Chapter Six Flashcards
Constitutional law
a body of principles and rules either explicitly stated in, or inferred from, the U.S. Constitution and those of the individual states
State action requirement
a court imposed requirement that most constitutional protections apply only if a governmental entity is involved
Bill of Rights
the first ten amendments to the U.S. constitution
Freedom of expression
a term used to include a group of first amendment provisions designed to protect people’s ability to inform and influence others.
Balancing tests (in context of interpreting the first amendment)
a group of tests or standards that have been developed for determining whether the first amendment prohibits government actions based on balancing the benefits of free expression against other legit and important gov interests
Clear and present danger test
a test used by judges in which the courts will limit rights of free expression when the challenged actions create a “clear and present danger” that they will bring about substantive evils that gov has a right to prevent
Pure speech
the use of spoken words to communicate info
Symbolic speech
the use of physical actions, rather than spoken or written words, to express a point of view
Commercial speech
advertising that communicates info about nature, availability, and prices for various commercial products and services
Obscene materials
written and pictorial materials relating to sexual activities that are not protected by the first amendment
Indecent materials
materials related to nudity, sex, and foul language that are objectionable to many people and not appropriate for children, yet fall short of the constitutional standard for being obscene
Fighting words
written or spoken words, generally expressed to incite hatred or violence from their target
Hate speech
a form of communication that involves the expression of hatred for, or violence against, a specific minority group or the other protected class of people
Penalty enhancement statute
a law that provides for a stiffer penalty in situations in which the crime victim was specifically selected on the basis of race, religion, disability, gender, national origin, or ancestry
Time and place restrictions
governmental restrictions that limit when and where free expression activities can take place
Content neutrality
a court imposed requirement that government regulations of free expression not be based on the view point being expressed or the identity of the speaker
Over-breadth doctrine
if a statute is written in such a way as to limit more expression than is unconstitutionally allowed it will be struck down
Void for vagueness doctrine
the requirement that a law imposing a criminal penalty must be invalidated if it does not fairly inform a person of what is allowed or prohibited
Chilling effect doctrine
the requirement that courts invalidate laws that are written to self censorship because people cannot determine the legality of their actions before they undertake first amendment activities
Establishment of religion clause
recognize and support religious groups
Free exercise of religion clause
prohibits the government from interfering with people’s religious activities
Procedural due process
the requirement that governments follow certain procedures when seeking to deprive people of life, liberty, or property
Substantive due process
the requirement that governments not deprive anyone of life, liberty, or property where the law being violated is found to be arbitrary or unreasonable
Purpose of amendments
Limit power of the federal gov
Protect individual rights
Recognition of individual rights
Freedom of expression
Freedom of religion and establishment clause
Due process
Equal protection
Elements for Freedom of expression
Balancing tests Types of expression Time and place restriction Content neutrality Chilling effect of over breath and vagueness
Balancing tests elements
government order and preserve existence
Clear and present danger
Types of expression
Pure speech Symbolic speech Campaign activities and political contributions Commercial speech Time and place restriction Content neutrality
Type of expression not protected by the first amendment
Obscenity
Indecent speech
Fighting words
Hate speech
Examples where time and place restriction apply
courthouses
jails
military bases
public schools
What is combined and leads to the chilling effect?
vague and overboard
Questions for establishment of religion clause?
Is the activity based on religious beliefs?
If yes, courts must decide limitations if any on the activity ?
MUST PROTECT THIRD PARTIES
Employment division v Smith
law in question neutral on its face
What amendments are apart of due process?
5th and 14th amendments
Elements of procedural due process
legal procedures used in processing criminal and civil
proper notice and chance for defense
neutral fact finding
seriousness of deprivation
What amendments goes with procedural due process?
4th amendment - search seizure
5th amendment - grand juries, double jeopardy, self incrimination
6th amendment - speedy trial, right to confront accuser
8th amendment - right to bail
Elements of substantive due process
relates to how the gov must go to taking away someone’s life, liberty, or property
the right to privacy is a liberty
Equal protection amendment
Section one of the 14th amendment
Standard scrutiny
rational basis test plaintiff convince court that gov has no legit interest in law & no link between that interest and challenged law
Government normally wins
Strict scrutiny
a plaintiff sues the gov for discrimination
Plaintiff normally wins
What are the three parts of equal protection?
- standard scrutiny
- strict scrutiny
- intermediate-heightened scrutiny standard
What to think about when dealing with equal protection?
choosing proper standard suspect class or is being denied a fundamental right
Test questions for equal protection
easily identifiable
level of difficulty in changing one’s identity
long history of discrimination against members of that group
Types of discrimination
race sex sexual orientation age economic
Rational basis test is
standard scrutiny
Compelling interest test is
strict scrutiny (highest test)
Intermediate test is
heightened scrutiny standard
Intermediate test
gov objective important substantially related
plaintiff normally wins
The strict scrutiny standard is applied when
a fundamental right is involved.
a suspect class is involved.
race discrimination is involved.
Which of the following best describes the relationship between the Bill of Rights and the 14th amendment?
Some of the rights listed in the Bill of Rights are required by the 14th amendment
The test the Court applied in San Antonio Independent School District v Rodriguez was
Standard scrutiny
Examples of substantive process
right of access to contraceptives
right to engage in consensual, homosexual activities in the privacy of one’s home
Liberty of contract
right of access to an abortion during the first trimester
Freedom of speech and press can sometimes be limited by government in all the following except
when necessary to protect national security
Snyder v Phelps involved
a distinction between public and private speech.
The Lemon test is used in which of the following types of cases
Establishment of religion
Examples of procedural process
right to counsel
right to a speedy trial
privilege against self incrimination
right to a jury trial
