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49 Cards in this Set
- Front
- Back
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Procedural DP
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A fair/due process (e.g. notice and a hearing) is required for a government agency to individually take/deprive a person’s “life, liberty, or property.”
- Only intentional – not negligent – deprivation of these rights violates DP Three part approach to these questions 1st – Is there a deprivation of life, liberty or property • If YES you go to the 2nd question • If NO there is no DP issue 2nd - What type of procedure is required?? |
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Substantive DP
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Whether govt has adequate reason for taking away individual's life, liberty or property
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PDP--Deprivation of Liberty: More than freedom from bodily restraints
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1. Losing significant freedom of action; OR
- E.g. the right to contract and engage in gainful employment etc. - Denial of a freedom provided by the Constitution or a statute (written laws) Examples of Liberty Interests: o Freedom from being institutionalized o Freedom to contract as one pleases - Examples of NON-Liberty Interests: o Harm to reputation, by itself, is not a loss of liberty as there must be an economic or tangible loss as well Hypo: KT had practice of posting pictures shoplifters in stores – P’s picture was incidentally put up and P filed suit saying this was a deprivation of his liberty of reputation Court disagreed establishing rule above - Prisoners rarely have liberty rights |
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• PDP- Deprivation of Property
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1. Occurs when a person has a legitimate claim or “entitlement” to a benefit under state or federal law and that entitlement is not fulfilled
- Entitlement: A reasonable expectation of cont. receipt of a benefit Examples of Property Interest: • Continued attendance at a public school • Welfare benefits • In some cases, government employment • Roth: P worked on year to year contract with no expectation the K should be renewed. One year the K was not renewed and P sued saying he should be given DP in regard to the non-renewal. Court disagreed – No entitlement no DP - Test Tip: Answer saying “X is a right, not a privilege” • Always the wrong answer – entitlement is key |
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Miscellaneous PDP Deprivation Rules
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- Generally, there must be intentional government action or at least reckless action for liability to exist
However, in emergency situations, the government can be held liable ONLY if its conduct “shocks the conscious” -Generally, the government’s failure to protect people from privately inflicted harms does not constitute a denial of due process rights |
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PDP -- What procedures are required, if there is a deprivation of one L, L or P???
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THE TEST
(1) Importance of the interest to the individual; AND (2) The value of specific procedural safeguards to that interest; AGAINST - In other words, the ability of additional procedures to increase the accuracy of fact-finding – Will more procedures yield better results (3) The government interest in fiscal and administrative efficiency - Note: Presumably, fair procedures and an unbiased decisionmaker will ALWAYS be required as will notice and a chance to respond before termination of the life, liberty or property interest occurs |
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Examples of PDP deprivations on test?
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1. Commitment to a Mental Institution:
- Adults: Except for in an emergency, to institutionalize an adult there must be notice and a hearing provided - Children: When a parent institutionalizes a child there only has to be a screening by a neutral fact-finder 2. Welfare Benefits: Before benefits are terminated there must be notice and hearing 3.Social Security Disability Benefits: When social security disability benefits are terminated there only needs to be a post-termination hearing 4. Termination of “Tenured” or “For Cause” Public Employees: Generally, prior notice and opportunity to respond are required ;Moreover there is a subsequent evidentiary hearing also 5. Disciplinary Suspension at Public Schools: When a student is disciplined by a public school (suspended) there must be notice of the charges and an opportunity to explain; No hearing is required however 6. Termination of Parent’s Custody Rights: Before parents custodial rights with respect to a child can be terminated there must be notice and a hearing 7. Punitive Damages: It is required that instructions be given to jury in judicial review; Instructions to guide reasonableness of punitive awards as grossly excessive punitive damages awards violate DP 8. Enemy Combatants: American citizen held as an “enemy combatant” must be given Due Process of notice and a hearing 9. Civil Forfeitures: Except in exigent circumstances, pre-judgment attachment or govt. seizure of assets must be preceded by notice and a hearing - Exigent circumstances when there is reason to believe the individual would get rid of property upon notice given ; In these cases notice can be given post-seizure |
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SDP -- What test used for laws affecting economic rights?
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RB test is used to review laws affecting or amounting to a taking of one’s economic rights and in that respect the government will almost always win
- Government almost always wins when law is subject to RB review examples: minimum wage law, state bar requirement, etc |
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• Takings Clause of the 5th Amendment as a Limitation on Government Power
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Government may take private property for public use if it provides the party from which it is taking the property just compensation for doing so. (1) Taking? (2) Pub Use? (3) Is just compensation paid?
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PDP -- Has government deprived a person of life, liberty (A significant freedom secured by the Constitution or Statute), or property (An entitlement to a continued receipt of a benefit)?
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YES
What procedures must government supply? Balance the following: -Importance of interest to the individual -Ability of additional procedures to increase the accuracy of the fact finding; NO Government need not provide procedural due process at all |
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1. IS there a taking?? (Takings Clause)
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i) Possessory taking: Government (actual) confiscation or physical occupation of property constitutes a taking
Ex: Loretto: NY said apartment building owners provide one cubic foot of space for cable boxes.; Taking requiring only nominal damages ii) Regulatory taking: Government regulation is a taking if it leaves no reasonably economically viable use of the property – Look to (i) social good promoted; (ii) loss to owner; and (iii) owners expectations regarding the prop. Ex: Penn Central: P claimed government decreased the value of its investment by enacting a statute prohibiting it from developing airspace above its newly acquired building investment. - Economically viable use of the building purchased still existed and fact airspace is limited is OK as it is not the reason P invested in the property to begin with Ex: Lucas: Beachfront property bought to build a home on. Thereafter the state enacted a law that said you couldn’t build there. P sued - Court said all economically viable use was lost thus this constituted a taking |
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2. Is it for public use?
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i) Taking is for a public use so long as government acts out of a reasonable belief the taking will benefit the public
- If it is NOT a “public use taking” (almost never the case) then the taking is unconstitutional - Property must be given back and damages for the time taken must be paid |
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3. Is just compensation paid? (Takings Clause)
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i) Just compensation is measured in terms of loss to owner
- The gains to the taker are entirely irrelevant ********Exam Tip: Prop. with market value of $100k. Government wants to take it and they will benefit of $10 million – $100k is how much government owes! |
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Contracts Clause
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No state shall impair the obligation of contracts.
a) Applies only to state or local interference with existing Ks. NEVER with federal!! - Only a Due Process claim would/could result from federal government’s retroactive interference with existing K’s b) Private K -- State and local legislative interference with private contracts must meet an intermediate scrutiny/level of review; Test: (1) Does the legislation substantially impair a party’s rights under a previously existing K? (2) If so, is law a reasonably and narrowly tailored means of promoting important and legitimate public interest? c) Public/Government Contracts: State and local legislative interference with government contracts must meet a strict scrutiny/level of review d) Ex Post facto clause: Ex post facto clause does NOT apply in regard to civil liability/cases -- ONLY CRIMINAL!!!!! - Ex post facto law is a law which criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after that crime had already been committed. - Retroactive civil liabilioty only need meet a RB test - Bill of attainder is a law that directs the punishment of a specific person or persons without them being given a judicial trial , E.g. – “John to jail for 8 months!” out of nowhere |
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SDP - Right to Privacy
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1. Right to Marry - SS review
2. Right to procreate/have children - SS 3. Right of Custody to One's Children - SS; Beware: State may crate an irrebuttable presumption that a married women's husband is the father of her child. 4. RIght to Keep Family Together; Family is extended family as well (east cleveland) - SS 5. Right to Control the Upbringing of One’s Children - SS 6. Right to Purchase and use Contraceptives - SS 7. Right to Abortion - no longer SS but undue burden test --> (i) Pre-viability: States may not prohibit abortions, but may regulate them if regulation doesn’t create an undue burden on ability to obtain abortions (ii) Post-viability: States may prohibit abortions UNLESS the abortion is medically necessary to protect the woman’s life or health; not Undue Burden to have 24 hr wait period, done by licensed docs, no partial birth abortions unless necessary 8. Right to Engage in Private, Consensual, Homosexual Activity/Intimate Sexual Conduct: No right to make it a crime for fully consenting adults to engage in private intimate sexual conduct – e.g. the right to have anal sex etc.- Subject to unknown level of review 9. Right to Refuse Medical Care- Subject to unknown level of review: Competent adults have the right to refuse medical treatment; This includes even “life saving” treatment (e.g. food and water) ; However, a state may require clear and convincing evidence that a person wanted treatment terminated before it is ended; A state may prevent family members from terminating treatment for another 10. There is no right to physician-assited death - Wa v Glucksberg |
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Right to travel (fund right under EP)
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1. Laws that prevent people from moving into a state - SS
2. Durational residency requirements -- SS Durational residency requirements exist when one must live in a jurisdiction for an established amount of time in order to get a certain benefit - Exam Tip: Questions on MBE are usually based on the following: Hypo: In order to get welfare benefits you had to live in the state for a year – Court said this violates freedom to travel which is fundamental right under Equal Protection - Examples to Memorize: One-year residency to receive welfare: INVALID One year residence to get state subsidized medical care: INVALID One-year residence to vote in the state: INVALID 30-day residency to vote in the state : VALID – 50 days is the maximum constitutional allowed One-year residency to get a divorce : VALID 3. Note: Restrictions on foreign travel need meet only the rational basis test |
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Right to vote
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1. Laws that deny some citizens the right to vote -- SS: Hypo: Fees (poll-taxes) to vote – Constitutional; NO – Limits some from voting and strict scrutiny applies; Hypo: Property ownership requirements for voting or holding public office are almost never allowed [only allowed if it is water districting voting] - Note: Just memorize this water district rule ; Hypo: To vote in school district you had to own property or have kids in the school district – Court held this to be unconstitutional
2. One person-one-vote must be met for all state and local elections 3. At-large elections are constitutional UNLESS it shows there is a discriminatory PURPOSE 4. Use of race in drawing election district lines -- SS: City had a 3 person city counsel. They could have divided city into 3 districts but didn’t. Instead, they let everyone vote for all 3 seats – City was 2/3rds white. No blacks EVER got voted on; Court said the racial classification couldn’t be shown absent the discriminatory purpose of the law being shown 5. Counting uncounted votes without specific standards for doing so violates the equal protection clause when done during/in a presidential election: Bush v Gore |
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Fundamental Right to Education
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NO fund right to education under US Constitution
1. Funding public schools through local property taxes was held constitutional. - It didn’t matter rich communities had better schools than poor communities |
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Equal Protection - what three questions you should ask?
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1. What is the classification? How is the government making a distinction between people
2. What level of scrutiny should be applied? (a) Fundamental Right or Suspect Classifications- Strict Scrutiny (b) Quasi-Suspect Classifications- Intermediate Scrutiny (c) Any Other Classification - Rational Basis Test: Anything that isn’t discussed below falls here 3. Does this meet the level of scrutiny?? |
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Constitutional Provisions Concerning Equal Protection
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1. Equal protection clause of 14th applies ONLY to state and local governments
- 14th never applies to the federal government 2. Equal protection applies to the federal government through the DP clause of the 5th - 5th never applies to state and local governments - 5th Amendment therefore has an Equal Protection component 3. Same tests are used in either situation (whether state or federal – whether 5th or 14th) |
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Race and National Original Classifications
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SS Review
(1) How is the existence of a racial classification proven? a) The classification exists on the face of the law b )If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent. HYPO: DC required that one pass a test to be a police officer. Blacks failed the test significantly more often than whites. Court said only RB level of review. Disproportionate impact is insufficient to show racial classification-- You need a discriminatory intent as well c) Discriminatory use of preemptory challenges based on race; It is irrelevant who does/uses it or the type of case involved |
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Racial classifications/ AA
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Classifications benefitting minorities (AA) - SS
a) Numerical set-asides require clear proof of persistent and readily identifiable past discrimination and cannot be based on general past wrongs; That said, quotas are not likely to be successful Hypo: 30% public work set-aside for minority business. Court held there was no showing this a remedy for past discrimination and thus unconstitutional. Hypo: AL police engaged intentional race discrimination so every time a white was hired a black had to be hired. Court said this was OK as it was a remedy for clearly proven past act of discrimination b) Educational institutions may use race as one factor in admissions decisions to help minorities and increase diversity – HOWEVER They cannot use race as a means of giving “points” to minority applicants in regard to admissions scores – No defining criterion; This is based on belief that college universities have interest in promoting diversity c) Public school systems may NOT use race as a factor in assigning students to schools UNLESS the system satisfies a strict scrutiny level of review MAY consider race as one factor in many but CANNOT set aside slots just for minorities and cannot add points. |
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Gender Classifications
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Intermediate Scrutiny BUT gender discrimination is allowed with "Exceedingly persuasive justification”
1) How is the existence of a gender classification proven? (a) Classification exists on (is obvious from) the face of the law: Craig v Boren- Women could by 3.2% beer at 18, men not until 21. Court declared the law unconstitutional gender classification under the intermediate level of review. (b) If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent - Disproportionate impact on one gender is insufficient absent a showing that such discrimination was actually intended by govt. (c) Discriminatory use of preemptory challenges based on gender denies EP |
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Gender classifications benefitting women
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1. Gender classification benefiting women based on stereotypes impermissible
- Hypo: Women in divorce can get alimony but men can’t.Court held this perpetuated the stereotype that women always depended on husbands but men are self-sufficient - Thus unconstitutional DESPITE the claims that it was remedying specific past wrongs 2. Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed/are constitutional - Hypo: Long history of wage discrimination in US economy so the difference in the formula for taxes owed is designed to remedy this. Court said this differing tax base/% was constitutional ****Note: Intentional discrimination against men is generally INVALID. However, in certain cases it passes intermediate scrutiny - E.g. statutory rape laws and all-male draft laws, and requiring fathers but not mothers to prove parentage of non-marital children born abroad in order to obtain US citizenship for them |
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Alienage Classifications (fave area on MBE)
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1. Generally, SS is used to evaluate alienage on EP grounds.
Hypo: Only US citizens may receive welfare benefits. Held unconstitutional under strict scrutiny Hypo: Only US citizens could be admitted to the bar to practice law. Held unconstitutional under strict scrutiny EXCEPTIONS where LESS than SS is used -----------> 1) Only a rational basis test is used for alienage classifications that concern self-government and the democratic process – Classifications permitted: (a) Voting (b) Serving on a jury (c) Being a police officer (d) Being a teacher (e) Being a probation officer (f) BUT NOT being a notary public --------Laws requiring US citizenship to become a notary public deemed unconstitutional under strict scrutiny review 2) Only rational basis test for Congressional discrimination against aliens - Congress has the plenary power to regulate immigration so they can discriminate if they want to – It is within their control 3) Only rational basis test for laws effecting illegal/undocumented aliens - Appears intermediate scrutiny is used to evaluate constitutionality of laws discriminating against the children of undocumented aliens |
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Discrimination against non-marital children (legitimacy classifications)
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1. Laws that deny a benefit to SOME non-marital children, but grant it to ALL marital children are subject to an intermediate level of review
Ex: some could inherit where paternity established and other non marital children where paternity was not established could NOT -- I/S level of review BUT 2. Laws that deny a benefit to ALL non-marital children, but grant it to ALL marital children are deemed unconstitutional on their face |
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Examples of all other classification that get RB level of review include (IMPORTANT for MBE) -->
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(1) Age discrimination : EQ challenge to mandatory govt retirement law, RB always used, and govt wins
(2) Disability discrimination : City of Cleburn; (3) Wealth discrimination: Poverty is NOT a suspect classification, only RB review (4) Economic regulations: doesn't matter if challenege under EP, still (5) Sexual orientation discrimination: Romer v Evans- EP brought under sexual orientation discrimination, SC used RB review and declared it unQ ****Remember, government will basically never lose under RB level of review |
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1st Amendment Free Speech: Content based v Content Neutral Laws
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IMPORTANT---
(1) Content based restrictions on speech generally must meet strict scrutiny review Two ways to find if content-based (a) Subject matter restrictions: Application of the law depends on the topic of the message - Hypo: No picketing unless a labor protest. - A subject matter restriction which is content based – Unconstitutional under strict scrutiny (b) Viewpoint restriction: Application of the law depends on the ideology of the message - Hypo: Pro-war demonstrations were allowed in the city part but no-war demonstrations were not - Viewpoint restriction which is unconstitutional under the strict scrutiny level of review (2) Content neutral laws burdening speech generally must meet intermediate scrutiny - Hypo: No parades or demonstrations in THIS city park. This is content neutral and subject only to intermediate scrutiny |
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1st Am - Prior Restraint
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Government can require a license/permit for speech ONLY if there is an important reason for licensing and clear criteria leaving almost no discretion to licensing party
(1) Judicial orders or administrative systems that stop speech before it occurs. - Court orders suppressing speech must meet strict scrutiny level of review - However, procedurally proper court orders must be complied with until they are vacated or overturned – One who violates a valid court order is thereafter barred from constitutionally challenging it Examples to Memorize: • Prohibiting publishing troop movement in war • Enforcing contractual prepublication review of CIA agent’s writings BOTH VALID PRIOR RESTRAINTS • Prohibiting publication of Pentagon Papers as it might have an effect on Vietnam War • Prohibiting grand jury witnesses from ever disclosing testimony BOTH INVALID PRIOR RESTRAINT **Press “gag-orders” preventing pre-trial publicity are NOT allowed EVER (2) Government can require a license/permit for speech ONLY if there is an important reason for licensing and clear criteria leaving almost no discretion to licensing party |
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Vagueness and Overbreadth
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(1) Vagueness: A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what speech is allowed
(2) Overbreadth: Law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated (e.g. reaches protected speech) Hypo: City adopted an ordinance prohibiting all live entertainment so as to shut down a nude-dancing club. Court said this was overbroad as it prohibited all of the valid expressions of speech (e..g concerts etc.) (3) “Fighting Words” laws are examples of ones unconstitutionally vague and overbroad : Court hasn’t upheld a fighting words statue since Chaplinsky Exam Tip: Appealing victim and a nasty speaker. Speaker is convicted under a “fighting words” law. Always pick unconstitutionally vague/overbroad answer!!!!!!!!!! |
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Right to bear arms --
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- Not absolute, government can regulate where people have guns, who has guns,
- just know that 2nd amend protects individuals to have in their homes - No level of review |
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Symbolic Speech
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(1) Government can regulate conduct that “communicates” IF
a) It has an important interest unrelated to suppression of the message AND b) The impact on communication is no greater than necessary to achieve the aforementioned government purpose - Hypo: After the bar someone beats up a bar examiner. He claims he is just expressing his speech regarding distaste for the bar exam.Court will strike this defense per above (2) Specific rules to know: (i) Flag burning is constitutionally protected speech (ii) Draft card burning is NOT constitutionally protected speech (iii) Nude dancing is NOT constitutionally protected speech (iv) Burning a cross is constitutionally protected speech UNLESS Burners intended to threaten someone by doing so (v) Contribution limits in election campaigns are constitutional but spending limits are NOT constitutionally protected |
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Anonymous Speech
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Anonymous speech is constitutionally protected
- Just as there is a right to speak there is also a right NOT speak/speak anonymously |
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Speech by government
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Cannot be challenged as violating the 1st Amend
- When govt is speaker, 1st Am cannot be used!!!! |
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What Speech is Unprotected or Less Protected by the First Amendment
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(1) Incitement of Imminent Illegal Activity: Government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality
(2) Obscenity and Sexually-Orientated Speech: : Three Part Test (1) Must appeal to the prurient interest, which is a local standard not national - A shameful or morbid interest in sex (2) Must be patently offensive under the law prohibiting obscenity (local std) (3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (nat'l std) Generally, profane/indecent speech is protected under 1st with EXCEPTIONS: (1) When speech is distributed over the broadcast media; Broadcast media is uniquely accessible to children (2) When speech occurs in schools (3) Commercial Speech: Advertising for illegal activity, and false and deceptive ads, are NOT protected by 1st; Other commercial speech can be regulated if intermediate scrutiny is met (4) Defamation (5) Freedom of the Press – Speech and Privacy: Government may not create liability for the truthful reporting of information that was lawfully obtained from the government (6) Government Employees: (7) Other Speech Restrictions-- must meet SS is restriction is based on content of speech |
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What is the Test for determining obscenity????
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(1) Material must appeal to the prurient interest (local standard) - A shameful or morbid interest in sex
(2) Material must be patently offensive under the law prohibiting obscenity - Any law that prohibits obscene material must delineate what is deemed “patently offensive” ; Determined by the applicable law/community at issue (3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (national standard) - Existence of “redeeming value” is governed by a national standard - Govt. may use zoning rules to regulate location of adult bookstores/movie theatres Hypo: Zoning ordinance where all adult stores be in one corner of city. Court upheld this as being constitutional on the ground that we are not regulating the speech but the “secondary effects” of the speech - Child pornography may be completely banned, even if not obscene To be child pornography, children must be used in production of the material – 3-D or animated child porn CANNOT be regulated here - Government may not punish private possession of obscene material BUT The government may punish private possession of child pornography - Government may seize the assets of business convicted of violating obscenity laws Hypo: D owned a chain of adult bookstores and movie theatres. He was convicted of selling 7 obscene items (6 years and $1000). Government seized the merchandise and destroyed it ($9 million worth).Court ruled in favor of the government – They can do this - Profane and indecent speech is generally protected by the 1st Amendment Two Exceptions: Where government can punish profane/indecent speech (1) When speech is distributed over the broadcast media; Broadcast media is uniquely accessible to children (2) When speech occurs in schools ; Hypo: School released students to watch Olympic torch go by and they busted out “Bong Hits for Jesus” sign. The kids were then suspended. Court ruled in favor of the school |
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When is commercial speech protected?
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1. Advertising for illegal activity, and false and deceptive ads, are NOT protected by 1st
- Moreover, true ads which inherently risks deception can be prohibited - May prevent professionals from using trade names in ads/practice E.g. preventing a “bad” lawyer from continuing to do “bad” work by changing his trade name every 3 months 2. May prohibit an attorney from conducting in-person solicitation of clients - However, if the client is being provided free services it is OK 3. May NOT prohibit accountants from in-person solicitation clients for profit - Not the same worries with accountants as there is with lawyers 4. Other commercial speech can be regulated if intermediate scrutiny is met - As such, the regulation must be narrowly tailored HOWEVER it does NOT need to be the least restrictive alternative All we require is a “reasonable fit” |
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Defamation
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(1) If P is a public official or running for public office, he can recover for defamation by proving (i) falsity of the statement; and (ii) actual malice : D knew statement was false or acted in reckless disregard of truth
(2) If P is a “public figure” he can recover for defamation by proving (i) falsity of the statement; and (ii) actual malice. Public figures - Those who thrust themselves into the limelight and likely have access to television cameras so as to rebut any defamatory remarks (3) If P is a “private figure” and the matter is of “public concern,” he may recover for defamation by proving (i) falsity of the statement; and (ii) negligence by D. P may recover presumed or punitive damages upon showing actual malice (4) If P is a “private figure” and the matter is not of “public concern,” he can recover presumed or punitive damages without a showing of actual malice |
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Freedom of the Press - Speech and Privacy
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(1) Government may not create liability for the truthful reporting of information that was lawfully obtained from the government
Hypo: Reporters lawfully got rape victims name and published them. Court held press could not be liable for violation of privacy when they truthfully obtained the information from govt. records (2) Liability is not allowed if media broadcasts a tape of an illegally intercepted call IF Media didn’t participate in illegality and involves matter public importance Hypo: Taped copy of a believed “private conversation” broadcast on the radio – Court held this was not a violation of privacy (3) Government may limit its dissemination of information to protect privacy - There is only a 1st Amendment right for the press and the public to attend criminal trials and most criminal pre-trial hearings – NOT ANYONE ELSE Only in very limited circumstances is this taken away E..g protect children who are victims of sexual offenses |
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What places are available for speech?
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(1) Public Forums - Government properties that the government is constitutionally required to make available for speech – Examples include sidewalks and parks are classic examples (a) Public forum regulations must be subject matter and viewpoint neutral. If not, strict scrutiny must be satisfied (as for any content based) (b )Public forum regulations must: (i) pertain to the time, place, or manner of speech (content neutral); (ii) they must serve an important government purpose; and (iii) they must leave open adequate alternative places for communication barred. (c) HOWEVER, regulation of the public forums need not be least restrictive alternative of achieving the govt. purpose (d) City officials can’t have unbridled discretion to set permit fees for public demonstrations as this would look to be content based
(2) Designated/Limited Public FOrums (3) Non-Public Forums |
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Public Forums
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Government properties that the government is constitutionally required to make available for speech – Examples include sidewalks and parks are classic examples
(a) Public forum regulations must be subject matter and viewpoint neutral. If not, strict scrutiny must be satisfied (as for any content based) (b )Public forum regulations must: (i) pertain to the time, place, or manner of speech (content neutral); (ii) they must serve an important government purpose; and (iii) they must leave open adequate alternative places for communication barred. (c) HOWEVER, regulation of the public forums need not be least restrictive alternative of achieving the govt. purpose (d) City officials can’t have unbridled discretion to set permit fees for public demonstrations as this would look to be content based |
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Non-Public Forums:
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Government properties that the government constitutionally can and does close to speech –
MBE ----> Examples include military bases, areas outside prisons and jails, advertising space on city busses, SIDEWALKS on post-office property, airports Government can regulate speech in non-public forums SO LONG AS (i) The regulation is reasonably related to a legitimate purpose; and (ii) It is viewpoint neutral |
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Freedom of Association Req's
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1. Laws that prohibit or punish group membership must meet strict scrutiny
2. Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny 3. Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity (see below) - Many state/local governments have laws saying private groups can’t discriminate. - Sometimes these laws are challenged under “freedom of association”; Usually the challenging groups lose HYPO: Jaycees: Minn. Prohibited private groups from discriminating. P argued this violated freedom of assoc. Court upheld the law saying compelling interest in getting rid to gender discrimination |
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To punish membership in a group it must be prove that the person:
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(1) Actively affiliated with the group;
(2) Knowing of its illegal activities; AND (3) With the specific intent of furthering those illegal activities |
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Exceptions to Freedom of Association
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(1) Intimate Associations: Where the association is extremely little they may discriminate – Think of it as a dinner party where the uninvited don’t have to be admitted
(2) Where Expression is Integral to the Message: KKK doesn’t have to allow blacks and the boy scouts don’t have to let in gays – In other words part of their message is not in-line with the people against whom they are discriminating |
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Freedom of Religion - Free Exercise Clause
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(1) Free exercise clause can’t be used to challenge a neutral law of general applicability regardless of how much that law may burden their religious practices
(a) It must be shown that the law is specifically designed to so interfere - However, laws which can be shown to be designed for purposes of limiting religion are subject to a strict scrutiny review Note: This WILL be on the MBE portion of the exam. Court has NEVER found a law to pass strict scrutiny (e.g. no CSI) to limit religious practices Hypo: The peyote users. No violation of the free exercise clause as this is a law of general applicability pertaining to conduct. The only exceptions to this – no violation for rules regulation conduct generally – are discussed below (2) Government may NOT deny benefits to individuals who quit jobs for religious reasons – They cannot force one to choose between their religion and their pay/salary Note: Amish don’t have to school children up until 16 based on this Clause |
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Freedom of Religion - Establishment Clause
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(1) Government cannot discriminate against a certain religious sect(s) or religious speech absent satisfying the strict scrutiny level of review
(a) However, if there is no sect preference the Lemon test as laid out below is used to determine the validity of the regulation/action (2) Test for establishment clause violations (Lemon Test - SEX) (i) There must be a secular purpose for the law (ii) The effect must be neither to advance nor inhibit religion (iii) There must not be excessive entanglement with religion - Government may not directly pay parochial teacher’s salaries (3) Government sponsored religious activity in public schools is unconstitutional (4) Government may give financial assistance to colleges, and hospitals, so long as funding won’t be used directly for religious instruction • Moreover, government may give “financial assistance” to a defined class so long as class is defined WITHOUT reference to religion or religious criteria |
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Con Law Attack Q - WHO IS THE ACTOR IN THE Q?
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1. Congress
Has Congress Violated a Limit on Its Power? Does Congress have authority to act in this regard? 2. Prez or Fed exec branch Has Congress Violated a Limit on Its Power? Does Congress have authority to act in this regard? 3. Fed Court Does federal court have the authority to hear the case? 4. State Local Govt Has the state/local government violated a limit on its power? 5. Private/non-government Actor Is there a state action? Does it violate the Constitution |
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Ex Post Facto Clause
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Law which criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after that crime had already been committed.
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