Con Law II CD
1) Privacy is a Fundamental Right Protected Under Due Process A) SC has said that privacy is safeguarded as a fundamental right under the word “liberty” of the due process clause. i) Therefore generally the government must meet strict scrutiny if it interferes with privacy rights. ii) Privacy is really an umbrella that is used to describe a number of specific rights B) The Right to Marry is a Fundamental Right i) The government can interfere only if it meets strict scrutiny. C) The Right to Procreate is a FR i) The government can interfere only if it meets strict scrutiny. D) The right to custody of one children i) The government can interfere only if it meets strict scrutiny. ii) A state may create an irrebutable presumption that a married woman’s husband is the father of her child. (Michael H. v. Gerald D.) E) The right to keep the family together i) The government can interfere only if it meets strict scrutiny. ii) Family is broader than parents and children. Includes extended family. (1) Must be related F) The right of parents to control the upbringing of their children i) The government can interfere only if it meets strict scrutiny. (1) Parents have a fundamental right to send their children to parochial schools. (a) Ex. It violates due process for a court to order grandparent visitation over the parents objection. G) The Right to Purchase and Use Contraceptives H) The Right to Abortion i) Roe v. Wade, women have a fundamental right to terminate or continue pregnancies. ii) PP v. Casey, Reaffirmed Roe v. Wade. Changed law. No longer is Strict Scrutiny used. iii) Current Law (1) Prior to viability the government cannot prohibit abortion. Can regulate so long as it does not place an undue burden on the right. Undue Burden test has replaced SS. (a) A 24 hour waiting period is not an undue burden. (b) Be performed by licensed physicians is not an undue burden. (c) A prohibition of partial birth abortions IS an undue burden and unconstitutional. (2) After Viability a state can prohibit abortions except where necessary to safeguard the woman’s health or life. (a) The government is never required to pay for or use it facilities for abortions (b) Spousal consent and notification laws are unconstitutional. (c) Parental Notice and/or consent for unmarried minor’s abortion. (i) Government may require, but only if it creates an alternative procedure where the minor can obtain an abortion by going in front of a judge. Judge can approve by either in minors best interest or is mature enough to decide for herself. I) The Right to Refuse Medical Treatment i) Cruzan (1) Competent adults have the right to refuse medical treatment. (2) States may require clear and convincing evidence that a person wanted treatment terminated before it is ended. Government has an important interest in safeguarding life. (3) State may prevent family members from terminating treatment for another. The right to refuse treatment belongs to each person. J) Right to Engage in Private Consensual Homo Activity K) Right to Privacy does not protect the right to physician assisted suicide. 2) Equal Protection A) Approach to Equal Protection i) What is the classification? (1) How is the government drawing the distinction among people? ii) What is the level of scrutiny? (1) Levels of Scrutiny (Individual liberties cases / civil) (a) Rational Basis Test → a law is upheld if it is RATIONALLY related to a LEGITIMATE government purpose. (Differential to the government → the challenger has the burden of proof. They must show no legitimate purpose OR not rationally related to it. (b) Intermediate Scrutiny → A law is upheld if it is SUBSTANTIALLY related to an IMPORTANT government purpose. Government has the burden of proof. (c) Strict Scrutiny → a law will be upheld is it is NECESSARY to achieve a COMPELLING government purpose. Government’s objective must be vital → ct. must be persuaded that the actual purpose is
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Con Law II CD
compelling. Government has the burden of proof. Must show no less restrictive alternative can achieve the solution. iii) Does the government’s action meet the level of scrutiny? B) Constitutional Provisions concerning Equal Protections i) Equal protection clause of the 14th amendment applies only to state and local governments, 14th amendment never applies to the federal government ii) Equal Protection applies to the federal government through the due process clause of the 5th amendment, C) Race and National Origin Discrimination i) STRICT SCRUTINY is used ii) How is the existence of a race or national origin classification proven (1) Exists on the FACE OF THE LAW, draws a distinction among people, ex- “blacks cannot serve on juries” (2) If a law is FACIALLY NEUTRAL, proving racial classification requires showing discriminatory impact and motivated by a discriminatory purpose, Washington v Davis (a) If only impact, then rational basis. Must have impact and purpose to trigger strict scrutiny. iii) How should racial classifications benefiting minorities be treated? Affirmative Action (1) STRICT SCRUTINY is used (2) Numerical set asides (quotas) require clear proof of past discrimination, SC is hostile to anything resembling a quota, only allowed to remedy a prior discrimination, Crosen v Richmond- not set asides for labor, Paradise v. US - upheld hiring practices as a remedy for clearly proven past discrimination. (3) Educational Institutions may use race as one factor as a means to benefit minorities, because they have a compelling interest in pursuing diversity, but cannot quantify it. No numerical set asides or points added solely because of race. D) Gender Classifications i) INTERMEDIATE SCRUTINY is used, US v Virginia- reaffirmed intermediate scrutiny and added that gender classifications would be allowed only if there was an exceedingly persuasive justification. ii) How is the existence of a gender classification determined? (1) Exists on the FACE OF THE LAW, the law on its very terms is drawing a distinction, (a) US v Virginia- no persuasive justification for men only at School, Craig v Boren- 18 age for women, 21 for men to buy beer was unconstitutional. (2) If the law is FACIALLY NEUTRAL, requires proving both discriminatory impact and discriminatory purpose (a) Personnel Administrator v Feeney- preference for jobs to veterans is ok because both weren’t shown (3) How should gender classifications benefiting women be treated? (a) Test is intermediate scrutiny, whether the classification benefits or deters women (b) Gender classifications of women based on role stereotypes are NOT allowed, many gender benefits that are based on stereotypes actually perpetuate the situation (c) Gender classifications benefiting women designed to remedy past discrimination or differences in opportunity ARE allowed E) Alienage Classifications i) Generally, STRICT SCRUTINY is used ii) Alienage related to self-government and the democratic process- only a RATIONAL BASIS TEST used, (1) can discriminate in regard to voting, jury participation, police officer, teacher, or probation officer iii) Congressionally Approved Discrimination- only a RATIONAL BASIS TEST is used (1) congress have plenary power to regulate immigration and can regulate aliens in relation to that. iv) INTERMEDIATE SCRUTINY is used for undocumented alien children (1) Pyler v Doe- unconstitutional to deny children education 3) Discrimination Against non-marital children A) INTERMEDIATE SCRUTINY is used if the government discriminates against children because their parents were not married B) Laws that provide a benefit to all marital children but not non-marital children are always unconstitutional 4) All other discrimination only need meet a RATIONAL BASIS TEST A) Age discrimination B) Discrimination based on disability i) City of Cleburn v Cleburn Living Center- prevention for a home for the mentally disabled was unconstitutional under rational basis review C) Wealth Discrimination D) Economic Regulations receive a rational basis review, i) NO v Dukes- had to work for 8 years as a cart vendor E) Discrimination based on sexual orientation Romer v Evans 5) Fundamental Rights Protected under Equal Protection A) Right to Travel
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Con Law II CD
i) Laws that prevent people from entering or leaving a state must meet strict scrutiny ii) Durational residency requirements must meet strict scrutiny, Shapiro v Thompson iii) Only a rational basis test is used for restrictions on foreign travel, not a fundamental right to international travel B) Right to Vote i) 15th amendment says that the right to vote shall not be denied on account of race and fundamental under equal protection (1) laws that keep some citizens from voting must meet strict scrutiny (2) one person one vote must always be maintained (3) the use of race in drawing election district to benefit minorities must be reviewed with strict scrutiny (4) Counting uncounted votes in a presidential election without preexisting standards violates equal protection (a) (Bush v. Gore) holding. C) Education is not a fundamental right under equal protection or the constitution. FIRST AMENDMENT I) Free Speech Methodology A) General Rules 1) Distinction between content based and content neutral laws [if can’t remember anything to apply on exam, apply this!] (a) CONTENT BASED restrictions must meet STRICT SCRUTINY i 2 alternative ways to find if a law is content based Subject Matter Restriction- where the application of the law depends on the topic of the speech 1. eg- picketing in residential neighborhoods not allowed unless the topic was about labor issues; court used strict scrutiny and said it was unconstitutional; 2)Minnesota law that prevented judicial candidates from making statements about topics of legal or disputed issues- ct said used strict scrutiny and said the law was unconstitutional Viewpoint Restriction- where the application of the law depends on the ideology of the message [eg if a city allowed pro-war demonstrations in city parks, but anti-war demonstrations not allowed- would fail strict scrutiny] 1. eg- demonstrations allowed if supportive of govt, but not if critical (b) CONTENT NEUTRAL laws only have to meet INTERMEDIATE SCRUTINY i If laws apply to all speech, the law only has to meet intermediate scrutiny Eg law that said no parades or demonstrations in city park- neutral 2) PRIOR RESTRAINTS (a) Judicial orders or administrative systems that stop speech before they occur i Classic form- Ct orders preventing speech must meet STRICT SCRUTINY Eg- fed govt sought an injunction to stop newspaper from publishing report on US involvement in Vietnam; Ct said that it failed strict scrutiny Ct orders putting prior restraints on the press to prevent prejudicial pretrial publicity are NEVER allowed 1. Ct can’t put a gag order on the press (unconstitutional) ii Licensing and Permit systems are allowed ONLY if the govt shows an important reason for licensing, and there’s almost no discretion left to the licensing authority Must also be procedural safeguards and requirements for prompt determinations for license requests and judicial review for denials 3) VAGUENESS and OVERBREADTH (a) Vagueness i A law is unconstitutionally vague if a reasonable person can’t tell what speech is permitted and what speech is prohibited ii Sup Ct has ruled that vague laws violate the due process clause Also will chill const expression iii Example City prohibit sales of books that would corrupt the morals of youth; ct said no reasonable person could tell what books were prohibited (b) Overbreadth i A law is unconstitutionally overbroad if it regulates substantially more speech than the const allows to be regulated; law goes much beyond and is invalidated on overbreadth grounds ii Example City bans all live entertainment to close down a strip club; Ct said that it outlaws a lot more than strip clubs, so struck down on overbreadth grounds 4) Symbolic Speech
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Con Law II CD
(a) Govt can regulate conduct that communicates if it meets Intermediate Scrutiny (b) TEST (very similar to intermediate scrutiny) (c) Examples: i Flag burning- constitutionally protected speech ii Draft card burning- NOT constitutionally protected speech Ct held that govt can punish, govt has an important interest to have men with draft cards iii Nude dancing- NOT protected speech iv Burning a cross- protected speech, unless there is proof of intent to threaten Virginia v. Black- ct said that it is protected, but govt can punish if they can prove that it was done with an intent to threaten v Contribution limits in election campaigns are constitutional Govt can limit the amount contributed directly to a specific campaign or person vi Expenditure limits are unconstitutional But govt can’t limit the amount that a person spends overall (ads, mini committees) 5) Anonymous Speech (a) Protected; right to speak without disclosing your identity i Ohio law that prohibited anonymous distribution of literature regarding campaigns ii Ct said that it was unconstitutional; people have a right to speak anonymously II) What types of speech are unprotected or less protected by the 1st Amend? -Ct has said that there are categories of speech that are unprotected and can be prohibited and punished by govt; and some that are less protected, and the govt has more latitude to regulate A) Incitement of illegal activity- Unprotected by the 1st Amend 1) TEST- govt may punish speech if there’s a substantial likelihood of imminent illegality, and if the speech is directed at causing imminent illegality (a) Example- if a person stood up in a room with a baseball bat and said “lets all kill the professor” i Ct would ask: 1) Was there a substantial likelihood for imminent illegality?; 2)was the speech directed as causing imminent illegality? B) Obscenity and Sexually Oriented Speech 1) 3 part test [all 3 must be met] (Miller v. CA) (a) material must appeal to the prurient interest (shameful or morbid interest in sex; incites lustful thoughts) (b) material must be patently offensive under the law prohibiting obscenity (any law that prohibits obscene material must specify in the statute what is and isn’t offensive) (c) taken as a whole, material must lack serious redeeming artistic, literary, political, or scientific value i if any value, not obscene 2) Govt may use zoning ordinances to regulate the location of adult entertainment establishments (a) Young v. Theaters- city regulated the number of adult theaters per city block; upheld (b) Playtime Theaters- all theaters had to be put in one section of the city; upheld for the city’s important interest to maintain character of its neighborhoods (c) Exam Tip- keep in mind the rule that erogenous zoning is permissible 3) Child pornography is unprotected by the 1st Amend (a) Ct said that child pornography can be prohibited, even if it doesn’t meet the test for obscenity (b) But to be considered child pornography, it must use children in its production (c) Ashcroft case- computer generated pornography was prohibited; Ct said that its unconstitutional because no children were being used in the production; govt interest is to protect children from being used in the porn 4) Govt cannot punish private possession of obscene material, but it can punish private possession of child pornography (a) Govt has a sufficient interest to shut down the market for child porn 5) Govt can seize the assets of businesses convicted of obscenity law violations 6) Profane and Indecent language is generally protected by the 1st Amend (a) Cohen v. California- boy wore a jacket in courtroom that said “fuck the draft”; convicted i Court overruled the conviction (b) Exceptions: i Broadcast Media- (tv and radio) FCC v. Pacifica- radio station broadcasted a program with dirty words; FCC punished the radio station; FCC won the case- Sup Ct said that the broadcast media is uniquely intrusive to the home and accessible to children(kids and family) Notice that it was free tv and radio; not same rule for cable television because people choose to subscribe to cable ii Schools
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Bethel case- student gave a speech to the school assembly, didn’t have profanities, but did have some sexual innuendos; was suspended 1. Ct said schools responsible for teaching morals, so can punish Commercial Speech 1) False and Deceptive Advertising is not protected by the 1st Amend 2) Other govt regulation of Commercial speech must meet Intermediate Scrutiny (a) Example- florida law preventing attny from soliciting accident victims within 30 days of accident; ct upheld the law, stating: i Govt has an important interest in protecting the privacy and sensibility of the accident victims; and the means- 30 day waiting period- was substantially related to that goal 3) Govt regulation of commercial speech doesn’t have to use the least restrictive alternative (a) Means have to be narrowly tailored, a good way to achieve the result, but they don’t have to be the best way, the least restrictive alternative i New York case- state adopted a rule that prohibited commercial solicitation in dorms; solicitors brought a challenge: Arg that govt can use other means (registration, identification, etc) Ct- govt doesn’t have to use the least restrictive alternative Defamation- defamatory speech are unprotected by the 1st Amend, but 1st Amend limits the ability to recover 1) If plaintiff is a public official, recovery for defamation requires (a) Proof by clear and convincing evidence of: i Falsity of statement ii Actual malice- person knew statement was false, or acted with reckless disregard for the truth 2) If plaintiff is a public figure, same rule applies as for public officials (a) Ct never defined who is really a public figure, but they are people who thrust themselves in the spotlight; have the ability to response publicly to criticism 3) If plaintiff is a private figure, and the matter is of public concern, plaintiff can recover compensatory damages by proving: i Falsity of statement ii Negligence of the statement (b) Presumed or punitive damages require proof of: actual malice 4) If plaintiff is a private figure, and the matter is not of public concern, plaintiff can recover presumed or punitive damages without proof of actual malice (a) Unanswered questions: who has the burden of proof? What’s the standard of proof? Privacy 1) A state may not allow liability for the truthful reporting of information lawfully obtained from govt records (a) Example: case where reporters sued for invasion of privacy for reporting the names of rape victims, but the names were obtained lawfully by the reporters i Press won the case- records were valid and available to the press, and were truthfully reported; no basis for liability 2) Media cannot be held liable for broadcasting a tape of an illegally intercepted communication, as long as the media: (a) did not participate in the unlawful interception, and (b) the communication is a matter of public concern 3) govt can restrict its own dissemination of information in order to protect privacy (a) nothing in the 1st Amend that requires the govt to open its papers or meetings to the press (b) govt can decide how much access to give the press (c) only area that Ct has given the press access is: i criminal trials ii pretrial criminal proceedings Any other Govt Regulations of speech based on content must meet strict scrutiny
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