CONLAW INDIV RIGHTS SHORT OUTLINE *RB is the default/fall back test *any test at mid/intermediate level or above requires one to check for reas adeq alts Possible Issues Tests/Analysis Cannot take life or liberty without due process Rational Basis(RB) or Compelling State Interest (CSI) RB= law must rationally relate to legit/permissive gov end --any conceivable purpose will do CSI= law must be nec or narr tailored to accomp some csi and the law and state interest must be related with no reas adeq alts available. Classifications get RB test No state may impair K obligations (not a limit on feds) --only applies to retroactive impairments Public Purpose Balancing Test 1. substantial impairment (degree effects K expectations) 2. legitimate gov purpose 3. imposes reasonable conditions on K parties 4. do the restrictions further the public purpose? Private property may not be taken w/o just compensation 3 Scenarios: 1. gov compensation 2. gov physically occupies 3. gov takes ALL econ viable use --if none of above apply, then do Penn Central Balancing Test: 1. economic impact 2. harm to investment based expectations 3. nature/extent of the taking Condition imposed by gov for change of use of priv prop 2 requirements: 1. essential nexus for exaction and purpose (Dolan) 2. exaction must bear rough propor to the harm (Nolan) --Nuisance Exception: no one is allowed to use prop to hurt others so if prop is creating nuisance then abating that nuisance is a justifiable taking that is not compensable even if it takes away all econ viable use. CSI 3 Rights to Privacy 1. Abortions CSI and Undue Burden Test --upheld = waivers; record keeping; parental consent if judicial bypass procedure avail; 24hr and 2 day waiting periods. --not upheld= spousal consent; records if divulge too much info; med procedures (except viability) 2. Child Rearing RB but if too much reg then CSI 3. Right to Marry RB unless signif & unreas restriction, then CSI
Substantive Due Process
Equal Protection Contract Clause
No Taking Clause
Exactions
Right to Privacy
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Procreation & Contraception w/ Minors Race Based Classification
RB inherently suspect = CSI --de jure segreg (law passed w/discrim intent) = per se invalid, fed crt has pwr to remedy --de facto segreg (law incidently leads to discrim) = RB, no fed crt pwr CSI CSI --AA is ok to: make up for past discrim; achieve diversity in wrk/univ --cannot harm majority persons; no quotas Substantial Relation Test (Midlevel test) --classifications based on gender must substantially relate to important gov interests also, Exceedingly Persuasive Justification Test (applied same as above) --sidenote: if law is passed with discrim intent = per se invalid Midlevel test --if reg hurts wm = test applied strictly --if reg benefits wm = test applied less strict
Classif Adv. Minorities
Race Based Affirm Action
Gender Based Classif
Gender Based A.A.
Classifications Based on Alienage & Birth
inherently suspect state laws discrim agnst aliens =CSI unless meet Pub. Func Ex then RB --Pub Func Ex: applied to jobs of high levels of discretion, jobs that go to heart of representative gov fed laws discrim angst alients = RB
Classif Based on Legitimacy
Test is between RB and Midlevel --classifications based on legitimacy must substantially relate to permissive gov ends
Classif Disadv Retard, Homo, Old, Poor
More Focused RB --need to look at actual purpose, not just any conceivable one --use this test when see discrim against polit pwrless grp RB CSI Qualification – cannot have poll tax or 1yr resid req (50day adv reg ok) Reapportionment – districts must be of equal size (1 pers, 1 vote) --fed dist = "as close to equal as practicable" --diff of less than 1% unconst --state dist = "substantial equality" --diff of 16% found constit Gerrymandering – race can be used as a factor in redrawing districts but it cannot be only factor Name on Ballot – implied in right to vote; soft strict scrutiny (reas nec)
Classif Based on Wealth Right to Vote
Right to Travel
CSI Must Show: 1. A durational residency requirement AND 2. a penalty on the right to travel involving a Necessity of Life (Welfare/Emerg Med Care/Vote – not divorce/tuition --also check Priv and Immun: right to sail the navigable waters; protection while in custody of a federal marshal; petition for grievances; and right to travel interstate Generally, have a right to hearing before a deprivation unless exigency Ask 3 questions: 1. was there a judicial-like taking? (needs to be something to have a hearing on) 2. was a property or liberty interest taken? 3. what level of process is reqd? (balance importance of priv interest with need of public interest for quick decision) treat as EP issue (RB test) unless facts say gov makes something an issue, presumes it and has hearing after the fact, then treat as Proc DP issue and say hearing needs to occur before deprivation. Only have state action if trying to make gov culp for acts of priv indiv Need to show state action + viol of DP/EQP/Priv Immunities Examples of state action: 1. gov turns over to priv entity the responsib for gov func 2. gov enforces a priv entity's restriction/law/decision 3. gov finances/endorses/auths priv entity Congr's ability to reach private acts is limited by Enum Pwrs in Const Analysis: 1. must have a federal law 2. is it a private act? (if state involved, see state action) 3. if private act, can fed gov use enum pwr to reach it? --Sec. 2 of 13th A.: Cong can reach priv acts if Badge of Slavery + imposed based on race --ex: minorities right to own prop, enter K, seek empl --also look to inherent enum pwrs cong could use to regulate acts through ie interstate commerce, etc. *congr cannot define substantive rights or expand constit but can enforce remedies --check appropriateness of remedy=balancing need for remedy (ie past discrim) w/reach and scope of fed law (is it overbroad)
Procedural Due Process
Irrebuttable Presumption
State Actions
Enumerated Powers
Free Speech
Congr can make no law abridging free speech Analysis 1. what kind of speech is being regulated: content neutral or content based? 2. apply applicable test: --if content neutral = Midlevel balancing test (law will be upheld if adv imp interest unrelated to suppress of speech and doesn’t burden speech more than nec --if content based = apply one of strict tests (below) or CSI strict tests: --radical political speech = clear and pres dang (Brandenberg) --reqs: 1. close prox, 2. spec intent --defamation = NY Times v. Sullivan --tort: discl priv facts(csi); misappropr; false light; intru on sec --porn/obscene = CA v. Miller if overbroad law, individ can attack it as it might be applied to others Analysis 1. identify why the activity as applied is not protected ie why you need to escape bad facts 2. identify why the law is overbroad --strike overbroad portion of law but keep rest presumptively invalid unless there is clear and pres dang or CSI Characterize figure being defamed as public or priv, then characterize content of speech as being of public or private concern --public figure/official – must show malice = intl falsehood or reckless disregard to truth ie speaker had serious doubts --priv fig/pub concern – must show negligence (obj std) --limited to proven damages --priv fig/priv concern – strict liability --presumed damages + punitives
Overbreadth
Prior Restraint Defamation
Public Disclosure of Private Facts
CSI "Shocks the Conscious" std – means revealing of truths often protected using one's likeness for commercial benefit = not protected Offensive/false but not defamatory Need to show int'l/reckless disreg and damages (hard to estab) committing crime (trespass, theft, b&e) to get info is not protected --however, the publication of that info may be protected CA v. Miller 1. must appeal to "prurient" interest of av reas person 2. must be patently offensive applying contemporary commun stds 3. as a whole, must lack serious literary, artistic, political or sci value --sexually explicit (protected)/softcore (buffer zone)/ hardcore (banned) if law was passed to protect kids but also restricts adults then apply Miller as it applies to av reas adult (*no right to possess child porn)
Misappropriation False Light Intrusion on Seclusion
Obscenity & Porn
Porn & Children
Fighting Words
Chaplinsky Test 1. have to use fighting words ie profanity/vulgarity 2. must have face-to-face confrontation 3. law must be limited to fighting words (must not be overbroad) violates 1st A. not protected if done for purpose of threatening or intimidating Determine if content neutral or content based --Content Neutral Approach: What forum was the speech in? --traditional public(streets, sidewalk, park) = Midlevel test --designated public (sch, libr) = Midlevel test --with re to both of the above, need to balance harm to free speech with harm to gov int. --nonpub limited pub forum (bus, jail, milt base) = RB --Content Based Approach Apply stricter test that fits the type of speech ie if radical political then clear and pres dang, if porn then CA v. Miller, etc. If none of the stricter tests apply then use CSI.
Hate Speech Cross Burning Time, Place, & Manner Regulations
Permit Schemes for Use of Pub Forum
If Content Neutral (ie regs time/place/manner) = Midlevel test (upheld) If Content Based (ie allows for consideration of message) = presumed invalid prior restraint. RB (gov doesn’t have to be neutral and can condition funds)
Gov As Speaker Free Speech on Public School Grounds Free Speech & Univ
speech can be limited if reas related to educ or pedagogical concerns normal free speech tests restriction must reas relate to correctional concerns (RB) can place limits on hard $ (advoc of partic person) cannot place limits on soft $ (ads for particular cause) can have disclosure reqs (who gave the $)
Free Speech & Prisoners Free Speech & Elections
Free Speech & Broadcast TV/Radio
gov grants license to airways so they can therefore regulate = RB safe harbor hours (10pm-6am) = allowed to broadcast indecent stuff --cable tv can do what it wants
Symbolic Speech
First ask: is there symbolic speech? Spence (reqs for finding symbolic speech): 1. expressive phys act closely akin to free speech 2. imbued with communicative aspects AND 3. communicates a message that can be understood by others Second: determine if content based or content neutral --content based = apply one of the strict tests/CSI --content neutral = apply O'brien O'brien: 1. is it w/in a gov pwr (enum pwr) 2. reg must further an imp or subst gov int 3. unrelated to suppression of free speech(cont neu) 4. hurts no more speech than nec (no reas adeq alts) Central Hudson Test 1. (Ad) must not be misleading or involve illegal activity 2. must advance subst gov int 3. must directly advance gov int 4. no more speech must be regulated than essential (no alts) freedom to speak includes right to keep info confidential You cannot be compelled to express your point of view determine if it is an expressive or intimate/societal association --if expressive = CSI --if intimate/societal = not CSI, likely RB you can be made to join diff kinds of assoc (bar, unions) but assoc is limited to spending dues on related activities; you can object to unrelated spending and get misspent proportion back there must be a separation of Church and State Lemon Test (use when aid is being given to priv sch) 1. must be secular purpose (non relig) for aid 2. effect of giving $ must not be to adv or inhibit relig (secular effect) 3. no excessive entanglement (must not require constant oversight to prevent misuse of funds) Alternative Tests (neither is readily applied) 1. Coercion Test (conservatives like): --can't use funds to coerce people into following relig 2. Endorsement Test (liberals): --aid cannot look like gov endorsement of relig
Commercial Speech
Freedom to Believe
Freedom of Assoc
Compulsory Assoc
Establishment Clause
Religion & Aid to Private Schools
Apply Lemon Test --aid is ok if it is to adv educ and not relig --if you give too much aid crt will say it is advancing relig --crt will uphold aid given directly to parent/child (vouchers are ok) --aid given to all schools is more likely ok then aid to just priv schs --if sch is pervasively relig then giving aid is not ok
Free Exercise
Protects belief absolutely and conduct to a lessor degree Sherbert = CSI test for laws directed at religion --laws that hurt free exercise of religion must be narrowly tailored to advance a CSI --if law regs broad societal interest and incidentally impacts religion = not CSI, likely Midlevel/Intermed test.
Religious Displays on Public Property
displays are ok if there is a balance between the relig symbols and other principles/symbols of the season/holiday