Individual Rights

Question 1

Generally, a person who is intentionally being deprived of life, liberty or property, is entitled to what two procedural due process rights?

Answer 1

The rights to notice and a hearing

Question 2

Name the three requirements that must be met in order for a restriction on the time, place, or manner of speech to be permissible in a public forum

Answer 2

The restriction must:
(i) Be content-neutral as to both subject matter and viewpoint;
(ii) Be narrowly tailored serve a significant state interest; and
(iii) Leave open ample alternative channels for communication of the information.

Question 3

What are the 3 requirements for regulation of expressive conduct?

Answer 3

1. regulation furthers an important interest
2. that interest is unrelated to the suppression of expression, and
3. the burden on expression is no greater than necessary.

Question 4

What are three fundamental rights?

Answer 4

1. right to travel
2. right to vote
3. right to privacy (including marriage, sexual relations, child rearing, and the right of related persons to live together).

Question 5

What is are the four suspect classifications for whom strict scrutiny will apply in an Equal Protection claim?

Answer 5

(i) Race
(ii) Ethnicity
(iii) National origin
(iv) If the classification is by state law, citizenship status

Question 6

Under Equal Protection, when is intermediate scrutiny applied?

Answer 6

When a classification is based on gender or status as a nonmarital child (legitimacy)

Note: In gender cases, there must be an ““exceedingly persuasive justification”” for the classification.

Question 7

When is there a legitimate property interest in continued public employment?

Answer 7

When there is an employment contract or a clear understanding that the employee may be fired only for cause

Note: Even those employees who lack any entitlement to continued employment cannot be discharged for reasons that in and of themselves violate the Constitution.

Question 8

Name the five categories where the government is permitted to restrict speech on the basis of content.

Answer 8

1. Obscenity
2. Incitement to violence
3. Fighting words
4. Defamation
5. Commercial speech

Question 9

Define strict scrutiny.

Answer 9

The law must be NARROWLY TAILORED achieve a compelling governmental interest.

Question 10

Under Equal Protection, in what two instances does the court apply the strict scrutiny test?

Answer 10

When the state action in question involves a fundamental right or suspect classification.

Question 11

What is required to trigger constitutional protections (with the exception of the Thirteenth Amendment)?

Answer 11

State action

Question 12

What requirements must be met for a government to be permitted to regulate speech-related activities in nonpublic forums?

Answer 12

The regulation must be:
(i) Viewpoint-neutral; and
(ii) Reasonably related to a legitimate governmental interest.

Question 13

Define rational basis.

Answer 13

A law meets the rational basis standard of review if it is rationally related to a legitimate state interest.

Note: This test generally results in the law being upheld.

Question 14

Define intermediate scrutiny.

Answer 14

To be constitutional, the law must be substantially related to an important governmental interest.

Question 15

What must the plaintiff show in order to trigger strict or intermediate scrutiny under the Equal Protection Clause?

Answer 15

Discriminatory intent, which can be shown facially, as applied, or when there is a discriminatory motive

Question 16

The Supreme Court has sorted government property that is open for speech into three categories.

What are the three categories?

Answer 16

1. Traditional public forums
2. Designated public forums
3. Nonpublic/limited public forums

Question 17

What is a traditional public forum and what must be met for the government to regulate it?

Answer 17

A traditional public forum is one that is historically associated with expression, such as sidewalks, streets, and parks. In a traditional public forum, the government may only regulate speech if the restrictions: (i) are content-neutral as to both subject matter and viewpoint, (ii) are narrowly tailored to serve a significant governmental interest, and (iii) leave open ample alternative channels for communication. Additional restrictions, such as an absolute prohibition of a particular type of expression, will be upheld only if narrowly drawn to accomplish a compelling governmental interest.

Question 18

What is required under the DPC for a public employee who can only be terminated for cause?

Answer 18

Since a public employee who can only be terminated for cause has a PROPERTY interest in such employment—and termination is a serious deprivation of that interest—due process requires that the employee receive:

1. notice of his/her alleged misconduct
2. a pre-termination opportunity to respond to that allegation and
3. a post-termination evidentiary hearing to determine if the termination was warranted.

Note: if suspension without pay, only required to have:

1. Notice of alleged misconduct
2. Prompt post-suspension evidentiary hearing

Question 19

When does a statute that affects classification of wealth get strict scrutiny review?

Answer 19

State laws that discriminate against individuals based on wealth (e.g., ability v. inability to pay a court fee) can be challenged under the Fourteenth Amendment equal protection clause. Since an individual’s wealth is not a suspect class or quasi-suspect class, such laws are generally subject to rational basis scrutiny and upheld. However, courts will depart from this test and apply strict scrutiny when a state law prohibits the exercise of a fundamental right (e.g., the right to appeal) based on an individual’s wealth.

Question 20

Judges usually get absolute immunity. When do they not?

Answer 20

When a judge fails to

The Fourteenth Amendment due process clause requires that the government provide an opportunity to be heard before a neutral decision-maker. A judge must therefore recuse him/herself from a case when (1) the judge has a direct, personal, substantial, pecuniary interest in it or (2) a serious, objective risk of actual bias exists.