DP, EQ, 1stAmnd Flashcards
Symbolic speech
Gov can regulate conduct that comm if it is Content (viewpoint + subject) neutral AND meets intermediate scrutiny
E.g.: - Const protected symbolic speech: Flag burning Burning of cross unless w/intent to threaten Anonymous speech Expenditures for politic campaign BUT may limit contributions - NOT Const protected symbolic speech: Draft card burning Nude dancing
Gov speech CANNOT be challenged under 1st Amd (e.g. park displays 10 commandments monument, license place regulation)
Right to Travel (14thAmd: EP and PorI)
Right to Travel (14thAmd: EP and PorI)
- Strict scrutiny: Law prohibiting travel state to state, OR requiring durational residency
- Rational basis: restriction on foreign travel
Content-based v. Content-neutral scrutiny std
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
1) Content-based: strict scrutiny
- Subject matter restriction: topic of message
- Viewpoint restriction: ideology of message
2) Content-neutral (subject and viewpoint): intermediate scrutiny
Right to Keep and Bear Arms (2ndAmd)
“Right of the people to keep and bear arms shall not be infringed”
- Personal right to have guns in homes
- Applies to States through DP of 14thAmd
- NO level of scrutiny set
- NOT absolute:
1) Gov may regulate where guns are used (e.g. not in schools, Ct, etc)
2) Gov may regulate who can carry guns (e.g. mental issues)
3) Gov may regulate types of guns (e.g. no grenades in public)
Substantive DP Analysis
ALWAYS look for PDP and SDP violation together
1) FR: CAMPERS, Med Refusal, Travel, all 1stAmd
2) Infringement by State Actor (Public Function or Entanglement)
3) Law
- Facial discrim: on its face is unconstitutional
- Facially Neutral w/DEP (discriminatory effect AND purpose/intent): Consider legislative history, specific events leading up to the challenge, departure from the normal procedural sequence
- As applied: statue is challenged as applied to a specific person/state/issue
4) Scrutiny std:
- FR strict scrutiny: law is necessary (w/o least restrictive alternative) to achieving a compelling state purpose
- NonFR rational basis: law is rationally related to a legitimate conceivable Gov purpose
EP Analysis
ALWAYS look for SDP violation w/in EP violation
1) Classification
- Suspect class: RAN (RNOLA)
LA: non-US citz
Exception: a) rational basis if classification concerning self-government and democratic process (jury, PO, primary and secondary school teachers, prob officer), or b) rational basis: Fed Gov discrim (e.g. Imm laws)
- Quasi-suspect: LEG
Legitimacy: Unconst to deny benefit ALL non-marital but grant to ALL marital
E: edu of undocs
2) Infringement by State Actor (Public Function or Entanglement)
3) Law
- Facial discrim/benefits: on its face is unconstitutional
- Facially Neutral w/DEP (discriminatory/benefit effect AND purpose/intent): Consider legislative history, specific events leading up to the challenge, departure from the normal procedural sequence
- As applied: statue is challenged as applied to a specific person/state/issue
4) Scrutiny std:
- RNOLA strict scrutiny: law is necessary (w/o least restrictive alternative) to achieving a compelling state purpose
LA: exception kicks it down to rational
- LEG intermediate scrutiny: law is substantially related (narrowly tailored) to an important Gov purpose
G: ALSO allowed if there is an exceedingly persuasive justification
- ALL other discrim (sexual orientation) rational basis: law is rationally related to a legitimate conceivable Gov purpose
Commercial speech
- Commercial Speech Test: Advertisement + specific product + speaker motivated by econ purpose
- Regulation MUST not prohibit truthful info AND MUST
1) Directly advance AND
2) Be narrowly tailored to an
3) Important Gov interest - NOT protected: False and deceptive ads, ads for illegal activity
Procedural DP
14th Amnd: No State shall make or enforce any law which shall abridge the P or I of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Steps:
1) Serious Deprivation of:
-Life
-Liberty: loss of significant freedom of action OR freedom provided by Const (harm to reputation NOT loss of liberty: defamation)
(eg: person institutionalized, exercise of FR)
Gov neg harming P is NOT sufficient depravation, MUST be intentional or reckless action by Gov
-Prop: ONLY if legitimate claim for entitlement and taken away or not provided by the Gov
NO distinction between Privilege OR Right
Entitlement: reasonable expectation to keep receiving it
Post-termination: disability
Pre-termination hearing: welfare, SocSec (it’s a need)
2) W/o DP (Type of Procedure required):
Balance test:
-Importance of private interest affected by Gov action
-Ability of adding procedures to reduce risk of erroneous deprivation (correct fact-finding)
-Gov’s interest (efficiency in saving money and admin)
E.g. Terminate welfare MUST notice and hearing, terminate SoSec ONLY post-term hearing, school discipline MUST notice and opportunity to explain, terminate parental right MUST notice and hearing, punies ONLY jury instructions and judicial review, preJ attachment or seizure of prop MUST notice and hearing
Unprotected/less protected speech
1) Incitement of illegal activity: speech directed at producing AND it is substantially likely to produce imminent illegal activity
2) Defamation: Public (malice) -vs- Private
3) Obscenity and sex-oriented speech
Test: speech MUST
- Appeal to prurient interest (shameful or morbid interest in sex - local comm std)
AND
- Be patently offensive under the law (law describes prohibited material - local comm std)
AND
- As a whole, lack SERIOUS redeeming LAPS (literary, artistic, political or scientific) value (NATIONAL std)
Note: zoning > sexual content, NO actual child porn, OK private porn but no child porn, Gov may seize buss assets if violate obscenity law
4) Profane and indecent IS less protected
Media restriction: over broadcast media (NO over cable)
Schools Exception: Great deference to autho and expertise of schools to protect entrusted students against activity materially disruptive, Lewd, advocation of illegal drug use. Const rights of students are NOT coextensive w/rights of adults in other settings
5) Commercial Speech
EP applied to State and applied to Fed
- EP applies to States through EP clause of 14thAmd (NEVER to Fed)
- EP applies to Fed through DP of 5thAmd
Establishment Clause
- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- Test (SEEX): Unconst if law meets ANY element
1) Law must have secular legislative purpose: taken in CONTEXT
E.g. vouchers to parents for edu in parochial schools ok because secular purpose of advancing edu of children
OR
2) Primary effect neither advances nor prohibits religion: no symbolical endorsement
E.g. school prayer or silent prayer, even if voluntary is Unconst, silent reflexion is OK
OR
3) Not excessive government entanglement w/religion
E.g. Gov may give financial aid to parochial schools BUT aid CANNOT be used for religious teachings/endoctrination so must be for secular purpose - Discrimination between religions MUST meet SS
State Action and private action
Gov CANNOT prohibit private conduct
Exceptions:
- Gov can prohibits private action related to slavery under 13th Amd
- Gov can prohibit private race discrimination under Sec2 13Amd
- Gov CANNOT use Sec5 14thAmd to regulate PRIVATE behavior (applies ONLY to States)
Private actor does NOT need to conform to US Const
Exceptions:
- Public Function: private performs task traditionally/historically and exclusively done by the Gov (similar to Agency) that serves the public at large (Privately own utility co is NOT Gov task)
- Entanglement: Gov affirmatively autho, encourages, or facilitates UnConst activity
a) State Action: Ct enforces racially restrictive covenant, Gov leases to private racial discriminator, provides books to school racially discriminates, private entity regulates interscholastic sports w/in State
b) No State Action: private school funded more than 99% by Gov, private club w/liquor license, NCAA (basketball)
Law Facially Unconstitutional (re: 1stAmd)
Overbreath, Vagueness, Prior Restraint, Unfethered discretion
1) Overbreath (do NOT apply to Commercial speech): regulates substantially more speech than US Const allows to be regulated (e.g. prohibit ALL live entertainment) Bans unprotected and protected speech
- Exception to T-P Standing
2) Vagueness (1stAmd and 14thAmd): So vague/unclear that reasonable person cannot tell what speech is prohibited vs allowed
3) Prior restraint: restraint in advance of publication
- Exception: matters of national security
- Judicial order or admin system
- Judicial order MUST be first complied with until vacated or overturned otherwise party is barred from challenging constitutionality
4) Unfethered discretion: Admin system may require license ONLY w/PINC
- Procedural safeguards
- Important reason
- No discretion to lic authority
- Clear criteria
Freedom of association
- Strict scrutiny if:
Prohibition on association
Requirement to disclose membership info - To punish membership, the person must be:
Actively affiliated, AND
Knowing it’s illegal activity, AND
W/specific intent to further illegal activity - Constitutional to prohibit group from discrim UNLESS law interferes w/intimate assoc or expressive activity
E.g. private dinner, KKK
Bill of Rights
APPLIES only to Fed Gov and then through DP of 14thAmd to States
Incorporated: 3rdAmd, 5thAmd right to grand jury in crim case, 7thAmd right to jury trial in civ cases, 8thAmd right against excessive fines (incorporated: excessive bail, and cruel and unusual punishment)
