Con Law Flashcards
Speech: explain content-based regulations and restrictions on speech and assembly.
Content-based regulations on speech and assembly are subject to strict scrutiny, and they are presumptively unconstitutional (unless falling into one of the categories of unprotected speech).
The First Amendment generally prohibits the government from restricting the content of speech unless: (i) the government can prove that (ii) the restriction is necessary to achieve a compelling government interest.
Speech: What is speech and what are the categories of speech NOT protected by the First Amendment?
Incitement, Fighting Words, Obscenity, Defamatory Speech, and Some Commercial Speech
Speech: What is incitement in the speech context?
Speech can be censored as incitement if it is (1) intended to produce imminent lawless action and (2) likely to produce such action.
Speech: What are fighting words and true threats in the speech context?
Speech can be censored if it constitutes fighting words–personally abusive words that are likely to incite immediate physical retaliation in an average person. Words that are merely annoying won’t do.
The First Amendment also does not protect true threats, which are words that are intended to convey to someone a serious threat of bodily harm.
Speech: What is obscenity in the speech context?
Obscene speech is not protected. Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person: (1) appeals to the prurient interest in sex, using a contemporary community standard; (2) is patently offensive under contemporary community standards; AND (3) Lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard.
Speech: When is some commercial speech not protected by the First Amendment?
Commercial speech (advertisements, promotions of products and services, brand marketing) is not protected if it is (1) false, (2) misleading, OR (3) about illegal products or services.
Any other regulation of commercial speech will be upheld only if it: (i) services a substantial government interest; (ii) directly advances that interest, AND (iii) is narrowly tailored to serve that interest.
Speech: when is a regulation on speech invalid for overbreadth?
A regulation of speech or speech-related conduct will be invalidated as overbroad if it punishes substantially more speech than is necessary.
If a regulation punishes a substantial amount of protected speech judges in relation to its legitimate sweep, it is facially invalid and cannot be enforced against anyone, including a person engaging in constitutionally unprotected speech, unless a court has limited construction of the restriction so as to remove the threat to constitutionally protected speech.
Speech: What is defamation in the speech context?
The elements of defamation (in TORTS) are: (1) a defamatory statement that specifically identifies the plaintiff; (2) Published to a third party; (3) Damage to the plaintiff’s reputation; (4) Falsity of the defamatory language; and (5) Fault on the part of the defendant.
At common law, a plaintiff may bring a defamation action against a defendant who makes a false statement about the plaintiff. Under the First Amendment, public figures cannot recover for defamation unless they can show that the defaming statement was made with actual malice. Actual malice will be found where the statement is made with knowledge that it is false OR with reckles disregard of its truth or falsity.
Speech: Does the First Amendment provide the press with any special rights?
No, the press (along with corporations, unions, and expressive associations, like a lobbying group) has no greater First Amendment freedom than does a private citizen. They are treated like any individual speaker.
Speech: Explain invasion of the right to privacy in the First Amendment context?
TORTS: The tort of invasion of right to privacy includes four kinds of wrongs: (1) Appropriation of the plaintiff’s picture or name, (2) intrusion on the plaintiff’s affairs or seclusion; (3) Publication of facts placing the plaintiff in a false light, and (4) Public disclosure of private facts about the plaintiff.
FIRST AMENDMENT CONTEXT: Generally, it is a tort to publish private information about a person–even if it is true–if a reasonable person would object to having the information made public. However, if the matter is one of legitimate public interest, its publication is privileged if it is made WITHOUT actual malice, especially if the information was obtained legitimately.
Equal Protection: Explain the Equal Protection Clause as it relates to the 14th Amendment.
The Fourteenth Amendment Equal Protection Clause prohibits states and subsidiary state governments and entities from treating similarly situated people in a dissimilar manner without adequate justification. An equal protection claim arises whenever the government treats people differently from others.
Equal Protection: When will private action constitute state action for purposes of an Equal Protection analysis?
The Equal Protection proscription generally does not apply to private actins, but there are some situations in which private action can constitute state action, and in such cases, the private actor’s action is subject to the Equal Protection Clause.
Private action will constitute state action when: (i) the private actor is performing a traditional exclusive state function, or (ii) the state is significantly involved in the private action.
Equal Protection: what are some situations where SCOTUS has found that private action constitutes state action? And the opposite?
The Supreme Court has found only running a town or an election to be a traditional and exclusive public function. The Supreme Court has found significant state involvement when enforcement of the private action involves use of the courts AND where private entities are entwined with government entities.
The Supreme Court has found that (i) state regulation of an industry, (ii) state licensing or providing essential services, AND (iii) regulation of a private school DO NOT make private action state action.
Equal Protection: What are the Equal Protection standards?
If a fundamental right or suspect classification is involved, the strict scrutiny standard is used to evaluate the regulation.
If a quasi-suspect classification is involved, intermediate scrutiny is the applicable standard.
If the classification does not affect a fundamental right or involve a suspect or quasi-suspect classification, the rational basis standard applies.
Equal Protection: How does one prove Discriminatory Classification?
For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Intent may be shown by:
(A) a law that is discriminatory on its face (facial discrimination)
(B) A discriminatory application of a facially neutral law, or
(C) A facially neutral law with a disparate impact on a protected class of people (such as minorities).
Equal Protection: What are the Suspect Classifications to then apply strict scrutiny?
Classifications are suspect if they are based on race, national origin, or (at the state and local levels) alienage. Keep in mind that federal classifications based on alienage are NOT subject to strict scrutiny and will be valid if they are not arbitrary and unreasonable.
Equal Protection: What are the quasi-suspect classifications to then apply intermediate scrutiny?
Classifications based on legitimacy and gender are “quasi-suspect.”
Equal Protection: What is the rational basis test?
Test: Is the law rationally related to a legitimate government purpose? Burden is on challenger.
Equal Protection: What is the strict scrutiny test?
Test: Is the law necessary to achieve a compelling government purpose? Burden is on the government.
Equal Protection: What is the intermediate scrutiny test?
Test: Is the law substantially related to an important government purpose? Burden is usually on the government.
To uphold intentional discrimination on the basis of sex/gender, the government must show an exceedingly persuasive justification. The interest needed to support intentional sex/gender discrimination must be genuine and not hypothesized for litigation. The government may not rely on overbroad generalizations about males and females to justify intentional sex/gender discrimination.
