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First Amendment
University of North Carolina School of Law
Marshall, William P.

FALL, 2015
Standards of Review
       I.            Three standards
a.     When a court reviews the constitutionality of government action, it is likely to be choosing from among one of these three standards of review
                                                             i.      The mere rationality standard
                                                           ii.      The strict scrutiny standard
                                                        iii.      The middle-level review standard
    II.            Mere rationality
a.     Easiest one to satisfy
b.     When the court applies this “mere rationality” standard, the court will uphold the governmental action so long as two requirements are met:
                                                             i.       Legitimate state objective
1.     First, the government must be pursuing a legitimate governmental objective
a.     This is a very broad concept – practically any type of health, safety or “general welfare” goal will be found to be “legitimate.”
                                                           ii.      Rational relation
1.     Second, there has to be a “minimally rational relation” between the means chosen by the government and the state objective
2.     This requirement, too, is extremely easy to satisfy
                                                        iii.      Only if the government has acted in a completely “arbitrary and irrational” way will this rational link between means and end not be found
 III.            Strict scrutiny
a.     Hardest to satisfy
b.     This standard will only be satisfied if the governmental act satisfies two very tough requirements:
                                                             i.      Compelling objective
1.     First, the objective being pursued by the government must be “compelling” (not just “legitimate,” as for the “mere rationality” standard)
                                                           ii.      b. Necessary means
1.     Second, the means chosen by the government must be “necessary” to achieve that compelling end
2.     In other words, the “fit” between the means and the end must be extremely tight
                                                        iii.      No less restrictive alternatives
1.     In practice, this requirement that the means be “necessary” means that there must not be any less restrictive means that would accomplish the government’s objective just as well
IV.            Middle-level review
a.     In between these two review standards is so-called “middle-level” review
                                                             i.       “Important” objective
1.     Here, the governmental objective has to be “important” (half way between “legitimate” and “compelling”)
                                                           ii.       “Substantially related” means
1.     And, the means chosen by the government must be “substantially related” to the important government objective. (This “substantially related” standard is half way between “rationally related” and “necessary”)
   V.            Consequences of choice
a.     The court’s choice of one of these standards of review has two important consequences:
                                                             i.      Burden of persuasion
1.     Mere rationality
a.     The individual who is attacking the government action will generally bear the burden of persuading the court that the action is unconstitutional
2.     Strict scrutiny
a.     The governmental body whose act is being attacked has the burden of persuading the court that its action is constitutional
3.     Middle-level review
a.     Where “middle level” scrutiny is used, it’s not certain how the court will assign the burden of persuasion, but the burden will usually be placed on the government
                                                           ii.      Effect on outcome
1.     Mere rationality
a.     The governmental action will almost always be upheld
2.     Strict scrutiny
a.     The governmental action will almost always be struck down
                                                                                                                                     i.      For instance, the Supreme Court applies strict scrutiny to any classification based on race, and has upheld only one such strictly scrutinized racial classification in the last 50 years
3.     Middle level scrutiny
a.     There’s roughly a 50-50 chance that the governmental action will be struck down
VI.            Application
a.     Concentrate on choosing the correct standard of review which would be applied
b.     Once you have decided the standard, you can go further and make a prediction as to the outcome
                                                             i.      Examples

    Manuscripts submitted to crown officials -censor/approve/deny
2.     BUT ineffective, difficult to enforce, conducive to bribery
                                                           ii.      Constructive treason
1.     Written word could kill
                                                        iii.      Seditious libel
1.     1275 statute – Outlawed ‘any false news or tales whereby discord or occasion of discord or slander may grow between the king and his people or the great men of the realm’
2.     Point of change for modern law of seditious libel – Sir Coke’s report of SC case in 1606
a.     Libel against a private person may be punished criminally because it may provoke revenge – breach of the peace
b.     Libel against a govt. official is a greater offence
c.      True libel may be criminally punished
3.     No single method as effective to restrict the press as SL law as developed and applied by courts in c17
a.     In practice in c17 – judges punished any ‘written censure upon any public man whatever for any conduct whatever, or upon any law or institution whatever’ as SL
c.      Blackstone, 1769 (p5)
                                                             i.      Liberty of the press consists in laying no previous restraints upon publication – NOT in freedom from censure for criminal matter when published
                                                           ii.      To subject the press to restrictive power of a licensor is to subject all freedom of sentiment to the prejudices of one man and make him the arbitrary and infallible judge of all controverted points in learning, religion and govt.
                                                        iii.      BUT to punish any dangerous or offensive writings which when published shall on fair and impartial trial be adjudged to be of a pernicious tendency  = necessary for the preservation of peace and good order, of govt. and religion, the only solid foundations of civil liberty