Individual Rights Flashcards
State Action Requirement
In order for there to be a violation of an individual right, there must be state action or if there is a strong nexus between a private entity/person and the government.
Free Exercise clause
Each person has the right to practice their religion as they choose. The government cannot intentionally prohibit a person from practicing their religion. However, mere incidental effects on religion are constitutional. Further, the free exercise clause does not allow people to break the law in the name of their religion.
Establishment clause
The government cannot pass a law establishing a religion. Today, the Establishment Clause inquiry focuses on neutrality, historical practice, and whether the Founding Fathers would have considered the action involved acceptable.
Right of Free Speech
Under the Due Process Clause, speech is a fundamental right. Speech may be regulated subject to certain requirements. However, regulations must not be over broad or vague. A speech restriction is overboard if it prohibits substantially more speech than necessary. A regulation is invalid for vagueness if it fails to give reasonable people notice of what is prohibited.
Content Based Regulations
If the government restricts speech based on its content, the decision is subject to strict scrutiny.
Content Neutral Regulations
Content neutral regulations are based on the time, place, and manner of the speech taking place. The regulation must further a significant governmental interest and leave open alternative means of communication. A time, place, or manner regulation must also provide defined standards for applying the law. If the regulation is a licensing scheme, it must relate to an important government interest, contain procedural safeguards, and not grant official unbridles discretion.
Forums and Scrutinies for them
- Traditional Public Forums: streets, parks, and sidewalks
Content based restrictions → strict scrutiny
Content neutral restrictions → intermediate scrutiny - Designated Public Forums: Town hall
Content based restrictions → strict scrutiny
Content neutral restrictions → intermediate scrutiny - Limited Public Forum: Court rooms
Can reasonably restrict speech to preserve the space for intended use so long as the restriction is viewpoint neutral (RB) - Non-Public Forums: used only to facilitate government business
Can reasonably restrict speech to preserve the space for intended use so long as the restriction is viewpoint neutral (RB)
Unprotected Speech
- Obscenity: (1) appeals to the prurient interests in sex, using a contemporary community standard; (2) is patently offensive under contemporary community standards; and (3) lacks serious literary, artistic, or scientific value, using a national, reasonable person standard.
- Incitement: intended to and reasonably likely to produce imminent lawless action
- Fighting words: likely to incite immediate physical retaliation in an average person
- True threats: words that are intent to convey to someone a serious threat of bodily harm
- Ads that are false, misleading, or about illegal products or services.
Equal Protection
The Equal Protection Clause provides that similarly situated people must be treated alike. If the law involves a suspect or quasi-suspect class, it will receive heightened scrutiny.
Strict scrutiny – race, alienage, national origin
Intermediate scrutiny – gender and illegitimacy
Rational basis – No suspect class implicated/
Substantive Due Process (fundamental rights/right to privacy)
Right to privacy – contraception, marriage, procreation, private education, right to raise your family as you see fit
Strict scrutiny
Procedural due process
The Due Process Clause of the 14th amendment provides that the government shall not deprive a person of life, liberty, or property without due process of law. Liberty includes freedoms protected by the Constitution. There is a property right in jobs, licenses, and government benefits that have vested.
If the government deprives these rights, the citizen is entitled to notice and a hearing. A hearing is the opportunity to make objections in front of a neutral decision-maker.
Taking Clause
The government can take private property for public use with just compensation. Public use is broad and generally includes anything that contributes to the public good.
Inverse Condemnation
If the government’s actions which so drastically decreases the economic property value, they have to give just compensation.
Ex Post Facto Laws
The government may not retroactively make lawful conduct illegal.
Freedom of Press
The press generally has no greater right to free speech than an individual, but the press is essential to our society. Thus, the press is permitted to publish information about a matter of public concern. Unless strict scrutiny → narrowly tailored to further a state interest of the highest order.
