Individual Rights Flashcards
State Action apparent in:
- Direct state action - laws, acts of state officials
- Public function: a private actor does acts that are traditionally and exclusively done by government
- State involvement: significant state involvment in private conduct (assistance, encouragement, supervision, approval)
Procedural Due Process
Elements (3)
- Notice: reasonably calculated to inform
-
Opportunity to be heard
- Extent of process depends on seriousness
-
Neutral decisionmaker
- No actual or serious risk of bias
Sources of procedural due process: 5th A federal government; 14th A state
Applies whenever an intentional deprivation of _liberty (_freedoms or constitutional rights) or property (real & personal, and that which individual has reasonable expectation of continued receipt).
Equal Protection:
Levels of Scrutiny
-
Rational Basis: must be rationally related to a legitimate gov’t interest
- Burden on challenger; laws are presumptively valid
-
Intermediate Scrutiny: must be substantially related to important gov’t interest
- burden on state; no presumption
-
Strict Scrutiny: must be narrowly tailored to satisfy compelling state interest
- burden on state; presumptively invalid
Equal Protection:
Suspect Classifications for 14th A analysis
- Race
- National Origin
- Alienage classifications (unrelated to immigration or democratic govnance)
- Denial of fundamental rights
Equal Protection/Substantive Due Process
Fundamental Rights Subj to Strict Scrutiny (7)
- Marriage & divorce
- Procreation
- Contraception
- Upbringing of children
- Living with extended family
- Interstate travel
- Voting
Generally: anything deeply rooted in history/tradition; implicit in concept of ordered liberty; deemed fundamental by reason, judgment or new insight
But: restrictions to protect, rather than hinder, may be upheld on rational basis
Takings
Definition
Government may not take private property UNLESS
- For public use
- Just compensation
Taking may be physical (confiscation, or permanent occupation) or regulatory (leaving zero economic use of property).
1 A Free Speech:
Categories of unprotected speech (7)
- Incitement
- Fighting Words
- Threats
- Obscenity
- Child Pornography
- Defamation w/ malice
- False, misleading, or illegal commercial speech
1 A Free Speech:
Incitement test (2 prong)
Speech is (unprotected) incitement when:
- Intended to produce imminent lawless action
- Likely to produce imminent lawless action
1 A Free Speech:
Obscenity Test (3 prongs)
Speech is (unprotected) obscenity if:
- Appeals to the purient interest in sex (local standard)
- Is patently offensive (local standard)
- Lacks serious social, artistic, literary, political, or scientific merit (national standard)
1 A Free Speech:
Public/private officials or concerns: defamation malice requirement & damages
Framework: plaintiff and subject matter determine if actual malice in defamation matters must be proven, and what damages are recoverable.
- Public officials/public figures: requires actual malice; any damages
- Private figure, public concern: requires actual malice; presumed and punitive
- Private figure, concern: no 1A element; question of tort law; any
1 A Free Speech
Partial Protection of Commercial Speech test (level of scrutiny)
Applies intermediate scrutiny
For commercial speech that isn’t false, misleading, or illegal, commercial speech is protected unless:
- Restriction serves a substantial government interest;
- Restriction is narrowly tailored/least restrictive
1 A Free Speech
General restrictions on free speech: levels of scrutiny
Not public property, schools, or public employees:
Level of scrutiny for general speech restriction depends on whether it targets specific conent, or is content-neutral:
Content-based restriction: strict scrutiny (restriction must serve compelling interest and be narrowly tailored/least restrictive)
Cotnent-neutral restriction: intermediate scrutiny (content must serve important interest and not be substantially overbroad)
1 A Free Speech
Speech restrictions on government property
Key: where does restriction apply to?
Traditional public forum/designated public forum: look to whether restriction is content-based, or content neutral:
- Content-based: must be narrowly tailored to meet compelling gov’t interest
- Content-neutral: must be narrowly tailored to meet important gov’t interest
Non-public forum: restriction is valid if reasonable given nature of forum: note that any viewpoint-based restrictions are subject to heightened strict scrutiny
1 A Free Speech
Speech restrictions in schools
Personal student speech: cannot be censored absent substantial disruption
School speech: may be censored if reasonably related to pedagological concern
- Note: includes school newspapers, student council, cheerleading, etc
1 A Free Speech
Speech restrictions on government employees
Protected speech:
- Private concern, outside work
- Public concern, as citizen
Unprotected speech:
- Matters of private concern at workplace
- Public concern, pursuant to official duties
- unprotected speech restrictions subject to balancing test: value of speech vs. state interest in efficency
