Keane_ConLawII_Answer_SP11

Keane_ConLawII_Answer_SP11 - ID...

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Unformatted text preview: ID: ConLaw2_LS1_Keane_Final_2011$L Keane _——______________-__———————————— ID: (Exam Number) Exam Name: ConLaw2__LS1_Keane__Final_20118L Instructor: Keane Grade: Page 1 0H ID : ConLaw2_LS 1_Keane_Fina l_2 0 1 ISL Keane 1) Note: I use the abbreviation "gov't" throughout this essay to indicate "government" Essay One The first issues come from the assortment of local statutes which Susan (S) and other members of the group were charged with: Demonstrating without a permit This conviction could also be challenged on the basis of infringment on the demonstrators' free exercise of religion. The 1st Amendment prohibits the gov't from inhibiting mmthe Free Exercise Clause. which applies to the states through the 14th amendment. The court will not try to determine whether something is a true religion or not, but instead will just determine if the person has a "K sincerely held belief in something that holds the place of religion in his/her life. The f/ Free Exercise Clause (FEC) applies when: [/ x" / 1) The gov't prohibits something that someone's religion requires, 2) When the gov't requires something that someone's religion prohibits. or 3) When a law burdens religious observance. In Smith. the court held that if a law is a neutral law of general applicability, howeve / Page 1 ol18 (Question 1 continued) ID ConLaw2 LSl Keane Final 20118L Keane then it will not violate the Fr Exercise Clause. in this case. the requirement that demonstrators obtaIn a p £1: is/not motivated by a desire to inhibit religion (so it is neutral) and it does not talet a, religion (so its generally applicable). Therefore. the lawi must just meet rational basis to be valid, which means the regulation must be i reasonably related to a legitimate gov't purpose. In this case, the city most likely has this law to ensure that multiple demonstrations aren't scheduled for the same time and f 1 place. that they are held at reasonable hours. and that they do not interfere with other i city activities. The court just needs to find some legitimate purpose for hte law. even if I L, , it wasn't the city legislature's purpose, so this ordinance will likely be upheld and S and L the other members can be prosecuted under the law for not having a permit. In terms of the permit reqwent itself, another argument could be made challenging “WV/”fl“ the permit but it will also fail. Governmenttgbv't) property is divided into 3 different types: L1) Public forums, which are constitutionally open for speech-related activities and include streets, sidewalks. and parks; 2) Limited/Designated public forums, which the gov't has affirmatively and g intentionallyopened for speech-related activities; and i 3) Nonpublic forums, which the gov't has not opened for speech-related activities and therefore can restrict as long as teh regulates are reasonable and viewpoint neutral. i l l i There Is also private property which does not involve any state action and Is therefore i‘ t Page 2 of18 (Question 1 continued) ID: ConLaw2_LSl_Keane_Final_20llSL Keane not open for speech based on the 1st Amendment. Courts weigh a number of factors to determine what kind of forum gov't property is, including the traditional uses of the property, whether the primary purpose of the property is for speech. and the extent at which speech is incompatible with the usual uses of the property. In this case, i l l however, the demonstratiorLgccurred on the streets outside the geriatric homes and _; therefore are considered traditional public forums. Gov' an only restrict speech In E - i these areas if they are content neutral time, place, nrms that meet k, intermediate scrutiny and leave ample alternative places or c mmunIcatIon The restrictions applied to the group in this case is likely a valid time, place, and nner restriction because it does not restrict based on the content of the emonstrations- it requires a permit for all groups (as far as the facts say). Additionally, I/ the restriction would pass intermediate scrutiny, which requires af/Important gov't\ purpose and that the regulation be substantially related to that bp'ortant gov't purpose. The government's important public purpose for requiring a demonstration may be that it doesn't want demonstrations to last all through the day and night, like the demonstrations last here, especially when bullhorns are used. This regulation would e ff substantially related to that purpose because it would require people to get a permit p/lbefore they would be allowed to demonstrate, allowign the gov't to set time restrictions for groups. Finally, there are amflematives for speech- the group could receive a permit and then stIll' demonstrate and even if the permit limited the time In which they demonstrated, 5‘1)! not between the hours of 12am-6am, then this will still leave 18 hours to demonstrate. All In all, assuming that the permitting requirement leaves such '\ ample opportunities open for communication. there is a clear criteria that the permitting 1 Page 3 of 18 l (Question 1 continued) ID: ConLaw2_L81_Keane_Final_20llsL Kean‘e official bases his decision orytand doesn't leave him with unfettered discretion to censor). and there are procedural safeguards' In place for applying for and appealing g the permit. this Is a valid regulation and group can be prosecuted under it since they didn't have a permit. even though they were demonstrating in a public forum. Fighting words The 1st Amendment protects the freedom of speech for four important reasons: 1) It furthers self governance, 2) It aids int eh discovery of truth in the marketplace of ideas, 3) It furthers autonomy and personhood. and 4) It promotes tolerance in our diverse socieyt. g. Some speech, however does not promote these ideals and therefore has little valfe' In I!“ A society and it unprotgaail/ Fighting words, which‘are words that are directed at 777/” Evo/ ”.m—H—aarm—v-‘fim 1 specific person and are likely to invoke a violent response, are unprotected spee this reason. Fighting words laws have otbe‘e’n upheld since Chaplinsky because although fighting words are unprotected speech that the gov't can regulate, the laws cannot be vague, overbroad. or, if they are content-based, they must meet strict scrutiny. Based on one or more of these flaws. all fighting words laws since the \ ,4‘ I Chaplinsky case have been struck down by the courts. Nevetheless, assuming that ”:1 i fighting words statute in this city is somehow not unconstitutional based on one of tho usual reasons, then the next question is whether the words yelled by S and the other members are fighting words. None of the Words shouted at the geriatric homes were Page 4 of 18 (Question 1 continued) ID : ConLaw2_LS 1_Keane_Fina 1_2 0 1 18L Keane I m, ._ -m- directed at a specific person. but instead. as eviderfied by the text of the words and the fact that they were yelled generally at the homeffthrough a bullhom. the words were directed at all the people inside of the homes, that they should kill themselves. Therefore, these are not fighting words for which Susan and the other members can be convicted and their speech is protected. lncitement of Illegal Activities ‘ Advocacy can only be punished if it can be shown that the activity advocated is for is “4 / \. __,,_ intends for this imminent harm and illegal activity to occur. Here S and the other likely to causeimminent illegalflarm andtheperson who is advocating these things members are advocating that the old people kill themselves or are using the words to try to provoke death of the old people and clearly intend for this to happen since they shout this stuff 24 hours a day. in rotating shifts, through a bullhom. The uncertain \ thing to prove, h ever, is whether their relentless shouting is really making it more = likely that the olae’ople will commit suicide or die from sleep deprivation. Most likely ‘ this is not the case. since it seems unlikely that many old people would think that they would really go to hell if they dldn't kill themselves before age 65 and dying from sleep :3; deprivation also doesn't seem likely. Therefore. this conviction also will most likely not be upheld without more evidence of the actual effect of the demonstrations on the old people in the homes. -( WWW“. ‘- ”MM” Group Libel Page 5 of 1a (Question 1 continued) ID: ConLaw2_LS1_Keane_Final_2 OllSL Keane Defamation (libel and slander) is not protected speech under the 1st amendment. More specifically, group libel,is not protected speech under the 1st amendment and therefoje k.vw,fw””" A ' ‘ ,_ .. ‘ . the gov't can regulate it as long as the law is not vague. overbroad, or content based (and then it just needs at meet strict scrutiny). Therefore, the suit for group libel against M .H.( -4‘- ,I' V V S and the other members will likely be u h . MM war“ ”WV Inciting Violence [ Like fighting words, words that stir up an audience and creatergafiicleaLang present I l danger that the crowd is likely to erupt into violence are also not protected (undert e ‘ '// doctrine of Hostile audiences). However. in order to preserve individuals' first amendment rights to speech and assembly, someone can only be arrested for iréiting violence from a hostile audience if 1) there is 3. clear and present danger of this violence and 2) the police have tried to control the ‘audienca‘n-ddthen failed. Otherwise, the police are arresting the speaker for the illegal actions of other an violating his constitutional rights. In this case. there is no evidencetbat-the old people / were at all "stirred up" or that there waaneflhat they were going to \ react violently. If there was, then the police had the responsibility of trying to control them first and the facts do not show that this happened either. Therefore. S and (the \ other members cannot be prosecuted for inciting violence. \ /l i I The next issue is whether Susan can successfully sue the newspaper and , reporter for libel iv]! Page 6 of 18 (Question 1 continued) ID: ConLaw2_LS 1_Keane_Fina1_2011SL Keane New/Ix ork Times v. Sullivan applied 1st amendment freedom of speech protections to V-‘ tort liability because requiring the speaker to‘prove truth of the statement as the only I defense to a defamation or other civil liability suit involving speech was seen as something that would chill speech. Therefore, the court put forth a new standard that must be met in a defamation suit that includes either a public figure/official and/or a matter of public concern. A public official is a gov't official of some kind, though the court has not determined how far down on the ladder of responsibility one can go in l order to still be a public official. A public figure is someone who has intentionally and» “4—- affirmatively "thrust" herself into the “fight in order to influence an issue or otherwise be in the public eye. A matter of public concern is one that the public is legitimately 4 interested in. in this case, Susan is not a public official because she does not hold any sort of gov't l office (she is a data processing clerk). She may be a public figure, however, depending on how much news coverage the rallies are getting for her religion and whether the court determines that she has thrust herslef into the spotlight regarding her religiou :5 views and how people over 65 years old should kill themselves. This is likely a matte ,1 of public concern because these demonstrations are happening at multiple geriatric “Va—w. ..... homes and hey last all through the night. Defamation suits are only actionable against l statements. however. not mere opinions. Therefore, while the statement that she is the k’iounder of this group is likely actionable. the opinion that she is a murderer who deserves to be a death row is the opinion of the newspaper and reporter. so it is not Page 7 of 18 (Question 1coniinued) ID: ConLaw2_LS1_Keane_Fina1_20 1181.. Keane actionable for libel. Fifi S is a public figure and this is a matter of public concern, then she will use the :' A. standard set forth by NYT v. Sullivan for her case- she must prove, by clear and i convincing evidence (more than the usual standard of preponderance of the eviden n i for defamation suits) that the statement was false and made with action malice. Actual malice requires the plaintiff to show that the person wholih/ayethe statement either knew it was false or acted with reckless disregard for the truth. The facts say that the statement (that she is the founder) was false. but no facts exist to determine whether the newspaper or reporter knew that the statement was false or thought there was a substantial likelihood as to its falsity. This will be a matter for the court to decide with l more evidence. if the court finds that the newspaper and reporter acted with actual l malice, they will be liable to S for both compensatory and punitive damages. \. \- . \ . t r /r l¥S/s only a private figure and this is amatter of public concern in order to recover ’M/ K..- ~—- : compensatory damages against the newspaper and reporter she will need to sho th t the statement (that she was the founder of the group) was false and it was made with at least negligence as to its falsity. The facts say that the statement was false, but there are no facts regarding whether or not the newspaper or reporter had any idea that the statement was false. If S can show that the newspaper reporter heard that she wasjthe founder from some guy at a bar and didn't check the truth of the statement. or some/g o, other scenario where the reporter should've checked on the truth of the statement but didn't. then the court will likely: find that the reporter was at least negligent as to teh L falsity of the statement and S can recover actual damages for libel. If the reporter did Page 8 of 18 ,r’ I {Question 1 continued) ID : ConLaw2_LS 1_Keane_Fina1_2 0 1 ISL Ke e his research well. though. and was not negligent, then she cannot recover for libel as a \ private figure. \ l ! E If S Is a private figure and she gable to recovflaetial damages, she can only recover punitive damages if she cays'o p five actual malice, as described above. Again there are no facts saying whether or not the reporter knew the statement was false so this will be up to the court to decidewjth more evidence. As described above, mere opinions are not actionable, so "S is a murderer who deserves to be on death row" is not something that S can sue the newpaper and reporter for. .The next issue is whether 8 can be compelled to tell her supervisor in writing that she doesn't belong to that organization. The 1st amendment p tects not only your freedom to speak, but also your right to remain silent. There re someone can only be compelled to speak if it can be shown Vere/Mrs an a clear and present dangfo f imminent harm if someone does nogspeak. In this case, it Is extremely unlikely that S's supervisor will be able to show any such harm, especially since her job as a data processing clerk has nothign to do 1 with the message of the religion, so she cannot be forced to make such a statement. The next issue is whether S's due process rights were upheld who she was regains /‘ (Question 1 continued) ID: ConLaw2_LSl Keane Final 20118L Keane ._ _ _ fired. i A g The Due Process Clause of the 5th and 14th amendments prohibits the gov't from i Ldepriving any individual of life liberty or property without due process of law. There \ are three questions that go into determining if someone' 5 due process rights were upheld: 1) Was there a deprivation7- this must be intentional or deliberate deprivation by the gov't. l 2) Was it a deprivate of life, liberty. or property? ’ 0‘ I" 3) Was there due process of law? Due process requires notice and a hearing in front of ‘ a neutral decision maker and the extent of the hearing will depend on the extent of the I\ deprivation. “m" In this case, S will argue that she was deprived of her property rights in herjob. A \ \ \ property right is something that someone is legally entitled to and has more than a mere ‘ desire or need for. If S was an at-will employee. then she can be fired without cause and no due process is required! Assuming she is a "cause" employee for this question, however, then some sort of dui’e/process is requried in order to fire her, possibly such as the termination hearing that the agency offered her. In order to determine the extent of the procedure that is required and if the proposed hearing is sufficient. the court 4" /' balances (factors from W» 1) The interest to the individual. F 2) The extent to which the procedures will increase the accuracy of the fact-finding. and L Page 10 of 18 (Question 1 continued) ID: ConLaw2_LS1_Keane_Final_2 OllsL Keane 1* 3) the deprivation to the gov't. In this case, S's interest in this job is likely very high- it is how she makes a living to pay\ for food, rent, etc - and so waiting 2 months (60 days) before the hearing may be too . long. The procedures proposed by the agency for prong #2 do not seem sufficient to increase the accuracy of the fact-finding and determine whether or not she should be fired- giving complete discretion to the hearing officer who already fired her may not ~ actually increase the accuracy at all because he may not be a neutral hearing officer if .5 he already told her she had to tell him in writing that she didn‘t belong to the organization. then he fired her, and now she received this hearing after demanding it. Therefore, more extensive procedures with a different objective for the procedure may be required by the Mathews test, plus a different decision maker. Finally, the deprivation to the gov't is probably relatively high because all procedures like this require a certain amount of administrative and procedural costs. However. given that the hearing officer may not be neutral and jhe procedures will not increase the accuracy of the fact-findingf'thercourtimay find that tt®csed termination hearing will not give S her due process rights guaranteed by the Constitution and different procedures are required (i.e. different decision maker, more extensive objectives for the hearing). Essay Two 1) The Equal Protection Clause (EPC) of the 5th and 14th amendments prohibits the gov't from picking out a group of peop nd treating them differently without sufficient m Page 11 of 18 (Question 1 continued) ID: ConLaw2_LS 1_Keane_Final_20118L Keane /,-—~‘ A \ cause. To determine if the gov't has sufficient cause, three questiOns are examined: 1) What is the classification? 2) What level of scrutiny does this classification receive? 3) Does the gov't action meet this level of scrutiny? In order to determine if a group is a suspect class that receive heightened scrutiny, the court will consider four factors: whether the as immutable characteristics that the people are born with and do not affect their ability to function in soceity; whether the group is politically powerless; whether there is a history of discrimination against the group; and whether actions against the group likely reflect prejudice. ,.——K i In this case, alienage is a suspect class when referring to state actions because of the \/ 5 long history of discrimination and political powerlessnessfiftha'oup, plus the fact that l. regulations against the group often reflect prejudice and stereotype . At the state level, \ alienage is a suspect class that receives strict scrutiny because the federal gov‘t has plenary power over for gn a ' regulations including classifications based on alienage jus eeo - n- = rational basis. which. as described above. requires the court to find some I ; imate purpose for the law. This law is facially discriminatoryijayace, it treats aliens differently than non-aliens. However. since this is a eral statute. itjust needs to meet rational basis. The court could find a legitimate purpose behind this law. such as the gov't wants to make sure that immigration and deportation proceedings only include Iawye who hav...
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