Constitutional Law II

Basic equal protection framework

1. similarly situated being discriminated against?

2. Intentional Discrimination (3 types)

3. Scrutiny (3 types)

4. remedial power if necessary

What does the rainbow mean?

Does the classification/discrimination meet the objective when scrutinized under the standard?

What is intentional discrimination?

1. facially discriminatory,

2. facially neutral but discriminatory in effect

3. Facially neutral and application, but discriminatory in effect (show motivation)

Strict scrutiny

Narrowly tailored/necessary to accomplish a compelling government interest

How to get strict scrutiny?

Race, alienage (sometimes)

How to get a group into strict scrutiny

Discrete and insular minority

Discrete and insular minority test

1. Immutable characteristic

2. pervasive historical discrimination

3. politically powerless

Intermediate Scrutiny

Substantially related to an important government interest

Who gets intermediate scrutiny

Sex/gender

Rational Basis

rationally related to a legitimate government interest

Who has the burden for rational basis?

the challenger of the statute, have to show how the regulation DOESNT relate to any legit govt interest

Overclassification

the statute is too broad and gets too many of the good people too

under classification

doesn’t get any of the bad

What is a remedial power?

When a statute is unconstitutional, the court can

Basic framework for the establishment test

1. Is something the government doing making people think they endorse the religion?

2. Lemon Test

3. Kennedy Test

Coach Kennedy Test

Looks at the historical practices and traditions to see if there is coercion from the government

Lemon Test

(Think PEN)

1. secular PURPOSE

2. Neutrality (endorsement test)

3. Excessive entanglement

Governments motives, the effect

Basic framework of the exercise clause

Is there a statute that is targeting the practice of religion?

1. Is it generally applicable incidentally burdening religion?

2. Is it not generally applicable? —> strict scrutiny

   1. Check if there is a federal statute implicated (RFRA or RLUIPA)

Lutheran vs Locke (differences)

Locke was a problem because he was using it in such a way that looked like the government was endosring it, while Lutheran was saying no you can’t even apply because of who you are

Religious Freedom Restoration Act

Strict scrutiny (compelling government interest using least restrictive means)

Religious Land Usage and Indigenous People Act

strict scrutiny if burdening land by religious or criminal institutions

Basic Speech framework

1. Is it speech?

2. Is it expressive communication (O’Brien)

3. If speech, is it protected?

4. Who is speaking (student, government, private citizen)

5. Check for over breadth, vagueness, or prior restraint if needed

How to know if it’s speech

words, speaking, conduct with words

O’Brien test (LeeeeeFAI)

1. Legitimate government power

2. Furthers important/substantial government interest

3. Actually content neutral

4. Not an incidental burden

5. If it doesnt satisfy these, then strict scrutiny

Unprotected speech (can be regulated)

1. incitement of immediate lawlessness (Brandenburg test)

2. true threats

3. fighting words

4. hate speech tied to the others

Brandenburg test

1. advocacy/ imminent threat

2. likely to incite said threat

3. subjective standard (what they meant or reckless disregard)

Protected speech (cant be regulated)

Everything else even obscenity can’t be regulated

Government employee speech

balance government interest of efficency with citizen’s right of speech. Are they speaking as a private citizen about a matter of public concern?

Government itself speaking

They can speak on beliefs and viewpoints (approving one monument but not another)

Student speech

General rule: Tinker, students don’t lose their free speech as soon as they get to school, BUT there are different regulations depending on where they are and what they’re saying (Bethel, Morse, Hazelwood, Mahoney)

Tinker test

MATERIAL and SUBSTANTIAL interference with the OPERATION and DISCIPLINE from the school

What test do you use when it is vulgar and lewd speech?

Bethel

bethel test

INCONSISTENT with the VALUES and MISSION of the school system

What if it is something the school is sponsoring?

Hazelwood

Hazelwood test

School is able to exercise greater control over second forms to make sure the lesson is actually being taught, or to not be exposed to inappropriate material, or something they DONT WANT TO BE TIED TO

What if its a school sponsored school trip?

Morse

Morse test

bethel test for regulating drug and deterring drug usage because INCONSISTENT with the VALUES and MISSION of the school system

What if its off campus speech but tied to the school?

Mahoney

Mahoney test

School has the right to regulate speech off campus if it is THREATENING, BULLYING, HARASSMENT, or will cause a SIGNIFICANT DISTRACTION IN SCHOOL

Private citizen test

1. decide the forum

2. decide the content regulation

Forum analysis

Either public forum, limited public, or private

Public forum but content neutral test

time, place, manner restrictions that are REASONABLE and NARROWLY TAILORED (doesn’t burden speech more than necessary)

public forum but content based test

strict scrutiny

public forum but viewpoint based test

strict scrutiny

limited public forum but content neutral

time, place, manner restrictions that are REASONABLE and NARROWLY TAILORED (doesn’t burden speech more than necessary)

limited public forum but content based

strict scrutiny

limited public forum but viewpoint based

strict scrutiny

private forum but content neutral

reasonable regulations

private forum but content based

reasonable regulations

private forum but viewpoint based

strict scrutiny

Overbreadth

statute too broad, plain, consistently scooping up too much. Government has the burden to show that they are not limiting protected speech more than their legit/important/compelling interest allows

Vagueness

subjective, not clear or specific, common people would have to guess the meaning

prior restraint

stopping speech before it happens

Exception to prior restraint

licensing or permits for parades, injunctions that are content neutral

Freedom of association

Substantially related to a sufficiently compelling reason the government has for limiting the government then a burden test on the challenging group

Expressive association

Balances group first amendment right to the government’s interest in eradicating discrimination

1. serves compelling state interest

2. unrelated to suppression of ideas/speech/content

3. can’t be achieved through less restrictive means