Amendments Flashcards
Takings Clause
5th Amendment
1) Direct gov. appropriation
2) Regulatory Taking
3) Temporary Restrictions
4) Conditional Permits
Regulatory Taking
General –does it deprive property owner of all econ. beneficial use of land?
Balance (Penn Central):
-Economic impact
-Inference with investment-backed expectations re: land
-Character of gov. action
OR
Regulation req. permanent physical invasion (ex. cable lines) = almost def. taking
Taking: Conditional Permits
= condition on permit for land development
Need
1) logical nexus b/tween condition + gov purposes AND
2) rough proportionality b/tween impact and gov. objectives (can’t just say it’s a good idea, will have x benefit + little disadvantages)
13th Amendment
Bars slavery
Can be used to regulate individuals, not just state action
14th Amendment
Prohibits states from violating
1) due process,
2) equal protection of the laws
3) privileges or immunities
Requires state action (not individ.)
ONLY IF
1) Widespread violations by states AND
2) “Congruent + proportional” to violations
15th Amendment
Prohibits states from discriminating with respect to race in voting
Requires state action (not individ.)
ONLY IF
1) Widespread violations by states AND
2) “Congruent + proportional” to violations
Privileges and Immunities Clause v.
Privileges or Immunities Clause
Priv. and Immunities = Art. IV–prohibits state discrimination v. non-residents re rts/activities fund. to nat’l union
Privileges or Immunities Clause = 14th A–priv of U.S. citizenship–v. limited
-Travel across states + estab residence in new state
-Petition Congress
-Vote for fed office
-Assemble
-Enter public lands
24th Amendment
No poll taxes
26th Amendment
Right to vote if 18 or older
19th Amendment
Cannot discriminate on basis on sex re: right to vote
Constitutional Limits on Right to Vote
-
r. residency + voter registration reqs
-r. time place and manner regs
-Deny felons rt to vote
-In elections for entities dealing w/ specific matters (ex. water district + all the reps will do is deal w/ landowner water allocation)–can limit who votes to ppl with interest
-Limits on who votes in primary
CAN’T have standards that are too vague/lack uniformity
Brandenburg Test
1) Aimed at producing imminent lawless action
AND
2) Likely to produce such action
Fighting Words (Chaplinsky)
Words likely to incite an ordinary citizen to commit acts of physical retaliation
Statute cannot be vague, overbroad
Hostile audience speech
If speech incites an immediate violent response v. the speaker, may be unprotected
But must make r. efforts to protect speaker–guard v. heckler’s veto
Police didn’t do enough to protect–can’t arrest for disturbing peace, etc
Obscenity Test
1) Average person, applying local contemporary community standards would find work, taken as a whole, appeals to the prurient interest AND
2) Depicts, in patently offensive way, sexual conduct specifically defined by state law AND
3) Work, taken as a whole, lacks serious literary, artistic, political, or scientific value under a national standard
Commercial Speech Test
False/deceptive = no protection
Not false/deceptive = ONLY IF
1) Serves sub. gov interest AND
2) Directly advances sub. gov interest AND
3) Not more extensive than necessary to serve interest
Secondary Effects Test
Indecent speech protected, but can reg if secondary effects (ex. zoning re: adult theaters, ban on nude dancing in clubs)
Must
1) Serve sub. gov interest AND
2) Leave open reasonable alternate channels of comm.
Time, Place, and Manner Test
Reality–same test as O’Brien/expressive conduct
1) Content + viewpoint neutral AND
2) Narrowly tailored to serve important gov. interest AND
3) Leave open alt. channels of comm
O’Brien Test
Expressive conduct–essentially same test as TPM test
1) Further important gov. interest that is unrelated to the suppression of free expression AND
2) Incidental restriction on speech no greater than necessary to further interest
Public Forum
Places historically associated w/ expressive conduct–ex. streets, sidewalks, parks
TPM test
Must be content-neutral AND viewpoint-neutral
Non-Public Forums
(might also be called limited public forums)
CAN be content-discriminatory if r. related to legit gov. purpose
CANNOT be viewpoint discriminatory
Denial of Public Employment for Speech
Can’t deny UNLESS
-High level policy making position
OR
1) Active member of subversive org. AND
2) Has knowledge of org’s illegal aims AND
3) Has specific intent to further aims
Public Employee Discipline/Firing for speech
Only if
1) Not a matter of public concern
OR
2) Potentially disruptive to workplace
Prisoner Speech
Can be regulated if r. related to legit penological objective
Prior Restraints on Speech
Almost always uncon–but can
-require permits
-have prior restraints re: classified military info
-Req. pre-pub. review of writings by past and present employees about their employment, if needed for nat. sec.
Permits re: Speech
Gene allowed to req. permits re: parades, marches, rallies, etc.
CANNOT have unrestricted discretion
Valid licensing stat + uncon. app = must obey denial, can’t ignore
Invalid licensing stat = don’t even need to apply, can act w/out permit
Restraining Order v. Pretrial Publicity
Weigh
1) Nature + extent of pretrial pub
2) Availability of other measures to mitigate (voir dire, venue change, postponement, etc.)
3) Likely effectiveness
Gen. disfavored if any alt option–but if issued, must obey even if wrong
Overbreadth
Cannot regulate in way that has “chilling effect” on protected speech–must be narrow + specific
Exception to usual standing rules
Vagueness
Cousin to overbreadth
Laws must be drawn with “narrow specificity”–if not, void for vagueness
