Constitutional Protection of Individual Liberties Flashcards
(12 cards)
How is government interfering with individual rights?
- Equal Protection issue: government treating similarly situated people differently.
- Due Process issue
- Takings Clause issue
- 1st Amendment Issue (speech, religion)
Is the infringer a government actor?
A private actor operating under a license granted by a state or receiving government funding is NOT a government actor
Private actor running a town may be a government actor
EPC Analysis Framework
EPC of 14th Amendment restricts state government from treating similarly sitauted people differently.
EPC of 5th Amendment restricts federal government from treating similarly sitauted people differently.
If action is based on race, alienage, national origin, or religion –> strict scrutiny. Govt must show discrimination is necessary to achieve a compelling govt interest.
If action based on gender or legitimacy –> intermediate scrutiny. Govt must show discrimination is substantially related to an important government interest.
Actions based on all other classifications –> rational basis. Claimant must show discrimination is not rationally related to a legitimate government interest.
In order for a plaintiff to prevail on heightened scrutiny on EPC claim –> P must show discriminatory intent.
Due Process
- Substantive due process: limits the government from denying all individuals of a fundamental right. If the government infringes on a fundamental right, then strict scrutiny applies. THe government must show the action is necessary to achieve a compelling government purpose and no less restrictive alternatives are available.
- Procedural Due Process: Government cannot deny life, liberty, or property interest without notice and a fair hearing.
14th Amendment restricts the States. 5th Amendment restricts the federal government.
Fundamental Rights (substantive due process)
Fundamental rights are protected by substnative due process under the 5th and 14th Amendment. When these rights are restricted by government action, strict scrutiny applies to test if the action is constitutional.
Privacy Rights (right to marry, procreate, education, family, and private, consensual sexual conduct)
Right to travel
Right to vote
Property interests protected by due process
GOvt must have sufficient procedures in place whenever life, liberty or property is being taken away. Property may include, real property, tangible property, but also continued continued attendance in public school, welfare benefits, or govt employment (when a contract or policy is providing for continued work).
First Amendment Interference
Ways government can interfere with first amendment rights:
- Speech –> any way of conveying a message, or refusing to convey a message: talking, typing, protesting, refusing to speak or provide financial support, exotic dancing, wearing garments, etc.
- Religion: Is government limiting religion (free exercise issue) or supporting a religion (free establishment issue)
Time, Place, Manner framework
(2) Govt limitation of speech in public forums valid if: (1) content neutral, (2) narrowly tailored to serve important govt interest (3) alternative channels of communication are available
(2) Government limitation of speech in non-public forums are valid if they are (1) viewpoint neutral and (2) reasonably related to a legitimate govt interest
(3) Designated public forums - nonpublic forums opened for speech at a particular time. Apply public forum test
(4) Limited public forum - non-public forum opened to speech on a limited range of subjects. Apply non-public forum test.
Speech Framework
First, decide if law should be attacked facially: is the law vague or overbroad, or gives public officials unfettered discretion over speech issues?
How does the law affect speech?
By limiting the content or the manner in which speech is delivered?
If by limiting content–> strict scrutiny applies unless it is commercial speech or another type of unprotected speech. Govt mush show that regulation is necessary to achieve a compelling government interest.
If by limiting manner in which speech is delivered? Time, place and manner framework.
Free Exercise or Free Establishment
If the government is limiting religion, then there is a Free Exercise Clause issue.
If the government appears to be supporting or promoting a religion, then there is a Free Establishment Clause issue.
Free Exercise Issue
Law is valid if generally applicable, but invalid if it specifically targets religious practices
*Find practice question examples
Establishment Clause
When the government officially recognizes a religion, or supports or aids religious organizations.
Examples: Town starts meetings with prayer, high school football team starts game with prayer, city displays nativity scene on city property
