- 1) imminent illegal activity
- 2) directed to cause the activity
- 1) appeals to the prurient interest [lustful excitement]
- 2) patently offensive [local laws]
- 3) lacks all social value [nationally]
- 1) deceptive, false, illegal actvity - unprotected
- 2) else, IS applies
- Speech related to matter of public concern . . .
- 1) if P is a public figure, then falsity + malice. [CCE standard]
- 2) if P NOT public figure, then falsity + negligence.
- If matter of public concern, malice must be proven to get presumed or punitive damages.
- If not a matter of public concern, malice not required to get presumed or punitive damages.
- 1) content-neutral
- 2) IS
- 3) leaves open other adequate alternative places for communication
- else, SS
- 1) viewpoint neutral
- 2) reasonable
- else, SS
- Heightened scrutiny
- 1) IGI
- 2) burden no greater than necessary to acheive purpose
Freedom of Association
- Generally SS if pohibits or punishes a group.
- Can prevent a group from discriminating, unless discrimination is integral to expressive activity
Punish someone for joining an illegal group?
- 1) actively affiliated w/group
- 2) knowing of its illegal activities
- 3) specific intent to further those activities
Free Exercise Clause
- Govt cannot punish or burden on the basis of religion
- SS, if law was motivated by religious reasons
- Govt cannot make any laws establishing a religion
- If facially establishes, then SS applies.
- If facially valid, then Lemon test applies.
- Lemon Test:
- 1) Secular Purpose
- 2) Secular Effect
- 3) Excess Entanglement
Levels of scrutiny?
- SS: Necessary to acheive a CGI
- IS: Substantially related to acheive a LGI
- RB: Rationally related to a LGI
Substantive Due Process
Whether the govt has adequate justification take away someone's rights [economic liberties/privacy]
SDP - rational basis applies to?
- Non-fundamental rights
- 1) economic regulations
- 2) social regulations
SDP - strict scrutiny applies to?
- Fundamental rights, including
- 1) interstate travel
- 2) voting
- 3) privacy
SDP - privacy rights?
- 1) contraception
- 2) marriage
- 3) procreation
- 4) child rearing, regarding choice of private education
- 5) right for a family to stay/live together
SDP - abortion rights?
- 1) pre-viability, OK only if no undue burden
- 2) post-viability, can be prohibited unless woman's health is threatened
Procedural due process
- P must prove that he suffered a deprivation of life, liberty, or property.
- liberty = constitutional freedom
- property = entitlement to a continued receipt of benefit
- *note: must be intentional/reckless govt action
Procedures satisfy PDP?
- 1) importance of interest to individual
- 2) ability of additional procedures to increase the accuracy of fact-finding
- 3) govt's interest
- 1) Govt may take private property
- 2) for public use [reasonable belief]
- 3) if it pays just compensation [market value, loss to owner]
confiscation or physical occupation of property
Deprivation of all economically viable use of property