7) Equal Protection

Question 1

What are the questions for equal protection?

Answer 1

1. What is classification?
2. What level of scrutiny?
3. Does it meet scrutiny?

Question 2

To what does equal protection apply?

Answer 2

1. State/local governments

2. Federal government through due process clause of 5th Amend.

Question 3

Classifications based on race and national origin: test, ways to prove

Answer 3

1. Strict scrutiny
2. Two ways to prove:
   (a) classification exists on face of the law
   (b) discriminatory impact AND discriminatory intent

Question 4

Racial classifications benefitting minorities

Answer 4

1. Strict scrutiny
2. Numerical set-asides require clear proof of past discrimination
3. Educational institutions may use race as one factor in admissions decisions to benefit minorities and enhance diversity
4. Public schools may not use race as factor in assigning students to schools unless strict scrutiny met

Question 5

Classifications based on sex: test, ways to prove

Answer 5

1. Intermediate scrutiny; only allowed if exceedingly persuasive justification
2. Two ways to prove:
   (a) classification exists on face of the law
   (b) discriminatory impact AND discriminatory intent

Question 6

Sex classifications benefitting women

Answer 6

1. If based on role stereotypes, not allowed

2. If designed to remedy past discrimination or differences, allowed

Question 7

Alienage classifications

Answer 7

1. Must meet strict scrutiny

2. When Congress discriminates against aliens, rational basis test

Question 8

Certain privileges may be reserved only for citizens, not aliens

Answer 8

1. Voting
2. Jury service
3. Being police officer, teacher, probation officer

Question 9

Discrimination against non-marital children

Answer 9

1. Intermediate scrutiny

2. Laws denying benefit to all bastards, but granting it to all marital children are unconstitutional

Question 10

Age, disability, wealth, government economic regulations, sexual orientation discrimination are all…

Answer 10

Rational basis

Question 11

Difference between content-based and content-neutral restrictions on speech

Answer 11

1. Content-based restrictions: strict scrutiny
   (a) subject matter restriction
   (b) viewpoint restriction
2. Content-neutral restrictions: intermediate scrutiny

Question 12

Prior restraint

Answer 12

1. Stopping speech before it occurs
2. Must meet strict scrutiny
3. Court orders must be complied with until vacated or overturned—if violated, person barred from later challenging it
4. Gag orders on press to prevent prejudicial pre-trial publicity not allowed

Question 13

When can government require license for speech?

Answer 13

1. Only if important reason for licensing and clear criteria leaving almost no discretion to licensing authority
2. Must be procedural safeguards such as prompt determination of requests for licenses and judicial review of denials

Question 14

Vagueness and overbreadth

Answer 14

1. Law constitutionally vague if reasonable person cannot tell what speech is banned and what is allowed
2. Law constitutionally overbroad if regulates substantially more speech than constitution allows

Question 15

Fighting words

Answer 15

Not protected speech

Question 16

Symbolic speech

Answer 16

1. Government may regulate conduct that communicates if has important interest unrelated to suppression of message AND if impact on communication is no greater than necessary to achieve government’s goal
2. Flag burning: protected
3. Burning draft card: not protected
4. Burning cross: protected unless threat
5. Anonymous speech: protected

Question 17

Incitement of illegal activity

Answer 17

1. Unprotected
2. Government may punish speech if substantial likelihood of imminent illegal activity AND speech is directed to causing imminent illegality

Question 18

Obscenity and sexually-oriented speech test

Answer 18

1. Material must appeal to prurient interest, or shameful or morbid interest in sex
2. Material must be patently offensive under law prohibiting obscenity
3. Taken as whole, material must lack serious redeeming artistic, literary, political, or scientific value as determined by national standard

Question 19

Zoning adult bookstores and movie theaters

Answer 19

Government may use zoning laws to regulate their number

Question 20

Child pornography

Answer 20

1. May be completely banned, even if not obscene

2. Children must be used in production of material

Question 21

Private possession of pornography

Answer 21

1. Government may not punish private possession of obscene materials
2. Government may punish private possession of child pornography

Question 22

Businesses in violation of obscenity laws

Answer 22

Government may seize their assets if convicted of violation of obscenity laws

Question 23

Commercial speech

Answer 23

1. Advertising for illegal activity, false and deceptive ads not protected
2. Even true commercial speech that inherently risks deception can be prevented
   (a) states may prevent professionals from advertising or practicing under trade name
   (b) states may prohibit in-person attorney solicitation of clients for profit
   (c) government may not prohibit accountants from in-person solicitation of clients for profit
3. Other commercial speech can be regulated by government if intermediate scrutiny met

Question 24

Defamation of public official or running for public office

Answer 24

Can recover only by proving with clear and convincing evidence the falsity of statement and actual malice (D knew statement was false or acted with reckless disregard for truth)

Question 25

Defamation of public figure

Answer 25

Can recover by proving falsity of statement and actual malice

Question 26

Defamation of private figure and matter of public concern

Answer 26

1. May recover compensatory damages by proving falsity of statement and negligence by D
2. May recover presumed or punitive damages by showing actual malice

Question 27

Defamation of private figure and matter not of public concern

Answer 27

May recover presumed or punitive damages without proving actual malice

Question 28

Truthful reporting of information legally obtained from government records

Answer 28

State may not punish

Question 29

Media broadcasting tape of illegally intercepted and recorded call

Answer 29

State may not punish as long as media did not participate in the illegality AND matter of public importance

Question 30

When does public have 1st Amend. right to attend government proceedings and access to government papers?

Answer 30

Criminal trials and pre-trials

Question 31

Speech by government employees on the job in performance of duties

Answer 31

Not protected

Question 32

Public forums

Answer 32

1. Government properties constitutionally required to make available (parks, sidewalks)
2. Regulations must be subject matter and viewpoint neutral, OR strict scrutiny
3. Regulations must be time/place/manner regulation serving important government purpose AND leaving adequate alternative places for communication
4. Permit fee requirements for parades unconstitutional only if officials have discretion in setting amount of fee

Question 33

Limited public forums

Answer 33

1. Government properties government could close off to speech, but chooses voluntarily to open to speech (school facilities)
2. Same rules as public forums

Question 34

Non-public forums

Answer 34

1. Government properties that government constitutionally can and does close to speech
2. Rational basis test; must be viewpoint neutral
3. Examples: military bases, areas outside prisons, advertising space on city buses, sidewalks (outside post office), airports

Question 35

1st Amend. right of access to private property for speech

Answer 35

NONE

Question 36

Freedom of association

Answer 36

1. Prohibiting or punishing group membership must always meet strict scrutiny
2. Must be proven that person:
   (a) actively affiliated with group
   (b) has knowledge of group’s illegal activities
   (c) has specific intent of furthering those illegal activities or objectives

Question 37

Laws requiring disclosure of group membership

Answer 37

If would chill association, must meet strict scrutiny

Question 38

Freedom of association and right to discriminate

Answer 38

Not protected unless intimate association where discrimination integral to expressive activity

Question 39

Free exercise clause

Answer 39

1. Cannot be used to challenge neutral law of general applicability
2. Government may not deny benefits to individuals who quit their jobs for religious reasons

Question 40

Establishment clause

Answer 40

1. Three part test:
   (a) Must be secular purpose
   (b) Primary effect must be neither to advance nor inhibit religion
   (c) Must not be excessive government entanglement with religion

Question 41

Discriminating against religious speech or among religions

Answer 41

Prohibited unless strict scrutiny

Question 42

Government-sponsored religious activity in public schools

Answer 42

1. Unconstitutional

2. Religious student and community groups must have same access to school facilities as non-religious groups

Question 43

Government assistance to parochial schools

Answer 43

1. Allowed so long as not used for religious instruction

2. May provide vouchers to use in parochial schools