Term
| Economic Substantive Due Process |
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Definition
| Protection of economic liberties: Refers to protection of constitutional rights concerning the ability to contract, to pursue trade or profession, and to acquire/possess/convey property |
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Term
| Economic Substantive Due Process case law |
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Definition
Current Law as to Economic Substantive Due Process
Lochner v. New York: The state law is not a reasonable exercise of NY’s police power. The general right to make a contract is an economic liberty interest protected by the 14th amendment.
United States v. Carolene Products: Congress passed the “Filled Milk Act” which prohibited the shipment in interstate commerce of skimmed milk compounded with any fat or oil other than milk. Carolene was indicted for violating the act, and challenged it as unconstitutional. Court radically departed from Lochner and established that with legislation affecting commercial or economic transactions only, there is a presumption that the law is constitutional. Court accorded wide deference to the legislature. HELD: Congress held hearings prior to passing the Act, and had a rational basis for believing that the act was necessary for the protection of the general public. |
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Term
| Current Law as to Economic Substantive Due Process |
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Definition
| Economic regulations will be upheld when challenged under the DP Clause so long as they are rationally related to a legitimate gov’t purpose. |
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Term
| Reproductive Autonomy: Protected rights |
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Definition
1. Right to procreate
2. Right to purchase/use contraceptives
3. Right to abortion |
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Term
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Definition
Buck v. Bell
Skinner v. Oklahoma |
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Term
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Definition
| Government mandated sterilization of ‘feeble-minded’ women. HELD: The right to procreate is not a constitutional right and therefore, restriction is okay. |
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Term
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Definition
| Skinner labeled a habitual criminal. OK had a statute that required sterilization for anyone convicted of two or more felonies involving moral turpitude. S objected, and the Court agreed that interest in preventing ‘passing of criminal gene’ did not outweigh constitutional right to procreate. HELD: The right to procreate is a fundamental right that deserves special protection (aka SS) under the Constitution. |
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Term
| The Right to Purchase and Use Contraceptives cases |
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Definition
Griswold v. Connecticut
Eisenstadt v. Baird |
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Term
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Definition
| 1965: CT statute made giving advice on contraception for purposes of preventing pregnancy a criminal offense. Planned Parenthood official and doctor charged under the statute, and challenged it as unconstitutional. HELD: There exists and constitutional right of privacy, implied from the penumbras of the BOR that cannot be invaded by government action absent a showing that strict scrutiny is met. |
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Term
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Definition
| 1972: Baird convicted of a state statute which provides that contraceptives can be distributed to single people for preventing disease, but not for the purpose of contraception. Brennan built upon Griswold, but characterized privacy more broadly this time (less about the marital bedroom, and more about privacy generally) and characterized the privacy right as one to reproductive autonomy. HELD: If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a personas the decision whether to bear or beget a child. |
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Term
| The Right to Abortion cases |
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Definition
Roe v. Wade
Planned Parenthood v. Casey
Stenberg v. Carhart
Gonzales v. Carhart |
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Term
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Definition
| The state’s interest in potential life (the fetus) only becomes compelling at viability, when the baby is able to survive outside the womb (24-28 weeks). In the first two trimesters, however, the state has NO overriding interest that displaces a woman’s right to choose. |
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Term
| Planned Parenthood v. Casey |
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Definition
| In essence: A state can regulate and place restrictions on abortion so long as those regulations do not impose an undue burden on the woman’s ability to make the abortion decision; when an undue burden results, the regulations are unconstitutional. |
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Term
| Undue burden (right to abortion) |
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Definition
| State regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. |
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Term
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Definition
| The government can regulate abortions performed prior to viability so long as there is not an undue burden on access to abortions. |
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Term
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Definition
| Partial-birth abortion statutes that have the effect of placing a substantial obstacle in the path of the woman seeking an abortion are unconstitutional. |
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Term
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Definition
| Bush passes the Partial-Birth Abortion Act of 2003, a federal statute regulating partial birth abortion procedures. Several doctors challenged the statute as unconstitutional, in many of the same ways as Stenberg. HELD: The act should be sustained. The act is not void for vagueness, does not impose an undue burden, and it not invalid on its face. |
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Term
| Medical Care Decisions topics |
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Definition
Termination of Treatment (Cruzan)
Assisted Suicide (Glucksberg)
Medicating to deal with the pain, knowing the side effect is death |
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Term
| The Right to Refuse Treatment |
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Definition
| Competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment (including life saving hydration and nutrition). |
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Term
| Cruzan v. Director, Missouri Dept. of Health |
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Definition
| A person has the right to refuse medical treatment; BUT a state may imply a clear and convincing standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person in a persistent vegetative state. |
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Term
| The Right to Physician-Assisted Suicide |
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Definition
| No fundamental right to suicide but states can pass laws that allow it. |
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Term
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Definition
| The right to assisted suicide is not a fundamental right protected under the Due Process Clause; nor does it prohibit states from making it a crime to assist another person in committing suicide. |
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Term
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Definition
| No fundamental right to education. |
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Term
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Definition
| The state has an interest in creating local control over schools, and their scheme of achieving that interest, even if not the best possible way, is at least rational. Total lack of education may be a fundamental right. |
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Term
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Definition
Loving v. Virginia
United States. v. Windsor |
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Term
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Definition
Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges.
State laws defining and regulating marriage must respect the constitutional rights of persons, but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.
The Constitution's guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group. |
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Term
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Definition
| (1) Laws prohibiting private consensual homosexual sex are unconstitutional; (2) reaffirmed a constitutional right to privacy; (3) recognized sexual activity as a fundamental aspect of personhood and that it is entitled to constitutional protection; and most importantly (4) recognized the rights of gays and lesbians to equal dignity and equal treatment under the constitution. [Opinion begins with liberty, and ends with freedom]. |
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Term
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Definition
| The right to vote is a fundamental right protected by equal protection. |
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Term
| Fundamental Issues with the Right to Vote |
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Definition
1. Laws that deny some citizens the right to vote
2. Laws that dilute the voting power of some citizens. |
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Term
| Harper v. Virginia State Board of Elections |
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Definition
| Change to VA law requiring $1.50 poll tax for voting. Court reasoned that the state has an interest in setting qualifications for voters, but that wealth (like race) has no bearing on fitness to vote. HELD: Poll taxes are unconstitutional in any election. Under EP, poor people cannot afford tax, and could not vote, so poll taxes are discriminatory. Also voting = a fundamental right, so strict scrutiny is applied. |
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Term
| Kramer v. Union Free School District |
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Definition
| Court broadly invalidated property ownership requirements for voting but later cases have approved them in very narrow circumstances. |
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Term
| Crawford v. Marion County Election Board |
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Definition
Indiana statute required photo identification issued by the government to vote. There is a big disagreement about how to look at this; the court splits 3 ways:
Stevens: The stricter Harper standard applies: a state violates EP Clause whenever it makes affluence of the voter or payment of a fee an electoral standard. But the valid gov. interest in protecting the integrity and reliability of the electoral process amply justifies the application of the statute to a vast majority of Indians.
Scalia: The burden at issue is minimal and justified. Rejects a voter-by-voter approach.
Souter: Balancing standard should be applied; state must show that threats to its interest outweigh the particular impediments imposed. The state has made no justification here and the statute is unconstitutional under the balancing test. |
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Term
| Dilution of the Right to Vote |
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Definition
| Giving one person’s vote in a certain voting district less weight than another person’s vote in another district. |
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Term
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Definition
| The EP Clause requires that all voters be awarded the opportunity for equal participation in the election of state legislatures; this requires a state’s good faith effort to construct districts in both houses of its legislature, resulting in as nearly a representation of equal population practicable. This is a higher standard for the states than the federal gov’t. |
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Term
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Definition
Restrictions on right to vote:
Harper v. Virginia State Board
Property ownership requirements:
Kramer v. Union Free School District
Requirement for photo identification for voting: Crawford v. Marion County
Dilution: Reynolds v. Sims
Counting uncounted votes: Bush v. Gore |
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Term
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Definition
| A well regulated militia, being necessary to the security of the free state, the right of the people to keep a bear arms, shall not be infringed. |
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Term
| District of Columbia v. Heller |
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Definition
Gun ban in inner city DC gets overruled; note how important the scope of this right is (that is everything about this case). Scalia said balancing test stops once a fundamental right is declared, but this is bs because he was balancing the right to self defense and arm yourself v. societal interests.
Says there is a fundamental right to protect yourself (personal security); does not necessary say that there is a fundamental right to arms |
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Term
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Definition
Due Process Clause imposes procedures on gov’t when it takes away a person’s life, liberty, or property.
Procedural Due Process: Classic procedural Due Processes issues concern what kind of notice and what form of hearing the gov’t must provide. |
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Term
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Definition
| Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the gov’t for redress of grievances.” |
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Term
| Justifications for Protecting Speech |
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Definition
| Self-Governance, Discovering Truth, Promotion of Tolerance, Advances Autonomy |
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Term
| Content Neutral restrictions |
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Definition
| Subject to intermediate scrutiny. Regulation merely limits time, place, and manner of the speech. Does not single out any subject matter or viewpoint. |
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Term
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Definition
| These regulations are presumptively invalid and require strict scrutiny |
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Term
| Requirements for Content Neutral Restrictions |
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Definition
1. Must be justified without regard to the content of the regulated speech.
2. Must serve a significant gov't interest.
3. Must leave open ample alternative channels for communication of information. |
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Term
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Definition
| A restriction on an individuals First Amendment constitutional rights will be upheld if it furthers a legitimate state interest, places no restrictions on a particular viewpoint or subject matter and is reasonably and narrowly tailored to limit no more speech than is necessary to achieve the State’s legitimate goal. |
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Term
| Ward v. Rock Against Racism |
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Definition
| : TPM restrictions are deemed sufficiently ‘narrowly tailored’ as long as they are more effective than no regulation at all, even if they are not the least restrictive/intrusive method. BUT, must not burden substantially more speech than necessary to achieve interests. |
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Term
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Definition
| - Whenever you see a total bad, you need to ask if it prohibits substantially more speech than it needs to. Is there a way to accomplish these goals and interfere less with speech? |
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Term
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Definition
| A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted. |
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Term
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Definition
| A law is unconstitutionally overbroad if: 1. it regulates substantially more speech than the constitution allows to be regulated or 2. a person to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied to others. |
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Term
| Prior Restraints (licensing and permits) |
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Definition
| An administrative system or judicial order that prevents speech from occurring. |
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Term
| Prior restraints are permissible if... |
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Definition
1. the government has an important reason for licensing.
2. There are clear criteria leaving almost no discretion to the licensing authority. |
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Term
| Regulation of Conduct that Communicates |
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Definition
| Gets intermediate scrutiny. Communication can be through non-word symbols. |
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Term
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Definition
| Guy sewed a peace sign onto a flag to protest the Kent State Massacre and was arrested. |
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Term
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Definition
| When conduct might operate as a surrogate for speech, the test is: 1. intent to convey a particularized message 2. substantial likelihood that the message would be understood by those receiving it. If no, then rational basis. |
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Term
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Definition
| O’Brien burned his draft card on the courthouse steps. Violated an ordinance that made knowingly defacing or altering the draft card illegal. HELD: The statute is okay. When speech & non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limits on the First Amendment freedoms. |
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Term
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Definition
When an act combines both “speech” and “non-speech” elements, the gov't may impose regulations if the regulations:
(1) Are within the constitutional power of the gov't.
(2) Further a substantial/important state interest.
(3) Gov't interest must be unrelated to the suppression of free speech (i.e. content-neutral)
(4) Incidental restrictions on the First Amendment must be NO greater than necessary to further the gov't interest. |
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Term
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Definition
| The government may not ban flag-burning as a means of expression. If the law is trying to prevent anti-american message, it is content-based and viewpoint based. So the statute is subject to SS instead of IS under communicative conduct. |
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Term
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Definition
| Incitement to Illegal Activity, Fighting Words, Obscenity & pornography |
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Term
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Definition
| protected first amendment speech |
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Term
| Incitement to Illegal activity |
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Definition
| Speech that advocates criminal activity or overthrow of the government. |
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Term
| Clear and Present Danger Test |
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Definition
| The First Amendment does not protect speech that it creates a “clear and present danger” of inciting illegal activity. |
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Term
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Definition
| The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent; here, without much discussion, the test is met. |
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Term
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Definition
| KKK member convicted under Ohio syndicalism statute after calling for vengeance against the gov’t for abandoning white supremacy. Court reasoned that the abstract teaching for the need of violence is not the same as preparing a group for violent action. Instead, constitutional statutes must draw a distinction between punishable incitement to lawless action and protected abstract advocacy. The OH statute punishes mere advocacy and assembly for purpose of advocacy. HELD: Unconstitutional. |
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Term
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Definition
Government cannot criminalize advocacy of a crime, except where such advocacy is:
1. Intended to incite
2. Immediate lawless action and
3. is likely to produce such action |
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Term
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Definition
| Speech that is directed at another and likely to provoke a violent response is unprotected because there is no value to this speech. |
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Term
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Definition
| A teen charged with burning a cross in a black neighbor’s yard challenged the constitutionality of the statute banning the cross/symbol burning which arouses anger in others based on race/color/religion/gender, etc. Court reasoned that while fighting words may be proscribed on the basis of their violent effects, they cannot be proscribed based on the gov’ts hostility or favoritism towards their message. HELD: This statute is unconstitutionally content based because it punishes fighting words that insult or provoke violence on the bases of race, color, creed, etc., but allows fighting words based on other reasons. |
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Term
| Exceptions to the content based rule |
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Definition
1. ban based on effect
2. content is associated with secondary effects
3. basis for content-discrimination consists entirely of hte very reason the entire class of speech is proscribable.
4. punishing conduct |
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Term
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Definition
| - Post-1960s shift: Police should make every possible effort to protect the speaker a (and protect the speech). |
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Term
| Obscenity and Pornography |
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Definition
1. obscenity is unprotected
2. child porn is unprotected
3. gov't has latitude to regulate sexually-oriented speech
4. profane and indecent speech are protected with exceptions. |
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Term
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Definition
| Obscenity is not a constitutionally protected expression, and if the material, taken as a whole, has a dominant theme which appeals to prurient interest as judged by contemporary stands, then it maybe be proscribed. |
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Term
| Paris Adult Theatre v. Slaton |
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Definition
| A state can forbid the dissemination of obscene material to consenting adults in order to preserve the quality of the community and to prevent the possibility of resulting antisocial behavior. |
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Term
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Definition
(1) Whether the average person applying contemporary community standards would find that the work taken as a whole, appeals to the prurient interest (aka makes people horny).
- Based the general public, specifically LOCAL consumer.
(2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, AND
- “Patently offensive” has to be more than just nudity; needs to be “hard core” sexual conduct.
(3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
- National standard. |
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Term
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Definition
| - Punishment is much more extreme than for obscenity; you can have obscenity in your home but you cannot privately posses child porn. |
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Term
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Definition
| Cohen convicted of disturbing the peace for wearing a jacket that said, “fuck the draft” to a courtroom. He challenged his conviction was unconstitutional, and the court agreed. Court reasoned that you couldn’t forbid certain words without forbidding certain ideas in the process. HELD: The gov. may not prohibit or punish speech simply because others might find it offensive. |
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Term
| Exceptions to the protection of indecent speech |
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Definition
| Government may restrict TV/Radio broadcasts for indecent lagnauge |
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Term
| FCC v. Pacifica Foundation |
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Definition
| Government can regulate indecent speech through medias that are highly pervasive. They look to how much the user can manage their own access. |
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Term
| Citizens United v. Federal Election |
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Definition
| corporations and unions have the right to spend as much as they choose in independent expenditures. The gov. may regulate corporate political speech through disclaimer and disclosure requirement, but it may not suppress speech altogether. |
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Term
| Unconstitutional Condition Doctrine |
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Definition
| The principle that the government cannot condition a benefit on the requirement that a person forgo a constitutional right, or deny a benefit to someone because they exercise a constitutional right. |
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Term
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Definition
| WWII vets refused to take loyalty oath and lost out on veteran’s property-tax exemption. The withholding of benefits b/c the veterans exercised free speech. HELD: Denial of a tax exemption for engaging in certain speech will necessarily have the effect of coercing the claimants to refrain from the proscribed speech, in effect, penalizing them, therefore, unconstitutional. |
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Term
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Definition
| No funds for abortion case. It is constitutional for the government to selectively fund programs, which encourage certain activities in the public interest, w/out also funding alternative approaches. Claimed the gov. doesn’t violate the unconstitutional conditions doctrine because the regulations does not deny benefits, they only ensure that public funds are spent for authorized purposes. |
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Term
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Definition
| BONGHiTS4JESUS. Schools may "take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use" without fear of violating a student's First Amendment rights. |
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Term
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Definition
| The Court has held that the government may engage in content-based discrimination when the government is a speaker. |
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Term
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Definition
| The city denied Summum’s request to erect a stone monument, which would contain their religions aphorisms. The free speech clause does not regulate government speech. Permanent monuments displayed on a public property typically represent government speech. Monuments do not fall under the same rules as “public forum principles” b/c people eventually leave while monuments stand forever. HELD: The placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause. |
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Term
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Definition
| • The gov. may not compel or punish religious beliefs; people may think and believe anything that they want. |
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Term
| Components of a Free Exercise Claim |
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Definition
1. Freedom to believe
2. Freedom to act |
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Term
| Employment Division v. Smith |
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Definition
| The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion proscribes (or prescribes). |
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Term
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Definition
| Generally applicable, religion neutral laws that have the effect of burdening a religious practice need not be justified by a compelling interest. |
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Term
| Establishment Clause Theories |
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Definition
1. Strict Separation
2. Neutrality
3. Accomodation |
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Term
| Symbolic endorsement test |
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Definition
| Government violates the EC if it symbolically endorses a particular religion or if it generally endorses either secularism or religion. |
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Term
| Three different approaches to the symbolic endorsement test |
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Definition
(1) It should not be used when the issue is private speech on a gov. party. [Scalia]
(2) It should be applied from the perspective of a well-educated, well-informed observer. [O’Connor]
(3) It should be applied from the perspective of the reasonable passerby. [Stevens/Ginsberg] |
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Term
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Definition
| The nativity scene violates the establishment clause while the menorah does not. |
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