Constitutional Law (6)

Constitutionalism

the highest law in the US, and frequently affects businesses
- The constitution does not answer every question, nor does it affect and control every dispute
- The constitution leaves many matters to the States, or to individuals

Natural Laws

Higher and eternal laws and values ex) life, liberty, and property rights. (In the U.S. you can actually own property)

Positive Law

Laws necessary to regulate a well-ordered society, these should be limited.
Ex) STOP SIGN, Food handler Laws, Driver’s test

Private Domain

A person’s private domain- their home, body, and persona life is protected against government intrusion, unless the person’s actions seriously affect other’s rights.
Ex) The law will not stop adults from smoking, but the law does stop adults from smoking in a way that affects others “no smoking within 25 feet”

No person is above the law

The idea that even the President or a former president is not beyond the law. BUT you have some leeway from prosecution if their acts were part of the president’s core responsibilities

Democracy

The people - 1) voting, and 2) running for office

1) Voting

The idea that the people get to meaningfully choose the elected officials who run the government, via voting. Voting in the US is not reserved for members of any one political party.
The US is not a pure democracy, but it’s pretty good
15th, 19th, 26th amendment

2) Running for election

The second way to measure whether there is a real, functioning, democracy, is to consider impediments, to running for office (as opposed to voting)
Many countries prevent citizens from running for election, or find ways to disqualify them before they win.
Ex) Brian R. Weed running for governor and his experience is high school ASB Class Representative

The bill of rights

Comprises of the first 10 amendments to the United States Constitution.
1) Identifies Specific rights that Americans have, and also contain specific LIMITS on the power of the government)
2) Originally meant to only apply and limit the power of the Federal government
3) Overtime, the Supreme Court has ruled that almost all of the Bill of the Rights applies to state and local government actions, (including UW)

The 10th Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people
THE POLICE POWER
Authorizes the States to create laws for the prevention of crime and to promote public safety, PROVIDED that those laws do not violate other parts of the US constitution, or State constitution

First Amendment and City of Bellevue

Bellevue passed a law outlawing all nude dancing, Professional lap dances sued claiming the Bellevue law violated their First Amendment (free speech)
Dancers won, Bellevue lost
Second ordinance, they can only happen in well lit interiors and six feet away from the person you’re doing the dance for.

First Amendment

CONGRESS SHALL MAKE NO LAW respecting the establishment of religion, or prohibiting the free exercise there of, or abridging the freed of speech, or of the press, or the right of the people, Stictly to Congress

The Incorporation Doctrine

Is the constitutional law principle that makes the protections of the U.S. Bill of Rights applicable to state and local governments

Post Civil War Amendments

During Reconstruction, the Southern States were enacting a lot of laws meant to keep freed black people down. So more amendments were made

14th Amendment

“No STATE SHALL make or enforce any law which shall deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws”
Cannot deny any citizen DUE PROCESS OF LAW

Equal Protection Clause

The law must treat people the same, and be applied equally to all people. This clause helped decide Brown v. Board of Education and overrule Plessy v. Ferguson.

Due Process of Law

is a constitutional guarantee that prevents the government from unfairly taking away a person's life, liberty, or property, which extends to state and local governments.
Fundamental Fairness
Ex) Summons is part of due process

First Amendment and how to apply it Step 1

1) Who, or what, is trying to limit your speech or force you to speak? (forced/compelled speech)
a) If it is NOT a government entity the first Amendment does not apply
b) If it is any governmental entity, even a government subdivision like Metro Transit buses, or UW 1st amendment DOES apply.

Forced/Compelled Speech

If the government is telling you must say something or forcing you to say something, it is compelled speech.
Ex) Saying the pledge of allegiance in class, not forced to do it or else it would be compelled speech.

First Amendment and how to apply it Step 2

2) is the speech protected, or unprotected speech? Not all speech is protected by the first amendment.

Unrprotected Speech

Speech not protected by constitutional protection.
Ex) Death threats (true threat)

First Amendment and how to apply it Step 3

3) If a government is trying to limit protected speech, or force a person a person to speak, then
A) Is the government try to
1) Limit WHAT is being said? or force you to say something?
2) Or treating different speakers who want to say the same thing differently?
If yes, then the “strict scrutiny test” will be used and will most likely be struck down.
B) If government is only trying to limit where, when, or how things are said (time, place, and manner), but treat all speakers the same way regardless of what it being said, intermediate scrutiny test, (must easier to pass)

Strict Scrutiny

The highest and most demanding standard of judicial review used by U.S. courts to evaluate the constitutionality of government actions, laws, or policies

Intermediate Scrutiny

Is a middle-tier legal test used by U.S. courts to decide if a law or government policy is constitutional. (Must easier to pass than strict)

What qualifies as protected speech?

1) Spoken, written words, songs, movies, tv, radio
2) Expressive communication (conduct that the sender intended as a message)
Ex) Texas v. Johnson (The flag burning case) Johnson burns the American flag and is convicted, he is sending a message by burning the flag so its constitutional, Johnson wins.
3) Expressive Association

2) Expressive communication

1) Was there an intent to communicate a particular message
2) Is the message likely to be understood by those who view it?
Johnson’s flag burning was expressive conduct. Texas argued that it was a breach of the peace, and preserved the flag as a symbol of nationhood, but boy scouts burn flags.
He did it again in 2016, got arrested, and Cleveland agreed to pay him $225,000.

Types of protected Speech

1) Spoken, written words, songs, movies, tv, radio
2) Symbolic Speech and Expressive Conduct
3) Expressive Association

3) Expressive Association

Private group that has a viewpoint, and intends to send a message, you can exclude ppl who do not share your viewpoint.
Ex) Boy Scouts vs Dale, No gay scouts in boy scouts, Boy scouts won - did not have to take ppl who undermined that.

Where does First amendment apply

Only to governmental settings, NOT private or employer-employee setting
Ex) Julie Briskman flipped off Trump, caught in a picture, she was fired from her job, lost.

Types of Unprotected Speech

1) True threats
2) Obscenity (also child pornography)
3) Libel/Slander
4) IP Infringement

1) True Threats

Statement meant to frighten or intimidate ppl that will be harmed by the speaker
Ex) Virginia Vs Black “cross burnings will be outlawed,” intimidates Black Americans. Burning a cross is a death threat, went to supreme court. Not all cross burnings are universally threats argument. (2003 Klu Klux Klan)

2) Obscenity

Creating, possessing, or distributing obscene materials. How do you define what is obscene or not?
Miller v. California (1973)
Miller distributing obscene erotic books, case describes how to determine if something is obscene or not. Court reversed his conviction.

Jury Instructions with Obscenity test

1) Average person applying contemporary local community standards, finds that the work taken as a whole, appeals to prurient interest. (unhealthy, shameful, or morbid interest in sex)
2) Does the work depict in a patently offensive way, sexual conduct specifically defined by applicable law? (Look at state law)
3) Does the work in question lack serious literary, artistic, political, scientific or educational value?

Child Pornography

Special case of unprotected speech. Children are victimized in the production of this, not need for a obscenity test.

3) Libel/slander

Lie about someone and distribute the lie to others, and it hurts their reputation, they can sue you.

4) IP Infringement

Stealing intellectual property is a form of threat.

Protected Speech Relevant to Business

1) Ordinary Speech
2) Commercial Speech
3) Strict Scrutiny Test

1) Ordinary Speech

Largest type of speech, everything besides political or commercial speech.
Government has no power to restrict expression.

Content Neutral

law or regulation applies to all speech or expression equally, regardless of its message, topic, or viewpoint, based upon time, place, and manner of speech.

Content-based Speech

Restriction is a law or rule that targets speech based on its topic, subject matter, message, or the viewpoint of the speaker.

Content-based Speech Test (if it is or not)

1) Purpose of regulation, law, or action is to suppress particular ideas. Ex) 2017 “unite the right” rally shouting racist things, neo-nazi. if gov restricted, law would be content-based.
2) Regulation is singled out, one content people are talking about is treated different than other content. Ex) Sound trucks that advertise candidates are illegal (singling out)

If rule is content-based, must pass Strict Scrutiny Test

1) A compelling government Interest (very compelling problem to solve
2) The regulation is narrowly drawn to serve that interest
3) It must be the least restrictive means among available alternatives
Almost impossible to pass

Strict Scrutiny Test California and Video Games

Ex) California attempted to regulate sales of violent video games, went to court, was ruled unconstitutional, strict scrutiny test, no important interest (no link between games and kids’ violence.
Industries self regulate to avoid litigation

Content Neutral Test

Government may impose reasonable time, place and manner restrictions.
Cannot be overly restrictions, or they will be ruled unconstitutional
Intermediate Scrutiny Test
Ex) Abortion protestors cannot come with in 5 feet of an abortion clinic (regulating where) There was a 35 feet zone, protestors have the right to be closer ruled by Supreme Court

3) Political Speech

Is afforded an extremely high level of first amendment protection.
You will not be arrested for commenting on ordinary political matters, or criticizing the government
Corporations cannot give money directly to candidates, but you can individually
Ex) Citizens United, ruled that political spending is protected speech.

2) Business and Commercial Speech

1) Advertisements are legal services protected by the 1st amendment (protects consumer)
2) The government can regulate commercial speech that is misleading, untrue, or deceptive. (Federal Trade commission)
3) If commercial speech concerns a lawful activity, ands not misleading, the government may be able to regulate it. (does the regulation

2) Federal Trade commission

Regulates commercial speech that is deceptive. Ex) Coco Krispies Immunity claims, about how it supports children’s immunity, FTC says to take it down so they do

3) Commercial Speech regulation Test

1) Is there a substantial government interest in regulating the speech? “yes”
2) Does the regulation advance an important governmental interest “yes”
3) Is the regulation overly extensive? (does it go too far?) “no”
NEED to check all 3
Ex) Camel Cigarettes appealing to kids, can’t have that, was regulated

Forced Speech and First Amendment Example

Government was trying to find a woman if she did not make custom websites that include congratulatory message. Business owner wins, violates their religious views. Company can have a religious belief/ shared belief.

Eminent Domain

the power of the government to seize private property for public use
Ex) 520 expansion, government did not give a woman enough money for her house be torn down, went to court, won more money.

Freedom of the Press

If government is unhappy with what press is publishing/saying only cant act before or after something is published

Prior Restraint

Restrain the press from publishing something before it has been published.
Ex) Near vs. Minnesota, Near wanted to publish a scandal sheet accusing local officials of corruptions and crime, and government tried to shut him down.
CAN ONLY HAPPEN IF IT is related to National Security, also the Pentagon papers information on the Vietnam war (nothing to do with troops’ location)

Subsequent Punishment

After it has been published, not following NDAs for example