con law rules - individual rights.txt

• 1) govt action
• 2) public function
• 3) entanglement
• An action for individual rights always require state action

private entity is performing a task traditionally & exclusively done by the government - e.g., elections

• govt affirmatively authorizes, encourages, or facilitates unconstitutional activity
• e.g., Courts can’t 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

• 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)

• 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

a reasonable person is not given reasonable notice of what is prohibited

regulates both protected and unprotected speech

• 1) incitement (of illegal activity)
• 2) obscenity
• 3) commercial speech
• 4) defamation

• 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

• 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]

• 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

• 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

• These are time, place, manner restrictions
• 1) public forums and deisgnated public forums
• 2) limited public and non-public forums
• 3) symbolic speech

• 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

• 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

• 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 govt’s purpose

• 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

• 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 can’t 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

• 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

• 1) always raise free exercise clause, except whhen the basis for standing is taxpayer standing
• 2) establishment clause is likely the main issue

• 14th Am applies to state/local govts [NEVER to federal!]
• 5th Am DPC applies EP to federal govt, but not explicitly

• Strict Scrutiny
• 1) race
• 2) alienage
• 3) national origin

• Intermediate scrutiny
• 1) gender
• 2) illigitimacy
• 3) undocumented alien children

• Rational basis
• 1) wealth
• 2) age
• 3) disability
• 4) alienage classifications related to democratic process

• 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]

• To prevail on an equal protection claim, the plaintiff must prove
• 1) discriminatory impact, AND
• 2) discriminatory intent

Whether the govt has an adequate reason/justification to take away someone’s rights [economic liberties/privacy]

• Applies to all non-fundamental rights
• 1) economic regulations
• 2) social regulations

• 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

• 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

• 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]

• 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

• Generally, only a rational basis test is used to review laws affecting economic rights.
• The Constitution provides only minimal protection for economic liberties.

• 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]

• 1) possessory taking: confiscation or physical occupation of property
• 2) regulatory taking: regulation leaves no reasonable economically viable use of the property