Con Law Flashcards
First Amendment Overview
1A: Congress shall make no law abridging the freedoms of speech, press, association, and religion.
Applies to states via 14A
Standing
1) injury in fact;
2) causation; and
3) redressability.
Speech Definition
speech is broadly defined under 1A, and it can include symbolic/expressive conduct that would not be traditionally thought of as speech
Vagueness
1A
requires the law give fair notice of the prohibited conduct such that a reasonable person would understand what is prohibited by the policy
Overbreadth
regulates more speech than is necessary
1A Prior Restraint
A prior restraint is an order (such as an injunction or gag order) or a licensing scheme that seeks to prohibit speech before it has occurred
Public Forum
2 Kinds
(1) Designated or limited public forum (e.g., schools with after-school clubs)
(2) Traditional public forum (e.g., streets, sidewalks, and parks)
TEST: regulation must
(1) be content neutral,
(2) be narrowly tailored, and
(3) leave open alternative channels of communication.
Symbolic Speech
regulating conduct; e.g. nudity): a law that regulates conduct and places an incidental burden on speech is allowable if
(1) the regulation is narrowly tailored to an important governmental interest
(2) it is unrelated to the suppression of the speech.
Unprotected Speech
(1) clear and present danger - words that have a likelihood of inciting imminent lawless activity
(2) fighting words, - word that tend to cause an immediate breach of peace
(3) true threats
(4) obscenity
Types of Less Protect Speech
(1) Commercial Speech
(2) School Speech
(3) Sexual / indecent speech
Commercial Speech
(1) speech must lawful and not misleading,
(2) substantial
governmental interest,
(3) the statute must directly advance that interest, and
(4) the statute must be narrowly tailored (not more excessive than it needs to be).
School Speech
Public school students have free speech rights but speech may be regulated if the regulations are reasonably related to legitimate pedagogical (educational) concerns.
Sexual / Indecent Speech
(1) it appeals to a prurient interest in sex;
(2) it depicts or describes sexual conduct in a patently offensive way; and
(3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Content Based
Strict Scurinity Applies unless
(1) symbolic speech or
(2) unprotected speech
Viewpoint based speech
Strict Scrutiny Applies - almost always struck down
Public School Regulation of Speech
can only regulate speech at school if there is a substantial likelihood that the speech will cause disruption to class.
Freedom of Association
Guarantees the freedom to associate with groups whom one chooses.
Private / NonPublic Forum Forum
e.g. military bases, airports, and prisons
Regulation must
(1) be viewpoint neutral, and
(2) have a reasonable relation to a legitimate government interest.
Procedural Due Process
requires a showing that
(1) there was a deprivation of a protected interest,
(2) without due process protections (namely, notice and a hearing).
Deciding What Process is Due
When deciding what process is due, the court looks at the
(1) nature of the interest affected,
(2) risk of erroneous deprivation
(3) the burden on the government.
Substantive Due Process
government shall not infringe on individual rights in an arbitrary or irrational manner
(1) fundamental rights get SS
(2) Gender and illigetimacy get IS
(3) all other get RB
Moot
An action is moot when a live controversy under no longer exists
Exceptions:
(1) Pregancy
(2) Just because D has voluntarily ceased activity does not mean that the case will not be considered moot
Commerce Clause
(1) channels of interesate commerce
(2) instumentalaties of interestate commerce
(3) commercial activies that have a substantial economic effect on interstate commerce
Congress Power to Delagate
Congress has the power to delagate its power, except those power that are uniquely confined to congress
(1) delegation will be upheld if it includes intelligible standard and
(2) delegations of extroardinarily broad authiryt require particularly clear congressional authorization
10th Amendment
10A powern not granted by the consitution, nor prohibited by the states, are reserved to the states.
Restricts federal regulation of states in some ways.
Prohibits commandeeering
Spending Clause
Congress has power to spend for the general welfare, congress is gerally free to condition its grants
Spending Condition Valid?
Will be found valid if
(1) clearly stated
(2) relates to the purpose of spending program
(3) not unduly coercive
Establishment Clause
Government cannot take action that has the effect of estabilshing or inhibiting religion
Court apllies LEMON test
government must show that
(i) the action has a secular purpose,
(ii) that the action’s primary effect is not to advance or inhibit religion, and
(iii) there is not excessive entanglement between the government action and religion.
Test to see if Religion is Protected
NOT based on whether the particular religion is well known or well established
-whether the individual has a sincerely held religious belief (whether the individual’s belief and whether that belief has a similar role in the individual’s life as a typical religion would.)
Free Excercise Clause
Individual has 1A right to free excercise their religious beliefs, need to prove that they have a sincerely held religious belief.
Takings Clause
(1) Government cannot take private property for public property without just compensation (FMV)
(2) rational basis test
(3) Comes from the 5th amendment, which applies to states from the 14th amendment
(4) can be found when regulation affects value or use of property, in which case property owener can bring inverse condemnation action
Inverse Condemation
(1) if reg. deprived all economic value of property
(2) it is considered the equivalent of physical apprioriation, thus a taking
Total Taking
(1) permanent physical invasion
(2) use restriction no economic value left
Temporary Taking
Court considers
(1) economic impact
(2) reaosnabl expectation of owner
(3) length of delay
(4) Good faith
Partial Taking
Regs. that merely decrease the value of property, do not constitute a taking if they leave an economically viable use of property. Court looks act
(1) economic impact
(2) investment backed expecation of owner
(3) the whether reg substantially interferes with property
Regulatory Taking
