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Con Law 2

Keane

QuestionAnswer
EQUAL PROTECTION: Definition A. 14th Amendment provides “No STATE shall…deny to any person within its jdx the equal protection of the law.” Thus, EP does NOT apply to the federal government under the 14th Amendment.
EQUAL PROTECTION: When does heightened scrutiny apply? [APHID] 1. Ability to protect themselves, e.g., aliens 2. Politically powerless 3. Historically discriminated against 4. Immutable characteristic (can’t change/choose) 5. Discrete and insular minority
EQUAL PROTECTION: When does a law warrant scrutiny? 1. Facially discriminatory law: the law, by its very language, disadvantages one suspect class 2. Facially neutral w/discriminatory effect: must show a desire to discriminate, not just KOSHK it would have the effect.
EQUAL PROTECTION: What are the elements of the Arlington Test and what does it determine? The Arlington Test determines whether a law has a a discriminatory effect. Judges look at: 1. Historical background 2. Any departure from normal procedure 3. Legislative/administrative history
EQUAL PROTECTION: Who does Strict Scrutiny apply to? Race, Alienage, National Origin
EQUAL PROTECTION: Define Strict Scrutiny. Level of scrutiny where State has the burden of persuasion that the law is necessary (no less restrictive means) to further a compelling state interest
EQUAL PROTECTION: What are other considerations of Strict Scrutiny? 1. Racial classifications that benefit minorities must be narrowly tailored and reviewed on individual basis to be valid 2. Alienage exception: if law is essential to state function, e.g., self gov’t or democratic purposes, the state can discriminate
EQUAL PROTECTION: Who does Intermediate Scrutiny apply to? Quasi-suspect classes; Gender; Illegitimacy
EQUAL PROTECTION: Define Intermediate Scrutiny. Level of scrutiny where the burden of persuasion is on the state to prove that the law is SUBSTANTIALLY RELATED to an IMPORTANT interest.
EQUAL PROTECTION: Are gender classifications based on stereotypes upheld? Give example laws. Yes, as long as men and women are not similarly situated. Ex: Rape laws and combat draft laws.
EQUAL PROTECTION: Are gender classifications benefiting women as a remedy upheld? Yes, if they are narrowly tailored to meet the important gov't interest and are an ACTUAL remedy of a wrong/addresses a long history of discrimination
EQUAL PROTECTION: Are gender classifications based on biological differences upheld? Yes, as long as they meet intermediate scrutiny.
EQUAL PROTECTION: Are classifications of illegitimate (bastard) children upheld? NO, if applied to all bastards; Yes, subject to intermediate scrutiny if applied to some bastards and not others.
EQUAL PROTECTION: Who does Rational Basis Scrutiny apply to? Everyone not covered by Strict and Intermediate scrutiny, including age, disability, mentally handicapped, and homosexuals.
EQUAL PROTECTION: Define Rational Basis Scrutiny. Level of scrutiny where plaintiff has burden of persuasion to show that the law is NOT rationally related (i.e. arbitrary) to any legitimate gov't interest.
EQUAL PROTECTION: Under Rational Basis, what is a "legitimate gov't interest?" And purpose under general police powers, e.g., advancing health, safety, or welfare. (Gov't almost always wins)
PROCEDURAL DUE PROCESS: Define. The deprivation of life, liberty, or property without due process of the law.
PROCEDURAL DUE PROCESS: What is "a deprivation?" Any harm to a PERSON by the gov't relating to life, liberty, or property that is not a result of the govt's negligence, emergency, or failure to protect.
PROCEDURAL DUE PROCESS: Define "deprivation of liberty." A loss of a significant freedom provided by the Constitution or a Statute.
PROCEDURAL DUE PROCESS: Define "deprivation of property." When a person has an entitlement and that entitlement is not fulfilled.
PROCEDURAL DUE PROCESS: Define "entitlement" as used in deprivation of property. A reasonable expectation of continued receipt of a benefit. (Note that gov't jobs, except in the presence of tenure or a contract, are not entitlements)
PROCEDURAL DUE PROCESS: What are the basic safeguards of PDP? 1. Notice of the charges. 2. Opportunity for meaningful hearing 3. Impartial decision maker
PROCEDURAL DUE PROCESS: When deciding to enforce PDP, what factors will be considered? 1. The importance of the interest of the individual 2. The ability of additional procedures to increase the accuracy of the fact finding 3. The magnitude of the govt’s interest in the economic impact of the procedure
GOVT REG ON FREEDOM OF SPEECH: What levels are scrutiny are applied to laws and in what instances? STRICT: content/viewpoint based INTERMEDIATE: content/viewpoint neutral
GOVT REG ON FREEDOM OF SPEECH: When is a law unconstitutionally vague? When it is so unclearly defined that a reasonable person would have to guess at its meaning.
GOVT REG ON FREEDOM OF SPEECH: When is a law unconstitutionally over broad? When it prohibits not only unprotected speech, but also some protected speech as well. [Ex: A law prohibiting "all live entertainment " used to close down nudie bars is over broad because it would include protected speech.]
GOVT REG ON FREEDOM OF SPEECH: Prior restraints are presumptively invalid except in what three instances? 1. There is an interest of national security/special harm to society 2. Protect right to fair trial 3. Licensing requirements
GOVT REG ON FREEDOM OF SPEECH: Prior restraints are valid to protect the right to a fair trial. What is the 4-part test used in assessing validity? 1. Only if a clear and present danger 2. Publicity would threaten the trial 3. Alternate measures would be inadequate 4. Injunction would protect the accused
GOVT REG ON FREEDOM OF SPEECH: Licensing is a valid prior restraint if what 3 considerations are made? 1. There is an important reason for licensing 2. There is a clear standard leaving no discretion to the licensing agency 3. There are procedural safeguards such as a prompt decision, full and fair hearing, and final judicial determination.
GOVT REG ON FREEDOM OF SPEECH: What are the 5 other manners of infringement on the right to free speech outside of vagueness, overbreadth, and prior restraints? 1. Civil liabity for speech 2. Denial of compensation 3. Compelled speech 4. Unconstitutional conditions 5. Gov’t pressure
GOVT REG ON FREEDOM OF SPEECH: What are the three types of protected speech? 1.Symbolic speech/Conduct that communicates 2. Anonymous speech (the right to be anonymous) 3. Political contributions
GOVT REG ON FREEDOM OF SPEECH: What is Symbloic Speech ? Speech intended to convey a message that those receiving it will be likely to understand.
GOVT REG ON FREEDOM OF SPEECH: When can symbolic speech be regulated? Can be regulated under the O’Brien test. 1. Regulation furthers an important govt interest 2. Unrelated to suppression of speech 3. Narrowly tailored [Ex: flag burning okay, but cross burning used to intimidate not okay]
GOVT REG ON FREEDOM OF SPEECH: What are the 3 areas of less-protected speech? 1. Sexually-oriented speech 2. Profanity/indecency [weighed medium-by-medium, FCC v. Pacifica Broadcasting] 3. Commercial speech [primary goal is a commercial transaction/economic motivation for distribution]
GOVT REG ON FREEDOM OF SPEECH: When can govt regulate commercial speech? Under the Hudson Test: 1. If speech advertises illegal activity, constitutes false/ deceptive advertising 2. Justified by substantial gov’t interest 3. Regulation directly advances gov’t interest 4. Narrowly tailored
GOVT REG ON FREEDOM OF SPEECH: What are the 4 types of unprotected speech? 1. Incitement of Illegal Activity 2. Fighting words 3. Hostile Audience 4. Obscenity [depiction of sexual conduct that, taken as a whole by the average person applying a contemporary community standard, would be obscene.]
GOVT REG ON FREEDOM OF SPEECH: What are “fighting words?” Personally abusive epithets likely to incite immediate physical retaliation in the ordinary citizen [Note: SCOTUS has stated, though, that laws punishing fighting words are almost always overbroad and/or vague]
GOVT REG ON FREEDOM OF SPEECH: What is a “hostile audience” scenario? The point at which speech can be regulated because crowd control is impossible and breach of the peace is imminent.
GOVT REG ON FREEDOM OF SPEECH: When is speech “obscene” to the point of regulation? Miller Test: 1. Appeals to a prurient interest in sex 2. Portrays sex in a patently offensive way (using local reasonable person std) 3. Does not have a serious literary, artistic, or scientific value (using nat’l RP std, not RP in that community)
GOVT REG ON FREEDOM OF SPEECH: What type of obscenity does not have to meet the Miller test to be regulated? Child pornography that uses ACTUAL children; always automatically illegal.
GOVT REG ON FREEDOM OF SPEECH: What is a public forum? Public property that has been historically open to speech-related activities, e.g., streets, parks, sidewalks.
GOVT REG ON FREEDOM OF SPEECH: What is a limited/designated public forum? Public property that has NOT historically been open to speech related activities, but that the gov’t has opened up on a limited or permanent basis, by practice OR policy, e.g., school rooms for boy scouts’ meetings.
GOVT REG ON FREEDOM OF SPEECH: What are the 3 parts to the valid time, place, manner restriction test? 1. Reg is content neutral 2. Reg is narrowly tailored to serve an important govt interest 3. Other channels of communication are left open
GOVT REG ON FREEDOM OF SPEECH: What is a non-public forum? Govt property that can be closed to all speech, e.g., a prison
GOVT REG ON FREEDOM OF SPEECH: What are factors that determine whether a forum is a valid non-public forum? 1. Tradition of availability as a place of speech 2. Extent to which speech is incompatible with the function of the place 3. Location/primary purpose of the property 4. Intent in opening a non-public forum for public discourse
Created by: 705953099
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