Bill of Rights Flashcards
Material Burden Test
State cannot impose a material burden on a core constitutional value
A burden is material when the constitutional value at issue no longer achieves it purpose
Test only looks to the MAGNITUDE OF IMPAIRMENT, not the social utility of the state action at issue
State’s Police Power
State restricted by material burden test
State may not exercise its police power to arbitrarily interfere with private business or impose unnecessary restrictions upon lawful occupations
Right of Privacy
Considered a core constitutional value
Religion Based Rights
(1) Right to worship
(2) Free exercise of religious opinion
(3) No preference to religious creed
(4) No religious test for office
(5) No money for religious institutions
(6) No religious test for witness competence
(7) Oath or affirmation does not need to be tied to religious belief
Free Expression Clause
Applies broadly to ANY expressive activity
No distinction between content-based and content-neutral state regulations
No overbreadth doctrine
Challenge to State Action as Violation of Free Expression Clause
Must establish:
(1) State action RESTRICTED CHALLENGER’S opportunity to engage in expressive activity; and
(2) Expressive activity was NOT AN ABUSE OF THE RIGHT TO SPEAK
Determination of Political Nature of Speech
OBJECTIVE standard
Burden of proof on CHALLENGER to establish that expression would have been understood as political
State Action on Political Speech
MATERIAL BURDEN exists when:
(1) Magnitude of Impairment: State action has created a substantial obstacle on the right so that it no longer serves the purpose for which it was designed; and
(2) Particularized Harm: No particularized harm caused by speaker
Non-Political Speech
Use rational basis review
Freedom of Press
Unaired portions of an interview conducted by a television reporter are not protected from discovery
Libel
Truth is an absolute defense
Defamer bears burden of proof
Prior Restraint
No preliminary injunction against speech until after a trial on the merits
Right to Assemble and Petition
Right to peaceably assemble and petition government for redress of grievances
NO RIGHT TO ASSEMBLE FOR ENGAGING IN CRIMINAL ACTIVITY
Substantive and Procedural Due Process
Substantive DP = Rational Basis Review
Procedural DP = Federal procedural DP Law
Open Courts Clause
Applies to CIVIL cases only
Does not prevent General Assembly from creating, modifying, or abolishing a civil cause of action (subject to rational basis review)
Does not prevent adoption of rules that impact litigant’s rights to pursue an action in court
