Con Law Flashcards

You may prefer our related Brainscape-certified flashcards:
1
Q

Justiciability Doctrines

A

Standing
Ripeness
Mootness
No political Questions

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2
Q

Standing

A

I. Injury
II. Causation and Redressability
III. No 3P Standing
IV. No generalized grievances

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3
Q

Standing: Injury

A

Only personally suffered
Likelihood of future harm for injunctive or declaratory relief
Note: “best standing” will usually end up personal economic loss on the bar

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4
Q

Standing: Causation and Redressability

A

Likely to remedy injury, favorable ruling would remedy issue suffered

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5
Q

Standing: No third party standing

A

A plaintiff cannot assert claims of others, of third parties, who are not before the court.

i. Exception: third party standing is allowed if there is a close relationship between the plaintiff and the injured third party
ii. Exception: third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights
iii. Exception: an organization may sue for its members, if
the members would have standing to sue;
the interests are germane to the organization’s purpose;
neither the claim nor relief requires participation of individual members

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6
Q

Standing: No generalized grievances

A

The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law.

Exception: taxpayers have standing to challenge government expenditures pursuant to federal (or state and local) statutes as violating the Establishment Clause

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7
Q

Ripeness

A

Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.

Tip: Ripeness always comes up in a request for declaratory judgment
Pre enforcement:

The hardship that will be suffered without pre-enforcement review and
fitness of the record (Court has all it needs to resolve the issue)

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8
Q

Mootness

A

If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed as moot.

Exceptions
Wrong capable of repetition but evading review
Voluntary cessation. If the defendant voluntarily halts the offending conduct, but is free to resume it at any time, the case will not be dismissed as moot.
Class Actions, so long as one member of the class has an ongoing injury

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9
Q

No Political Questions

A

Examples:
Republican form of government clause, always means nonjusticiable political question
Challenges to the President’s conduct of foreign policy
Challenges to the impeachment and removal process
Challenges to partisan gerrymandering

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10
Q

Writ of Certiorari

A

a. All cases from state courts come to the Supreme Court by writ of certiorari

b. All cases from United States courts of appeals come to the Supreme Court by writ of certiorari

c. Appeals exist for decisions of three-judge federal district courts
Note terminology. Supreme Court is obligated to take.
Tip: Three-judge federal district court on federal statute, and appeal requested, then Supreme Court required to hear the case

d. The Supreme Court has original and exclusive jurisdiction for suits between state governments

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11
Q

Final Judgment Rule

A

SCOTUS can hear a case only after a final judgment
Generally no interlocutory review

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12
Q

Independent and Adequate State Grounds

A

No SCOTUS review if decision is supported by independent and adequate state grounds

If a state court decision rests on two grounds, one state law and one federal law, if the Supreme Court’s reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it.

State law gets last word on state law issues

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13
Q

The principle of sovereign immunity

A

i) The Eleventh Amendment bars suits against states in federal court
ii) Sovereign immunity bars suits against states in state courts or federal agencies

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14
Q

The principle of sovereign immunity: Exceptions

A

Explicit Waiver (consent, no implied)

States may be sued pursuant to federal laws adopted under section 5 of the Fourteenth Amendment.

Congress cannot authorize suits against states under other constitutional provisions.
The federal government may sue state governments.

“Plan of the Convention”
Bankruptcy proceedings
power to raise and army and a navy.

Suits against state officers generally allowed (governor, ag)
state officers may be sued for injunctive relief
state officers may be sued for money damages to be paid out of their own pockets
state officers may not be sued if it is the state treasury that will be paying retroactive damages
If officer is personally liable, the suit can go forward even if the state’s going to indemnify
—BUT if treasury legally liable, won’t go forward

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15
Q

Abstention

A

Federal court has jdx but declines
Federal courts cannot enjoin pending state court proceedings

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16
Q

Congress’ Authority to Act

A
  1. There must be express or implied Congressional power
  2. The necessary and proper clause
  3. The taxing/spending power and the commerce power
  4. The Tenth Amendment as a limit on Congressional powers.
  5. Section 5 of the 14th Amendment
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17
Q

Congress’ Authority to Act: There must be express or implied Congressional power

A

No federal police power
Except:
Military
Indian tribes/lands
Federal lands or territories
D.C.

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18
Q

Congress’ Authority to Act: The taxing/spending power and the commerce power

A

a. Congress may tax and spend for the general welfare
b. The Commerce Power
i) Congress may regulate the channels of interstate commerce
ii) Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
iii) Congress may regulate economic activities that have a substantial effect on interstate commerce.
(In the area of non-economic activity, a substantial effect cannot be based on cumulative impact.)

Also, five justices have said that Congress cannot regulate inactivity.

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19
Q

Congress’ Authority to Act: The Tenth Amendment as a limit on Congressional powers

A

The Tenth Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.

Anti-Commandeering Principle: Congress cannot compel state regulatory or legislative action.

Exception:
Congress can induce state government action by putting strings on grants, so long as
i. the conditions are expressly stated and
ii. relate to the purpose of the spending program
iii. cannot be unduly coercive.

Congress may prohibit harmful commercial activity by state governments.

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20
Q

Congress’ Authority to Act: Section 5 of the 14th Amendment

A

Congress may legislate to enforce 14th amendment
Can’t create new rights or expand the scope of rights
Laws must be narrowly tailored: Proportional and congruent to wrongs

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21
Q

Delegation of Powers

A

No constitutional limit on delegation

Major questions need clear direction from Congress

Violation invalidates agency action (doesn’t invalidate statute)

Legislative vetos and line-item vetos are unconstitutional.

Congress may not delegate executive power to itself or its officers.

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22
Q

Legislative Veto

A

Must be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President to sign or veto). The President must sign or veto the bill in its entirety.

Without these two it’s a Legislative veto = unconstitutional

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23
Q

Line-item veto

A

President attempts to veto part of the bill = unconstitutional

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24
Q

Treaties

A

Treaties are agreements between the United States and a foreign country that President negotiates, Senate ratifies
State laws that conflict with treaties are invalid

Treaty vs Federal Law
Last-in-time rule decides which controls
Cannot violate Constitution

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25
Q

Executive Agreements

A

An executive agreement is an agreement between the United States and a foreign country that is effective when signed by the President and the head of the foreign nation.

No Senate ratification required

Executive agreements can be used for any purpose.

Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.

Recognition power
It is unconstitutional for Congress by statute to designate the capital of a foreign country.

The President has broad discretion in determining whether to admit individuals to the United States.

The President has broad powers as Commander-in-Chief to use American troops in foreign countries.

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26
Q

Appointment Power

A

President appoints ambassadors, federal judges, and officers of the US
—Senate must confirm appointments

Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts
—Inferior is one who is not head honcho I think

Congress may not give itself or its officers the appointment power
—Look for new federal agency and granted own appt power

The President may not make recess appointments during intrasession recesses that are less than 10 days

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27
Q

Removal Power

A

Unless removal is limited by statute, the President may fire any executive branch officer.

For Congress to limit removal,
i. it must be an office where independence from the President is desirable and
ii. Congress cannot prohibit removal, it can limit removal to where there is good cause and
iii. it cannot be a single person who heads an agency and exercises substantial discretion

Can limit removal for multi-member body

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28
Q

Impeachment and removal

A

The President, the Vice President, federal judges and officers of the United States can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors

Impeachment does not remove a person from office

Impeachment by the House of Representatives requires a majority vote; conviction in the Senate requires a 2/3 vote

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29
Q

Presidential Immunities and privileges: Civil Lawsuits

A

The President has absolute immunity to civil suits for money damages for any actions while in office.

Exception: the President does not have immunity for actions that occurred prior to taking office

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30
Q

Presidential Immunities and privileges: Papers and Conversations

A

The President has executive privilege for presidential papers and conversations,
but such privilege must yield to other important government interests

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31
Q

Presidential Immunities and privileges: Financial Records

A

The President has no immunity to keep his financial records from being subpoenaed by a state grand jury,

Exception: if the financial records are subpoenaed by a congressional committee, the court must balance the competing interests

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32
Q

Pardon Power

A

The President has the power to pardon those accused or convicted of federal crimes

Not state law crimes
Criminal liability only
not civil liability

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33
Q

Express Preemption

A

Federal statute expressly says federal law is exclusive in a field
Anytime Congress has authority, can say it’s preempted

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34
Q

Implied Preemption

A

Even if statute silent on preemption, still can be found if:
Laws are mutually exclusive
Can go stricter than federal government unless restricted (ie pollution laws on private actors)
State law impedes a federal objective
If Congress evidences a clear intent to preempt state law, federal law preempts state law
Ie. immigration law

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35
Q

Preemption: Inter-governmental immunities

A

States may not tax or regulate federal government activity
“Power to tax is the power to destroy”

Unconstitutional to pay state tax out of the federal treasury

State can’t regulate government if it puts a substantial burden on federal activity
Ie. can’t apply pollution control laws to fed gov

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36
Q

Dormant Commerce Clause

A

State or local law is unconstitutional if it places an undue burden on interstate commerce

Look to actor to see difference between DCC and CC (congress act = CC)
Also known as Negative Implications of the Commerce Clause

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37
Q

Privileges and Immunities Clause of Article IV

A

Limits states’ ability to discriminate against out-of-staters with regard to privilege and immunities of citizenship

Only applies to states discriminating against out of staters

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38
Q

Privileges and Immunities Clause of the 14th Amendment

A

Limited to right to travel
Ie. welfare reduction to mover law unconstitutional

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39
Q

Out-of-Staters Approach: Burdens on commerce

A

No:
P&I doesn’t apply
Violates DCC if it burdens interstate commerce and burdens exceed benefits

Yes:
Violates DCC unless necessary to achieve compelling gov purpose
No less discriminatory means would suffice

Exceptions:
Congressional approval
Market participant
Ie. university restricts

Supports residents who have long been paying taxes to support program
Government owned businesses can discriminate

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40
Q

Out-of-Staters Approach: Earn a livelihood

A

Law violates P&I IV unless necessary to achieve an important government purpose

P&I IV only applies to discrimination against out of staters
Involves fundamental rights or important economic activity

Remember, usually to earn a living not a hobby
Plaintiffs cannot be corporations or aliens

If corporation, only use DCC in answer

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41
Q

State Taxation of Interstate Commerce

A

States can’t use tax systems to favor in-state businesses
Need substantial nexus to state to tax it
Physical presence not required
State taxation of interstate businesses must be fairly apportioned

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42
Q

Congress’ authority to regulate private action

A

The Thirteenth Amendment can be used to prohibit private race discrimination
—-Congress can eradicate the badges and incidents of slavery
—-Note, 13th doesn’t prohibit race discrimination but allows Congress to adopt laws which prohibit private race discrimination

The commerce power can be used to apply constitutional norms to private conduct
—-Ollie’s BBQ case, most of its supplies came across state lines
—-And all restaurants as a whole, discrimination has substantial economic affect

Congress cannot use section 5 of the Fourteenth Amendment to regulate private behavior
—-Incorporation doctrine
—-Applies only to state and local governments, not private conduct

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43
Q

The public function exception

A

situations where private conduct must comply with the Constitution

The Constitution applies if a private entity is performing a task traditionally exclusively done by the government.
Ex. primaries for elections; company town allowing free speech

Narrow exception, ex. Private utilities not applicable

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44
Q

The entanglement exception

A

The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.

Key examples:
i) Courts cannot enforce racially restrictive covenants.

ii) There is state action when the government leases premises to a restaurant that racially discriminates.

iii) There is state action when a state provides books to schools that racially discriminate.

iv) There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech.
Differentiate from iii with encouragement
Government subsidy is not enough by itself for state action

v) There is no state action when the NCAA orders the suspension of a basketball coach at a state university.

vi) There is state action when a private entity regulates interscholastic sports within a state.

vii) There is not state action when a private club with a liquor license from the state racially discriminates

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45
Q

Application of the Bill of Rights

A
  1. The Bill of Rights applies directly only to the federal government
  2. The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment.

Except:
a. The Third Amendment right to not have a soldier quartered in a person’s home.
b. The Fifth Amendment right to grand jury indictment in criminal cases.
c. The Seventh Amendment right to jury trial in civil cases

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46
Q

Rational Basis Test

A

Constitutional if rationally related to a legitimate government purpose

Any conceivable legitimate purpose
Government usually wins
Burden of proof on challenger

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47
Q

Intermediate Scrutiny

A

Substantially related to an important government purpose

Looks at actual purpose
Means used must be good way but doesn’t have to be best
Burden of proof on government

48
Q

Strict Scrutiny

A

Necessary to achieve a compelling government purpose

Looks at actual purpose
Must be least restrictive means
Burden of proof on government

49
Q

Procedural Due Process Definition

A

Did the government follow adequate procedures when it took life, liberty or property?
What kind of notice, hearing, etc.

50
Q

Substantive Due Process Definition

A

Did the gov have an adequate reason for taking life, liberty, or property?
Depends on level of scrutiny
Usually protects economic liberties or privacy

51
Q

Equal Protection Definition

A

Does gov have adequate reason for differences in treatment of people?
Type of discrimination and level of scrutiny

52
Q

Procedural Due Process: Deprivation of life liberty or property: Loss of significant, legally protected freedom

A

Except in emergency situations, before adult institutionalized must be notice and hearing
Parent institutionalizing child only must be screening by neutral fact finder
Harm to reputation itself is not a loss of liberty
Prisoners rarely have liberty interest

53
Q

Procedural Due Process: Deprivation of life liberty or property: Property

A

Entitlement not fulfilled

Entitlement: reasonable expectation of continued receipt of a benefit
Ex. employment for a year but fired early

54
Q

Procedural Due Process: Deprivation of life liberty or property: Negligence insufficient

A

Must be intentional or reckless
In emergency circumstances: conduct shocks the conscience
Killed teenage boy, not reckless

55
Q

Procedural Due Process: Deprivation of life liberty or property: Doesn’t include failure to protect from private wrong

A

Failure to protect from child abuse not enough

Only if government creates the danger or in government custody do they have a duty to provide protection

56
Q

Procedural Due Process: If so, what process is needed?: Balancing test

A

i. Importance of interest to individual
ii. Ability of procedures to increase accuracy, reduce erroneous deprivation
iii. Government’s interest

Examples:
Before welfare benefits are terminated there must be notice and a hearing
When Social Security disability benefits are terminated, there need be only a post-termination hearing

Before a school can discipline a student there must be notice of the charges and an opportunity to explain

Corporal punishment requires no due process

Before a parent’s right to custody of a child can be permanently terminated there must be notice and a hearing

Punitive damage awards require instructions to the jury and judicial review to ensure reasonableness

Can’t be grossly excessive (find ratio)

An American citizen detained as an enemy combatant must be accorded due process
Except in exigent circumstances, prejudgment attachment or government seizure of assets require notice and a hearing

Gov may seize property used in illegal activity even if it has an innocent owner

57
Q

Economic Liberties

A

Only a rational basis test is used for laws affecting economic rights.

The Constitution provides only minimal protection for economic liberties

58
Q

The Takings Clause: Is there a taking?: Possessory taking

A

Government confiscation or physical occupation of property is a taking.

59
Q

The Takings Clause: Is there a taking?: Regulatory taking

A

Government regulation is a taking if it leaves no reasonable economically viable use of the property.

Penn central case, decrease in value wasn’t enough
Beach front property, total decrease was enough

60
Q

The Takings Clause: Is there a taking?: Conditions on development

A

Benefit roughly proportional to burden

Can challenge preexisting regulations
Temporary denial of development is acceptable but must be reasonable

61
Q

The Takings Clause: Is it for public use?

A

Reasonable belief it will benefit the public
Broadly defined
Even selling to private developers if they think it will help the public

62
Q

The Takings Clause: Is just compensation paid?

A

Measured in terms of loss to owner using reasonable market value

63
Q

Contracts Clause

A

State/Local law can’t impair existing contracts

Possible contracts are fair

Federal laws will be under rational basis

Private contracts will be intermediate scrutiny:
Substantial impairment
Reasonably & narrowly tailored to legitimate and important government interest

Government contracts are strict scrutiny

64
Q

Ex Post Facto Clause

A

Can’t punish conduct that was lawful when done or retroactively increase penalty

Only for criminal laws

Retroactive civil liability gets rational basis review

65
Q

Bill of Attainder

A

Directs punishment of specific individuals without trial

66
Q

Privacy-Related Rights

A

Marriage
Procreation
Custody of children
Keeping family together
Parental rights
Purchase and use of contraceptives
Not abortion
Private consensual, adult sexual activity
Refusal of medical treatment
No physician-assisted death

67
Q

Privacy-Related Rights: Refusal of medical treatment

A

Some limits
Competent adults have a right to refuse
States can require clear and convincing evidence that they wanted treatment ended
A state may prevent family members from terminating treatment for another.

68
Q

Second Amendment

A
  1. The Second Amendment protects the right to have handguns in the home for the sake of security.
  2. State laws that condition having a concealed weapon in public on needing to show a safety need for a permit are unconstitutional.

Clear criteria + no discretion needed

  1. State laws regulating guns are allowed only if they were a type of regulation that historically existed.

Levels of scrutiny not used
Can regulate in sensitive places and limit who has guns

69
Q

Right to Travel

A

Laws that prohibit people from moving to a state:
Strict scrutiny

Durational residency requirements
Strict scrutiny

For voting, 50 days is the maximum allowable requirement

Foreign travel
Rational basis

70
Q

Right to Vote

A

Fundamental right under equal protection clause

Laws that keep some citizens from voting
Strict scrutiny

Can protect integrity of system if desirable
Balancing test

One person, one vote

For all elected bodies with districts, all districts should be about the same in population

At large elections allowed absent discriminatory purpose

Use of race to draw lines
Strict scrutiny

Counting uncounted votes without standards in a presidential election violates equal protection

71
Q

Education Rights

A

Education is Not a Fundamental Right

72
Q

Equal Protection Approach

A
  1. What is the classification?
  2. What level of scrutiny should be applied?
  3. Does this law meet the level of scrutiny?
73
Q

Source of EP Guarantees

A

14th amendment ep clause → state and local government
5th amendment due process clause → federal government

74
Q

EP: Race and National Origin

A

Strict scrutiny

Proof of classification:
Facial discrimination
Law in its terms draws distinction between races

Discriminatory impact AND discriminatory intent
Effect not enough

Note: laws that provide for peremptory challenges based on race violates EP

75
Q

EP: Classifications Benefiting Minorities

A

Strict scrutiny

Numerical set-asides require clear proof of past discrimination

Higher education admissions

Can be one factor if no other way to achieve diversity

Diversity is a compelling interest

Cannot add points to admissions for minorities

Elementary and secondary school assignments → strict scrutiny

Assigning students to schools based on race

76
Q

EP: Gender Classifications

A

Intermediate scrutiny AND exceedingly persuasive justifications

Proof of discrimination

Facial discrimination
Facially neutral
Discriminatory impact AND discriminatory intent

77
Q

EP: Gender Classifications: Classifications Benefiting Women

A

Intermediate scrutiny usually but
Not based on role stereotypes
Can remedy past discrimination or limited opportunities

78
Q

EP: Alienage Classifications

A

State/local:
Strict scrutiny
Except: Rational basis if related to self government
Notary not self-gov

Congress:
Rational basis

Undocumented immigrant children:
Probably intermediate scrutiny

79
Q

EP: Non-Marital Children

A

Intermediate scrutiny
Laws benefiting all marital and no non-marital children always fail

80
Q

EP: Other Classifications

A

All other classifications get rational basis review for equal protection purposes including:
Age
Disability
Wealth
Economic regulations
Sexual orientation

81
Q

1A: Content Based and Content Neutral Restrictions

A

Content based restrictions → Strict scrutiny
—-Subject matter restrictions
—-Viewpoint restrictions

Content-neutral restrictions
—-Intermediate scrutiny

82
Q

1A: Prior Restraints

A

Typically restraining order or injunction to prevent speech

Subject to strict scrutiny

But must be complied with until vacated if procedurally proper
Person who violates court order is barred from challenging it

83
Q

1A: Prior Restraints: Licensing and Permits

A

Licensing and permits can be required if:
Important reason for licensing
Clear criteria + almost no discretion
Procedural safeguards

84
Q

1A: Vagueness

A

Law is unconstitutionally vague if reasonable person can’t tell what’s prohibited and what’s allowed

85
Q

1A: Overbreadth

A

Unconstitutional if law regulates substantially more speech than Constitution allows

86
Q

1A: Fighting Words

A

Words directed at another that are likely to provoke a violent response
Unprotected category of speech
But laws often unconstitutionally vague and overbroad

87
Q

1A: Symbolic Speech

A

Government can regulate conduct that communicates if
Important interest unrelated to suppressing message
Impact on communication no greater than necessary to achieve purpose

Examples:
Flag burning is protected speech
Draft card burning is not
Nude dancing not protected speech
Cross burning is protected unless with intent to threaten
contribution limits in election campaigns are generally constitutional, but expenditure limits are unconstitutional

88
Q

1A: Compelled Speech

A

Violates first amendment

89
Q

1A: Anonymous Speech

A

Protected, do not have to reveal identity in speech

90
Q

1A: Government Speech

A

Not covered by free speech clause
Government speaker, then can’t be challenged as violating first am

91
Q

Unprotected Speech: Incitement of Illegal Activity

A

Unprotected by 1A

Substantial likelihood of imminent illegal activity
Speech directed at causing imminent illegal activity

92
Q

Unprotected Speech: Obscenity

A

Test:
Material appeals to prurient interest in sex (community/local standard)
—-Usually the shameful stuff
Patently offensive (state or local law)
No serious artistic, literary, political or scientific value (national standard)
—-Zoning ordinances allowed for adult bookstores/theaters etc
—-Can ban all child pornography
—-Can’t punish private possession of obscene material (except CP)
—-Can seize assets of businesses convicted of violations
—-Profane and indecent language usually protected
——–Except: broadcast media
—-Schools can punish profane and indecent language
—-Ability to regulate out of school speech is limited
——–Need substantial likelihood of disrupting school activities

93
Q

Unprotected Speech: Commercial Speech

A

False and deceptive advertisements not protected by 1A

Government can prohibit ads for illegal activities

True commercial speech that inherently risks deception can be prohibited:
i. The government may prevent professionals from advertising or practicing under a trade name
ii. The government may prohibit attorney, in-person solicitation of clients for profit
iii. The government may not prohibit accountants from in-person solicitation of clients for profit

Other commercial speech can be regulated if intermediate scrutiny is met

Government regulation of commercial speech must be narrowly tailored
but it does not need to be the least restrictive alternative

94
Q

Unprotected Speech: Defamation of Public Official

A

Plaintiff must show:
Clear and convincing evidence
Falsity
Actual Malice

Know statement was false or acted with reckless disregard for the truth

Public figures: Those who thrust themselves into the limelight and who likely have access to media to respond to any attack

95
Q

Unprotected Speech: Defamation of Private Figure on Matter of Public Concern

A

Compensatory damages if P proves
Falsity of statement
Negligence of speaker

Presumed/punitive damages if plaintiff proves
Actual malice

96
Q

Unprotected Speech: Defamation of Private Figure on Matter Not of Public Concern

A

Presumed/punitive damages without proof of actual malice
Compensatory damages → No standard articulated by court

97
Q

Unprotected Speech: IIED

A

Defamation requirements
Not protected speech

98
Q

Unprotected Speech: Privacy

A

The government may not create liability for the truthful reporting of information that was lawfully obtained from the government

Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance

The government may limit its dissemination of information to protect privacy
Gov can restrict its own dissemination of information

99
Q

Unprotected Speech: Speech by government employees on the job

A

in the performance of their duties is not protected by the First Amendment.

100
Q

Unprotected Speech: Other government restrictions based on the content of speech

A

must meet strict scrutiny.
(Example: restrictions on violent speech must meet strict scrutiny.)

101
Q

Public Forums

A

Can regulate speech in public forums

Not subject and viewpoint neutral → strict scrutiny

Subject and viewpoint neutral → intermediate scrutiny

Time place and manner restriction
Important government purpose
Adequate alternatives

Narrowly tailored, not least restrictive

Permit fees for parades and demonstrations unconstitutional if within official’s discretion
Risks viewpoint discrimination, must be uniform

102
Q

Designated Public Forums

A

Government chooses to open to speech
Use public forum rules
Can close forum, but while open subject to restrictions

103
Q

Limited Public Forums

A

Government opens to certain groups or topics
Regulation must be reasonable and viewpoint neutral
Subject = fine, viewpoint = not fine

104
Q

Nonpublic Forums

A

Government closes to speech
Regulation must be reasonable and viewpoint neutral
Ie. military bases, areas outside prisons and jails, sidewalks on post office property, airports
Cant prohibit distribution of literature

105
Q

Freedom of Association

A

Fundamental right

Laws that prohibit or punish membership → strict scrutiny

To prohibit or punish must prove:
1. Active affiliation
2. Knowledge of illegal activities
3. Specific intent to further activities

106
Q

Freedom of Association: Requiring Disclosure of Membership

A

Strict scrutiny if disclosure likely to chill association

107
Q

Freedom of Association: No Right to Discriminate

A

Right to discriminate not protected unless:
Intimate association
Discrimination integral to activities of group

108
Q

Free Exercise Clause

A

Can’t be used to challenge neutral law of general applicability
If not neutral → strict scrutiny
Discretion for exceptions = not neutral
Can’t deny benefits if people quit jobs for religious reasons
Can’t hold religious schools liable for choosing teachers
Can’t deny religious schools benefits given to secular private schools

109
Q

Establishment Clause

A

Government cannot coerce religious participation
Uncertainty in what coercion is yet
Laws discriminating against religious speech or among religions → strict scrutiny

110
Q

Establishment Clause: Schools

A

No government-sponsored religious activity in public schools

Focus = school-initiated, school sponsored, school approved
Kennedy distinguished because school didn’t approve

Employee praying on own time → allowed under Free Exercise Clause
Can’t exclude religious groups if school facilities open to other groups
Can give parents vouchers that they can use for religious schools

The government may give assistance to parochial schools, so long as it is not used for religious instruction.
i) The government may provide parents vouchers which they use in parochial schools.
ii) The denial of funds for religious schools that are provided to secular private schools violates free exercise of religion unless strict scrutiny is met.

111
Q

Approach to Con Law: Congress is Actor

A

The issue is either:

  1. Does congress have the authority to act?
    and/or
  2. Has congress violated a limit on its power?
112
Q

Approach to Con Law: President or Executive is Actor

A

Issue is either:

  1. Has the president/executive exceeded the scope of executive powers?
    and/or
  2. Has the President/executive violated a limit on government power?
113
Q

Approach to Con Law: Federal Court is Actor

A

Issue is:

Does the federal court have the authority to hear the case?

114
Q

Approach to Con Law: State/Local Gov is Actor

A

Issue is:

Has the state/local government violated a limit on its power?

115
Q

Approach to Con Law: Private Non-Gov is Actor

A

The issues are:

  1. Is there state action?

If so,

  1. Does it violate the constitution?