First Amendment
Are trademarks public or private speech?
Private. (Matal v. Tam)
Does negligence count as a "deprivation" in a DP analysis?
No. Purpose of DP Clause is to protect from arbitrary abuses of power. Failure to use ordinary care does not equal arbitrary abuse of power. See e.g., Daniels v. Williams; Davidson v. Cannon)
What is a fundamental right?
Rights so important that the government must pass strict scrutiny to infringe them. Found in the word “liberty” in the Due Process Clause
Invidious vs. Benign discrimination
Invidious--> unfair, unjust (connotes jealous, things that cause resentment, tentacles that invade your mind)
Benign --> not harmful, or even good. (discriminating in its favor)
T/F: There is no “property” right to enforcement of court order.
True. (Castlerock v. Gonzalaz)
Brandenberg test for Incitement
Government can’t punish advocating for the overthrow of the federal government unless it's: “directed to inciting…imminent lawless action, AND” likely to incite or produce such action. (Brandenberg v. Ohio)
Does failure to protect from private harm count as a deprivation in a DP analysis?
Nope. No affirmative “liberty” right to government aid. See, e.g., DeShaney; Castlerock
What's the test for whether a right is fundamental under Substantive Due Process?
A right is fundamental if it’s (1) “deeply rooted in this nation’s history and tradition” AND (2) “implicit in the concept of ordered liberty”
T/F: 14th Amendment applies to people generally, not just citizens.
True. (Yik Wo v. Hopkins) Equal protection is denied when a facially neutral law is applied unequally among similarly situated people. A facially neutral law that is applied in a discriminatory manner on the basis of race or nationality violates the Equal Protection Clause
What case put an end to the Lochner era?
West Coast Hotel v. Parrish
What analysis do we use for content-neutral & expressive restrictions?
Intermediate scrutiny (significant gov. interest)/O'Brien Test
Holding in Goldberg v. Kelly
Court held that states must afford public aid recipients a pre-termination evidentiary hearing before discontinuing their aid. Court weighed welfare recipients' need for procedural DP against the competing considerations of the possible harm they might suffer from discontinuation and the government's interest in summary adjudication.
HYPO: Abortion is banned outright in Alabama. Alabama further passes a law that bans women from traveling out of state to get an abortion. In a post-Dobbs world, will this law likely be held up as constitutional?
No. While there is no fundamental right to an abortion, there is a fundamental right to travel within the United States.
T/F: Benign affirmative action in college admissions passes strict scrutiny.
False. In Harvard, the universities couldn’t demonstrate their compelling interests (diverse student body) in a measurable way, failed to avoid racial stereotypes, and did not offer a logical endpoint for when race-based admissions would cease. (as set out in Bakke and Grutter)
The modern 2nd Amendment test we get from Bruen
"text, history, tradition"
government must show the regulation is “consistent with the Nation’s historical tradition of firearm regulation” through analogical reasoning
the government cannot compel an artist to say something they don’t believe/communicate the gov.’s preferred message
Define what a "property interest" in government employment is
Reasonable expectation of continued benefit/employment (even beyond the contract) Sindermann
T/F: there is an implied fundamental right to be free from governmental conduct that shocks the conscience
True. See Rochin v. California (pumping suspect's stomach to obtain contraband violated suspect's DP rights to be free from governmental conduct that "shocks the conscience"
Rational basis vs. Rational basis w/teeth ("bite")
W/teeth is more rigorous, less deferential form of the traditional rational basis test used by courts to strike down laws based on animus or prejudice against specific groups, rather than legitimate public interests.
Clarence Thomas' dissent in Virginia v. Black re: cross burning as speech
It shouldn't be protected because it's terrorism and terrorism doesn't have 1A protection
What's the 2 part test we get from Counterman for analyzing True Threats?
(1) objective component—is the statement a “serious expression conveying that the speaker intends to commit…violence?” AND (2) subjective component—did D understand that his statements were threatening? (i.e. did they have the requisite mens rea)
Matthews balancing test for determining which procedures are required?
(1) Importance of the private interest
(2) Risk of erroneous deprivation (and probable value of additional safeguards)
(3) government’s interest (e.g., cost, admin. Burdens)
Is there a fundamental right to...
1. Refuse unwanted medical treatment
2. Education
3. Procreate
1. Maybe (Cruzan)
2. No (San Antonio Independant School Dist.)
3. Yes. (Skinner)
What scrutiny applies to:
1. Mental disability?
2. Age?
3. Undocumented children?
1. Rational basis with teeth
2. Rational basis
3. Intermediate scrutiny
The foundation for modern strict scrutiny framework came from _______________.
Carolene Products Footnote 4