Individual Rights

Question 1

Equal Protection

Answer 1

The Florida Constitution mandates that all persons are equal before the law and certain inalienable rights are protected.

• A law will be reviewed for an equal protection violation if it discriminates against a group of people or if it infringes on a fundamental right.
• Fundamental rights include—
  
  1. the right to interstate travel,
  2. right to vote,
  3. right to privacy,
  4. First Amendment rights,
  5. sexual orientation,
  6. contraception,
  7. abortion,
  8. marriage,
  9. possess obscenity,
  10. educational rights,
  11. religious rights,
  12. the right to death, and
  13. the right to work.

Question 2

Substantive Due Process

Answer 2

• The Florida Constitution mandates that all persons are equal before the law and certain inalienable rights are protected.
• A law will be reviewed for a substantive due process violation if it—
  
  1. infringes on a fundamental right and
  2. affects everyone.
• Alleged substantive due process violations are subject to only strict scrutiny and rational review.
  
  • If the rights alleged as violated are fundamental, the law is subject to the strict scrutiny standard of review, which places the burden on the government to prove that the law is narrowly tailored to serve a compelling state interest using the least restrictive means.
  • If the right alleged as violated is not fundamental, the law is subject to rational basis standard of review, where the plaintiff has the burden to show that the law is not rationally related to any legitimate government interest.
    
    • The law will be considered valid if it
      
      1. was enacted to protect public health, safety, or welfare, and
      2. is not arbitrary or unreasonable.
      • The government will generally prevail unless the law does in fact discriminate.

Question 3

Substantive Due Process:

Right to Privacy

Answer 3

• A law will be reviewed for a substantive due process violation if it infringes on a fundamental right and the law affects everyone.
• The Florida Constitution expressly provides that the right to privacy is a protected right and every person has the right to be left alone and free from government infringement in their private life.
• The person must have a reasonable expectation of privacy under the circumstances.
• The state may not limit a minor’s right to privacy.
  
  • Florida law provides that student locker searches are subject to the same reasonable suspicion standard as other student searches on property
• The right to privacy is a fundamental right and is, thus, subject to review as a violation of substantive due process—i.e. subject to strict scrutiny review under which the government must prove that the law is narrowly tailored to serve a compelling state interest using the least restrictive means.

Question 4

Procedural Due Process: Right to Property

Answer 4

The Florida Constitution prohibits the government from depriving persons of “life, liberty, or property” without due process of law.

• Property rights include things such as—
  
  1. jobs,
  2. licenses, and
  3. benefits.
• When the deprivation of property rights is involved, a person is entitled to fair procedural safeguards which include adequate notice and a meaningful hearing (i.e. opportunity to be heard) within a reasonable time.
• The Florida Constitution provides that private property shall not be taken by the state except
  
  1. for a public purpose,
  2. with a showing of necessity, and
  3. with full compensation (i.e. fair market value) of the property paid to the owner.

Question 5

Access to the Courts and Trial by Jury

Answer 5

The Florida Constitution requires that the court system be open to every person for redress of any injury.

• If the legislature restricts access to the court system or abolishes a common law cause of action, it must—

1. provide a reasonable statutory alternative or
2. show there is no other way to accomplish an overwhelming public need.

• Any restriction that substantially bars access to the courts will be considered unreasonable.
• Every person is entitled to a right to a trial by jury, and such right is guaranteed and must remain inviolate.

Question 6

Search and Seizure

Answer 6

• Under the Florida Constitution and the Fourth Amendment, persons have a right to be free of unreasonable search and seizure.
  
  • There is a right to have bodies, houses, papers, and effects secured against unreasonable search and seizure, and a right not to have private communications unreasonably intercepted by any means.
• Unless an exception exists, a warrant is required for search and seizure.
  
  • In order to have a warrant issued, the request must be—
    
    1. made to a neutral magistrate,
    2. based on probable cause,
    3. based on information that is not out-of-date,
    4. based on information from a reliable informant (if applicable), and
    5. supported by an affidavit.
  • The warrant should set forth the—
    
    1. place to be searched,
    2. persons or things to be seized,
    3. communications to be intercepted, and
    4. nature of the evidence to be seized.
  • If there is an unreasonable search and seizure that violates the reasonable expectation of privacy, any evidence obtained is subject to the exclusionary rule.
    
    • The exclusionary rule prohibits the use of evidence in a criminal proceeding if it is the fruit of the poisonous tree (i.e., resulted from an unlawful search or seizure), including both the—
      
      1. evidence seized during the unconstitutional search and seizure, and
      2. any further evidence seized that would not have been discovered but for the unlawful search and seizure.

Question 7

Exceptions for Warrantless Searches

Answer 7

• To effectuate a warrantless search—

1. there must be probable cause that a crime has been committed,
2. the search must be incident to a lawful arrest, or
3. the search must be conducted based on the consent of the person searched (or consented to by a person who has standing to consent to a search of property).

• Other exceptions for warrantless searches include—
  
  • fleeing suspect;
  • exigent circumstances;
  • momentary detention;
  • premises subject to regulatory licenses;
  • object searched is in official custody;
  • proximity to crime;
  • dog sniffs at airports;
  • automobile exception (search within suspect’s reach);
  • plain view;
  • stop and frisk;
  • investigatory field stop;
  • protective sweep;
  • inventory search at police station.

Question 8

Right Against Self-Incrimination

Answer 8

• There are four ways to attack the admissibility of a statement or confession:
  
  1. no Miranda warnings were given as required by the Fifth Amendment;
  2. violation of the right to counsel;
  3. the lack of voluntariness of the statement; or
  4. under the fruit of the poisonous tree doctrine.
• The Constitution provides citizens with a right against self-incrimination, and Miranda warnings provide the person with the right to remain silent which protects against self- incrimination.
  
  • Miranda warnings must be given when a person is subject to custodial interrogation.
    
    • Custodial interrogation occurs when the suspect has a reasonable belief he is not free to leave and police use words which a reasonable person would believe was attempting to elicit a response related to the crime.
    • Investigatory questioning is permitted without the giving of the Miranda warnings.
  • A suspect may waive his Miranda rights if such waiver was
    
    1. voluntary,
    2. knowing, and
    3. intelligent.
    • Waivers are deemed valid even if the suspect is intoxicated, has a psychosis or mental incompetence, or an informant is used.
    • Waivers have been deemed invalid where there was extended custodial questioning, coercion, foreign language issues, or an unlawful arrest.
  • Even if there was a Miranda violation, however, a statement or confession may be used to impeach a defendant.

Question 9

Right to Counsel

Answer 9

• Under the Fifth Amendment, as applicable to states under the Fourteenth Amendment, and in accordance with a person’s rights under Miranda, a person is provided with the right to counsel before making any statements during custodial interrogation.
  
  • The Fifth Amendment right to counsel differs from the right to counsel afforded under the Sixth Amendment, which provides that a person is entitled to counsel at every stage of a proceeding once criminal charges are filed.
• The right may be waived if—
  
  1. volitional,
  2. knowing, and
  3. intelligent.

Question 10

First Amendment:

Establishment Clause

Answer 10

• The First Amendment, as applicable to the states through the due process clause of the Fourteenth Amendment, provides for—
  
  1. freedom of speech and freedom of the press;
  2. right to assemble,
  3. right to petition the government for a redress of grievances,
  4. right to free exercise of religion, and
  5. prohibition against the establishment of religion.
• Under the Establishment Clause, no law may establish a particular religion and no state revenue may be used to help any religious or sectarian organization.
  
  • If alleged that the Establishment Clause has been violated, the court will apply the three-part Lemon test to determine—
    
    1. whether the statute has a legislative purpose;
    2. the primary effect or purpose neither advances nor inhibits religion; and
    3. the statute does not foster an excessive government entanglement with religion.

Question 11

First Amendment:

Freedom of Speech and Right to Assemble

Answer 11

• The First Amendment, as applicable to the states through the due process clause of the Fourteenth Amendment, provides for—
  
  1. freedom of speech and freedom of the press;
  2. right to assemble,
  3. right to petition the government for a redress of grievances,
  4. right to free exercise of religion, and
  5. prohibition against the establishment of religion.
• The government may neither—
  
  1. censor all categories of speech; nor
  2. engage in content-based discrimination among different categories of speech (even if that speech is offensive), with some exceptions.

Question 12

First Amendment:

Exceptions to Freedom of Speech & Right to Assembly

Answer 12

The fundamental rights of free speech and assembly are subject to reasonable regulation in order to balance the right with the duty to provide for the public safety of the general welfare.

• A law will be deemed—
  
  1. valid and constitutional if it is content neutral and provides a reasonable restriction based on time, place and manner of assembly; or
  2. invalid and unconstitutional if content based unless the regulation passes strict scrutiny, i.e. the government establishes that the law is—
     
     • narrowly tailored to serve a compelling state interest
     • using the least restrictive means.

Question 13

First Amendment:

Time, Place, & Manner Regulations

Answer 13

• Regulations of speech-related activities must be—
  
  1. content neutral, as to both subject matter and viewpoint;
  2. narrowly tailored to serve an important government interest; and
  3. leaves alternative channels of communication open.
  • Where the speaker is the government and not a private actor, the government may discriminate based on the content of the speech.
  • Regulations on speech are content neutral when focused on the “conduct” or “method” rather than the “content” or “message” of the speech.
    
    • When the regulation is content-neutral, the government may place reasonable restraints on time, place, and manner of speech in public areas historically associated with expressive conduct, such as using streets, sidewalks, and parks for picketing, leafleting, and broadcasting.
      
      • This also applies to someone’s home so that it extends to roadways through neighborhoods, which can result in a ban on picketing at or around residential homes.
    • The Speech-related activities at non-public forums—such as military bases, jails, government workplaces, and mailboxes—can be regulated by reasonable time, place, and manner regulations.
      
      • The test used by the court requires that a government regulation must be—
        
        1. viewpoint neutral; and
        2. reasonably related to a legitimate interest.

Question 14

Freedom of Speech and Right to Assemble:

Conduct Regulations

Answer 14

• A law which regulates conduct that creates an incidental burden on speech is valid if it—
  
  1. both serves and directly advances a substantial governmental interest; and
  2. is no more broad than necessary to serve that interest.

Question 15

First Amendment:

Unprotected Speech

Answer 15

• Not all speech is entitled to constitutional protection.
• Unprotected speech includes—
  
  • speech that advocates violence or unlawful action (Brandenburg test),
  • fighting words,
  • hostile audience speech,
  • obscene speech (Miller test), and
  • defamatory speech.
• Unprotected speech issues are subject to the rational basis standard of review, under which the plaintiff has the burden to show that the law is not rationally related to any legitimate government interest.
  
  • The law cannot be arbitrary or unreasonable, and the government generally prevails unless there is discrimination.

Question 16

First Amendment:

Violent Speech (Brandenberg Test) and Fighting Words

Answer 16

• Applying the the Brandenberg test in its review of alleged violent speech, the court will deem the speech is unprotected if it creates a clear and present danger of imminent unlawful action—but only “where such advocacy is—
  
  1. directed to inciting or producing imminent lawless action and
  2. is likely to incite or produce such action.”
• Fighting words may be punished if likely to incite an ordinary citizen to acts of immediate physical retaliation, but—
  
  1. the speech must be more than annoying or offensive; and
  2. there must be a genuine likelihood of imminent violence by a hostile audience.

Question 17

First Amendment:

Obscene Speech (Miller Test)

Answer 17

3-Part Miller Test: Speech is obscene if it—

1. appeals only to “purient interests,”
2. describes sexual conduct in a patently offensive manner, and
3. lacks any artistic value.

• Obscene speech issues are subject to the Miller Test, i.e. the speech is unprotected if—
  
  1. the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest (a national standard is not used);
  2. work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
  3. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (national standard is used to determine this value).
  • Child pornography is unprotected speech, and it may be regulated even without satisfying the Miller test because of the state’s compelling interest to protect minor children.

Question 18

First Amendment:

Defamatory Speech

Answer 18

• Defamatory speech is not protected.
• Truth of the statements made is an absolute defense to alleged defamation.
• Constitutional restrictions apply to the regulation of defamatory speech where the plaintiff is either a public official or public figure, or where the defamatory statement involves a matter of public concern.
  
  • When the plaintiff is a public official or public figure (regardless of whether the statement is a matter of public concern), the plaintiff must prove the state law requirements of defamation, plus “actual malice,” which is knowledge of the falsity or reckless disregard of the truth or falsity of the statement.
  • When the plaintiff is a private person and the subject of the statement is a matter of public concern, the plaintiff need not prove actual malice but must prove negligence about the truth or falsity of the statement.

Question 19

First Amendment:

Commercial Speech

Answer 19

• Commercial speech is subject to rational basis review and is constitutionally protected if it—

1. is not false or deceptive; and
2. does not relate to unlawful activity.

• If commercial speech satisfies these requirements, government regulation of the speech must—
  
  1. both serve and directly advance a substantial governmental interest; and
  2. be no more broad than necessary to serve that interest.

Question 20

Public Employment:

Membership in Political Organization

Answer 20

• In general, an individual cannot be denied public employment based upon membership in a political organization unless the position is a high-level policy-making position.
• An individual may be deprived of public employment for political association, if—
  
  1. he is an active member of a subversive organization;
  2. such membership is with knowledge of the illegal aims of the organization; and
  3. the person has a specific intent to further those illegal ends.

Question 21

Advance of Publication or Utterance

Answer 21

As a general rule, the government cannot suppress or restrain speech in advance of its publication or utterance.

Question 22

Standing:

U.S. Constitution Claim

Answer 22

• To have standing, the plaintiff must show
  
  1. a direct injury or threat of imminent injury of
  2. a real and substantial dispute that
  3. touches the legal relations of the parties, and
  4. can be conclusively resolved by judicial decree.

Question 23

Levels of Scrutiny

Answer 23

• The strict scrutiny standard—
  
  • applies to the review of laws that allegedly
    
    • violate fundamental rights or
    • affect people of suspect classes, such as—
      
      • religion,
      • alienage,
      • national origin, or
      • race (and also
      • disability, under the Florida constitution); and
  • places the burden on the government to prove that the law in question is—
    
    1. narrowly tailored to serve a compelling state interest
    2. using the least restrictive means.
• The intermediate scrutiny standard—
  
  • applies to the review of laws that allegedly
    
    • affect people of quasi-suspect classes, such as—
      
      • gender or
      • illegitimacy; and
  • places the burden on the government to prove that the law in question is—
    
    1. substantially related to the achievement of an important government interest
    2. using the least broad means necessary.
• The rational basis standard—
  
  • applies to the review of laws that allegedly
    
    • violate non-fundamental rights or
    • affect people of non-suspect classes; and
  • places the burden on the plaintiff to prove that the law in question either is—
    
    1. not rationally related to any legitimate government interest and/or
    2. arbitrary or unreasonable.
    • In cases reviewed under the rational basis standard, the government generally prevails unless there is discrimination.

Question 24

Fundamental Rights

Answer 24

In Florida, fundamental rights include—

• the right to interstate travel,
• right to vote,
• right to privacy,
• First Amendment rights,
• sexual orientation,
• ontraception,
• abortion,
• marriage,
• possess obscenity,
• educational rights,
• religious rights,
• the right to death, and
• the right to work.

Question 25

Right to Discovery

Answer 25

The Florida Rules of Civil Procedure provide parties to litigation the right to discovery of information—a broad rule that entitles the parties to any relevant information.

• Thus, even documents that are inadmissible in litigation must be produced if deemed discoverable insofar as they—

1. are relevant to the issues of a particular litigation and
2. may lead to the discovery of admissible evidence.

Question 26

Access to Public Records

Answer 26

• The Florida Constitution ensures public access to public records, unless exempted.
  
  • Under Florida law, the records and meetings of the governing board of a private corporation that leases a public hospital are confidential when two conditions are met:
    
    • The public lessor complies with public finance accountability provisions regarding transfer of public funds to a private lessee; and
    • the private lessee meets at least three of the five listed criteria:
      
      • public lessor not incorporator of private corporation,
      • no commingling of funds,
      • private corporation not allowed special participation in lessor’s decision making,
      • no express disclosure requirement in lease, and
      • lessor receives no funds beyond rent and is indemnified.
  • Florida’s Sunshine Law makes meetings of boards or commissions of state agencies, county authorities, municipal corporations, or political subdivisions that conduct official actions open to the public
    
    • It also requires prompt recording of meeting minutes, which the public may inspect
    • It only allows closure to the public when an entity is discussing litigation with its lawyers
      
      • It does not address whether government officials are required to disclose the names of members of governmental entities

Question 27

Standing:

Florida Claim

Answer 27

In Florida, an individual must establish standing as a prerequisite to challenging a law, requiring proof of—

1. a distinct injury and
2. the nature of the wrong that will negatively affect him in a manner distinct from anyone else similarly situated.