where classification was gender-based. Several members of the Court were hesitant to apply strict scrutiny, as they were trying to avoid placing gender as another ‘suspect’ class alongside race and nationality. Likewise, the rational basis test did not suffice; there was a legitimate government interest forwarded (i.e. young people driving under the influence) but the basis of classification was flawed.

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This test is usually applied in equal protection gender controversies and stands in the middle of the rational basis and strict scrutiny tests as a standard for judicial review.

9. Sherbert Test

Under the Sherbert test, governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. The Sherbert test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct. (Employment Division v. Smith) 4

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Notes: 

This test requires the government to demonstrate a compelling interest in legislation that will burden the individual’s free exercise of religion.

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The Sherbert Test consists of four criteria that are used to determine if an individual's right to religious free exercise has been violated by the government. The test is as follows:  For the individual, the court must determine:

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1. 2.

whether the person has a claim involving a sincere religious belief, and whether the government action is a substantial burden on the person’s ability to act on that belief.

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If these two elements are established, then the government must prove

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that it is acting in furtherance of a "compelling state interest," and that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

The US Supreme Court declined to use this test in Employment Division v. Smith, citing that it would not apply the exemption granted by Sherbert to criminal statutes.

10. Lemon Test 

Illustrative case: Lee v. Weisman

“In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity." Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion."

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Endorsement Test 

Illustrative case: Lynch v. Donnelly

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition...[by] endorsement or disapproval of religion. Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion. 

Notes: 

According to the test, a government action is invalid if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion.

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The endorsement test is often invoked in situations where the government is engaged in expressive activities, such as graduation prayers, religious signs on government property, or religion in the curriculum.

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Sometimes subsumed into the Lemon Test.

12. Actual Malice Test 

Key case: New York Times v. Sullivan

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not. 

Notes: 

Adopted in our jurisdiction in Vasquez v. CA. Shifts the burden of proof to the public official who alleges that a publication was libelous.

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According to Sir, this is usually used in a Motion to Dismiss in order to demonstrate the lack of merit in a case for libel. Actual malice needs to be proven before a libel case can be properly filed.

13. Plain View Doctrine

The rule that allows a law enforcement officer to seize evidence of a crime, without obtaining a search warrant, when that evidence is in plain sight. For example, a policeman who stops a motorist for a minor traffic violation and sees a handgun on the back seat may conclude that the driver is unlawfully in possession of the gun, and may enter the car to seize it. 

Notes:

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For the plain view doctrine to apply for discoveries, it is required that: 1. 2. 3.

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the officer to be lawfully present at the place where the evidence can be plainly viewed, the officer to have a lawful right of access to the object, and the incriminating character of the object to be “immediately apparent.”

People v. Musa: The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.

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