Individual Rights Flashcards
(24 cards)
State Action
State Action
The Fourteenth Amendment provides that “No State shall deny to any person within its jurisdiction the equal protection of the laws.” The U.S. Supreme Court has interpreted this language as applying not only to the states themselves, but also to private parties whose actions constitute state action. Simply put, in order for there to be a violation of the 14A, the allegedly unconstitutional action must be attributable to the state - either direct action by the government or some action by a private party that is attributable to the government. The actions of a private company do not constitute state action.
Due Process
Substantive Due Process
Including Fundamental Rights and Other Rights and Interests
Substantive due process concerns the fact that the government must satisfy strict scrutiny (or another high standard) in order to infringe on a fundamental right.
Due Process
Procedural Due Process
Procedural Due Process concerns procedures that the government must follow before it deprives a person of life, liberty, or property – the State must satisfy certain procedural protections. In other words, what constitutes “life,” “liberty,” or “property” interests that cannot be taken away by the government without the due process of law?
Equal Protection
Fundamental Rights
Fundamental rights are privacy rights (marriage, obscenity in the home, parental and family rights, procreation and contraception, and sexual relations), right to vote, right to interstate travel, and right to refuse medical treatment.
STRICT SCRUTINY FOR FUNDAMENTAL RIGHTS.
Equal Protection
Classifications Subject to Heightened Scrutiny
Suspect classifications (race, ethnicity, or national origin) and fundamental righs are subject to strict scrutiny. Quasi-suspect classifications (gender) are subject to intermediate scrutiny.
Equal Protection
Strict Scrutiny
The burden is on the government to show that the law is necessary to achieve a compelling government interest.
Equal Protection
Intermediate Scrutiny
The burden is on the government to show that the regulation is substantially related to an important government interest.
Equal Protection
Time, Place, and Manner Restriction
This is a restriction that limits speech not on the basis of what it says but rather only where, when or how it takes place. Imagine, for example, a law that prevents somebody from holding standing and displaying a sign in the middle of a busy intersection. This law limits such a sign display regardless of what the sign says. Its limit is not based on the sign’s content – but rather on its location, and its effects on traffic.
Equal Protection
Rational Basis Review
The rational basis test is the minimal level of scrutiny that all government actions challenged under equal protection must meet. The basic requirement is that a law meets rational basis review if it is rationally related to a legitimate government purpose. The burden is on the plaintiff to show this.
Takings
Takings
The Fifth Amendment of the federal constitution, and similar state constitutional provisions, prohibit the taking of private property without compensation. A taking could occur no matter how small the amount of land taken or commandeered for the government’s use. Generally, a taking occurs when a regulation denies an owner all “reasonable use” of the land, a regulation interferes with an owner’s possessory interest in excluding others from his property, and a regulation uniquely burdens an owner to secure some public benefit and that burden is not substantially related to some problem caused by the owner’s use of the land.
Other Protections
Priviliges and Immunities Clause
Under the Privileges and Immunities Clause, states must treat out-of-state citizens (not corporations or aliens) equally in fundamental rights. In other words, the Privileges and Immunities Clause prevents a state from treating citizens of other states differently from the way it treats its own citizens unless there is a very good reason for doing so.
Other Protections
Contracts Clause
A state may not pass legislation that substantially impairs preexisting contracts unless the law serves an important and legitimate public interest and it is reasonable and narrowly tailored to promoting that interest.
THIS IS USUALLY THE WRONG ANSWER ON THE MBE.
Other Protections
Unconstitutional Conditions
The government cannot condition a person’s receipt of a governmental benefit on the waiver of a constitutionally protected right.
Other Protections
Ex-Post Facto Laws
Neither states nor the federal government may pass legislation that retroactively alters a criminal law in a substantially prejudicial manner for the puropse of punishing a person for some past activity.
First Amendment Freedoms
Freedom of Religion and Separation of Church and State
Including Free Exercise and Establishment
The 1A provides protection against the abridgement of the freedom of religion, speech and assembly, and freedom of press. The 1A prohibits Congress from making a law respecting an establishment of religion or prohibiting the free exercise of religion. The 1A’s protection of religion is applied to the states through the 14A.
First Amendment Freedoms - Freedom of Expression
Content-Based Regulation of Protected Speech
The 1A guarantees freedom of speech making it presumptively unconstitutional to place burdens on speech because of its content. A speech regulation is content-based if it applies to particular speech because of the topic discussed or the idea or message expressed. To justify content-based regulation of speech, the government must show that the ordinance is necessary to serve a compelling state interest and it is narrowly drawn to achieve that end. Content-neutral regulations on speech are subject to intermediate scrutiny, and will be upheld if the government can show that they advance an important interest unrelated to the suppression of speech, and they do not burden substantially than necessary to further those interests.
First Amendment Freedoms - Freedom of Expression
Content-Neutral Regulation of Protected Expression
A regulation that restricts speech regardless of its subject matter or communicative impact is content-neutral. Although content-based speech restrictions are subject to strict scrutiny, content-neutral restrictions are generally upheld if they are narrowly tailored to serve a substantial government interest that could not be more effectively achieved without the regulation and leaves open ample alternative channels of communication. Content-neutral restrictions allow the government to impose time, place, and manner regulations without violating the 1A.
First Amendment Freedoms - Freedom of Expression
Regulation of Unprotected Expression
All expression is protected by the 1A except for unprotected expression. Examples of unprotected speech include incitement of illegal activity, obscenity and sexually-oriented speech, commercial speech, fighting words, and defamation. Expression that is unprotected by the 1A can be regulated by legislative enactments. However, even in dealing with unprotected expression, the government generally cannot establish a system of censorship to regulate in advance what may be uttered or published, or enjoin speech, or employ other prior restraints.
First Amendment Freedoms - Freedom of Expression
Regulation of Commerical Speech
Generally, commercial speech gets intermediate scrutiny. The speech must be lawful and not misleading, the statute must serve a substantial government interest, the statute must directly advance that interest, and the statute must be narrowly tailored (not more excessive than it needs to be).
First Amendment Freedoms - Freedom of Expression
Regulation of Expressive Conduct
First Amendment Freedoms - Freedom of Expression
Regulation of Public School Students, Public Employment, Licenses, or Benefits Based Upon Exercise of Expressive or Associational Rights
Public school students have free speech rights but speech may be regulated if the regulations are reasonably related to legitimate padagogical (educational) concerns.
First Amendment Freedoms - Freedom of Expression
Prior Restraint, Vagueness, and Overbreadth
Prior restraint is when the government prevents speech before it is communicated. Strict scrutiny applies. Overbreadth is when a law is unconstitutional on its face if it prohibits substantially more expression than is necessary. Finally, a statute is vague and unconstitutional on its face if a reasonable person could not tell what speech is prohibited and what speech is allowed.
A statute that prohibits words that “tend to breach the peace” is vague and unconstitutional.
Freedom of the Press
Freedom of the Press
The press has the right to publish information that is true and a matter of public concern. It has no greater freedom to speak than anyone else.
Freedom of Association
Freedom of Association
