Individual Rights

Question 1

Explain the state action requirement

Answer 1

In order to show constitutional violation the plaintiff must show that there was government action. Only government actors, not private actors, can violate constitutional rights

Question 2

State action can be found in the actions of private actors under two theories: the public function theory and the significant state involvement theory. Explain both.

Answer 2

Public Function: Applies where the private entity is engaging in activities that are traditionally and exclusively performed by the government

State involvement Theory: Applies where the government and private entity are so closely related that the private action can be fairly treated as a government action

Question 3

Define rational basis review, and note the classification to which it applies

Answer 3

Under a rational basis, the burden of persuasion is on the plaintiff to prove at the action being challenged is not rationally related to any legitimate governmental interest.

Rational basis applies to all classifications not falling under strict and intermediate scrutiny

Question 4

Define intermediate scrutiny, and note the classifications to which it applies.

Answer 4

Under intermediate scrutiny, the burden of persuasion is on the government to prove that the action being challenged is substantially related to an important governmental interest.

Intermediate scrutiny applies to government actions using quasi-suspect classifications (gender and legitimacy)

Question 5

Define strict scrutiny review and not the classifications to which it applies.

Answer 5

Under strict scrutiny, the burden of persuasion is on the government to prove that the meausure being challenged is neccesary to further a compelling government interest

Strict scrutiny applies to government action using suspect classifications (race, alienage, national origin)

Question 6

Strict Scrutiny review applies to laws that burden the exercise of which rights

Answer 6

Fundamental Rights such as
(1) First Amendment Rights
(2) Right to Privacy
(3) Right to Travel
(4) Right to Vote
(5) Family Rights and;
(6) Others referred to as Fundamental Rights

Question 7

Do the Due Process and Equal Protection Clauses of the Fourteenth Amendment protect only citizens?

Answer 7

No, the fourteenth amendment protects all persons, including corporations and aliens

Question 8

Both the Fifth and Fourteenth Amendments protect against the deprivation of:

Answer 8

Life, Liberty, or property without the due process of the law

Question 9

The Fifth Amendment Takings Clause provides that the Government Cannot take:

Answer 9

Private property for public use without just compensation.

Question 10

What type of process is required for procedural due process?

Answer 10

(1) Notice
(2) Opportunity to be heard AND
(3) Neutral Decisionmaker

Question 11

Describe a direct government appropriation taking and regulatory taking

Answer 11

(1) A direct government appropriation is an actual appropriation of one’s property by the government

(2) A regulatory taking is a land-use regulation that denies the property owner of all reasonable economically beneficial uses of the land

Question 12

In order to determine what procedural safeguards are necessary, courts look at what three factors?

Answer 12

Courts will look at the:

(1) The importance of the private interest that will be affected by the official action

(2) The risk of erroneous deprivation of this interest through the procedures used and the probable value of additional and substitute procedures and;

(3) The government’s interest in streamlined procedures

Question 13

List the six rights protected by the privileges and immunities of national citizenship.

Answer 13

The 6 Rights are:

(1) to travel from state to state
(2) to petition Congress for redress of grievances
(3) to vote for national offices
(4) to enter public lands
(5) to be protected while in the custody of the U.S. Marshals;
(6) to assemble peaceably

Question 14

Does the Fourteenth Amendment Privileges and Immunities Clause protect corporations?

Answer 14

No, Corporations are not protected under the Fourteenth Amendment Privileges and Immunities Clause

Question 15

Any substantial interference with the right to marry must be necessary to further

Answer 15

A compelling interest

Question 16

Any regulation on pre-viability abortion is unconstitutional if:

Answer 16

it imposes an undue burden on a woman’s right to choose an abortion

Question 17

Explain a state’s ability to regulate abortion after viability

Answer 17

After viability, a state may regulate or even proscribe, abortion except where it is necessary to the perseveration of life or health of the mother

Question 18

Explain which voting rights receive strict scrutiny review and which receive rational basis review

Answer 18

The fundamental right of U.S. citizens over the age of 18 extends to all federal, state, and local elections and is subject to strict scrutiny review

Government regulations of ballot access by candidates - based upon age, duration of residency, or payment of filing fees - are subject to rational basis review.

Question 19

Does a terminally ill or comatose person have the right to choose to die?

Answer 19

It is not a fundamental right to die; however, a person has a due process liberty interest in not being forced to undergo unwanted medical procedures, such as life support.

Question 20

What does the contract clause apply to?

Answer 20

The Contract Clause applies only to actions by the state. It applies to state legislation, but it does not apply to state court decisions.

Question 21

When does a statute violate the Ex-Post Facto Clause?

Answer 21

A statute violates this clause if it:

(1) makes criminal an act that was not a crime when committed;
(2) prescribes greater punishment for a crime after its commission;
(3) decreases the amount of evidence required for conviction
(4) extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired

Question 22

A bill of attainder is:

Answer 22

A legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct

Question 23

What type of unprotected and low-value speech may be regulated?

Answer 23

Speech that advocates for violence or unlawful action, fighting words, and hostile audience speech.

(2) Obscene Speech

(3) Defamatory Speech

Question 24

When is speech considered obscene?

Answer 24

Speech is considered obscene if:

(1) The average person, using contemporary community standards would the work taken as a whole to appeal to their prurient interests

(2) The work depicts and describes in patently offensive sexual conduct specifically defined by the applicable state law;

(3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Question 25

What are the constitutional restrictions on defamatory speech for a private person on a matter of public concern

Answer 25

Where the plaintiff is a private person and the statement concerns a matter of public concern, the plaintiff need not prove actual malice but must prove negligence about the truth or falsity of the statement

Question 26

What are the constitutional restrictions on defamatory speech for a public official/figure on a matter of public concern? On a matter of private concern?

Answer 26

The Plaintiff must prove the state law requirements of defamation, plus actual malice, which is defined as knowledge of the falsity or reckless disregard of the truth or falsity of the statement. This rule holds whether the allegedly defamatory statement is a matter of public or private concern.

Question 27

When is a law that regulates the conduct and creates an incidental burden on speech constitutional?

Answer 27

It is constitutional if:

(1) The regulation furthers an important government interest that is unrelated to the suppression of free expression; and;

(2) the incidental restriction on speech is no greater than is essential to further that interest

Question 28

When may the government place restraints on the time place, and manner of speech in public areas?

Answer 28

It may do so if the regulation is:

(1) is content neutral as to both subject matter and viewpoint;

(2) is narrowly tailored to serve an important government interest; and

(3) leaves alternative channels of communication open

Question 29

Regulations of speech-related activities at non-public forums must be:

Answer 29

Viewpoint neutral;

and reasonably related to a legitimate interest

Question 30

Describe the overbreadth doctrine

Answer 30

A regulation of speech must be narrow and specific; it cannot be overly broad so as to have a “ chilling effect” upon protected speech

Question 31

When is commercial speech protected by the first amendment?

Answer 31

Commercial speech is protected if:

(1) it is not false or deceptive; and
(2) it does not relate to unlawful activitiy

Question 32

Government regulation of First-Amendment-protected commercial speech must:

Answer 32

(1) Serve a substantial governmental interest
(2) directly advance the substantial governmental interest and
(3) not be more extensive than is necessary to serve that interest