Con Law Ii

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Strict Scrutiny: Standard of review

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upheld only if it is necessary to achieve a compelling or overriding government purpose

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Strict Scrutiny: Burden of Proof

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Applied to the government. Won’t allow over inclusive (reaches too many people) or under inclusive (does not reach all of the people or conduct sought to be regulated)

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Due Process Clause of the 14th Amendment: What is the standard of incorporation of Bill of Rights?

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Whether it is essential to “the concept of ordered liberty” or whether it is "deeply rooted in this Nation’s history and tradition (American scheme of justice).”

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First Amendment Rights

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Speech, press,assembly, right to petition, free exercise, and nonestablishment of religion

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Fourteenth Amendments prohibits states from ...

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... depriving any person of life, liberty, or property without due process and equal protectionof the law.

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Fifth Amendment Due Process Clause prohibits ...

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... federal government to deprive a person of life, liberty, or property, without due process of law

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Legitimate liberty or property interest taken if person ...

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(i) Loses significant freedom of action; or

(ii) Is denied a freedom provided by the Constitution or a statute.

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Injury to reputation: Is it deprivation of liberty or property interest?

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If governmental acts (such as a statement of reasonsgiven for termination of public employment) so injure a person’s reputation that he willhave lost significant employment or associational opportunities, there is a loss ofliberty.

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How is a benefit determined as property?

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Must be a legitimate claim or “entitlement to the benefit under state or federal law.

*abstract need or desire for (or a unilateral expectation of) the benefit is not enough.

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Intermediate Scrutiny: Standard of review

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Law will be upheld if it is substantiallyrelated to an important government purpose.

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Intermediate Scrutiny: When Used

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when a classification based on gender or legitimacy isinvolved.

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Rational Basis (Minimal Scrutiny): Standard

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Law will be upheld if it is rationally related to a legitimate interest. It is difficult to fail this test, so most governmental actionexamined under this standard is upheld unless it is arbitrary or irrational.

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Rational Basis Standard: Who bears burden of proof?

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Challengerhas the burden of proof. This is a very difficult burden to meet, given the deference theCourt gives to legislatures under the rational basis standard.

Court will uphold a law taking a“first step” toward any legitimate goal.

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Fundamental Right standard?

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Strict scrutiny will be applied & law will be upheld if gov't can prove that action is necessary to promote a compelling or overriding interest

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Fundamental Rights include ...

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1st Amendment Rights

Voting

Privacy

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Vagueness Doctrine

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Under the Due Process Clause of the Fourteenth Amendment, a law can be held unconstitutionalif it fails to provide minimal guidelines to govern law enforcement officersso as to discourage arbitrary and discriminatory enforcement.

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Mere Rationality: Standard

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Law will be upheld unless thechallenger can prove that the action is not rationally related to any conceivable legitimateend of government

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Equal Protection: Standard for suspect classification or fundamental right

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Strict scrutiny; action will be struck down unless gov't proves that it is necessary to achieve a compelling interest.

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Equal Protection: Standard for Quasi-suspect classification

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Court will require gov't to prove action is substantially related to an important gov't interest

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Equal Protection: Standard for other classification (not suspect or quasi-suspect)

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Action will be upheld unless the challenger proves that the action is not rationally related to alegitimate government interest.

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Does mere fact that gov't action has a discriminatory effect enough to trigger strict scrutiny or intermediate scrutiny?

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No. There must be intent to discriminate on the part of the government. Intent can be shown in three ways:

(i) facial discrimination;

(ii) discriminatory application; or

(iii) discriminatory motive.

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Standard to prove disporportiante impact in discriminatory purpose law

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Mere statistical evidence will rarely be sufficient initself to prove that the government had a discriminatory purpose in passing a law.

Statisticalevidence may be combined with other evidence of legislative or administrative intent to showthat a law or regulation is the product of a discriminatory purpose.

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Suspect Class includes ...

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Race, national origin, alienage

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Quasi-Suspect Class

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Classifications based on gender or legitimacy are almost always suspect. Will apply intermediate standard and strike the action unless it is substantially related to an important gov't interest.

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Gender discrimination: What must gov't prove?

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“exceedingly persuasive justification” is required to show gender discrimination is substantially related to an important gov't interest

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Other classification: Standard of Review

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Rational Basis Test:

Will be upheld unless they bear no rational relationship to any conceivable legitimate government interest. Nevertheless,if the government has no interest in denying a benefit or imposing a burden on a group of personsother than a societal fear or dislike of them, the classification will not meet the standard.

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Fundamental Rights; Privacy; Right of Parents

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Parents have a fundamental right to make decisions concerning the care, custody, and controlof their children.

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To justify content-based regulation of speech, gov't must show?

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The reg or tax was necessary to serve a compelling state interest and is narrowly drawn to achieve that end

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Content-Neutral Speech upheld if ..

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(i) they advance important interestsunrelated to the suppression of speech, and

(ii) they do not burden substantiallymore speech than necessary or are narrowly tailored to further thoseinterests.

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Conduct based speech allows what kind of regulation?

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Time, Place, and Manner

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Government must prove what in Public Forums and Designated Forums ?

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Must be narrowly tailored to achieve important government interest, and must leave open alternative channels

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Limited Public Forum & Nonpublic Forums must be what for courts to uphold?

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Must have reasonable relationship to a legitimate regulatory purpose

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Content-based speech exceptions

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Clear and Present Danger of Imminent Lawlessness

Fighting words

Obscenity

Defamatory Speech

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Symbolic Speech: O'Brien Test

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Court will hold up if:

(i) the regulation is within the constitutionalpower of the government;

(ii) it furthers an important governmental interest;

(iii)the governmental interest is unrelated to suppression of speech; and

(iv) the incidentalburden on speech is no greater than necessary.

i.e., burning draft card upheld b/c it protected government important interest in facilitating smooth functioning of the draft system

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O'Brien Test used when?

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For speech related to conduct that is undertaken to communicate idea.

i.e., burning draft card

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Commercial Speech definition

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Expression related solely to the economic interests of the speaker and its audience

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four-part test to determine the constitutional protection provided commercial speech.

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speech must not be misleading or related to unlawful activity—such speech is not protected by the First Amendment. Second, the asserted government interest must be substantial. Third, the government regulation must directly advance the governmental interest asserted. Fourth, the regulation must not be more extensive than is necessary to serve that interest.

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Defamation; Actual malice defined as what?

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Knowledge of falsity or reckless disregard as to the truth

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Public Forum is what?

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Public property that has historically been open to speech-relatedactivities (streets, sidewalks, public parks)

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Designated Public Forum is what?

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Public property that has not historicallybeen open to speech-related activities, but which the government has thrown open forsuch activities on a permanent or temporary basis, by practice or policy

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TPM test

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must be content neutral, narrowly tailored to achieveimportant gov't interest, and leaveopen alternative channels of communication

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narrowly tailored means what?

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may not burden substantiallymore speech than is necessary to further the significant government interest

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clear and present danger

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(i)is directed to producing or inciting imminent lawless action, and (ii) is likely to produceor incite such action.

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Obscenity

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description or depiction of sexual conduct that, taken as awhole, by the average person, applying contemporary community standards:

(i) Appeals to the prurient interest in sex;(ii) Portrays sex in a patently offensive way; and(iii) Does not have serious literary, artistic, political, or scientific value—using a national,reasonable person standard, rather than the contemporary community standard.