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What is state action?
- 1) govt action
- 2) public function
- 3) entanglement
- An action for individual rights always require state action
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What is a public function?
private entity is performing a task traditionally & exclusively done by the government - e.g., elections
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what is entanglement?
- govt affirmatively authorizes, encourages, or facilitates unconstitutional activity
- e.g., Courts cant enforce racially restrictive covenants
- e.g., govt leases premises to a restaurant that racially discriminates
- e.g., state provides books to schools [inc. private schools] that racially discriminate
- Note: govt subsidy itself is not enough for state action!
- e.g., no state action when a private school that is over 99% funded by govt fires a teacher b/c of her speech. state did not encourage the speech
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when does the constitution apply to exclusively private conduct?
- 1. 13th Amendment prohibits any badge or incident of slavery
- 2. Commerce Clause power can be used to apply the constitution to private conduct (e.g., Civil Rights Act of 1964)
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First amendment prior restraint?
- A prior restraint restricts speech before it occurs, rather than punishing it afterwards.
- Govt must show some special societal harm would result otherwise
- To be valid, a prior restraint must provide procedural safeguards:
- 1) standards must be narrowly drawn, reasonable, definite
- 2) injunction must be promptly sought
- 3) must be prompt and final determination of the validity of the restraint
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Vagueness
a reasonable person is not given reasonable notice of what is prohibited
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overbreadth
regulates both protected and unprotected speech
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Content-based regulations
- 1) incitement (of illegal activity)
- 2) obscenity
- 3) commercial speech
- 4) defamation
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incitement
- The govt may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality
- 1) imminent illegal activity
- 2) speech directed to cause the activity
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obscenity
- The material must
- 1) appeal to the prurient interest [excites lustful thoughts]
- 2) patently offensive [under the region's laws]
- 3) as a whole, lacks literary, artistic, political, or scientific value [social values, national standard]
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commercial speech
- Advertising for illegal activity, and false an deceptive ads are not protected by the First Amendment
- other commercial speech can be regulated if IS is met
- 1) illegal, false, and deceptive ads are not protected
- 2) intermediate scrutiny
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defamation?
- 1) If the plaintiff is a public official or running for public office, the p can recover for defamation by proving falsity of the statement and actual malice (? knew stmt was false, or acted w/reckless disregard for the truth)
- Must prove by clear and convincing evidence
- 2) If the plaintiff is a private figure but the matter of the speech is of public concern, that state may allow the plaintiff to recover for defamation by proving falsity and negligence by the defendant.
- However, the plaintiff may recover presumed (automatic, statutory) or punitive damages only by showing actual malice
- 3) If the plaintiff is a private figure and the matter is not of public concern, the plaintiff can recover presumed or punitive damages without showing actual malice
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Content-neutral regulations
- These are time, place, manner restrictions
- 1) public forums and deisgnated public forums
- 2) limited public and non-public forums
- 3) symbolic speech
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Public forums and Designated public forums, what standard?
- Public forum: Govt properties that the govt is constitutionally required to make available for speech (sidewalks and parks)
- Designated public forum: Govt properties that the govt could close to speech, but chooses to open to speech.
- Regulations must be:
- 1) content neutral
- 2) narrowly tailored to serve an important govt purpose, and
- 3) leaves open adequate alternative places for communication
- If not content and viewpoint neutral, then has to meet strict scrutiny
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Limited public and non-public forums?
- Limited public forum: Govt limits it to only some subjects [allowing advertising on buses, could be commercial ads, but not political ads, like a commercial forum]
- Non-public forum: govt properties that the govt constitutionally can and does close to speech [e.g., military base, airport]
- Regulation must be:
- 1) reasonable
- 2) viewpoint neutral
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Symbolic speech
- Govt can regulate conduct that communicates if it has an
- 1) important govt interest (unrelated to suppression of the message)
- 2) burden on communication is no greater than necessary to achieve the govts purpose
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Freedom of association
- Laws that prohibit or punish group membership must meet strict scrutiny.
- To punish membership/joining in a group it must be proven that the person:
- 1) Actively affiliated with the group;
- 2) Knowing of its illegal activities; and
- 3) With the specific intent of furthering those illegal activities
- Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny
- Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate associations or discrimination is integral to expressive activity of the group
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First Amendment Religion - free exercise clause
- 1) Government cannot punish (deny benefit, impose burden) on the basis of religious beliefs, as opposed to conduct
- 2) Strict scrutiny [if law was motivated by religious reasons]
- Note: free exercise clause cant be used to challenge a neutral law of general applicability unless it can be proven it was motivated by a desire to interfere with religion
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First Amendment Religion - Establishment clause
- Govt can make no law respecting the establishment of religion.
- 1) if the law makes a facial preference for a religious sect, then strict scrutiny applies
- 2) if no facial religious preferene, then apply the Lemon test
- ----a) secular purpose
- ----b) secular effect
- ----c) excesive entanglement
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If you raise establishment clause, then what should you do?
- 1) always raise free exercise clause, except whhen the basis for standing is taxpayer standing
- 2) establishment clause is likely the main issue
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Equal protection - which amendment?
- 14th Am applies to state/local govts [NEVER to federal!]
- 5th Am DPC applies EP to federal govt, but not explicitly
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Suspect Classes for EPC?
- Strict Scrutiny
- 1) race
- 2) alienage
- 3) national origin
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Quasi-suspect Classes for EPC?
- Intermediate scrutiny
- 1) gender
- 2) illigitimacy
- 3) undocumented alien children
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Other classes?
- Rational basis
- 1) wealth
- 2) age
- 3) disability
- 4) alienage classifications related to democratic process
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Levels of Scrutiny
- 1) strict: NECESSARY to acheive a CGI [burden on defendant]
- 2) intermediate: SUBSTANTIALLY RELATED to acheive a IGI [burden on defendant]
- 3) rational basis: RATIONALLY RELATED to acheive a LGI [burden on challenger]
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Facially neutral law, will equal protection apply?
- To prevail on an equal protection claim, the plaintiff must prove
- 1) discriminatory impact, AND
- 2) discriminatory intent
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Substantive due process
Whether the govt has an adequate reason/justification to take away someones rights [economic liberties/privacy]
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Substantive due process - rational basis?
- Applies to all non-fundamental rights
- 1) economic regulations
- 2) social regulations
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Substantive due process - strict scrutiny?
- Applies to all fundamental rights, including the right to:
- 1) interstate travel
- 2) vote
- 3) privacy
- -----contraception
- -----marriage
- -----procreation
- -----child rearing re: choice of private education
- -----right for a family to stay/live together
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Substantive due process - abortion?
- 1) pre-viability requires undue burden test [state cannot prohibit abortion, but may regulate as long as it does not create an undue burden on ability to obtain abortion]
- 2) post-viability can be prohibited unless woman's health is threatened
- viability = when fetus can survive outside womb
- Requirement of a 24-hr waiting period for abortions is NOT an undue burden
- Requirement that abortions be performed by a licensed physician is NOT an undue burden
- Prohibition of partial birth abortions is NOT an undue burden
- Spousal consent and notification laws are unconstitutional
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Procedural due process
- P must prove that he suffered a:
- 1) deprivation of life, liberty, or property.
- Liberty = a freedom secured by Constitution or statute
- Property = entitlement to a continued receipt of a benefit
- 2) must be intentional or reckless govt action [negligence not sufficient]
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What procedures satisfies procedural due process?
- Must balance:
- 1) importance of interest to the individual
- 2) ability of additional procedures to increase the accuracy of the fact-finding
- 3) govt's interest
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Economic liberties
- Generally, only a rational basis test is used to review laws affecting economic rights.
- The Constitution provides only minimal protection for economic liberties.
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Takings clause
- Govt may take private property for public use if it pays just compensation
- Is there a taking?
- 1) Govt taking
- 2) for public use [must have reasonable belief it will benefit the public]
- 3) w/Just compensation [market value, in terms of loss to the owner]
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What types of takings are there?
- 1) possessory taking: confiscation or physical occupation of property
- 2) regulatory taking: regulation leaves no reasonable economically viable use of the property
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