Individual Rights Flashcards

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1
Q

State Action

A

the individuals rights protections of the con. only apply when there is state action

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2
Q

state action is

A

actions by 1) government agencies and officials 2) private entities who perform exclusive public functions or 3) private entities that have sig. government involvement in their activies

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3
Q

equal protection

A

equal protection clause prohibits state and local gov. from treating sim. situated people differently

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4
Q

how can you bring an equal protection claim against fed gov.

A

under 5th am. due process clause

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5
Q

when will strict scrutiny apply

A

will apply if there is a suspect class (race or national origin in florida) or a fundamental right (right to vote, right to interstate)

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6
Q

what is the strict scrutiny test

A

the action will be struck down unless gov. proves that it is necessary to achieve a compelling government interest

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7
Q

who is in a quasi suspect class

A

gender and legitamacy - apply intermediate scrutiny

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8
Q

intermediate scrutiny test

A

government must prove that the law is substantially related to an important gov interest

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9
Q

who is in class for rational basis test

A

includes age, wealth, sexual orientation, disability

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10
Q

what is rational basis test

A

aggrieved party must show that the law is not rationally related to a legitamite government interest

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11
Q

procedural due process

A

prohibits gov. from depriving a person of life, liberty, or property without due process of the law (notice and opportunity to be heard)

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12
Q

substantive due process

A

focuses on the lefitamicy of the gov. act by applying the applicable standard of review. violations of substantive rights and liberties will be brought under substantive due process

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13
Q

fundamental rights

A

there are three fundamental rights under U.S. constitution: 1) right to privacy (marry, procreate, custody of children, keep the family together, rear children, contraceptives) 2) right to vote and 3) right to interstate travel

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14
Q

if a law infringes on fundamental rights

A

use strict scrutiny test but include third factor of least restrictive means

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15
Q

first amendment freedoms

A

freedom of speech and freedom of religion

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16
Q

freedom of religion

A

has the free exercise and free establishment clauses

17
Q

free exercise clause

A

prohibits the gov from punishing or interfering with an individuals rights. Usually is invoked when the government actor is governing, through interfering or punsihing, the practice of religion. strict scrutiny applies to these claims (if neutral law created for secular purposes) then you would use RB

18
Q

Establishment clause

A

prohibits gov. sponsorship, support, or endorsement of religion. if the regulation is sect neutral, the lemon test applies, if not sect neutral, then strict scrutiny

19
Q

lemon test

A

sect neutral regulation is valid IF 1) there is a secular purpose 2) it has a primary effect that neither promotes or inhibits religion 3) there is no excessive entanglement between gov. and religion

20
Q

freedom of speech - first step of analysis

A

whether the regulation is content based or content neutral?

21
Q

content based

A

regulates speech based on the topic discussed or message being communicated or expressed - presumptively uncon. and must satisfy SS (also uses third prong of least restrictive means)

22
Q

content neutral

A

does not regulate on the content of the speech - usually must pass intermediate scrutiny

23
Q

time place and manner restrictions

A

can place reasonable time place and manner restrictions on speech in public space or designated/limited public forum IF 1) the regulation is content neutral to subject matter and viewpoint neutral 2) is narrowly tailored to serve an important gov. interest and 3) leaves adequate alternative channels of communication

24
Q

public forum

A

government property traditionally held open for public for speech purposes

25
Q

designated/limited public forum

A

government property that the gov. could close to speech but chooses to open to speech (schools and libraries)

26
Q

non-public forums

A

government property that the gov. can close to speech (military bases, airports, jails) - only need rational basis to regulate speech in non pub. forums

27
Q

unprotected speech

A

there are certain categories of speech that are not protected under the con. - they may be regulated so long as the reg. contains narrow and definite standards (can’t be vague or overbroad)

28
Q

categories of unprotected speech

A
false and misleading ads
incitement of unlawful conduct 
fighting words
child porn
obscenity 
defamation
29
Q

commercial speech

A

it is afforded less protection than private speech and gov. can regulate protected commercial speech by proving intermediate scrutiny (adds last rule of restriction is no greater than necessary

30
Q

facial challenges to statutes regulating speech

A

prior restraints - government action that stops speech before it occurs - permitted only to avoid special harm

vagueness - an average person of reasonable intelligence would not understand what is permitted or prohibited under the reg. (usually if there is overbreadth or unfettered discretion)