Con Law - just tests
Terms
undefined, object
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- Due Process Amendments
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14th - states
5th - gov't
As applied to the states through the 14th amendment. - Currently Incorporated Laws
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1,4,5,6,8 (5, double jeopardy, self in crimination)
2,3,7,(9,10) - Why incorporated?
- fundamental to the american scheme of justices
- 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
- Procedural DP Analysis
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1. has there been a deprevation?
What Process is Due? - Deprevation:
- intional adjudicative act taking away presently enjoyed benefits
- property
- whethere there is an entitlement (a reaonable expectation of continued reciept of the benefit)
- Procedure Due, (Eldredge Test)
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1. What are the private interests involved
2. what are the risks of erroneous deprevation?
3. What is the nature of the gov't interest? (costs, value, of additional procedures) - Test for Socio-Economic DP Claims
- Rational Basis: Socio-Economic laws are presumed constitutional and the burden is on the challenging party to prove that the law is not rationally related to a permissible government interest
- Licences & Permits - DP
- once the gov't issues a license, there is a property interest in the continued holding of that license. If gov't created a situation, where you are a mere applicant, but the law provides that if you meet all of these qualifications, take this test, etc, and you pass, then you shall be entitled to get the license - this is a benefit
- Parental Rights - DP
- - parents have a fundamental right to the care, custody and management of their children
- Family Rights - DP
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freedom of personal choice in marriage and family; it is for families to define what a family is (Moore)
OR
(“it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to entering the relationship that is the foundation of the family in our society (Zablocki, not covered) - Prison Cases - DP
- interest only if there is a significant deprivation of freedom or hardship which is atypical to the usual conditions of confinement.
- Reputation - DP
- , mere injury to reputation alone is not a liberty interest for a constitutional claim. It must be injury to an interest mentioned in the constitution or created by statute AND the loss of some state created right
- Substantive DP
- 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)
- Attacking Substantive DP Questions
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1. what is being regulated?
a. is it fundamental enough for heightened review?
2. what sort of heightened (or not) review applies? - Factors to consider new DP fundamental rights
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History and Tradition
Reasoned Judgement
Nature of the Issue
Precedent
Recognize that court is hesitant to find new fundamental rights - Sexual Orientation Test for DP
- Rational Basis - due process right of individuals to control intimate choices with respect to adult sexual relations
- Test for Abortions - DP
- Undue Burden - pre viability the state cannot enact a law that has the purpose or effect of placing an undue burden on a womans right to an abortion. An undue burden is something that places a substantial obstical in teh path of recieving the abortion (would it affect the ultimate decision)
- Factors for Stare Decisis needs:
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⬢ (1) Is prior rule unworkable?
⬢ (2) Would reliance on prior rule lend special hardship to consequences of overruling and add inequity?
⬢ (3) Whether related principles of law have evolved so that the old rule has become an abandoned doctrine
⬢ (4) Was there a change in the underlying societal facts which lay behind the original decision? - Right to refuse unwanted medical care / Right to die
- competent adults have the right to refuse unwanted medical care (not a right to bodily control) but there is no right to die
- Equal protection amendment
- 14th -
- EP protects us against
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1. arbitrariness (RB)
2. discrimination (SS or IMS)
3. Illegitmite Means (RBWT) - Attacking EP Questions
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1. is there a classification/discrimination
a. facially (go to standard)
b. neutral (go to 2)
2. must have discriminatory effect plus purpose. (because of not despite of, motivating factor)
a. statistical pattern
b. history surrounding action
c. departure from normal procedure
d. legislative history
3. if prove purpose (go to standard) if can --> go to 4
4. burden shifts to gov't to prove that they would have taken the action anyway - Test for Race
- SS: necessary to promote a compelling gov't interest. burden on gov't no presmption of constitutionality
- Test for Alienage
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SS: necessary to promote a compelling gov't interest. burden on gov't
Exceptions: Political Function & Congressional - Political Function Expection
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1. position must be related to the heart of democratic self gov't
2. must be narrowly tailored - Congressional Exception
- Under article I, congress can discriminate against aliens, because they are given broad powers to do so regarding immigration and nationalization
- Test for Gender
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IMS: gov't has the burden of proving that the law substantially furthers an important gov't interest
Special Satifications: Real Differences b/w men and women, AND AA programs - Real Differences b/w Men & Women
- A gender classification which “realistically reflects the fact that the sexes are not similarly situated in certain circumstances†will be upheld
- AA programs for Women
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1. there has to be an actual basis for the program (not just made up after the fact)
2. has to remedy specific instances of discrimination based on race, have a real need for it - Test for Illegitmacy
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IMS: Gov't must prove that its substnatially related to an important gov't interest
Exception: intestate wills - Test for Mental Retardation
- RBWT - rationally related to a legitimate gov't objective, whether it was reasonable and not based on animous
- Test for Sexual Orientation
- RBWT - rationally related to a legitimate gov't objective, whether it was reasonable and not based on animous
- Test used for Wealth
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RB - must be reasonably related to a legitimate gov't interest
Exception: where it has to do with the exercise of a constitutional right - Test used for exercise of constuttional right
- SS: must be necessary to further a compelling gov't interest,
- Factors in determining new fundamental rights/suspect classifications
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1. history and tradition
2. highly stigmatizing effects
3. politically descrete & insular minority
4. readily identifiable characteristics
5. able to define the class
6. Immutable characteristic - Attacking AA programs for Race
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1. what is the setting?
2. what is a permissible compelling interest in that setting
(higher education - diversity and remedial, state = remedial only,
3. is it narrowly tailored
- limited in time
- limited in application
- minimizes harm to non-minorities (serious, good-faith consideration of workable race-neutral alternatives that might achieve the diversity the university seeks)
- - Freedom of Expression
- 1st amendment, as applied to the state trhough the 14th amendment
- Types of regulations on FOE
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1. content control
(forced speech & symbolic speech)
2. TPM control - Content control (test)
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Exacting Scrutiny:  Regulation is presumptively invalid and must satisfy a compelling state interest and be extremely narrowly tailored
OR it falls in to the categories of low to no value speech - Categories of Low - No value speech
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Fighting words
- true threats
- hostile audienece
Incitement
Commercial Speech - Defining symbolic Speech
- 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.
- Test for Symbolic Speech (O'Brien)
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Govt regulation of symbolic speech is permissible if it
a. Furthers an important or substantial gov't interest
b. The gov't interest is unrelated to the suppression of free expression. (whether its content based or content neutral, test only applies if its content neutral)
c. The incidental restriction on alleged first amendment freedom is not greater than essential to the furtherance of that interest - Secondary Effects
- when the gov't seeks to regulate on the secondary (not direct) effects of the expression without regard to the message behind it
- Time Place and Manner Control Test
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a. Did the gov't really aim at content? If so, its not TPM
b. Does it substantially further an important gov’t interest?
c. Not more protective than is essential to the purpose of the regulation
b. Did they leave open alternative channels for the speech, even if just TPM, can't prohibit it entirely. - TPM Rules for Licences
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1. Look to see if a mere violation of a licensing/permit scheme has an effect on content control
2. Look closely at what the gov't says it is doing and how it is doing it. (are there standardized procedures in place)
3. Ensure that the law is as narrowly tailored as possible - TPM Rules for INjunctions
- because injunctions are a rule for one, you look to see if the law is necessary to further the goals of teh injunction and whether it does not proscribe more expression than is necessary
- Vague laws
- and a law is vague if a person of common intelegence could not know what behavior is prohibited
- Overbreadth
- If it prohibits substantially more expression than necessary to serve the gov'ts interests.
- Prior Restraints
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Prior restrains on express, the gov't bears the burden to prove
1. Prevent direct immediate and irrepreiable harm
2. Presumtively unconstitutaional
SS applies - Incitement:
- Advocacy of the idea of illegal conduct, without more, is constitutionally protected. Only where such advocacy is intentionally 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:
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i. Defined: 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. Granted NO 1st 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. - 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.
- True Threats
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True threats" 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
(includes cross burning) - Hostile Audience
- 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.
- Commerical Speech
- i. Defined: expression that does not more than propose a commercial transaction. Expression related solely to the economic interests of the speaker and its audience
- Unprotected Commercial Speech
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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. - Central Hudson Test
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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. - Regulating Limited Public Forums
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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. - FOE and Public Employees
- 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 only be disciplined if his or her speech disrupts the operation of the office, undermines the authority or destroys close working relationships
- FOE and Schools
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Has to either
1. be curricular
2. be related to a pedegogical purpose (incuclating values)
3. non -curricular a. Students can share their opinions on viewpoints
b. 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. - Attacking FOE Questoins
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1. is there a gov' regulation
2. what is the nature of the forum/relationship
3. is there expression
4. tradiaon (content control? -falls into categories or TPM (4 objectives)
5 forum analysis