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121 Cards in this Set
- Front
- Back
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What is a fundamental right?
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One inherent in the concept of ordered liberty, for which we look to history to tell us.
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Natural rights
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come from God, exist just by being in nature.
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Is religious freedom fundamental.
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for sake of
1. religion 2. political freedom 3. intellectual freedom 4. personal autonomy 5. avoiding divisiveness |
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How does religious freedom lead to intellectual freedom?
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Number 4 personal autonomy.b
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Sherbert v. Verner
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facts: 7th day does not want to work sunday and is fired and denied unemployment benefits.
rule: 1st ammendment requires she get the benefits. |
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Why can a person get unemployment for refusal to work?
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the claimant was denied benefits just as any other claimant would be denied benefits who was not 'available for work' for personal reasons."
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Does the constitution require an exception?
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The constitution does not require an exception to the rules of eligibility for benefits, which require availability for work.
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Wisconsin v. Yoder
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A member of Amish was fined b/c he refused to send his children 14 and 15 to public school as required by the state's compulsory education law.
Held: The app of this law burdened the religiously-inspired practices of Yoder. |
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US v. Lee
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Amish employer sought exemption from participation in Social Security programs.
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What is the Lee test
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Does the government have a compelling interest? An extra year of school is not. Social Security is.
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Peyote Case
Dept of Human resources of Oregon v. Smith |
Issue: Whether Oregon's law against sacramental use of peyote - and its refusal to grant an exemption - was a violation of the Free Exercise Clause.
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compelling interest
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An interest of equal or greater value than the interest advanced by the plaintiff. And this is the only way to achieve the interest and the statute is tailored to achieve that interest.
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HOw is strict scrutiny different in peyote than in Yick Wo?
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In discrimination it requires equal treatment, in 1st amendment it requires disparate treatment.
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Is disproportionate impact a trigger for strict scrutiny?
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No
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What is an undue burden on religious belief?
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Is the impact of the law on the belief real severe and intrusive.
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Lemon Test?
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1. Is there a secular purpose
2. Is the primary effect not to advance or inhibit religion. 3. No excessive entanglement with religion or church. |
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What does Scalia think of the Lemon Test.
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A ghoul that the Supreme Court summons at will to do some good then puts back in the grave.
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Coercion means?
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Coerce anyone to participate in a religious ceremony.
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Zorach
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facts : off-campus religious instruction for.
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Wallace v. Jaffree
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facts: meditation or voluntary prayer.
rule: conscious attempt to require prayer. |
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Lee v. Weisman
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Issue: whether school officials may have a prayer at a school event.
Dominant facts? State officials direct performance of a formal religous exercise at pormotional /graduation ceremonies Attendance and participation in the state sponsored religious activity are in a fair real sense obligatory, " though the school district does not require attendance as a condition for receipt. . . " |
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What is the establishment clause's meaning according to Kennedy
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Government may not coerce anyone to support or participate in religious or in exercise, or otherwise act in a way which " establishes a [state] religion or religious faith"
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Test Q: After assuming office in a st court in northern VA, Judge Faith Truheart removed portrait of Rob e. Lee and Stonewall Jackson from her courtroom. She replace them with fine reproductions of the best know portraits of Saint Thomas Moore and James Madison.
Next to Moore's best known portaits she placed framed calligraphy of Moore's last words: " I die the king's good servant but God's first." Next to Madison's portrait she put up calligraphy of Madison's words: "Tis the duty of A litigant |
1. (frame the issue) Are the pictures and calligraphy an establishment of religion?
2. |
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answer these
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what central issue of law
What standard of judicial review? Should the injunction be granted? Why or Why not? |
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Under God in the pledge unconstitutional?
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Lemon test:
1. secular purpose: y - flag solute/ n-no with under God 2. Primary effect? 3. Coercion : Kennedy vs. Scalia conversion. |
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O'connor on endorsement
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reasonable person test.
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Justice Thomas
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Only congress is forbidden from establishing. The 14th applies only to the portions of the Amendment that pertain to an individual.
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Epperson v. Arkansas
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rule: cannot outlaw the teaching of evolution in public schools.
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Scalia dissenting
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The law says it is designaed to promote academic freedom
it is immpossible to disce3rn the true motivation for a statute. Therefore the courts shoul dnot try =. The facial purpose of the laws is not uncosnstitutionsal it is difficult to discenr the subjective motivation of those enatcting a statue. .' To look for the sole purpose of even a signle legisalture is probably to look for something that does not exist.' Legislative histories can be contrived |
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Should local school boards have power to require school boards have the power to require the teaching of ID.
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ID violates centuries old ground rules.
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Religious motivation alone is not enough to trigger strict scrutiny.
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not without doing hug damage to the fabric of our law.
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Green v. County Comm'rs of Haskell County
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the commissioners personally approve of the message of teh Ten Commandments and personally believe that the text of the Commandmnets . . . is sacred."
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Why so much free speech?
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1. Marketplace of ideas
2. Let extremists vent so they do not throw bombs 3. |
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Schenk v. US
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facts: Arrested for violation of the espionage laws. He said the draft might be unconstitutional.
issue: Whether the words rise to the level of being a clear and present danger to the US. |
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the bad tendency test (deference to the government for punishing words)
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Congress may punish all words which have the bad tendency to disrupt the legitimate interest of congress or health and welfare.
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Where does "clear and present danger" test come from?
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tort - causal connection
criminal - attempt The words are close enough to a deed to connect the words to the deed. |
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Abrams v. U.S.
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facts: D spoke against the U.S. sending forces to fight Bolshevics.
dissent: persecution of the expression of opinions seems to me perfectly logical. |
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Hand "Clear and Present Danger Test."
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In each case [courts] must ask whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger
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real issue in Dennis
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Whether or not gov't has the power to ban a whole category of messages based upon a perceived danger.
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Brandenburh v. Ohio
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where such advocacy is
1) directed to initiating or producing imminent lawless action and 2) is likely to incite or produce such action. |
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Brandenburg test: The most demanding of any democratic regime in the world.
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the test dos not require a compelling interest, but it is not ad hoc balancing . It is not deferential as in Dennis. It is Holmsian, a real authentic close judicial scrutiny requiring a showing of clear and present danger.
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Why such a hard test
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John Hart Ely: when officials seek to silence a message we insist that the messag fall within some clearly and narrowly bounded category of expression we have designated in advance as unentitled to protection.
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Vincent Blasi
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Th first amendment is for the worst of times, not the best of times.
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Chaplinski
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facts: "No person shall adress any offisensive derisive or annoying word to any other person who is lawfully in any street or public place."
defendant called the marshall a " God damned racketeer," |
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how to handle these problems
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1. look at the statute
2. look at state court interp 3. look at jury instructions 4. then finally look at what the person has done. 5. Decide teh standard of review. Deference?Rational basis? Reasonableness Clear and present danger? ad hoc balancing? 'Exdacting scrutiny?: The categorical approach. |
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What are the categories of unprotected expression
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Fighting Words
Incitement Threats Defamation Obscenity Commercial Fraud |
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NYT v. Sullivan
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Sullivan was chief of police at times when bad acts by the NYPD were alleged in a NYT add posted by MLK.
Issue: was Alabama's law of defamation, as applied to criticism of public officials , narrowly tailored to a constitutionally defined category of unprotected defamatory falsehood. |
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Gertz
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facts: lawyer for John Birch Society is called a commie by a newspaper and gets a verdict
rule: states may impose liability for falsehoods injuring private persons so long as they do not impose liability without fault. |
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Restatement 2d, Torts section 46
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IIED
"one who by extreme and outrageous conduct intentionally or recklessly causes sever . . ." |
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Why could mayor yorty not recover from Congrad?
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It was a privileged as an opinion.
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The actual malice standard applies to what?
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FAct, not satire.
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Pledge of Allegence, why?
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To instill a uniformity of patriotism.
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McCullock v. Maryland
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Let the end be legit, let is be3 winin teh scoe of the const and all means which are apporpriate, whic are plainily adapted to that end which are not prohibited, but consist with the spirit and letter of the constitutionare constittitutional.
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How do we see a whether a law is constitutional?
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1. look for an enumerated power
2. look for a restriction (like 1st Amd) |
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General Police Power
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The general residual police power assigned to the states.
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How does due process have anything to do with free speech?
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Substantive due process.
The whole reason we are talking about this is a mistake the court made in the Slaughterhouse Cases. |
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Sedition Act of 1798
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Made it a crime to say something nasty about the president, flag.
The first assault on the first amendment. |
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Who ended the Gag rule on slavery?
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John Quincey Adams (old man eloquent)
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What are the two 2(a) defenses?
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"differing cost defense"
"changing conditions defense" |
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"changing conditions defense"
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provided however that a seller may give discounts where there have been changes in the marketability of the product. (day old bread / green bananas)
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Zelman v. Simmons-Harris
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issue: whther a program of true private choice has teh forbidden "effect" of advancing religion because funding eventually benefits students of religious schools?
NO rule: parental choice is not fairly attributable to the state. No causal ccnnection |
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Souter dissent
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compulsory tax payer support for religious institutions.
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Breyer Dissent
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Pose a greater risk of religiously based social conflict.
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modified lemon test is for what?
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Only public funding of religious institutions for secular purposes.
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Is free speech 'implicit in our concept of ordered liberty'
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Eventually
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Seditious Libel (against the king)
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All false scandalous or malicious statements designed to bring the government into disrepute. Truth no defense
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Sedition Act
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1. jury trial on law and fact
2. Truth was a defense. |
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Barron
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Bill of rights do not apply to the states.
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Changing conditions defense (the last 2A defense)
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something in the market changed effecting two things: the market for the goods or the marketability of the goods.
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Scalia Dissent in " "
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Cannot condition a privilege on the abdication of a Constitutional right.
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What is the issue in Citzens United
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Issue: Whether or not gov't can suppress political expression immediately prior to an election based solely on the corporate identity of the speaker/publisher.
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what are the triggers to get out of rational basis?
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Prior restraint, total ban, outright ban,
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RAV v. City of St. Paul
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Whether a law banning fighting words can be unconstitution for being too narrow and singling out specific categories (suspect content based or viewpoint based) of unprotected expression.
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are content discriminator regulation of otherwise unprotected speech OK?
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NO, RAV tells us that.
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Justice Stevens says what about the categorical approach regulating speech
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sacrifices subtlety for clarity and is ultimately unsound.
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The complexity of kiddie porn
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rational basis / strict scrutiny for the ban on actual children
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labor law
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rational basis
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What is child pornography ban?
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ban on publication display sale market or transfer of images of children engaged in sexual activity
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Strict scrutiny or defernce: The states are entitled to greater leeway in the regulation of pornographic depictions of children for the following reasons:
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1. harmful to well being
2. miller sandar is not a satisfactory solution 3. Advertising and selling 4. |
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Is there a "journalistic privilege?"
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NO
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Branzburg v.
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Newsmen have no Constitutional right to ignore a subpoena.
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Who is the press?
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NYT vs. Blogger
the gov't cannot regulate who that is |
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Univ. PA v. EEOC
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A university is no exception[to the rule about there not being a journalistic privilege], still have to respond to a subpoena.
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Fairness: can gov't tell journalists what to do to be fair?
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"the public interest requires ample play for the free and fair competition of opposing views and the commission believes that the principle applied to all discussion of issues of importance to the public."
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Political Editorializing rule
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When a broadcaster endorses one candidate it must give fair play the opposing candidate.
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Red Lion v. Hook (1934)
Fairness doctrine upheld |
issue: can the FCC force a broadcaster to give time to an opponent who is not willing to pay?
rule: if gov't did not guarentee a right of reply, there would be a cacophony of voices. FCC license is a privilege not a right. |
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FCC obliterated fairness doctrine under Reagan (1985)
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Unconstitutional - dead for the foreseable future, a triumph for fundamentalist free speech over balancing doctrine.
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FCC v. Fox
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issue: can the FCC ban certain words and actions that it deems profane in broadcasts it regulates?
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questions for fox
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1. what issues of 1st amd law are posed?
2. what test or standard of judicial 3. review should apply to this case? how does your proposed "test" or standard apply to this case? |
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practical tip for the blue book
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He suggests paragraphs. A wall of words lacking any structure
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What does fox argue?
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This is overbroad and presents content discrimination with the potential of viewpoint discrimination and should get a tough tough test like exacting scrutiny.
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what if it is not exacting?
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Fox will argue it fails under balancing as well in a second paragraph.
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Does this fall into a category of unprotected expression?
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probably not, but the gov't can argue it is only a content discrimination, and deserves more deference than Brandenburg, NYT and Cohen.
This is gov't management of one section of free expression. There is a substantial interest. |
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What is the main test as outlined in Oregon v. Smith and how is it applied?
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If Law is Neutral (generally applicable), must have Rational Basis for serving Legitimate Govt Interests.
If Law is Not Neutral, enforce Strict Scrutiny (Necessary to achieve Compelling Interests). |
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What does the Sherbert test tell us about the competing interests of an individual and the state?
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Statutes affecting practice of religion must be narrowly tailored to minimize the burden.
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What does the Lee test tell us about a "compelling gov't interest?"
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Social security is more compelling than an extra year in school.
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What are the three prongs in the Lemon v. Kurtzman test?
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1. Secular Purpose
2. primary effect neither advances nor inhibits religion 3. No excessive entanglement. |
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How do we know if the second prong of the lemon test (primary effect neither advances nor inhibits religion) is met?
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a. Coercion - must not coerce
b. Endorsement - cannot "send a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders. |
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What is the current test for incitement?
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Brandenburg v. Ohio tell us: Advocacy must be directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
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What are unprotected "fighting words"
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Words that by their very utterance tend to inflict injury or tend to incite immediate breach of the peace.
Direct personal insults or personally abusive epithets intentionally designed and inherently likely to provoke a hostile reaction. |
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How do we analyze statutes that punish "fighting words."
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1. look at the statute - what is being restricted
2. look at the punished speech - protected or unprotected 3. look at the standard of review |
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What test does the case of Coen v. CA give us?
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does the speech fall into a category of unprotected speech? if not, the state cannot choose a "suitable" level of discourse.
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What is the NYT v. Sullivan Test for defamation regarding a public individual?
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In all matters relating to public conduct, a public official must show actual malice and damages
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what is the test for actual malice?
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knowledge of falsity or reckless disregard as to whether false or not
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What does hustler v. Falwell tell us is defense to libel?
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parody
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How are "true threats" defined?
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statements where the speaker
1) means to communicate a serious expression 2) of an intent to commit an act of unlawful violence 3) to a particular individual or group. |
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What is the test for Obscenity?
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Miller test: Taken as a whole . . .
1) appeals to the prurient interest. 2) depicts or describes in a patenly offensive way, sexual conduct specifically defined under state law.; and 3)lacks serious literary, artistic, political, or scientific value. |
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when can the government "regulate media?"
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federal interest in controlling radio is substantial since children might listen.
Stevens focuses on lesser value speech. |
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What is "commercial speech?"
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Speech which does no more than propose a commercial transaction and lacks protection.
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What is the Central Hudson Test?
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regulation upheld if? (intermediate scrutiny)
1. speech is protected by first amendment 2. gov't interest is "substantial" 3. regulation directly advances the interest. 4. No more limited restriction is possible. |
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What is the Renquist alternative to the Hudson test?
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deference to economic regulation of the states. (sometimes it wins)
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When is strict scrutiny satisfied?
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when there is
1) a compelling gov't interest 2) means are narrowly tailored to achieve that end? |
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when is intermediate scrutiny satisfied?
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1) an IMPORTANT gov't interest and
2) means are substantially related to that end |
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when does a rational basis exist?
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when
1) there is a LEGITIMATE govt interest at stake and 2) means are rationally related to that end |
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Obrien test:
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1) within the constitutional powers of gov't
2) futhers a substantial gov't interest 3) is unrelated to the suppression of expression 4) is an incidental restriction on speech no greater than necessary to achieve state's end. |
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What is the "time, place, manner" test?
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Govt may adopt such regulations if they are
1) content neutral 2) narrowly tailored to serve significant gov't interest 3) leave open ample alternative channels of communication. |
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What is a public forum?
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One that has a principle purpose of free exchange of ideas -OR-
one intentionally opened by the government. |
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what is the test for Gov't employment?
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case by case balancing.
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Pickering Connick test
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1. has gov't employee showed expression is directed to a matter of public concern.
2. No- Summary judgment 3. Yes- Do the gov't interests outweigh the individual's interest in expression. |
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When will overbreadth invalidate a statute?
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When the overbreadth is substantial.
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What are the rules on prior restraints
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1) presumptively unconstitutional
2) whether the gravity of the evil dicounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. 3) Reputation of a judge is not enough to justify a prior restraint. |
