con law Flashcards
State Action
a private action may be considered state action if the private action was: encouraged by gov, the private actor undertakes a traditional government function or excessive entanglement between private actor and government
State sovereign immunity
a fed statute abrogates 11th amendment immunity if 1) the act expressly states that it does so abrogate state immunity and: 2) act was enacted under a congressional power that postdates 11th A.
Dormant Commerce Clause
prohibits states from discriminating against interstate (out of state) commerce or placing undue burdens on it. Strike down unless: necessary and least restrictive means to achieve compelling gov purpose (SS)
14th Amendment Equal Protection
prohibits states from enacting legislation that intends to discriminate against persons on the basis of race, national origin, and alienage. - state gov only- no feds!
*if classification is likely an equal protection problem
Unprotected speech- Incitement
gov has a compelling interest in regulating the content of speech that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (Brandenburg) *must advocate for illegal conduct
Unprotected speech- fighting words
words that tend to incite an immediate breach of the peace( likely to cause a violent reaction)
Designated or limited public forum
public property is not traditionally open but gov has made it available for speech on a permanent or temporary basis
Content-based speech regulation in public or designated forum
content based regulation presumed unconstitutional and upheld only if gov shows regulation necessary to achieve compelling state interest
*exception: governemnt office buildings as long as viewpoint neutral
Time Place and Manner regulation
TPM regulations of speech in public forum (streets, sidewalks and designated public forums) are valid of regulation is : content neutral, narrowly tailored , serve substantial gov interest, and leaves open alt channels
regulation of speech-related conduct
valid if the regulation is narrowly tailored to serve a substantial gov interest and is unrelated to suppression of expression
Speech in schools
Tinker- children in public schools have some first amendmnet rights but scjools have greater leeway to regulate than state
Commandeer
congress may regulate the states but may not commandeer the states to regulate private conduct.
Commerce Clause
Permits Congress to regulate channels of interstate commerce (highways and phone lines), people, and instrumentalities that work/travel in the channels (planes and pilots) and activities substantially affecting commerce
Activities that substantially affect interstate commerce
When congress regulates an economic or commercial activity that affects interstate commerce, the regulation will be upheld if the regulated activity in the aggregate has a substantial effect on interstate commerce
Regulatory Taking (eminent domain)
government action that is not a physical taking or occupation may be a regulatory taking. Balance: 1)economic impact, 2)extent to which regulation interferes with investment-backed expectations; and 3)the character of governments action