Rights/Limits Flashcards
Free Speech Framework
- Is there speech involved?
- pure speech- verbal communication
- expressive conduct
- intent to convey a message?
- great likelihood that viewers would understand the message?
- verbal communication
- Applicable Law?
- Content-Based- does it regulate speech on the basis of subject matter/viewpoint/content
- Content-Neutral
- does it regulate conduct?
* O’Brien Test - Time/Place/Manner
* Ward TPM
* intermediate Scrutiny
- does it regulate conduct?
O’Brien Test (intermediate scrutiny)
- w/in the constitutional power of the gov
- furthers an important or substantial gov interest
- the gov interest is unrelated to the suppression of speech
- incidental restriction no greater than necessary
time/place/manner test
- Restrictions may be imposed on the time, place, or manner of protected speech provided that the restrictions are:
- Justified without reference to content of the speech
- Narrowly tailored to serve significant government interest
- Leaves open ample alternative channels for communication
Content Based Analysis
- Is the content protected/unprotected?
Unprotected = Rational Basis Test
- ex. fighting words (narrow), obscenity
Protected = Strict Scrutiny
1. does the gov have a compelling interest?
2. Is the law narrowly tailored?
Fighting Words
- Words which produce a clear and present danger are unprotected (fighting words),
- words which invite dispute and even cause unrest are protected (not fighting words)
Burden of proof for content neutral free speech violation?
- burden on the challenger
(rational basis, TPM)
Burden of proof for content based free speech violation
- burden on the state
(strict scrutiny) - highest scrutiny
3 categories of student speech that schools may regulate
- indecent, lewd, or vulgar speech uttered during school assembly on school grounds
- speech promoting illegal drug use during class trip
- speech that others may reasonably perceive as bearing the imprimatur of the school such as that appearing in a school-sponsored newspaper
3 features that diminish the strength of the educational characteristics
- When off-campus, the school will not stand in loco parentis
- Regulations of off-campus speech PLUS regulation of on-campus speech, then include ALL off the students speech throughout a 24hr period
- The school should have an interest in protecting a students right to voice their mind
factors considered in free speech in the school context
- schools interest in teaching good manners
- prevent disruption in classroom, or extracurricular activity
- concern for team morale
Right to bear arms test
- Is this behavior (publicly carrying a handgun) protected by 2nd amendment?
- Is this kind of regulation something that historically would be protected?
Commerce Clause 3 categories
- Channels of interstate commerce:
the interstate transportation routes which persons or goods move. - Instrumentality, person or thing:
the people and things themselves moving in commerce. - Intrastate activity that substantially affects interstate commerce:
Congress’ power to regulate activities that affect commerce enables it to reach wholly intrastate conduct (Conduct that utilizes neither the channels nor the instrumentalities) but only it has substantial relation to interstate commerce.
Non-Economic, Non-Deferential factor test
- Jurisdictional element
- Congressional findings (that there’s impact on commerce)
- Sufficiently attenuated governments arguments
*How attenuated is the argument? - Is what is being regulated a traditional state area?
* Aka. Typically left to the states
Economic Activity
- whether the activity in the aggregate substantially affect interstate commerce (rational basis standard)
- Very deferential
- could congress have rationally concluded that _______
- comprehensive regulatory scheme
- jurisdictional element
Procedural Due Process General Idea
what is the individual entitled to in terms of process.
o Were they entitled to notice, a disciplinary hearing, an appeal, etc.
PDP Steps
- is there a deprivation?
o Must be adjudicative - is there a protected interest?
o life (usually crim)
o liberty (physically hurt, unable to move freely, restrained)
o Property - what is the process due?
o at minimum, notice & opportunity to be heard
Liberty: Stigma+
- stigma (defamation) by itself is not enough
- need both the stigma and change in legal status
Property interest
A person’s interest in a benefit is a “property” interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing
Notice & Opportunity to be Heard (Matthews Factors)
- private interest affected by the gov’t
- risk of erroneous deprivation & probable value of substitute procedure
- gov interest in expeditious removal of unsatisfactory employees administrative burden
Substantive Due Process
- Fundamental Rights –> SS
- Compelling Interest
- Narrowly tailored
- Non-fundamental Rights or Economic Regulation –> RBT
- no legitimate interest
- means not rationally or rsbly related
** burden on the challenger
Fundamental Rights SDP
Contraceptive
Upbringing of their child
Marriage
Family arrangement
Adults engaging in private, consensual, non-commercial sex (RB)
Refuse medical treatment
Equal Protection
- Fundamental Right Implicated or Classification
- Intentional Discrimination
- de jure
- de facto
- similarly situated w regard to the purpose of the law at hand?
Classification?
- what suspect/class does it fall under
- suspect
- quasi-suspect
- non-suspect
Equal Protection: Protected Classes
- Mentally Disabled
- Sexual Orientation
- Children of Undocumented Immigrants
Suspect: Strict Scrutiny
(ex. race, affirmative action)
- burden on gov
- compelling interest
- means must be necessary or narrowly tailored
Quasi-Suspect: Intermediate Scrutiny (ex. gender/sex, legitimacy)
- burden on gov
- important or significant government interest
- substantially related
Non-Suspect: Rational Basis (ex. wealth, age, physical disability)
- burden on challenger
- legitimate interest
- rationally/reasonably related
Rational Basis w Bite
burden is on the gov to show why theres a legitimate interest and why the means chosen were necessary
Standards (suspect):
- legislative body must be pursuing a goal important enough to warrant use of a highly suspect tool
- the means chosen must fit the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate prejudice or stereotype
Standards (Quasi-Suspect)
- classifications must serve important governmental objectives and
- must be substantially related to the achievement of those objectives
Determining if new class should be recognized
- history of discrimination?
- relationship to ability to contribute to society
- immutable characteristics
- smth that can be changes or will be changed
- political powerlessness
Dormant Commerce Clause Doctrine
- If there are paths of commerce that travel through multiple states, no states may impose laws/regulations to control that commerce
- Rationale: it may negatively impact other states
DCCD Analysis
- State or Federal
- Federal: goes to commerce clause
- State: go to step 2 - Is there commerce involved?
- Economic: regulatory system for production, consumption, or distribution of items
- Non-Economic - Discriminatory or Neutral?
Discriminatory on its face
- discriminates out of state ppl vs. in state ppl
- strict scrutiny test (hughes)- legitimate, non-protectionist interest
- no less discriminatory means of achieving the purpose or interest?
Neutral Law (discriminatory in practical effect):
- applies equally to in-state and out-of-state ppl
- Pike Balancing Test
* whether the burden imposed on interstate trade are clearly excessive in relation to the local benefits
DCCD Strict Scrutiny (Hughes test)
- legitimate, non-protectionist interest
- no less discriminatory means of achieving the purpose or interest
DCCD Pike Balancing test
benefit to the state vs. burdens on interstate commerce (on trade)
DCCD Market Participant Exception
if the state is participating in a market, it can discriminate in favor of its own business
DCCD Congressional Approval Exception
- if congress approves of the practice, then it is automatically approved
Article IV –> Privileges & Immunities Analysis
- Discrimination against natural citizens?
- Fundamental Right?
- this case violates the fundamental right to pursue calling, profession, trade, own or transfer property, access to courts - is a state law discriminatory to constitute a peculiar source of the evil at which the state is aimed
2 parts:
- is there a substantial rsn for the discrimination?
- does the discrimination bear substantial relationship to the reason?
Non-fundamental Rights SDP
ACDCEE
Abortion
Contract Freely
DNA evidence by state
Committing Suicide
Education
Economic Interest
*Always get RB
* Economic Regulation
