Constitutional

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Constitutional Rights and Responsibilities
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Constitutional Analysis Techniques Is it
constitutional?
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Is it constitutional? STEP 1 State Actor?

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Is it constitutional? If no, (Non State
Actor), no rights are guaranteed.

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Is it constitutional? If yes, (State Actor),
proceed to Step 2.

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Is it constitutional? STEP 2 How important
is the right being violated?

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Is it constitutional? If non-fundamental,
mild scrutiny is all that is required.

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Mild Scrutiny Rationally related to a
Legitimate State Interest

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Is it constitutional? If fundamental,
strict scrutiny is all that is required.

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Strict Scrutiny Necessary to
accomplish a Compelling State Interest

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Constitutional 1ST amendment rights
are fundamental.
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1st Amendment Congress shall make no
law respecting an establishment of religion,
or prohibiting the free exercise thereof or
abridging the freedom of speech, or of the
press or the right of the people peaceably to
assemble, and to petition the government for a
redress of grievances.
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• Freedoms of speech, press,
• petition and assembly guaranteed
• by the 1st Amendment must be
• accorded to the ideas we hate
• or sooner or later
• they will be denied
• to the ideas we cherish.
• Justice Hugo Black (Dissent in Papish)

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1st Amendment AnalysisStep 1. State Actor? If
yes, proceed to step 2.Step 2. First amendment
rights are fundamental so strict scrutiny
applies. (Necessary to accomplish a
compelling state interest.) Permissible
Exceptions to 1st Amendment Protections
fighting words - (content) pornography -
(content) public v private property alters
the level of restrictions (logistical
delineations as to time, place, etc.) -
(form)
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?

• So? In real life. . .
• Abusive fans at a game.
• Rude students in a classroom.
• Vile student newspapers.
• Defamatory internet pages.

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• Conclusions
• Among entities required to respect
• constitutional rights (state actors)
• speech codes are typically
• unconstitutional.
• Speech codes limiting only form,
• not content, on private property
• have best chance of being
• constitutional.

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Try evaluating school prayer. What are the
constitutional issues?
?
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• Freedom to differ is not limited to things that
  do not matter much. That would be a mere shadow
  of freedom.
• The test of its substance is the right to differ
  as to things that touch the heart of the existing
  order. If there is any fixed star in our
  constitutional constellation, it is that no
  official, high or petty, can prescribe what shall
  be orthodox in politics, nationalism, religion,or
  other matters of opinion or force citizens to
  confess by word or act their faith therein. If
  there are any circumstances which permit an
  exception, they do not now occur to us.
• Justice Robert Jackson, 1943

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Due Process 5th Amendment 14th Amendment
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Due Process No life, liberty or property
interest can be terminated by a state actor
without due process.
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Equal Protection 14th Amendment

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Equal Protection No state actor can categorize
and then treat categories differently.

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Equal Protection Suspect Classifications

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Equal Protection Suspect Classifications

Race Alienage National Origin
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Equal Protection Suspect Classifications Sus
pect classifications by a state actor
require strict scrutiny.