Individual Rights

Question 1

State Action

Answer 1

A state action is required for a plaintiff to bring a suit over their individual rights in the 1st, 14th, and 15th Amendments.

In some instances an individual may be considered a state actor if they are significantly tied to the gov

*Exception: 13th amendment ban on racial discrimination applies to gov and private actors

Question 2

13th Amendment

Answer 2

The 13 Amendment bans slavery & tries to fix racial discrimination

Private actors AND gov actors can be sued under the 13th Amendment

Question 3

Privileges & Immunities Clause

Answer 3

Prevents state laws from discriminating against residents of other states based on residency - out of state residents should not be treated differently

Question 4

15th Amendment

Answer 4

The 15th Amendment bans racial discrimination in the specific context of voting

Question 5

Equal Protection

Answer 5

Equal Protection prevents the gov from discriminating against specific people/groups/class

The constitutionality of laws that do discriminate against groups will depend on the class:

Strict Scrutiny - race/alienage/national origin (gov must show law is necessary to achieve compelling gov interest)

Intermediate Scrutiny - gender illegitimacy (gov must show law is substantially related to important gov interest)

Rational Basis - everyone else (pltf must show law is NOT rationally related to a gov interest)

Question 6

Strict Scrutiny

Answer 6

Gov must show a law is necessary to achieve a compelling gov interest

Applies to discrimination re race, alienage, national origin

Question 7

Intermediate Scrutiny

Answer 7

Gov must show law is substantially related to an important gov interest

Applies to discrimination re gender & illegitimacy

Question 8

Rational Basis

Answer 8

Plaintiff must show a law is not rationally related to a gov interest

Applies to classes other than race, alienage, nat’l origin, gender, and illegitimacy - “everyone else”

Question 9

Procedural Due Process

Answer 9

If the gov tries to deprive someone of rights or property interests, notice and an opportunity to be heard are required

Rights = speech, bear arms

Property interests = gov benefits, public jobs

* Congress DPC/EP = 5th Amendment*

Question 10

Substantive Due Process

Answer 10

If the gov tries to take or restrict rights of the people (as a whole), law may be unconstitutional

Infringement of fundamental rights (interstate travel, voting, privacy [CAMPER]) requires strict scrutiny to be satisfied

Non-fundamental rights are subjected to rational basis test

* Congress DPC/EP = 5th Amendment*

Question 11

Takings

Answer 11

The gov can take private property for any public purpose so long as they provide just compensation (FMV) in exchange

Public purpose may be for a gov function or private function that will serve the public

Takings can also be found where some gov action significant reduces the value of private property

Question 12

Establishment Clause

Answer 12

The Establishment Clause prohibits the gov from passing laws that establishes any religion – requires separation of church and state

Laws must be neutral with 1) secular purpose, 2) no advancing/prohibition of religion, and 3) no excessive entanglements with religion ($$$)

Question 13

Free Exercise Clause

Answer 13

The Free Exercise clause gives the people the right to practice whatever religion they want and in any way they want - as long as they do not break the law (religion is NOT a defense)

The gov can pass neutral laws - incidental effects do not automatically make laws unconstitutional

Question 14

Content-Based Speech Regulations

Answer 14

Content-based speech regulations are found where the gov simply prohibits speech

Strict scrutiny applies because speech is a fundamental right – gov must show the restriction is necessary to achieve a compelling gov interest

Question 15

Content-Neutral Speech Regulations

Answer 15

Content-neutral speech regulations are found where the gov allows speech but restricts time/place/manner of it

Constitutional so long as the restriction is 1) neutral, 2) serves a significant or important gov purpose, and 3) allows alternative channels

Question 16

Speech - Public vs. Non-public Forums

Answer 16

Public forums consists of streets, parks, sidewalks, etc. - restrictions must serve significant or important gov purpose

Non-public forums consist of bus ads, billboards – restrictions must be 1) neutral and 2) reasonably related to legit gov interest

Question 17

Obscenity

Answer 17

Obscene speech is not protected - regulations merely need to serve a subst. gov interest & leave open alts

Speech is deemed obscene when: 1) an objective person applying local community standards find the work appeals to purient interests in sex, 2) work depicts sex in an offensive way, 3) work lacks literary/political/scientific value

Question 18

Clear & Present Danger/Fighting Words

Answer 18

Speech that is likely to incite violence will not be protected under the First Amendment

Question 19

Defamation

Answer 19

Defamation is not protected under the 1st Amendment

Question 20

Commercial Speech

Answer 20

Business and advertising speech may be restricted if the restriction is a reasonable fit for government interests and is narrowly tailored

False/Misleading/Illegal are not protected

Question 21

Prior Restraints

Answer 21

Prior restraints are restrictions that ban expression before it even gets out

Strict scrutiny applies – prior restraints are typically struck down

Question 22

Unfettered Discretion

Answer 22

Unfettered Discretion is fond when the gov bans one form of expression but not another, showing preference for form – unconstitutional

Question 23

Overbreadth

Answer 23

A law is unconstitutional on its face if it prohibits substantially more expression than is necessary

Question 24

Vagueness

Answer 24

A law is unconstitutional on its face if a reasonable person could not understand what speech is being prohibited and what is allowed

Question 25

Bill of Attainder

Answer 25

Govs cannot pass laws specifically naming people/groups to be punished without a trial – unconstitutional

Question 26

Ex-Post Facto Laws

Answer 26

Gov cannot pass laws retroactively criminalize conduct (ex-post facto laws) – unconstitutional

Question 27

Contracts Clause

Answer 27

States cannot pass laws that substantially impair pre existing contracts UNLESS it serves an important legitimate public interest and is narrowly tailored

Question 28

State Election Restrictions

Answer 28

States have power to regulate their own elections but electoral regulations must comply with 2 constitutional provisions:
1) 1st Amendment Freedom of Assoc. - protects rights to freely engage in group expression and
2) 14th Amendment Equal Protection - requiring similarly situated people be treated equally

Electoral regulations challenged under these provisions must pass the following standards:

• Ordinary regulations (voter registration, ID, write-in voting) = rational basis - challenger must show regulation does not have a rational relation to legit state interests
• Severe regulations (poll tax, disallowing 3Ps, property-ownership req) = strict scrutiny - state must show the regulation is necessary to achieve compelling state interest

Question 29

Unprotected Speech (FIDO)

Answer 29

Fighting words
Inciting crime
Defamation
Obscentiy

Question 30

Campaign Finance Restrictions

Answer 30

Political speech (including campaign contributions and expenditures is a core right protected by the First Amendment - but is subject to gov restrictions that satisfy the appropriate level of scrutiny

Expenditure Restrictions - Restrictions on personal or corp campaign expenditures impose a substantial burden on political speech so they are subject to strict scrutiny - gives gov the nearly impossible task of showing that its restriction is the least restrictive means to achieve a compelling interest

Contribution Restrictions - restrictions on limits of contributions are subject to intermediate scrutiny requiring the gov to show that restrictions are substantially related to important gov interests