Just Con law II tests

Question 1

Test for voting rights restrictions

Answer 1

Crawford balancing test (really an ends-means test)(Sliding scale of scrutiny)

Neutral voting restriction: burden on voting vs other reasons.
The more of a burden on voting, the tougher the court will be.

Question 2

Test for Fundamental Rights infringement

Answer 2

1. Is it fundamental?
2. Was the right infringed?
3. Did the government have a Sufficient End in infringing?
4. Did the Means sufficiently fit the End?

Question 3

Procedural DP generally

Answer 3

(i) Notice,
(ii) opportunity to be heard,
(iii) meaningful time and manner

Question 4

Mathews v. Eldridge Procedural DP test

Answer 4

1. the private interest that will be affected by the government action;
2. the risk of an erroneous deprivation of the private interest based on procedures used by government, and the probable value, if any, of additional or substitute procedural safeguards;
3. the government’s interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail

Question 5

Procedural DP Analysis Three Levels

Answer 5

First, whether government has “deprived” life, liberty, or property?
Second, whether deprivation is of “life, liberty, or property”?
Third, what process is due (and when)? (Mathew v Eldridge)

Question 6

Procedural DP: Has government “deprived” life, liberty, or property? test

Answer 6

1. Must be intentional or at least reckless government action (negligence is not enough)
2. In emergency circumstances: whether government’s conduct “shocks the conscience”
3. Otherwise (non-emergency): whether government’s conduct shows “deliberate indifference”

BUT, Government has no duty to protect us from private harm (e.g. child abuse, domestic violence)

Question 7

Procedural Due Process Property Interests:

Answer 7

Taking away your real property but tricky question is government benefits

Test:

1. ”legitimate claim of entitlement” and/or
2. “reasonable expectation to continued receipt” based on
3. “existing rules or understandings that stem from an independent source such as state law.”

Examples: no property interest in year-to-year employment of teacher (Board of Regents v. Roth)
but property interest found where expectation of tenure was established (Perry v. Sinderman)

Question 8

Homebuilding and Loan Association v Blaisdell

Answer 8

Massive farm foreclosures happening. State came in and prevented foreclosures temporarily.
Court said it was okay due to emergency circumstances
1. Legitimate end?
2. Means reasonable and appropriate to end?
3. Conditions reasonable
4. Temporary relief, not permanent

Question 9

Energy Reserve contracts clause test

Answer 9

EMERGENCY IS NOT A FACTOR! Police power over special interests.

1. Has a state or local government impaired with existing contracts?
2. Is the impairment for a legitimate government purpose?
3. Are the means reasonable and appropriate for furthering the ends?

Question 10

Takings clause rule

Answer 10

1. Is there a taking of property?
2. Is it being taken for a public use?
3. And if so, is just compensation being paid?

Question 11

Penn Station factors (takings)

Answer 11

1. Economic impact of the regulation
2. The extent to which to regulation has interfered with investment-backed expectations
3. Character of the governmental action
   a. Duration

Question 12

Conditions (takings) test

Answer 12

“You can do X to your property if you give us Y”

Must be a NEXUS between the interest and the regulation proposed (Nolan, bigger house for beach path not related)
ROUGH PROPORTIONALITY is the test (Dolan, required land dedications are necessary to offset the impact of development)

Question 13

Taking of Property Flow

Answer 13

Physical/Possessory = Per Se

Regulatory
All Reasonable Economic use
Some Decrease Economic value → Penn Central Factors
Conditions - Nexus + Rough Proportionality

Question 14

Standard of review for SDP in economic or privacy

Answer 14

1. Adequate justification for infringement?
2. Two main categories under sdp:
   a. Economic liberty? Not fundamental → RB
   b. Privacy? → DEPENDS

Question 15

Framework for analyzing fundamental right questions with strict scrutiny

Answer 15

1. Is there a fundamental right?
   - -> If not fundamental, rational basis.
   - -> Defer to legislature unless it affects a “discrete and insular” minority or infringement of a fundamental right
2. Is the constitutional right infringed?
   - -> Direct and Substantial
3. Is there sufficient justification for the government infringement of a right?
   - ->“Vital interest” which has included winning a war and ensuring children receive adequate care
   - ->“Compelling”
4. Is the means sufficiently related to the purpose?
   - ->“Necessary”

Question 16

Moore v City of East Cleveland

Answer 16

Rule: The right of related family members to live together is fundamental and protected by the Due Process Clause, and necessarily encompasses a broader definition of “family” than just members of the nuclear family. (Strict-ish scrutiny)

Only RATIONAL BASIS for UNRELATED people (Bel terre)

Question 17

Griswold v Connecticut

Answer 17

Right not to procreate, contraception

The protected activities in each of these Amendments are “penumbras” that are not specifically enumerated in the Constitution, but instead represent various “zones of privacy” into which the government cannot intrude.

Question 18

Undue burden test

Answer 18

Purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus (Casey)

LESS than strict scrutiny

Question 19

Examples of Undue Burdens (SDP, abortion)

Answer 19

Spousal Consent
Admitting privileges at nearby hospitals
Surgical Center Requirements

Question 20

Examples of Not an Undue Burden (abortion)

Answer 20

Informed consent (and persuasion)
Waiting period
Parental or judicial consent for minors
Licensed physicians
Ban on late-term method - “partial birth ban”
Ban on public funding

Question 21

Overruling Precedent (from Casey)

Answer 21

Workable? (whether the precedent’s rules or standards are too difficult for lower federal courts or other interpreters to apply)
Reliance on it?
Changes in facts?
Changes in law?

Question 22

Abortion generally

Answer 22

Before viability = no undue burden. After viability = state may go as far as banning abortion (Roe/Casey)

Ginsburg even thinks restrictions would fail RB one day

Question 23

Cruzan v Director Test (refusing medical treatment)

Answer 23

Not fundamental right but “Liberty interest” in refusing medical treatment if cognitively competent

If not not competent:
Balancing Test:
Liberty interests of the patient
Interests of the state

Question 24

Free Speech Why?

Answer 24

Truth, Democracy (self-governance), Liberty (autonomy), Equality

DO NOT IGNORE THIS! Kagan concurrence in Gilbert asked

Question 25

Exceptions to content and viewpoint restrictions

Answer 25

Generally, no content-based or viewpoint-based restrictions

Exceptions:

(i) Incitement;
(ii) Fighting Words (hate speech?);
(iii) True Threats;
(iv) Obscenity;
(v) Commercial Speech;
(vi) Tort Recovery;
(vii) Communicative Conduct

Question 26

Basic Free Speech How list (general free speech restrictions and rules)

Answer 26

(i) Content and Viewpoint Neutral;
(ii) No Compelling Speech (loyalty oath)
(iii) No Vague or Overbroad restrictions;
(iv) No Unconstitutional Conditions
(v) No Prior Restraint unless important interest, clear criteria, process safeguards
(vi) Time Place Manner ok (if narrowly tailored to significant; ample alternatives)
(vii) Public Forum protected via TPM/PR; Limited/non-public (reasonable/neutral)

Question 27

Strict scrutiny

Answer 27

compelling end + necessary or least restrictive means

Question 28

Free Speech Winning claims to Content/Viewpoint prohibitions (not exception list)

Answer 28

Not content/viewpoint based → If so, Strict Scrutiny
Unless meets strict scrutiny (Judges soliciting funds)
Unless aimed at “secondary effects” (Renton, adult entertainment) –> Intermediate scrutiny
Unless unavoidable funding $ decisions (Finley)
Unless “government speech”

Question 29

Government speech elements

Answer 29

Can be based on content/viewpoint and can favor some over others.
Summum: Government purpose of conveying a message, and effect of conveying a message.

Walker: government speech on matters:

(i) History of how government speaks through it
(ii) Speech closely identified with the government
(iii) Government has Direct control over the message

Question 30

Collateral bar rule

Answer 30

If you violate a court order, you then can’t challenge its constitutionality
–>”Unfettered discretion” however may make it still so unconstitutional it must be challenged

ex. MLK marched anyways despite court order not to, despite clear 1A violation

Question 31

Licensing allowed if (prior restraint)

Answer 31

1. Important reason for licensing
2. Clear criteria. –> No discretion to licensing authority (Narrow, objective, and definite standards)
3. Procedural safeguards

No unfettered discretion
distinguish from collateral bar, violating licensing requirement is not violating a court order

Question 32

Content + public forum standard of review

Answer 32

STRICT SCRUTINY!

Question 33

PUBLIC FORUM CATEGORIES

Answer 33

1. Traditional public forum (traditionally open to public expression)
2. Designated public forum (not traditionally, but intentionally open to public expression)
3. Limited public forum (opened only for certain groups or certain topics) (ie public university (tricky, as if opened to all may change this))
4. Nonpublic forum (not opened; gov’t merely acting as proprietor—not regulator—managing internal operations) (federal mint, other places gov owns)

Question 34

Factors to determine type of Public Forum

Answer 34

1. Traditional use of forum;
2. Purpose of forum;
3. Compatibility of speech with function of forum

Look at facts in context for analysis, very important

Question 35

TPM restrictions on public forums

Answer 35

Also, government is allowed to impose reasonable Time, Place, or Manner (TPM) restriction in public forum if it is

1. narrowly tailored to serve important or significant government interest and
2. leaves open adequate alternative channel of communication

Question 36

Time Place Manner test

Answer 36

1. Content neutral
2. Narrowly tailored
3. Important/Significant gov interest
4. Leave open ample alt channels for communication of the information

Question 37

Licensing or Permit Test

Answer 37

1. Serve an important purpose (easy to meet)

2. Clear criteria for decision makers that leaves almost no discretion

Question 38

May regulate speech in public forums when

Answer 38

(1) regulation is content-neutral (if content-based, apply strict);
(2) regulation is reasonable Time, Place, and Manner restriction that serves important government interest and leaves open adequate alternative channels of communication;
(3) any Prior Restraint (such as licensing or permit requirement) provides clear criteria for guiding discretion; and
(4) regulation is narrowly tailored to achieving significant gov’t interest (but need not be least restrictive alternative).

Question 39

Speech in public schools

Answer 39

Tinker (students do not shed right to free speech at schoolhouse gate,
but see Fraser (schools may regulate sexual speech to inculcate moral values), Hazelwood (schools may censor school-sponsored articles about pregnancy/divorce to further curriculum, protect immature students, disassociate school from speech), Morse (schools may censor speech promoting illegal drugs)

3. Government Employees—may speak on matters of public concern if importance of employee speech outweighs need for government to prohibit the employee’s speech (Pickering balancing test); but no First Amendment protection for on-the-job speech related to official duties (Garcetii)

Question 40

Charges for speaking? (charges for permit)

Answer 40

No fee to speak (likely) (not super resolved) (ie protests and marching)

Could have same effect as ban, but also not required to subsidize

Question 41

Narrowly tailored test for TPM

Answer 41

If a substantial portion of the burden on speech does not advance the goals, then it is not narrowly tailored (not substantially broader than necessary)

However, you DON’T have to be the least restrictive alternative

(Ward v Rock Against Racism)

Question 42

Test for lower public forums (limited, non-public)

Answer 42

Law or restriction must be:

1. Reasonable
2. Viewpoint neutral

(Hastings (all groups must be open to all))

Question 43

Brandenburg Test for incitement

Answer 43

1. Intent to Incite
2. Imminent Lawless action
3. Likelihood of that occurring

Until all three are met, speech is protected

(Careful of political hyperbole, is protected)

Question 44

Fighting words test (Chaplinsky)

Answer 44

Those by which their very utterance inflict injury or tend to incite an immediate breach of the peace

Exceptions:

1. Has to be specific. Too broad or general aren’t fighting words.
2. If the law is vague or overbroad it won’t be allowed
3. Fighting words based on viewpoint cannot be restricted (helps hate speech) (R.A.V.)
4. No danger of unrest so long as the police do their job (presumption of police presence)

Bottom line: very little will be a fighting word. Court never upheld a fighting word conviction after Chaplinsky.
True threats must be specific and said and someone must have felt the threat. Victim must be in fear of harm or death.

Question 45

Speaker before hostile audience rule

Answer 45

1. Deference to the speaker

2. UNTIL (so long as cops doing job right) about to be a riot or get out of control (Feiner)

Question 46

True Threat rule

Answer 46

A serious expression of an intent to commit an act of a lawful violence to a particular individual or group of individuals and it’s unprotected speech.

Question 47

Miller test (obscenity)

Answer 47

(a) Prurient: whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
(b) Patently Offensive: whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) Lacks Serious Value: whether the work, taken as a whole, based on national standard, lacks serious literary, artistic, political, or scientific value;

Question 48

Nine elements of obscenity broken down from Miller

Answer 48

NEED ALL NINE ELEMENTS

1. Avg person
2. Contemporary com standards (community standards)
3. Taken as a whole (not just one scene)
4. Incites lust (local standards)
5. Patently offensive (not subjective)
6. Shows sexual conduct
7. Specifically prohibited by a statute
8. Taken as a whole (national standard)
9. Lack serious social value (national standard)

Question 49

Commercial Speech RULES

Answer 49

Commercial speech test

1. Lawful and not misleading speech
2. Substantial government interest
3. Regulation means need to directly advance the ends
4. Regulation is not more extensive than necessary (does not have to be least restrict alternative)

Court struck down bans on ads of price of alcohol and various ads of tobacco; upheld requiring lawyers advertising contingency fee to disclose that clients would be liable for costs (Zauderer)

STILL NO CONTENT/VIEWPOINT DISCRIMINATION!

But see, Sorrel (doctor prescription) (too much targeting of content or speakers and give it a strict analysis, and/or apply the test with a heavier hand)

Question 50

New York Times Co. v. Sullivan rule for defamation

Answer 50

1. Plaintiff is a public official or candidate or public figure
2. Plaintiff must prove their case with clear and convincing evidence
3. Prove falsity (fact, not just opinion)
4. Prove actual malice (subjective, not reasonable person. Need proof that the person who published the falsehood knew to some degree. Actual malice occurs when the defendant knew that the statement was false or acted with reckless disregard of the truth.)

Note: Private individuals do not have the same avenues of communication to defend themselves. States left to determine this. Still need to prove actual malice for presumed or punitive damages.

Question 51

Private person being defamed

Answer 51

Matter of public concern: may recover compensatory damages upon showing of at least negligence
but must prove actual malice to recover presumed or punitive damages;

Private matter: may recover compensatory and punitive damages upon meeting state’s standard of liability (e.g., negligence).

Question 52

IIED

Answer 52

Government may not impose IIED liability for outrageous or offensive speech
(e.g., Hustler first-time-sex parody; Snyder anti-gay picketing at funeral).

Question 53

Cox Broadcasting Corp. v. Cohn (rape case, 1A) test

Answer 53

A private plaintiff does not have a right to be free from unwanted publicity about his private affairs if the information is true and otherwise available through public records.

press published protected:

1. Truthful info
2. Lawfully obtained

seems like strict scrutiny (not explicit) (press shouldn’t have actual malice, they’re reporting(commentary from Nice))

Question 54

O’Brien 4-part test: (prohibiting communicative conduct)

Answer 54

1. Regulation within constitutional power
2. Serving important or substantial interest
3. Unrelated to suppression
4. No greater than is essential (but not least restrictive)

ex. burning draft cards could be punished

Question 55

Thornburgh v. Abbott (1A prison publications test)

Answer 55

Prison controlling materials which come in

Reasonableness inquiry:
Under the First Amendment, the government may constitutionally limit the types of outside publications available to prisoners if:

1. doing so promotes a legitimate and neutral objective, and
2. the regulation is rationally related to that objective.

kinda rational basis

Question 56

1A school censoring test

Answer 56

Schools can censor only if:

1. The speech materially and substantially interferes or disrupts the operation of the school.
2. There is evidence of interference with the rights of other students to be secure or let alone

With exceptions

Neither students nor teachers shed their First Amendment rights at the door of the schoolhouse. “At the schoolhouse gates.” (Tinker)

Question 57

What can be restricted in schools: (1A)

Answer 57

1. Indecent or lewd speech in school can be regulated (Bethel)
2. School can regulate anything about illegal drug use (Morse)
3. Reasonably perceived to bear the imprimatur of the school (Hazelwood)
4. Anything that materially or substantially disrupts the school or invades the rights of others. (Tinker)

Mainly school’s interests weaken but don’t disappear when conduct is outside of school.

Question 58

Government employee test

Answer 58

Employees for government can:

1. Speak as a private citizen
2. On a matter of public concern
3. And balancing test: whether importance of speech outweighs the government’s need to regulate or restrict that speech

Garcetti: Takes away all first amendment protections for on-the-job speech. But, Garcetti does not apply if the employee is responding to a subpoena. (lane)

Question 59

Two Types of Freedom of Association:

Answer 59

1. Intimate
   Consider size, selectivity, seclusion (e.g., family)
2. Expressive

Types of Infringements by government:

• Punishing membership
• Requiring disclosure of members
• Compelling association
• Prohibiting discrimination

Question 60

Punishing Membership (1A freedom association) test

Answer 60

Gov can punish but Gov must prove:

1. Active affiliation
2. Knowledge that the association or group is pursuing illegal objectives
3. Specific intent to further that activity

“Likely to occur” is not present here, just illegal intent!
But still a difficult test to meet, third prong still important.
Can advocate overthrow of government, but can’t plan it

Question 61

Overruling stare decisis test

Answer 61

1. Quality of reasoning
2. Workability
3. Recent developments
4. Reliance on old decision

Question 62

Belief in relation to a supreme being test

Answer 62

“Whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.”

i. Sincerity is enough
ii. Individual idea is enough
iii. Role belief plays in life

Question 63

Targeting religion test (1A)

Answer 63

Neutral law of general applicability: No strict scrutiny, basically rational basis

If targeting religion: Back into strict scrutiny

Question 64

RFRA (1990)

Answer 64

Congress mandated strict scrutiny for substantial burdens of religious exercise, trying to override Smith’s rational basis for neutral, generally applicable laws

Still only applies to Feds

Question 65

RLUIPA (2000)

Answer 65

Congress re-imposed strict scrutiny for state/local burdens on religious exercise re: land-use regulation and institutionalized persons

Question 66

Funding and religion (1A establishment)

Answer 66

Funding religious activities doesn’t violate the establishment clause

Question 67

Government doing something that favors religion test

Answer 67

If Discrimination (not neutral) –> Strict Scrutiny

If Non-Discrimination (neutral on face) → Lemon 3-part test:

1. Secular purpose (Can’t be for religious favoring purpose)
2. Neither advances nor inhibits religion (Effects test)
3. Entanglement (no “excessive entanglement”)
   a. Character and purposes of institutions benefitted
   b. Nature of the aid, and
   c. the resulting relationship between the government and that religious authority

Question 68

Intermediate scrutiny

Answer 68

further an important government interest

and must do so by means that are substantially related to that interest.

Question 69

Tests for both types of public forum

Answer 69

Traditional forum speech prohibition: STRICT SCRUTINY:

Limited: Restrictions allowed if (i) REASONABLE and (ii) VIEWPOINT NEUTRAL

Question 70

Free speech secondary effects test

Answer 70

Exception to content discrimination essentially. Banning content not BECAUSE of content, but for its “secondary effects”

Must be

1. ”truly unrelated” to protect speech. and
2. “unique to the speech suppressed as to the speech allowed”

Essentially must be narrowly tailored

Question 71

Funding exception

Answer 71

When government intertwines itself in something where funding choices are made, there is an exception to content choices. Neutrality is impossible. NOT strict scrutiny, softer scrutiny.

Question 72

No Compelled Speech

Answer 72

Government may not directly compel speech;
requiring students to salute flag (Barnette),
requiring veterans to sign loyalty oath (Speiser),
requiring New Hampshire motorists to display “Live Free or Die” on license plate;

Could it just be a tax? (beef case)
Is it just funding? (Solomon, recruiters law school)

Question 73

Communicative conduct (test to determine if it is)

Answer 73

1. inherently expressive
2. with speaker intending to convey message
3. that is likely to be understood

Question 74

Profane speech rule

Answer 74

Generally, profane or indecent speech that is not obscene is protected

Needs to be some invasion of privacy, unlikely to fly

Question 75

IIED elements (just in case)

Answer 75

(1) the defendant must act intentionally or recklessly; (2) the defendant’s conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress.

Government can’t use it against profanity or absurd speech
(e.g., Hustler first-time-sex parody; Snyder anti-gay picketing at funeral).

Question 76

Freedom of Association and conduct (test)

Answer 76

EXPRESSIVE association then needs to go through communicative conduct rules

Generally, gov’t may regulate Expressive Association if justified by

1. compelling interest,
2. unrelated to suppression of ideas,
3. which cannot be achieved through significantly less restrictive means

ie. force women, but not gays

Question 77

Watch out for content within content exceptions for:

Answer 77

Inciting speech/True Threat etc
Commercial Speech (doctors)

Question 78

Ministerial exception

Answer 78

Churches get to decide who their pastors are (mostly) (can exempt women whatever)

Question 79

Substantive Due Process

Answer 79

A. General framework:

1. Fundamental Right? (if deeply rooted in nation’s history and tradition or implicit in concept of ordered liberty); otherwise basic liberty interest
2. Extent of Infringement? (substantial—not merely incidental—burden)
3. Sufficient government end? + 4. Means sufficiently related to end?