con law rules - individual rights.txt

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con law rules - individual rights.txt
2013-07-15 13:38:33
ca bar con law individual rights

ca bar con law individual rights
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  1. What is state action?
    • 1) govt action
    • 2) public function
    • 3) entanglement
    • An action for individual rights always require state action
  2. What is a public function?
    private entity is performing a task traditionally & exclusively done by the government - e.g., elections
  3. what is entanglement?
    • 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
  4. 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)
  5. 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
  6. Vagueness
    a reasonable person is not given reasonable notice of what is prohibited
  7. overbreadth
    regulates both protected and unprotected speech
  8. Content-based regulations
    • 1) incitement (of illegal activity)
    • 2) obscenity
    • 3) commercial speech
    • 4) defamation
  9. 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
  10. 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]
  11. 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
  12. 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
  13. 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
  14. 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
  15. 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
  16. 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 govt’s purpose
  17. 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
  18. 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 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
  19. 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
  20. 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
  21. 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
  22. Suspect Classes for EPC?
    • Strict Scrutiny
    • 1) race
    • 2) alienage
    • 3) national origin
  23. Quasi-suspect Classes for EPC?
    • Intermediate scrutiny
    • 1) gender
    • 2) illigitimacy
    • 3) undocumented alien children
  24. Other classes?
    • Rational basis
    • 1) wealth
    • 2) age
    • 3) disability
    • 4) alienage classifications related to democratic process
  25. 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]
  26. 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
  27. Substantive due process
    Whether the govt has an adequate reason/justification to take away someone’s rights [economic liberties/privacy]
  28. Substantive due process - rational basis?
    • Applies to all non-fundamental rights
    • 1) economic regulations
    • 2) social regulations
  29. 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
  30. 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
  31. 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]
  32. 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
  33. 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.
  34. 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]
  35. 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