Con Law II Flashcards
1
Q
Test for voting rights restrictions
A
Crawford balancing test (really an ends-means test)(Sliding scale of scrutiny)
Neutral voting restriction: burden on voting vs other reasons.
The more of a burden on voting, the tougher the court will be.
2
Q
Test for Divorce restrictions (Access to Courts)
A
Boddie v Connecticut
Filing fees for divorce are not constitutional
Marriage is a fundamental right. State has monopoly
FUNDAMENTAL RIGHT and STATE MONOPOLY
3
Q
Test for Bankruptcy and Welfare proceedings (Access to Courts)
A
US v Kras
Bankruptcy. Not a fundamental right, no state monopoly.
NO FUNDAMENTAL RIGHT and NO STATE MONOPOLY
4
Q
Test for Libraries in Prisons
A
Bounds v Smith
Prisoners must be insured adequate, effective, and meaningful ways to access education in a way to act as a lawyer for themselves.
BUT
Lewis v Casey
Better law library for AZ prisoners
Bounds was too rigid. No fundamental right. No strict scrutiny. Only rational basis.
No Fundamental right to a GREATER QUALITY of resources
RATIONAL BASIS
5
Q
Test for Fundamental Rights infringement
A
- Is it fundamental?
- Was the right infringed?
- Did the government have a Sufficient End in infringing?
- Did the Means sufficiently fit the End?
6
Q
Right to Interstate Travel
A
Not explicit but implicit fundamental right
7
Q
Right to visit another state temporarily
A
Priv and immunities
Substantial reason test
(i) there is a substantial reason for the difference in treatment; and
(ii) the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective.
8
Q
Right to move and become a new state resident
A
14th Am Priv and Immunities
Saenz v Roe
STRICT SCRUTINY
9
Q
Equal protection of right to travel (ie waiting period or durational residency requirement)
A
Implicit and privilege and immunities
Shapiro v Thompson
STRICT SCRUTINY
10
Q
International right to travel
A
RATIONAL BASIS
11
Q
Procedural DP generally
A
(i) Notice,
(ii) opportunity to be heard,
(iii) meaningful time and manner
12
Q
Mathews v. Eldridge Procedural DP test
A
- the private interest that will be affected by the government action;
- the risk of an erroneous deprivation of the private interest based on procedures used by government, and the probable value, if any, of additional or substitute procedural safeguards;
- the government’s interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail
13
Q
Procedural DP Examples
A
pre-termination hearing required prior to ending welfare benefits in Goldberg v. Kelly
but only post-termination hearing required for disability benefits in Mathews v. Eldridge
14
Q
Procedural DP Analysis Three Levels
A
First, whether government has “deprived” life, liberty, or property?
Second, whether deprivation is of “life, liberty, or property”?
Third, what process is due (and when)? (Mathew v Eldridge)
15
Q
Procedural DP: Has government “deprived” life, liberty, or property? test
A
- Must be intentional or at least reckless government action (negligence is not enough)
- In emergency circumstances: whether government’s conduct “shocks the conscience”
- Otherwise (non-emergency): whether government’s conduct shows “deliberate indifference”
BUT, Government has no duty to protect us from private harm (e.g. child abuse, domestic violence)
16
Q
Procedural Due Process Property Interests:
A
Taking away your real property but tricky question is government benefits
Test:
- ”legitimate claim of entitlement” and/or
- “reasonable expectation to continued receipt” based on
- “existing rules or understandings that stem from an independent source such as state law.”
Examples: no property interest in year-to-year employment of teacher (Board of Regents v. Roth)
but property interest found where expectation of tenure was established (Perry v. Sinderman)
17
Q
Procedural Due Process Liberty Interests
A
Test:
Court has considered importance of liberty interest (e.g., reputation)
and expectations created by law (e.g., right to attend school)
Mostly reputation
Examples: Goss v. Lopez found liberty interest in not having reputation harmed by being suspended from school without due process,
but Paul v. Davis found insufficient interest in not having shoplifting suspect’s mug shot circulated to merchants prior to trial and conviction
18
Q
Procedural Right to Employment
A
Board of Regents of State Colleges v Roth
None!
19
Q
Procedural Due process for school suspension
A
Goss v Lopez
Required
20
Q
Procedural DP for flyers of criminal activity
A
Paul v Davis
The publication of records of official acts, such as arrests, did not fall under the rubric of privacy rights.
21
Q
“Shocks the conscience” standard
A
Rocha v CA
Forcibly pumped stomachs of suspects (good example)
Test for when government acts in EMERGENCY circumstances
“Time for reflection?”
22
Q
Procedural DP for protecting individuals?
A
DeShaney v Winnebago County Department of Social Services
No protection. The Due Process Clause does not impose a special duty on the State to provide services to the public for protection against private actors if the State did not create those harms.
No gov duty when action is inflicted by private actor, even if gov already has interfered previously
23
Q
Economic Substantive Due Process for practicing a trade
A
None, Slaughterhouse Cases
24
Q
Santa Clara vs Southern Pacific Railroad
A
Tiny case saying companies are people (assume without deciding that corps are people)
Cit united says spending is freedom of speech
25
Lochner case
Bakers case, 10 hour days 6 hour weeks
Limit on government regulation or slippery slope effect
Communism is coming for you
Burden of justification on the government (basically used higher scrutiny), switched to Laissez-faire overall
Stands for:
1. Freedom of contract is liberty
26
Muller v Oregon
Women working case
The Court distinguished Lochner v. New York, which invalidated a similar law restricting the hours of bakers, on the basis of the “difference between the sexes.”
27
West Coast Hotel Co. v Parish
Switch in time that saved time. Minimum wage law is constitutional.
28
United States v Carolene Products Co (and test for state police power)
Milk and oil
Government regulation based on police power is only subject to mere rational basis review. presumption of good reasoning
All burden will be on challenger to overcome presumption
Essentially established incorporation doctrine (implied)
29
Williamson v Lee Optical
Optamologists measuring glasses only. Might conceivably be rational
Rational basis is extreme
30
Grossly excessive punitive damages rule
Depends on how reprehensible the conduct or pattern of conduct is
No bright line ratio between corp and person BUT:
In practice, few awards exceeding a single digit ratio (1:1 - 9:1) between punitive and compensatory damages would be acceptable.
When compensatory damages are substantial, a lesser ration (perhaps equal) would be fair
31
Contracts Clause generally
No state shall pass any Law impairing the obligation of contracts.
(not used much and could see a revival)
basically RATIONAL BASIS (except Allied Steel higher scrutiny for non-emergencies)
32
Homebuilding and Loan Association v Blaisdell
Massive farm foreclosures happening. State came in and prevented foreclosures temporarily.
Court said it was okay due to emergency circumstances
1. Emergency? (not really a part of the test due to energy reserve)
2. Legitimate end?
3. Means reasonable and appropriate to end?
4. Conditions reasonable
5. Temporary relief, not permanent
33
Allied Structural Steel Co. v Spannaus
"other way" from Blaisdell.
No emergency.
34
State is a party to a contract and tries to change existing contract via law (contracts clause)
Higher scrutiny essentially, no deference to gov
not pure rational basis anymore. (even in emergency)
now need to be necessary means
alternative means of achieving end signals higher scrutiny
35
Contracts Clause big picture
If a state or local government is substantially impairing the obligations of existing private contracts:
Much deference from the courts and a minimal rational basis test .
But if a state or local government is substantially impairing its own contracts it's negotiated or agreed to:
A version of higher scrutiny, with no deference and the government has to prove that its means are not just reasonable,
but they're necessary to achieving its goals.
36
Energy Reserve contracts clause test
EMERGENCY IS NOT A FACTOR! Police power over special interests.
1. Has a state or local government impaired with existing contracts?
2. Is the impairment for a legitimate government purpose?
3. Are the means reasonable and appropriate for furthering the ends?
37
Takings clause rule
1. Is there a taking of property?
2. Is it being taken for a public use?
3. And if so, is just compensation being paid?
38
Loretto v Teleprompter Manhattan (takings rule)
Minor but still a taking:
Looking at the character of the government action
Looking at the extent/degree of the government action
Placement of physical structure or occupation is almost per se taking, extent will show compensation
39
Horne v Department of Agriculture (takings)
Gov coming to take their raisins
| Government has a duty to pay you when it takes your car or your home
40
Three factors of significance for “takings” (regulatory mostly)
1. Economic impact of the regulation
2. The extent to which to regulation has interfered with investment-backed expectations
3. Character of the governmental action
a. Physical or Regulatory
41
Taking element (physical)
TAKING OF PROPERTY?
Physical or possessory = taking
Even if minimal (e.g., installation of cable tv box)
Even if only temporary interference with use
But NOT if emergency (e.g., tree disease)
42
Taking element (physical)
Physical or possessory = taking
Even if minimal (e.g., installation of cable tv box)
Even if only temporary interference with use
But NOT if emergency (e.g., tree disease)
43
Cedar tree case
Lists the economic impact factors but also "inaction is still taking an action in this case"
44
Taking element (regulatory) (all use denied)
All economic use denied = taking unless prior law would have limited use (e.g., Lucas) (meaning that owner acquires subject to existing legal restrictions)
45
Taking element (regulatory) (delay in development)
Delay of property development (while land use planning occurs) is not a taking so long as gov’t action is reasonable (e.g., Tahoe)
46
Taking element (regulatory) (reduction in property value)
Reduction in property value = taking ONLY if goes “too far” meaning no reasonable economically viable use considering:
1. Economic impact of the regulation
2. The extent to which to regulation has interfered with investment-backed expectations
3. Character of the governmental action
a. Physical or Regulatory
47
Taking element (regulatory) (restricting proposed development)
Conditions restricting owner’s proposed development must be related in nature (“nexus”) to legitimate gov’t interest and must satisfy “rough proportionality” in degree (Nollan/Dolan) (basically, whether burden on owner excessive relative to gov’t benefit?)
48
Penn Central Transportation Co. v New York City
Huge loss in potential development possibilities thus Diminution of property value alone does not create a taking
but also historic landmark
Expectations were getting money from transport, so primary expectation not interfered with
49
Takings generally
All value lost (even development possibility)? Taking UNLESS also NO EXPECTATION OF THIS USE at time of purchase (ie law would have prohibited that use)
Some value lost? Use the factors
1. Economic impact of the regulation
2. The extent to which to regulation has interfered with investment-backed expectations
3. Character of the governmental action
a. Physical or Regulatory
50
For Public use (takings element)
Must be rationally related to legitimate government interest (usually general police power) (reasonably benefits the public)
e.g., Kelo held taking of property via eminent domain to spur development in economically depressed city was public use
51
JUST COMPENSATION (takings element)
Based on Fair Market Value of owner’s loss at time of taking, NOT based on most valuable use of property or the value of the government’s gain
IOLTA case (“interest on lawyer trust accounts”) (Brown): no compensation due because no loss because client funds too small and too temporary to earn interest
52
Conditions (takings) test
“You can do X to your property if you give us Y”
Must be a NEXUS between the interest and the regulation proposed (Nolan, bigger house for beach path not related)
ROUGH PROPORTIONALITY is the test (Dolan, required land dedications are necessary to offset the impact of development)
53
Nolan (takings case)
Must be a nexus of connection (visual view of the beach and lateral access between beaches are unrelated)
54
Dolan (takings case)
Rough proportionality is the test (slightly higher than RB, individualized determination is related in nature and in extent to impact of development)(burden on government)
55
Taking of Property Flow
Physical/Possessory = Per Se
Regulatory
All Reasonable Economic use
Some Decrease Economic value → Penn Central Factors
Conditions - Nexus + Rough Proportionality
56
Substantive Due Process overview
1. Adequate justification for infringement?
2. Two main categories under sdp:
a. Economic liberty? Not fundamental → RB
b. Privacy? → DEPENDS
57
Framework for analyzing fundamental rights
1. Is there a fundamental right?
- -> If not fundamental, rational basis.
- -> Defer to legislature unless it affects a “discrete and insular” minority or infringement of a fundamental right
2. Is the constitutional right infringed?
- -> Direct and Substantial
3. Is there sufficient justification for the government infringement of a right?
- ->“Vital interest” which has included winning a war and ensuring children receive adequate care
- ->“Compelling”
4. Is the means sufficiently related to the purpose?
- ->“Necessary”
58
Constitutional Protection for Family Autonomy
Right to Marriage protected in Loving v Virginia (race) and Zablocki (unpaid child support)
However, right not violated unless there is substantial and direct interference. (Califano and Bowen)
59
Direct and substantial (fundamental rights)
For marriage, denial of welfare benefits was not direct and substantial enough (
60
Non-Exhaustive List of Fundamental Rights
Examples of fundamental rights not specifically listed in the Constitution include:
```
marriage
privacy
contraception
interstate travel.
procreation
custody of one's child(ren)
voting
```
Even when the Supreme Court finds that something is a fundamental right, the Court may later revoke its standing as a fundamental right. The Court did this with the right to contract in Parrish
61
Windsor case
Struck down federal ban on same sex marriage
62
Obergefell case analysis
Importance, Evolution of marriage, intimate choices, Not limited by history
1. Autonomy, 2. Two person union, 3. Safeguards children, 4. Keystone of our social order (marriage benefits)
63
Michael H v Gerald D
Daughter of another man, couple gets back together
BIological, non-marital, actual relationship usually good. But HERE there is a marital husband and MARRIAGE is the ultimate point. FAMILY UNIT (?)
64
Responsible Procreation Justification (SDP)
Dissent idea which makes marriage important due to procreation and not history (to avoid race problems)
Marriage is an incentive for responsible procreation
65
How to determine if something is a Fundamental Right or Liberty interest?
Right deeply rooted in history? Or
Right implicates basic values that are implicit in the concept of ordered liberty.
Now AND due to Glucksburg
Strict or Heightened Scrutiny for Fund. Right; rational basis for basic liberty
66
Stanley v Illinois
actively involved, unwed, biological Father. Can't take his kids.
Strict scrutiny for parental rights
67
Moore v City of East Cleveland
Rule: The right of related family members to live together is fundamental and protected by the Due Process Clause, and necessarily encompasses a broader definition of “family” than just members of the nuclear family. (Strict-ish scrutiny)
Only RATIONAL BASIS for UNRELATED people (Bel terre)
68
Meyer v Nebraska
The right to teach German in schools to children at the request of their parents relates to the fundamental right recognized for parents to control and educate their children.
Ends are understandable, but Means sweep too broadly
69
Child labor laws vs parental rights (Prince v Massachusetts)
Example where state beats parental rights
70
Parham v JR
Court assumes parents act in the best interest of child
| Parental right to commit child without evidentiary hearing
71
Pierce v Society of the Sisters
Rule: Requiring children to be educated only by public instruction violates the Fourteenth Amendment of the United States Constitution.
No proof that private education is somehow worse than public
Means too broad
“Child is not the mere creature of the state” Parental rights
72
Troxel v Granville
Grandparents visitation rights
Rule: Under the Due Process Clause, a state court may not grant visitation rights to a person, even when doing so would be in a child’s best interest, if those visitation rights are opposed by the child’s parent because doing so interferes with the parent’s fundamental liberty interest in rearing his or her child.
Third party rights can place a substantial burden on the traditional parent-child relationship
No deference was being given to the parents, but how much deference is due?
73
Skinner v Oklahoma
IMPLICITLY Overturns Buck v Bell. Sterilization requires strict scrutiny now. (first use of Strict Scrutiny)
(Technically EP analysis)
74
Griswold v Connecticut
Right not to procreate, contraception
The protected activities in each of these Amendments are “penumbras” that are not specifically enumerated in the Constitution, but instead represent various “zones of privacy” into which the government cannot intrude.
75
"Penumbra" and “zones of privacy”
Comes from concept of 9A: Fundamental principles of liberty and justice and nature of the constitution.
Mostly from 14th Amendment Substantive Due Process
76
Eisenstadt v Baird
Rule: Under the Equal Protection Clause of the Fourteenth Amendment, a state may not outlaw distribution of contraception to unmarried persons.
77
Contraception generally (SDP)
Contraception rights given to:
Married couples (Griswold)
Unmarried (Eisenstadt)
Minors (Carey)
Need STRICT SCRUTINY to block access to contraceptives
78
Undue burden test
Purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus (Casey)
LESS than strict scrutiny
79
Examples of Undue Burdens (SDP, abortion)
Spousal Consent
Admitting privileges at nearby hospitals
Surgical Center Requirements
80
Examples of Not an Undue Burden (abortion)
```
Informed consent (and persuasion)
Waiting period
Parental or judicial consent for minors
Licensed physicians
Ban on late-term method - “partial birth ban”
Ban on public funding
```
81
Overruling Precedent (from Casey)
Workable? (whether the precedent’s rules or standards are too difficult for lower federal courts or other interpreters to apply)
Reliance on it?
Changes in facts?
Changes in law?
82
Stenberg v Carhart (abortion)
“Partial birth abortions” not allowed
Must sever fetus so it doesn't look like childbirth
Restricted the METHOD of abortion
83
Harris v McRae (abortion)
Hyde Amendment, no public funding of abortion
| Still have right, just won’t pay for it
84
Abortion generally
Before viability = no undue burden. After viability = state may go as far as banning abortion (Roe/Casey)
Ginsburg even thinks restrictions would fail RB one day
85
Maher v Roe
Issued regulations limiting state Medicaid benefits for first-trimester abortions to those that were "medically necessary."
Not an undue burden to not pay for it
86
Roe v Wade
Roe established the fundamental right to decide whether to terminate a pregnancy, applied strict scrutiny (which was reduced to undue burden in Casey), adopted a trimester framework (which was abandoned in Casey), and used viability as the defining mark
87
Cruzan v Director Test (refusing medical treatment)
Not fundamental right but “Liberty interest” in refusing medical treatment if cognitively competent
If not not competent:
Balancing Test:
Liberty interests of the patient
Interests of the state
88
Washington v Glucksberg (right to die)
Liberty interest? Uses same two step analysis as Cruzan
Fund right?
Right to assisted-suicide? Traditionally not historical.
While might be implicit, don’t have the first one
Changes the fund right test to AND
“Right to die” too broad, must be a specific right (assisted suicide)
```
State interests:
Life
Vulnerable populations
Euthanasia (no involuntary euthanasia)
Integrity of the medical profession
```
Rational basis, test now AND
89
Privacy rights under SDP
Strict or Heightened Scrutiny for Fund. Right; rational basis for basic liberty
1. Reproduction: sterilization; contraception; but undue burden test for abortion
2. Family: marriage; custody; extended family unit; parental control
3. Medical: right to refuse treatment if competent; but no right to assisted suicide
4. Sexual: fund right to marry for same-sex couples; but liberty interest for sex
90
Refusing medical treatment/receiving medical treatment
Refuse: Liberty interest, balancing test only if incompetent
Receive: RB for government
91
Lawrence v Texas
Banning gay marriage fails rational basis
Decided on SDP, not EP
No legitimate state interest in banning it
Fails rational basis review (not explicitly said)
92
Free Speech Why?
Truth, Democracy (self-governance), Liberty (autonomy), Equality
DO NOT IGNORE THIS! Kagan concurrence in Gilbert asked
93
Free Speech What
Generally, no content-based or viewpoint-based restrictions
Exceptions:
(i) Incitement;
(ii) Fighting Words (hate speech?);
(iii) True Threats;
(iv) Obscenity;
(v) Commercial Speech;
(vi) Tort Recovery;
(vii) Communicative Conduct
94
Free Speech how?
(i) Content and Viewpoint Neutral;
(ii) No Compelling Speech (loyalty oath)
(iii) No Vague or Overbroad restrictions;
(iv) No Unconstitutional Conditions
(v) No Prior Restraint unless important interest, clear criteria, process safeguards
(vi) Time Place Manner ok (if narrowly tailored to significant; ample alternatives)
(vii) Public Forum protected via TPM/PR; Limited/non-public (reasonable/neutral)
95
Free Association overview
Targeting fa must be:
1. Compelling;
2. unrelated to suppression;
3. no less restrictive means
96
Free Exercise of Religion general
if valid/neutral/general, rational basis; if targeted, strict
97
Freedom from Establishment general
Lemon test: (i) secular purpose; (ii) primary effect neither advances nor inhibits; (iii) no endorsement; (iv) no excessive entanglement
if targeted: strict
98
Strict scrutiny
compelling end + necessary or least restrictive means
99
Reed v Town of Gilbert
The ordinance is content-based on its face because the level of the regulation a sign receives is entirely dependent on the message the sign contains. Must be content neutral!
Even if the law is not a huge deal and popular. Almost no chance of surviving. Strict scrutiny.
100
Matal v. Tam (free speech)
Trademarks being non-disparaging and scandalous is a violation of 1st amendment
viewpoint based (not neat distinction from content)
101
Riddled with exceptions? (free speech)
That should be a red flag.
102
City of Renton v. Playtime Theatres, Inc. (free speech)
Aimed not at the CONTENT of the (adult) films, but rather at the SECONDARY EFFECTS on the surrounding community.
(Really TPM, but still uses this)
103
Free Speech Exceptions to Content/Viewpoint
Not content/viewpoint based → If so, Strict Scrutiny
Unless meets strict scrutiny (Judges soliciting funds)
Unless aimed at “secondary effects” (Renton, adult entertainment) --> Intermediate scrutiny
Unless unavoidable funding $ decisions (Finley)
Unless “government speech”
104
Free speech secondary effects
Exception to content discrimination essentially. Banning content not BECAUSE of content, but for its "secondary effects"
Must be "truly unrelated" to protect speech. and "unique to the speech suppressed as to the speech allowed"
Essentially must be narrowly tailored
105
Secondary effects usual examples
Safety, Traffic, Aesthetic
106
Funding exception
When government intertwines itself in something where funding choices are made, there is an exception to content choices. Neutrality is impossible. NOT strict scrutiny, softer scrutiny.
107
Government speech elements
Can be based on content/viewpoint and can favor some over others.
Summum: Government purpose of conveying a message, and effect of conveying a message.
Walker: government speech on matters:
(i) History of how government speaks through it
(ii) Speech closely identified with the government
(iii) Government has Direct control over the message
108
No Vagueness (first amendment)
Generally, a regulation is unconstitutionally vague if a reasonable person can’t tell what’s prohibited and what’s permitted;
e.g. Coates (too vague to prohibit persons from assembling on sidewalks in “annoying” manner);
Baggett (too vague to prohibit state employment of “subversive” persons)
109
No Overbreadth (first amendment)
Only overbroad if it is substantially overbroad
e.g. Schad (invalidated ban on all live entertainment even though prohibition of plaintiff’s nude dancing allowed); note that overbreadth doctrine is not applied to commercial speech
EXCEPTION TO RULE for 3rd party standing basically. "STRONG MEDICINE" is what it's called. USE THIS PHRASE!
Overbreadth doctrine does not apply to commercial speech (business owners can’t bring it on behalf of other business owners)
110
No Prior Restraint (license/permit requirements or court injunctions)
Generally, a regulation imposing a prior restraint on speech is presumptively invalid;
e.g., Near overturned injunction against publication of scandalous newspaper; NYTimes struck down injunction against publication of Pentagon Papers.
But licensing/permit requirement may be allowed if gov’t has important reason, sets out clear criteria (narrow, objective, and definite standards leaving almost no discretion),
and provides procedural safeguards;
e.g., Shuttlesworth allowed civil rights protestors who had violated ordinance prohibiting demonstration without a permit to challenge ordinance as violating First Amendment where ordinance gave officials unfettered discretion to deny permit;
but note Walker barred First A. defense when protesters violated a court order (due to collateral bar rule)
111
Types of 1A Infringement
```
Prior restraint → Court order; licensing/permit; seizure or gag order
Criminal prohibition
Civil liability (e.g. tort damages)
Prohibition of compensation
Compelled speech
Condition on Government Benefit
Government Pressure
```
112
Collateral bar rule
If you violate a court order, you then can’t challenge its constitutionality
-->"Unfettered discretion" however may make it still so unconstitutional it must be challenged
ex. MLK marched anyways despite court order not to, despite clear 1A violation
113
Licensing allowed if (prior restraint)
1. Important reason for licensing
2. Clear criteria. --> No discretion to licensing authority (Narrow, objective, and definite standards)
3. Procedural safeguards
No unfettered discretion
distinguish from collateral bar, violating licensing requirement is not violating a court order
114
War as a first amendment exception (prior restraint)
Not settled by the courts, but an emergency might be enough for gov to do a prior restraint
(never upheld under national security, but dicta has speculated nat emergency could be)
the burden for justifying such an injunction is extremely high. (nytimes, pentagon paper case)
115
Gag orders on the press (prior restraint)
will be allowed only in very rare circumstances okay so, generally speaking, you know you can imagine a lot of times a judge might want to keep the press of a trial.
116
Civil liability (1A)
Civil liability must adhere to 1A as courts are state actors
117
No Compelled Speech
Government may not directly compel speech;
requiring students to salute flag (Barnette),
requiring veterans to sign loyalty oath (Speiser),
requiring New Hampshire motorists to display “Live Free or Die” on license plate;
Could it just be a tax? (beef case)
Is it just funding? (Solomon, recruiters law school)
118
Being paid for speech (1A)
Government can't stop people from profiting by selling their story (Son of Sam law, content based) (National Treasury Employees Union = government employees should make money)
119
West Virginia State Board of Education v. Barnette (1A)
Compelled to pledge to the flag in school (expelled for not)
No compelled speech!
Particularly when harmless to others
"The very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.
[Fundamental rights] cannot be changed by vote or majority."
120
Janus v. AFSCME
Paying union dues without being part of union is compelled speech
121
No Unconstitutional conditions (strings on funding)
Government may not use funding conditions to coerce people to speak/not speak particular message
(Velasquez: may not prohibit legal services lawyers from bringing challenge to welfare reform on behalf of clients),
but government may choose which messages to subsidize (Rust: may prohibit public health doctors from counseling patient about abortion because outside scope of funding)
122
Rust v. Sullivan (1A)
Federal funds to private doctors → to serve low income people
No speech on abortion to keep funds
Upheld
Doctor = government speaker in this case due to funds and therefore can be limited
(explained as subsidizing everything but abortion)
123
Legal Services Corp. v. Velazquez (1A)
Federal funds to private lawyers → to serve low income people
No speech challenging welfare laws to keep funds
Struck down
Lawyer = not government speaker (because designed for private speech, speak on behalf of CLIENT AGAINST GOV)
Speaks on behalf of the client
Therefore suppressing private speech
Scope was intended to insulate law from judicial challenge which is suppression of ideas
124
Reasonable Time, Place, and Manner Restrictions Allowed
Generally, government may regulate time, place, and manner of speech so long as
1. regulation is justified without reference to content of speech,
2. serves a significant government interest,
3. and leaves open ample alternative communicative channels (does not have to be least restrictive alternative),
e.g. upheld sound rules for Central Park; note: held free-speech bubbles as applied to persons entering abortion clinics are content-neutral to protect safety and access, finding Colo. 8-foot bubble did not impair anti-abortion speakers (Hill), but Mass. 35-foot bubble required shouting, which changed message, so not narrowly tailored (McCullen)
125
Content + public forum standard of review
STRICT SCRUTINY!
126
PUBLIC FORUM CATEGORIES
Where content restrictions are subjected to STRICT SCRUTINY:
1. Traditional public forum (traditionally open to public expression)
2. Designated public forum (not traditionally, but intentionally open to public expression)
Where restrictions are allowed if (i) REASONABLE and (ii) VIEWPOINT NEUTRAL:
3. Limited public forum (opened only for certain groups or certain topics) (ie public university (tricky, as if opened to all may change this))
4. Nonpublic forum (not opened; gov’t merely acting as proprietor—not regulator—managing internal operations) (federal mint, other places gov owns)
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Factors to determine type of Public Forum
1. Traditional use of forum;
2. Purpose of forum;
3. Compatibility of speech with function of forum
Look at facts in context for analysis, very important
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TPM restrictions on public forums
Also, government is allowed to impose reasonable Time, Place, or Manner (TPM) restriction in public forum if it is
1. narrowly tailored to serve important or significant government interest and
2. leaves open adequate alternative channel of communication
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Time Place Manner test
1. Content neutral
2. Narrowly tailored
3. Important/Significant gov interest
4. Leave open ample alt channels for communication of the information
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Licensing or Permit Test
1. Serve an important purpose (easy to meet)
| 2. Clear criteria for decision makers that leaves almost no discretion
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May regulate speech in public forums when
(1) regulation is content-neutral (if content-based, apply strict);
(2) regulation is reasonable Time, Place, and Manner restriction that serves important government interest and leaves open adequate alternative channels of communication;
(3) any Prior Restraint (such as licensing or permit requirement) provides clear criteria for guiding discretion; and
(4) regulation is narrowly tailored to achieving significant gov’t interest (but need not be least restrictive alternative).
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Unfettered discretion
Usually a red flag for unconstituitonal
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Exceptions in 1A issues
Red flags, could be viewpoint or content!
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Speech in Authoritarian Government Institutions - generally, deferential to gov’t
1. Military or prisons – reasonable regulation allowed for military/penal functions
2. Public Schools - Tinker (students do not shed right to free speech at schoolhouse gate, but see Fraser (schools may regulate sexual speech to inculcate moral values), Hazelwood (schools may censor school-sponsored articles about pregnancy/divorce to further curriculum, protect immature students, disassociate school from speech), Morse (schools may censor speech promoting illegal drugs)
3. Government Employees—may speak on matters of public concern if importance of employee speech outweighs need for government to prohibit the employee’s speech (Pickering balancing test); but no First Amendment protection for on-the-job speech related to official duties (Garcetii)
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Hill v. Colorado (1A)
8-foot bubble any healthcare facility
Allowed, not content based (all hc facilities, not just abortion)
Unwilling listener (Right to communicate, right not to communicate)
Contrast with McCullen, too big and not narrowly tailored
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Clark v. Community for Creative Non-Violence
Sleeping in park, while expressive speech, was content neutral (anybody could sleep) and therefore TPM fine for aesthetics
137
Charges for speaking? (charges for permit)
No fee to speak (likely) (not super resolved) (ie protests and marching)
Could have same effect as ban, but also not required to subsidize
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Narrowly tailored test for TPM
If a substantial portion of the burden on speech does not advance the goals, then it is not narrowly tailored (not substantially broader than necessary)
However, you DON’T have to be the least restrictive alternative
(Ward v Rock Against Racism)
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Test for lower public forums (limited, non-public)
Law or restriction must be:
1. Reasonable
2. Viewpoint neutral
(Hastings (all groups must be open to all))
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Categorical Exceptions to General Rule of Content-Neutrality
(less or un-protected)
1. Incitement (Brandenburg test)
2. Threats/Fighting words (Chaplinsky BUT narrowed)
3. Obscenity
4. Commercial Speech
5. Defamation/IIED
6. Communicative conduct
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Brandenburg Test for incitement
1. Intent to Incite
2. Imminent Lawless action
3. Likelihood of that occurring
Until all three are met, speech is protected
(Careful of political hyperbole, is protected)
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Fighting words test (Chaplinsky)
Those by which their very utterance inflict injury or tend to incite an immediate breach of the peace
Exceptions:
1. Has to be specific. Too broad or general aren’t fighting words.
2. If the law is vague or overbroad it won’t be allowed
3. Fighting words based on viewpoint cannot be restricted (helps hate speech) (R.A.V.)
4. No danger of unrest so long as the police do their job (presumption of police presence)
Bottom line: very little will be a fighting word. Court never upheld a fighting word conviction after Chaplinsky.
True threats must be specific and said and someone must have felt the threat. Victim must be in fear of harm or death.
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Holder v Humanitarian Law Project (1A)
Strange case for providing funds that could be used for terrorist activities. Ends up really using strict scrutiny over Brandenburg. And somewhat deferred to government? Strange. Coordination also a problem.
Really restricted to only foreign terrorism.
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Speaker before hostile audience rule
1. Deference to the speaker
| 2. UNTIL (so long as cops doing job right) about to be a riot or get out of control (Feiner)
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Exceptions to 1A Exceptions
Must be because the exception is related to original exception
Like, there are many exceptions to content based discrimination. BUT WITHIN THOSE EXCEPTIONS there cant be further content or viewpoint based exceptions. Just use it.
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True Threat rule
A serious expression of an intent to commit an act of a lawful violence to a particular individual or group of individuals and it's unprotected speech.
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R.A.V case (1st amendment)
Need to show intent, and this wasn't viewpoint neutral (even if maybe under incitement and true threats)
general expression of hateful ideas is fine, directed expression can be a true threat
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Miller test (obscenity)
(a) Prurient: whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
(b) Patently Offensive: whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) Lacks Serious Value: whether the work, taken as a whole, based on national standard, lacks serious literary, artistic, political, or scientific value;
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Jacobellis case (obscenity)
“I know it when I see it” - Justice Potter Stewart
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Nine elements of obscenity broken down from Miller
NEED ALL NINE ELEMENTS
1. Avg person
2. Contemporary com standards (community standards)
3. Taken as a whole (not just one scene)
4. Incites lust (local standards)
5. Patently offensive (not subjective)
6. Shows sexual conduct
7. Specifically prohibited by a statute
8. Taken as a whole (national standard)
9. Lack serious social value (national standard)
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New York v Ferber (CP)
Child pornography has no real value
Evil outweighs expressive interest
Went through 5 parts to show it's an exception to the exception.
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Recent effort to add a new exception for violent speech:
Animal cruelty
Violent video games sold to children
Court rejected both. Resistant to adding new exceptions to this list.
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Commercial Speech Generally and triggers
Advertising speech is not as protected.
Can’t escape commercial speech by cloaking it in other purposes
Less protected, not unprotected
Triggers:
Advertising of illegal activity
Advertising false or deceptive
Does it risk becoming false or deceptive?
Can we limit commercial advertising for other goals?
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Commercial Speech RULES
Commercial speech test
1. Lawful and not misleading speech
2. Substantial government interest
3. Regulation means need to directly advance the ends
4. Regulation is not more extensive than necessary (does not have to be least restrict alternative)
Court struck down bans on ads of price of alcohol and various ads of tobacco; upheld requiring lawyers advertising contingency fee to disclose that clients would be liable for costs (Zauderer)
STILL NO CONTENT/VIEWPOINT DISCRIMINATION!
But see, Sorrel (doctor prescription) (too much targeting of content or speakers and give it a strict analysis, and/or apply the test with a heavier hand)
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Overall how to tackle commercial speech:
Know commercial speech test (four part)
But see, Sorrel (doctor prescription) (too much targeting of content or speakers and give it a strict analysis, and/or apply the test with a heavier hand)
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New York Times Co. v. Sullivan rule for defamation
1. Plaintiff is a public official or candidate or public figure
2. Plaintiff must prove their case with clear and convincing evidence
3. Prove falsity (fact, not just opinion)
4. Prove actual malice (subjective, not reasonable person. Need proof that the person who published the falsehood knew to some degree. Actual malice occurs when the defendant knew that the statement was false or acted with reckless disregard of the truth.)
Note: Private individuals do not have the same avenues of communication to defend themselves. States left to determine this. Still need to prove actual malice for presumed or punitive damages.
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Alcohol and Tobacco ad restrictions?
Alcohol ads can’t be limited with the goal of reduced use
| Can’t regulate ads to discourage harmful behavior
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Private person being defamed
Matter of public concern: may recover compensatory damages upon showing of at least negligence
but must prove actual malice to recover presumed or punitive damages;
Private matter: may recover compensatory and punitive damages upon meeting state’s standard of liability (e.g., negligence).
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IIED
Government may not impose IIED liability for outrageous or offensive speech
(e.g., Hustler first-time-sex parody; Snyder anti-gay picketing at funeral).
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Snyder v. Phelps (1A)
A church protesting a military funeral on public land in a peaceful manner is considered public speech protected by the First Amendment.
Private vs public defamation? Nah, content based discrimination. Public speech.
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Cox Broadcasting Corp. v. Cohn (rape case, 1A) test
A private plaintiff does not have a right to be free from unwanted publicity about his private affairs if the information is true and otherwise available through public records.
press published protected:
1. Truthful info
2. Lawfully obtained
seems like strict scrutiny (not explicit) (press shouldn't have actual malice, they're reporting(commentary from Nice))
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When is conduct communicative? and TEST:
If speaker intends to convey message, and likely that message would be understood
Test:
If regulation is related to suppression, then apply Strict Scrutiny (e.g. Citizens United)
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O’Brien 4-part test: (prohibiting communicative conduct)
1. Regulation within constitutional power
2. Serving important or substantial interest
3. Unrelated to suppression
4. No greater than is essential
ex. burning draft cards could be punished
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Communicative conduct overview
To determine whether conduct is sufficiently communicative to invoke First Amendment protections, the court examines
1. whether there was an intent to convey a particularized message through the conduct and the likelihood that the message would be understood by people viewing it.
2. If the conduct is classified as expressive, the court must determine whether the state's regulation is related to the suppression of free expression.
3. If the regulation is not related to expression, the court must apply the analysis for regulations of non-communicative conduct outlined in O’Brien.
4. However, if the regulation is related to expression, then the court must utilize a rigorous standard (ss?)
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Buckley v. Valeo (campaign finance)
Campaign $ = political speech; refused to use O’Brien test; applied Strict Scrutiny
Upheld limits on contributions, but struck down limits on expenditures
(contribution = direct to campaign; expenditure = in theory independent but ends up going to candidate, less direct contact for corruption)
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Citizens United (3 rationales)
Struck down restrictions on corporate expenditures for or against candidates right before election (overruling Austin and McConnell); but upheld disclosure/disclaimer requirements
Prohibited muffling speakers who “best represent the most significant segments of the economy” (Kennedy) or muzzling “the principal agents of the modern free economy” (Scalia)
167
3 rationales for not having money in campaigns:
1. Prevent distortion of message (lots of cash to one perspective)
2. Anti-corruption
3. Protect dissenting shareholders
REJECTED ALL THREE RATIONALES BY COURT
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Speech in military institutions
The need for increased obedience and the imposition of discipline renders permissible military restrictions on speech and conduct that would be impermissible in civilian society.
Less protection for military overrides the “no overbroad or vague” and “no prior restraint” standards for free speech.
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Thornburgh v. Abbott (1A prison publications test)
Prison controlling materials which come in
Reasonableness inquiry:
Under the First Amendment, the government may constitutionally limit the types of outside publications available to prisoners if:
1. doing so promotes a legitimate and neutral objective, and
2. the regulation is rationally related to that objective.
kinda rational basis
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1A school censoring test
Schools can censor only if:
1. The speech materially and substantially interferes or disrupts the operation of the school.
2. There is evidence of interference with the rights of other students to be secure or let alone
With exceptions
Neither students nor teachers shed their First Amendment rights at the door of the schoolhouse. “At the schoolhouse gates.” (Tinker)
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What can be restricted in schools: (1A)
1. Indecent or lewd speech in school can be regulated (Bethel)
2. School can regulate anything about illegal drug use (Morse)
3. Reasonably perceived to bear the imprimatur of the school (Hazelwood)
4. Anything that materially or substantially disrupts the school or invades the rights of others. (Tinker)
Mainly school’s interests weaken but don’t disappear when conduct is outside of school.
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Government employee test
Employees for government can:
1. Speak as a private citizen
2. On a matter of public concern
3. And balancing test: whether importance of speech outweighs the government’s need to regulate or restrict that speech
Garcetti: Takes away all first amendment protections for on-the-job speech. But, Garcetti does not apply if the employee is responding to a subpoena. (lane)
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Two Types of Freedom of Association:
1. Intimate
Consider size, selectivity, seclusion (e.g., family)
2. Expressive
Types of Infringements by government:
- Punishing membership
- Requiring disclosure of members
- Compelling association
- Prohibiting discrimination
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Punishing Membership (1A freedom association) test
Gov can punish but Gov must prove:
1. Active affiliation
2. Knowledge that the association or group is pursuing illegal objectives
3. Specific intent to further that activity
“Likely to occur” is not present here, just illegal intent!
But still a difficult test to meet, third prong still important.
Can advocate overthrow of government, but can’t plan it
175
Requiring disclosure (of membership records) by gov or state
for normal members Requires STRICT SCRUTINY (Chilling effect on membership is enough harm (NAACP case))
but Allowed for officials or employees or for campaign contributions
176
Overruling stare decisis test
1. Quality of reasoning
2. Workability
3. Recent developments
4. Reliance on old decision
177
Sex prohibition in clubs (1A FoA)
Sex prohibition: cannot be used to discriminate (Jaycees) (strict scrutiny)
178
Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston (1A)
Sexual orientation: can be used to discriminate
Makes statement that they accept homosexuality
Presence of openly gay people changes the message of the parade
179
Board of Regents of the University of Wisconsin System v. Southworth (1A)
Under the First Amendment, public universities may constitutionally subsidize campus groups by imposing a mandatory student fee structure, even if some students find some campus groups objectionable, as long as the universities remain viewpoint-neutral in their allocation of funding support.
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Belief in relation to a supreme being test
“Whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.”
i. Sincerity is enough
ii. Individual idea is enough
iii. Role belief plays in life
181
Determining the truth of any religion
Jury shouldn’t be allowed to determine falsehood or truthfulness of any religion
You CAN litigate sincerity however
182
Difference between belief and conduct (religion 1A)
Conduct can be stifled (ie plural marriage)
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Employment Division; incidental burden test (religion)
1A requires only rational basis review for neutral laws of general applicability that incidentally burden religious exercise.
Neutral: No targeting of religion
General Applicability: No exceptions (general exceptions ok, not individualized exceptions)
No religious exemption
Especially if state already regulating thing
184
Targeting religion test (1A)
Neutral law of general applicability: No strict scrutiny, basically rational basis
If targeting religion: Back into strict scrutiny
185
RFRA (1990)
Congress mandated strict scrutiny for substantial burdens of religious exercise, trying to override Smith’s rational basis for neutral, generally applicable laws
Still only applies to Feds
186
RLUIPA (2000)
Congress re-imposed strict scrutiny for state/local burdens on religious exercise re: land-use regulation and institutionalized persons
187
Exceptions to religious standards
Hosanna-Tabor (requiring exemption from applying employment laws to religious ministers) Can discriminate based on their religion
Masterpiece Cakeshop (generally no religious exemption to non-discrimination public accommodations laws, but such laws may not be applied with hostility or animosity toward religious beliefs).
Trinity (Government benefits)
188
Funding and religion (1A establishment)
Funding religious activities doesn’t violate the establishment clause
189
Gay discrimination tools
Freedom of Association (boston, boyscouts)
Freedom of Religion (goes against my religion)
190
Fulton v. City of Philadelphia (1A)
Catholic adoption won’t consider gay foster parents
Strict scrutiny,
the Philadelphia law was not neutral and generally applicable because it allowed for exceptions to the anti-discrimination requirement at the sole discretion of the Commissioner.
The Court pointed out that the question is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. The Court concluded that it did not.
191
Establishment Clause 4 approaches
Separation
Neutrality → Endorsement
Accommodation
Establishment/Coercion
192
Government doing something that favors religion test
If Discrimination (not neutral) --> Strict Scrutiny
If Non-Discrimination (neutral on face) → Lemon 3-part test:
1. Secular purpose (Can’t be for religious favoring purpose)
2. Neither advances nor inhibits religion (Effects test)
3. Entanglement (no “excessive entanglement”)
a. Character and purposes of institutions benefitted
b. Nature of the aid, and
c. the resulting relationship between the government and that religious authority
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American Legion v American Humanist Association
Ceremonial or monuments that are religious but also have a secular meaning are not violating the establishment clause and don't even need the Lemon test
But, be careful of fully religious imagery by itself (McCreary)
194
Government funding religion concepts
Gov’t may not directly subsidize or sponsor religious activity (e.g., no prayer in public school), (ONLY SPECIFIC RELIGIONS, NOT ALL RELIGIONS)
but gov’t may indirectly subsidize religion if funding is neutral, broadly available, and subject to independent private choice (e.g., school vouchers used by most to pay for religious schools upheld in Zelman); NOTE: excluding religion from receiving government benefits may violate free speech (Rosenberger).
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Secular purpose examples (1A)
Day of rest on Sunday, possible secular purpose
Ten commandments in courthouse, no possible secular purpose
196
Effects test (secular)(1A)
Specifying a "sabbath" in law only helps religious, establishment
but, allowed Title 7 to have religious exemption to allow church to pursue mission (discriminate inside church)
197
Entanglement examples (1A)
Co-mingling public funds to pay or help religious teachers salaries. Too entangled.
198
Gov discriminating against religious speech?
Content based. Strict Scrutiny
199
Government mandates no discrimination against religion:
Does not violate the establishment clause, in other words the government gets to mandate non discrimination against religion
200
Zelman case (1A)
Taxpayer money for students going to religious schools via a voucher to parents who could choose religious school (and were overwhelmingly)
Actually a parental choice the court says (a true private choice)
Government money → Parent → Religious school (chain is fine, not going right to religious school) (effects)
201
Prayer in school
Supreme Court has invalidated prayer and public schools, including all the voluntary prayers like by instructors and government mandated moments of silent prayer The Court also has followed this reasoning to invalidate clergy prayers at graduations.
202
Evolution teaching?
Can't be banned for religious reasons. Also can't force teaching both evolution and creation theory.
203
Prayer to start gov meetings
Deeply embedded in fabric of society. Grounded in historic practice.
Could cross the line if it denigrates or proselytizes or betray an impermissible government purpose
Content of prayer solely won’t establish constitutional violation
(Galloway)
