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
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)
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
a reasonable person is not given reasonable notice of what is prohibited
regulates both protected and unprotected speech
1) incitement (of illegal activity)
3) commercial speech
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 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
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:
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 govts purpose
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
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
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
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
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
Suspect Classes for EPC?
3) national origin
Quasi-suspect Classes for EPC?
3) undocumented alien children
4) alienage classifications related to democratic process
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]
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
Substantive due process
Whether the govt has an adequate reason/justification to take away someones rights [economic liberties/privacy]
Substantive due process - rational basis?
Applies to all non-fundamental rights
1) economic regulations
2) social regulations
Substantive due process - strict scrutiny?
Applies to all fundamental rights, including the right to:
1) interstate travel
-----child rearing re: choice of private education
-----right for a family to stay/live together
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
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]
What procedures satisfies procedural due process?
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]
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