Individual Liberties 2

Question 1

How Equal Protection apply to fed, state and local govts?

Answer 1

Application - how EP applies to fed., state, and local govts.:

• State/Local Govts: 14th Amend. EP Clause applies directly to state/local govts.
• Fed Govts: EP applies to the fed. govt. by incorporation through the 5th Amend. DP Clause (i.e., EP Clause does not apply directly to the fed. govt.)
• The same analysis and levels of scrutiny apply for EP analysis whether it applies through the 5th or 14th Amend.

Question 2

What is the analysis to determine the application of EP?

Answer 2

Analysis - if you see anything that could implicate EP, ask:

1. Is there a discriminatory classification?
   
   • To receive heightened scrutiny, a discriminatory classification must be proved
2. What level of scrutiny applies given the classification?
   
   • Suspect classifications - strict scrutiny
   • Quasi-suspect classifications - intermediate scrutiny
   • All other alleged classifications - rational basis
3. Does the classification satisfy the appropriate level of scrutiny?

Question 3

How do you prove that a classification is discriminatory?

Answer 3

Three ways to prove a discriminatory classification:

1. Law discriminates on its face - by its terms, the law treats classes of people differently
2. Facially-neutral law applied in a discriminatory manner - law does not create a classification by its terms, but does so as applied (E.g., only men are arrested under an otherwise valid law)
3. Discriminatory motive/purpose behind law and/ or application
   
   • Test-P must show:
     
     • Disparate impact - the law has a discriminatory impact (i.e., it creates a classification); and
     • Discriminatory purpose – law was enacted or maintained for reasons involving discrimination
   • Demonstrating discriminatory impact alone is not enough; there must be some evidence of govt.’s discriminatory motive

Question 4

Classification list and review

Answer 4

• Rational Basis
  
  1. Alienage, but only if classification:
     
     • Relates to self govt. and the democratic process,* or
     • ls a congressional action concerning immigration*
  2. All other - all other classifications not qualifying for strict or intermediate scrutiny receive rational basis review (E.g., age, disability, wealth, economics)
• Intermediate Scrutiny (quasi-suspect classification)
  
  1. ​Gender
  2. Non-marital children
• Strict Scrutiny (suspect classification)
  
  1. Race
  2. National origin
  3. Alienage*
  4. Right to travel
  5. Right to vote

Question 5

In which bucket of classification race or national origin falls?

Answer 5

Classifications based on race or national origin are suspect classifications reviewed under strict scrutiny

• Note- often arises on the bar exam in the context of classifications benefitting minorities, which may be upheld

Question 6

Requirements for affirmative action to be valid

Answer 6

• Numerical set-asides (quotas) - to be valid, requires clear proof of persistent and readily identifiable discrimination, which cannot be based on general past wrongs
  
  • Quotas are unlikely to be upheld
• Admissions - b/c student body diversity may be a compelling interest, educational institutions may use race or national origin as a factor in admissions decisions, but not as a defining criterion
  
  • E.g., invalid to awards ‘‘points’’ to applicants based on race
  • Universities must show that no workable race-neutral alternatives would assure the diversity sought
• Public school integration - public school systems may not assign students to schools on the basis of race to achieve integration
  
  • Generally, racial balancing is not a compelling state interest

Question 7

What is Alienage? Which scrutiny applies to Alienage?

Answer 7

Classifications based on alienage (i.e., citizenship status) are subject to strict scrutiny review, although certain exceptions apply

Question 8

What are the exceptions to alienage classifications as strict scrutiny review?

Answer 8

Exceptions - rational basis applies if the classification is:

1. Related to self-govt. and the democratic process
   
   • Often arises where job applicants are denied govt. employment based on their citizenship status
   • Areas where alienage classifications have been upheld under rational basis review:
     
     • Voting
     • Serving on a jury
     • Working as a police officer
     • Working as a teacher
     • Working as a probation officer
2. A congressional law regulating immigration
   
   • Congress has plenary powers to regulate immigration
   • Note - undocumented aliens are not considered a suspect classification

Question 9

Gender as a classification

Answer 9

Gender - int. scrutiny+ ‘‘exceedingly persuasive justification’’

• Gender classifications receive heightened intermediate scrutiny (i.e., they must substantially relate to an important govt. purpose)
  
  • Additionally, courts often require an ‘‘exceedingly persuasive justification’’ for the classification
• Classifications discriminating against men are usually invalid
  
  • Some have passed intermediate scrutiny (e.g., statutory rape laws applying only to men, aII-male mi Iitary draft)
• Classifications benefitting women:
  
  • Classifications based on stereotypes are impermissible
  • Classifications designed to remedy past discrimination or differences in opportunity will likely be upheld

Question 10

Non-marital children

Answer 10

Non-marital children (legitimacy classifications)

• Usually arises with intestacy statutes
• Intermediate scrutiny- applies if a law grants benefits to all marital children but denies benefits to some non-marital children
  
  • Laws that deny benefits to all non-marital children while granting benefits to all marital children are unconstitutional on their face

Question 11

Right to travel, considerations (which test?)

Answer 11

Right to travel – strict scrutiny

• Usually arises when laws impede movement between states
• Durational residency requirements- laws requiring some period of in-state residency to qualify for a state benefit
  
  • Invalid residency requirements -1-yr residency to receive welfare; 1-yr residency to receive subsidized medical care; 1-yr residency to vote in state elections
  • Valid residency requirements - 30-day residency to vote in state elections; 1-yr residency to get a divorce

Question 12

Right to vote, considerations (which test?)

Answer 12

Right to vote - strict scrutiny

• Arises with laws that deny some citizens the right to vote
• The ‘‘one person, one vote’’ requirement must be met for all state and local elections
  
  • For elected bodies, voting districts must be similar in population
• At-large elections - constitutional
  
  • When all voters vote for all office holders

Question 13

Free Speech, and protected speech

Answer 13

The 1^st Amend. protects freedom of expression, including freedom of speech, of the press, of assembly, and of association

• Protected speech
• Unprotected or lesser-protected speech

Question 14

Protect speech considerations

Answer 14

Protected speech - where protected speech is at issue, the level of scrutiny depends on whether the speech restriction is content-based

• Content-based restriction- strict scrutiny
  
  • Occurs where govt. seeks to restrict speech b/ c of its content (i.e., based on the subject matter or viewpoint)
• Content-neutral restriction - intermediate scrutiny
  
  • Occurs where a govt. restriction applies to all expression regardless of the content or viewpoint
  • Usually arises in the context of time, place, or manner restrictions and/or speech on govt. property

Question 15

Unprotected speech considerations

Answer 15

Unprotected or lesser-protected speech - some categories of speech receive lesser or no 1^st Amend. protection (e.g., obscenity, commercial speech, fighting words, etc.)

• If a restriction concerns a lesser-protected category of speech, analyze under the appropriate test given the category of speech

Question 16

Speech of govt. property: What are the type of govt property classifications?

Answer 16

Speech on govt. property - public forum doctrine

• Special rules apply depending on whether the govt. property is”
  
  • a public forum,
  • designated public forum,
  • or non-public forum

Question 17

Speech in public forums

Answer 17

Public forums are govt. property that the govt. is constitutionally required to make available for speech (e.g., sidewalk, park)

• Regulations must be content-neutral
  
  • If not, strict scrutiny applies

Question 18

What is the test for public forum speech restrictions?

Answer 18

Test for public forum restrictions - to be upheld, the restriction must:

1. Be content-neutral
   
   • I.e., only regulates time, place, or manner of speech
   • If the restriction is content-based, strict scrutiny applies
2. Be narrowly tailored to serve an important govt. purpose
3. Leave open adequate, alternative channels of communication
   
   • Does not have to be the least-restrictive alternative

• Permit fees that vary depending on the type of speech are content-based and unconstitutional

Question 19

Speech in Limited/designated public forums considerations

Answer 19

Limited/designated public forums - govt. properties that the govt. opens for speech, but can close at any time

• E.g., public school facilities for girl scout meetings
• The same rules apply as for public forum restrictions, but only apply when the govt. property is open for speech
  
  • When closed for speech or restricted to certain types of speech, analyze as a non­ public forums

Question 20

Speech in non-public forums considerations

Answer 20

Non-public forum - govt. property that can be closed to speech (e.g., military bases, airports)

• Test - govt. can regulate speech if the regulation is:

1. Reasonably related to some legitimate purpose; and
2. Viewpoint neutral

• Content neutrality not required- govt. can allow speech on some subjects but not others, yet if it opens speech to a subject it cannot limit the speech to only one view

Question 21

Prior restraints, what is? which test applies?

Answer 21

Prior restraints involve a prohibition on speech (or publication) before it occurs - strict scrutiny applies

Question 22

Different between prior restrains and speech restriction

Answer 22

Identifying prior restraints - look for prevention of expression

• Prior restraints prevent expression, whereas other speech restrictions punish expression after it has occurred

Question 23

Prior restraints and injunctions

Answer 23

Injunctions - most common type of prior restraint

• It is extremely difficult to get an injunction prohibiting speech
• '’Gag orders’’ against pre-trial publicity rarely allowed
• Note - P must comply with valid injunction until it is vacated or overturned; P cannot challenge a violated injunction

Question 24

Prior restrains permits / licensing

Answer 24

Permits/licensing - govt. may require licenses or permits for speech only if there is a reasonable justification for doing so

• License/permit requirements for speech must be similar to a ‘‘rubber stamp’’ process and must provide procedural safeguards or judicial review for denied permits/licenses
• P can challenge a denial on constitutional grounds, even if violated

Question 25

Protection of speech and vagueness

Answer 25

Vagueness - a law is vague if a reasonable person cannot tell whether speech is prohibited or permitted

• E.g., law prohibiting people from assembling and conducting themselves ‘‘in a manner annoying to passersby’’ is unconstitutionally vague b/c a reasonable person must guess as to what behavior is punishable

Question 26

Protection of speech and overbreadth

Answer 26

Overbreadth - a law is overbroad if it regulates substantially more speech than the Const. allows to be regulated

• An overbroad law restricts unprotected speech, but in doing so also restricts protected speech
  
  • E.g., Iaw prohibit ing all ‘ I ive ent ert ainment’’ may validly restrict obscenity, but also invalidly prohibits protected speech in concerts or theater
• If a speech restriction is overbroad, it cannot be enforced against anyone, even one whose speech is not protected
  
  • ’‘fighting words’’ statutes are almost always unconstitutionally vague and overbroad and will not be upheld

Question 27

What is Symbolic speech

Answer 27

Symbolic speech refers to expressive or communicative conduct (i.e., conduct intended to convey a message)

Question 28

Test to determine if symbolic speech can be regulated

Answer 28

Test - govt. can regulate symbolic speech if:

1. The regulation furthers an important govt. interest;
2. That govt. interest is unrelated to suppression of the message; and
   
   • If the restriction is aimed at speech more than conduct, it is likely unconstitutional
3. The impact on speech is no greater than necessary to further the important govt. interest

Question 29

Symbolic speech examples

Answer 29

• Burning U.S. flag - protected symbolic speech
• Burning a cross protected unless intended to threaten
• Public nudity- not protected

Question 30

Incitement and the first amendment

Answer 30

Incitement of imminent unlawful activity is not protected

• Test- govt. may punish speech if:

1. There is a substantial likelihood the speech will bring about imminent iIlegaI activity; and
2. The speech is aimed at causing imminent illegality

• Note- this test, often referred to as the ‘‘Clear & Present Danger test,” is difficult to satisfy; any law aimed at restricting incitement must be narrowly tailored

Question 31

fighting words and the first amendment

Answer 31

• Govt. may punish speech if it is likely to cause an immediate violent response against the speaker
• Note - it is virtually impossible for a fighting words statute to be upheld; it will be overbroad, vague, or deemed content-based and fail under strict scrutiny

Question 32

Obscenity, is protected?

Answer 32

Govt. may regulate obscenity, which has been deemed a lesser-protected category of speech

Question 33

When an expression is obscene?

Answer 33

Test - expression is obscene if:

1. It appeals to prurient interests (sexually stimulating)
   
   • Average person standard- how would the average person, applying community standards, view the material as a whole?
2. It is patently offensive in its sexual portrayal
   
   • Material must offend community standards regarding portrayal of sexual matters
   • Any law prohibiting obscene material must specify what is deemed patently offensive
3. Taken as a whole, the material lacks serious literary, artistic, political, or scientific value
   
   • Determined based on national standard (not community standard, as is the case for first two prongs)

Question 34

Zoning (free speech limitation) consideration

Answer 34

Zoning - govt. may use zoning to regulate lewd speech or conduct if regulation is designed to combat secondary effects

• E.g., ordinance limiting strip clubs to a small city section can be valid if designed to combat a drop in property values or rise in crime

Question 35

Pornography restrictions on speech

Answer 35

Pornography - private possession is not punishable unless it involves child pornography

• Child pornography- may be punished b/c the underlying act is illegal (e.g., sex with minors)
  
  • Child pornography= actual children are depicted
  • Adults portraying chiIdren is not chiId pornography

Question 36

Profanity / indecent speech is protected?

Answer 36

Profanity/indecent speech - generally protected

• Two exceptions - profane/indecent speech is punishable if either:

1. Speech is aired over broadcast media (not cable), or
2. Speech occurs in public schools

Question 37

What is commercial speech? what test apply to regulation?

Answer 37

Speech or writing on behalf of a business with the intent of earning revenue or a profit.

Govt. may regulate some commercial speech subject to a test similar to intermediate scrutiny

Question 38

Unprotected vs protected commercial speech

Answer 38

Unprotected commercial speech

• Test- commercial speech is not protected if it is either:
  
  1. False, misleading, or deceptive, or
  2. Illegal or concerns illegal activity
• The govt. may regulate unprotected commercial speech

Protected commercial speech

• Test- govt. can only regulate protected commercial speech (i.e., not misleading or unlawful) if the regulation:
  
  1. Serves a substantial govt. interest;
  2. Directly advances that govt. interest; and
  3. Is narrowly tailored to serve that govt. interest
• A valid commercial speech regulation must be narrowly tailored, but not necessarily the least restrictive alternative

Question 39

Public definitions: Figure, official and concern

Answer 39

1. Public Figure = One who has pervasive fame or notoriety or voluntarily assumes a central role in a particular public matter
2. PubIic officiaI = pubIic office holder
3. Matter of public concern = statement relates to a community interest or concern (includes national interests)

Question 41

Defamations concerning public element, additional requirements

Answer 41

Additional requirements - if defamation involves a public figure, official, and/or public concern, P must prove:

1. Falsity - P must prove the statement was false
2. Fault - P must prove D was at fault; standards differ for public vs. private figures:
   
   • Public official or figure – actual malice standard (knowledge of falsity or reckless disregard as to truth)
   • Private figure - negligence of the statement’s veracity

Question 42

Defamation and damages

Answer 42

• Public figures or officials- compensatory damages are presumed; punitive damages are available
• Private figures- damages for actual injury only; P must prove actual malice for compensatory or punitive damages

Question 43

Free exercise Clause Consideration

Answer 43

Free Exercise Clause - prohibits govt. from punishing someone solely on the basis of that person’s religious beliefs or conduct

• Govt. action must be necessary to achieve a compelling interest, but Court has never upheld religious punishment under this standard
• Limitation- only applies if the purpose of a law is to limit or interfere with religious practice or beliefs
  
  • Laws of general applicability (i.e., not designed to regulate or interfere with religion) are valid

Question 44

Establishment Clause

Answer 44

Establishment Clause

• If govt. discriminates against a specific religion or sect (as opposed to religion generally), strict scrutiny applies
• If govt. restricts or burdens religion without discriminating against a specific faith or group, apply the Lemon test:
  
  • Test - a govt. act burdening religion will only be upheld if:
    
    1. There is a secular purpose behind the act;
    2. Act’s primary effect neither advances nor inhibits religion; and
    3. Act does not create excessive govt. entanglement with religion

Question 45

Freedom of association and which test apply?

Answer 45

Freedom of association protects the right to participate in a gathering, club, or other organization to pursue 1^stAmend-protected goals (e.g., political advocacy) - strict scrutiny usually applies

Question 46

When is govt interference on right of association permitted?

Answer 46

Analysis - govt. interference with association is valid only if:

1. Govt. act is in pursuance of a compelling govt. interest; and
2. That interest cannot be achieved by less restriction means

• Note - this test is largely analogous to strict scrutiny

Question 47

Consideration on Restrictions on group discrimination

Answer 47

Restrictions on group discrimination - a govt. law or regulation may be invalid if it interferes with a group’s expressive activities

• Usually involves groups formed for expressive, non-intimate purposes (e.g., NAACP, KKK)

>> E.g., KKK not required to accept non-white members b/c this exclusion is integral to its organizational message

Question 48

Requirements for laws criminalizing membership

Answer 48

Laws criminalizing membership- govt. must prove that D:

1. Actively affiliated with a group involved with illegal activities;
2. Had knowledge of the group’s illegal activities; and
3. Acted with the specific intent of furthering those activities

Question 49

When are you required to disclosure membership of a group?

Answer 49

Disclosure requirements - strict scrutiny if chilling effect

• Laws requiring disclosure of group membership must meet strict scrutiny if disclosure would have the effect of chilling association (i.e., if it would inhibit the group’s ability or willingness to associate)

Question 50

A group of citizen fights the way that tax dollars are spent in public schools, claiming that is promoting religion.

None of the citizens have children in public schools or children at all. Do they need to have a connection with the matter where the government is using money to have standing?

Answer 50

No

The group has standing to challenge the expenditure on behalf of its members, who have a right to sue based on their status as federal taxpayers. The one recognized exception to the rule that people do not have standing as taxpayers to challenge the way tax dollars are spent by the federal government is if the expenditure was enacted under Congress’s taxing and spending power and allegedly exceeds the specific limitation on that power found in the Establishment Clause. That exception applies here because the citizens’ group is alleging that the federal appropriation is an unconstitutional attempt to provide government funds to religiously affiliated schools.