Card Set Information

2013-05-06 12:01:49

Equal Protection, Substantive Due Process, Establishment Clause, Freedom of Speech
Show Answers:

  1. Prohibition on Ex Post Facto Laws Applies
    only applies to criminal cases
  2. Early Constitutional Litigation protecting individual rights was almost unheard of during early part of 19th century except for:
    • Property rights protected
    • State law voiding property rights UNCON
    • Pre-Civil War: court ruled that BOR does not apply to the states
  3. Cases that established 1) Supremacy Clause 2) Interstate Commerce Regulation
    • McCoulloch Established that Con is the Supreme Law of the Land
    • Gibbons established that Con gives congress power to regulate commerce between the states
  4. Privileges and Immunities:
    1) Case Law
    2) Effect of Case law
    • - The second sentence which forbids states from making "any law which shall abridge" only applied to federal rights alone.
    • - Thus, the P&I clause in the constitution only protected rights guaranteed by the U.S., it does not protect rights guaranteed by the individual states.
    • - Reasoning: Unthinkable consequences of a broader interpretation
    • - Slaughterhouse Cases rendered P&I a Nullity shortly after enactment
    • - Prevents a state from discriminating against non residents but only in rights that are fundamental to national unity
    • - Not meant to protect you from your state just other states that you are not a citizen of
    • - Used in Saenzto invalidate a law that said you get less food stamps if you move there from another state
  5. Rights protected under P&I
    Commerce, to be employed, practice one's profession, engage in business, travel, become a citizen of another state
  6. The Incorporation Doctrine
    -This was the rise of ideas of substantive liberty interests

    • -Applied 1st to the states then 14th DP to the states
    • -Latest--2nd amendment incorporated
  7. Different views on incorporation
    • -Total incorporation--apply BOR to the states fully
    • -Selective incorporation--Only a few, each case at a time
    • -Total Incorporation plus--not only BOR but other rights inherent in liberty
  8. Due Process -Principles to remember
    • (1) DP protects us from the govt, does not protect us from other individuals (usually),
    • (2) BOR does not apply to us directly, it gets to us through the DP clause of 14th (if you are in D. C. 5th).
    • 14th confers 3 rights: (1) right to DP, (2) right to equal protection, (3) right to P&I
  9. Lochner Era Themes:
    • (1) Liberty of DP Clause protects rights (especially right to K),
    • (2) State may only infringe liberty to achieve a valid police purpose (Specifically to protect public health, safety, morals),
    • (3) Court's role is to insure that state's purpose is to achieve police purpose
    • - Result of deep review of facts during this era was an activist court and inconsistency
    • - In decline it produced a rational basis test for economic regulations
  10. Unenumerated fundamental rights during the Lochner era include
    • (1) right of parents to control child's education including foreign languages
    • (2) Parents have right to direct upbringing of their children
  11. 2 Types of Due Process
    • - Procedural Due Process
    • - Substantive Due Process
  12. Procedural Due Process:
    the fairness of the procedure (1) Notice, (2) Opportunity to be heard
  13. Substantive Due Process
    The Justification for taking away life, liberty or property; must have a fair or sufficient reason.
  14. Does the Bill of Rights protect individual liberties from state interference?
    Barron has never been overruled. Therefore, States cannot violate the rights contained in the bill or rights. Rather, they violate the Due Process Clause, thus a claim that state action is unconstitutional must allege a violation of the 14th Amendment.
  15. 14th Amendment
    14th amendment limits State's power: Nor shall any state deprive any person of life, liberty, or property without due process of law. Guarantees that a person's life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking.
  16. Substantive Due Process - In General
    • State Must observe normative standards
    • State must demonstrate an adequate need(justification)before interfering with a protected interest.
    • Court must agree that the State's purposes(Ends) are Legitimate
    • Court must agree that the State's Means is needed to promote the ends.
  17. Substantive Due Process: 2 types of Rights
    - Incorporated Fundamental Rights (selected provisions of the Bill of Rights deemed fundamental and applied to the States)

    - Derivative Fundamental Rights (those substantive rights the Court deems so fundamental that they must be protected as liberty interests, though un-enumerated. Derived from the Constitution, natural law & common law)
  18. Substantive Due Process: Analysis?
    • 1) Identify the individual interest/right involved (Describe it in fairly specific terms)
    • 2) Determine whether the interest is a fundamental right/non-fundamental right

    Question to ASK: Whether the right is fundamental to OUR scheme of ordered liberty and rooted in our Nation's history and tradition?

    Determining if rights are fundamental look to intentions (original, broad)

    IF Fundamental (textual right / Derivative/unenumerated right)-> APPLY STRICT SCRUTINY

    IF NON-Fundamental right --> APPLY RATIONAL BASIS TEST

    • 3) What is the justification for the law?
    • 4) Are the means narrowly tailored to achieve the ends? / Are the means sufficiently related to the ends?
  19. Strict Scrutiny Analysis:
    We use STRICT when the restriction interferes directly and substantially with the right

    • 1-Is the state infringing upon a Fundamental Right?
    • -Look at the severity of the interference -If law causes a direct & substantial interference with a fundamental right, the State must have a compelling justification
    • 2- Evaluate the State's justification --> Is IT COMPELLING?
    • - Is there a sufficient justification for the law?
    • 3- Evaluate The Means & It's relationship to the ends
    • - is the law as implemented necessary to achieve ends

    State may only infringe liberty to achieve valid police purpose, specifically to protect public health, safety, morals. Courts role is to insure that state's purpose is actually to achieve a police purpose.
  20. Types of fundamental rights?
    • - Privacy (use of contraception, abortion, family relations) --> 14th amendment
    • - Interstate travel/Intrastate Travel
    • - Voting
    • - First Amendment
    • - Right to Procreate (Buck v. Bell )
    • - Right to Marry
  21. Rational Basis Analysis:
    Applies when the gov't is infringing on a Non-fundamental right

    • - State's ends must be legitimate
    • - Means must be rationally related to achieve the ends
    • **ANY legitimate reason will usually pass the rational basis analysis***
  22. Substantive Due Process v. Equal Protection
    • -Substantive due process guarantees that laws will be reasonable and not arbitrary.
    • - Equal protection guarantees that similarly situated persons will be treated alike. Both guarantees require the Court to review the substance of the law rather than the procedures employed.

    • - Generally where a law limits the liberty of all persons to engage in some activity, it is a due process question.
    • - Where the law treats a person or class of persons differently from others, it is an equal protection question.

    - Since both clauses protect against unfairness, both may be appropriate to the same gov'tal act, and discussion of both may be appropriate in an essay answer.
  23. In re: PP v. Casey - Standard of Review
    - Abandoned Strict Scrutiny and states no level of scrutiny

    - New Test: Undue Burden: Purpose or effect of placing substantial obstacle in the path of woman seeking abortion of non viable fetus
  24. Substantive Due Process:
    Right to Marry
    • Interracial marriage--bans are UNCON because freedom to marry is a FR and no compelling state interest (Loving)
    • Restrictions on marriage Zabloki(child support block)--impeded on right to marry and against Lovingso UNCON
  25. Substantive Due Process -
    Sexuality Challenge - Lawrence
    Reviewed as a liberty interest--not necessarily a fundamental right but still protected under 14th (strict scrutiny not applied but court said states interest was not legitimate)
  26. Loving v. Virginia - challenged in what manner?
    • Equal Protection Challenge --- Discrimination based on race
    • Substantive Due Process challenge -- Restraint on fundamental right to marry
  27. Equal protection: 1) Define 2) How does it apply to Federal Gov't
    • - No Person shall be… deprived of life, liberty or property without due process of law.
    • - Applies to Federal Gov't by reverse incorporation of the Fifth Amendment
    • - EP is really about discrimination and discrimination is a violation of DP
  28. SUSPECT CLASSES: Name the Classes & Standard of Review?
    • - Race
    • - National Origin
    • - Alienage (sometimes)

    - Strict Scrutiny
  29. Strict Scrutiny Test
    - Law is NECESSARY to achieve a COMPELLING Government Interest

    - Does the restriction interfere directly and substantially with the right?
  30. Intermediate Scrutiny Test
    - Law SUBSTANTIALLY relates to an IMPORTANT governmental interest
  31. Rational Basis Scrutiny Test
    - Law is RATIONALLY related to a LEGITIMATE governmental interest
  32. Quasi-suspect Classes: Name the Classes & Standard of Review?
    • - Gender
    • - Legitimacy

    - Intermediate Scrutiny
  33. Classes ruled NOT suspect- ONLY Rational Basis Review:
    • - Age (ex: Case regarding Mandatory Retirement)
    • - Disability Discrimination (ex: case that had zoning ordinance restricting placement of housing for mentally retarded, but even under rational review the zoning ordinance was unconstitutional)
    • - Economic Regulation (ex: Price control for milk reasonably deemed to promote public welfare)
    • - Wealth Discrimination (SCOTUS: Poverty is not a suspect class)
    • - Sexual Orientation (Colorado initiative to protect gay/lesbians)
  34. Review of Equal Protection & Schools Cases
    • Tax disparities between districts is OK because education itself is not a FR (San Antonio)
    • De Jure segregation--when school officials redraw lines or build new schools in order to maintain or increase segregation is UNCON
    • White-Flight--the court cannot correct for this
    • Busing without proof of de jure segregation when all the white kids move away--UNCON
    • Courts started rolling back desegregation plans recently--when courts feel that schools have remedied their past issues. Use of Controlled Choice Plan with tie breakers to determine school is now ok. Public schools cannot use race as the sole factor for determining schools
    • Single issue in these cases--is govt's classification justified by sufficient purpose?
  35. Equal Protection - How to establish a Suspect Class
    • - Show A DISCRETE and INSOLAR minority
    • - That class is the victim of societal prejudice, and
    • - Unable to achieve adequate protection through the ordinary operation of the political process
  36. Equal Protection Analysis of Classifications:
    • Is the government's classification justified by a sufficient purpose?
    • What is the legislative classification? (How does the law distinguish among people?)
    • What is the appropriate level of scrutiny?
    • Does the Government action meet the level of scrutiny?
  37. Equal Protection - Types of classifications
    • Facially discriminatory laws that single out a minority for a disadvantage  (i.e. blacks cannot serve on juries; those of Japanese-dissent are interned)
    • Laws that are facially race-neutral but there is discriminatory effect and purpose
    • Laws with racial classifications burdening both whites and minorities –facially symmetrical.
  38. How is it determined if there is a racial classification where facially neutral
    • Discriminatory impact is not sufficient to trigger strict scrutiny for EP purposes.
    • Must also demonstrate that the law was motivated by a discriminatory purpose.
  39. How to show Discriminatory Purpose
    • - Background of the decision
    • - Legislative history
    • - Departure from normal procedural sequence
    • - Substantive departures
    • - Discriminatory impact can only be explained by discriminatory purpose 

    Hunter v. Underwood(provision of Alabama Constitution that disenfranchised all persons convicted of crimes involving “moral turpitude”)
  40. Effect of showing proof of discriminatory purpose
    • If race is only one factor, burden shifts and government has chance to establish that the same decision would have resulted even had the impermissible purpose not been considered (Village of Arlington racial housing case, showed other purpose)
    • If Court finds discriminatory purpose and effect = racial classification
    • Technically then strict scrutiny
    • Realistically, have already established ss because lack of compelling purpose
  41. Review of a few Equal Protection Cases
    • Race based jury selection law--violates EP under SS
    • When Strict scrutiny on racial classification may fail--pressing public necessity may sometimes justify the existence of such restrictions/during emergency and peril (Korematsu)
  42. Affirmative Action
    Subject to strict scrutiny!!

    • Must show compelling interests by:  
    • (1)redressing past discrimination (closer to proven discrimination the better, need clear evidence)
    • (2) racial diversity in the workforce or higher education

    • In higher education-
    • -diversity in student body is a compelling interest, but quotas are UNCON.
    • -Can use race as a "plus" factor in admissions as long as there is a sufficiently individualized and holistic approach.
    • -Narrow tailoring does not mean exhaustion of every conceivable race neutral alternative, just good faith consideration of workable race neutral alternatives when achieving critical mass. But something that looks like or functions like a quota is not ok.
  43. Equal Protection: Redistricting
    • EP challenge is mal-apportionment is justiciable. Redistricting based on race is held to SS under EP
    • - Bizarre shapes for districts can demonstrate a prima facie case for racial gerrymandering.
  44. Facially neutral laws
    Even if they have a disparate impact, they are not UNCON without discriminatory purpose
  45. Equal Protection - Laws Benefitting Women
    ·Based on role stereo-types will NOT be allowed (perpetuate disruptive stereotypes – awarding alimony only to women)

    • ·Designed to remedy past discrimination/lost
    • opportunity will be allowed (SCOTUS allowed the SSA to use a different calculation when determining benefits for women which benefitted women, IT WAS ALLOWED on the basis that this was to compensate for the wage discrimination that women in the working world)
    • Meant to compensate for differences in Opportunity
  46. Equal Protection - Discrimination based on Gender
    - Standard of Review
    - Why?
    - Intermediate Scrutiny: Law Must be substantially related to an important government purpose.

    Why? Women are a discrete and insular group as well defined by several immutable characteristics, but they DO have the ability to protect themselves through the political process (51% of the population)
  47. Equal Protection - Discrimination based on Age
    - Standard of Review?
    • - Rational basis standard.
    • Mandatory retirement age upheld
  48. Equal Protection - Disabled
    - Standard of Review
    • - Rational basis with a bite
    • - more searching review than ordinary RB so not just and RB will do

    • - Why? because they are an almost suspect class, almost fundamental right (zoning/housing), degree of interference.
    • - Enforcing Bias is never a legitimate interest (zoning ordinance that only kept disabled out)
    • Cannot bar Disabled with zoning ordinances. Cannot execute mentally defective for murder.
  49. Equal Protection - Classes with Rational Basis Review
    - Age (Mandatory Retirement)

    • - Disability Discrimination (zoning ordinance
    • prevented home from being located in a certain area… was declared unconstitutional

    - Wealth Discrimination (Poverty is not a suspect class)

    - Economic Regulations (case requiring push cart vendors to have worked for 8 years or would lose license)

    • - Sexual Orientation discrimination (1996 case re: initiative that repealed all laws that prevent
    • gay/lesbian discrimination
  50. Government may Discriminate against non-citizens in regards to:
    • Rational Basis Standard
    • - Voting (democratic process)
    • - Serving on a jury (democratic Process)
    •  - Teachers (responsible for teaching youth the democratic process)
    • - Police Officers (integral to self government)
    • - Probation officer (integral to self government)
    • - Congress (Plenary power to regulate immigration,
    • regardless)
  51. Equal Protection - Strict Scrutiny Analysis
    • - How is the government distinguishing between people?
    • - Is the group burdened by this classification a suspect class?
    • - Is the burden on a fundamental right

    Note: Right can be FR under EP even when not under DP so specify!
  52. Franchise- Right to vote. Finding of UNCON must be supported by:
    • - In apportionment and gerrymandering even small deviations are suspect. 
    • -Evidence of continued frustration of the will of the majority of voters or
    • -effective denial of a minority of voters of a fair chance to influence the political process

    - Need a good faith effort.

    Partisan Gerrymandering is non justiciable because no judicially manageable standard.

    UNCON discrimination occurs when the electoral system is arranged in a way that will consistently degrade a voter's or group of voters' influence on the political process.
  53. Equal Protection - As it applies to Private actors
    • -SCOTUS said that congress did not have power to create private cause of action or prohibit private discrimination. Congress could only add remedies for state action.
    • -Civil rights act of 1964 enforced these rights and more through the commerce clause! Also created a private cause of action against individuals. Congress just has to show that it rationally believes that the discrimination will effect commerce.
  54. Congress and Freedom of Religion
    • SCOTUS held that enactment of the Religious Freedom Restoration Act of 1993 exceeded congressional power under section 5 of 14th.
    • Used Borne Test:
    • a)Congruent--Laws that are NOT congruent to a section 1 violation create new rights rather than remedy existing ones
    • b)Proportional--Laws that are not proportional to the threat and scope of Section 1 violations create new rights rather than prevent violations of existing ones
  55. Congress and violence against women act
    SCOTUS invalidated it because it was not tied to commerce. Applied Borne test from above. Congress lacked the power under section 5 to create a remedy for gender motivated by violence committed by private actors. Must be directed towards state actors.
  56. Standard of review-- Content based restriction & content neutral restriction
    • content based= Strict Scrutiny
    • content neutral= Intermediate
  57. Content Neutral Speech is:
    Is content neutral if applies to all speech without regard to the P's message
  58. Content based Speech is:
    content based if regulations turn on content of speech (viewpoint restrictions and subject matter restrictions)
  59. Strict Scrutiny Defined for speech:
    • Content based Speech is reviewed under strict scrutiny
    • Regulation must be necessary to serve a compelling govt interest
    • Regulation must be narrowly drawn to achieve that end
    • So can't ban signs protesting embassies within 500 feet (SS)
  60. Gov't Regulation of Speech - Comparing standard of Scrutiny
    Under O’Brien , incidental restraints on expressive conduct — content-neutral restrictions — receive intermediate scrutiny.

    Restraints targeting the expressive content of symbolic speech — content-based restrictions — receive strict scrutiny.

    Under Central Hudson , commercial speech receives the same form of intermediate scrutiny regardless of the purpose of government restriction at issue.
  61. Level of scrutiny for secondary effects doctrine:
    • - Intermediate Scrutiny
    • - Narrowly tailored to serve a significant govt interest
    • - Must allow for reasonable alternative avenues of communication

    Not content based because goal is to stop secondary effects (Case where city trying to keep porno theater out so crime will stay low) Secondary Effects cited by City:First.Congestion, crime surrounding adult theaters
  62. Reasonable Time, Place, and Manner Restrictions:
    • Test: 
    • - Content-neutral on its face
    • - & in application
    • - Narrowly tailored to serve an important government interest
    • - Must allow reasonable alternative avenues of communication
    • - Not constitute a complete ban on any type of communication

    Level of scrutiny is Intermediate

    Time, place manner restriction must be Content-neutral on face & in application, be narrowly tailored, allow reasonable alternatives and not be a complete ban on any certain type of communication.
  63. How the court determines if interest is unrelated to suppression of speech?
    • Objective: Can court conceive of a non-speech purpose?
    • Subjective
    • Purpose of legislature
  64. Prior restraint on Speech: what is it
    An executive, legislative, or judicial act prohibiting a communication before it has occurred (Court can't issue an injunction on a newspaper to keep it from publishing stuff)
  65. Vague or overbroad statutes
    not allowed because chills free speech
  66. Vagueness defined-
    Law affecting speech that are defined in ways such that a reasonable person cannot tell what speech is or is not permitted (like Banning annoying groups or Subversive people need not apply)
  67. Overbreadth Defined -
    -Laws that regulate substantially more speech that is constitutionally justifiable (both protected and unprotected)
  68. Free Speech Cases
    • Law prohibiting all live entertainment struck down,
    • Prohibition on political speech by government employees UPHELD (Purpose of avoiding corruption, limiting only bumper stickers and buttons) 
    • Ordinance prohibiting posting signs on PUBLIC property UPHELD,
    • Prohibition of interrupting police STRUCK DOWN
  69. Unconstitutional Conditions Doctrine
    • The government cannot condition a benefit on the requirement that a person forgo a constitutional right.
    • And the govt cannot deny a benefit to a person because he exercises his con right.
    • Govt can, however, condition spending on agreement or endorsement with/of viewpoints and goals
  70. Government Speech Doctrine
    Government may speak:

    • - It may promote its own (representative) Through official channels and Via 3rd parties(foreign aid, School curricula, Family planning choices)
    • -It does not need to give a right to reply, But may not stifle contrary speech
  71. Brandenburg Test
    - What is it?
    • aka imminent lawlessness Test
    • - Test to determine if speech is intended to incite lawless action

    • 1) Where such advocacy is Intended to incite
    • 2) or produce imminent lawless action
    • 3) and has the likelihood of inciting or producing such action.

    Brandenburg: Intended to Incite Imminent lawlessness and has the likelihood of producing lawlessness.
  72. Tort Liability for speech: defamation and IIED 
    - General Rule
    - Why
    - Types of Unprotected Speech Generally
    • -1st Amendment is not an absolute protection on free speech.
    • - WHY: Protecting reputation v. Protecting Speech

    • Types: 
    • Defamation - communication of false statements about a person that injures the reputation of or deters others from associating with that person

    Libel-publication by written or printed word of defamatory nature of and concerning the Plaintiff 

    Slander-Oral version of Libel
  73. Private Figures & Private Concern
    - Private figure on a private matter must show:

    • - statement was false &
    • - made negligently
    • - can recover actual & punitive on showing of negligence

    Dun & Bradstreet v. Greenmoss
  74. Public Figures and IIED-Tort Liability for speech
    • - Public Figure
    • - cannot recover
    • - unless can show statement was false
    • - and made with actual malice

    New York Times v. Sullivan
  75. Private figures & Public matters -Tort Liability for speech
    - Private figure on a matter of public concern must show:

    • - statement was false & 
    • - made negligently to recover actual damages

    - for punitive: stmt made with actual malice

    Gertz v. Welsh
  76. Public concern Defined:
    Related to any matter of political, social or other concern to the community or subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public
  77. Obscenity Test
    - Name
    - Prongs
    - The Miller Test

    • - When taken as whole, by contemporary community standards, appeals only to the prurient interest
    • - Must be patently offensive (Not enough for the statute to say that it is patently offensive, it has to describe the acts)
    • - When taken as a whole, lacks serious redeeming social value
    • - Judged by national standards

    Miller will not protect obscene works that appeal to the prurient interest & describes patently offensive acts that lack redeeming social value according to national standards.
  78. What actions may government take to regulate obscenity
    • Govt can prohibit the sale, distribution, and exhibition of obscene material
    • Govt may prohibit child pornography even if it does not meet the Miller test
    • Govt may not punish the private possession of obscene material in one's home but it may punish private possession of child porn--compelling interest in protecting the child
    • Does not have to be obscene just underage porn--has to be actual child not virtual, and if just written story it has to be obscene
  79. Symbolic Speech Test
    - Name the Test
    - Prongs
    • The O'Brien Test: law in question must:
    • - Be within the constitutional power of the government to enact
    • - Further an important or substantial government interest.
    • - The gov't interest must be unrelated to the suppression of speech (or "content neutral", as later cases have phrased it.
    • - Prohibit no more speech than is essential to further that interest

    SOCCIP- O'brien requires that regulation regarding symbolic speech be content-neutral, show constitutional power, further an important government interest and prohibits no more than is essential to further the interest.

  80. Symbolic Speech Cases
    • School could not ban arm bands being worn in protest of the war
    • State cannot ban flag burning to criticize the nation and then allow burning of a dirty flag in reverence of the nation. That would be a content ban and states cannot do that!
  81. Provocative Speech
    - what is it?
    Speech that is offensive and may lead to violence
  82. Fighting words Doctrine
    - Name the Test
    - Prongs of Test
    • Chaplinski Test: 
    • Fighting words are not protected by 1st amendment:
    • (1) Personally Abusive Epithets ,
    • (2) that are objectively likely to incite a breach of the peace
    • under a reasonable person standard

    Fighting Chaplinski does not protect personally abusive epithets that incite a breach of the peace in a reasonable person.
  83. Fighting Words v. Incitement
    (Fighting words test v. Brandenburg Test)
    • The difference between incitement and fighting words focuses on the intent of the speaker.
    • Inciting speech is characterized by the speaker's intent to make someone else the instrument of his or her unlawful will.
    • Fighting words, by contrast, are intended to cause the hearer to react to the speaker.
  84. Hate Speech--speech motivated by racism, sexism, homophobia, etc
    States have to be careful because if they draw a facially UNCON law or proscribe simply the speech they will be overturned

    - Cross burning statute that only outlawed the act when the Subject knows or has reasonable grounds to know that it arouses anger was overturned. But a law that forbids cross burning on someone else's land or a public place with the intent to intimidate someone is constitutional as long as they don’t make the act prima facie evidence of the intent
  85. In regards to Hate Crimes
    Not a violation of free speech for a state to increase the severity of the penalty for a crime in situations where the victim was selected because of his/her race, etc.
  86. Commercial Speech is
    Speech proposing a commercial transaction.
  87. Cases re: Commercial Speech
    sometimes meets with inconsistent results--PR banned advertisements of gambling at casinos but not other types of gambling and Court said ok. Court then said that a ban on advertisement of alcohol prices was UNCON because it was truthful information and state was trying to act paternalistic
  88. Unprotected Commercial Speech
    - Name of Test
    - Prongs of Test
    • - Central Hudson Test -
    • Uses Intermediate scrutiny

    • Regulations affecting commercial speech do not violate the First Amendment if: 
    • 1. The regulated speech concerns an illegal activity
    • 2. The speech is misleading, or 
    • 3. The government's interest in restricting the speech is substantial, the regulation in question directly advances the government's important interest, and 
    • 4.  The regulation is narrowly tailored to serve the government's interest.

    Hudson Test for Commercial speech regulates illegal activity that is misleading to a substantial and important gov't interest that is narrowly tailored.
  89. Campaign Contributions and expenditures-
    • -SCOTUS says Money=Speech
    • - invalidated laws restricting individual expenditures and corporate contributions and expenditures
    • Citizens United Held that corporations should have the same 1st amendment rights to spend money in the political process as individuals
  90. Commercial Speech via video games-
    • -SCOTUS: Content-based restriction --> Strict Scrutiny
    • - Scalia: Violence is not Obscenity; Obscenity involves sexual images;  Declined to create new category of unprotected speech
    • - Held that ban on the sale of violent video games to minors was an unconstitutional restriction on commercial speech. The Court stated that video game makers had a right to get their message to their users and that the State's interest was not compelling in the light that the restriction was so under-inclusive that ban was not placed on all things violent (saturday morning cartoons, illustrations of violence)
  91. The Establishment Clause-
    Gov't cannot establish a religion nor impede the free exercise of one.
  92. Review of Establishment Clause Cases
    SCOTUS held that there was no religious exception to bigamy laws because they were illegal before the bill of rights so intent was there for them to stay banned (this also kind of meant that Mormonism was not a religion because it did not exist prior to BOR either).

    SCOTUS also upheld a state law giving tax money back to parents who had to provide transportation for their children to public and private school (under neutrality principle out of Everson)
  93. The Separation Principle:
    -The establishment clause was intended to erect a wall of separation between church and state and therefore govt cannot use tax revenue to support religious activities or institutions
  94. The Neutrality Principle -
    -The govt must be neutral in its relations with groups of religious believers and non believers. Thus it may provide aid to religious organizations only if it does not favor religious individuals or organizations over the non-religious and is neutral between religions
  95. Approaches to the establishment clause:
    • - Strict separation-Everson minority rejected neutrality principle because it did not adequately constrain the power of the government to subsidize education
    • - Neutrality -Everson majority: the local board of education did not violate the rule of neutrality
    • - Accommodation --Rejects neutrality principle because it unduly constrains the power of the govt to affirm and support religious practices.

    • -Accomodationist believe:
    • -Govt violates establishment clause only if it literally establishes a church, coerces religious participation, or favors one religion over another
    • - The framers did not intend to end govt support of religion, only preference for a religion, they saw religion as important to govt, because it instills important civic values
    • - Many court rulings towards religion have been hostile instead of neutral
  96. The Establishment Clause
    - Name the test
    - What are the prongs?
    - Lemon Test

    • - The statute must have a secular purpose
    • -The primary effect must be one that neither advances nor inhibits religion
    • - It must not foster an excessive government entanglement with religion

    Court invalidated a law that paid certain teachers in religious schools salaries based on the subject that they taught on third prong.

    Lemons have a secular purpose, one that neither advances nor inhibits and does not foster an excessive gov't entanglement. 
  97. Random Religious Case Holdings
    • -religious invocation and benediction at public graduation ceremony violates 1st, (2) tax exempt status ok, (3) Textbooks ok but not materials, (4) tax deduction for books, tuition, and transportation ok, (5) religious symbols in public places are ok if they serve a secular purpose and do not amount to an endorsement of a religion, (6) religious activities outside of the school context may be ok if they are deeply embedded in the history of the country, (7) prayer in public schools if part of an official or approved school activity even if done by students and voluntary is barred
    • School Vouchers (Zelman)
    • Neutral education assistance programs that offer support to a broad spectrum are CON
    • Applied Lemon test and passed but there is some concern as to whether it really treats all schools the same under 1st prong