Conlaw Ii

Front 1

Three General Standards in Equal Protection

Back 1

1. people who are similarly situated should be treated similarly

2. Real differences must exist to treat people differently

3. laws may not be capricious/arbitrary

Front 2

Yick Wo v. Hopkins

Back 2

Chinese laundry case, law violated EP because if was being enforced unfairly. Court held that statistics alone _are_ enough to prove governmental intent when dealing with enforcement. Also, violated 14th because absolute discretion was vested in a single administrator/entity.

Front 3

Strauder v. West Virginia

Back 3

Case regarding WV law categorically excluding blacks from juries. Was found to violate the EP clause of the XIVth. Could not deny participation solely because of their race, however, this does not guarantee that all juries will be composed similarly to the surrounding community.

Front 4

7 Factors of protected classification analysis

Back 4

Immutable
Stigmatized/Stereotyped
History of Discrimination
Legal Disabilities
Politically powerless
Highly visible
Relation between trait and ability to perform in society

Front 5

Is the activity being regulated expression?

Back 5

Test from Spence v. Washington,
subjective: Did the speaker intend to communicate some message?
objective: Would the reasonable person believe the speaker intended to communicate?

Front 6

Yates & Noto

Back 6

Cases regarding the Smith Act (anti-communist) which held that you cannot be prevented from membership in a group simply because it advocates future possible violent events. Led up to Brandenburg.

Front 7

Brandenburg v. Ohio

Back 7

Case regarding KKK member making videos that encouraged violence and "revengeance" that established the incitement/clear and present danger standard for dangerous speech.

Front 8

Craig v. Boren

Back 8

OK 3.2 beer case, where women could drink at 18 and men at 21. Established the intermediate scrutiny test as applied to gender discrimination.

Front 9

Equal Protection Rational Basis Test

Back 9

Rationally related to a legitimate government interest
(1) Is there a legitimate government interest?
(2) Is this law an appropriate means or has some tendency to be an appropriate mean?

Front 10

Equal Protection Intermediate Scrutiny

Back 10

(1) Is there a legitimate government interest?
(2) Is it an important/significant government interest?
(3) Is the law narrowly tailored to achieve that interest? (Likely/related)

Front 11

Equal Protection Strict Scrutiny

Back 11

(1)Does government have a legitimate purpose?
(2)Is this law related to a compelling government interest?
(3)Is the law is likely to achieve the goal?
(4) and is this law the least discriminatory means?

Front 12

Railway Express Agency v. New York

Back 12

Case regarding vehicle advertising in the City of New York, spawned some of the general principles behind current EP law.

Front 13

Adarand Constructors

Back 13

Case that firmly established SS in affirmative action cases.

Front 14

Grutter v. Bollinger

Back 14

UM Law school admission case. Clarified methods of using race that are acceptable for public university. Ok'd "plus factor" but companion case Gratz v. Bollinger, ruled that quotas were not ok. Also mentions that it is important that race-based distinctions must have an end in sight.

Front 15

Non-compelling interests (Bakke/Grutter)

Back 15

1)Reducing the historic deficit of traditionally disfavored minorities in college

2) Remedying societal discrimination

3) Matching the composition of the class each ethnic group in the state

4) Increasing the number of professionals who will practice in underserved communities

Front 16

Not Least Restrictive/Narrowly Tailored (Bakke/Grutter)

Back 16

1) Fixed Quotas

2) Separate admissions tracks for underrepresented minorities

3) Automatic 20-point bonus added to the scores of all underrepresented minorities

Front 17

Compelling Interests that Justify Use of Racial Preferences (Bakke/Grutter)

Back 17

1) Diversity

2) Remedying the effects of recent discrimination against disfavored minorities in America

3) Train Leaders

Front 18

Least Restrictive/Narrowly Tailored (Bakke/Grutter)

Back 18

A goal to produce a “critical mass” of underrepresented minorities like letting race be only one factor of many factors in the admissions process

Front 19

Equal Voting Rights

Back 19

a. Voting is a fundamental right [15th Amendment].
b. “One person, one vote.” [Reynolds v. Sims]
c. State voter lines must be drawn according to population [Reynolds].
d. Poll taxes used in federal elections violate the EP clause [Harper]. This clause does not pertain to state elections.
e. Gerrymandering (deliberate distortion of district boundaries) is generally valid for political purposes.
f. If race is the predominate reason for which the district is drawn, it is presumed unconstitutional and will have to pass SS (racial gerrymandering). The constitutional harm is that it will take away the integrity of the voting process, and that political identity should be predominantly racial.
NOTE: If racial classification correlates with political affiliation absent a showing that race was the predomindate reason for the drawing of the district, the district will be upheld.

Front 20

Reynolds v. Sims

Back 20

Case regard malapportionment of Alabama Legislature. Holds that seats in both houses of a state legislature must be apportioned on a population basis.

Front 21

Considerations when evaluating racial motivation in drawing a district

Back 21

1. The district looks irrationally designed, and there is no justification for the shape.
2. The district is oddly-shaped
3. The legislature has disregarded traditional districting principles

Front 22

United Latin American Citizens v. Perry

Back 22

Case regarding political gerrymandering in texas, no standard established for political gerrymandering, doesn't say it is political question though.

Front 23

Is there expression?

Back 23

a. Expression: “Whether the intent to convey a particularized message was present AND whether the likelihood was great that the message was understood by the average reasonable listener.
b. The message does not have to be understood.

Front 24

Frisby v. Schultz

Back 24

Abortion protester case. Addresses public forum doctrine. Applies IS + LaDue

Front 25

Public forum standard

Back 25

IS + LaDue
a. Narrowly tailored
b. Furthers a significant government interest
c. Leaves open ample alternative methods of communication (Ladue case)
d. Interest is unrelated to suppressing speech

Front 26

Non-public forum standard

Back 26

Adderley, RB + LaDue

a. Law is rationally related to a legitimate governmental interest and
b. The law leaves open alternative ample alternative channels of communication (Ladue case)

Front 27

IS this form public? Factors:

Back 27

a. Traditional
b. Limited public forum
c. Non-traditional public forum

Front 28

Is it content based?

Back 28

1. Restrictions based on the content of the speech
2. Harm resulting from the communicative impact
3. The default is Strict Scrutiny if the speech does not fall into a low value category or is not commercial speech.

Front 29

Hi value content based speech test

Back 29

SS

*indecent speech: Indecent speech: is fully protected and SS applies. However, protecting children’s ears or view AND making sure the message doesn’t surprise viewers who don’t want to receive the message is more compelling.

Front 30

Mid value CB speech test (so far, just commercial speech)

Back 30

Central Hudson Test (IS)

1. a lawful product
2. the speech is not misleading
3. substantial government interest
4. Does the regulation directly advance the government's goals (mean -> ends)
5. is the regulation overly broad/no more extensive than necessary

Front 31

Low Value

Back 31

Fighting words (Chaplinsky)
Threats
Incitement
Obscenity
Child Porn
Intimidation

Front 32

Obscenity (Miller v. California)

Back 32

1. Appeals to the prurient interest, as defined by the average contemporary community standards
2. Is patently offensive sexual conduct that is specifically defined in the state law (mere nudity doesn’t count)
3. The work taken as a whole lacks literary, artistic, scientific, or political value

Front 33

Child Porn (Ferber v. NY)

Back 33

i. Need not find the material appeals to prurient interests of average person
ii. Sexual content need not be patently offensive
iii. Need not consider material as a whole
iv. Must contain actual children

Front 34

VB speech

Back 34

1. Restriction because the government disagrees with the viewpoint of the message.
a. Done through coercion or suppression
b. Usually seen in political, national, or religious activities
c. THESE LAWS ARE PER SE UNCONSTITUTIONAL (Barnett Case)
2. The government is allowed to:
a. Grant subsidies or hand out grants to certain types of activites.
b. Have a voice (in favor of war)

Front 35

Prior Restraint

Back 35

i. Law is presumed unconstitutional and bumps up the SOR
ii. General sanction for violating prior restraint is a sanction.
iii. Ex—Permits, licenses, injunctions (An injunction is a judges order. An injunction can be appealed at the time it is ordered. Violating an injunction is called criminal contempt. You are barred from appealing the injunction if you did not do so when the injunction was ordered [collateral mattes])
iv. Lovell v. Griffin (permits); Nebraska Press Association v. Stuart (injunctions)

Front 36

subsequent punishment

Back 36

assumes that the communication has entered the market and the question is whether the disseminator of the communication can be punished.

Front 37

Intimate association

Back 37

1. Right to intimate associations is protected by the Constitution because it falls under the right to privacy. Therefore, they are immune from non-discrimination laws.

Front 38

Expressive associations

Back 38

1) Instill values (religious/political organizations)

2) Have the right to keep membership lists private (NAACP v. Alabama)

Front 39

Expressive association Test

Back 39

1. Does the organization engage in an expressive association?
a. Instilling values is an expressive association
2. Would admitting people from this group in the association substantially affect the group’s ability to consistently and effectively advocate public or private view points?
3. Does the organization clearly profess their beliefs and take an official position on the issue over time?
a. The professed belief can contradict the organization's goals (because the court will reject this sort of inquiry) because the message does not have to be written. The organization can express verbally or by example.

Front 40

NAACP v. Alabama

Back 40

Case where alabama tried to force production of membership list.

Front 41

Lynch v. Donnelly Test (FoR - EC)

Back 41

1. Government must not intend to endorse religion. (subjective) [PURPOSE PRONG]
2. The primary effect of the law must not be an endorsement of religion to the average reasonable person. (objective) [EFFECTS PRONG; note that acknowledgment or accommodation is OK]
An affirmative to either prong means the law is invalid.

Front 42

Free Exercise Test

Back 42

First, Apply Smith:
1. Generally applicable law
2. not directed at religion
3. not affecting other fundamental rights

If any of the above is false, then apply Sherbert:

1. Does the government impose a substantial burden on religion in laws? If so, apply STRICT SCRUTINY

Front 43

Liberals on FoR

Back 43

Interpret both clauses broadly.
E.C.= no religion in schools
F.E.= don’t have to participate in army if killing is against your religion

Front 44

Conservatives on FoR

Back 44

Interpret both clauses very narrowly.
F.E.=no one has the right to get out of combat.

Conservatives argue that issues dealing with religion and government should be resolved through the democratic process.

Front 45

Government displays

Back 45

When determining if a government display communicates a religious message, setting is important:

Other religious displays present
Context
time in place before challenge

Also, any resolutions passed in adoption of the monument can matter, see different results in Van Orden v. Perry and Mcreary.

Front 46

Lee v. Weisman

Back 46

Case where RI schools were going to permit benediction at graduation. Court ruled this was not permitted by way of EC. To pray in such a manner, even a nonsectarian prayer, is coercive.

Front 47

Elk Grove v. Newdow

Back 47

Case regarding "under god" in the pledge. Introduces "ceremonial deism" crap.

History, ubiquity, absence of reference to particular religion, absence of worship or prayer, minimal religious content

Front 48

Teaching creationism

Back 48

Not allowed Dover, Edwards, Epperson

Front 49

Religious school funding

Back 49

Transportation is ok (everson), direct funding not ok (Lemon v. Kurtzman), however, programs that involve "true private choice" (vouchers, etc.) are ok, (Zelman).

Front 50

Welsh v. United States

Back 50

Case where court sidestepped constitutionality of conscientious objector statute and ruled that the section in question "exempts from military service all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war."

Front 51

Establishment Clause, generally

Back 51

-may not intend to endorse
-average reasonable person may not infer that government is endorsing religion
-no excessive entanglement
-subective component
-government must have secular intent
-objective component
-primary secular effect
-Lemon test

Front 52

NYT v. US

Back 52

Case regarding publication of study relating to the vietnam war that was classified top secret. Court ruled to lift the injunction granted by a lower court. Establishes rules regarding prior restraint, that there is a heavy presumption against their validity. congress shall make no law, press was to serve the governed.

Front 53

Media cases

Back 53

Red Lion - upheld fairness doctrine in radio in light of limited air waves and lack of ownership
Miami Herald - Newspaper case on fairness doctrine, held unconstitutional as it greatly interferes with the editorial power of those at the newspaper
Pacifica - Carlin's Filthy Words broadcast, on radio at 2pm. Punishment for indecent but not obscene broadcast ok? Yes, but not when children would likely hear. Broadcasts constantly confront the citizen in and out of their home.
Sable - affirmative steps on the part of the listener matter when attempting to ban speech (law tried to ban dial porn services).