final exam

Question 1

Due Process

Answer 1

1. Procedural Due Process: procedres of govt actions have to be fair, when taking a life, liberty, and property right
2. Substantive Due Process: regardless of procedures afforded, govt cannot infrine on rights of individuals UNLSS there is a legitimate reason that furthers a compelling interest

Question 2

Equal Protection Clause

Answer 2

Is there discrimination against a certain type of people or is there a law that imposes a special burden or confers benefits on some people and not others

Garden variety discrimination = rational basis
1. needs state action
2. strong presumption thaat the interefernce by the govt is consitutional
3. burden of proof is on the challenger to proce its irrational
4. interfernce has to rationally further any conceivable legitmate govt interest

Discrimination on basis of race, ethnicity or national orgin= strict scrunity
1. Standard:
- No deference
- Burden is on the govt to show they have a compelling interest
- compelling interest by the govt tha needs to be furthered
- narrowly tailored to that interest: cannot be overbroad, underinclusive, or not more intrusive then necessary
- remedy ends when the effects of discrimination have proven to have ended –> for affirmative action
- must be intentional discrimination to use strict scrunity —> purpose of knowledfe a substantial certainty
* if a regulation is facially neutral, you must prove that the state was using the regulation to intentionally discriminate AND unless you prove intent, de facto discrimination does not violate equal protection
* know tro a substantial certainty that the regulation/rule will discriminate against minorities; not purposeful

Affirmative Action
1. Makes the regulation/govt action compelling if done to:
- promote diversity in higher education OR remedy the effects of past discrimination by the defendant
- the remedy ends when the effects of discrimination have proven to be ended

Gender Discrimination
Standard: special intermedate scrunity
1. important government purpose
2. discrimination is substantially related to an important govt purpose
3. an exceedingly persuasive justification for that action of gender discrimination

Question 3

Fundamental right: Strict Scrunity

Answer 3

1. no deference
2. burden is on the govt to sow they have a compelling interest
3. compelling interest by govt that needs to be furthered
4. narrowly tailored to that interst
   - cannot be overbroad or underinclusive
   - not more intrusive than necessary

Question 4

Rational Basis Test

Answer 4

Plaintiff must show:
1. Strong persumption that the interference by the govt is consitutional
2. Birden of proof is on the challenger to prove interfernce is irrational
3. Interference has to rationally further any conceivable legitimate govt interest

Question 5

Punitive Damages

Answer 5

The court will award punitive damages for deliberately outrageous bad conduct; goes beyond mere negligence

Standard: Punative damages are needed to rationally further any concievable legitimate government interest. The two legitimate government purposes of punative damaes are:
- punish wrongdoer
- to deter them from repeating the unlawful action

Punative damages could be so grossly excessive, it violates due process. Factors courts look at to determine if it is grossly excessive
1. The degree of reprehensibility of the defendant’s conduct
2. The disparity between the harm suffered by the plaintiff and the punitive damage award
- If far less would be interest to further interest, then it violates the due process clause. Dicta: you cannot get 9:1 ratio for damages

Question 6

Taking Clause

Answer 6

No property can be taken for public purpose without justly compensation.
Elements:
1. The govt is actually physically on the property and they must provide just compensation

2. Is this a categorical taking?
   - if the regulation stops all economic value of the your property, the government must provude just comepensation; leaving the property economically idle. (Rare)
3. Is the taking in-between the 2 categories
   Balancing test:
   - overall economic impact
   - the economic imapct on the original investment backed expectations
   - disportionally burdening the few to benefit the many (how widespead or narrow is the burden)
   - is the compensation just?

A general obligation to pay money is not a “taking”

Question 7

Fundamental Rights

Expressed

Answer 7

Stated in the consitution
1. expressly in stated in bill of rights
2. apply the law of of that amendemnt

Question 8

Fundamental Righst

Implied

The supreme court decided it was:

Answer 8

1. Use of contraceptives of married/non-married consenting adults in privacy of their home
2. The right to engage in consenting adult sexual activity in private
3. Liberty to marry someone, cannot ban or punish. Bit states can regulate it like require a license
4. Right to procreate
5. Right to raise your child as you choose
6. Those who have an established relationship with their biological illegitmate child. Expect in case where the illegitmate child has a married parent
7. Right to live togetehr with relatives (blood relative)
8. Refusal of medical procedures
9. Domestic travel

Question 9

Fundamental Rights

SC has not decided:

Answer 9

If the court has not decided and you want to argue fundamental right:
1. if the right has been historically rooted/treated as fundamental in America
2. if not rooted in history, then we must show it is essential to liberty. That there is no liberty without it

Question 10

Government Benefits

Answer 10

1. If the govt has said you are entitled to a continuing benefit, then it is a property interest not a privilege.
2. the govt negligently acting is not protected, it has to be all intentional

Question 11

Contracts Clause: Articel 1 §10

Answer 11

Only applies to a state, but nothing against fed. govt. unless you use due process clause–rational basis test

For states: intermediate scrunity applies
1. show an existing contract at the time fo the impairment
2. the govt an impair if they have an important interest/substantial purpose to further their need
3. as lon as the impearment is reasonable and appropriate way of furthing their purpose

Factors to determine “reasonable” and “appropriate
1. hoe severe is the impairment
2. how necessary is the impairment to further the purpose
3. Great deferencfe given to the state UNLESS they are relieving themselves of their own obligations

DC is not a state

Question 12

First Amendment Speech

Standard Analysis

Answer 12

Is there a restriction on speech? Is there any arguement that the restriction on speech is a fundamental liberty interest?
- if not fundamental, go straight to rational basis test

Is the restriction content based? If content based use strict scrunity:
- no deference and burden is on the govt to show they have a compelling interest
- Govt has a compelling interest that needs to be furthered
- narrowly tailored to that interest

Can be facially content based or can be facially neutral but sill content based
- if the only purpose in banning something for its content, cannot get around content based discrimination

Unless speech is outside or lesser, then use the standard required or determine if not protected

Question 13

Outside 1st Amend. Protection

Some Illegal Advocacy

Answer 13

Brandenburg Standard:
1. directed to incite imminent illegal action AND
2. imminent illegal action is likey to result

Question 14

Outside 1st Amend. Protection

Some Govt Employee Speech

Answer 14

Outside of 1st amendment if:
1. the employee is not speaking on a matter of public concern and
2. job speech–of the kind you are hired to make/write

Question 15

Outside 1st Amend. Protection

Govt Own Speech

Answer 15

Govt using govt property to send a message. The govt is not subject to the first amendment, they can say whatever they want.

Categories of govt speech:
1. permenant monumnets are govt speech
2. Contents on a license plate
3. Hanging flag poles if govt denied use to the public
4. Govt funding

Question 16

Outside 1st Amend. Protection

Live Child Porn

Answer 16

Any speech of sexually expliecit conduct involving live childern:
1. can be drawings or virtual reality if a child is a model
2. however, if it is fictional/not based on an actual child it is protected

Question 17

Outside 1st Amend. Protection

Some Commerical Speech

Answer 17

Outside of 1st Amendment protection if:
1. advocating for something illegal
2. false or misleading

Question 18

Outside 1st Amend. Protection

Some Hostile Speech

Answer 18

Outside 1st Amen. Protection:
1. words are provoking an audience
2. a threat of imminent hostile violence from speakers speech
3. is beyond the governments reasonable efforts to control the crowd or reasonably protect people

Question 19

Outside 1st Amend. Protection

Fighting Words

Answer 19

Face to face insults that have a tendency to bring about immediate retaliatory violence.

cannot punish hate/offensive speech

Question 20

Outside 1st Amend. Protection

Some Defamation and False Speech

Answer 20

False speech, even if knowing its fasle but is not associated with any harm is fully protected by 1st amendment

Defamation and
1. Not speaking on a mtter of public concern, not protected speech
2. speaking on a matter of public concern is protected speech unless it is knowingly or recklessly false

Private Citizens
Standard test–less protection for defendant
1. negligent in publishing the false speech
- Negligence: objective; a reasonable person in the circumstances would know it was false
2. regarding the persons reputation
3. Prove and limit to actual damages (no punative or persumed damages)
- unless you ca meet the New York test for actaul malice

Public figure defination: Pervasive fame or notoriety in the community OR voluntarily injects onesefls into the controversy in order to influence it

Public official definition: elected candidate or one such that they have substantial responsibility for government affairs and the public is interested in their performance.

Standard test–New York Times Test
1. burden to proce falsity on plaintiff
2. knew it was false or was reckless about its falsity
- reckless= subjective serious doubt (you yourself had serious doubts) about the truth of the publication
- actually thought it was a high probability it was false, but published it anway
- high degree of awareness of probable falsity
3. of concerning
- falsity was about you

Public figures cannot get around the NYT test by turning it into an IIED case (intent inflcted emotional distress)

Question 21

Lesser Protected 1st Amendment

Govt Employee

Answer 21

Government employee speech that is not job speech, its true, and on a matter of public concern

Pickering Balancing test: govt importance to contiune w/ the workday vs the importance of getting that speech across to an auidence
1. how important was the speech
2. how disrupting was the speech to the govt employer
3. the manner of the speech

Question 22

Lesser Protected 1st Amendment

Commercial Speech

Answer 22

Definition: speech that solicits a commerical transaction–speech seeking to induce profit.

Overbroad argumenet does not work

Central Hudson Standard:
1. lawful and not misleading
2. furthers an important govt interest
- could alos use significant or substantial
- govt has the burden of proof
3. directly and materially futhers an important govt interest
- materially advances the government interest
- slighly or specutively wont work
4. not more extensive than necessary to serve that interest
- narrowly tailored
- use the least restrictive means

Question 23

Lesser Protected 1st Amendment

Conduct Speech

Answer 23

Definition: a message maay be delivered by conduct that is intended to be communicative and that in context would reasonably be understood by the auidence that it was intended to be communicative

Standard test: Intermediate Scrutiny O’Brien Test
1. furthers an important or substantial or significant governement interest
- if there’s a content nuetral important reason, then conduct spech will not be protected
2. the govt interest is unrelated to the supression of free expression
- content nuetral
- will fail if its facially neutral but the purpose is content based
3. the restriction on speech is no greater than is essential to the furtherance of that interest
- no more intrusive upon your message than is important for the govt purpose

If you dont meet the O’Brien test = strict scrunity
1. the burden is on the govt that they have a compelling interest
2. compelling interest that needs to be furthered
3. narrowly tailored to that interest
- not overbroad or under inclusive
- no more restrictive than necessary

Question 24

Lesser Protected 1st Amendment

Sexually Explicit Speech w/Secondary Effects

Answer 24

Cannot punish b/c it’s obscene if it doesn’t meet the Miller test –> just pornographic
- porngraphic speech is sexually explicit adult entertainment

Renton Standard:
1. if the govt claims the predominant purpose of the banning sexually explicit speech is not b/c its explicit, but because it has secondary effects it will be upheld if there are reasonable otherways of showing/selling the adult entertainment

Public Nudity
1. Public nudity ca be banned even if its speech through time, place, and manner restrictions
- court has held govt has an important purpose like preventing captive auidence or preventing dangers

Question 25

Lesser Protected 1st Amendment

Non-Public Forum Speech

Answer 25

Traditional Public Forum
1. Definition: regulation of speech on govt property that has traditionally been available for public expression
2. Traditional types: sidewalks, streets, and parks
3. Standard: strict scrunity
- no deference
- burden on govt that they have a compelling interest
- compelling interest by govt that needs to be furthured
- narrowly tailored to that interest

Designated Public Forum
1. Definition: property that the govt has opened for expressive activity by part or all of the public
2. type: flagpoles
3. Standard
- no deference
- burden on govt that they have a compelling interest
- compelling interest by govt that needs to be furthured
- narrowly tailored to that interest: cannot be overbroad/under inclusive, no more intrusive than necessary

Non-Public Forum
1. Definition: all other remaning public property not open to the public for assembling and speech. Govt property not designated as a public forum and it not streets, parks, or sidewalks
2. types: military bases, area outside of prisons, utility poles on a public sidewalk, airports, or schools
3. standard nor NPF:
- reasonable in light of the purposes of the particular forum/govt property

Standard for Licenses & Permits
1. Govt has to prove they can have an important purpose
2. clear objectives for objecting/denying the requirement
- leaves almost no discretion in the deciding official
3. provided w/ a prompt response and swift appea

Standard for Schools:
1. if the speech the students want to claim is protected, is apart of the curiculum or a school sponsored activity the speech is a non-public forum–> non-public forum standard
2. However if its the students own speech, the speech is protected by Tinker
- is the restraint on speech reaosnable in light of the school forum?
- speech is protected unless it is or evdience it will be substantially and materially disruptive to the schools operation
3. if the students speech is off-campus, the school can apply Tinker test if the off campus speech would substantially affect the outcome of the school. Circumstances of the schools significant regulatory interests include:
- serious or severe bullying or harrasment targeting particular individuals
- threats aimed at teachers or other students
-the failure to follow rules concerning lessons, the writing of papers the use of school computers, or participation in other online school activties
- breache4s of school security by devices, including material maintained w/school school computers

Question 26

Lesser Protected 1st Amendment

Time, Place, and Manner Restriction

Answer 26

Standard (O’Brien similarity)
1. furthers an important/substantial govt purpose
2. content nuetral
3. not more restrictive than necessary
4. leave open ample alternative means for communicating that information

If don’t meet the O’Brien test = strict scrunity
1. no deference
2. burden on the govt–they need a compelling interest
3. compelling interest by govt that needs to be furthered
4. narrowly tailored to that interest
- not overbroad/under inclusive
- no more intrusive than necessary

Question 27

Other 1st Amend. Categories

Disclosure of Private Facts

Answer 27

Standard:
1. trauthful information
2. lawfully obatined
3. matter of public concern
- by the fact that it is published
- doesn’t knock out the privacy concern
4. publish w/out punishment UNLESS state passes strict scrutiny
- no deference
- buren is on the govt to show that they have a compeeling interest
- govt has a compelling interest that needs to be furthered
- narrowly tailored to that interest: not overbroad/under inclusive/not more intrusive than necessary

Question 28

Defenses to Regulations

Vague

Answer 28

1. A reasonable person in the defendants circumstances would not know whether their particular conduct is violating the law ornot
2. when a statute is ambigious
3. protected by procedural due process b/c it would be unfair to not let a reasonable person know when they are violating a statute

Question 29

Other 1st Amend. Categories

Right not to be associated w/particular ideas or compelled to say a govt message: Fundamental right

Answer 29

Standard: strict scrunity UNLESS its outside or lesser:
1. no deference
2. burden is on the govt to show they have a compelling interest
3. govt has a compelling interest that needs t o be furthered
4. narrowly tailored to that interest.
- not overbroad/under inclusive/no more intrusive then necessary

No reporters privilege but there;s aright to associate in privacy
Froms of association
1. intimate associations
- those who came togther for their own purposes privately
- govt. cannot intrude upon intimate associations/cannot tell you who to include or invite
2. Expressive Associations
- people come together to form an association for the purpose to send a message ie political activists
- Govt cannot: (1) compel to accept members that would intrude upon the message of the association (2) intrude upon expressive associations unless the govt meets strict scrunity:
- no deference
- burden is on the govt o show that they have a compelling interest
- got has a compelling interest that needs to be furthered
- narrowly tailored to that interst: not overbroad/under inclusive/no more intrusive then necessary
3. When the message is so open that there is essentially no point to get across the public–> no 1st amendment protection UNLESS they bring it up in litigation (boyscout case) is enough

Question 30

Defenses to Regulations

Overbroad

Answer 30

1. A statute that sweeps with in its prohibitions a substantial amount of protected speech AND anyone can challenge the statute whether it applies to them or not
2. As interpreted in the court in that state, the court will accept the states interpretation of a statute

Question 31

Defenses to Regulations

Viewpoint

Answer 31

1. Punishing those of a certain viewpoint that is contrary to the government’s own viewpoint AND the govt cannot discriminate on the basis of viewpoint
2. However, the government can punish speech b/c of the conduct to get around viewpoint discrimination