Pg 32 Flashcards
What is the right of sexual privacy under the equal protection clause?
This isn’t specifically mentioned in the constitution, but it is upheld because the first amendment has penumbra where there is protection from government intrusion. Any form of association that is not political that has social, legal, or economic benefits for its members is protected
Can a state criminalize choices made with regard to contraception under the equal protection clause?
No because this involves the fundamental right of the decision to bear a child which is included in the right of sexual privacy
Before viability of a fetus, the woman has a right to terminate and any state law would be unconstitutional if it does what?
Unduly burdens that termination right
Is it possible for a state to make private, consensual sexual conduct a crime?
No because intimate conduct cannot be intruded into by the public. There’s a fundamental right to be free from government interference in the intimacy of your own home. Although there is a debate about whether strict scrutiny or rational basis applies to this.
If on an essay it is not clear, first argue strict scrutiny, then say that by the way it doesn’t even meet the rational basis test, so there would be no difference between the tests that are use since the state cannot do this
Is it possible to have fornication laws that forbid sexual relations outside of marriage?
No
If a class interferes with the right to marry, what standard is applied under the equal protection clause?
Strict scrutiny
If a challenged class does not significantly interfere with the decision to marry, what standard is applied under the equal protection clause?
Rationality review
Is there a constitutionally protected right to vote?
No
States have broad power to define residence, age, citizen qualifications, and can fill offices by appointment or election, but if they grant the franchise, then equality of access is required. It is important to have non-discriminatory participation in the electoral process, so strict scrutiny would apply
Is it possible for a state to have poll taxes for when people vote?
No, that violates the equal protection clause
Is it OK for a state to require that voters present government identification before they vote?
Yes, the state can require voters to present government ID in order to prevent fraud. Evenhanded regulations meant to protect the integrity or reliability of the electoral process are fine
Is it possible for a state classification to restrict the voting franchise based on residence, age, or citizenship?
Yes, but only if the state has a compelling state interest that can be shown
If there’s a special interest election for something of limited purpose that has a disproportionate effect on people and doesn’t require an exercise of general government powers, is it possible for the franchise to be limited?
Yes, it can be limited to those special interests that are reasonably related to achieving the statutory objections
If an electoral scheme is meant to burden the effectiveness of votes of particular classes of voters such as a racially discriminatory policy that limits the access of candidates and parties to the ballot, is that OK under the equal protection clause?
You must ask if the restriction unfairly or unnecessarily burdens the availability of political opportunity
If economic obstacles like fee requirements limit access to the criminal or civil justice system, is that OK under the equal protection clause?
No, so the state must give free transcripts to indigents if that is required for appellate review, and cannot have imprisonment be an alternative to paying a fine.
States must give access to its courts regardless of the ability of people to pay court fees. The idea is that it’s not OK to shut out prospective parties because they can’t pay court fees.
What is the guarantee clause of the Constitution?
Meant to prevent states from becoming monarchies, dictatorships, or anarchies. This guarantees every state has a republican form of government and protection from invasion.
What amendment does freedom of speech fall under?
The first
What is freedom of speech?
The first amendment says that governments have no power to restrict expression because of its message, ideas, subject matter, or content. This applies to the federal government and the states through the 14th amendment. This doesn’t prohibit all laws that restrict communication.
What does the first amendment always come down to when it involves freedom of speech?
Content versus time, place, manner
What is the rationale behind the first amendment’s freedom of speech?
Laws that limit freedom of expression are subject to strict or judicial scrutiny. This is meant for dissenters and unpopular speech that we don’t like to hear but maybe need to hear.
What are different categories of speech under freedom of speech?
- Subversive
– Obscene
– speech of broadcast media or traditional print media
– libelous speech
– speech affecting associational rights
– before hostile audiences
– symbolic speech
– speech that affects the right to a fair trial
– speech associated with rights of assembly and petition
What are the protections for public speech and private speech under the first amendment’s freedom of speech?
– Public speech: speech involving the political arena. This is absolutely protected
– speech involving private life: not absolutely protected
If a law is vague, is it allowed?
All laws must give a fair notice to people before making an activity criminal. If a law is vague, it might deter people from engaging and protected activities.
What is the test for legislation that restricts free-speech?
The least restrictive means test. Legislation must use means that are the least restrictive to free speech.
How do you know if a law is too vague?
If a person of common intelligence can’t know what behaviour it prohibits, the law is too vague and is unconstitutional on its face. Laws must be made with sufficient clarity to inform people of the conduct that they must take to avoid sanction. If it is not specific enough, then protective expression can be chilled or suppressed by it and that is not OK
What is the difference between a facial challenge to a law and an “as applied challenge“ to a law under the first?
– Facial challenge: this means “on its face”. The plaintiff argues that the law is totally invalid, so it cannot be upheld. This includes statutory language and the way that courts and authorities have interpreted the language. Courts strike laws that are vague or substantially over broad.
- as applied challenge: the law is technically valid on its face, but not as applied in a specific case. For example: a law that movie theatres cannot show “dirty movies“ and the court says that means obscenity. When the plaintiff’s theatre shows a movie that is considered dirty and he gets charged for it, he could argue that the show won best picture and has serious artistic value, so it cannot fit in the obscenity category
When do you find facial challenges and “as applied” challenges to laws?
If the law is too vague under the first amendment
What happens when a law is over broad under the first amendment?
Overbroad laws say what they prohibit, but they cover too much, so the law prohibits behavior that is actually constitutionally protected.
Ie: law that prohibits three or more people from congregating on the street and being “annoying“ is vague or overbroad.
If a law prohibits conduct and not just speech, what is required for it to be considered overbroad?
The overbreadth must be substantial in relation to its plainly legitimate sweep in order for overbreadth to apply.
Statutes should only fail if they are substantially overbroad, otherwise they don’t have an inhibitory effect. If a court strikes a statute for being overbroad, the court is saying that the statue is so sweeping it would deter people from engaging in protected speech. If the court says there’s little chance the statute will deter constitutionally protected speech, they will uphold the law
If a law is under inclusive is it upheld?
No this is prohibited because the government should proscribe all speech or no speech in certain categories
