Con

Question 1

Content-Based Speech Restrictions

Answer 1

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.

Question 2

Standing (con law)

Answer 2

To assert standing, P must establish a concrete, personal stake in outcome:

1) injury in fact and
2) causation - relief sought must redress harm

Question 3

Adequate state grounds

Answer 3

US SJC will not hear a case if there is an adequate, independent, fully decided state ground upon which case was decided

Question 4

Third party standing

Answer 4

Need close relationship btwn P and 3rd party & special need to adjudicate

Question 5

Full Faith & Credit

Answer 5

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

Question 6

Equal Protection - 14A v. 5A

Answer 6

• 14A EP ONLY APPLIES TO STATE ACTION!

- 5A DP WILL APPLY TO FEDERAL ACTION!

Question 7

EP Strict Scrutiny

Answer 7

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

Question 8

Suspect Classes

Answer 8

RAN - Race, Alienage, National Origins

Question 9

Alienage

Answer 9

• 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

Question 10

Fundamental Rights

Answer 10

Vote, Travel, Privacy (CAMPERS - contraception, abortion, marriage, procreation, education (private), relations (family), sexual conduct)

Question 11

EP Intermediate Scrutiny

Answer 11

• Burden on state
• Substantially related to an important interest
• Gender, illegitimacy, content-neutral TPM regulations, commercial speech, symbolic speech, cable TV

Question 12

EP Rational Basis

Answer 12

• Burden on P
• Rationally related to a legitimate gov’t interest
• Age, poverty, wealth, mental retardation, necessities of life, social and economic welfare measures

Question 13

Procedural DP

Answer 13

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

Question 14

EP v. DP

Answer 14

EP used when some people treated diff from others; Sub DP when law effects all persons

Question 15

State Action

Answer 15

A threshold req of gov’t conduct which must be satisfied before private discrim can be restricted under 1A, 4A, 14A, or 15A

Question 16

1A Facial Attacks

Answer 16

Overbroad; vagueness; prior restraint; unfettered discretion

Question 17

Content-Specific Speech Regulation

Answer 17

Where speech being regulated is protected 1A speech, strict scrutiny applies

Question 18

Content-Neutral Speech Regulation

Answer 18

• 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

Question 19

Unprotected Speech Categories

Answer 19

• Clear and present danger
• Defamation
• Obscenity
• Child porn
• Fighting words
• Commercial speech

Question 20

Clear and Present Danger

Answer 20

Speech directed at producing and likely to produce imminent unlawful conduct

Question 21

Obscenity

Answer 21

(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)

Question 22

Fighting Words

Answer 22

Words that would arouse ordinary person to acts of violence; must be viewpoint neutral

Question 23

Commercial Speech

Answer 23

• 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

Question 24

Non-Public Forum

Answer 24

Reg must be viewpoint neutral and rationally related to legit gov’t interest

Question 25

Free Exercise Clause

Answer 25

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

Question 26

Establishment Clause

Answer 26

• 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

Question 27

10A

Answer 27

Only correct when Congress commandeers states; passes law to make state pass law

Question 28

14A EP

Answer 28

Applies only to states, not fed

Question 29

Commerce Clause - applied to states

Answer 29

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

Question 30

Commerce Clause - applied to fed

Answer 30

Must be non-discriminatory and there must be no undue burden on IC - balance state interest in regulation v. burden on IC

Question 31

Supremacy Clause

Answer 31

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.