Constitutional Law - Substantive Due Process, Equal Protection, First Amendment Flashcards
The nine rights under the fundamental right to privacy are
(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.
The right to abortion is reviewed under the standard of
undue burden (NOT strict scrutiny even though it’s under the “fundamental” right of privacy)
States cannot prohibit abortions prior to
viability
Although states can’t prohibit abortions prior to viability, they may
regulate abortions as long as the regulations don’t create an undue burden on the ability to obtain abortions
After viability, states may prohibit abortions unless
necessary to protect the woman’s life or health
Spousal consent and notifications laws in the abortion arena are
unconstitutional
A state can rewuire parental notice/consent for unmarried minor’s abortion so long as
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
The right to privacy protects a right to engage in
private consensual homosexual activity*
*no known level of scrutiny though
The three subcategories of the right to refuse medical treatment are
- Competent adults can refuse it (even if it’s life-saving)
- States can require clear and convincing evidence that a person wanted the treatment terminated
- States can prevent family members from terminating treatment for another
(states can balance these rights against their important interest in valuing human life)
Although you have the right to refuse medical treatment, there is no constitutional right to
physician-assisted suicide
The second amendment right to bear arms is reviewed under
no known standard of scrutiny
but note that there is no absolute right to unrestricted gun ownership
The three protections under the fundamental right to travel are
- Laws that prevent people from moving into a state must meet strict scrutiny
- Durational residency requirements must meet strict scrutiny
- Restrictions on foreign travel must meet only the rational basis test (that’s because there is NO fundamental right to international travel)
Laws denying the right of some citizens to vote must meet
strict scrutiny
Regulations of the electoral process in order to prevent fraud must be
on balance desirable (don’t have to meet strict scrutiny)
One-person one-vote standard applies to
state and local elections
At-large elections are constitutional unless there is proof of a
discriminatory purpose
The use of race in drawing voting district lines must meet
strict scrutiny
Counting uncounted votes without standards in a presidential election violates
equal protection
The only right to trigger an “undue burden” test is
the right to abortion
The right to practice a trade or profession triggers
rational basis review (not a fundamental right)
Right to physician-assisted death triggers
rational basis review (not a fundamental right)
The right to an education triggers
rational basis review (not a fundamental right)
The three “rights” that trigger unknown levels of scrutiny are:
- Right to engage in private consensual homosexual activity
- Right to refuse medical treatments
- Right to possess firearms
The Equal Protection Clause applies only to
state and local governments
Equal Protection applies to the federal government through
the due process clause of the Fifth Amendment
Strict scrutiny is used for classifications based on
race, alienage, and national origin
The two ways a racial classification may be proven are
- on the face of the law
2. discriminatory impact + discriminatory intent
Racial classifications benefiting minorities are reviewed under a
strict scrutiny standard (but require clear proof of past discrimination)
Educational institutions can use race as one factor in admissions but must show that
there is no race-neutral alternative to achieve diversity
Public school systems wishing to use race as a factor in assigning schools must meet
strict scrutiny
Gender classifications trigger
intermediate scrutiny
Proof of a gender classification is that the law is either
- classifying on its face
2. discriminatory impact + discriminatory intent
Gender classifications benefiting women are not allowed if they are based on
role stereotypes
Gender classifications benefiting women are allowed if they are designed to
remedy past discrimination and differences in opportunity*
*ex: Social Security multiplier for women okay to compensate for past wage differences
Alienage classifications only trigger rational basis if they
concern self-government and the democratic process*
ex: voting, jury duty, police/peace officer, teacher
Alienage classifications promulgated by Congress are reviewed under
rational basis
Discrimination against undocumented alien children triggers
intermediate scrutiny
Discrimination against non-marital children is reviewed under
intermediate scrutiny
The “catch-all” bucket for standard of review under Equal Protection is
rational basis review
To survive strict scrutiny, a law must
be necessary to achieve a compelling governmental purpose
To survive intermediate scrutiny, a law must
be substantially related to an important government purpose
To survive rational basis review, a law must
be rationally related to a legitimate government interest
Content-based restrictions on speech must meet
strict scrutiny
The two types of content-based speech restrictions are
- Subject matter restrictions (application of the law depends on topic of message)
- Viewpoint restrictions (application of law depends on ideology of message)
Content-based restrictions on speech generally trigger
strict scrutiny
Content-neutral restrictions on speech generally trigger
intermediate scrutiny
Court order suppressing speech must meet
strict scrutiny
If a court issues an order suppressing your speech that you think is invalid, you must
comply with the order until it’s vacated or overturned (if you violate it, you can no longer challenge it)
Government can require a license for speech only if
- important reason for licensing, AND
2. clear criteria leaving almost no discretion to licensing authority
A speech law is unconstitutionally vague if
a reasonable person cannot tell what speech is prohibited and what is allowed
A speech law is unconstitutionally overbroad of it
regulates substantially more speech than the constitution allows to be regulated
Fighting words laws are unconstitutionally
vague and overbroad
The government can regulate symbolic speech if it
- has an important interest unrelated to suppression of the message, AND
- the impact on the communication is no greater than necessary to achieve the government’s purpose
Speech by _______ can never violate Free Speech
the government
The four types of speech with limited or no protection by the First Amendment are:
- incitement of illegal activity
- obscenity
- commercial speech
- defamation and IIED
Speech inciting illegal activity may be punished if there is
- substantial likelihood of imminent illegal activity, AND
2. speech is directed at causing imminent illegality
Speech is obscene if it meets all three of the following prongs:
- material appeals to the prurient interest
- material must be patently offensive under the law prohibiting obscenity, AND
- taken as a whole the material lacks serious redeeming artistic, political, literary, or scientific value
The government can use zoning ordinances to regulate the location of
adult bookstores and movie theaters
the government has a countervailing interest in regulating neighborhood safety
Child porn can be completed banned even if it isn’t
obscene.
side note: is this possible?
The government can’t punish private possession of obscene materials but it can punish private possession of
child pornography
The government may seize ____ of business convicted of violating obscenity laws
ALL assets (not just the actually obscene ones). This is NOT a taking.
Profane and indecent speech generally protected by the First Amendment with two exceptions:
- Over broadcast media (but people choose to admit cable and internet into their homes so that’s different)
- In schools (lots of deference to school officials regulating speech)
True commercial speech that _________ can be prohibited
inherently risks deception
False and deceptive ads and advertising for illegal activity are __________ by the First Amendment
not protected
Limitations on commercial speech must generally meet
intermediate scrutiny
Government regulation of commercial speech must be narrowly tailored but it doesn’t have to be
the least restrictive alternative
If a plaintiff is a public figure, she can recover for defamation by proving
- 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)
If a plaintiff is a private figure and the matter is of “public concern” she can recover for defamation by proving
- falsity of the statement, AND
- negligence by the defendant (although she can’t get presumed or punitive damages by showing negligence; she has to show actual malice for that)
If plaintiff is a private figure and the matter is NOT of public concern, a plaintiff can recover for defamation without showing
actual malice.
Liability for IIED for defamatory speech must meet the standards for
defamation (and cannot exist at all for speech otherwise protected by the First Amendment)
Speech by government employees on the job in the performance of their duties is _____ by the First Amendment
not protected
The default standard for government restrictions based on the content of speech is
strict scrutiny
Public forums are government properties that
the government is constitutionally required to make available for speech
In a public forum, speech regulations must be
content and viewpoint neutral, and if not then strict scrutiny must be met
In a public forums, regulations must be related to
the time, place, and manner of speech, and must serve an important government purpose and leave open adequate alternative places for communication
Government regulation of public forums doesn’t have to be ______, but must be _______
the least restrictive alternative; narrowly tailored.
Designated public forums are government properties that
the government could close to speech, but chooses to open to speech
Designated forums operate under the same rules as
public forums
Limited public forums are government properties that are
limited to certain groups or discussion of certain subjects
The government can regulate speech in limited public forums so long as
the regulation is reasonable and viewpoint-neutral
Non-public forums are government properties that
the government constitutionally can and does close to speech.
The government can regulate speech in non-public forums as long as
the regulation is reasonable and viewpoint-neutral
For speech purposes, there is no First Amendment right of access to ________ property
Private
Freedom of association is a ___________ right
Fundamental
Laws that prohibit or punish group membership must meet
strict scrutiny
To punish membership in a group it must be proven that the person did all three of the following:
- actively affiliated with the group
- knowing of its illegal activities, AND
- with the specific intent of furthering those activities
Laws that prohibit a group from discrimination are constitutional unless
they interfere with intimate association or expressive activity
The Free Exercise Clause provides that
the government may make no law interfering with the free exercise of religion
The Free Exercise Clause cannot be used to challenge
a neutral law of general applicability
The government _______ deny benefits to individuals who quit their job for religious reasons
may not
The government may not hold a religious institution liable for choices it makes as to
who will be its ministers
The Establishment Clause provides that
government shall make no law establishing religion
The Establishment Clause is evaluated using the three-part
Lemon Test
The Lemon test for the Establishment Clause provides that a law is valid if
- There is a secular purpose for the law,
- The primary effect is neither to advance nor inhibit religion, AND
- There is not an excessive entanglement with religion
(*remember: SEX. Secular, Effect, Excessive)
The government cannot discriminate against religious speech or among religions unless
strict scrutiny is met
In public schools, religious student and community groups must have _______ access to school facilities as non-religious groups
the same
Overbroad regulations are legitimate if they have been interpreted to
prevent their application to constitutionally protected speech.
Public schools can restrict students’ First Amendment rights in order to
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.”
