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S24 > Constitutional Law II > Flashcards

Constitutional Law II Flashcards

1
Q

Right to travel

A

i. Right to interstate travel
1. Source: implicit to constitution
2. Test: strict scrutiny
a. Case
i. Saenz v. Roe
1. Limits on welfare benefits

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2
Q

Right to enter state (dormant commerce clause)

A

ii. Right to enter state
1. Source: dormant commerce clause
2. Test: legitimate local purpose
a. Case
i. Edwards v. California
1. Indigent persons

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3
Q

Right to visit another state temporarily (privileges and immunities)

A
  1. Source: Art. IV P&I
  2. Test: substantial justification
    a. Case
    i. Saenz v. Roe
  3. Limits on welfare benefits
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4
Q

Right to move to a new state

A
  1. Source: 14A P&I; 14A EP
  2. Test: strict scrutiny
    a. Case
    i. Saenz v. Roe
  3. Limits on welfare benefits
    ii. Shapiro v. Thompson
  4. One-year residency requirement
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5
Q

International travel

A
  1. No fundamental right
  2. Test: rational basis
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6
Q

Right to vote

A
  1. Source: 15A, 19A, 24A, 26A
  2. Test: generally strict but sliding scale for restrictions
    a. Case
    i. Harper v. Virginia Board of Elections
  3. Poll taxes
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7
Q

Literacy tests

A
  1. Source: 14A EP
  2. Test: allowed by Court; outlawed by statute
    a. Cases
    i. Guinn v. United States
  3. Goodbye grandfather clauses
    ii. Lassiter v. Northampton County Board of Elections
  4. Literacy tests
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8
Q

Prisoners (right to vote)

A
  1. Source: 14A EP
  2. Test: allowed to deny prisoners right to vote for felony; not allowed to deny prisoners right to vote for crime of moral turpitude
    a. Cases
    i. Richardson v. Ramirez
  3. Disenfranchised felons and ex-felons
    ii. Hunter v. Underwood
  4. Crimes of moral turpitude
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9
Q

Voter ID (right to vote)

A
  1. Source: 14A EP
  2. Test: more voter suppression technique burdens voters, more scrutiny court applies (sliding scale)
  3. Note: Use this test for new types of voter suppression
    a. Case
    i. Crawford v. Marion County Elections Board
  4. Voter ID requirements
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10
Q

Poll tax

A
  1. Source: 14A EP
  2. Test: strict scrutiny
    a. Case
    i. Harper v. Virginia State Board of Elections
  3. Poll taxes
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11
Q

Property ownership requirements

A
  1. Source: 14A EP
  2. Test: strict scrutiny
    a. Case
    i. Kramer v. Union Free School District
  3. Either overinclusive or underinclusive
    b. Exception
    I. Water districts
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12
Q

Water districts (right to vote)

A
  1. Source: 14A EP
  2. Test: allowed to restrict by property ownership
    a. Cases
    i. Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.
  3. Living in a water district
    ii. Ball v. James
  4. “One acre, one vote”
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13
Q

Partisan gerrymandering

A
  1. Source: 14A EP
  2. Test: non-justiciable
    a. Case
    i. Reynolds v. Sims
  3. Reapportionment gone wrong
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14
Q

Access to the courts (criminal procedure)

A
  1. Source: 14A EP
  2. Test: generally strict scrutiny
    a. Cases
    i. Gideon v. Wainwright
  3. Right to attorney
    ii. Griffin v. Illinois
  4. Right to appeal (when made available)
    iii. Douglas v. California
  5. Attorney on appeal
    iv. Ross v. Moffitt
  6. No right to attorney on appeal to highest state court or USSC
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15
Q

Fee waiver (divorce or termination of parental rights)

A
  1. Source: 14A DP; EP
  2. Test: generally strict scrutiny
    a. Cases
    i. Boddie v. Connecticut
  3. Divorce proceedings
    ii. M.L.B. v. S.L.J.
  4. Termination of parental rights
  5. Note: Court does not formally apply “strict scrutiny” until this case
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16
Q

Fee waiver (bankruptcy or welfare)

A
  1. Source: 14A EP
  2. Test: rational basis
    a. Cases
    i. United States v. Kras
  3. Bankruptcy proceedings
    ii. Ortwein v. Schwab
  4. Welfare decisions
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17
Q

Prisoners (access to courts)

A
  1. Source: 14A EP
  2. Test: strict scrutiny
    a. Case
    i. Bounds v. Smith
  3. Right to access courts
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18
Q

Prisoners (law libraries)

A
  1. Source: 14A EP
  2. Test: rational basis
    a. Case
    i. Lewis v. Casey
  3. No right to law libraries
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19
Q

Right to education

A

i. Source: 14A EP
ii. Test: rational basis
1. Case
a. San Antonio Independent School District v. Rodriguez
i. Inequality in Texas school system

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20
Q

Procedural due process

A

i. (1) Deprivation
1. Usually by intentional action;
2. Non-emergency decision shows deliberate indifference; or
3. Emergency action that is reckless or shocks the conscience
a. Cases
i. Daniels v. Williams
1. Prison fall
ii. County of Sacramento v. Lewis
1. High-speed police chase
iii. Deshaney v. Winnebago County
1. Child abuse
iv. Town of Castle Rock v. Gonzales
1.
ii. (2) Life, liberty, property
1. Life
a. Death penalty or police chase
2. Liberty and property
a. Court will consider (1) whether legitimate claim or reasonable expectation of entitlement based on some independent source of law and/or (2) importance of interest
i. Cases
1. Goldberg v. Kelly
a. New York State financial aid
2. Board of Regents of State Colleges v. Roth
a. Wisconsin’s tenure track
3. Goss v. Lopez
a. Suspended from high school in Ohio
4. Paul v. Davis
a. “Active shoplifters” flyer
iii. (3) What process is due?
1. Whether process is due
a. (1) Private interest
b. (2) Risk of error using current procedures compared to probable value of more procedure
c. (3) Government interest
i. Case
1. Mathews v. Eldridge
a. Disability benefits
2. Amount of process due
a. (1) Notice
b. (2) Right to be heard
c. (3) In meaningful time and manner
i. Cases
1. Goldberg v. Kelly
a. New York State financial aid
2. Mathews v. Eldridge
a. Disability benefits

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21
Q

Substantive due process

A

i. (1) Identify fundamental right
1. Glucksberg and Dobbs
a. Deeply rooted in nation’s history and tradition AND
b. Implicit in concept of ordered liberty such that neither liberty nor justice would exist if it were denied AND
c. Carefully described
2. Lawrence and Obergefell
a. Deeply rooted in nation’s history and tradition OR
b. Implicit in concept of ordered liberty such that neither liberty nor justice would exist if it were denied AND
c. Broadly described
ii. (2) Has the right been infringed?
1. Fact-dependent
2. “Direct, substantial” infringement
a. Cases
i. Marriage penalty
1. Califano v. Jobst
2. Bowen v. Owens
iii. (3) Determine level of scrutiny
1. Requires:
a. Sufficient ends
b. Sufficient fit of means to ends

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22
Q

Economic interest (substantive due process)

A
  1. Fundamental right during Lochner era
    a. Source: 5A, 14A SDP
    b. Test: heightened scrutiny
    i. Case
  2. Lochner v. New York
    a. Limiting the hours of bakers
  3. Not a fundamental right New Deal era-present
    a. Source: 5A, 14A SDP
    b. Test: deferential rational basis
    i. Cases
  4. West Coast Hotel v. Parrish
    a. Minimum wage for women
  5. United States v. Caroline Products Co.
    a. “Filled milk”
  6. Williamson v. Lee Optical of Oklahoma, Inc.
    a. Completive optometry
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23
Q

Economic interest (Contracts Clause)

A
  1. Not a fundamental right
    a. Test: rational basis for federal interference; strict scrutiny for state interference
    b. Source: Contracts clause
    i. Cases
  2. Allgeyer v. Louisiana
    a. Out-of-state insurance contracts
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24
Q

Economic interest (Takings Clause)

A
  1. (1) Was there a taking of property?
    a. Physical
    i. Real and personal property
  2. Cases
    a. Loretto v. Teleprompter Manhattan CATV Corp.
    i. New York cable boxes
    b. Horne v. Department of Agriculture
    i. Raisin growers
    ii. Physical confiscation and appropriation
  3. Case
    a. Cedar Point
    i. Farm worker organizing
    b. Regulatory
    i. Total
  4. Not “too far”
  5. Unless restricted by “background principles” of existing law
    a. Case
    i. Lucas v. South Carolina Coastal Council
    ii. Partial
  6. Economic impact
  7. Investment-backed expectations
  8. Character of government action
    a. Case
    i. Penn Central Transportation Co. v. New York City
    iii. Post-enactment
  9. Post-enactment owner is restricted by pre-existing reasonable regulations, not unreasonable regulations
    a. Case
    i. Palazzolo v. Rhode Island
    iv. Nexus test
  10. Requires nexus between harm and condition government is trying to impose
    a. Case
    i. Nollan v. California Coastal Commission
  11. (2) If so, was it for public use?
    a. Rational basis that taking is for a “public purpose”
    i. Case
  12. Kelo v. City of New London
    a. Connecticut land development
  13. (3) What compensation is just?
    a. Market value at time of taking (even if temporary taking)
    b. Invalidation of ordinance is not enough
    i. Case
  14. Brown v. Legal Foundation of Washington
    a. “Robin hood” case
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25
Q

Privacy interest (marriage)

A
  1. Fundamental right
    a. Source: 5A, 14A SDP
    b. Test: strict scrutiny
    i. Cases
  2. Fundamental right
    a. Loving v. Virginia
    i. Interracial marriage
    b. Zablocki v. Redhail
    i. Fathers who owe child support
    c. Turner v. Safley
    i. Inmates
  3. No fundamental right
    a. Obergefell v. Hodges
    i. Same sex marriage
    ii. Note: Fundamental right to marriage defined generally, not “same sex” marriage
    iii. Court refused to give same sex couples a suspect class
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26
Q

Privacy interest (parents and family)

A
  1. Fundamental right
    a. Source: 5A, 14A SDP
    b. Test: strict scrutiny
    i. Cases
  2. Substantive due process
    a. Stanley v. Illinois
    i. Unwed fathers with no other father in the picture
    b. Moore v. City of East Cleveland, Ohio
    i. Extended family
    c. Meyer v. Nebraska
    i. Child’s education
    d. Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary
    i. State control over child’s education
  3. Procedural due process
    a. Troxel v. Granville
    i. Visitation rights
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27
Q

Privacy interest (procreation)

A
  1. Fundamental right
    a. Source: 5A, 14A SDP
    b. Test: strict scrutiny
    i. Cases
  2. Skinner v. Oklahoma Ex Rel. Williamson
    a. Forced sterilization
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28
Q

Privacy interest (contraception)

A
  1. Fundamental right
    a. Source: 5A, 14A SDP
    b. Test: strict scrutiny
    i. Cases
  2. Griswold v. Connecticut
    a. Married people
  3. Eisenstadt v. Baird
    a. Unmarried people
  4. Carrey v. Population Services International
    a. Minors
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29
Q

Privacy interest (abortion)

A
  1. Not a fundamental right
    a. Source: 5A, 14A SDP
    b. Test: rational basis
    i. Cases
  2. Roe v. Wade
    a. Fundamental right
    b. Strict scrutiny
  3. Planned Parenthood v. Casey
    a. Fundamental right
    b. Undue burden
  4. Dobbs v. Jackson Women’s Health
    a. Fundamental right
    b. Rational basis
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30
Q

Privacy interest (medical treatment)

A
  1. Refuse live saving treatment
    a. Fundamental right
    i. Source: 5A, 14A SDP
    ii. Test: strict scrutiny
  2. Case
    a. Cruzan v. Director, Missouri Department of Health
    i. Terminating life support after car accident
  3. Physical assisted suicide
    a. Not a fundamental right
    i. Source: 5A, 14A SDP
    ii. Test: rational basis
  4. Case
    a. Washington v. Glucksberg
    i. Terminal patients with persistent suffocation sensation
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31
Q

Privacy interest (sexual orientation and activity)

A
  1. No fundamental right
    a. Source: 5A, 14A SDP
    b. Test: rational basis
    i. Case
  2. Lawrence v. Texas
    a. Same sex sodomy
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32
Q

Privacy interest (information)

A
  1. No fundamental right
    a. Source: 5A, 14A SDP
    b. Test: rational basis
    i. Case
  2. Whalen v. Roe
    a. Prescription drug information
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33
Q

Freedom of speech

A

Congress shall make no law abridging the freedom of speech

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34
Q

Cardinal rule

A

Government may not regulate the content or viewpoint of speech unless an exception applies

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35
Q

Speech and conduct

A

a. If speech is integral to criminal conduct, then analyze as conduct
b. Mixed speech and conduct becomes communicative conduct if
i. Intent
ii. Likelihood to be understood
c. Expressive association
i. Intent
ii. Likelihood to be understood
iii. “inherently expressive”

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36
Q

Content-based restriction

A

Restriction on subject of speech

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37
Q

Viewpoint restriction

A

Restriction on perspective or viewpoint on that subject

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38
Q

Content discrimination

A

a. Strict scrutiny
i. Unless
1. Secondary effects
a. Safety
b. Traffic
c. Aesthetics

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39
Q

Secondary effects

A

a. Safety
b. Traffic
c. Aesthetics

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40
Q

Sexual exceptions to rule against content discrimination

A
  1. Sexual content
    a. Nude dancing
    b. Indecent art
    c. Adult films
    d. Library materials
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41
Q

Viewpoint discrimination

A

Strict scrutiny (presumptively invalid)

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42
Q

Test for government speech

A

No scrutiny

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43
Q

What is government speech

A

a. Holistic inquiry based on context considering
i. History of expression at issue
ii. Public’s likely perception as to who is speaking
iii. Extent to which government actively shaped or controlled speech
3. Cases
a. Government speech
i. Permanent monument
1. Pleasant Grove City, Utah v. Summum
ii. Confederate flag on specialty license plates
1. Walker v. Texas Division, Sons of Confederate Veterans
b. Not government speech
i. Trademark
1. Matal v. Tam
ii. Flag
1. Shurtleff v. City of Boston

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44
Q

Vagueness

A

a. Restriction cannot be unduly vague
i. Vague
1. Law is vague if a reasonable person cannot tell what is prohibited and what is permitted
2. Cases
a. Coates v. City of Cincinnati
i. Prohibiting persons from assembling on sidewalks in “annoying” manner is too vague
b. Baggett v. Bullitt
i. Prohibiting state employment of “subversive” persons is too vague

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45
Q

Overbreadth

A

a. Restriction must not be substantially overbroad
i. “Substantial overbreadth”
1. Significant number of situations where law could applied to prohibit constitutionally protected speech, judged in relation to law’s plainly legitimate sweep
2. If law could be unconstitutionally applied to some, even if law could be constitutionally applied to the plaintiff challenging the law
a. Exception to third party standing

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46
Q

Overbreadth and commercial speech

A

Overbreadth doctrine does not apply to commercial speech

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47
Q

Examples of prior restraints

A

a. Licensing or permit requirements
b. Court injunction
c. Government seizures

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48
Q

Standard for prior restraints

A

Strict scrutiny (presumptively invalid)

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49
Q

Licensing requirements (exception to prior restraints)

A

Licensing requirements may be allowed if:
a. Important reasons
b. Clear standards
i. Narrow
ii. Objective
iii. Definite standards leaving almost no discretion
c. Procedural safeguards
i. Full and fair hearing before speech is restricted
ii. Prompt decision by government
iii. Prompt judicial review (based on availability)
d. Note
i. Applies to government orders that operate like licensing systems

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50
Q

Collateral bar rule

A

a. Person violating an unconstitutional law may not be punished
b. However, person violating an unconstitutional prior restraint may be punished
c. If prior restraint is disobeyed, person loses constitutional challenge

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51
Q

Compelled speech

A

Government may not directly compel speech

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52
Q

Unconstitutional conditions (free speech)

A

a. Government may not use funding conditions to coerce people to speak or not speak a particular message
b. However, government may choose which messages to subsidize

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53
Q

Time, place, and manner restrictions (intermediate scrutiny)

A

a. Reasonable time, place, and manner restrictions allowed if
i. Content neutral
ii. Narrowly tailored to important or significant government interest and
iii. Leave open adequate alternative channel of communication
1. Does not have to be least restrictive alternative

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54
Q

Exceptions to the rule against content discrimination

A

a. Certain types of speech have so little value that they are unprotected or less protected
i. Incitements
ii. Fighting words
iii. True threats
iv. Obscenity
viii. Actual child porn
ix. Commercial speech
x. Defamation
xi. IIED

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55
Q

Incitement

A

a. Incitement of violence occurs if:
i. Individual acts with intent to cause imminent harm
ii. That is likely to occur

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56
Q

Fighting words

A

i. Fighting words are words that by their very utterance provoke violence
1. Provoking violence extends to:
a. Incitements
b. Disrupting the peace

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57
Q

Limitations on fighting words category

A

i. Court tends to invalidate broad restrictions of fighting words
1. Where they are not directed at particular person (e.g., burning flag and opposing draft)
2. Where they are vague and overbroad (e.g., opprobrious or abusive words)
3. Where they are based on content or viewpoint
4. Where no danger of unrest exists, so long as police provide sufficient protection for speaker facing hostile audience

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58
Q

True threats

A

a. True threat occurs when:
i. Speaker means to communicate serious expressive act of unlawful violence to individual or group of individuals
ii. Speaker need not intend to carry out the threat
iii. Intimidation is type of true threat

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59
Q

Obscenity

A

i. Law prohibiting the distribution of obscene materials must be limited to works which
1. Taken as a whole appeal to the prurient interest in sex
2. Which portray sexual conduct in a patently offensive way
3. Which, taken as a whole, do not have serious literary, artistic, political, or scientific value

60
Q

Prurient

A
  1. Average person applying contemporary community standards would find that the work, taken as a whole, appeals to prurient interests
  2. What is prurient may change based on location
61
Q

Patently offensive

A
  1. Whether work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state statute
  2. Nudity alone is not enough
  3. States do not need to create expansive lists of what is offensive
  4. However, must be fairly specific to avoid chilling speech
62
Q

Lacks serious value

A
  1. Whether the work, taken as a whole, based on a national standard, lacks serious literary, artistic, political, or scientific value
  2. What reasonable person would believe to be special value
63
Q

Profane and indecent speech

A

i. Profane and indecent speech that is not obscene is protected
ii. However, government will consider intrusiveness of media to the home and accessibility to minors in determining whether government may regulate profane and indecent speech
b. Applicability
i. Covered
1. Broadcast radio and TV
ii. Not covered
1. Satellite
2. Cable
3. Internet

64
Q

Adult porn

A

i. Protected
1. Unless obscene

65
Q

Possession of adult porn

A

i. Protected
1. Even if obscene

66
Q

Actual child porn

A

i. Not protected
b. Exceptions
i. Visual representations of child porn allowed

67
Q

Commercial speech

A

Speech can be regulated if:
i. Speech concerns lawful activity and is not misleading
ii. Government interest is substantial
iii. Regulation directly advances the asserted government interest
iv. Narrowly tailored or proportional (no more restrictive than necessary but does not need to be least restrictive alternative)

68
Q

Torts

A

a. Claims
i. Defamation
ii. Intentional infliction of emotional distress (IIED)
iii. Privacy
iv. Publicity

69
Q

Public figures

A

i. Two types
1. Public official
2. Public figure

70
Q

Defamation (public person, public speech)

A
  1. If the speaker or subject of speech is public person and speaker is speaking on matter of public concern, plaintiff must show:
    a. Clear and convincing evidence that the statement was false and
    b. Made with actual malice
    i. Actual malice is knowledge the statement was false or reckless disregard for its falsity
  2. Additional requirements
    a. Falsity
    i. Requires subject awareness of probable falsity
71
Q

Defamation (private person, public speech)

A
  1. If the speaker or subject of the speech is private person and speaker is speaking on a matter of public concern:
    a. Speaker is liable in negligence for compensative damages
    b. Actual malice standard applies to presumed or punitive damages
72
Q

Defamation (public person, private speech)

A
  1. If the speaker or subject of the speech is public person and speaker is speaking on a private matter:
    a. Plaintiff must show that the offending publication contained false statement of fact
    b. Made with actual malice
73
Q

Defamation (private person, private speech)

A
  1. If the speaker or subject of speech is private person and speaker is speaking on a private matter:
    a. Plaintiff need only establish negligence to recover for all damages
74
Q

Intentional infliction of emotional distress

A

i. Government may not impose IIED liability merely for outrageous or offensive speech or
ii. If the speech is related to a matter of public concern

75
Q

Hate speech

A

i. Strict scrutiny
ii. Hate is a viewpoint
1. See
a. Matal v. Tam
i. The Slants
b. Brandenburg v. Ohio
i. KKK’s right to free speech
c. Virginia v. Black
i. Cross burning

76
Q

Exception to protection of hate speech

A

i. Group libel
c. Case
i. Beauharnais v. Illinois
1. Court held that the government could prevent group libel in response to rising racial tensions in Chicago

77
Q

Communicative conduct

A

a. Communicative conduct requires:
i. Intent
ii. Likely to be understood

78
Q

Standard for communicative conduct

A

a. If regulation is related to suppression, then apply strict scrutiny (e.g., Citizens United)
b. Government may regulate communicative conduct if:
i. Regulation must be within constitutional power
ii. Serving important or substantial interests
iii. Unrelated to suppression (i.e., may not target message or speaker)
iv. No greater than what is essential

79
Q

Factors for deciding whether public or nonpublic forum

A

a. (1) Tradition of availability of the place for speech
b. (2) Extent to which speech is incompatible with the usual function of the place
c. (3) Whether the primary purpose of the place is for speech

80
Q

Categories of public forum

A

a. Traditional public forum
b. Designated public forum
c. Limited public forum
d. Nonpublic forum

81
Q

Traditional public forum

A
  1. Public forums are government property that the government is constitutionally obligated to make available for speech
    ii. Examples
  2. Sidewalks, parks, and streets
82
Q

Standard for traditional and designated public forums

A

Government may regulate if:
a. Content neutral
b. Reasonable time, place, and manner restriction that serves important government interest and leaves open adequate alternative channels of communication
c. Any prior restraint provides criteria for guiding discretion and
d. Regulation is narrowly tailored to achieving government interest (but need not be least restrictive alternative)

83
Q

Designated public forum

A
  1. Not traditionally open but choose to be open to public
  2. Subject to strict scrutiny once it opens to public
  3. Once open as public forum, it cannot restrict speech of anyone
    ii. Examples
  4. Public universities and public schools
84
Q

Limited public forum

A

i. Generally
1. Opened only for certain groups or certain topics
ii. Examples
1. Hastings student groups

85
Q

Standard for limited and nonpublic forums

A
  1. Government may regulate if:
    a. Reasonable
    b. Viewpoint neutral
86
Q

Nonpublic forum

A
  1. Nonpublic forums are government properties that the government can close to all speech activities
  2. Government may prohibit or restrict speech in nonpublic forums as long as the regulation is reasonable and viewpoint neutral
    ii. Examples
  3. Prisons, military bases, and post offices
87
Q

Private property

A

No right to use private property owned by others for speech

88
Q

Speech in authoritarian government institutions

A
  1. Military or prisons
  2. Public schools
  3. Government employees
89
Q

Standard for speech restrictions in military and prisons

A

Reasonable regulations allowed for military and penal functions (rational basis)

90
Q

Standard for speech restrictions in public schools

A

Students do not shed right to free speech at the schoolhouse gate but government may regulate
1. Speech that materially disrupt schoolwork or invade rights of others
2. Sexual speech
3. School-sponsored speech
4. Speech supporting illicit drug use

91
Q

Standards for speech restrictions on government employees

A

i. Off-job speech
1. Government employees may speak as private citizens on matters of public concern if importance of employee speech outweighs need for government to prohibit employee’s speech
ii. On-job speech
1. However, no First Amendment protection for on-the-job speech related to official duties

92
Q

Freedom of association

A
  1. Congress shall make no law abridging the right of the people peaceably to assemble
    a. Including
    i. Prohibiting or punishing expressive association
    ii. Requiring disclosure of membership
93
Q

Standard for restrictions on freedom of association

A
  1. Government may regulate association if:
    a. Justified by compelling interest
    b. Unrelated to suppression of ideas
    c. Cannot be achieved through significantly less restrictive means
  2. Government may not regulate association if discrimination is integral to expressive activity
94
Q

Types of association

A
  1. Intimate association
  2. Expressive association
95
Q

Expressive association

A
  1. Intent
  2. Likelihood to be understood
96
Q

Standard for restrictions on membership (freedom of association)

A

a. Government can only prohibit or punish membership if:
i. Actively affiliated
ii. Knowledge of illegality
iii. Specific intent to further illegality

97
Q

Standard for disclosure requirements (freedom of association)

A

i. Exacting scrutiny
1. Substantial relation to
2. Important interest
3. Narrowly tailored

98
Q

Disclosure (freedom of association)

A

Allowed for officials or employees (Pickering, Garcetti) or for campaign contributions (Citizens United), but not for rank-and-file members due to chilling effect (NAACP)

99
Q

Types of disclosure requirements

A

i. General membership organizations
ii. Campaign disclosure
iii. Disclosure of charitable organizations

100
Q

Restrictions on disclosure of membership for general membership organizations (freedom of association)

A

Not allowed

101
Q

Restrictions on disclosure requirements for campaign disclosure (freedom of association)

A

Allowed

102
Q

Restrictions on disclosure requirements for charitable organizations (freedom of association)

A

Requires “exacting scrutiny” for compelled disclosure

103
Q

Compelled association

A

i. Burden on compelled association (via union fees) related to political activity is not justified
ii. Burden on compelled association (via student fees) unrelated to political activity is justified

104
Q

Discrimination by association

A

i. Sex and gender
1. Generally
a. Challenger wins
2. Standard
a. Strict scrutiny
ii. Sexual orientation
1. Generally
a. Challenged group wins
2. Standard
a. Strict scrutiny

105
Q

Intimate association

A

i. Government has no right to regulate intimidate association (e.g., family and other small and highly selective groups)
ii. This means individuals have the right to discriminate in their intimate associations

106
Q

Freedom of religion

A

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof

107
Q

What is religion

A

What the individual sincerely believes plays the role of religion in their life

108
Q

Standard for free exercise

A

i. Incidental burden
1. If incidental burden imposed by
2. Valid and neutral law of general applicability
3. Court applies rational basis
ii. Substantial burden
1. If law substantially burdens and targets religion
2. Court applies strict scrutiny
a. Unless
i. Hybrid rights
ii. Unemployment
iii. Ministerial exception

109
Q

Valid (free exercise)

A

Within the government’s power

110
Q

Neutral (free exercise)

A

Not neutral if government restricts practice because of religious nature (i.e., targeted)

111
Q

Generally applicable (free exercise)

A

Not generally applicable if invites government to consider particular reasons for person’s conduct by providing mechanism for individual exemptions

112
Q

Establishment clause

A
  1. If discrimination among religious sects
    a. Strict scrutiny
  2. Otherwise, government may not violate “historical practices and understandings” (e.g., no government coercion of religion)
    a. Threshold question
    i. Whether the government’s action would have been a violation at the time the First and Fourtheenth Amendments were ratified
113
Q

Theories of establishment

A

i. Separation
1. To the greatest extent possible, government and religion should be separated
ii. Neutrality
1. Government cannot favor religion over secularism or one religion over others
iii. Accommodations
1. Court should interpret the Establishment Clause to recognize the importance of religion in society and accommodate its presence in government
a. Current era

114
Q

Traditional interpretation of the establishment clause

A

Traditionally, the government may not:
i. Promote or affiliate itself with any religious doctrine or organization
ii. Discriminate among persons on the basis of their religious beliefs and practices
iii. Delegate a governmental power to a religious institution
iv. Involve itself too deeply in such institution’s affairs

115
Q

Standard for coercion

A
  1. Coercion requires record evidence
  2. Presumption against coercion
  3. However, the government still may not directly sponsor religious activity (i.e. prayer in public schools)
116
Q

Government funding of religion

A

Government presumably may not directly subsidize religion, but government may indirectly subsidize religion if funding is neutral, broadly available, and subject to independent private choice (e.g. school playground)

117
Q

Interplay between freedom of religion and free speech

A

Suppressing religious speech or excluding religion from receiving government benefits may violate free speech
1. Rosenberger v. Rector and Visitors of the University of Virginia
a. If the university funds all other student groups but not the Christian Wide Awake organization, that is impermissible content and viewpoint discrimination
2. Kennedy v. Bremerton
a. Court held that the district’s restrictions on a football school’s private act of prayer were facially invalid

118
Q

Laws requiring businesses to be closed on Sundays (freedom of religion)

A

Allowed

119
Q

Laws requiring individuals to pay social security (freedom of religion)

A

Allowed

120
Q

Laws denying tax exempt status to schools that engaged in discrimination based on sincere religious beliefs (freedom of religion)

A

Allowed

121
Q

Laws denying of religious exemption to assigned social security number (freedom of religion)

A

Allowed

122
Q

Laws prohibiting individuals from wearing yamakas in the military (freedom of religion)

A

Allowed

123
Q

Accommodating religion

A

Court used to require government not to endorse religion; now government has no choice but to endorse or at least allow it

124
Q

Endorsing prayer

A

Government may not officially endorse prayer, but it must allow private moment of prayer for government employees

125
Q

Legislative prayer

A
  1. Permissible
    a. Ceremonial prayer
    b. Acknowledgement of importance of religion
  2. Prohibited
    b. Pattern of prayers that, over time, denigrate, proselytize, or betray an impermissible government purpose
126
Q

Infringements of freedom of speech

A

Laws that significantly burden speech are ones:
* That allow civil liability for expression;
* That prevent compensation for speech;
* That compel expression;
* That condition a benefit on a person’s foregoing speech; and
* That pressure individuals not to speak

127
Q

Framework for free speech analysis

A

ii. Analytical framework
1. Protected speech
a. Is it speech?
b. It the speech protected?
c. Is there an exception?
2. Infringement
a. Laws that significantly burden speech are ones:
i. That allow civil liability for expression;
ii. That prevent compensation for speech;
iii. That compel expression;
iv. That condition a benefit on a person’s foregoing speech; and
v. That pressure individuals not to speak
3. Apply scrutiny

128
Q

Incorporation (due process)

A

i. Fifth Amendment applies due process to the federal government
ii. Fourteenth Amendment applies due process and equal protection to the states

129
Q

Contracts clause issue spotting

A

a. Only raise if:
i. Targeted interference with right to contract
b. Example
i. Pandemic eviction moratorium

130
Q

Temporary takings

A

“Taking” is different from “pausing” someone’s business; temporary takings are controlled by Tahoe

131
Q

Post-enactment owners (takings)

A

Post-enactment owner is restricted by pre-existing reasonable regulations, not unreasonable regulations

132
Q

Nexus test (takings)

A
  1. Requires nexus between harm and condition government is trying to impose
    i. Problem matches condition being imposed
    ii. Rough proportionality
133
Q

Just compensation (takings)

A

a. Market value at time of taking
b. However, if no loss because funds are too small and too temporary to earn interest, then no compensation due
c. Invalidation of ordinance is not enough

134
Q

Right to refuse medical treatment (if incompetent)

A

Balance personal interest with state interest in keeping patient alive with clear and convincing evidence

135
Q

Right to refuse medical treatment (if competent)

A

Fundamental right

136
Q

Speech integral to criminal conduct

A

If speech is integral to criminal conduct (e.g. conspiracy and solicitation), then analyze as conduct

137
Q

“Inherently expressive”

A

Expressive association must be inherently expressive

138
Q

Exception to third-party standing rule

A

Overbreadth doctrine

139
Q

Procedural safeguards (licensing)

A

i. Full and fair hearing before speech is restricted
ii. Prompt decision by government
iii. Prompt judicial review (based on availability)

140
Q

Probable falsity (defamation)

A

Requires subject awareness of probable falsity

141
Q

Actual malice (IIED)

A

Applies to IIED cases where subject or speaker is public figure

142
Q

Public schools (free speech)

A
  1. Government may regulate
    a. Disruptive speech
    b. Sexual speech
    c. School-sponsored speech
    d. Speech promoting illicit drug use
    c. Ban books (?)
143
Q

Banning books (free speech)

A
  1. Generally no content suppression
  2. However, must make some content choices
  3. Library not expected to have every book
144
Q

Livelihood (right to travel)

A

a. Livelihood
i. Shrimpers
ii. Lawyers
b. Not livelihood
i. Hunters

145
Q

Strict scrutiny

A

a. Compelling ends
b. Necessary or narrowly tailored

146
Q

Rational basis

A

a. Legitimate ends
b. Rationally related

147
Q

Accommodations theory

A

Court should interpret the Establishment Clause to recognize the importance of religion in society and accommodate its presence in government

S24 (4 decks)

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