Con Law - Individual Rights

• BoR protections apply against the federal govt, not the states
• But most BoR protections also apply against state and local govts through the Due Process Clause of the 14th Am.

• const rights are protections against the govt
• If there is no state action, constitutional rights do not apply
• state passing law permitting officials to take action = state action
• "clothed in authority" works too
• Hard Cases:
• public function - when a private entity performs a govt f(x) only traditionally & exclusively performed by govts that action will be deemed to be state action (const guarantees apply) - narrowly applied
• significant state involvement - state and private actor are working together as partners or joint venturers or - govt significantly commands, encourages, or approves private actor's challenged behavior = state action

• police officer contrary to policy arrests non-whites only;
• private company operates a town complete w/ all attributes of a municipality;
• state officials enter into joint venture w/ company and profit from discriminatory policies
• peremptory challenges to strike jurors based on race
• sheriff seizes debtor's property
• court enforces restrictive convenant prohibiting sale of property to blacks

• state gives valuable liquor license to private club that discriminates based on race
• state grants monopoly to and extensively regulates electric company but does not approve shut-off policies that provide no hearing to the customer
• state provides extensive financial aid and referral of students toa private school for troubled youth that summarily fires some of its teachers
• state evenhandedly enforces trespass laws even for a person who bars persons from property on the basis of political viewpoint or race
• state refuses to aid a person not in govt custody who is hargmed by a private person

states may not by legislation substantially impair pre-existing contracts unless the law serves an overriding public need, and the law is a reasonable and narrowly tailored means of meeting that need

• Neither Congress nor the states may pass ex post facto laws. The ex post facto prohibition applies only to criminal statutes, not civil statutes
• any legislation that
• 1. makes crime today what was done yesterday,
• 2. increases punishment after committal, or
• 3. reduces evid necessary for conviction

Prohibits any federal or state legislation that inflicts punsihment (crim or civ) on named individuals or ascertainable members of a group w/out a judicial trial

• concerns how the govt acts; if depriving of life, liberty or property interest then must follow certain procedures
• Requires some notice (reasonably calculated to inform the person of the action against him) and an opportunity to be heard (a hearing)
• Applies to adjudicative-type acts not legislation

• Deprivation = intentional act (not mere negl)
• Liberty = physical (locked up); legal rights (relationship to child) - mere injury to one's reputation is not liberty interest but major is
• Property = conventional real/personal property; govt benefits; govt employment
• Key concept is ENTITLEMENT. entitlement is property but expectancy is not. Employment entitlement only if "for cause"
• Expectancy: probationary ee, provisional or temporary ee, a non civil service or nontenured ee
• Entitlement: civil service ee, permanent ee, or tenured ee
• If there is a deprivation go to question 2.

• Minimal due process requires notice and opportunity to be heard. Usu. hearing must come before deprivation. Hearing can come after if govt shows significant need to act first.
• To determine the actual procedures needed in each case, the courts balance 3 factors:
• 1. nature of the private interest,
• 2. likelihood that procedures lead to mistake, and
• 3. state's interest in following procedures

waiver of filing fees for indigents will be req'd if charging the fee would result in the denial of a fundamental right, which means denial of a constitutional right (not for statutory rights)

• neither the federal govt (5th Am) nor the states (14th Am due process) may take private property w/out just compensation
• taking must be for a public use, meaning any legit govt goal, and just compensation must be paid (meaning FMV at the time of the taking)

• 1. Physical invasion or occupation: no matter how tiny and even if temporary
• 2. Regulatory takings: ordinarily, regulating restricting property owner's use of property are not takings if the regulation reasonably advances a legit state interest and leaves an economically viable use for the property
• 3. Conditional Permits: sometimes the govt will require a property owner to satisfy certain conditions to receive permission to build upon or alter property. For such conditions to be valid, there must be a rough proportionality, or connectedness, b/t the impact of the proposed development and the condition

• Privileges and Immunities of National Citizenship - always a wrong answer - except it protects the right to become a citizen of any state - rights of other citizens
• Equal Protection and Due Process: fed (5th Am) and state (14th Am)

The government must prove that the law is necessary to achieve a compelling interest. There is no presumption of constitutionality.

The government must prove that the law substantially serves an important interest. There is no presumption of constitutionality.

Minimum Scrutiny: The plaintiff must prove that the law lacks a rational basis and is unrelated to any legitimate objective. The law is presume constitutional.

focuses on the bases on which the govt treats people differently, that is, how it classifies people

• To judge a law as a discrimination based on race, alienage, gender, or illegitimacy, the law must intentionally and purposefully discriminate on one of these bases.
• This can be shown if:
• The law intentionally discriminates on its face ("Only males may work as bartenders")
• The law is neutrally written but intentionally, discriminatorily applied (anyone is eligible to operate a laundry in a wood building but only whites are given permission to do so)
• But - not enough to show that law which is neutrally written/applied has a disproportionate impact or effect. There must be purposeful discrimination. P must prove that race or other invidious discrimination was a motivating factor in the govt's action.

• Strict Scrutiny
• laws that treat racial groups as inferior or separate the races
• applies even to laws that purport to treat the races equally (interracial marriage)

• Strict scrutiny
• court-ordered race-based remedies: courts are empowered to use race-based remedies to redress past de jure discrimination; but scope of remedy is limited by the scope of violation
• voluntary affirmative action plans: govt agencies can have a compelling interest in specifically correcting their prior discrimination against minorities; a plan will not survive on the basis that it is making up for past societal discrimination (must be precisely tailored)
• racial preferences in university admissions: achieving a diverse student body is a compelling interest but narrow tailoring is req'd (not quotas; may only be a factor); BUT - use of race in assigning students in elementary and high schools found invalid b/c in pursuit of racial balancing and not an individualistic assessment

• Rational Basis
• Congress has broad power to control immigration & naturalization, federal discrimination against aliens (denying noncitizens fed welfare) is judged by rational basis

• Strict Scrutiny
• for state and local govts, there can be no requirement of US citizenship for private employment, rights to own property, or govt benefits

• States may require US citizenship for govt policymaking or policy implementing positions
• includes all law enforcement personnel, and public teachers (not notary public)
• Non-citizen may also be barred from participating in the govt process

• Intermediate scrutiny
• laws based on prejudice against illegitimates (barring govt benefits) will be struck down
• but for intestate succession the states have substantial interests in the just and orderly disposition or property at death so laws limiting illegitimates are valid - but illegitimate must have a reasonable time period w/in which to establish paternity

• Mid-level scrutiny
• men & women may claim protection against unequal treatment
• Exs: custody, alimony, professional and employment opps, receipt of public benefits, male only military colleges
• Exceptions:
• 1. Bona Fide Affirmative Action - but the state must actually prove that a specific program favoring women was aimed at and actually operates to make up for past discrimination against women
• 2. Real Differences - men and women are not similarly situated (male only draft, statutory rape)

• Rational basis
• exs: intelligence, wealth, age, mental or physical disability, drinks, smokes
• possible to fail test if based solely on fear, hatred, or ill will

• if oyu are dealing with a fundamental right, the test is some form of strict or heightened scrutiny NOT rational basis
• rights that are fundamental for due process are fundamental for equal protection

fundamental privacy right but only substantial burdens or unreasonable conditions

• fundamental privacy right
• right to buy
• married have right to use

• fundamental privacy right
• 1. prior to viability, the govt may not impose any undue burden on a woman's choice to terminate a pregancy; undue burden = substantial obstacle (requiring consent of husband, publicizing names of persons seeking); not undue - informed written consent, 24-hour waiting period, viability tests - can ban "partial birth" procedure; don't have to finance
• 2. after viability - govt may regulate substantially and prohibit abortion but must have exception to save mother's life or preserve substantial health interest

• right of possession only - not to sell, buy, transport
• can't involve children

• rights of parents to raise their children
• right to maintain a relationship with your child
• right to live together as a traditional family

• competent, adult person
• balancing test weighing the state's reason for intervening against the individual's liberty interests
• may require vaccinations
• may require clear and convincing that unconscious wanted life-sustaining to be withdrawn

• substantial protection to adults in deciding how to conduct private lives pertaining to sex
• but no right to engage in adultery, inces, prostitution or assisted suicide

• Right to vote: states have broad power to prescribe residence, age, and citzenship qualifications; but more onerous restrictions are invalid
• One-Person, One-Vote: in all state & local elections, voting by districts must be apportioned to guarantee one-person one-vote but deviations of up to 16% have been permitted; state's burden to prove need for the deviation; in federal elections to House is req'd - deviations under 1% have been invalidated; Racial Gerrymandering (strict scrutiny); Political Gerrymandering (must show motive was to lock out and effect has or will do that)
• Access to the ballot: although a state may adopt reasonable ballot access requirements to insure a person has some degree of electoral support, exclusionary policies will be struck down

• migration
• to move from one state to another and state laws trying to prevent or burden severely will require a strong govt justification
• durational residency requirements - important benefits are invalid but lesser important and not permanent then waiting periods up to one year will be upheld
• fixed or permanent distinctions among residents are invalid

• Vagueness: if a person of common intelligence could not know what behavior is prohibited (unconstitutional)
• Overbreadth: if it prohibits substantially more expression than is necessary (unconst)
• Prior Restraints: enjoins speech before it is uttered (as opposed to after); greatly disfavored, heavy burden to show a prior restraint is necessary to prevent direct, immediate, and irreparable harm

• Content Control: unless speech falls into a special category of unprotected expression or govt shows a compelling need the govt may not restrict a person's opinion, message, or ideas; content protection includes the freedom not to speak and symbolic expression, if the govt is aiming at the message
• Time, Place, Manner Restrictions: if govt reg doesn't aim at content but affects expression only indirectly as a by-product of regulating other conduct (designating where you can march or whether you may use a bullhorn) it will be judged under more lenient time, place, and manner standards

• 1. Content Neutrality (little or no executive discretion to remain valid)
• 2. Substantial Alternative Opportunities for the Speech to Take Place (generalized ban on all residential picketing is invalid; las prohibiting targed picketing focused on a single residence is valid)
• 3. Law Narrowly Serves a Significant State Interest

• rare that any content restriction on speech will be upheld
• content controls are subject to strict scrutiny - compelling state intrest and no other way to achieve that interest
• flag descrecration law - invalid
• ban on campaigning at polling place - valid
• controls on campaign expenditures - invalid
• controls on campagin contributions - valid

• Sepcial Categories as Exceptions to Usual Content Rules
• 1. Speech Inciting Immediate Lawless or Violent Behavior: govt has no power to control mere advocacy of lawless or violent behavior; govt may punish and prohibt speech that is directed at inciting and which is in fact likely to incite imminent lawlessness. But hostile audience problem - a speaker may not be stopped unless the crowd's hostility presents an imminent danger of uncontrolled violence.
• 2. Fighting Words or Hate Speech; True Threats: words by their very utterance inflict injury or tend to incite an immediate breach of the peace; narrowly defined; must be directed; courts routinely strike doewn laws banning fighting words or hate speech as unconstitutionally vague or overbroad; true threats are not protected speech - speaker means to communicate a serious expression of intent to commit an unlawful act of violence
• 3. Obscenity: may be criminally proscribed and prohibited if 1) average person applying community standards would inf whole work appeals to prurient interest (sexy), 2) work depicts or describes in a patently offensive way, sexual conduct specifically defined byt he applicable state law (sickening, specifically), and 3) whole work lacks serious literary, artistic, political, or scientific value. If not obscene, govt may 1) limit availability of sexually explicit materials to minors and use of minors in creating 2) use zoning to prescribe where adult entertainment may operate (substantial interest needed and must remain available - aims at secondary effects)
• 4. Libel and Defamation and Invasions of Privacy
• 5. Commercial Speech: enjoys 1st am protection but govt may regulate and prohibit false, misleading, deceitful or proposing unlawful txn and if anything else it must prove that it advances a substantial govt interest and is narrowly tailored (not strict scrutiny)

• press has same rights as everyone else
• press rights are the rights of the owner or publisher, not the readers or person who are criticized in the press

• 1. Expression in a Non-Public Forum: most govt property is a non-public forum. Govt may limit content speech to the subject to which the property has been dedicated. Time, place, and manner controls regulations in a non-public forum will be upheld if they are reasonable. Exs of nonpublic govt property - schools, military bases, jails, govt work, govt airports, govt telepone polls, sidewalks on USPS property.
• 2. Speech of Public Employees: other than high-leve policy-makers/advisers, ee's may not be hired or fired based on political party affiliation/philosophy or any act of expression. If ee's are speaking as citizens about "public concern" they may not be fired/disciplined unless their speech disrupts, undermines, or destroys. Govt may limit the right of public ee's to engage in partisan political activities relating to political management and campaigning.
• 3. Speech of Students in schools: Schools may prescribe course content. Schoo may set standards of decency in discourse. In non-curricular setting, school may prohibit or punish materially disruptive speech.

• Govts may not punish for belief or rquire profession
• in proper context (conscientious objector status) the govt may inquire into the sincerity of your beliefs but not the truth of beliefs

• Laws Aimed at Religious Behavior or Conduct: unless govt can prove that laws aimed at religious behavior are necessary to a compelling state interest (strict scrutiny) it may not single out, prohibit, or punish religious behavior b/c it is religious or performed by a religious group.
• Generally Applicable Laws that Happen to Affect Religious Practices or Conduct: valid and the govt is not constitutionally obligated to provide religious persons w/ an exemption from the law

• 1st Am prohibits laws "respecting the establishment of religion"
• The govt is to remain neutral respecting religion and neither "aid one religion, aid all religions, or prefer one religion over the other"
• Test: neutrality and no endorsement
• modern court asks about neutrality and whether refrain from endorsing religion
• older cases use three part test and failing any part is establishment - 1) secular purpose 2) primary effect must neither enhance nor inhibit 3) no excessive entanglement

• Benign forms of assistance are ignored (historically accepted or provide generally available govt benefits)
• ok: property tax exemptions for churches - available to charities; Sunday closing laws - promote secular goal of a day of rest
• not ok: benefits not generally available to the public; law allowing churc hto veto issuance of liquor license; law exempting only religious publications from sales and use taxes

• can claim the secular purpose of assisting in the educational needs of students
• vulnerable if primary effect is advancing religion or excessive entanglement w/ religious groups
• primary effect likely found with aid thta is not generally available but esp designed for religious schools
• excessive entanglement likely found when the state gives aid that can be used for religious or secular activities and the stat has to closely monitor the use
• courts are more likley to uphold govt aid to religiously affiliated institutions of higher eduction since it is unlikely that such aid will be used or seen as being used to advance religious purposes

• 1. Establishment Clause prohibits govt sponsored religious exercises and prayers in the public schools
• 2. Govt may not sponsor religious displays on public property if a reasonale observer would conlcude that the govt is endorsing religious messages