Con Law SHORT Outline - Sinner

Con Law – Individual Rights Outline DUE PROCESS RATIONAL BASIS I. Rational Basis Test [Fallback Test] a. Laws restricting substantive interest must rationally relate to some legitimate government interest b. Application i. First Step (END): There needs to be some legitimate government interest ii. Second Step (RELATIONSHIP): The law has to rationally advance that interest 1. Any conceivable justification. c. Presumption in favor of the law. BOP on person. PUNITIVE DAMAGES I. Punitive Damages a. Factors used by court to limit PD through DP i. There must be some proportionality between compensatory and punitive ii. Egregiousness of the act that lead to the punitive damages iii. Compare PD with the civil penalties for the action CONTRACT CLAUSE I. Article I Section 10 a. No state may impair obligations of preexisting contract rights unless a legitimate public interest outweighs the current K interest. i. If the Federal Government infringes it is just a normal RB DP issue. ii. Law must apply retroactively, not prospectively. II. Public Purpose Balancing Test a. 3 Parts i. There must be a substantial impairment [more than de minimis, but not necessarily a total destruction of contractual rights] to the pre-existing K rights. 1. Rx investment based expectations 2. Degree to which the government regulates the activity ii. Significant and legitimate public purposes that overrides the contractual rights 1. Actual interest and not just conceivable 2. Stronger interest required where gov impairs its own K. iii. Change in contract rights must be based on rx conditions, and must advance the public purpose 1. Rx balance between the government interest and contract holders b. Presumption in favor of legislation—v. difficult to establish violation of K clause. NO TAKINGS CLAUSE I. 5th Amendment a. Government cannot take private property for public use or any use that rationally relates to public interest unless they give just compensation (or pay for denial of use) [14th A. applies to states]. There has to be a diminish in value. Sinner Page 1 8/12/2008 II. Types of Takings [If no taking, then RB] a. 1st Per Se Takings Category – Economically Viable Use. i. Nuisance Exception: Can be a taking w/o compensation if necessary to abate a nuisance. nd b. 2 Per Se Takings Category – Physical Invasion i. Where the government occupies or physically invades the property for a period of time or allows another to occupy the property. 1. Physical; Noise; Smell; Dust c. Penn Central Balancing – No Per Se Taking i. 3 Factors 1. Extent of the Taking 2. Nature/Type of Taking 3. Harm to Rx Investment Based Expectations ii. Result 1. TakingJust Compensation 2. RegulationRBT Exaction Doctrine a. Rule: If there is a change of use then the government can exact conditions for the change of use. b. Test i. Nolan – Essential Nexus: There had to be an essential nexus between what was taken and the reason for the taking ii. Dolan – Rough Proportionality 1. There has to be a rough proportionality between the conditions that the government places on the property [exactions] and the potential harm caused by the change in use. a. Does this exaction offset the harm?? c. Result: If fails N/D Test, then taking which requires just compensation. If passes RBT. III. FUNDAMENTAL RIGHTS I. Strict Scrutiny a. Fundamental Rights i. Right to Privacy (usually DP Issue) ii. Right to Vote (usually EP Issue) iii. Right to Interstate Travel (usually EP Issue) b. CSI Test i. Laws that limit individual rights must be narrowly tailored to advance compelling state interest 1. First Step (END): There needs to be some compelling government interest 2. Second Step (RELATIONSHIP): The law must be narrowly tailored (e.g. necessary) to accomplish that interest a. ―Narrowly Tailored‖ = Less Drastic Alternatives [RADs] ii. BOP heavy on gov. II. Right to Privacy a. Right to Confidentiality/Keep Things Private i. Ct said that the right to privacy might include right to keep info confidential. b. Right to Family Matters and Child Rearing Decisions i. Laws limiting personal choice in matters of family life, including some aspects of child rearing (but not all) get CSI. Morre = CSI v. Michael H = RB. ii. Child Labor Laws = RBT Sinner Page 2 8/12/2008 c. Right to Marry i. Unreasonable restrictions that significantly limit the right to marry get CSI. ii. Rx restrictions that do not significantly limit the right to marry get RBT. iii. Laws requiring person of each sex (homos) are perhaps CSI. d. Right to Make Contraception Decisions i. Adults (married or single) = CSI ii. Minors = RBT 1. –see notes. I have something that says that maj of ct has struck down laws that restrict minors access to bc, but have done it as plurality opinion—some use MSRB and others use??? to strike the law down. e. Right to Make Procreation Decisions (Abortion) i. Pre-Viability = Undue Burden Test: ii. Post-Viability = CSI iii. Funding = RB f. Right to Refuse Medical Care = CSI i. Laws limiting personal choice in matters of medical care get CSI. g. NOT Recognized as Fundamental Rights i. Right to engage in homosexual sodomy = RBT. ii. Right to die/physician assisted suicide = RBT. EQUAL PROTECTION GENERALLY I. Equal Protection Clause: Concern is that YOU have been classified unfairly. II. Approach a. Ordinary Social & Economic Legislation = RB Test b. Gender-Based Classification = Mid Level of Review c. Race-Based Classification = CSI Test d. Fundamental Right = CSI Test e. If facts parallel those in the More Searching RBT section, then apply MSRB too. RATIONAL BASIS I. Rational Basis Test a. Laws restricting substantive interest must rationally relate to some legitimate government interest i. First Step (END): Legitimate government interest/end? ii. Second Step (RELATIONSHIP): Does the classification rationally advance that legitimate governmental interest/end? 1. Any conceivable justification. MORE SEARCHING RATIONAL BASIS TEST I. More Searching Rational Basis Test (MSRB) a. Key Facts: i. Law has singled out a disfavored or unpopular (e.g. politically powerless) group with the purpose to single out for disparate treatment; OR ii. Higher level of review would produce a different result. b. Application: Apply traditional RBT, but focus more on the actual purpose for why law passed. Sinner Page 3 8/12/2008 FUNDAMENTAL RIGHTS CSI test for EP issues relating to fundamental rights. [Just like in DP] I. Right to Vote a. Voter Qualification/Right to Cast Ballot i. Poll Taxes = Unconstitutional ii. Durational Residency = Depends on length (1 yr too long, 50 days ok) iii. Prisoners = Can be disqualified b. Reapportionment i. House of Representatives = Each district must be as nearly equal as is practicable ii. State Legislative Districts = Each district must be substantially equal iii. Super Majorities = Constitutional c. Racial Gerrymandering i. Some use of race allowed, but unconstitutional if primary purpose is based upon race. d. Shape/Size i. Courts do not care about the shape of districts anymore. e. Access to the Ballot/Name on the Ballot i. Rx Basis: Law must rx relate to managing of electoral process. f. Rules for counting under and over vote i. Failure to equally determine voter intent violates EP. II. Right to Travel [Narrow Right] a. Durational Residency + Necessity of Life/Fundamental Right = CSI b. Without Both = RBT c. Bona Fide Residency Requirement = RBT d. Expansive Views i. Some members of the ct will take a more expansive view of the fundamental right to travel and hold that certain aspects of residency (aside from those listed above) get CSI. When these Judges’ opinion are applied to those Judges that apply MSRB Test (and hold that the law is not rational), then you have a majority holding the law unconstitutional. Right to Education a. Total Deprivation i. Of Americans = RBT, but mention possibility of CSI b/c possibly fundamental right. ii. Illegal Aliens = MSRB Test—why???? b. Providing Minimal Education = RBT b/c NOT a fundamental right, so RB c. Bona Fide Residency = RBT d. Funding = RBT III. SUSPECT CLASSES I. Race Based Classifications: Inherently suspect and subject to a CSI test. a. Look for RADs: If there are RADs, then classification will NOT satisfy relationship part of test. b. Preemptory Challenges cannot be based on race. c. Prison: Race Discrimination = CSI. All Other Rights = RBT. d. Segregation i. De Jure Segregation – Per Se Invalid: Result of intentional governmental acts 1. Must Show a. Intentional Act by school board/gov body that created segregation; AND b. Currently segregation/continuing harm 2. Remedies must be rx, feasible, and workable, and limited to const. violation. Sinner Page 4 8/12/2008 3. Authority ends when… a. Good faith effort b. To eliminate the last vestiges of de jure segregation c. Substantial success ii. De Facto Segregation – NOT Unconstitutional = RBT: Segregation as a result of private choices based on societal, historical, or economical conditions. 1. RBT = States can pass laws to regulate this; but courts cannot remedy. II. Gender Based Classifications and the Intermediate Test a. Intermediate Test (Mid Level Test) i. 2 Phrasings 1. Classifications based upon gender must substantially relate to important governmental interests; OR a. First Step: There must be an important/significant/substantial gov interest b. Second Step: Classification based upon gender must be narrowly tailored to substantially relate to legitimate government interest i. Court will consider RADs ii. Balancing test b/w state interest and need to use gender classif. 2. There must be exceedingly persuasive justification for gender based classification ii. Gender Laws 1. Protective = Closer to RB (different level of mid test) 2. Harmful = Closer to CSI (different level of mid test) iii. Pregnancy 1. Generally = RBT b/c viewed as medical condition 2. Benefits = RBT 3. Burdens Pregnant Women = Intermediate Test iv. Statutory Rape = Intermediate Test v. Selective Service = Intermediate Test vi. Preemptory Challenges cannot be based on gender Alienage [Legal Aliens & Citizens] [Not Race Based] a. CSI for state classifications that regulate alienage, AND i. All State jobs—except those that fall w/in political function exception? ii. Benefits [Welfare] iii. Private Sector [Attorneys, Civil Engineers] b. Political Function Exception = RBT i. Jobs that go to the heart of the democratic institution or a representative gov get a RBT 1. Purpose: Getting qualified, loyal people is a conceivable purpose 2. Relationship: Citizens are better suited ii. 3 Requirements for state classification to get RBT 1. State job; AND 2. Important high level government position/function; AND 3. Job allows a high level of discretion c. Federal Laws Involving Alienage = RBT i. Laws passed by Congress which treat aliens different than citizens get RBT d. Illegal Aliens i. Classification based on illegal alienage are NOT suspect and probably get RBT, maybe MSRB, defiantly not CSI, but we don’t know. 1. Education is not a fundamental right so gets MSRB when applied here. Sinner Page 5 8/12/2008 III. IV. Legitimacy a. Intermediate Test that is less strict than Gender Intermediate/EPJ Test i. Substantially related to a permissible/legitimate governmental end. 1. No RAD requirement b. Inheritance: i. Laws requiring illegitimate kids to prove legitimacy or dependency usually upheld as long as not too restrictive (legit if married to mom, 6 yrs SOL) c. Parental Rights—Mom v. Dad of Illegitimate Children = Gender Issue = Intermediate/EPJ Test i. Most laws will fail but some exceptions: Act quickly for adoption; Father unknown. d. Custodial Status Issues = RBT. Wealth—I’m confused as to when RB applies and when higher level applies a. Wealth = RBT b. Wealth + Procedural DP Issues = Higher Level of Scrutiny (maybe more strict RBT) i. Fees that are required for certain types of hearings get a higher level of scrutiny V. NEUTRAL CLASSES I. Neutral classes get a RBT even though they affect race/gender II. UNLESS you can show that it was passed with the purpose of going against race or gender then it is Per Se Invalid and don’t need CSI a. 7 Possible Factors to Show Bad Purpose (Per Se Violation) – Balancing Test i. Disproportionate Racial/Gender Impact (by itself not enough) ii. Historical Background/Specific Sequence of Events (How did the law come about?) iii. Departure from Procedural Norms iv. Departure from Substantive Norms v. Absence of Legitimate Explanations/Reasons vi. Stark difference in statistics vii. Direct evidence of legislative motive. AFFIRMATIVE ACTION IV. Race Based AA a. CSI test for Federal, State, and Local. i. End/Purpose Prong (most important) 1. Making up for broad historical race based discrimination is NOT valid purpose and will never pass the CSI test. 2. Making up for past raced based discrimination in a particular sector/field or as to a particular person is the BEST purpose. 3. Specific discrimination or a narrow pattern of discrimination is valid 4. Achieving diversity in an educational environment is a valid purpose, but we don’t know if valid in employment yet. ii. Relationship Prong 1. RADs + 3 Other Factors a. Degree of advantage to minorities b. Degree of disadvantage to majorities c. Overall Flexibility of Law b. McG mentioned that this is one area he thinks will change b/c of Alito Sinner Page 6 8/12/2008 V. Gender Based AA a. Intermediate/EPJ Test whether it be hostile or benign [advancement of] b. Historical DiscriminationCreating Classifications Advantaging Females i. Making up for past historical economic discrimination is a legitimate governmental end and passes the intermediate test. c. Approach i. Purpose 1. Making up for past historical economic discrimination and achieving diversity in the workplace are legitimate gov ends which pass the intermediate test. ii. Relationship 1. Look for RADs 2. Moderate flexible case by case use of gender in order to achieve diversity will pass the Intermediate Test PROCEDURAL DUE PROCESS GENERALLY I. 3 Part Test a. (1) Intentional Judicial Like Decision creating a PDP issue not a substantive interest b. (2) It must be the taking of liberty or property interest i. Liberty 1. Prisoners: No LI unless significant hardship 2. Refusing medical treatment is a valid interest 3. Reputation: No Longer LI even when combined w/ something else. ii. Property 1. Employment: At Will (NO) v. For Cause (YES) c. (3) What level of due process is due (infinitely variable) i. 3 Part Test to Determine Appropriate Level of Process 1. Importance of the private interest at stake 2. Risk of erroneous deprivation by not having better proceedings 3. Importance of governmental interest at stake. ii. Hearing must be prior to termination unless exigent circumstances. II. Irrebuttable Presumption Doctrine a. IPs are EP classifications = RBT or Same level of review as they would under EP. b. Exception: i. Apply PDP to the following fact patterns 1. Laws that makes it a discretionary decision (the issue) regarding… a. Fault in an accident: OR b. Fitness of a Parent; AND 2. The result of that issue is presumed/made w/o a hearing; AND 3. They had a hearing on the issue afterwards to determine that issue Sinner Page 7 8/12/2008 STATE ACTION GENERALLY I. Requirements to have state action violate the Constitution (14th A reaching private acts) a. State Action [If you have this state it and move on] i. NOT FEDERAL GOVERNMENT—I don’t understand why—I thought this was state action??? If it is then no State action issue II. Approach a. Sift the facts and weigh the circumstances, w/ special focus on Gov blame and responsibility for the Constitutional violation. Basically practical balancing of important facts. IMPORTANT PRECEDENT – 3 Categories I. Public Function Doctrine a. When the gov turns over public function responsibilities to a private entity and they deny access. b. Public Function Limited to activities traditionally and exclusively held by the government II. Governmental Enforcement of Private Agreements a. Restrictive Agreements i. Restrictive agreements alone do not violate the 14th A. ii. BUT gov enforcement of private racial discrimination is State Action. b. Neutral Agreements i. Enforcement of Neutral law/agreements is NOT state action. c. Employment Contracts i. If a state employee is under contract with a private entity, then there is a state action. d. Trustee i. If a state entity is the trustee of a trust that calls for provisions that violate and they enforce the trust then it is state action. e. Preemptory Challenges i. The State or private attorney or public defender, in civil or criminal, cannot use race or gender as a basis for preemptory f. Public Defender Exception i. Public defenders actions and role/duty are NOT state actions because his role is adverse to the government. g. Private Regulation of Public Entities i. It depends on the amount of public entities that the private entity regulates Government Financing, Regulation, Authorization, and Endorsement of Private Conduct a. Private Activity on Government Property i. The fact that private action occurs on public ground does not make it a SA. ii. HOWEVER, if it is so closely related—“symbiotic relationship”—that they depend on one another and where most people think that they are one then it will be a SA. b. Government Financial Assistance to Private Activities i. Receiving of funds does not mean SA. ii. There needs to be some mutual benefit or interdependence between what the funds were given for and the action. c. Government Licensing or Regulation of Private Activity i. Gov licensing or regulation is not sufficient to create SA. ii. There needs to be a sufficiently close nexus between the state and the private entity. iii. Public Function Limitations—how do these fit in? III. Sinner Page 8 8/12/2008 d. Government Approval of Private Unconstitutional Activity i. Any laws that encourage constitutional violation will be state action! ii. One View 1. Repeal or initiative to repeal law protecting against discrimination was considered a state action because the state approved. Probably erroneous today. iii. Better View 1. Since the repeal requires 2/3 votes to pass another fair housing law, then that is a race-based classification, which req’s CSI (where there is no compelling reason for this to require 2/3 votes and other just requires a majority). In this view, no state action issue, rather an EP issue. 2. I don’t really understand why this is better—I thought super majority was ok. CONGRESSIONAL POWER TO PASS LEGISLATION CONGRESS’ ABILITY TO REACH PRIVATE ACTS I. Reaching Private Racial Discrimination a. Generally i. Congress cannot do shit unless they have an enumerated power backing them up. b. 13 A – Slavery i. No person may hold another person in involuntary servitude (i.e. Slavery or Badges of Slavery), and Congress can pass legislation to enforce. 1. Must relate to slavery and badges of slavery, and no just racial discrimination. c. 14th A – PIs i. Congress can reach private acts based on PI, and can pass legislation preventing private interference w/ these 4 PIs: 1. Sail of the seas 2. Protection under a federal marshal 3. Going to DC to petition for grievances 4. Right to travel Interstate d. 15th A – Vote i. Race cannot be used as a basis for voting. 1. Can reach private acts of intentional/purposeful discrimination AND disproportionate racial impact. II. Changing Substantive Material a. Congress can change remedial shit b. BUT any substantive change will be found unconstitutional c. Limitation – Section 5 of the 14th A i. If the court has defined the scope of the protections under 14th A, Congress cannot pass legislation to the contrary. Sinner Page 9 8/12/2008 FREE SPEECH GENERALLY I. 1st A: Neither congress of states can pass law abridging freedom of speech II. Basic Approach a. Determine what type of free speech issue you have b. Apply test for that particular type of speech i. Radical Speech = CPD ii. Defamation = NY Times, Brandenburg v. Ohio iii. Obscenity = Miller iv. Fighting Words = Chaplinsky v. Commercial Speech = Central Hudson vi. Time, Place, Manner Regulation 1. Content Based = Apply one of the tests above 2. Content Neutral = Ward v. Rock Intermediate Test c. Consider 2 Special Problems i. Vague & Overbreadth ii. Prior Restraint Test RADICAL SPEECH [Content Based Regulation] I. Generally a. Radical speech (e.g. advocating unlawful or illegal acts to achieve political gain) is protected and can only be punished if the speech passes the clear and present danger test. II. Clear and Present Danger Test a. 3 Elements i. Must be words of advocacy of violence or unlawful acts ii. Must be stated for purpose of accomplishing those illegal acts [specific intent] iii. Must be a likelihood of success w/ regards to those illegal ends. b. [Just mention] As the danger increased the need for proximity decreased. III. Ramifications a. If you are involved in a group w/lawful and unlawful aims, you are responsible only if: i. You are aware of the unlawful aims; and ii. You have specific intent of accomplishing them. b. Participation in civil protest turned violent, you are not responsible for violence unless: i. You knew of the violence; and ii. You had the specific intent to accomplish them. IV. Other Uses – CPD Phrase used, not Test a. Contempt of Court: can’t hold non-party in contempt unless CPD to fair admin of justice. b. Prior Restraint: not legal unless there is a CPD of immediate harm. Sinner Page 10 8/12/2008 DEFAMATION [Content Based Regulation] I. Rules for Possible Scenarios [P has BOP in all scenarios & States can always raise level of proof]] a. Public Official/Figure Plaintiff in a Public Concern [NY Times] i. Actual Malice = Intentional Falsehood or Reckless Disregard 1. Reckless Disregard [Subjective Test] = Having serious doubt about the truthfulness of a statement, not verifying it, and publishing it anyway. 2. Compare CL Malice, which means ill will or hatred. ii. Public Official 1. Any person elected to public office 2. Any candidate running for office 3. Only Government employees who play an important role in setting public policy iii. Public Figure 1. All Purpose 2. Limited Purpose iv. Damages: No limits (actual + presumed + punitive) v. BOP on П to prove statement was false. Tie to ▲. b. Private Plaintiff in a Public Concern [Newsworthy Concern] [Gertz] i. Negligence 1. Failure to investigate might be enough to show negligence ii. Limited Damages unless prove NY Times actual malice. iii. BOP on П to prove statement was false. Tie to ▲. c. Private Plaintiff NOT in a Public Concern [Dunn & Bradstreet] i. Not clear can be Strict Liability or Negligence ii. Damages: No limits (actual + presumed + punitive) iii. BOP 1. Traditionally on ▲ to prove statement was true. Tie to П. 2. Modernly (p/t Free Speech clause) on П to prove statement was false. Tie to ▲. PRIVACY [Content Based Regulation] I. Revealing Private Facts a. Revealing is Protected unless CSI = The facts are so embarrassing in their nature that revealing them shocks the conscience of the court II. Intrusion on Seclusion a. Probably no 1st A protection for illegally gathering this info (e.g. trespass) i. But not liable if you published it. III. Misappropriation a. Probably no 1st A protection for misappropriate someone’s likeness. IV. False Light a. Public Official/Figure or Private Person in Public Concern, i. Actual Malice = Intentional falsehood or reckless disregard. b. Private Plaintiff not in a Public Concern i. Maybe negligence, possibly reckless disregard, but we don’t know! Sinner Page 11 8/12/2008 OBSCENE/SEXUALLY EXPLICIT [Content Based Regulation] I. Miller Test [Offensive if] a. 3 Elements (protected unless…) i. Material taken as a whole appeals to the prurient interest of the average rx adult ii. Patently offensive applying (a) contemporary local community standards (b) as specifically defined in legislation or judicial decision iii. It be without serious literary, scientific, artistic value (national standard) b. Apply so that all but hardcore porn is protected by the 1st A. II. Child Porn a. Laws Aimed Solely at Protecting Kids get Miller Test if they affect adults too. i. They get a lesser standard than the Miller Test FIGHTING WORDS [Content Based Regulation] I. Indecent or Profane Speech a. Indecent speech is usually protected by the 1st A unless fighting words: b. Chaplinsky Test i. They are indecent, profane, or fighting words directed at another; AND 1. By their very utterance would inflict injury or would cause a physical reaction that would lead to breach of peace if the other person is able to respond. ii. They are used in a face to face confrontation; AND iii. The law is limited to fighting words in a face to face confrontation. c. True Threats NOT protected by 1st A. d. Intimidation requires specific intent intimidate. i. Cross burning + Intent to intimidate is NOT protected by 1st A. CONTENT BASED FALLBACK/CATCHALL = CSI I. CSI = The restriction of speech must be narrowly tailored to accomplish a CSI. a. The law must be necessary to advance the compelling state interest b. Laws that limit individual rights must be narrowly tailored to advance compelling interest i. RAD Sinner Page 12 8/12/2008 TIME PLACE & MANNER I. Content Based Restrictions = CSI a. Split Rule Maneuver: i. SC split a single law into two parts and upheld one part and overruled the other. II. Content Neutral a. Intermediate Test – Ward v. Rock i. Content neutral regulations must be narrowly tailored to advance significant nonspeech gov interest. 1. Use facts to balance competing interests in a practical kind of was a. Non-speech gov interest v. harm to free speech. 2. Consider RAD to advance gov interest w/o hurting speech 3. Consider nature of the forum a. Speech must be consistent w/ the forum b. Traditional/Designated Public Forums = Intermediate Test c. Limited Public Forums = Rx Basis Test i. Regular level of speech is always going to be inconsistent or incompatible w/ the principal function of these places b. Regulation of Protest at Abortion Clinics & Importance of Distance [Facts for balancing] i. Access Regulations = Content Neutral so gets balancing test. ii. Noise Regulations = Content Neutral so gets balancing test. iii. Banned Observable Images = Banned ―Offensive‖ material, so Content Based – CSI. iv. Banning of Approaching Patrons = Content Neutral 1. Distance from Clinic a. 300ft was too much, but 100ft was okay 2. Distance from Patron a. 15ft moving bubble too much, but 8ft stationery bubble okay c. Can be Content Neutral even if Consideration of Content = Intermediate Test (same as Broadcast TV and Radio) i. If regulation is CB (or some degree of content), but message or viewpoint is neutral, then some consideration of content is allowed if content directly relates to non-speech gov interest. III. Government Speech a. As A Speaker = Does Not Have to be Neutral b. As A Regulator = Must be Neutral c. Funding i. The government can fund any point of view they want ii. If you accept government funds then you have to accept the conditions they set about speech, and they can regulate anyway they want. IV. Permit Schemes/Licenses for use of Public Forum –how differ from prior restraint doctrine?? a. Content Based = Presumptively Invalid b. Content Neutral = Intermediate Balancing Test i. The importance of the non-governmental speech interests must be balanced against the impact on free speech, taking into account whether there are rx adequate alterative avenues for the communication ii. Usually results in the ct upholding the licensing/permit scheme. c. Limited to Non-Speech Concerns = NOT Presumptively Invalid i. Valid (non-speech concern) licensing/permit applied invalidly = you must obey and try to appeal ii. Invalid (allows for consideration of content) licensing/permit but applied validly = you can ignore the permit scheme and move on unless the admin gets an injunction. Sinner Page 13 8/12/2008 COMMERCIAL SPEECH II. Generally a. Regulations on Commercial Speech (e.g. Commercials) = Intermediate Test – Central Hudson b. Intermediate Test – Central Hudson (5 Parts) i. Ad must involve lawful activity; ii. Ad cannot be misleading; iii. Law must involve substantial government interest (as opposed to CSI); iv. Law must directly advance that gov interest; v. Law hurts no more speech than is essential to advance that gov purpose (most important)—no RADs VOID FOR VAGUENESS & OVERBREADTH I. Vagueness a. There has to be rx ascertainable standards as to what is made a crime. Otherwise law is void for vagueness. II. Overbreadth (KEY) a. How to Invoke – 2 Requirements i. Identify why activity is not or may not be protected by the 1st A; AND ii. Show that there is a substantial possibility that the law reaches protected speech, and is thus overlybroad. DOCTRINE OF PRIOR RESTRAINT I. Rule a. Prior restraints are presumptively invalid absent some imminent harm or CSI i. Absent CPD + No other way to prevent the danger II. Licensing/Permit Schemes a. See Below: Permit Schemes/Licenses for use of Public Forum III. Gag Orders a. If it involved the tainting of the jury you would have to use all other means before you can use the gag order i. More Preemptive Challenges ii. Change of Venue b. AND you have to show that the gag order would be successful. Sinner Page 14 8/12/2008 SYMBOLIC SPEECH I. 5 Step Test/Approach a. Is there speech at all? i. Is the conduct sufficiently expressive to be protected speech at all? 1. 3 Part Test – Spence [Look at overall context and scenario] a. Expressive acts that convey a particularized message that… b. Are capable of being understood by its listeners and… c. Are closely akin/related to speech ii. If not then RBT If yes, then apply the O’Brian Test (Essentially same as T/P/M intermediate approach) b. Is there the regulation of the expressive conduct related to the suppression of free speech? i. Content Based or Neutral? 1. If content based, i.e. related to regulation of content speech, then… a. Radical Speech = CPD b. Defamation = NY Times, Brandenburg v. Ohio c. Obscenity = Miller d. Fighting Words = Chaplinsky e. Commercial Speech = Central Hudson f. Note: Any law regulating desecration of flag is inherently content based. 2. If content Neutral, i.e. unrelated, go to step 3. c. Within governmental power? [Easily satisfied] d. Regulation must be in the advancement of an important or substantial governmental interest [Use Facts - balance test] Intermediate Test e. Regulation hurts no more speech than is necessary in the advancement of those interests [Use Facts - balance test] RAD Test f. Nature of Symbolic Speech can affect balance either positively or negatively. FREEDOM TO BELIEVE I. You are free to believe and cannot be forced to speak as to what you believe. You can keep it confidential. FREEDOM OF ASSOCIATION I. Rule: Free speech includes the right to associate with others of the like mind and laws. a. Laws prohibiting this must pass CSI i. Can’t be related to suppression of ideas, and can’t have RADs b. Violent Person Protest—see Ramifications under Radical Speech II. Limits on Association Membership Policies a. State laws ban association of private organizations if they practice racial/gender discrimination. b. Expressive Associations = CSI i. Come together b/c have one particular point of view. c. Societal Associations = RBT i. Come together b/c some common affinity, but nothing particularly expressive. III. Compulsory Associations (AKA Compelled Membership) a. In some instances, gov can compel you to be member of association, to pay dues. b. Funding i. Must be refunded portion which funds activities unrelated to purpose of organization. c. Education i. Nothing is outside the scope of activities related to education, so refunds for tuition paid. IV. Compelled Speech a. You cannot be compelled to express a third party’s point of view V. Speech & Association Rights of Government Employees Sinner Page 15 8/12/2008 VI. a. As a government employee you cannot i. Be compelled to join a certain political party 1. UNLESS you hold a position related to policy making and is politically oriented ii. Be promoted or demoted on political affiliation b. Critical of Your Employer (Boss or Office) AND; i. Speech Relates to Gov Activity of the Office = NOT Protected (You can be fired) ii. Speech is a Matter of Public Concern = Protected Public Schools [Required education – elementary/high schools] a. Government can regulate student speech on schoolhouse property as is reasonably related to legitimate educational concerns. Broadcast Television & Radio a. Indecent speech is protected everywhere except on Broadcast Radio and TV b. Intermediate Test i. Content based regulation of radio and television must be narrowly tailored (i.e. substantially relate) to advance substantial govt. interests. c. Right to Reply—is this still a requirement b/c violates compelled speech? d. Safe Harbor – Late night hours VII. VIII. Religious Speech a. Widmar v. Vincent: Held that a public university could not exclude student religious groups from facilities open to other student groups. i. The Establishment Clause applies only to the words and acts of government. It does not bar purely private speech connected to the state only through its occurrence in a public forum. As long as religious expression is purely private and occurs in a traditional or designated public forum, is publicly announced, and is open to all on equal terms, the government may not prohibit the expression. ii. So would this case get CSI test? Sinner Page 16 8/12/2008 FREEDOM OF RELIGION 1st A I. II. The Establishment Clause: Congress can make no law establishing a religion The Free Exercise Clause: Guarantees the right of all citizens to the free exercise of religion THE ESTABLISHMENT CLAUSE I. The Lemon Test – 3 Parts a. Principal purpose of any law that advances religion must be secular (worldly), not religious. i. Religious Displays on Public Grounds 1. There must be a balance of religious, historical, and traditional beliefs at each site that has religious shit. b. Principal or primary effect must be to advance secular (worldly) purpose, not advance or inhibit religion. i. Aid to Private Religious Groups 1. If it addresses a secular problem, the fact that it mimics religion is okay ii. Aid to Religious Schools 1. Does aid advance religion much more than the educational purposes? 2. Factors a. Lower Education (Elementary/HS) i. Nature of the Aid ii. What Schools Get the Aid iii. Form of the Aid iv. Amount of the Aid b. Colleges i. More tolerant than lower, however the aid has to be toward secular parts of the school. iii. Aid on Campus v. Off Campus 1. As long as the aid … a. Principally advances education or personal health of kid; AND b. Not in a form that could promote religion … 2. Then on school/off school makes no difference iv. Vouchers = No Violation v. Designated Public Forum 1. If it is opened up to the public, then no EC problem, but Free Speech problem. a. If content based = CSI; If content neutral = Intermediate Test i. Refer to Widmar. c. No excessive government entanglement with religion (least significant factor) i. Excessive Entanglement = Any aid that requires constant gov oversight to prevent misuse ii. Religious v. Charitable Deductions = Sweeping Deductions Allowed II. Watch Out a. Free Speech will trump Establishment Clause (really Public Forum Cases) FREE EXERCISE I. Modern Test a. Laws passed for the purpose of restricting religious beliefs have to pass the CSI Test (and v. likely that they can pass) b. Laws of general applicability that incidentally impact religious beliefs do not have to pass CSI i. Not sure on actual test, but probably Intermediate. Sinner Page 17 8/12/2008