Main Con Law Stuff

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Carolene Products

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3 types of classifications that create heightened security.
1) Those that are in facial conflict with specific rights guaranteed by the Constitution.
2) Those that inhibit the democratic process
3) Those that classify on the basis of race, religion, or membership in any other discrete and insular minority.

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Rational Basis

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1) Presumed Valid
2) Must be rationally related to a legitimate state objective
3) No matter how well the classification serves the objective, the objective is not legit.

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Strict Scrutiny

BOGMACNT

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For suspect classes and fundamental rights
1) Burden on govt to prove validity
2) If they impinge on a const fund right, the govt must prove the classification is narrowly tailored
3) Must achieve a compelling interest (means) and be narrowly tailored
4) Burden is on the challenger to prove that they are a suspect classification.

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To be a suspect classification

HIM

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1) History of discrimination
2) Immutable trait as a characteristic
3) Minority or politically powerless class

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De Jure Discrimination

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In order to apply S.S., there must be a showing of purposeful discrimination.

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Arlington Heights Test

DHSDL

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Look for
1) Disproportionate impact
2) Historical background
3) Specific sequence of events leading up to the decision
4) Departures from normal procedural sequence
5) Legislative/Administrative history

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Adarand

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Section V of the 14th am. gives fed. gov. the authority to impute E.P on the states

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3 reasons for race based discrim under S.S.

RDA

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1) Remediation of past intentional discrimination
2) Diversity
3) Avoiding racial isolation in society

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Alienage

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Someone's legal status in the U.S.
Intermediate scrutiny.

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Sex-based classifications std

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I.S.

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Intermediate scrutiny

MS IGO SRATO

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For quasi suspect classes (gender, illegitimacy, alienage)
1) Burden on govt
2) Classifications for quasi-suspect classes must serve 1) important govt objectives and must be 2) substantially related to achievement of those objectives.

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VMI Ginsburg Std

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Sex based classifications must undergo skeptical scrutiny and will be upheld only if the state demonstrates an exceedingly persuasive justification.

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Illegitimacy std

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I.S. b/c it is an immutable characterisitc

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Fund rights Std

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S.S.
Fund rights analysis enables the court to apply s.s. legislation involving non-suspect class

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3 type of fund rights

IC/NIC/SDP/VAT

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1) Those found in the const
2) Rights that involve substantive due process
3 Fund rights not found in const
VAT

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Gerrymandering
Davis v Bandemer

CIAH

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H Need to consistently degrade a voter's influence
1) Need intentional discrimination
2) An actual discriminatory effect
3) Harm if it substantially disadvantages a person's vote

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CRA of 1866

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Enabling clause of 14th am. Doesnt apply EP to private wrongs.

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3 ways for state action

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1) Govt may delegate its power to perform a public function to a private person
2) The govt may become so inextricably entangled with the private person that their separate identities are lost
3) State may so coerce or extraordinarily encourage the private action that the private actor is seen to have lost its presumptive power of voluntary choice, the act is directed by the state.

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To have public function:

CETMM

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1) Const or statutory authority
2) Exclusively done by the govt
3) Traditionally done by the sovereign powers of the govt
4) Must show state agrees with the monopoly
5) Must expressly approve of the termination

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Inextricable entanglement

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Individuals are so entwined that they unable to be identified

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Encouragement/coercion

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But for the state's action, the discrimination would not have taken place

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Congress power under the enabling clause

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Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
13th am section 2 against private discrim
14th section 5 against private discrimination
15th am section 2 the enforcement power

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3 levels of congressional enforcement power

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1) Parallel (strictly remedial)
Congress enacts legislation that merely remedies a const violation as determined by the court
2) Non-parallel Remedial (not strict)
Congress determines that it can enact a greater prohibition in order to ensure that the core const right is protected
3) Not remedial-independent
Congress has independently made its own determination of what the const means

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Parallel

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Congress enacts legislation that merely remedies a const violation as determined by the court

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Non-parallel remedial (not strict)

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Congress determines that it can enact a greater prohibition in order to ensure that the core const right is protected

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Not remedial-independent

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Congress has independently made its own determination of what the const means

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O'Brien std

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A content neutral regulation is valid if the restriction on speech is no greater than is essential to further a significant govt interest

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Ward

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Regulation must be justified without reference to the content of the regulated speech
2) It must be narrowly tailored to serve a significant govt interest
3) It must leave open ample alternative channels for communication of the information

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Clark

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The speaker's alternative does not have to be anywhere near as effective as the chosen method

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Arcara Symbolic content

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Use O'brien clarke ward std when the regulation targets conduct with a significant expressive element that drew the remedy in the first place

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Content

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Govt regulates speech based on its content
S.S.

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Content-neutral

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Regulates speech regardless of its content.
I.S.

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Clear and present danger std

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Brandenburg
Test is advocacy of violence can be prohibited only when: 1) it is directed to inciting imminent lawless action and 2) it is likely to produce such action

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Clear and present danger std updated

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Claiborne
Requires that it was necessary to demonstrate that immediate violence was the likely result of the speech but the violence must also materialize

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Fighting Words- not protected

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Non-speech
Gooding.
To fall within FW category, speaker must utter words 1) intending to cause and having a direct tendency to cause acts of violence
2) by the person to whom the remark was addressed.
3) Must be addressed at an individual

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Hostile audiences non-speech

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Edwards, cox, gregory
The unprotected speech must have 1) immediacy of violent reaction and 2) police must have been unable to control the crowd.
Tough to prove against speaker

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Offensive speech. Protected

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Gooding. General insults are insufficient. Needs to be at an individual.
Immediate unlawful activity must follow
One mans vulgarity is another mans lyric

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Hate speech protected

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Rav v st paul.
Cant only punish disfavored ideas.

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Hate speech true threats

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Va v Black
True threats are not protected.
State may prohibit the communication of a serious expression of an intent to commit an act of unlawful violence to a particular individual

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Obscenity. Non-speech

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Miller std.
LAPS – Lacks Literary, Artistic, Political, or Scientific value (determined by a
national standard, not local)
POPS – Patently Offensive Portrayal of Sex
PAW – Prurient interest appeal, in which the material tends to excite lewd, lascivious,
and lustful thoughts in a person of Average sensitivity; here, the Whole
material must be weighed by the court

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Secondary effects. Low value speech

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Ward

Restrictions must be content neutral; narrowly tailored and leave ample alternative
channels for communication.

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City of Renton

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Test is whether the ordinance is designed to serve a substantial govt interest and allows ample alternative avenues of communication

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Boos v Barry

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Listeners reactions are primary effects

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Public nudity

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Have to use secondary effects to go after this

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Libel defamation- non protected speech

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NY Times
For libel, must show actional malice and that it was directed at somebody
For a private figure, a neg std applies.
Must show actional malice for punitive damages. Need to show an actual injury

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Hustler IIED

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IIED is protected and time honored under the 1st am

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Commercial speech

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Subject to R.B.
Va pharmacy.
Purely commercial speech is entitled to some 1st am protection
False speech receives no protection

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Central hudson test

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1) Must determine whether commercial speech is protected under VA pharmacy
2) is the govt interest substantial
3) does the regulation directly advance the govt interest evaluated
4) The regulation is not more extensive than necessary
Needs to pass all 4

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Liquor 44

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Changes CH3 from directly to significantly advances govt interest

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Traditional public forum

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Open to all speakers under 1st am.
S.S.

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Designated public forum

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Govt opens property to speakers, may close at any time.
I.S.

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Limited public forum.

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Govt chooses to open the forum.
Use I.S.
Content-neutral use o'brien

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Non-public forum

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Use R.B.
Reasonableness std.
Content restrictions are valid
Viewpoint restrictions are invalid

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Not a public forum

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Viewpoint restrictions are valid

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Public education Tinker test

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1) Does the speech materially and substantially interfere with the school?
2) Does the speech impinge on basic social values?
3) Does it have vulgar or lewd speech?
4) Is the penalty not related to a political viewpoint
If yes to any, the speech is not allowed

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Hazelwood

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Quasi public forum
Schools can ensure
1) that students learn the appropriate lessons
2) Are not exposed to inappropriate materials given their ages
3) do not mistakenly attribute the viewpoint to the school

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Public employee speech Pickering

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Test- A balance between the interest of the teacher, as a citizen, in commenting upon matters of public concern and their interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees

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Connick v meyers

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Private speech is not protected

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Garcetti

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Day to day business is not protected

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Public sponsorship

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Govt can control message.
If govt restrictions are on the grant recipient, it is likely unconst.
if on the program, likely const

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Rights of association

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Positive right to association
compelled association
compelled speech

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Roberts v Jaycee

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1) Intrinsic right of association
Intimate human relationships
2) Instrumental right of association
Associations engaging in speech

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Free exercise

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Laws that are neutral on their face, but still have a disproportionate impact on a religious practice are invalid
Laws that are in fact discriminatory that target religion

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Emp div v smith

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Test. If prohibiting the exercise of religion is not the object or target but merely the incidental effect of a generally applicable and otherwise valid provision, there is no violation

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Establishment clause

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Lemon Test
1) Does the law have a sacred purpose
2) Does it have the effect of advocating or inhibiting religion
3) Does it have excessive govt entanglement with religion?

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E/C Test.

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1) Is the program neutral
2) Is it substantial
3) Does it supplement or supplant
4) Is it discrete or divertable
5) Religious control?
6) Pervasive sectarian
7) Direct v indirect

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Agostini

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Entanglement prong of Lemon is fading

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Endorsement Test

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Lynch v Donnelly
E/C prohibits govt from making adherence to a religion relevant in any way to a person's standing in the political community
2) Although entanglement can result from this connection between religion and political standing, the primary and more direct infringement is govt endorsement or disapproval of religion which sends a message to non-adherents that they are outsiders, not full members of the political community and an accompanying message to adherent that they are insiders, favored members of the political community

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Coercion

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Govt may not coerce anyone to support or participate in any religion or its exercise