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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
What is a public function?
private entity is performing a task traditionally & exclusively done by the government - e.g., elections
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
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 statute is void for vagueness if it fails to provide a person w/ ordinary intelligence w/ fair notice of what is prohibited.
A statute is overbroad and therefore void if it burdens substantially more speech than necessary to protect a compelling gov't interest
Content based regulations trigger SS and are usually struck down.
- 1) Incitement to Violence
- 2) Fighting Words
- 2) obscenity
- 3) commercial speech
- 4) defamation
Incitement to Violence
- State may forbid speech advocating use of force or unlawful action if:
- 1) speech is directed to inciting or producing imminent lawless action; AND
- 2) it is likely to incite or produce such action (a clear and present danger)
Words that by their very nature are likely to incite an immediate breach of peace.
Annoying and offensive NOT enough. Must be genuine likelihood of imminent violence by hostile audience
- 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 misleading ads are not protected by the First Amendment
- Other commercial speech can be regulated if regulation:
- 1) Advances a substantial gov't interest; AND
- 2) is narrowly tailored to that interest
- 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: Traditional public forums are those that are historically associated w/ expression, such as sidewalks, streets, and parks
- Designated/Limited public forum: A forum that has not historically been used for speech-related activities, but which the gov't has opened for such use.
If Content Based Reg
- If Content Neutral Reg --> The gov't may impose reasonable restrictions on the TPM of protected speech, provided the restrictions are:
- 1) Content-neutral as to both subject matter and viewpoint;
- 2) Narrowly tailored to serve a significant gov't interest; AND
- 3) Leaves open ample alternatives channels for communication of the information
--> The gov't may regulate the content of speech ONLY IF reg passed SS. Unless the basis of the content is an exception that does not trigger SS.
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 (Rational Basis Test)
- 2) Viewpoint Neutral (may prohibit speech on certain issues altogether but can't allow only one side of issue to be presented)
- 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
The FEC includes two freedoms: (1) the freedom to believe; and (2) the freedom to act.
Religious Belief --> Absolutely protected and cannot be restricted by law. Gov't cannot deny benefits or impose burdens based on religious belief. (Court may determine sincerity, but not reasonableness of belief)
Religious Conduct --> Not absolutely protected. Laws that intentionally target religious conduct subject to SS. However, neutral laws of general applicability only subject to rational basis test.
First Amendment Religion - Establishment clause
When a gov't program shows preference to one religion over another, or to religion over non-religion, SS applies
- 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) Reg/law has secular purpose
- ----b) The primary effect is secular effect
- ----c) Does not result in excessive 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?
- Strict Scrutiny
- 1) race
- 2) alienage
- 3) national origin
Quasi-suspect Classes for EPC?
- 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
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
- 2) vote
- 3) privacy
- -----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?
- Must balance:
- 1) The private interest of affected;
- 2) The value of additional safeguards; AND
- 3) the burden or cost of additional process
- 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