Con Flashcards
Content-Based Speech Restrictions
Generally, will be found to violate 1A.
However, gov’t may place reasonable restrictions on the time, place, and manner of speech. Reasonable only if:
(i)content-neutral,
(ii) it is narrowly tailored to serve an important government interest, and
(ii) it leaves open alternative channels of communication.
Standing (con law)
To assert standing, P must establish a concrete, personal stake in outcome:
1) injury in fact and
2) causation - relief sought must redress harm
Adequate state grounds
US SJC will not hear a case if there is an adequate, independent, fully decided state ground upon which case was decided
Third party standing
Need close relationship btwn P and 3rd party & special need to adjudicate
Full Faith & Credit
Each state (not Fed, just states) shall give FF&C to judicial decisions of every other state
- Court rendering judgment must have PJ and SMJ
- Must be a final judgment on the merits
Equal Protection - 14A v. 5A
- 14A EP ONLY APPLIES TO STATE ACTION!
- 5A DP WILL APPLY TO FEDERAL ACTION!
EP Strict Scrutiny
Strict Scrutiny:
- Burden on state. Must be least restrictive means. Needs to be necessary to achieve a compelling gov’t interest
- Protected 1A Rights
- Suspect Classes
- Fundamental Rights
Suspect Classes
RAN - Race, Alienage, National Origins
Alienage
- State discrim against alienage where participation in gov’t is involved (jury, teacher, police); only need to show rational basis
- Federal discrim against aliens is only rational basis
Fundamental Rights
Vote, Travel, Privacy (CAMPERS - contraception, abortion, marriage, procreation, education (private), relations (family), sexual conduct)
EP Intermediate Scrutiny
- Burden on state
- Substantially related to an important interest
- Gender, illegitimacy, content-neutral TPM regulations, commercial speech, symbolic speech, cable TV
EP Rational Basis
- Burden on P
- Rationally related to a legitimate gov’t interest
- Age, poverty, wealth, mental retardation, necessities of life, social and economic welfare measures
Procedural DP
Procedural protections of notice and hearing are available whenever serious deprivation of any life, liberty, or property interest.
- Usually hearing is post-termination, but pre-termination hearing for welfare
EP v. DP
EP used when some people treated diff from others; Sub DP when law effects all persons
State Action
A threshold req of gov’t conduct which must be satisfied before private discrim can be restricted under 1A, 4A, 14A, or 15A
1A Facial Attacks
Overbroad; vagueness; prior restraint; unfettered discretion
Content-Specific Speech Regulation
Where speech being regulated is protected 1A speech, strict scrutiny applies
Content-Neutral Speech Regulation
- TPM: (1) content-neutral (subject matter and viewpoint neutral), (2) narrowly tailored to further significant/important gov’t interest, and (3) must leave open alternative channels of communication
- Public forum also uses TPM test
Unprotected Speech Categories
- Clear and present danger
- Defamation
- Obscenity
- Child porn
- Fighting words
- Commercial speech
Clear and Present Danger
Speech directed at producing and likely to produce imminent unlawful conduct
Obscenity
(1) appeal to prurient interest in sex (community standard),
(2) depict sexual conduct in patently offensive way, and
(3) lack serious literary, artistic, political, or scientific standard (nat’l standard)
Fighting Words
Words that would arouse ordinary person to acts of violence; must be viewpoint neutral
Commercial Speech
- False or illegal advertising can be totally prohibited.
- For lawful advertising, regulation must:
(1) directly advance
(2) substantial gov’t interest and
(3) be narrowly tailored
Non-Public Forum
Reg must be viewpoint neutral and rationally related to legit gov’t interest
Free Exercise Clause
Gov’t regulation that burdens free exercise rights cannot be religiously motivated.
- If law purposefully interferes w/ free exercise, apply strict scrutiny
- If law is neutral and generally applicable w/ incidental burden on free exercise, apply rational basis
Establishment Clause
- No strict scrutiny unless there is sect preference (super rare).
- Lemon Test:
(1) primary purpose must be secular,
(2) primary effect of law must neither inhibit or advance religion, and
(3) no excessive gov’t entanglement w/ religion
10A
Only correct when Congress commandeers states; passes law to make state pass law
14A EP
Applies only to states, not fed
Commerce Clause - applied to states
Can regulate any activity w/ substantial impact on IC:
- Commercial Activity - may be regulated where conceivable rational basis that the activity, in aggregate, substantially effects IC
- Non-Commercial Activity - factual finding required that there is a substantial economic effect on IC
- Congress may consent to non-uniform regulation by states; Congress can delegate their power to another branch of fed gov’t or the states
Commerce Clause - applied to fed
Must be non-discriminatory and there must be no undue burden on IC - balance state interest in regulation v. burden on IC
Supremacy Clause
Supersession - fed law will supersede inconsistent state law, but states can adopt stronger legislation.
Preemption - fed law will preempt state law if they dominate the field.
