Term
| fourteenth amendment "incorporation" |
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Definition
| The incorporation of the Bill of Rights (or incorporation for short) is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to the 1890s, the Bill of Rights was held only to apply to the federal government. Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments, by virtue of the due process clause of the Fourteenth Amendment of the Constitution. |
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Term
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Definition
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Term
| fourteenth amendment applies to... |
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Definition
| all persons within the US, regadless f citizenshipe. Text says "nor shall any State deprive any person...." |
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Term
| The heart of Substantive Due process |
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Definition
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Term
| What do we mean by "substantive" due process |
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Definition
contrasted with "procedural" due process, from Civ Pro: notice, opportunity to be heard...,
-substantive due process is something more than mererly and opportunity to be heard, etc.
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Term
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Definition
Price controls that are
nondiscriminatory and bear a reasonable relation
to a proper legislative purpose are constitutional. |
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Term
| a law that infringes on freedom in the marketplace and freedom of K... |
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Definition
...is unconstitutional if it does not bear a
reasonable relation to a legitimate governmental
purpose. |
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Term
| Justice Holomes andBrandeis formulate an alternative DP analysis: the fed cts shouldnt be interfereing so quickly into state affairs. the courts should do an "ends/ means" analysis in DP cases. WHat is the test: |
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Definition
1. if the ends are lgitimately within the state sovereign police powers, i.e. health morals safety welfare (later asthetics), courts should defer to the legislature to make those policy judgemenbts
2. if the means are reasonably related to that legitimate police power then it does not violate DP.
*Lee Optical is a classic example of this
_________________________
-Courts dont second guess the legislature so you will need strong evide of some improper purpose to win on the "ends" prong
-even if court doesnt agree with, or if its illogical, as long as this law is reasonably related to the ends, it doesnt violate the DP clause
*by the 1930s the Holmes/ Brandeis formulation had prevailed and is still basic DP law today |
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Term
BLACK LETTER RULE A right of personal
privacy emanates from...
(because not expressly outlined in the constitution)
(case Griswold v. Connecticut case, planned parenthood guy and laws re: birth control) |
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Definition
...The liberty clause/"life, LIBERTY, etc."
-the penumbras of the Bill
of Rights, and it cannot be invaded absent a
showing that the legislation is necessary to ac-
complish a compelling state interest. |
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Term
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Definition
The partially-darkened area outside of a shadow; an area between complete shadow and
complete illumination. |
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Term
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Definition
BLACK LETTER RULE The 14th Amendment
supplies a broad right of privacy and personal
autonomy, entitling a pregnant woman to termi-
nate her pregnancy but also enabling state regu-
lation of abortion at various stages of the preg-
nancy. |
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Term
strict scrutiny categories (2)
will use SS when... |
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Definition
A. protected classes- the ct. must declare it a protected class, if it has not been found as such you can still argue but the court hasnt created a protected class in 40 years. "discreit and insular". today, it does not matter which race (not only minorities)
B. fundamental interest- this is the other way in which a law can be subject to SS under an equal protection challenge.the ct. finds that what the law deals with is something that is so fundamental to american fundamentals of liberty. even if there is express language in the consitution. like voting: no constitutional right to vote, but it is so necessary that it is strict scrutiny
-The state must have a compelling reason and the menas must be narrowly tailored to that reason
-the way the test works: 1. identify the class; 2. ask the question is there a compelling state reason?; 3. Are the means narrowly tailored to that reason? |
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Term
| Is disparate racial impact alone enough to establish a violation of Equal Protection? |
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Definition
NO. an otherwise constitutional official action is not unconstitutional merely because it has a disproportionate racial impact
-While the central purpose of equal protection is to protect against official race-based
discrimination, we have never held that official acts that do not have discriminatory purpose violate the
Constitution solely because they have a racially disproportionate impact. |
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Term
| admissions programs, race as a factor |
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Definition
BAKKE case:
The admissions pro-
grams of state schools may achieve diversity in
the student body by considering the race of its
applicants among other factors; however, race
may not be the only factor used to measure
diversity |
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Term
five factors that must be considered in assessing the constitutionality of race-
based systems: |
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Definition
(1) individualized consideration, (2) the absence of quotas, (3) consideration of race-
neutral alternatives, (4) no undue harm to races, and (5) an ending point. |
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Term
| 2 questions to ask when dealing with Strict Scrutiny |
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Definition
1. can the state bear the burden of showing a compelling state interest
2. asssuming they can show a compelling interest, then talk about "narrowly tailored" |
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Term
| diversity can be a compelling state interest in... |
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Definition
| higher education, law school |
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Term
| The emblematic case to know for "other arguably suspect classifications" section |
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Definition
| Craig v. Boren (3.2 beer case) |
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Term
| Rule from Craig v. Boren (3.2 beer case) |
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Definition
BLACK LETTER RULE Statutes which dis-
criminate based upon one’s sex violate equal
protection if they create a gender-based classifi-
cation that is not substantially related to an im-
portant governmental objective. |
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Term
| Rational relationship test |
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Definition
1. classifications by gender must serve important governmental objectives(ends/ purpose)
2. substantially related to the achievment of those objectives(as opposed to narrowly tailored or reasonably related)(means) |
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Term
| substantial relation test burden (gender) |
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Definition
burden is met only by showing that the classification serves "important governmental objectives and that the discriminatory means employed" are "substantially related to the achievment of those objectives
(higher bar than rational relationship, but lower than strict scruitiny) |
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Term
| Rule from US v. Virginia (military school not for women case) |
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Definition
BLACK LETTER RULE A state may not dis-
criminate based on gender unless it has an
‘‘exceedingly persuasive justification’’ for doing
so.
*the burden of justification must show "at least that the challenged classification serves "important governmental objectives and that the discriminatory means employed" are "substantially related to the achievement of those objectives" The justification must be genuine, not hypothesizedor invented post hoc in response to litigation, and it must not rely on overbroad generlizations about the different talentsm, capacities, or preferences of males and females |
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Term
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Definition
| is a limitation on jurisdiction on federal district courts to hear cases against states. SMith v. Mississippi. applies to an individual suing a state for damages |
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Term
Congruent and proportional rule (reconstruction amendments)
-assuming that congress is acting remedially, what kind of means-end test is the requiremnet that a congressional civil rights remedy be "congruent and proportional" to the state violations Congress has identified? |
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Definition
| the remedy must be both related to (congruent with) and not too over- or underinclusive in relation to (proportional to) the underlying violations. -from City of Boerne v. Flores |
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Term
| two things to look at when considering speech and whether it is protected |
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Definition
1. facially, the language is repugnant to the entire law of the land: unconsitutional
2. as applied |
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Term
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Definition
| the govt acts ina away that tends to prevent others from speaking. This is one of the fears that drives our freedom of speech |
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Term
EP
Economic and social classifications that are not suspect and do
not burden a fundamental right are subject to |
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Definition
subject to rational basis
review. |
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Term
| If the legislature is not clear in its purpose |
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Definition
the legitimacy
of a challenged regulation’s objective may be established
in court by a conceivable or arguable reason |
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Term
Classifications on the basis of wealth, age, mental retar-
dation, and sexual orientation are |
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Definition
not suspect and thus
are subject to rational basis review.
a. Laws discriminating on the basis of sexual
orientation and mental retardation have been
invalidated pursuant to rational basis review. |
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Term
| Brandenburg is the modern test for this type of speech |
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Definition
end of the road for "clear and present danger"
New wording: IIL: incitement of imminent lawless action |
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Term
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Definition
those which by their very utterence inflict injury or tend to incite an immediate breachof the peace- *must be face-to-face, up close and personal. Chaplinsky decision p. 812
-the court has never overruled chaplinsky, but it has not sustained a conviction on the basis of fighting words doctrine since chaplinsky |
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Term
| 3 types of PMSIs **commercial law |
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Definition
1. inventory
2. consumer goods
3.equipment
a. non inventory, non consumer goods collateral |
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Term
| 9-324(b)rule for inventory PMSI * commercial law |
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Definition
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Term
| Rule for equipment PMSI*commercial law |
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Definition
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Term
| consumer goods PMSI*commercial law |
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Definition
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Term
| rules according to subject *Commercial law |
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Definition
Attachment: 200s
Perfection: 310-316
Priority: 317>
Def & Enforc: 600s |
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Term
| What standard of scrutiny for commercial speech? what's the four part test |
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Definition
-intermediate scrutiny
Test: CentHudson Gas case p. 935 |
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Term
| commercial speech black letter rule: from central hudson gas |
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Definition
1. IS the advertisement misleading/ unlawful?
2. if not, is there a substantial gov't interest?
3. Does that regulation directly advance? ends justified by the means
4. narrowly tailored |
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Term
| commercial speech, Obrien test |
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Definition
1. further important/ substantial gov't interest
2. incidental restriction on 1st amendment
-narrowly tailored |
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Term
| Schenck v. United States, 249 U.S. 47 (1919), |
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Definition
Holmes, writing for the majority, decreed that the critical issue was
“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 degree of evils the Congress has a right to
prevent.” Even though there was no evidence that anyone had
actually resisted the draft, the Court found a clear and present
danger because of the defendants’ motives. |
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Term
| speech, time place and manner restrictions: PUBLIC FORUMS, 3 part test |
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Definition
the government may enact time place and manner restrictions on speech on property that the govt must make available for expression (sidewalks, parks, etc.) only if:
1. the regulations are content neutral
2. the regs are narrowly tailored for a significant governement interest; and
3. the regs leave open adequate alternative places for communication |
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Term
| Vincent- Clark- Ward cases, time place manner |
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Definition
-an incidental restriction on expression resulting from the govts attempt to accomplish a legit govt prupose does not violate
-reasonable time place manner regulation does not violate the fiorst A if it is narrowly tailored to serve significant govt interest and it leaves ample channels for alternative speech
-symbolic expression may also be regulated by reasonable ti e place and manner regulation |
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Term
| summary of "narrowly tailored requirement", speech time place manner |
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Definition
1. is it a public forum?
2. is it a reasonable time, place manner regulation?
3. is it content neutral?
4. is it "narroly drawn/ narrowly tailored to further substantial/ significant govt interest?
-court shouldnt sift through all available or imagined alternative means
-meedmt be the least restrictive or least intrusive means
-its OK, as long as it promotessubstantial govt interst that would be achieved less effectively without regulation
-doesnt mean time place manner may burden substaintially more speech than is necessary, so long as isnt substantially broader than necesssary
-not invalid simply bc court concludes theres a less speech restrictivealternative |
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Term
| Places long devoted to assembly and debate... |
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Definition
| like parks, are generally not subject to govt restrictions of expressioive activity unless narrowly drawn to achieve compelling state interest |
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Term
| places opened for public expressive activity... |
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Definition
| are usually subject to the same rules as the traditional public forum |
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Term
| public property not by tradition or designation a public forum... |
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Definition
| may be protected by more comprehensive restricitons to preserve its use for its primary function |
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Term
| time place and manner does not apply ever to: |
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Definition
| private property, (except rare situation like a company town) |
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Term
| time place and manner does not apply ever to: |
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Definition
| private property, (except rare situation like a company town) |
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Term
| first amendment review begin |
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Definition
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Term
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Definition
cannot ban all speech, limits on contents based speech must meet strict scrutiny (nec. to a compelling govt int.)
-Can place time place manner limits that are content neutral, and are narrowly tailored to serve signif. interest
-if they leave ioen ample altern. means of communication |
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Term
| Time place manner restriciton |
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Definition
| the ability of govrnment to regulate speech in PUBLIC FORUM in a manner that minimizes disruption of a public place while still protecting freedom of speech |
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Term
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Definition
Limited public forum: "designated public forums": government cannot enfore certain exclusions from a forum generally open tp the public even if it was not required to create the foum in the first place; so long as the place retains a public character rules of public forum apply
NON PUBLIC FORUM:public property not by tradition or designation |
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Term
| how to distinguish forums: |
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Definition
Is the place dedicated to speech?
Is there a tradition of openness to speech?
Is it private property? (if so almost always allows exclusion of speech)
-state can allow acceess to private property on state constitutional grounds |
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Term
| Distinction between content based/ content neutral |
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Definition
IF CONTENT BASED: Strict Scrut. Govt ,must show a compelling interest in regulating speech and that regualtion is narrowly tailoredto that end (exceptions: incitement of ellegal activity, obscenity and defamation, hate speech
IF CONTENT NEUTRAL: intermed. scrut. govt must show an important interest unrelated to suppression of free speech and doesnt burden substantially more speech than necesary to further thosee interest |
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Term
| IF law is content based and must meet SS if... |
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Definition
| it is EITHER a viewpoint or a subject matter restriction |
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Term
| to be content neutral speech regulation must... |
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Definition
| be BOTH viewpoint neutral and subject matter neutral |
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Term
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Definition
| means govt cannot regulate speech based on the ideology of the message |
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Term
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Definition
| means the govt cant regulate speech based on the topic of speech |
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Term
| problems in applying the distinction bw content based, etc. |
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Definition
a law that on its face regulates speech based on its viewpoint or message is PRESUMED to be content based, but the govt CAN REFUTE by pursuading the court that the regulation is justified by a cntent neutral desire ot avoid UNDESIREABLE SECONDARY effects of the speech
-the content neutral justification must be truly unrelated to the desire to suppress speech and it must be unique to... |
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Term
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Definition
| when the govt inescapably must make content based choices (subsidizing speech through arts, research) the govt must be viewpoint neutral, but otherwise can consider content |
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Term
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Definition
-vague or overbroad laws are unconst. as regulating more or less speech than theu purport to proscribe
-these are often used for FACIAL CHALLENGES meant to entirely void a law. however the court often waits for ... |
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Term
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Definition
-vague or overbroad laws are unconst. as regulating more or less speech than theu purport to proscribe
-these are often used for FACIAL CHALLENGES meant to entirely void a law. however the court often waits for ... |
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Term
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Definition
vague of persons of common intelligence (reasonable person) cannot guess what type of behavior is prhibited or permitted
-while there is no test for determining vaguness, greater precision is required when a law regulates speech |
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Term
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Definition
| overbroad if it permits a statute to regulate both matters that it may const'ly proscribe, and those that it may not const'ly regulate or proscrib |
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Term
| 2 major elemets must be present to find overbreadth |
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Definition
1. substantially overbroad
2. person arguing it must have standing |
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Term
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Definition
must restirct significantly more speech than the const allows to be controlled. (less than substantially overbroad is probably insufficient for a facial attack but more likely sufficient for an as applied attack)
-applies in all cases, whether the law regualtes conduct that communicates or "pure speech"
-there must be a REALISTIC DANGER of unconst'l application, not a mere conception. So ,more likely to win if you can show a significant numbr of situations
-STANDING: the determination of whether a specific person is the poper party to bring the matter |
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Term
| commercial speech overbreadth |
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Definition
| overbreadth rules doe not apply to commercial speech bc |
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Term
| commercial speech overbreadth |
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Definition
| overbreadth rules doe not apply to commercial speech bc the incentive to engage in advertising is sufficiently strong to lessen any worries that commercial speech will be chilled |
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Term
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Definition
| Central Hudson: expression related solely to the economic interests of the speaker and its audience. but this is difficult to apply |
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Term
| central hudson four part commercial speech test |
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Definition
1. is the advertising false or deceptive or of ellegal activities, areas which are unprotected?
2. is the govt's restr justified by a substantial govt interest
3. does the law directly advance the govt interest
4 is the reg of speech no more extensive than necesary to achieve the govt interest? |
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Term
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Definition
| definition: typically an adminstrative system or judicial order that prevents speech from occurring |
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Term
| 3 eleements of prior restrains |
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Definition
-must originate from govt action
-must be prospective, like an order/ injunction
-must actually threaten punishment for future spepch |
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Term
| prior restraints presumtpiton |
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Definition
...of invalididty: unlike content based/neutral laws
Burden: govt must have a substantial justification and have proper procedural |
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Term
| if burden is met, prior restraints are permissible where: |
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Definition
| nat secur interests are affected by the publication of particular subject matter |
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Term
| prior restraints: licensing systems |
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Definition
to be upheld there must be:
-an "important" reasona for licensing
-clear standards leaving almost no discretion to the govt
-procedural safeguards |
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Term
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Definition
| thre is a right not to speak including the right to not disclose ones identity when speaking |
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Term
| uprotected and less protected speech |
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Definition
Incitement of illegal activity:
Current: brandenburg test
Imminent harm, a likelihood of producing illegal action, and an intent to cause imminent illegality |
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Term
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Definition
| (speech that is directed at another and likely to provoke a violent response) are unprotected |
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Term
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Definition
| Obrien test: SCOTUS refused to consider burning of a draft card as symbolic speech, when federal statute prevents knowingly destroying the card |
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Term
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Definition
| (speech that is directed at another and likely to provoke a violent response) are unprotected |
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Term
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Definition
consideration of whther:
-the law is within the const power of the state
-the law is pursuing a legit state interest-the law is directed at action and not speech
-if it suppresses speech, does it only supress as much as necessary? |
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Term
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Definition
Young: detroit restricts adult theaters by zoning, SCOTUS allos since porn houses are low value speech, even thoguh content based
RENTON: ordinance prohibited adult theaters due to the secondary effects of the theaters. SCOTUS considered the regualtion content neutral since it was based on the secondary effects... |
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Term
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Definition
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Term
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Definition
| obscenity: material which deals with sex in a mannr appealing to the prurient(tendecy to incite lustful thoughts) interests |
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Term
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Definition
| ROTH: SCOTUS affirmed conviction of a man who mailed publication with erotic literature inside, bc the publication taken as a whole appeals to the prurient interest of the average person under community standards |
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Term
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Definition
| Whether the work taken as a whole by contemp community standards appeals to prurient ineterst, the work must depict or describe in a patenytly offensive... |
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Term
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Definition
| scotus held theres a substantial govt interest in stemming the tide which has an "srguable correlation" to the govt inteeret of stemming the tide of commercialized obscenity |
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Term
| sexually oriented speech, general laws |
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Definition
-cant punnish private ownership of obscene materials
-can punish pwnership of child pron
-can prohibit sale distribution and exhibition of obscene materials
-cant enforce general bans on specific profanity |
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Term
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Definition
TV can regulate public airwaves bu t not cable
-radio is same (XM vs public radio)
-phone cant ban indecent messages
-internet cant ban speech for adults just what is appropriate for children but you can |
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