Procedural Due Process & First Amendment

Question 1

Procedural Due Process

Answer 1

If the government attempts to deprive life, liberty, or property, they must first give one due process in the form of a notice and hearing in front of a neutral decision maker.

Question 2

PDP Deprivation

Answer 2

A deprivation must be deliberate and have intent to cause harm
One is not entitled to anything from the Constitution, its a restrictive document, not a proscriptive document. There is no positive duty of the government to do anything.

Question 3

Is the deprivation of life, liberty or property?

Answer 3

Life: taking away someone’s right to life or living.

Liberty: Physical liberty, physical imprisonment or limitation of movement. Prisoners have limited due process rights, generally in the form of parole.
Intangible liberty, freedom to engage in certain activities (i.e. right to drive, right to raise a family, etc.)

Property:

• Someone must be taken away. One must have a legitimate claim of entitlement to the interest of that property
• Government entitlements that are already granted are considered property rights and cannot be revoked unless one is given due process (theyre relying on it)
• Deprivation of reputation alone is not considered to be properly deprivation

-One is entitled to notice and a hearing in front of a neutral fact-finder

Question 4

Matthews balancing test

Answer 4

to determine the level of due process required, balanced against the burden of the government

• What is the private interest affected?
• What is the risk of the government making a mistake and the probative value of procedural safeguards
• What is the government’s interest?

Question 5

First Amendment

Answer 5

Free speech is necessary because:

• It furthers self-government
• it is an aid in the discovery of truth
• it promotes autonomy, and
• it fosters tolerance
• Subject matter based laws prohibit a subject. (it matters what the demonstration is about)
• Regardless of the type of speech, the government may not banish one viewpoint.

Question 6

First Amendment level of scrutiny

Answer 6

Strict scrutiny is used if the restriction is content based ( the government is regulating the content of the speech)
The restriction must be:
-narrowly tailored, in that there should not be a less restrictive alternative
-to achieve a compelling government interest
The Burden is always on the government.

Question 7

First Amendment Content

Answer 7

If it is content-neutral, then it must be both subject matter based and viewpoint neutral.

Intermediate scrutiny is used if the restriction is content-neutral (the government is not regulating the content of the speech)
Must be subject matter neutral and viewpoint neutral.
-Subject matter neutral laws cannot prohibit any subject (i.e. it does not matter what the protest is about.)
-Viewpoint neutral laws cannot take a side of an issue. (i.e. it does not matter if one is demonstrating for or against something.
The restriction must be:
-closely tailored to advance
-a substantial government interest unrelated to free speech and
-does not substantially burden any kind of other speech.

Question 8

First Amendment Secondary Effects

Answer 8

The government can argue that a restriction regulates conduct and is content neutral by saying that it goes to regulating secondary effects (cant make content based distinctions
Generally are sexual-based material, such as nude dancing, etc.
The government only needs rational basis

Question 9

Government officials

Answer 9

Govt officials’ speech can be restricted if the speech is about the govt while officials are at work

Question 10

Pure Political speech

Answer 10

Is protected