STATE ACTION

The Constitution applies only to government action.  Private conduct need not comply with the Const.

State action is required for:

PDP and SDP

Taking

EP

1st AM Protection

STATE ACTION EXCEPTIONS

1. PUBLIC FUNCTION: private actors exercising traditional state functions are STATE ACTORS (e.g. company town)

2. SIGNIFICANT GOV. INVOLVEMENT: state actors: enforcing RC and leasing discriminatory leases. NO STATE ACTION: granting license/monopoly to utility co., granting corp. charter and gov. subsidy.

3. Congressional Statute: may apply const norms to private conduct (13th Am and Commerce Power)

PROCEDURAL DUE PROCESS

5th AM by 14th Am, states may not deprivation of life, liberty, or property without notice.  Must establish state action. 

Procedures Required:

3 Part Test

1. Importance of interest to the individual

2. Interest of gov. in fiscal and admin. efficiency.

3. Ability of addtnl procedures to increase accuracy of fact finding.

SUBSTANTIVE DUE PROCESS

Unfair law.  Must be reasonable and fair  not arbitrary or capricious.

a. Economic/Social Regulation Test:

Rational Basis Test.  

NO CLASSIFICATIONS: look at fairness.

b. Fundamental Rights:Travel/Vote/Rej Med/Privacy/1st Am  

Strict Scrutiny.

Abortion: Undue Burden Test.

1st Amendment Rights

1. Petition to the gov.

2. Association

3. Speech

4. Religion

EQUAL PROTECTION (EP)

14th Amendment

The 14th Am prohibits states from depriving anyone of equal protection under the law.

EQUAL PROTECTION STANDARDS

Strict Scrutiny (SS): The law must must be necessary and narrowly tailored to a compelling gov interest. Gov. carries burden.

Intermediate (IS): The law must be substantially related to an important gov.interest. Gov. carries burden.

Rational Basis(RB): The law must be rationally related to a legitimate interest.  P carries burden.

CLASSIFICATIONS

SUSPECT CLASS

RACE: Facially Neutral: No group is specifically mentioned. Must prove:

1.) Discrimintaroy Intent

2.) Discriminatory Impact

ALIENAGE: State: SS except gov functions

Fed: Rational

GENDER: "exceedingly persuasive" (Intermediate)

SPEECH:

PRIOR RESTRAINT

Gov. orders speech prior to pubication.

SS analysis AND gov must show special societal harm.

Collateral Bar Rule: Must comply with order: if non-compliance, cant use unconst as defense.

SPEECH

UNFETTERED DISCRETION

No unfettered discretion.

Gov. can't require license /permit if:

1. Important reason for license

2. Clear criteria leaving almost no discussion

3. Safeguards (e.g. prompt determination)

SPEECH

CONDUCT REGULATION

Conduct that communicates can be regulated if:

1.) Furthers important or substantial gov interest

2. Gov. interest unrelated to supressing speech

3. Incidental restrictions no greater than necessary  to further gov interest.

ex. Const: flag burning

NonConst: draft card burning

SPEECH

TIME, PLACE & MANNER

Gov can regulate speech is there is a legitimate interest to regulate TPM specifically defined, unrelated to content. 

Test depends on forum.

PUBLIC

NON-PUBLIC 

PRIVATE: no 1st AM right in private property.

SPEECH

TIME, PLACE & MANNER

PUBLIC FORUM

PUBLIC FORUM: gov property constitutionally required to ake avail for speech (i.e. parks, streets)

TEST:

1. Regulation content neutral AND narrowly taiolred.

2. Serves important gov interest: Healthy, Safety and Morals AND leaves open alternate means.

SPEECH

TIME, PLACE & MANNER

NON-PUBLIC FORUM

NON-PUBLIC FORUM: Military bases, airports, areas outside jails, ad space on buses.

TEST:

1. Viewpoint Neutral

2. Reasonably related to legitimate gov interest purpose

SPEECH

CONTENT

Gov. may regulate speech if it is necessary, narrowly tailored to a compelling gov interest.

LOW VALUE SPEECH

CONTENT

INCITEMENT

INCITEMENT:

Creates a clear & present danger

of immediate lawless action

that is likely to occur

LOW VALUE SPEECH

CONTENT

OBSCENITY

Obscene:

Prurient interests (community)

Patently Offensive (community)

Lacks redeeming value- art, science value) (national)

LOW VALUE SPEECH

CONTENT

COMMERCIAL

COMMERCIAL:

Test:

Restriction is narrowly tailored and advances substantial gov interests.

FREEDOM PRESS

Press no greater privilege than ordinary citizens.

Right to speak and not speak- Can't compel

Newspaper: no privelege to refuse to disclose conf sources to grand jury, states may enact shield laws, laws to punish np are invalid per se.

Broadcasting:

Access to Criminal Trial:

TEST:

1.) SS + societal harm

2.) Balance D rights fair trial v. freedom of press

FREEDOM OF ASSOCIATION

Gov can't prohibit or punish group association, unless:

1. Group illegal purpose

2. Active affiliation of indiv.

3. Specific knowledge of illegal activity

4. Specific intent to accomplish illegal activity

FREEDOM OF RELIGION

ESTABLISHMENT CLAUSE

Gov neither aid or or formally establish religion.

SECT PREFERENCE: Use SS

NO SECT PREFERENCE: 

TEST

1.) Secular purpose

2.) Effect neither adv or hinder

3.) No excessive entanglement by gov.

FREEDOM OF RELIGION

FREE EXERCISE CLAUSE

1.) Intentional: Use SS

2.) Unintentional/incidental/neutral: Upheld.

DEFENSE: Can't be used to challenge general applicable law as interference with religion.

FREEDOM OF RELIGION

VALIDITY OF BELIEFS

Gov CAN only test sincerity of belief (is it bonafide?)

Gov CANNOT:

1. Test validity of beliefs

2. Gauge truthfulness of beliefs

3. Gauge reasonableness of logic of beliefs.

Protects ritual sacrifice of ritual animals but NOT use of peyote.