7) Equal Protection Flashcards
What are the questions for equal protection?
- What is classification?
- What level of scrutiny?
- Does it meet scrutiny?
To what does equal protection apply?
- State/local governments
2. Federal government through due process clause of 5th Amend.
Classifications based on race and national origin: test, ways to prove
- Strict scrutiny
- Two ways to prove:
(a) classification exists on face of the law
(b) discriminatory impact AND discriminatory intent
Racial classifications benefitting minorities
- Strict scrutiny
- Numerical set-asides require clear proof of past discrimination
- Educational institutions may use race as one factor in admissions decisions to benefit minorities and enhance diversity
- Public schools may not use race as factor in assigning students to schools unless strict scrutiny met
Classifications based on sex: test, ways to prove
- Intermediate scrutiny; only allowed if exceedingly persuasive justification
- Two ways to prove:
(a) classification exists on face of the law
(b) discriminatory impact AND discriminatory intent
Sex classifications benefitting women
- If based on role stereotypes, not allowed
2. If designed to remedy past discrimination or differences, allowed
Alienage classifications
- Must meet strict scrutiny
2. When Congress discriminates against aliens, rational basis test
Certain privileges may be reserved only for citizens, not aliens
- Voting
- Jury service
- Being police officer, teacher, probation officer
Discrimination against non-marital children
- Intermediate scrutiny
2. Laws denying benefit to all bastards, but granting it to all marital children are unconstitutional
Age, disability, wealth, government economic regulations, sexual orientation discrimination are all…
Rational basis
Difference between content-based and content-neutral restrictions on speech
- Content-based restrictions: strict scrutiny
(a) subject matter restriction
(b) viewpoint restriction - Content-neutral restrictions: intermediate scrutiny
Prior restraint
- Stopping speech before it occurs
- Must meet strict scrutiny
- Court orders must be complied with until vacated or overturned—if violated, person barred from later challenging it
- Gag orders on press to prevent prejudicial pre-trial publicity not allowed
When can government require license for speech?
- Only if important reason for licensing and clear criteria leaving almost no discretion to licensing authority
- Must be procedural safeguards such as prompt determination of requests for licenses and judicial review of denials
Vagueness and overbreadth
- Law constitutionally vague if reasonable person cannot tell what speech is banned and what is allowed
- Law constitutionally overbroad if regulates substantially more speech than constitution allows
Fighting words
Not protected speech
Symbolic speech
- 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
- Flag burning: protected
- Burning draft card: not protected
- Burning cross: protected unless threat
- Anonymous speech: protected
Incitement of illegal activity
- Unprotected
- Government may punish speech if substantial likelihood of imminent illegal activity AND speech is directed to causing imminent illegality
Obscenity and sexually-oriented speech test
- Material must appeal to prurient interest, or shameful or morbid interest in sex
- Material must be patently offensive under law prohibiting obscenity
- Taken as whole, material must lack serious redeeming artistic, literary, political, or scientific value as determined by national standard
Zoning adult bookstores and movie theaters
Government may use zoning laws to regulate their number
Child pornography
- May be completely banned, even if not obscene
2. Children must be used in production of material
Private possession of pornography
- Government may not punish private possession of obscene materials
- Government may punish private possession of child pornography
Businesses in violation of obscenity laws
Government may seize their assets if convicted of violation of obscenity laws
Commercial speech
- Advertising for illegal activity, false and deceptive ads not protected
- 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 - Other commercial speech can be regulated by government if intermediate scrutiny met
Defamation of public official or running for public office
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)
Defamation of public figure
Can recover by proving falsity of statement and actual malice
Defamation of private figure and matter of public concern
- May recover compensatory damages by proving falsity of statement and negligence by D
- May recover presumed or punitive damages by showing actual malice
Defamation of private figure and matter not of public concern
May recover presumed or punitive damages without proving actual malice
Truthful reporting of information legally obtained from government records
State may not punish
Media broadcasting tape of illegally intercepted and recorded call
State may not punish as long as media did not participate in the illegality AND matter of public importance
When does public have 1st Amend. right to attend government proceedings and access to government papers?
Criminal trials and pre-trials
Speech by government employees on the job in performance of duties
Not protected
Public forums
- Government properties constitutionally required to make available (parks, sidewalks)
- Regulations must be subject matter and viewpoint neutral, OR strict scrutiny
- Regulations must be time/place/manner regulation serving important government purpose AND leaving adequate alternative places for communication
- Permit fee requirements for parades unconstitutional only if officials have discretion in setting amount of fee
Limited public forums
- Government properties government could close off to speech, but chooses voluntarily to open to speech (school facilities)
- Same rules as public forums
Non-public forums
- Government properties that government constitutionally can and does close to speech
- Rational basis test; must be viewpoint neutral
- Examples: military bases, areas outside prisons, advertising space on city buses, sidewalks (outside post office), airports
1st Amend. right of access to private property for speech
NONE
Freedom of association
- Prohibiting or punishing group membership must always meet strict scrutiny
- 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
Laws requiring disclosure of group membership
If would chill association, must meet strict scrutiny
Freedom of association and right to discriminate
Not protected unless intimate association where discrimination integral to expressive activity
Free exercise clause
- Cannot be used to challenge neutral law of general applicability
- Government may not deny benefits to individuals who quit their jobs for religious reasons
Establishment clause
- 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
Discriminating against religious speech or among religions
Prohibited unless strict scrutiny
Government-sponsored religious activity in public schools
- Unconstitutional
2. Religious student and community groups must have same access to school facilities as non-religious groups
Government assistance to parochial schools
- Allowed so long as not used for religious instruction
2. May provide vouchers to use in parochial schools
