Con Law: Equal Protection/freedom Of Speech

Front 1

Approach to equal protection questions

Back 1

What is the classification? What level of scrutiny should be applied? Does this law meet the level of scrutiny?

Front 2

Constitutional provisions concerning equal protection

Back 2

The equal protection clause of the 14th Amendment applies only to state and local governments. Equal protection is applied to the federal government through the due process clause of the 5th amendment. (Substantly the same level applies to all governments).

Front 3

Classification based on race and national origin

Back 3

Strict Scrutiny (including classifications benefiting minorites)

Front 4

When a racial classification exists

Back 4

When it exists on the face of the law and if the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact AND discriminatory intent. Ex. Discriminatory use of peremptory challenges based on race.

Front 5

Numerical Set asides

Back 5

Strict Scrutiny applied. Numerical set-asides require clear proof of past discrimination (must show a remedy for clearly proven past discrimination).

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Educational institutions and race classifications

Back 6

May use race as one factor in admissions decisions to help minorities. However, educational institutions may not add points to applicants' admissions scores based on race. Colleges CANNOT set aside seats based on race. Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met.

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Gender Classifications

Back 7

Intermediate scrutiny

Front 8

When a geneder classification exists

Back 8

When it exists on the face of the law. If the leaw is facially neutral, proving a gender classification requires a demonstrating both discriminatory impact and intent (city ordinance 5 ft 10 and 140 lbs = rational basis).

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Gender Classification benefitting women

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Gender classifications benefiting women that are based on role stereotypes will not be allowed. Gender classification that are deisgned to remedy past discrimination and differences in opportunity will be allowed.

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Alienage classifications

Back 10

Generally, strict scrutiny is used (Only citizens receive welfare = unconstitutional) Only a rational basis test is used for alienage classifications that concern self-government and the democratic process. Only a rational basis test is used for congressional discrimination against aliens. It appears that intermediate scrutiny is used for discrimination against undocumented alien children (Plyler v. Doe)

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Discrimination against non-marital children

Back 11

Intermediate scrutiny used. Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional.

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Rational Basis review

Back 12

Used for all other types of discrimination including 1) Age 2) disability 3) wealth 4) Economic regulations 5) Sexual orientation discrimination.

Front 13

Content Based restrictions

Back 13

Generally must meet strict scrutiny. Tw otypes of content based laws: 1) Subject matter restrictions (application of law depends on the topic of the message (no picketing except labor protest) 2) Viewpoint restrictions (application of law depende on the ideology of the message). Ex. Pro war allowed, anti-war not allowed.

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Content Neutral laws

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content neutral laws burdening speech generally need only meet intermediate scrutiny.

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Prior Restraints

Back 15

a judicial order or an administrative system that prevents speech before it occurs.

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Court orders suppressin speech

Back 16

Must meet strict scrutiny. Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it.

Front 17

Licenses for speech

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The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review.

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Vagueness

Back 18

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

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Overbreadth

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A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated. Fighting words law are unconstitutionally vague and overbroad.

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Symbolic Speech

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The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose. (Flag Burning is protected speech, draft card burning not protected, nude dancing not protected but burning a cross is protected unless done with intent to threaten).

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Anonymous speech

Back 21

Is protected speech

Front 22

Speech by government cannot be challenged

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If government is speaker then can't say its violating the 1st amendment (ex. Museum display, monuments, if it is advancing religion then maybe establishment clause).

Front 23

Speech that is unprotected or less protected

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1) incitement of illegal activity 2) obscentiy and sexually-oriented speech 3) commercial speech 4) defamation

Front 24

Incitement of illegal activity

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The government may punish speech if 1) there is a substantial likelihood of imminent illegal activity and 2) if the speech is directed to causing imminent illegality.

Front 25

Obscentiy and sexually oriented speech

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The material 1) must appeal to the prurient interest (community standard) 2) the material must be patently offisenive under the law prohibiting obscenity 3) taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (national standard).

Front 26

Zoning ordinances and obscentiy

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The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters.

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Child pornography

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May be completely banned, even if not obscene (to be child porn, childre nmust be used in production of the material).

Front 28

Private possession of obscenity

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Government may not punish private possession of obscene materials, but the government may punish private possession of child pornography.

Front 29

Businesses and obscenity

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The govenrment may seize the assets of businesses convicted of violating obscentiy laws.

Front 30

Profane and indecent speech

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Generally protected by the first amendment. Exceptions: 1) over the broadcast media (more latitude over radio broadcast and tv, less latitude over internet or cable) 2) in schools

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Commercial speech

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Advertising for illegal activity, and false and deceptive ads are not protected by the 1st amendment

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Commercial speech that risks deception

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Commercial speech that inherently risks deception can be prohibited. The govt may prevent professionals from advertising or practicing under a trade name. The government may prohibit attorney, in person solicitation of clients for profit (free services are protected). The govt may not prohibit accountants from in-person solicitation of clients for profit.

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Other commercial speech

Back 33

Can be regulated if intermediate scrutiny is met. Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.

Front 34

Defamation

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Public official or public figure = must prove falsity of the statement and actual malice. Private figure + public concern = Falisty and negligence, but Plaintiff can only recover presumed or punitive damages only by showing actual malice. Private figure + Private concern = recover presumed or punitive damages without showing actual malice. Liability for IIED for defamation must meet defamation standards and cannot exist for speech otherwise protected by the 1st amendment.

Front 35

Privacy

Back 35

Government cannot create liability for the truthful reporting of information that lawfully obtained from the government. Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance. The govt may limit its dissemination of information to protect privacy.

Front 36

Speech by government employees

Back 36

Speech by goverment employees on the jon in the performance of their duties is not protected by the 1st amendment.

Front 37

Public forums

Back 37

Government properties that the government is constitutionally required to make available for speech (sidewalks and parks). Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met. Regulations must be a time, place or manner regulation that serves an important government purpose and leave open adequate alternative places for communication. Govt. regulation need not use the least restrictive alternative. City officials cannot have discretion to set permit fees for public demonstration.

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Designated public forums

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Government properties that the government could close to speech, but chooses to open to speech. The same rules apply as for public forums (ex. School facilities are non-public forums, but if it chooses then it is a designated public forum).

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Limited public forums

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Government properties that are limited to certain groups or dedicated to discussion of only some subjects. The government can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral.

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Non-public forums

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Government properties that the government constitutionally can and does close to speech. The government can regulate speech in non-public forums so long as the regulation is reaosnable and viewpoint neutral (SIDEWALKS ON POST OFFICE PROPERTY).

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Private property

Back 41

No 1st Amendment right of access to private propery for speech purposes

Front 42

Freedom of association

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Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person 1) actively affiliated with the ground and 2) knowing of it's legal activities; and 3) with the specific intent of furthering those illegal activities

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Disclosure requirements for group memberships

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Strict scrutiny applies to laws that require disclosure of group membership, where such disclosure would chill association.

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Laws prohibiting discrimination

Back 44

Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or express activity.

Front 45

Freedom of religion - Free exercise clause

Back 45

1) CANNOT BE USED to challenge a neutral law of general applicability. 2) The government may not deny benefits to individuals who quit their jobs for religious reasons.

Front 46

Establish Clause

Back 46

Apply the lemon test 1) There must be a secular purpose for the law 2) The effect must be neither to advance nor inhibit religion 3) there must not be excessive entanglement with religion. If the law violates ANY prong than it is unconstitutional.

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Religious speech

Back 47

The government cannot discriminate against religious speech or among relgions unless strict scrutiny is met.

Front 48

Religion in public schools

Back 48

Govt sponsored religious activity in public schools is unconstitutional. But religious student and community groups must have the same access to school facilities as non-religious groups. Voluntary school prayer time not allowed.

Front 49

Parochial schools

Back 49

The government may give assistance to parochial schools, so long as it is not used for religious instruction. The government may provide parents vouchers which they use in parochial schools.