Con Law II Flashcards
Alienage (Equal Protection)
- strict scrutiny (mostly)
- An alien may be excluded from performing political function that involve exercise of discretion (PO’s & school teachers)
- Fed gov may discriminate b/c control over immigration
Equal Protection Approach
1) Identify class
a) If discriminatory on face, determine level of scrutiny & apply
b) If discriminatory impact, use approach for discrimination as applied
Discrimination as applied - Analysis
1) discriminatory impact?
2) did the state have discriminatory purpose? If yes, burden shifts
• uncon only if evidence of purpose
Rational Basis- Analysis. Constitutional so long as:
1) gov can identify some LEGIT state purpose that can be described as sought by the statute; AND
2) there’s a rational relationship between identified purpose & regulatory means that sets up the classification
Rational Basis w/ Teeth - Analysis
1) identify state interest asserted by gov
2) is classification extremely over/underinclusive given the identified state interest?
3) does it make you question if the State’s interest is what they’re saying it is? Is it an indication that State is just giving rein to irrational prejudices?
Intermediate Scrutiny - when to use
when there’s a suspect class, but existence between class & other groups will sometimes make legislative distinctions appropriate
• gender; children born out of wedlock
Intermediate Scrutiny - Analysis
1) can state identify an important gov objective?
2) Is gov regulation substantially related to achieving the objective?
a) no: appears invidious
b) ask: is it over/under? to what degree could gov achieve its objective w/ equal efficiency using different means?
Intermediate Scrutiny - Gender Discrimination Context
Gender based classifications get intermediate scrutiny (Craig v. Boren - beer) as long as the legislature has intentionally discriminated against one sex in favor or another.
However, If the burden on one sex is unintended, the rational basis test is used. (Feeney - vets)
Ct requires an exceedingly persuasive justification for any gender based classification (VMI)
strict scrutiny used in 2 situations:
1) carefully scrutinize suspect classifications (race, ethnic, & national origin classifications, even if designed to assist a minority.)
2) when a discrimination affects a fundamental liberty interest
To find a suspect class, consider factors such as whether the class:
1) immutable characteristic
2) historically faced discrimination
3) Suffers exclusion from political process
4) continuing problem of irrational societal attitudes based on stereotypes or prejudice; &
5) will often require special legislative measures, making some flexibility/deference in evaluating legislation appropriate
strict scrutiny analysis
1) can state identify a COMPELLING state interest
2) is regulation narrowly tailored to achieve its goal
• most situations where State could’ve accomplished its end w/o est classifications are uncon
• burden on gov
What are some compelling state interests?
1) remedy past gov discrimination
2) remedy effects of locality-specific societal discrimination when gov has been a passive participant
3) diversity in education to avoid racial isolation & improve educational experience
Discrimination as applied - Uncon only if evidence of discriminatory purpose
- doesn’t have to be primary factor, merely motivating
- once π est., state has burden to show measure would’ve been adopted anyway for non-discrim reason
- If state cant show = uncon
Discrimination as applied - Discriminatory purpose may be shown through:
- statistical evidence of discrim impact (if evidence so compelling no other conclusion reasonably possible) - May shift burden to state
- history of govs conduct; or
- legislative history (feeney)
Discrimination as applied - If no discriminatory purpose shown:
Avoids heightened scrutiny – subject only to rational basis
As Applied - Key Case: Washington v. Davis:
D.C. police dept. test disproportionately failed by African Americans. Ct said not enough to have impact; there must also be intent/purpose.
Fundamental Rights: Approach
- Describe the right
- Determine whether right is fundamental/important/liberty interest
- Determine if there has been a substantial infringement of right
- Determine if best attacked using substantive due process, equal protection, or both
Well established Fundamental Rights include:
- marriage
- living together as a family
- to have children
- contraception
- to refuse medical treatment
- travel
- to vote
- access to the courts to protect a fundamental right
important rights include
- abortion
- sodomy
- taking pain med for terminal suffering
Examples of Rights Not Recognized:
- To an education
2. Assisted suicide for terminally ill patient
Step 2: Determine whether the right is fundamental
- fundamental = strict scrutiny
- if SCOTUS case law has recognized the specific, narrowly defined right, use relevant precedent
- If no precedent, different justices will respond to diff arguments
Step 4: determine if fact pattern is best attacked using substantive due process, EP or both
analysis will be similar, but substantive due process is usually the better option when a restriction applies to all individuals equally
EP analysis (fundamental rights context)
- same analysis as before but Q is whether it improperly undercuts the enjoyment of a right for some group (instead of whether class is invidious)
- may consider if state has alt means; but will focus on under/over inclusiveness
Substantive Due Process analysis - on its face
statute lacks plainly legit sweep b/c:
- fundamental right - no compelling state interest and/or measure not necessary to achieve
- important right- upon balancing, state interest insufficient
- liberty- fails rational basis
Substantive Due Process analysis - as applied
1) is the measure necessary given the plaintiff in this case?
2) is the measure a balanced one given the plaintiff in this case?
Under rational basis, a purpose is legitimate if it
advances traditional “police” purposes (protecting safety, health, morals) or anything not prohibited by constitution.
Purpose does not have to be the same one legislature intended.
Substantive Due Process: Conservative, Moderate, Liberal Approach
- conservatives: will describe narrowly
* liberals: will describe broadly
Applying Rational Basis (substantive due process)
- If no fundamental or recognized right exists: argue statute affects liberty of the individual since it restricts their conduct
- State must identify legit state purpose + show relationship between means chosen & purpose
- as long as there’s a cognizable justification, states are free to regulate economic interests
Applying Intermediate/Moderately High (substantive due process)
1) analyze gov interests that justify regulation of right
2) is right unduly burdened given the interests?
• morality is insufficient as interest/cannot be to stigmatize those engaged in activity
Applying Strict Scrutiny (substantive due process)
1) state’s interest must be very compelling/important
2) analyze whether regulation is necessary to achieve state interest; can state achieve goals in other ways?
Abortion: constitutionally protected on what basis?
- Privacy (includes a woman being able to receive/take advantage of med judgment of her physician as well as a respect for personal, intimate choices & right to define one’s own concept of existence)
- enormous burden that carrying a pregnancy to term imposes on a woman
- Making basic life choices without gov intrusion
Abortion: what are the gov’t interests?
- Pregnant woman’s health; maintaining medical standards
- Protecting potential life can be used by gov as a legit interest pre-viability, applying a rational basis test, so long as it does not unduly burden the right to an abortion
Abortion: what is the point of viability?
the point at which the government’s interest in potential life becomes so strong as to trump any individual right except that woman’s right to protect her own life and health (Casey)
Gov may not impose an “fill in this blank” in a woman’s right to an abortion prior to viability
“undue burden”
What is an undue burden?
- woman’s legit fear of physical or psych abuse if required to notify spouse are severe enough = undue burden
- Casey gives only limited guidance as to meaning of “undue burden”; refers to regulations that place a “substantial obstacle in the path of a woman” when summarizing its requirements
Abortion: Some regulations declared constitutional
- required parental consent for minor as long as there’s a judicial bypass
- restrictions on abortion methods so long as equally safe alt methods avail
- informed consent requirements incl 24 hr delay so woman receives info from physician & may consider consequences
- laws banning abortion after viability (but regulations must always provide exception for a woman’s life/health)
- law barring state funded abortions
Abortion: Some regulations declared constitutional
- required parent consent for minor as long as there’s a judicial bypass
- restrictions on abortion methods so long as equally safe alt methods avail
- informed consent requirements incl 24 hr delay so woman receives info from physician & may consider consequences
- laws banning abortion after viability (but regulations must always provide exception for a woman’s life&health)
- law barring state funded abortions
what is a “plainly legitimate sweep”?
there are at least a significant range of situations where the statute would be constitutional, so the court will not strike it down. If so, not on it’s face.
Why do we want to protect free speech?
- Self expression; encouraging creativity (advancing autonomy)
- Market place of ideas; debate (discovering truth)
- Protect political process (self-governance)
- promote tolerance
when is something content neutral?
gov’t is regulating something other than speech with no reference to the content of the speech
General Rule: If there’s a significant infringement on freedom of expression, but the regulation is content neutral then a rule of….
intermediate scrutiny applies.
• gov’t regulation will be sustained if there is:
1) important gov interest and
2) regulation does not burden substantially more speech than necessary to further the gov interest
Content Regulations: sometimes exceptions
- Zoning adult ent (Renton asks if measure is attempt to deal w/ secondary effects from the expressive activity and therefore may be treated as content neutral)
- gov’t subsidized speech
- commercial speech
Viewpoint Regulation
almost always unconstitutional
Basic Tools of Attack for Speakers (free speech)
- content regulations
- uncon vagueness
- uncon conditions
- publicly funded speech
- political speech
- prior restraints
- significant burden on expression
- overbreadth
tools for gov’t
- secondary effects doctrine
2. government speech
uncon vagueness
- if REASONABLE PERSON cannot tell what is/is not prohibited/permitted
- law may be challenged even though it would normally be con to regulate the speech involved given states interest
- vague statute gives too much power to interpreter
overbreadth
- exception to usual bar on asserting rights of others *
• can challenge statute on grounds it violates free speech rights of others in a SUBSTANTIAL WAY
what are the 2 ways you can challenge overbreadth?
- party affected by statute challenges on its face by identifying situations where it violates con rights w/o showing party’s own rights would be violated
2 statute may be con as applied to challenging party, but that party is free to assert the uncon of statute if it were applied to others
overbreadth: rationale
societal importance of free speech and corresponding concern that absent parties will be deterred from expressing themselves and will not challenge the statute. BUT any over breadth must be substantial.
what are Prior Restraints?
situations where gov’t stops speech from occurring or subject it to prior censorship or licensing as opposed to subsequent punishment for violation of a statute
General approach to prior restraints. more likely ct will find prior restraint when:
- censorship - w/ required submission of speech to authorities for approval
- specified stmt is singled out ahead of time for sanction
- speaker faces choice between delay caused by a need to litigate before speaking and application of a collateral bar rule
presumption for prior restraints
Any system of prior restraints comes to this Court bearing a heavy presumption against its constitutional validity – NYT v. U.S.
Collateral Bar Rule
Cannot attack the constitutionality of a procedurally correct court order or a facially valid licensing requirement
* Use as indication that we are in the prior restraint area
Prior Restraints: Licensing must…
- justified by important state interest + balance between interest/impact on 1st A rights
- clear standards (little discretion to gov)
- Offer adequate procedural safeguards (Freedman requirements):
a. prompt initial decision
b. full + fair hearing if license denied; and
c. prompt judicial review
* context is key *
Secondary Effects Doctrine
- Regulation of speech may be treated as content neutral if its purpose is to control harmful side-effects, even if regulation limits speech bc of content (City of Renton – ct analyzed as “time, place and manner regulation” to make content neutral)
- intermediate scrutiny-like approaches apply
Unconstitutional Conditions
Gov cannot force individuals to give up their con rights in order to qualify for gov benefit
Ex: requiring loyalty oath as a condition for receiving a pension or schooling
Political Speech
Sometimes referred to as receiving the highest level of protection and hence higher scrutiny
• McIntyre v. Ohio Election Commission
Government Speech/Publicly Funded
- gov subsidy: must be viewpoint neutral; but it may K for activities involving communication and may expect expenditure of public funds to conform to the program activities
- Gov speaking: viewpointbased funding decisions can be sustained
Unprotected Types of Expression
- Advocacy of Illegal Conduct
- Fighting Words
- Obscenity
- Child Porn
- Defamation
Lessened Protection – Situations where the State May Engage in More Extensive Regulation/Control
- commercial speech
- erotic speech and profanity
- broadcasting
If the regulation makes content distinctions, then usually apply…
strict scrutiny – burden on State to show “that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.”
Unless there is a significant burden placed on expression, there cannot be a violation of freedom of expression. SCOTUS has found a significant burden in the case of :
- prohibitions on compensation for expression
- forced disclosure of identity
- compelled speech
• apply ordinary approach for freedom of expression “exacting scrutiny”
Lessened Protection: Broadcasting
SCOTUS has allowed much greater gov regulation here than print/internet.
Bc broadcast is scarce resource, ct has upheld gov regulations designed to increase diversity of views, allowed reg of indecent speech (bc ease ppl might be unwillingly exposed to indecency and the ease of access for kids)
Lessened Protection: Erotic Speech and Profanity
- Protected if not obscene (often referred to as low value speech)
- only context to date where the Court has applied secondary effects doctrine
Unprotected Types of Expression: Advocacy of Illegal Conduct (Brandenburg)
- speech that is directed at
- Producing imminent lawless action; and
- Likely to incite or produce lawless action
Unprotected Types of Expression: Fighting Words
- must be directed towards specific person/group to provoke a violent reaction.
- undifferentiated fear of disturbance is not grounds to bar speech (cohen)
- listener reaction cannot be grounds, except where police need to step in to stop violence (feiner)
- act of intimidation counts (VA v. black)
Unprotected Types of Expression: Obscenity.
Guideline that the Court increasingly treats as a three-part test: (Miller)
- average person, applying contemporary community standards, would find work taken as a whole appeals to the prurient interest;
- whether work describes sexual conduct in a patently offensive way that has been specifically defined under applicable state law; and
- Whether work taken as a whole lacks serious literary, artistic, political or scientific value (national standard)
Unprotected Types of Expression: Child Porn
- State interest in protection of children from sex abuse/ exploitation allows bar on films made w/ minors that depict their sexual activity
- mere possession may be criminalized
- strong regulatory interest does not incl sexual depictions of minors not made w/ minors
Symbolic speech - O’Brien Test
If individual is engaged in expressive conduct then gov regulation affecting it must:
- Further an important or substantial gov interest;
- Gov interest must be unrelated to suppression free expression (otherwise SS
applies) ; and - restriction must be no greater than essential to further the interest
What is expressive conduct?
- conduct intended to convey a message and
2. likely to be understood by viewers
Level of scrutiny for symbolic speech
Often referred to as “intermediate scrutiny” by Court, perfect tailoring not required
Definition of Fighting Words (Chaplinsky)
Use of words that by their nature inflict injury and provoke breach of peace
define “child porn” (ferber)
no precise definition of child porn, but upheld ban that included “lewd exhibition of the genitals.”
Snyder v. Phelps Rule
in at least some situations there cannot be an IIED if important 1st Am concerns come into play such as protection for political speech from viewpoint based suppression when the speech tackes place at a location traditionally opened up for speech
Sexual Activity - level of scrutiny applied
no fundamental right to engage in adult consensual sexual activity; RB test. However, state does not have any legit interest in preventing consenting adults from engaging in private intimate sexual conduct (Lawrence) So courts sometimes strike down regulations that interfere with people’s personal sexual autonomy by applying RB with teeth
Time, manner and place regulations are examined to see if the regulation:
a. Can be justified w/o reference to content of the speech (otherwise SS applies);
b. Serves a significant gov interest;
c. Is narrowly tailored; and
d. Leaves open alt channels of comm
What does “Narrowly tailored” mean for time, place, manner regulation?
does not mean gov must choose least-restrictive/intrusive means of regulation, but that “means chosen are not substantially broader than necessary to achieve gov interest.”
This test sometimes been referred to as SS; but that was disavowed
defamation test for public officials/public figures
- P must be a pub official/ running for pub office/ pub figure
- P must prove his case w/ clear and convincing evidence
- P must prove falsity of stmt
- P must prove actual malice - ∆ knew stmt was false or acted w/ reckless disregard of the truth
who are “public figures”
individuals w/ special prominence – usually individuals that’ve thrust themselves into limelight, accepting the risks of notoriety. Also assumed to have greater access to media to rebut stmts.
Unclear if you can be “involuntary” pub figure
Public Figure (seeking to establish tort of IIED due to a publication)
- prove existence of a false stmt (reader would understand as indicating a fact) made w/ “actual malice”
• Parody of a pub figure = always protected, since there is no assertion of a stmt by speaker as stating a fact.
commercial speech
Speech that promotes a commercial transaction; Relates solely to econ interests of speaker/ audience; primarily has an econ motivation and is designed to sell a specific product – motivation need not be solely economic
Commercial speech is only protected from gov regulation if it involves protected expression – the speech must :
- concern a lawful activity and
2. not be misleading
If it is a protected form of commercial expression then for the speech to be regulated use (central hudson test):
- substantial gov interest;
- reg directly advances gov interest; and
- reg not more extensive than necessary to protect the gov interest – understood as only requiring “a reasonable fit between legislature’s ends and means chosen to accomplish those ends.” Attempts to deprive the public of particular info will be discouraged.
A traditional public forum only exists when
there is in fact a tradition of treating the type of location as a public forum – parks, plazas, most sidewalks
regulation of a nonpublic forum (often referred to as a “limited public forum”)
restrictions need only be reasonable in light of gov’s intended use of the location and not an effort to suppress expression merely because public officials oppose the speaker’s view
(SCOTUS has strongly supported schools when they’ve needed to restrict speech in order to carry out their educational program and custodial responsibilities)
Journalists’ Sources
no special protection.
They may be required to testify before grand jury unless they can demonstrate investigation is not conducted in GF or is harassment to disrupt the reporter’s work, not for law enforcement
private property
1st A doesn’t restrict owner of private prop from banning activities on his prop (except in exceptional circumstance where it functions as equivalent of a town square and prop owner is equivalent State actors).
Shopping centers are treated as private property.
Gov may bar membership in an association when
1) org is involved in illegal advocacy under Brandenburg (association’s efforts are directed toward producing imminent lawless action); or
2) where org is directly engaged in illegal conduct
To punish an individual for belonging to an association, court has typically required:
- individual actively affiliated
- knew of association’s illegal activities and
- had specific intent to further those activities
Regulation of association that infringes on their expressive activity
subject to SS (compelling gov interest, unrelated to suppression of ideas, cannot be achieved thru less restrictive means)
Incl gov attempt to reg an associations exclusion of individuals on basis of race, nationality, gender, sex pref or anything else - but only if org engages in it as part of their msg
attempts to require divulgation of membership
ct has required SS; if circumstances imply there will be a substantial impairment of freedom of association
Required dues from a compulsory membership org
may only be used for speech germane to purposes of org, not for political purposes – if funds are to be expended for political purposes then individuals must be given opportunity to opt out of paying for that portion of their dues
Student orgs at public universities that receive funds from student activities fees
have been approached more as orgs benefitting from a nonpublic forum/subsidized speech, (instead of compelled association) Ct emphasizing need for uni to maintain viewpoint neutrality, but allowing uni to impose content based restriction
Defamation - If P is private figure + matter of public concern:
state can allow recovery of comp damages if there is proof 1) stmts were false and 2) negligence by D.
Proof of presumed or punitive damages requires proof of actual malice (P carries burden)
• truth is always a defense
Private figure - defamatory speech NOT involving “matters of public concern”
P can recover presumed and/or punitive damages w/o proving actual malice
