Con Law Flashcards
What is the test for state laws on alienage?
Strict Scrutiny-state must prove that this classification is necessary to advance a compelling state interest,
Exception: unless they discriminate against alien participation in state government (in which case only a rational basis review would be required).
What does the due process clause require?
The Due Process Clause provides that the government shall not take a person’s life, liberty, or property
without due process of law.
There must be a fair process or procedure, which requires an opportunity to present
objections to the proposed action to a neutral decision-maker.
If someone has a criminal trial on an exact issue that a board hearing would hear….
They would probably already have enough due process
Who do the 1st and 14th amendments apply to?
generally apply only to the actions of governments and government officials, not to the actions of privately-owned companies such as the
insurance company.
Steps to determine whether a regulation to commercial speech is valid:
: (i) initially, whether the commercial speech concerns a lawful activity that is not misleading or fraudulent;
(ii) the regulation must serve a substantial government interest;
(iii) it must
directly advance that interest; and
(iv) it must be narrowly tailored to serve the substantial interest.
This fourth part of the test does not require that the least restrictive means be used. Rather, it must be a reasonable fit between the government interest and the means chosen.
What does strict scrutiny apply to?
Strict scrutiny applies to regulations involving either suspect classifications or fundamental rights, with the burden of persuasion on the government.
What does intermediate scrutiny apply to?
Intermediate scrutiny applies when there is a classification
based on gender or legitimacy, with the burden of persuasion likely on the government.
Is nudity alone enough for obscenity?
No
Is false or misleading commercial speech constitutionally protected?
No, regardless of whether the speaker knew it was false or misleading
What are examples where rational basis scrutiny is appropriate when alienage classifications restrict the right to participate in functions that are central to self-government?
voting, running for office, or serving on a jury, public school teacher
What is the standard for rational basis?
the law should be upheld because if it is rationally related to a legitimate government interest
cannot be arbitrary or irrational
What must the government demonstrate for eminent domain?
When the government takes property under eminent domain, it must demonstrate that the “taking” is for
public use, which has been construed broadly.
For a use to be “public,” it must only be rationally related to a legitimate public purpose.
The government may also take private property and turn it over to another private party, as long as
the public will derive some benefit.
the construction of the luxury hotel will boost tourism, it will benefit
the public and satisfy the “public use” requirement.
What can a property owner challenge exercise of eminent domain on?
on multiple grounds, including that the taking is not for a valid public use
How does a license relate to due process?
A license is a property right created by state law and cannot be revoked without due process of law.
Part of that process may include the ability to cross-examine accusers.
If something has an explicit racial classification…?
Triggers strict scrutiny: A court would likely uphold these measures only if the government could prove that they are necessary to serve a compelling public interest
Can a state force an organization violating a local ordinance be forced to accept the residents as members?
No - rhe U.S. Supreme Court has held that the forced inclusion of an unwanted person in a group
violates the group’s freedom of association if including that person would significantly affect the group’s ability to
express its viewpoints.
The freedom of expressive association entitles the environmental organization to refuse membership to the residents because admitting them would inhibit the organization’s expression regarding the mining
operations.
Restricting ALL 1st amendment activities somewhere would be:
overly broad because prohibiting all First Amendment activities on the beach would restrict substantially more speech than the First Amendment allows to be restricted.
When a general and neutral law affects the ability to practice religion
The court is likely to find the amendment constitutional because it is a law of general applicability, with no
evidence that it was motivated by the desire to interfere with religion.
Although the government may not punish
someone on the basis of their religious beliefs by denying benefits or imposing burdens because of those beliefs, that
is not what is happening here.
The city is not singling out a religious group or denying benefits on the basis of religion
Time/place/manner restrictions on adult shops:
The for evaluating time, place, and manner restrictions is whether the restriction is designed
to serve a substantial governmental interest in a way that does not unreasonably limit alternative avenues of
communication.
Preventing adverse secondary effects associated with adult theaters and bookstores is a substantial governmental interest.
Standard for government imposed conditions on the development of a property
Government-imposed conditions on the development of a property constitute a taking unless the
conditions are rationally related to preventing harms caused by the new development.
What is required when one claims violation of a constitutional right?
When challenging the deprivation of a constitutionally-protected right without due process of law, a
plaintiff first must demonstrate that she has a constitutionally-protected right
Prohibiting all of a certain type of commercial speech (all commercials on red meat)?
Not narrowly tailored enough
When an individual makes a threat intended to intimidate the recipient, is this speech protected?
No
Is nude dancing protected by the 1st amendment?
Nude dancing is expressive conduct protected by the First Amendment, but the Supreme Court has
nevertheless upheld bans on nude dancing and public nudity more generally.
The ordinance here is a content-neutral
prohibition because it does not target any message conveyed by public nudity, so it’s okay.
When will a regulation in a public forum be ok?
If it is narrowly tailored to further a significant government interest that is unrelated to the suppression of free expression, and individuals have other ways of communicating
their messages.
content-neutral
What does the 15th amendment provide?
The Fifteenth Amendment provides that the right to vote shall not be abridged on the basis of race or
color.
Can you take oil and gas rights without compensation?
No, because the law effects a taking of property without just compensation.
What are the restrictions on the ability of individuals to be candidates?
Restrictions on the ability of individuals to be candidates must be examined to determine whether they
violate the First Amendment freedoms regarding association and expression or the Fourteenth Amendment Equal Protection Clause.
What right if something infringes on the right of political association?
First amendment
For strict scrutiny a statute must be:
The state must demonstrate that the statute is the least restrictive means of achieving a compelling state
interest.
Conditioning building or development permits on a landowner
Municipalities often attempt to condition building or development permits on a landowner’s:
(i) conveying title to part,
or all, of the property to the government; or
(ii) granting the public access to the property.
Such exactions constitute an
uncompensated taking unless:
(i) the government can show that the condition relates to a legitimate government
interest (nexus); and
(ii) there is a “rough proportionality” between the size of the give-back demanded by the city and
the burden on the public caused by the proposed development.
Loyalty oaths will not be upheld if they are:
overbroad,
including prohibiting constitutionally-protected activities
or are so vague that they have a chilling effect on First Amendment activities
Balancing test for: Speech that is not made pursuant to an
employee’s official duties, and which is a matter of public concern, such as regarding policies of elected officials
Requires courts to balance the employee’s rights as a citizen to comment against the government’s interest as an
employer in the efficient performance of public service.
The U.S. Supreme Court has held that the government may
not fire an employee because of the employee’s political views or affiliations unless certain political views or affiliations are required for the effective performance of the employee’s job.
Can something redress historical discrimination generally, instead of remedy prior discrimination by this particular district.
Equal protection violation. This does not constitute
a compelling interest required to satisfy strict scrutiny.
When a neutral law of general applicability impacts a relgious practice?
.When a neutral law of general applicability impacts a religious practice, the law is subject to rational basis
review.
There is no inquiry into the extent of the impact or the sincerity of the religious beliefs.
The law must merely be
rationally related to a conceivable legitimate state interest.
To establish a violation of the Free Exercise Clause, the challenger must show what?
intent to target religion by
the government.
When such intent is established, courts will employ strict scrutiny over the government action, which
often invalidates the restriction in question.
Content-based restriction on free speech?
Because the statute is a content-based restriction, it is subject to strict judicial scrutiny. Speech restrictions
rarely survive strict scrutiny; the government must prove that the restriction is necessary to further a compelling
government interest. Even if the government’s interest in preventing employees from revealing trade secrets was
deemed compelling, Congress could enact legislation utilizing less speech-restrictive means to protect trade secrets.
How to first amendment rights apply to government contractors and officials?
The First Amendment rights of free expression and free association apply to government contractors in
the same manner as they apply to government employees.
Government officials are prohibited from penalizing
employees and contractors because of their political beliefs or associations unless political beliefs or affiliations are
relevant to job performance.
Here, the government contract is for road construction, which does not involve political
policy-making.
Is a professor’s discharge by a private university state action?
The protections afforded by the Fourteenth
Amendment apply only to conduct that is attributable to the state. Because the professor was discharged by a private university and not by a state actor, and the state was not significantly involved in the private university, nor did it take an affirmative act approving of the firing of the professor, the Fourteenth Amendment does not apply.
If someone is protesting the way that
the state government is treating her compared to people who are similarly situated, the most applicable and strongest
constitutional claim is?
Based in equal protection
Time, place, and manner
regulations on speech in public forums?
It must be content-neutral, narrowly tailored to serve an important/substantial government interest, and leave open alternative
channels of communication.
Can a dress code trigger heightened judicial scrutiny?
not without facts to suggest that the purpose of the code is to discriminate against female students. Without this, just rational basis
What is a bill of attainder?
a legislative act that inflicts punishment without a judicial trial upon individuals who are designated
either by name or in terms of past conduct
Standard for the custody of one’ children - strict scrutiny
The Court uses the strict scrutiny standard when a suspect classification or fundamental right is involved.
Under this standard, a law will be upheld only if it is necessary to achieve a compelling or overriding government purpose.
The custody of one’s children has been held to be a fundamental right, and therefore strict scrutiny will apply
Law it’s DITCHED if it is not narrowly tailored to serve a compelling state interest
Easement Across a Portion of Private Land
The Takings Clause of the Fifth Amendment requires that
the government provide just compensation to owners for the land it takes. Just compensation is determined by the fair market value of the taken land.
even if the state law allows the owner to charge a fee to recover costs from hikers
who use the trail on the farm, the fee is not equivalent to the fair market value of an easement across the land.
Time, place, manner regulations in public forums
The government may regulate speech in public forums with reasonable time, place, and manner regulations.
The regulation must:
(i) becontent-neutral (regarding both subject matter and viewpoint);
(ii) be narrowly tailored to serve an important
governmental interest; and
(iii) leave open alternative avenues of expression.
Public employees speaking on a matter of public concern
public employee has a First Amendment right to speak on a matter of public concern, and may not be
discharged for that speech unless the employee’s actions interfere with the functions of the government.
If an ordinance disproportionately affects women to men, when does it amount to sex discrimination?
Without any evidence that the city passed the ordinance in order to disproportionately affect women, it
does not amount to sex discrimination and must only satisfy mere rationality review, which it does, given its legitimate interest in protecting the health and safety of children through licensing regulation.
Time, place, manner restrictions on religiously-motivated conduct
The government may regulate the time, place, and manner of religiously-motivated conduct as long as
the regulation is neutral and serves an important public interest.
Here, the regulation is neutral on its face and in
application, the Superintendent’s views notwithstanding. The interest in public safety is important. Therefore, the
denial of the permit would be valid.
Who does the 14th amendment apply to?
The Fourteenth Amendment only limits the power of states and state actors.
The baseball franchise is a
private entity, and this Amendment cannot reach it unless somehow it has become a state actor.
The franchise can
only be a state actor if it performs some traditional governmental function or if the government has become very involved in the management of the franchise.
Asking about association of bar applicants:
The freedom of association under the** First Amendment** prevents a state from inquiring about an
applicant’s associations for the purpose of withholding a right or benefit due to the individual’s beliefs.
Despite the legitimate interest in determining the character and professional competence of bar applicants, the state may use other means to determine this, which are less restrictive of First Amendment freedoms.
Can race be the predominant factor in drawing boundaries of a voting district?
Race cannot be the predominant factor in drawing the boundaries of a voting district unless the district plan can
pass muster under strict scrutiny.
Residency or Citizenship requirements on non-residents of states
Under the Privileges and Immunities Clause of Article IV, a state may not impose residency or citizenship
requirements on non-residents without demonstrating a substantial interest justifying the classification.
Broadcasting a performance?
The U.S. Supreme Court has held that broadcasting a performance, and by extension appropriating the action by the performer, is not protected by the First Amendment.
Despite the fact that the television station has a First and Fourteenth Amendment right to publish information, it does not have any immunity under the Constitution for liability in tort if it deprives a person of the
commercial value of that person’s performance.