Final Review Flashcards
1
Q
Strict Scrutiny
A
Burden falls on the government to show there is a compelling interest and the chosen means are narrowly tailored
2
Q
Rational Basis
A
Burden falls on the challenger to show there is no legitimate interest and the means are not rationally related
3
Q
Fundamental right to have an abortion
A
- Roe provided a trimester framework which established a fundamental right to an abortion
-
Casey considered abortion issue again and affirmed Roe but replaced the trimester framework with a new test:
- The new test asks whether the State has placed an undue burden on the Mother by placing a substantial obstacle, before viability.
- Hellerstadt reaffirmed Casey
4
Q
Equal Protection Clause
A
- 3 classes:
- Suspect
- Quasi-Suspect
- Non-Suspect
- Suspect Class:
- Includes only Race, Religion, and Ethnicity
- Highest level of strict scrutiny:
- Burden on the government to show there is a compelling interest and the means are narrowly tailored
- The Court will presume anything that regulates under this class as invalid
- Quasi-Suspect Class:
- Includes only Gender
- Intermediate Scrutiny
- Burden on government to show a significant or important interest and prove that the means are substantially related to government interest
- Must also have exceedingly persuasive justification for regulating on the basis of gender
- Non-Suspect Class:
- Anything else
- Rational Basis:
- Burden will fall on the Challenger to show there is no legitimate interest and the means are not rationally related
5
Q
Disparate Impact
A
- when a law is not discriminatory on its face but has a discriminatory effect
- this is unconstitutional because on the intent behind the law
6
Q
Affirmative Action
A
- Affirmative action on the basis of race is Constitutional
- Strict scrutiny:
- Burden falls on the government to show a compelling interest and the means are narrowly tailored
- Utilizing affirmative action to remedy past discrimination is not a compelling interest
- Utilizing affirmative action because of the benefits that derive from a diverse educational environment is a compelling interest
- Narrowly tailored is not a quota or percentage but a factor of a factor of a factor
- Race is a tipping point, look at the person with a wholistic approach
- Okay to keep a running tally because goal is to have a diverse environment
7
Q
Alienage
A
- Essay Walkthrough
- Issue: Is the law/ordinance limiting Alien’s Constitutional rights?
- If Federal Law then Rational Basis
- If State Law then Strict Scrutiny
- Alien Children and Education gets Strict Scrutiny
- If State Law involving Political Function: Rational Basis
- Political Function includes Teachers and Police Officers
- Does not include Attorney’s and Notary Republic
8
Q
Unprotected Free Speech
A
- Obscenity
- Incitement
- Fighting Words
- Child Pornography
- True Threat
- Difficult to test because no clear standard
9
Q
Words of Incitement
A
- Are these words going to cause something right away?
- Will the speech produce imminent lawless conduct?
- Must cause immediate, imminent lawless conduct; does not matter how egregious the conduct the issue is whether immediate or imminent
10
Q
Obscenity
A
-
Miller Test:
- Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to prurient interest
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, AND
- Whether the work, taken as a whole, lacks serious literary, artisitic, political, or scientific value {SLAPS}
- Must meet all 3
- For “offensive sexual conduct” think any private parts. No private parts then probably not offensive standard
- Difficult to have something obscene
- Pornography is protected but child pornography is not
11
Q
Fighting Words
A
- Personally causing somebody to engage in a fight with you
- Very specific to language that would cause somebody to want to engage in fisticuffs
- Fighting words are not protected speech
12
Q
Offensive Language
A
- Is protected Speech
- Matal case: Band name “The Slants”
13
Q
False Speech
A
- Is protected free speech
- Think of the Stolen Valor case
14
Q
Express Conduct / Symbolic Speech
A
- Very broad; what can be considered speech is not limited to what we say but what we do
- A measure regulating on the basis of content will receive Strict Scrutiny
- A content-neutral measure will receive Intermediate Scrutiny
- Side issue in this area is time, place, manner restrictions
15
Q
O’Brian Test
A
- Expressive content in a content-neutral manner then apply O’Brian Test:
- We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the government
- If it furthers an important or substantial governmental interest
- If the government interest is unrelated to the suppression of free expression, AND
- If the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest
