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Con Law II - Professor Cheh


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Due Process - Currently Incorporated Laws
1st, 4th, 5th, 6th, 8th
NOT -> 2nd, 3rd, 7th, 9th, 10th
Arguments for Total Incorporation
- all of the BofR were fundamental to apply to teh state
- Federalism isn't a sufficeient reason for violating fundamental liberties
- Life, liberty and property should mean something more, and be protected by the gov't
Arguments for Partial Incorproation
- only some of the BoR is so fundamental
- states are capable of advancing individual liberties
- more judicial oversight, less room for democracy
- federalism
What does it mean to say that a law is incorporated through the due process clause of the 5th amendment?
it means that the law is held against the states.

Fact pattern where state or local gov’t is violating the free speech rights of its citizens, the technical way which you invoke the 1st amendment is to say the state or local gov’t is violating the 1st amendment rights as guaranteed by the first amendment and as applied to the states thru the due process clause of the 14th amendment. BOR does not apply directly, it is incorporated through the due process clause.
Types of Due process
Procedural Due Process
Substantive Due Process
Procedural Due Process Defined
Procedural due process is the procedures that the government must follow before it deprives a person of life liberty or property. It deals with fairness and whether the proceedings were performed with fair process, it does not create any fundamental rights
Typical Due Process Questions
1. Has there been a deprivation Of life liberty or property interest that counts?
2.What process is due?
(apply matthews v. eldredge test)
Procedural Due Process: Definition of Deprevation
Due process is not implicated by a negligent act of an official causing unintended loss of or injury to life liberty or property. A depravation only exists if there is an allegation of an intentional violation by the gov't or gov't officials.
⬢ Personal rights of due process are actions of the government that are of an adjudicative nature and not a legislative action. When the legislature acts (to take away benefits or programs) you have been afforded all the due process you were granted, because of the political and legislative process.
Private Harms and Failure to Act: The gov't is under no affirmative duty to protect individuals from privately inflicted harms.
⬢ Nothing in the due process clause itself requires the state to protect LL&P, it is phrased as a limitation on the state's power to act, not as a guarantee of certain minimal levels of safety and security.
⬢ Two exceptions - when the gov't has limited the ability of a person to protect himself, such as incarceration; and when the gov't took an affirmative step to place the person in danger
Procedural Due Process: Definition of Property
Usually disputes arise in the areas of gov't benefits. To have a property interest in a gov't benefit you must have an ENTITLEMENT. To have an entitlement you have to have a reasonable expectation to the CONTINUED receipt of the benefit. Mere expectancy is not enough.
Property: Gov't Employment
whether the expectations created by the employment contract or customs surrounding the positions created an ENTITLEMENT to the job
Property: Gov't benefits
Whether there is a property interest depends on teh expectations created by the gov't for that benefit.

If the program is set up that should you meet these requirements, then you get the benefit, you have a property interest in its contiunation.

BUT - there has to be the act by an agency/person. If the legislature terminates teh whole program, there is no due process claim
Procedural Due Process: Definition of Liberty
Liberty interersts encompas both rights that are expressly stated in the constitution, as well as the ones that are not enumerated.

Other rights:
-parental rights
-Prison Cases
Due Process for Prison Cases
there is a liberty interest only if there is a significant deprivation of freedom or hardship which is atypical to the usual conditions of confinement
Due Process for Reputation
Mere injury to reputation alone is not a liberty interest for a constitutional claim. It must be injury AND the loss of some state created right
Due Process Procedures Required
usually notice and an opportunity to be heard, whether the due process is enough is determined by the Matthews v. Eldridge Test
Matthews v. Eldridge Test
1. The nature or importance of the interest to the individual - the more important or valuable the interest, the more in the way of procedural safeguards the court will require

2. Ability of additional procedures to increase the accuracy of the fact-finding - the more the court believes the additional procedures will lead to better, more accurate, less erroneous decision, the more likely it is that the court will require them.

3. The burdens imposed on the gov't by requiring the procedures. The more expensive the procedures will be the less likely the court will require them. If it will affect their ability to use their programs, or act quickly or summarily
Substatntive DUe Process Defined
Substantive due process asks whether the government has an adequate reason for taking away a person's life, liberty or property (i.e. whether there is a substantial justification for the government's action) Intent: Originally the intent was more procedural, but has been expanded through the liberty clause to imply the following rights and due process.
Types of Substantive Due Process
Economic & Social Due Process (freedom of contract, etc)

Fundamental Protections under Due Process
Economic Due Process Defined
Economic Liberties are constitutional rights concerning the ability to enter into and enforce contracts, to pursue a trade or profession, and to acquire, possess and convey property
Rise of Economic Due Process
- Around the 1890's there was an economic laissez-faire theory floating around based on a philosophy of social Darwinism, believing that society would thrive with the least government regulation so as not to interfere with allowing the best to advance and prosper. Belief that government relations interfered with the rights of people to own and use their property and with a basic liberty interest in freedom of contract. The court during this time also was concerned about federalism, and was using federalism to limit the ability of Congress to regulate the economy
- Munn v. Illinois
- Lochner v. New York
Fall of Economic Due Process
The depression created a widespread perception that gov't economic regulations were essential. Positive gov't intervention became more widely accepted. Over time, the idea of lochnering (creating new rights) or judicial activism became unpopular. The cases slowly wanted to change Lochner
- Nebbia v. New york
- West Coast Hotel v. Parris
Modern Economic Due Process
Since 1937, not one state or federal economic regulation has been found unconstitutional as infringing liberty of contract as protected by the due process clauses of the 5th and 14th amendment. Social, economic and tax legislation that does not interfere with fundamental rights will not be closely scrutinized.
Test for Modern Economic or Social Due Process
Rational Basis review - any rational basis that the legislature might have had in concluding that the legislation would further permissible legislative objectives will be sustained. Effect is that virtually any law can meet this very deferential requirement.
⬢Law cannot be arbitrary or irrational
⬢Law presumed constitutional
⬢Burden of proof on the challenging party
⬢Courts will not question the legislative objective or the legislatures fact finding.
⬢Any permissible police power objective will suffice, even if the law incidentally serves other purposes will not make it unconstitutional.
⬢No fundamental right of contract
Substantive Due Process Defined
Source of rights in the due process liberty clause, protects certian rights. Personal rights and decsions are fundamental rights protected under due process
Difference between Due Process and Equal Protection HYPOS
The major difference between DP and EP as the basis for protecting fundamental rights is in how the constitutional arguments are phrased. If a right is safeguarded under DP the constitutional issue is whether the gov'ts interference is justified by a sufficient purpose. If a law is denying the right to everyone, then DP would be the best grounds for analysis; but if a law denies a right to some, while allowing it to others, the discrimination can be challenged as offending EP or DP.

In DP, you’re saying the gov’t is preventing you form doing something. In DP, if the restraint or inhibition of your liberty is in economic or social, then rational basis applied, Fundamental = strict scrutiny. In EP, you’re not saying the gov’t can’t stop you, you’re complaining that the gov’t is treating people differently. One person is getting something that another can’t do.
Viewpoints on Fundamental Rights in DP clause
⬢Orginalists - fundamental rights are limited ot those liberties explicty stated in the text or clearly intended by the framers. A court acts impermissibly and usurps the democratic process if it finds other rights to be fundamental.
⬢Non-Orginialists - its is permissible for the court to protect rights that are not enumerated in the constitution or intended by the drafters.
⬢Moderate Originalism - the view that the judiciary should implement the framers general intent but not necessarily their specific views.
Fundamental Rights under Due Process
Right to procreate
Right to contraception
Right to an abortion
Right to care, custody and management of children
Right to Die
Right to Refuse Unwanted Medical Treatment
Right to sexual privacy
How do you determine whether something is a fundamental right under DP?
Basic values of our society, history, tradition and custom. Over time, what has mattered to us as a society. Scalia, Rehinquist
o Some would stop right there and not look at it any further
o Would even cut to the specific activity (framing the issue)
- Reasoned judgment, they use their best thinking to see if such interests are of such important that they should be fundamental. O’Connor, Kennedy, Souter
- The nature of the decision at issue, is it a personal life defining decision, like whether or not to have a child.
- If the gov’ts act has impinged on one’s own bodily integrity. Medical care or abortion
- Some just blend them all together, when determining whether the particular interest is protected.
Undue Burden Test
• Undue Burdens: Pre viability, state may not place an undue burden on the woman’s right to chose an abortion. Undue Burden= any regulation that had the purpose or effect of placing a substational obstical in the way of a woman getting an abortion. Post viability, the state could regulate or prohibit, but had to provide medical emergency exception.
Examples of Undue Burdens
⬢ Requirement that abortions be held in acute care facilities is an undue burden, does nothing for the life of the fetus
⬢ Long periods of waiting time are an undue burden
⬢ Publishing the names of women seeking to have abortion is an undue burden
- spousal notifications
-reporting requirements for people that didn't notify their husbands
Examples of NOT Undue Burdens
• Informed consent and 24 hour waiting period did not place an undue burden on the woman's right to choose
• Viability tests are also not an undue burden, requiring two doctors to confirm viability ok, states don’t have to pay for abortions.
• Can require that physicians give alternatives to abortion, true facts about abortion, etc.
• Minor requiring to tell her parents is not an undue burden so long as there is a judicial bypass.
• Gov't not required to pay for abortions, or for travel, regardless of how poor you are
Importance of Casey
⬢ !!!Never mentions fundamental right or right to privacy, so that makes it possible to fashion the undue burden standard instead of applying strict scrutiny. In application, its an intermediate standard, and therefore less rigorous than roe.
Importance of stare decisi
Using Stare Decisis
Why should stare decisis stand? when should it be removed?
o Big factor in the equasion
o Whether the prior rule unworkable
o Whether there has been relied upon
o Whether the rule of law has been undermined
o Change in factual predicate for the decisions
Due Process: Family Rights
Parents have a fundamental right to the care, custody and management of thier children.

Families have a liberty interest in staying together
Due Process: Right to Refuse medical treatment
Mentally compentent people have a right to refuse unwanted medical care, even when doing so would result in death.
Narrow though: Rehinquist says that its not a right to bodiliy control, its a right against forced medication.
Due Process: Right to Die?
Court refuses the right of a mentally compentent terminally ill person to have physician assited suicide.

There are a few justices that subscribe to the idea that they may manage thier pain, even if it hastens thier death.
Due Process: Right to engage in choice of Sexual Orientation?
Adults do have an interest in engaging in private sexual relations in the privacy of a home.
1. Recognize that some carry the view that there should be NO specially protected rights under due Process
2. Determining if there is history and a tradition of recognizing the right
3. What is the nature of the issue involved. Does it involve a right ot make intimate, personal, life defining choices, or matters of autonomy or bodily integrity,
4. Use reasoned Judgment == would a balanced ordered society consider these types of choices off limits to the gov't
5. Rely on precedent
6. Remember that the court is hesitant to find new rights
Equal Protection Clauses
5th Amendment - applies to federal govt
14th Amendment - applies to states
Equal protection protects us against?
1. arbitraryness (rationality standard)
2. discrimination (heightened review)
3. animous or illegitmate acts (rationality with bite)
Categories of discrimination protected by the EP clause
Race & Ethnicity
Exercise of a constitutaional right
Analyzing Equal Protection Questions
1.Is there discrimination?
a.Facially - Then use applicable standard of review, No --> go to step 2
b.Facially Netural but applied in a discriminatory manner
c.Disproportionate Effect -Discriminatory impact PLUS purpose Must show that there was a purpose (even just if a factor) to discriminate. More than intent, has to be discriminating because of and not in spite of the impact.
i. If can't prove purpose --> rational basis
ii. If can prove purpose --> burden shifts to gov't to prove that they would have taken that action regardless of the discrimination
a. If gov't can't --> applicable standard of review
b. If gov't can --> rational basis and burden is on the challanger
2. What level of scrutiny should be applied (what is the test)?
a. Does the particular gov't action meet the requirements of the test?
Showing Discriminatory Purpose
Showing Discriminatory Purpose - From Arlington Heights
(1) statistical pattern that can be explained only by a discriminatory purpose - cases are rare
(2) history surrounding the gov'ts action.
(3) Departure from normal procedure
(4) legislative or administrative history of the law - very rare
Means of Classification:
1. Facially
2. Facially Neutral, but there is a discriminiatory impact or it is administered in a discriminatory manner. Requires that there be proof of purpose to discriminate
Factors used in determining what level of scrurinty should apply:
i. History of Discrimination - and the likelihood that the characteristic reflects prejudice or animus towards a group
ii. Highly stigmatizing effects
iii. Readily identifiable characteristic
iv. Immutable characteristic - it is unfair to penalize a person for characteristics that the person did not choose and the individual cannot change.
v. Pushed out of the Political Process - is the group able to protect itself through the political process
Strict Scrutiny Test
1. a law is upheld if it is proved to be NECESSARY to achieve a compelling governmental objective and it is narrowly tailored to do the least infringement on that interest. Must be necessary for some compelling objective.
2. The gov't must have a truly significant reason for discriminating,
3. must show that it cannot achieve its objective through any less discriminatory alternative.
4. No presumption of constitutionality
5. The gov't carries the burden of proof
5. Virtually always fatal to the challenged law
Intermediate or MidLevel Scrutiny
1. Law is upheld only if substantially further an important gov't objective purpose
2. Means used need not be necessary, but rather have a substantial relationship to the end being sought
3. No presumption of constutionality
4. Gov't has the burden of proof
4. Unclear whether a less discriminatory alternative must be used?!
5. it is really a heightened form of review, closer to strict than rational basis.
Rational Basis (with Bite)
1. Law upheld if rationally related to a legitimate gov't purpose and the states objective was reasonable
2. More searching than rational basis, wont come up with the legitimate purpose for the gov't
3. Not as deferential to the gov't
4. Challenger has the burden of proof
5. Stuck down if court concludes that here the only reason the state is treating one group differently is that they have an animus toward that group
Rational Basis Test
all laws challenged under equal protection. Default Test, applies in all cases where classification (other than the above)
1. Law is presumed constitutional
2. Law upheld if rationally related to a legitimate gov't purpose. Court will even make up the legitimate purpose for the gov't. Objective need not be compelling or important, just legitimate.
4. Challenger has the burden of proof
5. Very deferential to the gov't
6. Overinclusive / Underinclusive
Over Inclusive Laws
a law is over inclusive if it applies to those who need not be included in order for the gov't to achieve its purpose. The law unnecessarily applies to a group of people
Under Inclusive laws
a law is under inclusive if it does not apply to individuals who are similarly situated to whom the law applies
Test for Social and Economic Legislation
Rational Basis Test: Social and economic legislation that does not employ suspect classifications or impinge on fundamental rights must be upheld against an equal protection act when the legislative means are rationally related to a legitimate gov't purpose. Moreover, such legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality.
Test for Race and National Origin
1. Facially --> Strict Scrutiny: Racial classifications will only be allowed if the gov't can meet the heavy burden of demonstrating that the discrimination is necessary to achieve a compelling government purpose. In other words, the government must show an extremely important reason for its action AND must demonstrate that the goal cannot be achieved through any less discriminatory means.

2. Neutral plus effect with purpose to discriminate --> same as #1

3. Neutral plus effect with no purpose proven --> rational basis
De Jure Segregation
Clear gov't segregation, separate but "equal". The classes were clearly unequal however, so the court places the school districts under the pervue of the federal trial courts to determine when they have reached a unitary school system. Some did it one grade at a time, others completely closed the school districts, and opened private schools. This remedy made it so that even 10 years down the road, there was still inequality. Once the schools proved that they had achieved a unitary school system, it didn't matter if it sorta re-segregated, there was no requirement of continuation.
De Facto Segregation
white flight schools, the parents moved to the suburbs or put their children in private schools) Here the gov't isn't technically segregating, but were they required to integrate the schools in that context? No. De Facto Segregation is not held to the brown standard. The state has no constitutional duty to remedy segregation in schools which it has not caused. Absent laws requireing school segregation, plaintiffs must prove intentional segregative actions affecitng a substantial part of the school system.
Test for Affirmative Action Programs for Race
Strict Scrutiny -->
Remedial Affirmative Action
Affirmative action will be allowed if its directed at entities that are proven to have engaged in illegal discrimination and if it is limited to providing a remedy to those who are proven victims of that discrimination. Cannot be based on a desire to remedy the long history of racism throughout society.
Good Effects Affirmative Action
Only diversity is a sufficent justification for a good effects affirmative action program and its only permisisble in the higher educational environment. And even then, there are rules about how the program may be crafted.
Techniques approved for Higher Education AA programs
a. Quotas or Numerical Set Asides- NOT OK.
b. Race as a Factor in Decisions - OK. Race can be used as one of many factors considered in decision making to help minorities and to enhance diversity.
c. individualized wholistic review of each appplication, giving serious consideration to all the ways in which the applicant can contribute to diversity
d. NO set asides, every person can compete for every seat
Proving a Narrowly tailored EP law:
1. Limited in time because at some point shouldn't your remedy have worked
2. Limited in application
3. Minimize the harm to non -minorities
Attacking AA programs
1. What is the Setting? if University, go to 2. If state program, go to 3.
2. University must have a compelling interest (good effects and remedy past discrimination) and must be narrowly tailored with appropriate means
3. State (can only be to make up for past discrimination) and law is narrowly tailored
Test Used for Gender
Mid Level Scrutiny
Arguments for using ....scrutiny for Gender
⬢ Framers of the 14th amendment didn't intend for it to apply for women.
⬢ There are biological differences between men and women that make it more likely that a gender classification is justified.
⬢ Women are a political majority.
Arguments against using...scrutiny for Gender
⬢ There is a long history of discrimination against women
⬢ Generally not as politically powerful (but has the potential to be)
⬢ Immutable characteristic
⬢ Immediately visible characteristic
⬢ Even if one woman could perform the task as written then it should be upheld.
AA programs for women
Gender discrimination can be assumed to benefit women in many ways. However, the court only recognizes two instances
1. Gender classifications based on stereotypes is not allowed
2. Gender classifications designed to remedy past discrimination and differences in opportunity are generally permitted

Can’t just be making up the program, There has to be a basis for the program, and that it substantially furthers the need to make up for past discrimination.
Real Differences between men and Women
A law can facially discriminate aganst men or women, if it can be shown that the purpose behind the law is related to real differences between men and women. Even if it discriminates.
Test Used for Alienage
Strict Scrutiny: the law must be narrowly tailored to further a compelling governmental interest
Exceptions for Alienage
1. Political Function Exception
2. Congressional Exception
Political Funcation Exception
When aliens are excluded from voting or form positions that are "intimately related to the process of democratic self-government", only a rational basis is needed. This means that the gov't can discriminate when the gov't job relates to political rather than economic functions, and involves broad discretion in the formulation of the state's self definition. Two part test:
 Court examines the classification to determine if it was substantially over or under-inclusive with tends to undercut the gov't claim that the classification serves a legitimate political end
 Functions must go to the heart of representative government
Political Functions
1. elected gov't positions
2. police officers
3. school teachers
4. probation officers
5. NOT notary publics
Congressional Exception
- Under article I, congress can discriminate against aliens, because they are given broad powers to do so regarding immigration and nationalization. No modern case has ever held strict scrutiny to congress, instead, when challenged, the court reviews federal laws on alienage under a rational basis test
Test used for illegitmacy
classification must be based on an important gov't objective and substantially related to that objective.
Exception for Illegitamcy
intestate succession (people dying without a will). Ok for
Illegitimates have to go through a process that legitimates don’t have to. States can have reasonable reqirements to establish paternity in order to get property from a deceased estate.
Arguements for/against Age as heightened review
⬢ History of Discrimination? No history of discrimination against elderly
⬢ Subject to stigmatizing effects? Not to the degree of race
⬢ Immutable condition? Yes, everyone gets old
⬢ Politically insular minority, No. they are by far the most active voters
⬢Related to their ability to perform? Yes.
Classifications based on wealth
Rational Basis (with an exception). Usually classifications based on wealth (or lack thereof) are reviewed on a rational basis review. However, if the issue at hand is of a constitutional right or dimension, then the court will review it with heightened scrutiny.
Test used for EP and Fundamental Rights
Test: Strict Scrutiny - when a classification significantly burdens the exercise of a fundamental constitutional personal right, the gov't must prove that the classification is necessary to a compelling gov't interest. (if they are not unconstitutional on their face based on other factors or areas of the constitution)
BUT - significantly burdens: just because it has some effect on the fundamental right does not mean that strict scrutiny will be applied. If the law does not deter, penalize or otherwise burden the exercise of the protected right, only rationality is applied.
Test used for Fundamental Interests
Test: heightened review

Classification: not an independent constitutional right, or suspect classification. To be a fundamental interest, the issue has to be preservative of other constitutional rights.
Education and EP
- While education is important social and individual interest, it is not a constitutional right. However, when education is completely denied, rather than just differentiated, the court requires the state to show that the law furthers a substantial state goal.
Views of the First Amendment
Market Place of Ideas
Citizen Participant Model
Individual Liberties Model
Market Place of Ideas Rationale
- idea that the first amendment forbids gov't from taking sides in the natural struggle of ideas. If gov't does not liit or restrain the marketplace of ideas, full and free expression will push the best ideas into the light and lead the less worthy ideas away. (Abrams v. United States)
Citizen Participant Model
- idea that the central meaning of the First Amendment was to encourage the vigorous robust discussion of public issues and public officials. This discussion is central to democratic gov't in order that the people may actively participate in governing. (New York Times v. Sullivan)
Individual Liberty Model
Idea that FOE serves individual values as well as societal goals, by promoting individual autonomy and furthers self determination.
Types of Freedom of Expression Classifications
1. Content Based (incl. symbolic speech and forced speech)
2. Time place or Manner Controls
Content Based regulation
when gov't undertakes to regulate expression because of the content of the speech (because of what is being said) the law is presumptively invalid.
1. Laws are content based if they discriminate on the basis of viewpoint or if they categorize speech based on its subject matter. Subject matter discrimination is presumptively invalidate because there is a concern that a gov't will distort the public debate or favor particular messages.
2. Even a law that appears to be facially neutral, may be actually content based is its purpose is to regulate the speech because of the message it conveys
Test applied to Content based regulations
Courts apply the most exacting scrutiny to regulations that suppress, disadvantage or impose differential burdens on speech because of its content.
a. Gov't must prove that the law falls into a category of low-value to no-value speech or
b. must justify the law by establishing that the differential treatment is necessary to serve a compelling state interest and
c. is very narrowly drawn to achieve that end
Analyzing Symbolic Speech
i. Is the conduct expressive?
ii. Is the expressive conduct protected by the first amendment?
iii. Don’t focus on what the individual wants to do, we focus on the gov't, we don’t ask whether the person was intending to communicate a message, we ask was the gov't aiming at the message when it controlled it.
Time Place and Manner Controls
Gov't regulations that are unrealted to the content of speech are subject to a lesser degree of judicial scrutiny, even though speech may be incidentially burdened.
1. If a law is justified without reference to the content of the regulated speech, it may be held to be content-neutral.
2. Therefore subject to a more lenient but somewhat important test for when the gov't is controlling not what you're saying, but how and where you are saying it. You can regulate the size of your sign, but not what goes on it. Reasonable restraints on TMP will be upheld.
Analyzing TPM Controls
a. Did the gov't really aim at content? If so, its not TPM
b. Did they leave open alternative channels for the speech, even if just TPM, can't prohibit it entirely.
c. Narrowly tailored to serve a significant gov't interest?
vagueness is something you might encounter in criminal law. People should have notice of what's prohibited, and a law is vague if a person of common intelegence could not know what behavior is prohibited. Laws that are vague are invalid. The reason for this is that we don’t want gov't picking and choosing what is or isn't a crime because they are given leeway to interpret. Also, worried about the self censorship doctrine - where people will steer very clear of the line so that they don’t get in trouble, thus censoring their expression
a law can be held unconstitutional even as applied to a particular individual, if he law itself is overbroad. If it prohibits substantially more expression than necessary to serve the gov'ts interests. Even that person can bring the constitutional issues, regardless of their standing. Even people that the law could apply to can challenge the law for being overbroad. Limiting instructions can be made for cases that are overbroad. Not the same thing as vagueness, it can be very clear, but just sweep in too much
Prior Restraints
i. for the first amendment, it’s a whole lot worse if you retrain speech before its uttered, instead of punishing it after the fact. Prior restraints are disfavored in the law. Prior restrains on express, the gov't bears the burden to prove
1. Prevent direct immediate and irrepreiable harm
2. Presumtively unconstitutaional
Types of Unprotected or Less Protected Speech
Fighting Words
Real Threats
Commercial Speech
Incitement of Illegal Activity
: Advocacy of the idea of illegal conduct, without more, is constitutionally protected. Only where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions may the speech be supressed because of its content (Brandenburg v. Ohio) Speaker enjoys NO first amendment protection.
Fighting Words
Gov't can impose content based regulation when the speech constitutes fighting words. Words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Gov't has the power to punish the use of fighting words under carefully dran statutes not susceptible of application to proctected expression. These words are granted NO first amendment protection. 1. Fighting words includes personally abusive epithets, which are inherently likely to prove a violent reaction, given face to face from one person to another. Words then and there that are so insulting, so intupretive that the person who is hearing is going to hurt you.
2. Thought is that the fighting words are so far in the step of truth that they do not merit first amendment protection
Proscribing Fighting Words, Problems
iii. Proscribing Fighting Words
1. If a law is regulating fighting words, but discriminates on the basis of subject matter of viewpoint to create subcategories of the fighting words, the gov't must demonstrate that the discrimination is necessary to a compelling gov't interest. Fighting words may not be made the vehicles for content discrimination unrelated to their distinctively proscribe able character.
2. NO Fighting words statute has been upheld by the court (Breaching the Peace, Cursing at Police Officer, Crime for one or more persons to be annoying to persons passing by, etc)
3. ALSO - the Gov't can't say that some words (based on gender or race) can't be used, but others can. It’s a form of viewpoint control.
True Threats
No protection. encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The harm is the threat. Its ok to include in that group the burning of a cross with an intent to intimidate. First amendment doesn't apply to real threats.
v. The Hostile Audience Dilemma (for Incitement or Fighting Words)
2. What if speaker is not trying to incite the audience, but the audience hates the SPEAKER. When can the gov't stop the speech cause the audience is
3. Speaker may not be stopped unless the crowds hostility presents an imminent danger of uncontrolled violence. Police should try to control the crowd rather than the speaker.
Commercial Speech
expression that does not more than propose a commercial transaction. Expression related solely to the economic interests of the speaker and its audience. Not completely outside the first amendment, there are rules
PRotection of Commercial Speech
1. Even commercial advertising (assuming the activity advertised is legal) enjoys some First amendment protection.
2. Protection not as substantial as the protection afforded political, social or religious speech.
3. Prior restraint doctrine does not apply.
4. Even when gov't regulation is based on the content of the speech, the courts consider the commercial character of the speech as one factor, among others, in balancing the first amendment interests against the gov't interests.
5. The gov't really tends to get in trouble with OVERBROAD laws.
Unprotected Commerical Speech
1. commercial speech providing information about activities which are illegal or contrary to public policy is not protected under the first amendment.
2. False or misleading advertising is not protected.
Test for Commerical Speech
(from Central Hudson). Like strict scrutiny
1. Speech must not be false or misleading or related to unlawful activity. Gov't can regulate or prohibit these.
2. The gov't interest must be real and substantial (not something made up after the fact)
3. Govt regulation must directly and materially advance the gov't interest asserted. Must advance the gov't interest in a direct and material way, not speculative or conjectural
4. Fairly well tailored law - Must not be more extensive than necessary to serve that interest. If they could have less restrive means of doing so, then they have to use those.
Forums for Public Speech
Public Forum
Designated Public Forum
Limited Forums
Non-Public Forums
Public Forums
- property that his historically had as a principal purpose for the free exchange of ideas. Ex. Streets, sidewalks and parks
Designated Public Forum
- property that the gov't has designated a public forum. Same rules apply for public forum.
Limited Public Forum / Non Public Forum
A designated public forum is not created when the gov't grants only selective access to a class of speakers. When the gov't grants eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, obtain permission to enter, only a nonpublic forum exists
Regulating in Limited or NP Forums
i. The gov't can regulate subject to which the property has been dedicated. Like the work done in that office.
i. Gov't can limit to selective messages in a category/subject matter but not engage in viewpoint discrimination. Category has to have some rational connection to the purposes of the property's use in terms of what you're permitting. But what you permit can't be a form of viewpoint discrimination.
ii. The gov't doesn’t have to allow access, but to the extent that they do allow access, they have to allow everyone in that category in, and if some controversial group fits the category, it doesn't matter how controversial they are, they have to be allowed in.
Non-Public forum examples
Military bases
Gov't Offices
Rule for Public Employees and Speech
ii. Test: Public employee may be fired or disciplined but not for speech related to matters for public concern. When public employees are discussing public affairs the employee may be disciplined if his or her speech disrupts the operation of the office, undermines the authority or destroys close working relationships
Rules for Schools and Expression
the school can engage content control. They can proscribe course content and prevent articles, etc.
The regulation has to have reasonable pedagogical reasons for the proscriptions
use the Schools clear and present danger doctrine...
When students share their opinions on viewpoints the school can regulate if the activity was disruptive of school activities or would lead to disruption, then it could be regulated, just being protective of the school environment. Has to have a substantial likelyhood that it would be disruptive.
Secondary Effects
kinda under content control. applies to strip clubs. The court lessens up on the test to take into account that its not aiming at the content, is aiming at the seconday effects haveing around

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