Constitutional Law - Substantive Due Process, Equal Protection, First Amendment

Question 1

The nine rights under the fundamental right to privacy are

Answer 1

(1) right to marry (heterosexual)
(2) right to procreate
(3) right to custody of one’s children
(4) right to keep the family together
(5) right to control the upbringing of one’s children
(6) the right to purchase and use contraceptives
(7) right to abortion
(8) right to engage in private consensual homosexual activity
(9) right to refuse medical treatment

**Interference with the first six rights must meet strict scrutiny.

Question 2

The right to abortion is reviewed under the standard of

Answer 2

undue burden (NOT strict scrutiny even though it’s under the “fundamental” right of privacy)

Question 3

States cannot prohibit abortions prior to

Answer 3

viability

Question 4

Although states can’t prohibit abortions prior to viability, they may

Answer 4

regulate abortions as long as the regulations don’t create an undue burden on the ability to obtain abortions

Question 5

After viability, states may prohibit abortions unless

Answer 5

necessary to protect the woman’s life or health

Question 6

Spousal consent and notifications laws in the abortion arena are

Answer 6

unconstitutional

Question 7

A state can rewuire parental notice/consent for unmarried minor’s abortion so long as

Answer 7

it creates an alternate procedure where the minor can get the abortion approved by a judge if it is in the minor’s best interests or if she is mature enough to decide for herself

Question 8

The right to privacy protects a right to engage in

Answer 8

private consensual homosexual activity*

*no known level of scrutiny though

Question 9

The three subcategories of the right to refuse medical treatment are

Answer 9

1. Competent adults can refuse it (even if it’s life-saving)
2. States can require clear and convincing evidence that a person wanted the treatment terminated
3. States can prevent family members from terminating treatment for another

(states can balance these rights against their important interest in valuing human life)

Question 10

Although you have the right to refuse medical treatment, there is no constitutional right to

Answer 10

physician-assisted suicide

Question 11

The second amendment right to bear arms is reviewed under

Answer 11

no known standard of scrutiny

but note that there is no absolute right to unrestricted gun ownership

Question 12

The three protections under the fundamental right to travel are

Answer 12

1. Laws that prevent people from moving into a state must meet strict scrutiny
2. Durational residency requirements must meet strict scrutiny
3. Restrictions on foreign travel must meet only the rational basis test (that’s because there is NO fundamental right to international travel)

Question 13

Laws denying the right of some citizens to vote must meet

Answer 13

strict scrutiny

Question 14

Regulations of the electoral process in order to prevent fraud must be

Answer 14

on balance desirable (don’t have to meet strict scrutiny)

Question 15

One-person one-vote standard applies to

Answer 15

state and local elections

Question 16

At-large elections are constitutional unless there is proof of a

Answer 16

discriminatory purpose

Question 17

The use of race in drawing voting district lines must meet

Answer 17

strict scrutiny

Question 18

Counting uncounted votes without standards in a presidential election violates

Answer 18

equal protection

Question 19

The only right to trigger an “undue burden” test is

Answer 19

the right to abortion

Question 20

The right to practice a trade or profession triggers

Answer 20

rational basis review (not a fundamental right)

Question 21

Right to physician-assisted death triggers

Answer 21

rational basis review (not a fundamental right)

Question 22

The right to an education triggers

Answer 22

rational basis review (not a fundamental right)

Question 23

The three “rights” that trigger unknown levels of scrutiny are:

Answer 23

1. Right to engage in private consensual homosexual activity
2. Right to refuse medical treatments
3. Right to possess firearms

Question 24

The Equal Protection Clause applies only to

Answer 24

state and local governments

Question 25

Equal Protection applies to the federal government through

Answer 25

the due process clause of the Fifth Amendment

Question 26

Strict scrutiny is used for classifications based on

Answer 26

race, alienage, and national origin

Question 27

The two ways a racial classification may be proven are

Answer 27

1. on the face of the law

2. discriminatory impact + discriminatory intent

Question 28

Racial classifications benefiting minorities are reviewed under a

Answer 28

strict scrutiny standard (but require clear proof of past discrimination)

Question 29

Educational institutions can use race as one factor in admissions but must show that

Answer 29

there is no race-neutral alternative to achieve diversity

Question 30

Public school systems wishing to use race as a factor in assigning schools must meet

Answer 30

strict scrutiny

Question 31

Gender classifications trigger

Answer 31

intermediate scrutiny

Question 32

Proof of a gender classification is that the law is either

Answer 32

1. classifying on its face

2. discriminatory impact + discriminatory intent

Question 33

Gender classifications benefiting women are not allowed if they are based on

Answer 33

role stereotypes

Question 34

Gender classifications benefiting women are allowed if they are designed to

Answer 34

remedy past discrimination and differences in opportunity*

*ex: Social Security multiplier for women okay to compensate for past wage differences

Question 35

Alienage classifications only trigger rational basis if they

Answer 35

concern self-government and the democratic process*

ex: voting, jury duty, police/peace officer, teacher

Question 36

Alienage classifications promulgated by Congress are reviewed under

Answer 36

rational basis

Question 37

Discrimination against undocumented alien children triggers

Answer 37

intermediate scrutiny

Question 38

Discrimination against non-marital children is reviewed under

Answer 38

intermediate scrutiny

Question 39

The “catch-all” bucket for standard of review under Equal Protection is

Answer 39

rational basis review

Question 40

To survive strict scrutiny, a law must

Answer 40

be necessary to achieve a compelling governmental purpose

Question 41

To survive intermediate scrutiny, a law must

Answer 41

be substantially related to an important government purpose

Question 42

To survive rational basis review, a law must

Answer 42

be rationally related to a legitimate government interest

Question 43

Content-based restrictions on speech must meet

Answer 43

strict scrutiny

Question 44

The two types of content-based speech restrictions are

Answer 44

1. Subject matter restrictions (application of the law depends on topic of message)
2. Viewpoint restrictions (application of law depends on ideology of message)

Question 45

Content-based restrictions on speech generally trigger

Answer 45

strict scrutiny

Question 46

Content-neutral restrictions on speech generally trigger

Answer 46

intermediate scrutiny

Question 47

Court order suppressing speech must meet

Answer 47

strict scrutiny

Question 48

If a court issues an order suppressing your speech that you think is invalid, you must

Answer 48

comply with the order until it’s vacated or overturned (if you violate it, you can no longer challenge it)

Question 49

Government can require a license for speech only if

Answer 49

1. important reason for licensing, AND

2. clear criteria leaving almost no discretion to licensing authority

Question 50

A speech law is unconstitutionally vague if

Answer 50

a reasonable person cannot tell what speech is prohibited and what is allowed

Question 51

A speech law is unconstitutionally overbroad of it

Answer 51

regulates substantially more speech than the constitution allows to be regulated

Question 52

Fighting words laws are unconstitutionally

Answer 52

vague and overbroad

Question 53

The government can regulate symbolic speech if it

Answer 53

1. has an important interest unrelated to suppression of the message, AND
2. the impact on the communication is no greater than necessary to achieve the government’s purpose

Question 54

Speech by _______ can never violate Free Speech

Answer 54

the government

Question 55

The four types of speech with limited or no protection by the First Amendment are:

Answer 55

1. incitement of illegal activity
2. obscenity
3. commercial speech
4. defamation and IIED

Question 56

Speech inciting illegal activity may be punished if there is

Answer 56

1. substantial likelihood of imminent illegal activity, AND

2. speech is directed at causing imminent illegality

Question 57

Speech is obscene if it meets all three of the following prongs:

Answer 57

1. material appeals to the prurient interest
2. material must be patently offensive under the law prohibiting obscenity, AND
3. taken as a whole the material lacks serious redeeming artistic, political, literary, or scientific value

Question 58

The government can use zoning ordinances to regulate the location of

Answer 58

adult bookstores and movie theaters

the government has a countervailing interest in regulating neighborhood safety

Question 59

Child porn can be completed banned even if it isn’t

Answer 59

obscene.

side note: is this possible?

Question 60

The government can’t punish private possession of obscene materials but it can punish private possession of

Answer 60

child pornography

Question 61

The government may seize ____ of business convicted of violating obscenity laws

Answer 61

ALL assets (not just the actually obscene ones). This is NOT a taking.

Question 62

Profane and indecent speech generally protected by the First Amendment with two exceptions:

Answer 62

1. Over broadcast media (but people choose to admit cable and internet into their homes so that’s different)
2. In schools (lots of deference to school officials regulating speech)

Question 63

True commercial speech that _________ can be prohibited

Answer 63

inherently risks deception

Question 64

False and deceptive ads and advertising for illegal activity are __________ by the First Amendment

Answer 64

not protected

Question 65

Limitations on commercial speech must generally meet

Answer 65

intermediate scrutiny

Question 66

Government regulation of commercial speech must be narrowly tailored but it doesn’t have to be

Answer 66

the least restrictive alternative

Question 67

If a plaintiff is a public figure, she can recover for defamation by proving

Answer 67

1. falsity of the statement, AND

2. actual malice (i.e. that they knew statement was false or acted with reckless disregard to its truth or falsity)

Question 68

If a plaintiff is a private figure and the matter is of “public concern” she can recover for defamation by proving

Answer 68

1. falsity of the statement, AND
2. negligence by the defendant (although she can’t get presumed or punitive damages by showing negligence; she has to show actual malice for that)

Question 69

If plaintiff is a private figure and the matter is NOT of public concern, a plaintiff can recover for defamation without showing

Answer 69

actual malice.

Question 70

Liability for IIED for defamatory speech must meet the standards for

Answer 70

defamation (and cannot exist at all for speech otherwise protected by the First Amendment)

Question 71

Speech by government employees on the job in the performance of their duties is _____ by the First Amendment

Answer 71

not protected

Question 72

The default standard for government restrictions based on the content of speech is

Answer 72

strict scrutiny

Question 73

Public forums are government properties that

Answer 73

the government is constitutionally required to make available for speech

Question 74

In a public forum, speech regulations must be

Answer 74

content and viewpoint neutral, and if not then strict scrutiny must be met

Question 75

In a public forums, regulations must be related to

Answer 75

the time, place, and manner of speech, and must serve an important government purpose and leave open adequate alternative places for communication

Question 76

Government regulation of public forums doesn’t have to be ______, but must be _______

Answer 76

the least restrictive alternative; narrowly tailored.

Question 77

Designated public forums are government properties that

Answer 77

the government could close to speech, but chooses to open to speech

Question 78

Designated forums operate under the same rules as

Answer 78

public forums

Question 79

Limited public forums are government properties that are

Answer 79

limited to certain groups or discussion of certain subjects

Question 80

The government can regulate speech in limited public forums so long as

Answer 80

the regulation is reasonable and viewpoint-neutral

Question 81

Non-public forums are government properties that

Answer 81

the government constitutionally can and does close to speech.

Question 82

The government can regulate speech in non-public forums as long as

Answer 82

the regulation is reasonable and viewpoint-neutral

Question 83

For speech purposes, there is no First Amendment right of access to ________ property

Answer 83

Private

Question 84

Freedom of association is a ___________ right

Answer 84

Fundamental

Question 85

Laws that prohibit or punish group membership must meet

Answer 85

strict scrutiny

Question 86

To punish membership in a group it must be proven that the person did all three of the following:

Answer 86

1. actively affiliated with the group
2. knowing of its illegal activities, AND
3. with the specific intent of furthering those activities

Question 87

Laws that prohibit a group from discrimination are constitutional unless

Answer 87

they interfere with intimate association or expressive activity

Question 88

The Free Exercise Clause provides that

Answer 88

the government may make no law interfering with the free exercise of religion

Question 89

The Free Exercise Clause cannot be used to challenge

Answer 89

a neutral law of general applicability

Question 90

The government _______ deny benefits to individuals who quit their job for religious reasons

Answer 90

may not

Question 91

The government may not hold a religious institution liable for choices it makes as to

Answer 91

who will be its ministers

Question 92

The Establishment Clause provides that

Answer 92

government shall make no law establishing religion

Question 93

The Establishment Clause is evaluated using the three-part

Answer 93

Lemon Test

Question 94

The Lemon test for the Establishment Clause provides that a law is valid if

Answer 94

1. There is a secular purpose for the law,
2. The primary effect is neither to advance nor inhibit religion, AND
3. There is not an excessive entanglement with religion

(*remember: SEX. Secular, Effect, Excessive)

Question 95

The government cannot discriminate against religious speech or among religions unless

Answer 95

strict scrutiny is met

Question 96

In public schools, religious student and community groups must have _______ access to school facilities as non-religious groups

Answer 96

the same

Question 97

Overbroad regulations are legitimate if they have been interpreted to

Answer 97

prevent their application to constitutionally protected speech.

Question 98

Public schools can restrict students’ First Amendment rights in order to

Answer 98

enable schools to accomplish their mission of educating students and keeping them safe.

** But say: “the Supreme Court has found that public school students do not shed their constitutional rights at the door.”