Essay Templates Flashcards
Equal Protection
State Action?
Classification, Level of Scrutiny, Fit Test
- Does the law impact a suspect or quasi-suspect class
- Any arguments for heightened scrutiny if classification of group not already established
- Plaintiff = Argue for the highest level of scrutiny (strict or intermediate scrutiny). In the alternative, if the court says this should not be analyzed as a gender based claim, then the claimant should argue for a heightened level of scrutiny because all of the indices from Carolene Products are present (immutable char., political process, history, likelihood of prejudice)
> Compare classification to a recognized classification (e.g., transgender → gender → IS). Argue for heightened scrutiny if the classification of the group not already established.
= Government = This is not a suspect class and should be subject to rational basis
> Examples = Is it truly an immutable trait, or does a person have the ability to change this trait (e.g., transgender people transitioning from one gender to another); transgender more akin to sexual orientation than gender
Facially-neutral laws = Can argue for discriminatory impact and discriminatory purpose
- show intent by negligence, knowledge, and conscious object/malice
- Plaintiff = State was motivated by discriminatory purposes ((1) statistical proof of “clear pattern”; (2) history/sequence of events; (3) legislative record). SS or IS.
- Government = They were not motivated, it just so happened that there was an impact (had a race-neutral reason for government action). RBR.
- Fit test
- Plaintiff = Over/underinclusive, closer fit/individualized assessment needed, motivated by racial animus and not a legitimate government concern
- Government = Step-by-step approach (the government to proceed one step at a time – it doesn’t have to tackle every part of a problem at the same time), lack of funding/would create inefficient or expensive procedures
Due Process
Fundamental right at issue or arguments for treating as a fundamental right
1. Fundamental right = Strict scrutiny
> Lifesaving medical care
> Marriage
> Procreation
> Access to contraception
2. Not a fundamental right = Rational basis
> Make sure to write about how the conservatives (articulate right at its deepest level of specificity, history and tradition, embedded in nation’s history) vs. liberals (define right in broader terms) will discuss the right
3. Gray area = Has the right been substantially infringed, focus bulk of analysis here
- Plaintiff = Coercive
- Government = Plaintiff has a choice, not burdensome
Fundamental rights may also overlap with equal protection issues – be sure to analyze both separately
- Indication of additional equal protection claim = look for a suspect or vulnerable group
Free Speech
- Is the government regulation vague or overbroad (NB = there needs to be a statute in the fact pattern for this to come up)
- Vagueness = A law restricting speech is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted
- Overbreadth = A law is overbroad if it regulates substantially more speech than is necessary to accomplish its purpose. A person to whom the law constitutionally may be applied can argue that it would be unconstitutional as applied to others. - Is the government infringing the right to free speech/expression (address briefly)
- Outright prohibition/regulation/criminal or civil liability
- Compelled speech (Barnette, Rumsfeld)
- Prior restraint (media, licensing) - Is the government regulation content-based or content-neutral?
- CB gets strict scrutiny
- CN gets intermediate - Is the government regulating conduct that communicates (expressive or symbolic conduct) = yes, gets intermediate
- Is the government regulating unprotected or less protected speech
- Incitement to illegal activity
> Plaintiff = This is just advocacy (pure political speech that should receive the most protection)
> Government = This is incitement (trying to whip a group up)
- Indecent speech = indecent speech (profanity or sexually-oriented speech) is fully protected speech, EXCEPT in broadcast media government can prohibit (Cohen v. CA, FCC v. Pacifica)
> Prohibition in broadcast media because children are likely to hear the speech and you can’t screen it out
> Sometimes using profane speech is critical to a message (political ideas to punctuate how important they are)
Free Exercise
- A neutral law of general applicability is subject only to the rational basis test (Smith_
- In an instance in which the court finds there is any level of discretion (exemptions) means it is not generally applicable (Fulton)
- But a law or government action that is not neutral and generally applicable, i.e., that displays hostility towards religion or religiously motivated conduct is subject to strict scrutiny (Hiealeah, Masterpiece Cakeshop)
> We know from Masterpiece that the Court is willing to go pretty far in finding hostility towards religion to say the Smith test doesn’t apply.
- A law can target religion in 3 ways
> On its face
> Discriminatory intent = were these laws passed because of hostility towards religion?
> Application = by operation, does the law disproportionately impact religion? - Potential subissue = Is it an actual religion or is it an attempt to make a political statement
Establishment Clause
(apply all three theories)
1. Strict separation (liberal) = Wall between church and state
- Neutrality theory (predominant) = Government cannot favor or disfavor religion or particular religions; government should not endorse or symbolically endorse religion
- Spend bulk of analysis here because this is where our precedents are now
- Lemon test
> Government action must have a secular purpose
> Government action must not have the primary effect to advance or inhibit religion
> Government action must not foster an excessive government entanglement with religion
__ O’Connor’s view = Would someone understand that this was a government’s endorsement of religion such that they were made to feel like outsiders - Accommodation theory (conservative) = Government can accommodate religion and even favor Christianity, only a violation for government to coerce participation or actually establish a government church
Levels of Scrutiny
Strict
- law must be narrowly tailored/necessary to achieve a…
- compelling gov. purpose
(race/national origin and aliens)
Intermediate
- law must be substantially related to achieve a…
- important government purpose
(gender discrim. and non-marital children)
Rational Basis
- law must be rationally related to achieving a…
- legitimate government purpose
(everything else - age, wealth, disability, sexual orientation with a “bite”)
Is the government regulation content-based or content-neutral?
- Content-based (includes both subject matter and viewpoint based) = apply strict scrutiny → law must be narrowly tailored (least restrictive alternative) to achieve a compelling government interest (Reed v. Town of Gilbert)
> Exceptions
a. Secondary effects
b. The government is speaking
c. The government is permitted to make choices (government funding cases) - Content-neutral = time, place, and manner test
> Regulation must be content-neutral
> Regulation must not burden more speech than necessary to serve a significant government interest (need not be least restrictive alternative) (Intermediate Scrutiny)
> Regulation must leave open ample alternative channels for communication
Think of time, place, and manner restrictions as arguments on behalf of the state (majority v. dissent in cases with floating and fixed buffer zones for abortion clinics).
- Plaintiff = This is a content-based restriction that is parading as a content-neutral restriction (the only people will be impacted are anti-abortion protestors)
> Flag = Is a group disproportionately impacted by this regulation
- Government = This is a content-neutral time, place, and manner restriction (this is a medical facility and we need there to be access to the sidewalks and clinics and quiet for people who are performing medical procedures)
> Like Hill v. Colorado (floating buffer), unlike McCullen v. Coakley (fixed buffer)
Consider public forums too
- Hastings
Is the government regulating conduct that communicates (expressive or symbolic conduct)
- Conduct is protected expression if
(1) the actor has intent to convey a message and
(2) substantial likelihood that the audience would understand the message. Rules apply to corporations as well as individuals (Citizens United v. FEC)
> O’Brien test for expressive conduct =
(1) regulation is unrelated to suppression of free speech;
(2) important government interest;
(3) restriction is no greater than essential to furtherance of government interest (Texas v. Johnson flag burning example)
- Plaintiff = This is expressive conduct (Texas v. Johnson)
- Government = We are regulating in an important area and it just so happens to burden someone’s expression (but we have an important interest)
> United States v. O’Brien
Licensing or Injunctions
Prior Restraint
o Prior restraints require some kind of affirmative government action that forbids speech before it occurs
In other words, this applies when you have to ask permission from the government to speak beforehand
o This is different from normal speech regulations that simply punish speech after the fact
* If you see Licensing or Injunctions that limit speech, then consider a Prior Restraint analysis
Olson
- MN law labeling politcally scandalous and defamatory newspapers as a public nuisance.
- Gov states national security, prevent inciement, fair and impartial trials
- Rule = no prior restraint to stop defamatory speech before it happens
NY Times
- Pentagon Papers
- Cited concurrence = Does the information pose “direct, immediate, and irreparable damage” to the Nation?
- Here, it did not b/c not immediate
Watchtower
- Jehovahs and ordinance
- prohibits municipalities from requiring registration and a permit for door-to-door advocacy by groups engaging in religious proselytizing, anonymous political speech, and the distribution of handbills
Compelled Speech
Rule: the right to speak also involves the Right Not To Speak (not to engage in expressive conduct)
Barnette (worship flag)
- stated purpose = create national identity
- This is viewpoint based because it related to above message
- Least restrictive way to achieve?
> this is improper and ineffective because no official can prescribe what can be orthdox in poltiics, nationalism, religion etc. nor can force citizens what to believe
Becerra (requiring clinics to disclose)
- Content-based restrictions on professional speech are subject to strict scrutiny
- Two related exceptions are
(1) required disclosure of factual and noncontroversial information about services a business will perform, and
(2) regulations of professional conduct that may incidentally burden speech.
- Licensed-notice req fails even intermediate
- unlicensed-notice is unduly burdensome bec requires 29 word gov isseud statement on every print advertisement. Also does not survive strict or lesser scrutiny.
Conditional funding
Unconstitutional condition doctrine says government cannot condition a benefit or deny a benefit based upon giving up or exercising constitutional right
Government funding and speech
First – is it “government speech” or is “private speech”?
Second, if it’s “government speech” it can be viewpoint based
Third, if it’s Private speech”, it can be subject-matter based since government cannot und all topics, but must be viewpoint neutral
* Attorney-client speech is private
* Rust – relaying of gov message, could be seen as gov speaker (patients could confuse as gov speaker)
When gov is giving a benefit by funding private speech, can be subject matter based but not viewpoint-based
But questions on when a funding scheme is considered “viewpoint-based” or “viewpoint-neutral”
When government is speaking – when government is itself the speaker or using private speakers to transmit its own speech -then funding decisions can be viewpoint-based
But questions here on when government is funding speech through private actors – is government itself speaking through the private actors or is government facilitating private speech (Rust & Legal Services Corp.)
If there is a funding petition
Gov will argue Legal Services
P will argue Rust
Rust (Gag rule on providing abortion info)
- Pargues = This is viewpoint bec. allows clinics to talk about all methods of family planning BUT abortion
- Court says gov can choose what speech to subsidize. It is subject based that talks about contraception (not spec. abortion)
- Content based regulations are acceptible. Additionally speakers can promote abortion outside of Title X program
Legal Services (lawyer funding)
- Funding had conditions (cannot challenge welfare law)
- Court says this is viewpoint-based funding decision and can be sustained when its gov speech because the gov is politically accountable. Rust was private speakers but this is gov speech. Rust also might be abortion exceptionalism.
Incitement
Brandenberg (KKK)
Test
Intent – the Speaker must intend to incite or produce unlawful action
Immanency – the unlawful action must be imminent
Probability – And the unlawful action must be likely to occur
- Court says that KKK was abstract teaching as opposed to call to arms. Lacked imminence. Threat of revenge was remote. No call for immediate action.
The Test imposes high burden on the government. Very protective of Free Speech
Holder (Material Support to Terrorists)
- defers to Congress judgment
- . First, Congress may prohibit Plaintiffs’ proposal to train members of the PKK on how to use humanitarian and international law to peacefully resolve disputes. A foreign terrorist organization might use the legal information to threaten, manipulate, and disrupt processes, not improve them. Second, Congress may prohibit Plaintiffs’ request to teach PKK members how to petition groups like the United Nations for relief. Such techniques could easily be used to raise funds to further violent acts. Finally, Plaintiffs propose to engage in political advocacy on behalf of the Kurds living in Turkey and on behalf of Tamils
Fighting Words
Usually looking for an arrest that is based on Speech alone in a fact pattern
Fighting Words
- Words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace”
Aesthetics – they’re unnecessarily vulgar. “They’re no essential part of any exposition of ideas.”
Offensiveness – they offend the listener. They “by their very utterance inflict injury.”
Harm – they trigger fist fights. This is in the same realm as incitement of illegal activity, only this is getting more at the harm factor
- “Fighting words” can only be punished to the extent that they are likely to produce a violent response and they must be directed at another person
Cannot be at a crowd or tweeted
Chaplinsky
o Jehovahs witness to police officer “you are a racketeer and a fascist”
Hostile audience
- “hostile audience/heckler’s veto” cases involve offensive language that is not directed at any specific listener but rather threatens to provoke a general audience.
- Clear and present danger test – it’s permissible to punish a speaker if his or her speech poses a clear and present danger of causing violence by the audience
- The reaction of a hostile audience should not silence speech unless three conditions are met
Crowd control is impossible
The speaker ignores the police, and
The speaker has provoked the reaction
-When if ever does hostile audience apply?
Milo Yakobovich on Berkeley campus
- What financial burden does the government have to take on in order to have hostile speakers
Conservative speakers at UC Berkeley draining resources, must they take that burden?
Is there a line to be drawn here?
R.A.V. (MN Law re cross burning)
* Narrowly drafted opinion that is penned in response to political correctness and effect on open dialogue
* Rule = Gov cannot engage in viewpoint or subject matter discrimination with otherwise unprotected categories of speech
o Cannot target demo or rep , has to target all as viewpoint reg
* When Gov is regulating an unprotected category of speech (fighting words, incitement, obscenity, etc.)
* Then gov cannot apply viewpoint or subject matter
* The problem with R.A.V. is that the city was trying to do a fighting word ordinance
o Scalia said that the viewpoint is embedded in this fighting word ordinance (the ordinance goes beyond fighting words). Because of that, this is attempting to regulate speech and is unconstitutional)
Commercial speech
Test
(1) is the speech protected: meaning – is it truthful, non-deceptive, and not advertising illegally,
(2) is the government interest substantial,
(3) does the regulation directly advance the government interest asserted, and
(4) the government regulation is no more extensive than is necessary to serve that interest. There must be a reasonably close fit, but not necessarily a perfect fit.
Virginia Pharmacy
- Thus, there is no reason to hold that the First Amendment does not protect commercial speech of this variety. However, this does not mean that commercial speech can never be regulated in any way. For example, false advertisements and advertisements for illegal commercial activities are not protected
Central Hudson
- 4 part test above
- regulation fails on the fourth prong
Obscenity
o Obscenity standard
Whether average person, applying contemporary community standard would find that them work taken as a whole appeals to the prurient interest
Whether the work depicts or describes, in a patently offensive. Sexual conduct specifically defined by the applicable state law.
Whether the work, taken as a whole, lacks serious literary artistic, political, or science
Miller - mass mailing campagne advertising obscene books
At a minimum, depictions of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection
