Con Law 2 Monroe

Front 1

what is the 14th amendment.

what are the 4 protections.

Back 1

1. Citizenship clause= all persons born or naturalized in the US and subject to the jurisdiction thereof, are citizens of the US and the states wherein they reside.

2. Privileges and immunities clause= No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US.

3. Procedural due process clause= Or shall any state deprive any person of life, liberty or prop. without due process of law.

4. equal protection clause= nor deny any person within it jurisdiction the equal protection of the laws.

Front 2

what is the 5th amendment.

Back 2

1. due process
2. equal protection (implied in the amendment.

---this was aimed at controlling the gov. powers

Front 3

what is the first amendment.

Back 3

1. right to free speech
2. freedom of religion

Front 4

what is the 2nd amendment.

Back 4

1. rights to bear arms

Front 5

what is listed in article 1 section 2

Back 5

the representation clause.

--house of rep. shall be chosen every 2 yrs.

Front 6

what is the 13 amendment.

Back 6

slavery abolishment
---can not have slave or force person into a involuntary servitude.

Front 7

Louisiana allowed a state to give a monopoly to a slaughter house.

Back 7

slaughter house case--

civil war amendments

1. 13--free slavery
2. 14th--privileges or immunities for all citizens (by state)
-----A. due process
-----B. equal protection.
3. 15th--prevent race discrimination for voting.
_____________

1. Pl argued - 13th= lost, only applies to personal servitude.

2. pl argue 14th privileges and immunities, coundnt carry out chosen profession= lost, not citizen of state but of US.

3. pl argue 14th due process = lost, 14 does deal using the land but cant use it for this type.

4. pl argued 15th equal protection= lost, 14th was for race protection, no race here.

----this is for history
b4 it was narrow view
now it is a broad view of scheme

Front 8

---cali. statute stop didnt allow benefits to be given until person has been in the states for more than 1 yr ( welfare)

14th--privileges and immunities for non citizens.
--------------------------------
law from the case----

1. right of citizen of one state to enter and leave.

2. right to be treated as a welcome visitor rather than an unfriendly alien

3. rights to be treated like a citizen in that state.

Back 8

Saenz v. Roe

Front 9

what is the incorporation theory.

what is the history--now

was charged with murder
2. tried already and retried--
3. he said violation of due process
4. crt nope--due process doesnt apply to double jeopardy.

Back 9

in which the bill of right was incorporated into the 14 amendment.

Hist.
b4 the 14 people cant sue or make the state correct its wrong b/c so law were enforceable against the states.

Now----------
the bill of rights 1-8 are applicable through the state via-the 14th amendment.

case--- hist.

palko case---
1. palko
-----case overruled by Bento----

Front 10

1. protects non-citizens discrimination from another
state.

2. protects new citizen from discrimination by another state based on changed of residents.

Back 10

article 4 =

Front 11

for procedural due process

what must happen before the government can deprive rights.

what law governs this-------

Back 11

14th procedural due process.

before gov. can deprive rights
--- hearing

mathew v. eldridge factors

1. how important liberty interest to person being deprived

2. likelihood of wrongful deprivation procedures

and would additional procedures reduce the risk.

3. state interest in dealing w/ problem quickly and cost efficient to the state for additional procedure.

Front 12

under the 14th what does one have interest in when talking about liberty interest.

list the 5

Back 12

1. freedom from bodily harm.
2. parental rights to child.
3. lawful aliens right to remain in the country.
4. freedom from being committed.
5. suspension from school.

Front 13

under the 14th what does one have interest in when taking about property interest.

list 3

Back 13

Must have a legitimate claim of entitlement
1. real estate and personal prop.
2.gov. benefits( welfare, unemployment)
3. gov. license

Front 14

what is the analysis for if gov. deprived you of procedural due process.

Back 14

1. did gov. deprive you of procedurally protected bene. or interests?

2. did you receive the procedural you are constitutionally entitled to?

Front 15

did gov. deprive you of a procedurally protected bene. or interest.
----yes

explain.

1. U teach k for a yr to teach=
no prop. b/c k =
1. b/c k was for a yr
no lib b/c =
2. he was able to get other works.
___________________________

2. for tenure gov.
1. must have a hearing b4 fire
----for firing was reasonable
2. must have hearing after ---
----making sure procedure was ok
__________________________

3. ---prisoner sentenced to solitary confinement 30 days
--no liberty interest of prisoner---
__________________________

4. prisoner transfer from med. to max and solitary indefinite

Back 15

Daniels case---def. of deprive
A.--deprive means the gov. intentional deprived person of their rights.---prisoner slipped on something that guard left.

what interest are procedurally protected?

_______employment rights____
-----citizen-----------
1. Roth--
________Gov. job right________
2. loudermill---
_____prisoners rights________
3. Sandin case

----------exception----------------
prisoners right protected only if
pass sandin test
***severe hardship*****
(atypical & significant hardship and prisoner authorities discretion is limited by prison policy.

4. Wilkinson case--

Front 16

Prisoners rights-------------

what is the diff. twn the two cases.

1. liberty interest
( not being injected with dangerous med.)

v.

2. prisoner sentenced to solitary confinement 30 days


v.


3. convict slipped and hurt himself on the stair of the prison.

Back 16

1. Harper ==
---he was given procedure b/c
2 docs evaluated him b4 injection.
---GI v.PI--prisoner lost b/c he could have been dangerous.
_______________________

Sadin-- no interest b/c not harsh intrusion

Daniels case--the deprivation wasnt intentional.

Front 17

----disability is not a protected or fundamental rights (can eliminate w/o hearing)------

Back 17

Matthews v. Eldridge

factors------

1. private interest that will be affected by gov. action

2. what is likelihood that deprivation can be eliminated by more procedure.

3. gov. interest in placing more procedure in place.

Front 18

what is the diff. btwn the substantial v. due process.

Back 18

5th---only applies to fed.

14t---applies to the states by way of incorporation.
___________________________
1. Substantial= the law itself is unconstitutional
-----------state is interfering with freedom and they cant justify it.

2. Procedural= the procedural used on the person was unconstitutional.
------------before the state deprived me of something they have to give me proper process

Front 19

hypo:

1. state of MI passed law prohibiting married couples from using contraception and find a married couple violating it.

explain?

Back 19

1. fined w/o HEARING
2. deprived of PROPERTY INTEREST= money
3. no criminal due process.

---lacking in procedural due process---------

Front 20

hypo:

CA passed a law that prohibits bakeries form employing workers for more than 60 hours a weeks.

Manroe had been seen to violate this rule.

explain.

Back 20

-the law is unconstitutional
-states can not interfere with private k betwn individuals.

Front 21

what is the attack question for substantial due process?

what is the standard of review?

Back 21

1. Did gov. action interfere with claimants liberty?

2. if fundamental it is presumed unconstitutional--unless state can show otherwise.

_____standard of review______

1. strict scrutiny (if fundamental)
2. Rational basis (if not fundamental)

Front 22

define
the standard of review.
for

Strict Scrutiny
Rational basis Scrutiny.

Back 22

-------standard of review----------

Strict Scrutiny-------if
interest is fundamental
state has burden of proof
3. legitimate and compelling purpose
4. narrowly tailored
5. least restrictive of adv. ends
___________________________

Rational basis-------
1. interest is not fundamental
2. state purpose was legitimate and RATIONALLY RELATED.

Front 23

what are the unenumerated fundamental liberty interest.

Back 23

-------strict scrutiny--------------
1. rights to martial privacy.
2. rights to live with family.
3. rights to chose whether or not to procreate.
4. right to choose whether or not to marry.
5. rights to terminate one's pregnancy.
6. right to refuse medical treatment
7. right to engage in intimate conduct in your own home.

Front 24

unenumerated fundamental liberty interest----------------

-planned parenthood were arrested for giving advice and material to married couple.----

Back 24

1. Griswold case

-
------fundamental rights to certain kinds of privacy.------------

9th amendment gives the right to be creative in its interpretation.

Strict Scrutiny-------if
1. interest is fundamental
2. state has burden of proof
3. legitimate and compelling purpose
4. narrowly tailored
5. least restrictive of adv. ends

Front 25

----Unenumerated Fudamental Lib. interests--------------------

---challenged housing ordinance that prevented grand-mom from living with her grandson.---

Back 25

1. Moore case


---family living together is a fundamental right-----------

Strict Scrutiny-------if
1. interest is fundamental
2. state has burden of proof
3. legitimate and compelling purpose
4. narrowly tailored
5. least restrictive of adv. ends

Front 26

----Unenumerated Fudamental Lib. interests--------------------

1. ---state had statute if convicted *3 then state can sterilized you.

Back 26

1. Skinner case

------strict scrutiny------------
**ur kids might not turn out the same way you did--we just dont know.

**their decision to have kids or not.****

Strict Scrutiny-------if
1. interest is fundamental
2. state has burden of proof
3. legitimate and compelling purpose
4. narrowly tailored
5. least restrictive of adv. ends

Front 27

-------Unenumerated Fundamental Lib interests-----------------

---state had statue that required that person to be update in child support if have kids--

--if not up to date than cant marry.----

Back 27

1. Redhail case

-------strict scrutiny-----------

1. interest is fundamental
2. state has burden of proof
3. legitimate and compelling purpose
4. narrowly tailored
5. least restrictive of adv. ends

Front 28

------unenumerated fundamental lib interests------------------

1. 1. right for woman to do with the body.
--2. state interest = protect life
--3. woman= right to do with their body
crt reasoned-----tried to meet in the middle

------cant force woman to go through the pain of child birth

------moms can get abortion until the 2nd trimester
-----afeter 2nd trimester state can band all abortion unless it is harmful to mom.
_________________________

2. ---new standard.
--made woman wait 24hrs before viability.
--replaced the standard from strict to undue burden.
___________________

3. --application of undue burden standard.

A. statute band types of abortion.
B. crt applied undue burden.
C. hld statute was ok because there were alternative tech. and the type of tech was rarely used.
____________________

Back 28

Roe v. Wade---Hist.

--------crt used strict scrutiny-----
--strict scrutiny-----------

1. interest is fundamental
2. state has burden of proof
3. legitimate and compelling purpose
4. narrowly tailored
5. least restrictive of adv. ends

_________________________
2. Casey--_______
3. Gonzalez case
--

Front 29

------unenumerated fundamental lib interests------------------

standard--
1. -person was in car accident and now veg.
---parents wanted the to get them off of life saving treatment.
---state said no unless the crt says it.

-----crt ruled a conscious person can refuse life saving treatment if conscious
or----by clear and convincing evid.
but not here.

Reason--person has right to not to be touched.
__________________________
strict scrutiny.

________________________
exception.

2.out break of small-pox
--everyone must get vacineated
--Public policy= protect people.
________________________
3. ---assisted suicide is not a fundamental right
---still against the law cant get protection for that.

Back 29

Cruzan
--
_________________________
standard used is strict scrutiny.

--strict scrutiny-----------

1. interest is fundamental
2. state has burden of proof
3. legitimate and compelling purpose
4. narrowly tailored
5. least restrictive of adv. ends
________________________
exception is when state has legitimate and compelling interest.

2. Jacobson case--

3. Glucksberg

Front 30

------unenumerated fundamental lib interests------------------




1. person was engaged in homosexual conduct.
---. caught and arrested.
--crt used rational basis--upholding that statute that made it a crime.
__________________________

2. --used Casey standard for personal autonomy.
--what you do with two consenting adults is ok--

crt used Casey standard for personal autonomy.

Back 30

right to choose personal autonomy in the privacy of your own home.

1. hardwick---Hist.

2. Lawrence v. Texas


strict scrutiny.

Front 31

what are the unenumerated NON-Fundamental rights


1. regulating work hrs.
2. shipping milk
3.advertising trucks

Back 31

rational basis standard.
1. interest is not fundamental
2. interest must be legitimate.
3. interest must b rationally related to legitimate state purpose
__________________________

1. state usually cannot interfere with person k
(people have freedom to contract)

2. Freedom to carry out one's business.

A. Lochner--
B. Carolene--
C. Williams--
---claimant lost under these standards-------

Front 32

what does are the amendments for equal rights.

Back 32

14th--applies to the state by way of due process

5th applies to the government
(this is implied and not express)

Front 33

equal protection-------------

what are the question needed to asked for equal protection claims.

Back 33

1. was there a classification or distinction that was objected to?

2. was the classification justified?

Front 34

equal protection----------

A. suspect?

1. marriage
--states did allow inter-racial marriage (freedom to marry) = fundamental rights.

2. get kid--------mom married blck man and dad wanted kid back.

3. prisoner still get to use strict scrutiny.
___________________________

Quasi suspect? gender affirmative action
___________________________
Non suspect?

1. only owners can adver. on their vehicles trains.

2. diff. cable pricing depends on who owns the building.
------claimant has the burden of proof.-----

Back 34

1. suspect= strict scrutiny
A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.
------state has burden of proof----
1. Loving v. VA---marriage
--states did allow inter-racial marriage (freedom to marry) = fundamental rights.

2. palmore-- get kid--------mom married blck man and dad wanted kid back.

3. Johnson v. CA-----prisoner still get to use strict scrutiny.

1. prisoners still get to use strict scrutiny if they are racially discriminated against.

___________________________ Quasi suspect= intermediate.
A.substantially related
b. legitimate and important gov. objective.
-----state has burden of proof----
___________________________
non suspect= rational basis.
a. rationally related
b. has legitimate purpose.

1. Railway express-----

2. beach communication--

Front 35

what is the diff. btwn

De Facto v. De Jure

Back 35

1. De Fact = segregated due to practice that was used--
---the habit stayed with them.

2. De Jure = segregation by law

Front 36

how do you proof the types of classification.

for equal protection

1. statute did not allow blacks to ride in the same car as the whites.
_________________________

1. -voting rights
--in order to vote must be able to pass literary test.
--if not pass then grandpa must be able to vote b4 1800.

2. --asian were denied the license for a cleaning business.
--the whites were not.

=SS
__________________

1. ---black wanted to get into police academy but many failed
---this had a great impact but it by itself was not enough to show discrimination.
---it lacked intent.

= RB
__________________________
what is necessary for = protection to apply?

statute favored veterans over non-vets but claimant claimed this was a gender discrimination.

1. --the state only has to prove that state wanted to treat one group diff.

=RB

Back 36

1. Direct evidence.
---on its face the statute discriminates.
----A.
1. Plessy---direct evid.
___________________________
2. circumstantial--evidence leads us to believe that it discriminates.

1. Guinn--
2. Yick case--
_________
1. disparaging or negative impact--causing to have a negative impact on the person

A. Washington v. Davis.

___________________________
1. gov. must intend to discriminate---gov. must want this discrimination.

A. Feeney case

Front 37

equal protection----------------
school

---what is the standard evaluating ok if separate but equal.

1. ---separate base on race is ok.
---dissent = 14th was to eliminate race line in gov. decision

2. overturned Plessy
---separate can never be equal because of swat factors

Back 37

1. Hist-- Plessy case

2. Brown v. Board:
1. tangible
2. intangible things.

Front 38

equal protection---------------------

where there are no express rule or policy-----claimant must prove.

Back 38

intent
1. School intended to segregate
and
2. segregation resulted

Presumption
1. if 1and2 are shown the part of dist.= meant for whole.

2. where 1-2 have occurred in the past = meant to do it in the present.

Front 39

equal protection---------------

if intentional discrimination is found what is the remedy that state must provide.

Back 39

1. Stop discriminating.
and
2. fix the issue ( de-segregate)

"in a reasonable time"
"fix the issue as far as practible, as long as no fix number for student ratio = ok"

Front 40

equal protection---------------

what is the standard that is used.
fed.

1. ---fed. gave money for construct to give to minority contractor.
---racial but it wasnt for exclusion of majority.
---crt intermediate scrutiny.

2. ---fed. gave license to minority (woman also)
---intermediate scrutiny b/c not

what is the standard used---
__________________________

-----------for affirmative action---

3. --Fed. program gave contractor extra $$ if have disadvantage working for them.

---Strict scrutiny.---

Back 40

Federal gov.
----(not base on race exclusion)
1. Fullilove---intro- intermediate
(not race base b/c woman)

2. Metro broadcasting

purely on race.
A.substantially related
b. legitimate and important gov. objective.
-----state has burden of proof----
___________________________

--(race base)
3. Pena case-- fed.
---race advantage

---strict scrutiny.

A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.

****if base on race classification = strict scrutiny

Front 41

equal protection---------------
what is the standard that is used.

state jobs.
1. --city was making a mandatory for all 30% hire minority.
--crt used strict scrutiny.
A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.
___________________________

state education.

1. --cali-med school
--set number of seat set aside for minority.
crt used strict scrutiny and struck it down.

strict scrutiny=

v.

2. Mi law has many factor
race was one of them.

strict scrutiny.

A. narrowly tailored
race was not the only purpose.

B. advance purpose
yes higher education.

C. least restrictive means
only way b/c lottery would lower standard.

D. For a legitimate and compelling purpose.
diverse student body

-----------for affirmative action---

Back 41

1. Croson case
__________________________
1. Bakke case.

A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.

v.

Bollinger case

----------colleges------------

Front 42

-------------------equal protection
can affirmative action be made illegal.

Back 42

yes.

1.if state cant justify it.

2. if interferes with individual liberty.

3. No fundamental right to be racially preferred.

Front 43

-----------------equal protection
can race be used as a tie breaker for placing high-school students in certain area.

1. school had too many one race in one school
2. shipped kids to diff. disctrict.

--crt used strict scrutiny. '

--school tried to used racial diversity= colleges lost b/c this infrigned on parents individual rights to where they want to live.

school only used race as deciding factor.

crt struck down.

Back 43

No.
--parents v. seattle school dist.

A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.

Front 44

--------------------equal protection
what is the standard used to evaluate gender classification--

Back 44

1. gender classification
def.
---physical diff b/t men and woman which leads to cultural diff

2. --- if gender classification is always intermediate scrutiny.

3. standard= state must prove
a. important purpose
b. substantially related.

Front 45

-----------------equal protection
what is the hist.

and prevent view of the standard--

1. the crt have used various level of scrutiny for the gender until recently.


Now---------------


4.--all boys military school but woman wanted to get in.
crt used intermediate scrutiny.

Back 45

1. Reed v. Reed ---
-rational basis-------------------
1. interest is not fundamental
2. interest must be legitimate.
3. interest must b rationally related to legitimate state purpose
1. Reed v. Reed
___________________________
_______now_____________

2. US. V. Virgina

--crt used intermediate scrutiny.
A.substantially related
b. legitimate and important gov. objective.

Front 46

-----------------equal protection

what is the remedy for gender classification.

what is the standard use.

1. woman get more retirement benefits than men
---this ok b/c remedy past wrong.

2. Program that was for woman nurses only.(men)
---not ok b/c there was never discrimination for woman.

3. woman did have to pay alimony but men had to.
--state was protecting rich woman
--statute had no legitimate & important gov objective.

Back 46

1. Gender affirmative action
--use intermediate scrutiny
--crt used intermediate scrutiny.
A.substantially related
b. legitimate and important gov. objective.

WHO-----------

1. weber case =
2. Hogan case =

3. Orr case----

Front 47

alien = equal protection----------

what is the standard of review for
discrimination at the

1. fed.

1. congress condition aliens eligibility for med. insurance based on residency in the US for more than 5 yrs and having applied for permanent status.

state.
2. denied walfare benefits to legal aliens residing in the state of california.
__________________________

what is the exception.

3. man wanted to be a notary
--he was denied by used of rational basis.
--certain jobs state can justify saving it for a citizen.

Back 47

1. fed. = non supect = rational basis
---
1. interest is not fundamental
2. interest must be legitimate.
3. interest must b rationally related to legitimate state purpose

1.-------- matthew V. Diaz (fed.)
--rational basis
--Gov. should have control over foreign affairs.
___________________________
2. state level= suspect =
strict scrutiny--------
A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.
---state has no interest in distinguishing b/w US citizens and legal aliens.

2.---- Graham v. Richards. (state)
--state should not have control of who gets what(against 14th amendment)
__________________________

3. public function exception
--if the job has implementation of broad public policy then it might be able to be reserve for citizens.
------Fainter.

Front 48

equal protection-------------

what is the standard of review for illegitimacy.

illigitimate child could not get support from dad unless dad claimed the kids as his own before he was 6.

what is the rational behind it-----

Back 48

Intermediate scrutiny= Quasi suspect. ( sex/legitimacy)

1. legitimate and important state interest.
2. and substantially related to furthering a state interest.

rational= not like race but social discrimination, kids have no control.
__________________________


4. Clark

Front 49

equal protection 14 - 5th
gender classification--------------

what is the standard of review.


A. state had statute that dad did not have any rights unless

--a. he spent time with the kid
--b. live with the kid
--c. had his name on the birth certificate.
----state won cause the guy did make any effort to get the kids.

Back 49

Intermediate scrutiny= Quasi suspect. ( sex/legitimacy)

1. legitimate and important state interest.
2. and substantially related to furthering a state interest.

rational= not like race but social discrimination, kids have no control.
___________________________

Robertson.

Front 50

equal protection 14 - 5th
-------for a class of one------------
what is the requirement.

what is the standard of review.

what is the exception.

person wanted hook up to city water supply but the city made her give up 9ft while others only had to give up 3ft.

Back 50

1. person must be singled out for disfavored treatment as compared to similar other person= state has no justification.

2. standard of review = rational basis.

---Village of willowbrook

EXCEPTION= public employment. ( most are at will )

Front 51

equal protection 14 - 5th

what is the requirement for
A. adult aliens
B. For children aliens.

TX had statute that prohibits children from getting an education.
---state did not have a legitimate interest b/c alien would have stayed in the state and worked their.----

Back 51

A. rational basis
1. interest is not fundamental
2. interest must be legitimate.
3. interest must b rationally related to legitimate state purpose

B. Intermediate Basis.
1. legitimate and important state interest.
2. and substantially related to furthering a state interest.

----plyer v. Doe

Front 52

equal protection 14 - 5th
Privileges or immunities------

what are the 3 aspects to travel protection.

CAli limited welfare to only person whom have been in the state less than a 1yr.

Back 52

1. Right to enter and leave a state and travel across a diff. state.

2. right to visit a state and not be discriminated against (fundamental privileges)

3. Right for US citizen to beform a citizen of any state when they decide to reside there.

Saenz v. Roe

1. violation b/c citizen of diff. state not be treated the same as in state.

2. this law seems to keep the poor out.

3. level of review is
strict scrutiny.--------------
A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.

Front 53

equal protection 14 - 5th

what are the fundamental interest protected by equal protection.

Back 53

1. right to vote
--equal access to judicial process regardless of the wealth.
--Ct uses EP though protection a fundamental interest.

2. Equal access to judicial process regardless of poverty.

----this usually applies to criminal when stat give convict the right to appeal.
--if the person does not have the money to appeal= state must provide for this.

Front 54

equal protection 14 - 5th

1. EP requires substantial equality of pop. btwn the districts

2. Art 1 sec. 2 votes being counted. equally

3. recount the votes in Fl
--rights to have the ballet counted =ly
--Fl failure to provide standard to count vote was EP violation of b/c vote not counted -ly

Back 54

1. Reynolds v. Sims (state districting)

2. Karcher v. Daggets.

3. Bush v. Gore.

Front 55

2nd amendment rights to bear arms.
_________________________
" a well regulated militia,...the rights of the people to keep and bear arm, shall not be infringed."

1. DC. Ordinance prohibits hand guns in homes and only allows other personal weapons to be locked and dissembled.
---crt can have gun in the home for defense.

1. oak park and chicago ban all guns in the city. crt applying heller v. DC.
--this only applies to DC. an extension of fed. gov.
--crt said nope applies to state by way of 14th.

Back 55

1. DC v. heller ( applies to fed.)

2. Mcdonald v. chicago.

Front 56

1st----------freedom of speech.

1. regulation prohibited inserts in billing envelopes dealing with controversial issues.

2. Criminalized scandalous and defamatory newspaper.
crt stuck down= regulation on speech.

what is the 3 exception
--case.
kkk leader was talking and exciting people to commit a crime.

Back 56

1. edison co. v. NY.

Rule
1. if content neutral=
a. reasonable
b. time.
c. place
d. manner
-- if content based = burden is on the state to prove it has a good interest.

2. Near v. Minnesota.
(can injunt a newpaper only if public nusance)

---exception crt can allow restraint---
1. countries at war (info. important.

2. obscene material

3. speech inciting others to perform illegal activity.
Brandenburg v. OHio test.(state can outlaw)

1. immediate lawless action
2. immediate lawless action must occur.
3. subjective and objective test.

Front 57

1st----------freedom of speech.
compelled speech.

1. crt required people to pledge to the flag was unconstitutional

2. state required everyone to have motto live free or die on the car.

3. state require every newspaper to give space if talking about political candidate--so they can respond.

4. fed. statute prohibits persons from giving money and expert advice to a group that might be related to a terrorist organization.

Back 57

compelled speech.

Gov. cant compel you to approve of an action that you otherwise would not approve of.

1. Barnette v. state board.
2. Maynard v. wooley
3. tornillo v. miami herald

basis = strict scrutiny.
__________________________
exception

4. holder v. Humanitarian law project.
crt used strict scrutiny and still won.

Front 58

1st----------freedom of speech.
obscenity is a less protected category.

1. publisher has book full of dirty pics. and put ads in the newspaper with dirty pics. = was convicted.

2. state prohibits public displays of obscene material even by consenting adults.

3. Movie house punished for showing obscene movie.

Back 58

Miller case
crt = test for unprotected speech.
1. average person-community standard find work= prurient)

2. hardcore sex conduct.

3. slap test
work lack
---serious scientific
---literary
---artistic
_________________________

2. paris adult theatre.
--state can regulate obscene in public.
--state can do it in the privacy of own home.
---political value.

3. Jenkins v. GA
--crt minimum standard =
1. hardcore
2. ultimate sexual act.

Front 59

child porn----------1st

does the 1st amendment protect child porn.

what is the issue.

Back 59

----NO
if a statute targets child porn-it is justified.
--visual depiction of actual child having sex, or lewd exhibition of minor genitals

--over breath of doctrine---
if the statute prohibits substantial amount of protected speech then statute cannot be justified.

Front 60

child porn-------------1st

1. Statute that creator or possessor of images of children or what appears to be a child engaging in explicit sex
-----what are the 3 ways to justify the state statute

2. fed. statute prohibits advertising or soliciting of materials intentionally described as
___________________________
1. obscene images of a minor engaged in sex explicit conduct.

2. Image of actual minor engaged in sex explicit conduct advertisement was targeted.
--crt upheld if conduct is illegal then offer then offer to engage in that conduct is unprotected------

Back 60

Ashcroft case

-----1. Strict Scrutiny=
A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.

-----2. Child porn
A. visual depiction of actual child having sex, or lewd exhibition of minor genitals.

------3. Obscenity
A. Miller test
crt = test for unprotected speech.
1. average person-community standard find work= prurient)

2. hardcore sex conduct.

3. slap test
work lack
---serious scientific
---literary
---artistic
--------state lost b/c statute overboard.---------------------

2. US v. Williams

Front 61

child porn-------------1st
**sexually oriented speech.
1. Fed. stat. required inappropriate T.V. to be time blocked so only could be put on late night.
---crt used strict scrutiny-----

Back 61

US. v. Playboy
Sexually oriented speech can be protected if it is too much of restriction on free speech.

---act is also considered= form of speech.

Front 62

-------regulation of commercial speech---------------------------1st

--what is the history for commercial speech-----

1. statute ban on promotional advertisement utility company.
--here the states failed b/c the advertisement was to benefit everyone-----

2.
--statute banning any tobacco product w/n 1000ft of playground and school.
--No in store add lower than 5ft.
-----state lost.

Back 62

--until 1975 commercial speech was not protected.----

1. Hudson case.
test
---A. Gov.substantial interest.
---B. Reg. directly advance interest.
---C. Reg no more extensive than necessary.
***offers to carry out illegal action and fraudulent = unprotect.

2. Reily case
---this was not narrowly tailored.

Front 63

--regulation of offensive speech---1st

def. fighting words.

provoking a riot.

1. guy wore a coat that said fuck the draft. and was arrested for a breach of peace.
----state lost b/c they could not satisfy strict scrutiny.

Back 63

fighting words = personally abusive epithets likely to provoke a violet reaction--(have to address the person)

provoking a riot--police must first try to clam the crowd and warn the speaker.

1. Cohen case
---state lost b/c dude shirt didnt meet any standard that it was set out.

Front 64

symbolic speech----1st amendment

1. person burned his draft card to protest the war and was convicted of knowingly destroying the draft card.

2. dude burning the flag and there was statute against it.

Back 64

1. Obrian case
test
--A. gov. purpose is unrelated to suppression of speech
--B. regulation furthers a substantial interest.
--C. restraint on 1st amendment no greater than what is necessary.

2. texas v. Johnson
test for expression of speech------

I. intent to convey particularized message (subjective)

II. Great likelihood people viewing the message would understand it (objective)

Front 65

intimidating words-----------1st am

1. statute that made it crime for anyone to burn a cross in public place.

Back 65

Virginia v. black

crt = statute making a burning a cross illegal is not correct because it is overboard.

Intimidating words are not protected. ---

cant get prosecuted under it.

intimidating words= a threat where the speakers directs threat to a person or a group of person with intent of placing victim in fear or harm or death.

Front 66

expression of speech-------1st am

city passed anti-public nudity statute-strip club challenges for violation of freedom of speech.

Back 66

city of erie v. Pap's am
---court upheld the statute b/c of its secondary effect.----


***this usually applies to erotic dancing***

Front 67

expression of speech-------1st am

state had statute that made it illegal for person to have videos of animal cruelty.

cruelty is defined as an depiction of live animals intentionally mutative, tortured, wounded or killed.

Back 67

U.S v. Stevens--struck it down
--the statute was too board.

Front 68

campaign financing----------------

what is contribution.

What is expenditures.

Back 68

contribution=
money is given to favored party, committee or association.

----regulation of contribution
1. closely drawn test =
---closely drawn to meet important gov. interest.
----to prevent corruption or the appearance of corruption.

-------not so much a restriction on communication.---------
___________________________
expenditures=
money spent on adverts and messages to commentate to a public opinion.

review used = strict scrutiny.
A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.

-----purpose this is restriction on communication-----
___________________________

Front 69

campaign financing------------

after watergate gov. tried to restrict contribution made for political campaign in fear of corruption.

1. crt found restriction on individual to contribute funds to the candidate did not violate 1st. (restriction = less corruption)

2. expenditure= violation of 1st amendment restricting communication ( no $$ change of hands) so they can do with whatever they want.

Back 69

1. Buckley v. Valeo
--crt used strict scrutiny
A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.

Front 70

campaign financing---------------

1. ban on political party getting undregulated $$ (contribution)

2. ban on local party getting $$

3. ban on expenditures.

4. need disclosure requirement.

---this was to ban soft money from gettng in.

crt upheld the regulation using---
closely drawn test--NOT strict scrutiny.

Back 70

McConnell v. FEC
hard money=money that was given by to candidate that was regulated and counted for.

soft money was unregulated money.

---3 crt used strict scrutiny and found unconstitutional.----

A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.

Front 71

campaign financing---------------

1. group made video of Hillary corp. made it which was against BCRA ban on electioneering communication and disclosure requirement.

2. gov. tried to protect form corruption.

3. ct said not there was no money on political ads,
---Not gov. to decide how the public gets the info.

Back 71

Citizen v. FEC.

cant regulate how the public gets it info. if it doesnt deal with political issue.

Front 72

campaign financing---------------

1. statute limited the amount a candidate can spend form his personal/family wealth.

---crt struck this down.

Back 72

1. Buckley
---crt struck down the statute
--Not a state business to tell candidate how much they can spend on their campaign.

crt used SS
A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.

----leveling the playing field is irrelevant.

Front 73

campaign financing---------------

1. statute if the opponent substantially spends more personal wealth than the candidate does
2. then the candidate supporters can give him contributions in excess of statute limits to offset this diff. in expenditure of personal wealth.

Back 73

Jackson Davis v. FEC

crt used strict scrutiny.
crt used SS
A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.
----crt cant decide how much people want to spend= cant limit expenditure.

= 1 amendment-form regulation.

Front 74

what is the time, place and manner test.

regulated speech people from picketing in front of someone's house;
--state specifically banned picketing in front of a particular resident.

--picketing is a form of political speech that should be protected
--when it is done in a public forum.

Back 74

Frisby v. Schultz

1. Regulation must be content neutral.
---does ban just one type and allow others.

2. Must serve a significant gov. interest.
---like protecting people privacy.

3. Narrowly tailored.
---like banning only picketing in front of someone house.

4. Must leave alternative channels of communication.
--Picketers can still picket in the neighborhood, so long as it is not in front of someone's house.

Front 75

speech on state owned prop-------

1. Regulation banning the distribution of flyers and solicitation .

2. group argued that the airport was a public space.

3. crt airports new and non-traditional
_________________________
what is allowed for traditional public forums.

what is the designated limited public forum
________________________
what is for non public forum

what is gov prop. not subject to form analysis(closed gov. to pub)

Back 75

International society of Krishna v. lee
________________________

1. traditional public forums applies to roads, sidewalk, parks, publicly owned.

protected by strict scrutiny.------
A. narrowly tailored
B. advance purpose
C. least restrictive means
D. For a legitimate and compelling purpose.
**or less protected category

--designated unlimited public form area------------
1. strictly designed by state intentionally for anyone to talk about anything publicly.

2. as long as it is open and unlimited the speech is protected by strict scrutiny or ****less protected category.

3. state can take away at with sufficient notice.
__________________________

designated limited public forum.
1. limited public forum.
--gov. open the form for a specific class of speech or specific type of speech.
---regulation must be reasonable and not view point bias.

---------Non Public Forum---------
1. its open to the public for a specific purpose not for communication activities.

2. regulations must be reasonable and

Front 76

what is gov prop. not subject to form analysis(closed gov. to pub)

1. people wanted to petition at the airports and gov. did allow it.

2. city gov. put in a monument in the park of a religious figure and the people wanted to put their own in the park also--gov said no.

3. city doesnt allow signs on resident prop. but some signs were allowed--this all depends on what the sign said.
---crt ruled this type of action was unconstitutional.

Back 76

---------Non Public Forum---------
1. its open to the public for a specific purpose not for communication activities.

2. regulations must be reasonable and not view point bias.
---gov. prop. which is not subject to form analysis
___________________________

1. Krishina conscious Inc. v. Lee

crt used the time, place and manner test.

2. Pleasant grove v. Summuns.
--crt traditional form doesnt apply when talking about monument in a public form.

3. City of laude v. Gilleo
--crt ruled for Gilleo b/c this was restriction on 1st amendment.

Front 77

what is the diff. btwn

1. establishment clause

2. Free exercise.

Back 77

1. establishment
-- government benefit religion

2. free exercise
--gov. punish reglious belief or burdens religion practice.

Front 78

what is the test when the state statute on it face is discriminate on its face.
___________________________

what is the 3 test--for the establishment clause.

Back 78

1. when the statute is discriminatory on its face then crt uses= SS.
___________________________

1. lemon v. kurtzmen test(leading test) strict separation.

state must show it did have 1.purpose of advancing religion
or
statute does not have 2. effect of advancing religion.
__________________________
2. Endorsement test= Neutralists

state must show that it did not endorse the advancement of religion.
__________________________
3. Coercion test = accommodationists

A. Does the statute either coerce belief or participation in their religious practice.

Front 79

Religious practice in public school---

1. students were praying at football games.

2. state has policy of clubs using public facilities for any legal thing. A club wanted to use the facility for singing and praising.
crt ruled in the club favor because the denial was wrong because it was view point bias.

Back 79

1. Santa Fe independent school district v. Doe
---crt found violation b/c
lemon test---------------------
A. it advance religion = fail
B. effect was to adv. religion= fail
Endorsement test----------------
the school was endorsing religion= fail.
coercer----------------------------
some students were forced to attend.
= coerced.
__________________________

2. Goodnews clube v. Milford.
A. limited public forms regulation must be reasonable and not view point bias.

Front 80

religious display of prop.-------------
1. texas had the 10 commandments placed on the ground of the state capitol in ground--someone sued against it.

Back 80

1. Van orden v. Perry.
--the crt didnt use any particular test
--it just stated it was a recollection of hist. nor endorsement of religion
--it did not stand out more than any other monument.


((crt looked at the hist))- was state acting with purpose of advancing religion.---

Front 81

aid to school-----------------------

1. Fed. program gave money to teachers to teach in public school and private schools remedial classes to students. First the court did find it was a violation of establishment clause but the reversed it 12 yrs later.

Back 81

1. Felton--------------
--the crt used lemon test.
A. if advances religion then statute fails
B.Does it have the effect of advancing religion.
----crt concluded that = program was neural
----teachers have freedom to chose

Front 82

what is the religious test for fed. office.

---what is the free exercise analysis.

1. particular religion sect was targeted--the state outlawed animal sacrifice.
--crt ruled it was targeting religious= SS

state was not able to justify b/c they let people do experiment and hunt.

2. state statute ban and criminalized peyote, it was part of native American ritual

Back 82

1. freedom of religion and the ability to exercise has been incorporated into 14th.
---gov. cant impose a religious test on employees-----------

1. does the state punish religious belief
2. practice.
----if the statute targets religious = SS.
----if not then use rational basis.
___________________________

state must intend to discriminate if want to keep it = SS

1. church of Lukumi v. city of Hialeah.

----vs.


--did not intend to discriminate.
2. oregon v. smith

crt upheld the statute because this was ban peyote across the board. = (unintentional) rational basis.

Front 83

what is the play in the joint.

could get funding as long as did not want to become religious study.

crt-reasoning was main motivation was to protect people from being taxed to support clergy = was in line with framers intent.

1. fed. mental institution and prison burdens religious practice = SS if substantial burden the practice of religion.
**prisoner filed that prisoners were not giving them right to meeting religiously= crt said prisoner lost*****

2. person was getting scholarship from the state but but if going to religious school then=no scholarship.

Back 83

--statute that does not attract S.S or violate lemon law test even though state statute expressly make acceptions for religion.
___________________________

cutter v. wilkson = flexibility in the establishment

lorke v. davey -- flexibility in the free exercise clause