Con Law

Question 1

Strict scrutiny

Answer 1

for suspect classes and fundamental rights
classification presumed invalid
classification must be “narrowly tailored to achieve a compelling government interest”
If you can make a prima facie showing that the law discriminates against a suspect class, the burden shifts to the government.

Question 2

Intermediate scrutiny

Answer 2

for quasi-suspect classes (gender, illegitimacy, poss. alienage)
classifications also presumed invalid
government must show classification is substantially related to achieve important government objective

Question 3

Minimal scrutiny and enhanced minimal scrutiny

Answer 3

Minimal scrutiny
for everything else, particularly economic regulations
the government classification is presumed valid
burden on claimant to prove it is not rationally related to legitimate government interest
→ called “rational basis”
Enhanced minimal scrutiny
“rational basis w/ a bite”
“substantially related to legitimate government interest” [sometimes…the court cheats]

Question 4

What terms differentiate the ends and means of each level of scrutiny?

Answer 4

Ends
Strict scrutiny = compelling
Intermediate = important
Minimal = legitimate

Means
Strict = necessary/narrowly tailored [sometimes least restrictive means]
Intermediate = Substantially related
Minimal = Rationally related

Question 5

Summarize the steps taken in an equal protection analysis.

Answer 5

1. Does classification affect a suspect, or quasi suspect, class or fundamental right
   a. Race, national origin, alienage, gender, illegitimacy
   b. Bill of Rights, voting, travel, access to legal system
2. The analytical standard to be applied
   a. Examines the rational or interest being accomplished = the ends
   i. How closely should courts scrutinize the government interest; how much should they defer to legislative judgment and policy making
   b. The means to accomplish that interest - how closely the classification accomplishes that legitimate goal and how closely should the means match
   i. How much deference afforded means chosen

Question 6

How does under-inclusiveness and over-inclusiveness of a statute impact the equal protection analysis?

Answer 6

Normally, under-inclusiveness or over-inclusiveness of a statute doesn’t matter. A higher scrutiny may take this into factor

Question 7

What is De Jure discrimination? What is De Facto discrimination?

Answer 7

De Jure: Discrimination by law
· Facial discriminatory intentional discrimination is revealed on the face of the stature, and no further inquiry is necessary to determine that the classification is suspect i.e. Loving v. Virginia
· Neutral classifications applied in a discriminatory fashion: facially neutral classification that is actually applied on a suspect basis is treated as a suspect classification, but the party challenging the classification has the burden of proving its suspect application.
· Neutral classifications motivated by discrimination that produce a discriminatory effect: facially neutral classification that is adopted solely because of an invidiously discriminatory motive and that produces the intended effect is treated a s a suspect classification.

De Facto: Discrimination by fact
· Neutral on face but discriminatory in effect; lacks discriminatory purpose

Question 8

What are suspect classifications? What is the effect of a suspect classification?

Answer 8

Suspect classifications are classifications that immediately give rise to a presumption of invidious, or wrongful, discrimination. Suspect classifications are presumptively void and trigger strict scrutiny.

Question 9

What are the three suspect classifications?

Answer 9

There are three suspect classifications: race, ethnicity or national origin, and lawful resident alienage. All classifications based on race or ethnicity trigger strict scrutiny.

Question 10

How are suspect classifications determined?

Answer 10

The method of determining when a statutory classification is suspect is derived from Carolene Products footnote 4, and focuses on the presence of the following factors: immutable traits, history of purposeful unequal treatment, perennial lack of access to political power.

Question 11

What are the Arlington Heights factors to establish proof of discriminatory intent?

Answer 11

Discriminatory impact of the official action
The historical background of the law
Specific sequence of events leading up to the action
Departures from normal procedures
Departure from substantive criteria
Legislative administrative history

Question 12

What is the burden of proof for proving discriminatory intent?

Answer 12

The challenger has the burden of proving discriminatory intent. A prima facie showing of discriminatory purpose shifts the burden to the state to prove that the criteria were adopted for a nondiscriminatory purpose. The state then has to rebut that showing by a preponderance of the evidence. If they are able to rebut, the strict scrutiny drops to rational basis.

Question 13

What distinction in proving discriminatory intent comes from Feeney?

Answer 13

Feeney distinction: Being made aware of the discriminatory impact is not the same as intending the discriminatory impact/having a discriminatory purpose.
You have to show intent to bring about the specific consequence.

Question 14

What are the two broad theories of equal protection?

Answer 14

The purpose of equal protection is to prevent anti-subordination.
The Constitution is color blind, it is inconsistent with the Constitution to make classifications based on race.

Question 15

When is remedial effort a compelling interest under affirmative action?

Answer 15

Remedial efforts are a compelling state interest only if there are specific findings that that governmental institution previously discriminated (de jure) Bakke, and the former discrimination has not already been remedied Parents Involved.

Question 16

When is diversity a compelling interest under affirmative action?

Answer 16

Diversity can be a compelling interest, but cannot be solely race diversity. Racial quotas generally cannot be narrowly tailored enough to meet the compelling state interest of diversity.

Question 17

What is required after Bakke/Carson/Adarand for affirmative action to be upheld?

Answer 17

It must be remedial in the true sense – trying to remediate a past wrong/wrongful conduct.
It must be focused on particularized, supportable instances of discrimination by this actor. Cannot benefit a group as a whole for generalized discrimination.
Must be narrowly tailored
No quota
Directed at the group who has been affected
Try to consider race neutral alternatives

Question 18

How is narrowly tailored different from least restrictive means?

Answer 18

Narrow tailoring does not normally mean least restrictive means, but sometimes the court uses them interchangeably. Least restrictive means is stricter than narrow tailoring.

Question 19

Summarize race and the political process.

Answer 19

Whether you can infer racial purpose from the legislation that appears to be otherwise racially neutral, when the government allows a change that has a disproportionate impact on racial minorities.
Race neutral changes to substantive law is not going to apply strict scrutiny, but race neutral changes to procedures are more likely to trigger strict scrutiny. Cannot change the political process solely on the basis of race.

Question 20

What three points need to be remembered in regard to Alienage?

Answer 20

(1) Do not get confused, this is not national origin, alienage is issues of citizenship (the legal status of foreigners in the US). Classifications by national origin are equivalent to racial classifications, subject to strict scrutiny.
(2) Alienage only applies to those people who are here legally, it does not apply to illegal immigrants. For illegal immigrants, the court will apply rational basis.
(3) Who is doing the classification? Is it the state or the federal government? The federal government is given more discretion when classifying on the basis of citizenship. States do not have that power to begin with, so these classifications made by states become more suspect.

Question 21

What is the political function exception?

Answer 21

“Political Function” Exception - subjects alienage classification laws to a lower standard of review for “positions intimately related to the process of democratic self-governance.” Examples: police officers, public schoolteachers, and probation officers; because each has discretionary authority coupled with the role of the job as either an instrument of sovereign power or to inculcate distinct cultural values.

Question 22

How does gender compare to Carolene Products Footnote 4?

Answer 22

Gender:
Comparing gender to Carolene Products Footnote 4
“Long and unfortunate history of sex discrimination”
Women could not vote
Women were presumed to be the property of the husband
Sex is an immutable characteristic
Bears no relationship to ability to perform or contribute to society

Question 23

What does it mean to be similarly situated?

Answer 23

Don’t look to see who is solely burdened, look also at who is benefitted, and what is the difference. Examples:

Consider Geduldig v. Aiello, pg. 761.
Benefitted - men and women who are not pregnant
Burdened - pregnant women
People who are similarly situated are being treated the same.

Consider denial of survivorship benefits to men when more than $100k
Benefitted - women <> 100k, Men < 100k
Burdened - men > 100k
People who are similarly situated are being treated differently.

Question 24

How are illegitimate children defined and treated as a class?

Answer 24

Illegitimate children are a suspect class. Subjected to intermediate scrutiny, must prove that the classification is substantially related to an important governmental objective. Immutable characteristic because the child’s actions cannot change the status.

Question 25

What level of scrutiny is applied to activities that bear upon a fundamental right? What counts as a fundamental right for those purposes?

Answer 25

If an activity would otherwise be subject to rational basis but it bears on a fundamental right, strict scrutiny is applied
Three fundamental rights:
(1) Bill of Rights
(2) Substantive Due Process
(3) Fundamentals rights within Equal Protection: 
(a) Right to vote
(b) Right to access to courts
(c) Right to travel

Question 26

When is rational basis + more likely to be applied?

Answer 26

Rational basis + seems to be applied for penalties or status based.

Question 27

What types of voting issues are there?

Answer 27

1. Denial
2. Dilution
3. Gerrymander
   a. Political gerrymandering
   b. Race -conscious gerrymandering
   i. Treated differently by the court.

Question 28

What is the Anderson flexible standard for voting denial?

Answer 28

First, consider the character and magnitude of the asserted injury to 1st and 14th amendment rights
Identify and evaluate the precise interests put forward by the state as justifications for the burden imposed
Determine the legitimacy and strength of each of those interests
Consider the extent to which those interests make it necessary to burden the plaintiff’s rights

Question 29

Why is voting a fundamental right according to Reynolds v. Sims?

Answer 29

It is preservative of all the other rights. You cannot have the other rights without the right to vote.

Question 30

How is wealth treated in access to courts and under what standard?

Answer 30

If wealth or lack of wealth is the gatekeeper for an attorney or transcript for appeal, the court will strike it down. Originally did this on rational basis, later started to apply strict scrutiny. Because wealth becomes the determinant of whether you have access to courts.

Question 31

What does the right to travel include?

Answer 31

Also the right to migrate, establish residency, and to be treated the same as other residents of the state.

Question 32

What is enforcement power? What does it include? What does it not include?

Answer 32

Congress’s Section 5 enforcement power (under section 5 of the 14th amendment to enforce the equal protection clause)
13th → Private discrimination ✓
14th → private discrimination X

Parallel enforcement ✓
Non-parallel ✓
Independent Judgment X

Question 33

What is the difference between parallel enforcement, non-parallel enforcement, and independent judgment?

Answer 33

Parallel enforcement means that if Congress wants to pass a law, Congress can only write a law that matches the means and bounds of what the court has interpreted a constitutional right to include, no further. This is purely remedial. No doubt Congress has this authority.[smallest circle]

Non-parallel enforcement. Because of section 5 enforcement power, Congress may need to protect more broadly or more fully in order to get at these Constitutional protections. If Congress makes findings that it needs a broader swath to ensure Constitutional rights. So long as it is within certain bounds, this can be considered remedial. [next size circle]. Example of non-parallel enforcement: Neutral literacy tests were not a per se violation of the 15th amendment according to the Court. The Voting Rights Act could prohibit the tests anyway, if within the covered jurisdictions. Prohibits both De Jure and De Facto discrimination.

Independent judgment. Congress makes its own determination whether a constitutional violation exists, so can add to what the Court has interpreted. This is not remedial. [largest circle]

Question 34

Where is the line between enforcing and expanding/remedial and substantive for section 5 legislation? Explain and summarize.

Answer 34

Congruence and proportionality.
Congruence - Must have empirical evidence to support there is a violation. The provisions of the law must be connected to a constitutional violation. Congruence between the means and the ends to be achieved.
Proportionality - What is the remedy that has been chosen by Congress? How proportionate is it to alleviate the constitutional harm?
Valid section 5 legislation must exhibit congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.
Takeaway: congruence and proportionality are not impossible to meet, if it is directly addressing an identifiable constitutional problem. The broader Congress makes the legislation and sweeps in non-violations, the more likely to fail congruence and proportionality.

Question 35

Why do we have free speech?

Answer 35

It helps promote democracy
The search for truth
It ensures autonomy
It encourages an open and tolerant society
Allowing the forum to expression may diffuse conduct

Question 36

What is content-neutral regulation and what scrutiny applies?

Answer 36

regulations that have some effect on speech, but are not done for the purpose of regulating the subject matter, topic, or its communicative impact. An example is time, place, manner regulations. It still has an effect on expression. Content neutral is judged more permissively. Subject to intermediate scrutiny; permissible if it is closely tailored to further a substantial governmental interest and is unrelated to the suppression of particular subject matter.

Question 37

What is content-based regulation and what scrutiny applies?

Answer 37

Regulation of a subject matter or topic of expression. Content based is judged by strict scrutiny. Generally presumed to be void.

Question 38

What is viewpoint based regulation and what scrutiny applies?

Answer 38

A type of content-based regulation prohibiting a particular perspective within a topic or subject matter. Judged by strict scrutiny.

Question 39

What is non-speech regulation and what scrutiny applies?

Answer 39

Some categories of speech defined by the content of the speech are treated as unprotected by the free speech guarantee. Non-speech is subject to rational basis review.

Question 40

What do overbreadth, vagueness, and prior restraints have in common?

Answer 40

Not concerned with the content of the speech but the manner of the regulation - the means

Question 41

What is overbreadth? How does it affect regulation of expression? What is an example?

Answer 41

Overbreadth → The law sweeps too much protected speech in an attempt to get at bad speech. Statutes that are substantially overbroad are voided for overbreadth. The broader the statute, the more likely it is to be struck down. A statute claiming to be overbroad is tested on its face rather than as applied to the particular litigant, so even speakers of non-speech are permitted to challenge the validity of the law.
Ashcroft v. Free Speech Coalition: The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter.

Question 42

What is vagueness? How does it affect regulation of expression? How does it relate to overbreadth?

Answer 42

Vagueness → The law’s language is unclear as to its meaning, it chills expression because people of common intelligence will not know what type of expression is prohibited. If a law does not provide sufficiently definite warning as to the proscribed conduct it is unconstitutionally vague. Unconstitutionally vague laws are usually facially invalid.

Sometimes regulation is both vague and overbroad. An example: Coates prohibited three or more persons to assemble on public sidewalks and “conduct themselves in a manner annoying to persons passing by.”

Question 43

What is prior restraint? What are the two primary types?

Answer 43

Prior restraint → Restraint on expression even before it occurs on the basis of the speech’s content. Presumptively void.
Licensing - when there is any type of discretion given to the licensor on how to grant the license or to whom to grant the license, it will be struck down. There must be clear standards and neutral criteria for the license.
Injunctions - a type of content based regulation may be permitted but must be narrow, allow a fair trial procedure. The collateral bar rule: a person who violates an injunction may be punished for the violation even if it turns out later that the injunction was invalid.

Question 44

What qualifies speech as a clear and present danger?

Answer 44

Speech that advocates, encourages, or causes illegal activity

Question 45

What is a true threat?

Answer 45

speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. No requirement of likelihood so long as it is reasonable
that they be afraid.

Question 46

What is the Brandenburg test?

Answer 46

elements necessary to make a transition from political speech to expression that is punishable:
Intend to incite
Directed at inciting or producing imminent lawless action
Likelihood of imminent lawless action
Substantial

Question 47

What is the difference between incitement and hostile audience?

Answer 47

The difference between incitement and hostile audience is hostile audience speech is otherwise protected, but for the audience’s reaction to it. Today, hostile audiences almost melts into incitement, in that it tries to provoke reactions.

Question 48

How do we reconcile Terminiello and Feiner together? When can police stop someone from exercising their first amendment right?

Answer 48

If it is not content-based discretion/discrimination.

Question 49

What are fighting words?

Answer 49

Fighting words are words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Must be individually to the person whom it was intended against, and it is an almost reasonable person standard.

Question 50

What is the idea of captive audience?

Answer 50

your right to free speech may be stopped to the point where I am forced to hear your speech. You are thrusting your speech on unwilling listeners. There has to be an element of private property or personal space and it can’t just be someone walking around in public. This is a very difficult standard.

Question 51

What is Suis Generis?

Answer 51

Suis Generis→ it is generally offensive and we just get rid of it. This is just not worthy of the idea or status of words.

Question 52

Commercial Speech Central Hudson test

Answer 52

A restriction of speech must serve a substantial interest and it must be narrowly drawn. This means that among other things, the regulatory technique may be extended only as far as the interest it serves.

Question 53

Define Hate speech.

Answer 53

Purpose of imposing harm on someone based on their identity in a historically oppressed group with the intent of perpetuating feeling of inferiority and insubordination. After Cohen, it must be more than offensive speech.

Question 54

What is the Miller Standard for defining Obscenity?

Answer 54

(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Smith v. U.S. held that the final prong of Miller (the presence of serious content) is not to be governed by local community standards but by whether a reasonable person would find such value in the material, taken as a whole.

Question 55

What is the difference between obscenity, pornography, and child pornography?

Answer 55

Obscenity is a particular type of sexually explicit expression. The court thas said that obscenity can be prohibited, but pornography is protected expression. Child pornography is treated differently than the other two.

Question 56

Why is obscenity non-protected speech?

Answer 56

Valueless
Harmful to society (order and morality)
Anti-social behavior
Conduct, not speech

Question 57

What is the secondary effects doctrine?

Answer 57

Young v. American Mini Theatres- governments may regulate speech by its content if its purpose for doing so is wholly unrelated to that content but is instead designed to ameliorate some phenomenon closely associated with but not produced by the content of the speech.

Question 58

What does secondary effects do to the scrutiny?

Answer 58

Intermediate scrutiny where it would otherwise typically be strict scrutiny. The regulation is content-neutral.

Question 59

Secondary effects test:

Answer 59

Whether the ordinance is designed to serve a substantial governmental interest and allows for reasonable alternatives of communication.

Question 60

What cases demonstrate the development of case law for child porn, cruelty, and captive audiences(broadcasting)?

Answer 60

Child Porn: Ferber → Ashcroft
Cruelty: Stevens → Brown
Broadcasting/Captive audiences: Pacifica → Reno

Question 61

What is the general rule for captive audiences and prohibition of distribution?

Answer 61

It is okay to provide the opportunity to avoid the speech, like removal requests (think unsubscribe from mail), but the government cannot generally mandate it (although the law banning political ads from buses was upheld). “The short journey from mail box to trash can is an acceptable burden to preserve free speech.”

Question 62

What is the first step in Approaching 1st amendment patterns?

Answer 62

Is this expressive activity?

Does it fit into non-protected expression or protected expression?

Question 63

What is the common law treatment of libel?

Answer 63

At Common Law, libel (making false statements that impugn someone’s character) was a strict liability offense – no need to show speaker acted purposefully or negligently – no culpability required, only that stmt was false. The defendant had the burden of proving the truth of the statement. Damages were presumed, so there was no need for a plaintiff to show actual injury to reputation.
In Chaplinsky & Beauharnais, the Supreme Ct affirmed that libel was not protected by 1st Amendment because it is not essential part of exposition of ideas or search for truth.

Question 64

What are the categories for libel/defamation/expressive torts?

Answer 64

Public official (“Trump is a liar”)
Public figure (“President Thorsett is a tax evader”)
Private figure (“you are a thief”)
Group libel (“all doctors are quacks”)
Matters of public concern
Matters of private concern

Question 65

What is the evidentiary standard for libel?

Answer 65

In libel actions, the plaintiff must prove by clear and convincing evidence that the defendant intended to make a false statement. The test is subjective, and focuses on whether defendant knew the speech to be false or consciously disregarded the risk, i.e. recklessness.

Question 66

What is a public official?

Answer 66

A public official is someone with substantial responsibility and policy functions.

Question 67

How was the NYTimes/Sullivan rule extended?

Answer 67

Curtis Pub v. Butts and Associated Press v. Walker extended the Sullivan rule to include defamation of public figures.

Question 68

What is a public figure? What are the two types?

Answer 68

Public figures = those people who are intimately involved in the resolution of important public questions or who, by reason of their fame, shape events in areas of concern to society at large. Public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.
Unlimited public figures = a public figure fo all times and purposes
Limited-purpose public figure = thrust himself into the vortex of the public issue, or engage the public’s attention in an attempt to influence its outcome.

Question 69

Summarize libel law for Constitutional purposes.

Answer 69

If the plaintiff is a public official or public figure, Sullivan’s actual malice rule applies. If the plaintiff is a private figure and the defamation is of public concern, recovery of actual damages requires proof of negligence, and recovery of punitive damages requires proof of actual malice. If the plaintiff is a private figure and the defamation is of purely private concern, actual and punitive damages can be recovered upon proof of negligence.

Question 70

What is the initial approach to commercial speech? What commercial speech may be regulated?

Answer 70

Commercial speech decisions typically involve advertising. The information is presumed to be truthful. The states may regulate false, fraudulent, deceptive, misleading advertising with mere rationality (without any First Amendment constraint). Ads for illegal activity are also outside First Amendment protection.

Question 71

What is the Central Hudson 4 part test?

Answer 71

The speech must concern lawful activity and not be misleading
The asserted governmental interest must be substantial
The regulation must directly advance the governmental interest asserted
The regulation must not be more extensive than is necessary for that interest

Question 72

When is the Ward standard used? What is the standard?

Answer 72

Ward is considered for content-neutral time place manner restrictions.

Ward: Intermediate scrutiny; narrowly tailored is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.

(1) The regulation must be content neutral.
(2) It must be narrowly tailored to serve a significant governmental interest.
(3) It must leave open ample alternative channels for communicating the speaker’s message.

Question 73

When is the O’Brien standard used? What is the standard?

Answer 73

O’brien is considered for content-neutral symbolic speech
O’Brien: Intermediate scrutiny →
(1) government regulation within the constitutional power of the government,
(2) It furthers an important or substantial governmental interest,
(3)the governmental interest is unrelated to the suppression of free expression, and
(4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Question 74

How does the content neutral restriction judged when it is a total medium ban?

Answer 74

Content neutral regulation with time place manner restriction will be judged by intermediate scrutiny. However, sometimes the court will apply a higher scrutiny for total bans. On page 969, it discusses such cases.

Question 75

How does the court analyze “alternative means”?

Answer 75

Alternative means – if there are total bans with no realistic alternatives, then the court finds alternative channels are missing. The court has typically been deferential to this, though. Alternative means doesn’t mean the best, or close to the best, just some ability to engage in other types of expressive activity in order for alternative means to be satisfied.

Question 76

Symbolic speech 2 part standard:

Answer 76

first look at the subjective - is there intent on the part of the speaker to convey a particular message?
Second, objective - is it likely it would be perceived by a reasonable person familiar with the context to be expressive activity

Question 77

What is the hierarchy of arguments for content neutral restrictions?

Answer 77

Is it expressive conduct?
Is it content neutral? (does the government have an interest separate from the expressive speech)
If it is content-based, is it an unprotected content?

Question 78

How is the public forum like a sliding scale?

Answer 78

Traditional ———————–designated————limited—————-nonpublic

Question 79

What is the unconstitutional conditions doctrine? How does it work?

Answer 79

The unconstitutional conditions doctrine: the government cannot condition a person’s receipt of a governmental benefit on the waiver of a constitutionally protected right. (when the government provides a benefit, it can pay for the services it wants, but the more open ended the benefit the more limited its restrictions on that benefit, particularly if it requires to give up a constitutional right. Speiser v. Randall. “A government is free to pay for speech it agrees with and to refuse to pay for speech with which it disagrees, but a government cannot withhold some unrelated benefit from private speakers who use their own resources to say things the government dislikes.”)

If the government conditions restricting speech on the recipient it is more likely to be unconstitutional. If the restriction is on the program requirements, then the restriction is usually appropriate. The more the speech is unrelated to the purpose of the funding goals, the more likely the government restriction is an unconstitutional condition. The trend has been to uphold restrictions if there is a nexus. Regan v. Taxation with Representation of Washington.