- OK, LET'S GO
AHEAD AND GET STARTED

WITH THE TOPIC FOR NOW--

"LEVELS OF SCRUTINY,
JUDICIAL ANALYSIS."

AND A NOVICE WOULD JUST ASSUME
ANYTIME THAT THE SUPREME COURT

ANALYZES OR REVIEWS A CASE
THAT THEY WOULD ALL BE TREATED

EQUALLY, AND UNFORTUNATELY,
THAT'S NOT TRUE.

WHAT THE COURT DOES DO--IT
TAKES A LOOK AT THE ISSUE,

AND DEPENDING UPON THE
PARTICULAR ISSUE, WE WILL SEE

THAT THERE IS GOING TO BE A
DIFFERENT LEVEL OF SCRUTINY OR

A LEVEL OF ANALYSIS
THAT IS APPLIED TO THAT

PARTICULAR ISSUE.

SO LET'S RUN THROUGH THIS
AND PUT OUT IN FRONT OF US

ON THE SCREEN AND ALSO
VERBALLY HERE WHAT'S

BEING DISCUSSED.

SO THE SUPREME COURT AND
LEVELS OF SCRUTINY, SOMETIMES

REFERRED TO AS
LEVELS OF ANALYSIS.

AND THE WORD
"SCRUTINY" HELPS OUT.

IT'S A LITTLE BIT
MORE PARTICULAR.

IT GIVES US A SENSE
OF WHAT'S GOING ON.

HOW CLOSELY DO THE 9 JUSTICES
SCRUTINIZE OR ASSESS THE CASE

BEFORE IT.

SO FIRST, JUST THE
DESCRIPTIONS OF WHAT THOSE

TERMS REFER TO.

FIRST, STRICT SCRUTINY,
AS WE CAN SEE OR AS

YOU CAN HEAR.

THE COURT APPLIES THIS
STANDARD TO CASES INVOLVING

FUNDAMENTAL FREEDOMS AND
RACIAL CLASSIFICATIONS,

AND WITH RESPECT TO SELECTIVE
INCORPORATION, THE COURT,

ON A CASE-BY-CASE BASIS,
DECIDES WHAT IS A FUNDAMENTAL

FREEDOM IN A DEMOCRACY,
AND THERE IS TABLE 4-1,

THERE'S A TABLE THAT SHOWS
THESE INCORPORATING CASES OVER

THE YEARS, AND IN 1925,
GITLOW VS. NEW YORK,

IS THAT INCORPORATING
CASE FOR FREEDOM OF SPEECH.

ASSEMBLY, BEING ABLE TO GATHER,
AND PERHAPS THE LINK THERE IS

ADDRESSED TO POLITICAL RALLIES
AND SPEECH--SPEECH-MAKING OR

COMMUNICATING IDEAS.

THOSE ARE DEEMED AS
FUNDAMENTAL FREEDOMS THAT

DESERVE THE HIGHEST
PROTECTIONS FROM THE COURT,

AND IF THERE IS A LAW OR
A GOVERNMENT IS GOING TO

INFRINGE UPON THEM, IT'S GOING
TO BE THE MOST STRINGENT TEST

THAT HAS TO BE MET TO SATISFY
THIS LEVEL OF ANALYSIS.

SO STRICT SCRUTINY IS ONE
PARTICULAR LEVEL OF ANALYSIS

THAT THE COURT CAN APPLY.

THE OTHER TWO THAT YOU CAN SEE
ON THE SCREEN HERE--IF WE GO

ALL THE WAY DOWN TO THE
BOTTOM, THE LOW LEVEL

OF SCRUTINY, WHICH IS VERY
DEFERENTIAL, AND IT'S

EVERYTHING ELSE THAT IS NOT
GENDER OR NOT IN THE STRICT

SCRUTINY LEVEL OF ANALYSIS
INVOLVING RACIAL

CLASSIFICATIONS OR THOSE ON A
CASE-BY-CASE BASIS THAT

THE COURT HAS DEEMED AS
FUNDAMENTAL

IN A DEMOCRATIC SOCIETY.

SO THERE ARE 3 LEVELS,
AND THEY EACH ARE DIFFERENT.

STRICT--THE HARDEST; KIND OF
A MID LEVEL OR HEIGHTENED

SCRUTINY, ALSO CALLED
AN INTERMEDIATE LEVEL

OF SCRUTINY; AND
THEN THE LOW LEVEL.

SO THOSE ARE THE 3 LEVELS.

WITH EACH OF THE LEVELS COMES
A CORRESPONDING TEST THAT HAS

TO BE MET.

SO NOW LET'S TAKE A LOOK
AT THE LEVELS OF SCRUTINY

AND THEN THE TEST.

HOW DO THE JUSTICES
APPLY THE TEST?

AND SO STRICT SCRUTINY
REQUIRES THAT THE GOVERNMENT

PROVE THE LAW AT HAND
IS NECESSARY TO ACHIEVE

A COMPELLING STATE INTEREST
AND THE REMEDY IS NARROWLY

TAILORED TO MEET
THAT OBJECTIVE.

SO IF THERE IS A LAW THAT
INFRINGES UPON FREE SPEECH,

THERE HAS TO BE A COMPELLING
STATE INTEREST FOR FREE SPEECH

TO BE INFRINGED UPON, AND
IT MUST BE INFRINGED UPON

IN THE MOST NARROW
MANNER POSSIBLE.

SO THE STRICT SCRUTINY LEVEL
OF ANALYSIS COMES WITH THIS

LANGUAGE THAT IS THE
COMPELLING STATE INTEREST

TEST, WHICH WILL SATISFY THE
STRICT SCRUTINY ANALYSIS.

NOW IF WE CONTRAST THAT WITH
THE CLOSEST LEVEL OF ANALYSIS

TO IT--THE INTERMEDIATE LEVEL
OF SCRUTINY--AND FOR GENDER

CASES, THOSE REQUIRE THAT
ANY LAW OR PROGRAM THAT TAKES

GENDER INTO ACCOUNT THAT
THERE HAS TO BE A SUBSTANTIAL

RELATION TO THAT PARTICULAR
LAW AND AN IMPORTANT

GOVERNMENTAL OBJECTIVE
OR AN IMPORTANT

GOVERNMENTAL INTEREST.

NOW, THIS IS A SUBTLE
SHIFT IN LANGUAGE.

IT'S GOING FROM A COMPELLING
STATE INTEREST TO AN IMPORTANT

GOVERNMENTAL INTEREST.

AND THERE IS A SUBTLE
DIFFERENCE BETWEEN SOMETHING

THAT IS COMPELLING.

IT MUST BE DONE VERSUS JUST AN
IMPORTANT INTEREST THAT--YOU

KNOW, IT'S PRETTY IMPORTANT,
BUT IT'S NOT COMPELLING.

YOU SEE THE INTERPRETIVE
NATURE OF LANGUAGE THAT IS

GOING ON HERE.

AND THEN WE BRING IN

THE LOWEST LEVEL OF SCRUTINY,

AND THIS JUST REQUIRES THAT
THE LAW BE RATIONALLY RELATED

TO ACHIEVING A
GOVERNMENTAL OBJECTIVE.

SO WITH RESPECT TO THE FREEDOM
FOR THE GOVERNMENT TO PURSUE

PROGRAMS AND TO INITIATE LAW--
IF YOU ARE HOUSED AT THE LOW

LEVEL OF SCRUTINY, THAT IS
THE MOST DEFERENTIAL

BECAUSE THE PROGRAM
OR LAW JUST HAS TO BE

RATIONALLY RELATED.

THERE MUST BE A REASONABLE
CONNECTION TO A GOVERNMENTAL

OBJECTIVE--NOT AN IMPORTANT
GOVERNMENTAL OBJECTIVE,

BUT JUST A
GOVERNMENTAL OBJECTIVE.

VERSUS THE OTHER TWO.

AT THE INTERMEDIATE LEVEL,
THAT'S A SUBSTANTIAL RELATION

TO AN IMPORTANT GOVERNMENTAL
OBJECTIVE VERSUS A COMPELLING

STATE INTEREST BEING
NARROWLY TAILORED TO MEET

THAT OBJECTIVE.

SO THE LEVELS OF ANALYSIS,
THE LEVELS OF SCRUTINY,

ALL CASES, ALL SUBJECT MATTERS
ARE NOT TREATED EQUALLY WHEN

THEY COME BEFORE THE COURT,
AND THAT CAN GO A LONG WAYS

TOWARDS HELPING US
EXPLAIN THE RESULT.

AND SO WITH RESPECT TO FLAG
BURNING, ONCE FLAG BURNING IS

DEEMED AS SPEECH AND NOT
BEHAVIOR--AND SO IN THE CIVIL

LIBERTIES PART ONE,
FLAG BURNING IS ADDRESSED,

AND IN A MUCH MORE NARROW
FOCUS, WE'RE TALKING

ABOUT POLITICAL SPEECH.

SO NOT ONLY IS IT SPEECH,
IT'S POLITICAL SPEECH.

WE KNOW THAT THE LEVEL OF
ANALYSIS IS NOW UP THERE

IN THE REALM OF
STRICT SCRUTINY.

AND JUST FROM THE RECENT
SLIDES, THE TEST THAT HAS TO

BE SATISFIED SO THAT
THE JUSTICES ARE OK

WITH A PARTICULAR LAW BANNING
FLAG BURNING IS THAT WHAT?

WHAT IS THE TEST?

WELL, THE TEST IS THAT
THERE HAS TO BE A COMPELLING

STATE INTEREST.

AND SO IS THERE A COMPELLING
STATE INTEREST TO BAN

THE BURNING OF THE FLAG?

AND IF YOU READ THE OPINION,
AT SOME POINT IN THE MAJORITY

AND DISSENTING OPINIONS,
IF WE'RE TALKING ABOUT SPEECH,

WE'RE GONNA HAVE TO FIND SOME
COMPELLING STATE INTEREST.

AND PUBLIC SAFETY OFTENTIMES
IS DEEMED AS QUITE ESSENTIAL

TO THE OBJECTIVES OF
ANY GOVERNMENT,

AND IT'S IMPORTANT.

IT'S A COMPELLING INTEREST.

IT'S BOTH.

IT'S THE BASIC.

IT'S MAINTAINING ORDER, RIGHT?

TEXAS FAILED, IN THE EYES OF
THE MAJORITY, TO DEMONSTRATE

THAT THERE WAS ANY SUCH
COMPELLING STATE INTEREST,

THAT THERE WAS ANY DANGER AT
ALL TO THE PUBLIC INTEREST.

I'M NOT--WELL, THE PUBLIC
SAFETY IS THE PUBLIC INTEREST,

BUT THERE WASN'T ANY
CONNECTION BETWEEN FLAG

BURNING THAT MAY OCCUR OR THAT
OCCURRED INTO A WIDESPREAD

THREAT OF VIOLENCE OR
THE PUBLIC SAFETY.

THE COURT JUST DID NOT
AGREE WITH THAT WHATSOEVER.

MORE SPECIFICALLY, YOU MIGHT
FIND BETWEEN THE MAJORITY

AND DISSENTING OPINIONS,
YOU MIGHT FIND A DEBATE OVER

WHAT'S THE PROPER
TEST TO APPLY, RIGHT?

BECAUSE THE MAJORITY BELIEVES
THIS IS SPEECH, THIS IS

SYMBOLIC EXPRESSION,
AND THEREFORE YOU HAVE TO HAVE

A COMPELLING STATE INTEREST.

IF YOU'RE IN THE MINORITY--
OOP, BEFORE WE GO THERE--IF

YOU'RE IN THE MINORITY AND YOU
SEE THIS AS BEHAVIOR, WELL,

NOW MAYBE YOU DON'T NEED A
COMPELLING STATE INTEREST TO

REGULATE BEHAVIOR, DO YOU?

SO DEPENDING UPON HOW YOU
DETERMINE FLAG BURNING--IS IT

SPEECH OR BEHAVIOR?--NOT ONLY
YOU MIGHT GO DOWN THE PATH

TOWARDS BEING ABLE TO REGULATE
AND EVEN BAN IT, BUT THERE'S

A CORRESPONDING TEST BASED
UPON THE LEVEL OF ANALYSIS

AND SCRUTINY APPLIED THAT
HAS TO BE SATISFIED.

SO IF YOU GO AWAY FROM THE
REALM OF SPEECH, POLITICAL

SPEECH THAT GETS THE HIGHEST
LEVEL OF ANALYSIS, TO MERE

BEHAVIOR, WELL, THERE ARE MANY
IMPORTANT REASONS TO REGULATE

BEHAVIOR, VERSUS COMPELLING
INTEREST, NEEDED TO REGULATE

SPEECH, MORE IMPORTANT
POLITICAL SPEECH.

AND SO AS WE TRANSITION HERE

TO AFFIRMATIVE ACTION CASES,

SINCE THEY TAKE RACE INTO
ACCOUNT, WE KNOW THAT THEY ARE

GOING TO RECEIVE
STRICT SCRUTINY.

AND SO WHY IS IT THAT WE
TALK ABOUT COMPELLING

STATE INTEREST?

IS THERE ONE FOR TAKING
RACE INTO ACCOUNT?

IT'S RELATED TO THE PREVIOUS
COURT CASES WHICH HAVE DECIDED

THAT RACIAL ELEMENTS IN
ANY GOVERNMENTAL LAW ARE

AUTOMATICALLY ELEVATED TO
THE STRICT LEVEL OF SCRUTINY

AND THE THIRD LEVEL OF
ANALYSIS, THE HIGHEST LEVEL

OF ANALYSIS, AND YOU HAVE
TO HAVE A COMPELLING STATE

INTEREST TO TAKE
THAT INTO ACCOUNT.

SO THAT'S JUST SOME FURTHER
DISCUSSION WITH RESPECT TO

COURT CASES.

CIVIL LIBERTIES AND CIVIL
RIGHTS ARE HOUSED IN THE ROLE

OF THE JUDICIAL BRANCH
AND DECISIONS WHICH BECOME

PRECEDENTS, SO I HOPE
THIS BACKGROUND HELPS OUT

SOMEWHAT IN THAT.