Class Notes Flashcards
What are the areas of “speech” protected by the 1st Amendment
- Message
- Ideas
- Subject Matter
- Content
What are the Six Modalities of Constitutional Interpretation?
- Text
- Structure
- History
- Doctrinal
- Prudential
- Ethical
What is Textual Interpretation?
A strict reading of the text of the constitution
What is Structural Interpretation?
Using other parts of the constitution to provide meaning and context (comparative)
What is Historical Interpretation?
- Original Intent
- Original Meaning
- Context
- Traditions
Historical evaluation of the framing, ratification, and other actions during the time of the creation of the constitution.
What is Doctrinal Interpretation?
Stare Decisis - prior interpretations of the constitution by the supreme court.
What is Prudential Interpretation?
Balancing the costs/benefits of various interpretations to seek the most practical or pragmatic alternative.
What is Ethical Interpretation
The moral and national values reflected in the constitution.
- Democratic self-governance
- Marketplace of Ideas
- Individual self-fulfillment
- Anti-Censorship Principle
What is the rational basis test?
Would a “rational and fair” person accept the “basis” of the law for the law in question. Routinely applied to socio-economic laws
Ferguson - Limiting the business of debt adjustment to lawyers exclusively.
When is strict scrutiny used?
Equal protection clause to undo racial classifications, infringements based on classifications (race, gender, etc.), and abridging fundamental rights.
What are the steps to review Substantive Due Process?
- Indentify the right/liberty at issue.
- Is the right/liberty fundamental or subject to heightened scrutiny?
- Has the right liberty been infringed or substantially impaired?
- Apply correct level of scrutiny, strict, balancing test, or rational basis.
What are the reasons for no “Advisory Opinions” from SCOTUS?
- Structural - the Constitution prohibits encroachment of the powers of other branches, advisory opinions could result in SCOTUS telling them what to do.
- Prudential - Judiciary should be deciding the constitutionality of actual issues, not hypothetical ones.
Who has the burden in “strict scrutiny” cases?
The government must show that the legislation is narrowly tailored, that is by the least restrictive means, to serve a compelling government interest or purpose.
When is an equal protection class “under-inclusive”?
- When a law does not burden or benefit all those who are similarily situated (same class)
When is an equal protection class “over-inclusive”?
- The law extends the benefit or burden not only to those in the class (similarily situated) but to others as well.
What are the two balancing tests in Substantive Due Process?
- Undue Burden - Applied to Abortion Legislation
- Rational Basis with a Bite - Balance between State’s Interest and Person’s Interests
What is State Action?
When acts of private individuals can be attributed to the government so that we can hold the private actor to constitutional standards.
What are the four ways a private action qualifies as State Action?
- When private party takes on a Public Function - Marsh
- Coercion or Significant Government Encouragement of a private party - Shelley
- Symbiotic Relationship between private party and government - Burton
- Entwinement of private party and government - Brentwood Academy
What does it mean for a Private Party to take on a Government Function?
When a private party engages in actions traditionally or exclusively reserved to the state. Takes on what the state does.
Marsh - A private company town that takes on characteristics of a municipality, is subject to state action.
What does Free Speech embrace?
The government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.
What is the O’Brien Test?
For Speech that is conduct:
- Conduct within the constitutional power or authority to regulate
- The regulation must further a substantial government interest
- The government interest must be unrelated to the suppression of expression
- The incidental restriction on rights must be not greater than is essential to the furtherance of that interest.
What are the steps to evaluate a 1st amendment question?
- Is the issue content based?
- If yes, then strict scrutiny applies unless in an excepted category
- If no, then intermediate scrutiny is applied
- If Conduct, then O’Brien Test
- If Speech then Time, Place, Manner test
What is the Establishment Clause
The government shall not make laws “respecting the establishment of religion”
What does Religious Liberty protect?
- Establishment Clause
- Cannot discriminate among religions
- Excessive government favoritism toward religion
- Free Exercise Clause
- Belief (no prohibition)
- Conduct can be prohibited
- Neutral law generally applied - NO FREE EXERCISE CLAIM
- Targeted non-neutral - Strict Scrutiny
What must a petitoner do to obtain a higher level of scrutiny in equal protection cases?
- Challenger must establish;
- Classification is intentional
- Purpose to discriminate
- Disproportionate effect not enough to trigger higher scrutiny
- Classification is intentional
Washington v. Davis - Police qualifying test’s effective discrimination not enough to establish strict scrutiny without intent
What types of expressions are included in the protection of the 1st Amendment?
Those expressions protected at the founding and creation of the constitution
What categories of speech are not protected?
- Incitement to lawless action
- Fighting Words
- Obscenity
- Criminal Conduct
- Child Pornography
What are the two possible ways to show incitement to imminent lawless action?
- Secret Activities - Dennis
- Clear and Present Danger (Open and Obvious)- Brandenburg
What are the requirements of the Dennis test?
- Secret plotting, and
- Strict Scrutiny for government interest
- Terrorist Acts
- National Security
What are the requirements of the Bradenburg test.
- Intent to incite
- Lawless action imminent (immediacy)
- Probability that action will occur
What areas are “traditional” public fora?
- sidewalks
- parks
- streetcorners
What is a designated public forum?
A forum which is deemed to be public by the authorities, but can be privatized by redesignation.
What are not “public” fora?
- Jails
- Sidewalks in front of post offices
- Public school teacher mailboxes
What are the two types of speech?
- written, spoken or printed word
- expressive or symbolic speech
What are the types of expressive or symbolic speech?
- Traditionally expressive
- Inherently expressive
What is the definition of inherently expressive speech?
Intent to convey a message that is likely to be understood without the use of words.
What are the three elements to determine if a regulation is content based or content neutral?
- Textual
- Justifications
- As-Applied
What is textually content based?
A statute distinguishes based on content, one must know the content of the speech to determine if a violation of the statute has occurred.
When are the “justifications” triggered for a content based review?
If the justifications for enactment are related to the impact of the speech on the listener then it violates 1st Amendment juris prudence.
Do the motives of the government matter when assessing content based statutes?
No
Does it matter if the statute has the effect of curbing some speech?
Nope
What is as-applied for statute analysis?
If the statute is not content based in the first two categories but yet applied only to the speech the authorities do not like, then it violates 1st Amendment juris prudence
What is the judicial standard if a regulation is content based?
strict scrutiny
What are the exceptions to “free speech”?
- Incitment to imminent lawless activity
- Fighting Words (Provocation)
- True Threats
- Speech Integral to Criminal Conduct (Child Porn, etc.)
- Obscenity
- Commercial Speech
- Government Speech
What is the jist of Cohen?
“F’ the Draft” on the back of a jacket is a valid form of expression and the f word is not obscene.
What is Commercial Speech?
- Advertising
- Solicitation for business purposes
- Trying to sell something
What is not Commercial Speech?
Speech made by Commerical Enterprises that unrelated to selling something.
- Advocacy
- Position Statements
What are the two underlying policy rationales for limiting Commercial Speech?
- Commercial speakers are well suited to know the legality of the advertisements they create, therefore
- They are suited to not be “crushed by overbroad regulation”.
What is the Central Hudson test?
- Is it lawful commercial speech?
- Is there a substantial government interest in the regulation?
- Does the regulation advance that interest?
- Is the regulation proportionally balanced
- overbroad?
What is the presumption for “content” based regulations?
Constitutionally invalid
- Government must rebut (strict scrutiny)
What is “content based”?
A regulation that focuses only on the content of the speech and the direct impact that speech has on the listener.
What was the definition of “overbroad” in Stevens?
if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep”
Is association enough to meet the intent standard of illegal activity speech?
No, it must be tied to an overt act
Is providing information enough to meet the intent standard of illegal activity speech?
No
What is the definition of “fighting words”?
Context and words that result in an emotional response that leads or intends to incite an immediate breach of the peace.
What must the state do when faced with a potential riot due to speech?
- Protect the speech, if not then
- Shut down the speech
What is the definition of a true threat?
A serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals
R.A.V.
Does a “true threat” have an immediacy element?
Nope, as long as the threat is sincere.
Are racial slurs always fighting words?
No, have to consider the context of the exchange.
What are some “patently offensive” representations?
- normal or perverted sexual acts
- actual or simulated
- self enjoyment, lewd exhibition of genitals, excretory functions
Does the court recognize curbing obscenity as a valid governmental interest?
Yes
Is possession of obscene materials in private locations like the home, illegal?
No
Stanley
Can “Obscenity” pornography be regulated for commerical distribution?
Yes,
commercial distribution can be highly regulated without running afoul of the first or fourteenth amendments.
Paris Adult Theater
What are the policy rationales for denying 1st amendment rights to child pornography?
- Governmental objective to prevent sexual exploitation and abuse
- Distribution is inherently linked to abuse
- Illegal activity
- Doesn’t meet the “value” standard of Miller
- Not incompatible with stare decisis
Ferber
Is virtual child pornography protected by the 1st amendment?
Yes,
restrictions on virtual materials must meet strict scrutiny
