Con Law

Question 1

Invasion of privacy:

Answer 1

includes publishing private info about a person that would be objectionable to the RP

Truth is NOT a defense

Question 2

If the matter is of public concern,

Answer 2

the publication is privileged absent actual malice

Question 3

At CL a P may bring a defamation action against D

Answer 3

who makes a false statement against the P

However 1A limits suits brought by public figures.

Question 4

Generally, it is a tort to publish private information about a person, even if it is true, if

Answer 4

a RP would object to having the information made public.

Question 5

If the matter is one of legitimate public interest, its publication is privileged if

Answer 5

it is made without actual malice, especially if the information was obtained legitimately, such as a picture taken in public.

Question 6

1. What does the Equal Protection Clause of the 14 Amendment do?
2. And who does the EPC apply to?

Answer 6

1. The 14A EPC prohibits states and subsidiary state governments from treating similarly situated people in a dissimilar manner without adequate justification.
2. This proscription generally does not apply to private action.
3. However, there are some situations in which private action can constitute state action, and in such cases, the private actor’s action is subject to the EPC.

Question 7

What is intermediate scrutiny (as it relates to gender)

Answer 7

1. Intermediate scrutiny states that the discrimination will be upheld only if the government can prove that the discrimination is substantially related to an important government interest.
2. An exceedingly persuasive justification is needed.
3. The interest must be genuine and not hypothesized for litigation, and the government may not rely on overbroad generalizations about males and females.

Question 8

When does a private action constitute a state action?

Answer 8

• Private action will constitute state action when: (1) the private actor is performing a traditional and exclusive state function, or (2) the state is significantly involved in the private action.
• Thus far, the Supreme Court has found only running a town or an election to be a traditional and exclusive public function.

Question 9

When has the court found significant state involvement in a private action?

Answer 9

The court has found significant state involvement when enforcement of private action involves use of the courts (significant state involvement would be found if a court were to enforce a restrictive covenent or a preemptory challenge) or where private entities are entwined with government entities (like a high school athletic association where most schools are public, most are state employees who meet in school buildings and are funded by ticket receipts from school sporting events).

Question 10

Does state regulation of an industry make the industry’s action a state action?

Answer 10

The court has found that state regulation of an industry even heavy regulation does not make the industry’s action state action. Neither does licensing or providing essential services, such as police or fire protection. Regulation of a private school does not make the school’s action state action.

Question 11

What does the Constitution do to the government?

Answer 11

• The Constitution restricts the government.
• Constitutional rights, including the Bill of Rights, are rights owed by the government to individuals.

Question 12

What does the 14th Amendment Privileges and Immunities Clause do?

Answer 12

1. The Fourteenth Amendment Privileges or Immunities Clause prohibits states from denying their citizens the privileges or immunities of national citizenship, including the right to interstate travel.
2. The right to travel includes the right of newly arrived citizens of a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.

Question 13

What about state or local regulations that discriminate against interstate commerce?

Answer 13

• State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid as violations of the negative implications of the Commerce Clause. (or dormant commerce clause)
• For a regulation to discriminate against interstate commerce, it must treat economic interests from within the state differently from economic interests outside of the state.

Question 14

Does a private entity owe a duty to abide by the Constitution?

Answer 14

• A private entity generally does not owe a duty to abide by the Constitution.
• However, there are exceptions to the general rule– cases in which a private entity will owe individuals the same rights as the government.
• One such exception arises when the private entity undertakes a traditional and exclusive public function.

Question 15

What does the First Amendment give?

Answer 15

As a general rule, it has been held that the First Amendment not only gives a person the right to say what he wants to say, but also prohibits the government from requiring persons to say what they do not want to say.

Question 16

Can the 1A rights of public school students be restricted?

Answer 16

The court has also found 1A rights of public school students may be reasonably restricted to enable schools to accomplish their mission of educating students and keeping them safe.

Question 17

Content neutral restrictions must pass?

Answer 17

Content neutral restrictions must pass intermediate scrutiny: the government must prove that it is narrowly tailored to achieve an important or significant government interest (other than suppression of speech).

Question 18

When will the Supreme Court refuse to hear a case?

Answer 18

The Supreme Court will refuse to hear the case only if the state ground is adequate by itself to support the decision as well as independent so that the Court’s review of the federal ground for the decision would have no effect on the outcome of the case (such as if the state court had found the law invalid under both the state and federal Constitutions).

Question 19

What happens if a state law treats local and out-of-state interests alike that nonetheless burdens interstate commerce?

Answer 19

If a state law that treats local and out-of-state interests alike nonetheless burdens interstate commerce, it will be valid unless the burden outweighs the promotion of the legitimate local interest.

Question 20

What does the 11th Amendment prohibit?

Answer 20

• The Eleventh amendment prohibits federal courts from hearing most private actions against state governments.
• This prohibition includes actions in which the state is named as a party or in which the state will have to pay retroactive damages.

Question 21

Can Congress remove 11A immunity?

Answer 21

Congress can remove 11A immunity as to actions created under the 14A.

Question 22

Under 11A, can you enjoin a state official?

Answer 22

• Although the 11A prohibits most private actions against state governments, private parties may bring actions to enjoin an officer from future conduct that violates the Constitution or federal law.
• This exception includes enjoining an appropriate state official from enforcing an unconstitutional state law.

Question 23

EPC of 14th Am + standards of review

Answer 23

The equal protection clause of the 14th amendment prevents states from unfairly treating similarly situated people differently. To determine whether a law violates the equal protection clause a court first must determine whether a discriminatory classification exists. Suspect classifications and fundamental relax received strict scrutiny Quasi suspect classifications receive intermediate scrutiny Non-suspect and non-quasi- suspect classifications are subject to rational basis

Question 24

EPC: rational basis

Answer 24

To prevail under rational basis review challenger must show that the law is not rationally related to any legitimate government purpose

Question 25

Congressional powers

Answer 25

The federal government is a government of limited powers To pass a law congress must act pursuant to a power and given to it by the constitution. It has no general police power or power to legislatate for the general welfare. Section 5 of the 14th amendment is an enabling clause giving Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th amendment. HOWEVER, Congress may not expand existing constitutional rights or create new ones, it may only enact laws to prevent or remedy violations of rights already recognized. - To be valid laws must be congruent and proportional to solving a history or pattern of violations of such a right

Question 26

the 1A generally prohibits the government from restricting the content of speech unless: [2]

(hint: content-based restrictions)

Answer 26

1. the government can prove that
2. the restriction is necessary to achieving a compelling government interest

CONTENT-BASED RESTRICTIONS = STRICT SCRUTINY

Question 27

unprotected speech

Answer 27

certain categories of speech are not protected by the 1A, including speech that incites imminent lawless action and fighting words

HOWEVER, a statute MAY NOT REGULATE mere advocacy of lawless action in the abstract; only speech that incites imminent lawless action

“fighting words” has been defined as personally abusive language that, when addressed to an ordinary person, are likely to incite immediate physical retaliation

Question 28

overbreadth

Answer 28

generally, a regulation of speech will not be upheld if it is overbroad [prohibits substantially more speech than is necessary]

if a regulation punishes a substantial amount of protected speech judged in relation to its legitimate sweep, it is facially invalid and cannot be enforced against anyone, including someone engaging in constitutionally unprotected speech UNLESS a court has limited construction of the restriction as to remove the threat to constitutionally protected speech

Question 29

defamation: public figures

Answer 29

At common law, a P may bring a defamation against against a D who makes a false statement about the P.

BUT under the 1A, public figures cannot recover for defamation unless they show that the defaming statement was made with actual malice.

Actual malice is found where the statement is made with knowledge of its falsity or with reckless disregard of its truth or falsity.

Question 30

1A and the press

Answer 30

the 1A does not provide the press with any special right to trespass, even if the trespass was done in order to investigate a story about a public figure or a matter of public concern

Question 31

invasion of privacy [+ defamation of a private person]

Answer 31

generally, it’s a tort to publish private information about a person if a reasonable person would object to having the information made public

truth is NOT a defense

if the matter is one of legitimate public interest, its publication is privileged if it is made without actual malice–especially if the info was obtained legitimately

Question 32

How can congress regulate interstate commerce?

Answer 32

Congress has the broad power to regulate interstate commerce. The commerce clause gives Congress the power to regulate the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that, in the aggregate, have a substantial effect on interstate commerce. As to prong three: - if the activity regulated is economic or commercial, it will be upheld if Congress could rationally conclude the activity in the aggregate substantially affects interstate commerce. - If the activity is intrastate and is non-commercial and not economic, it will be upheld only if Congress can make a factual showing that the activity actually has a substantial economic affect on interstate commerce, without the aggregation of effectd

Question 33

Does the 10th amendment prohibit Congress from subjecting states to regulation?

Answer 33

The 10th amendment reserves to the states the powers not granted to the federal government by the constitution However the 10th amendment does not bar enforcement of a regulation that applies to the states as well as to the private sector Additionally the Supreme Court has found that the 10th amendment prevents Congress from common during state officials, at least as to a portion of the law that was applicable only to the states

Question 34

Does congress have the power to declare that the 11th amendment does not apply under a particular statue?

Answer 34

The 11th amendment prohibits federal courts from hearing damages actions against states and their agencies The 11th amendment would bar suits by state employees against their state employers unless the bar has been validly abrogated Congress can abrogate sovereign immunity when acting under section 5 of the 14th amendment (protects due process and equal protection) but it has no power to abrogate sovereign immunity under the commerce clause