Con Law

Question 1

Commercial Speech Protection

Answer 1

Government can only ban commercial speech that is:
1. False or misleading, or
2. Concerns unlawful activity

Rule - Government can only regulate protected commercial speech if the government proves that the regulation:
1. Directly advances
2. A substantial government interest, and
3. Is not more extensive than necessary to serve that interest

Question 2

Taxing Power Limitations

Answer 2

Rule - Congress can impose taxes but indirect federal taxes are only constitutional if:
1. Geographically uniform - imposed identically in every state the good is found
2. Reasonably related to revenue production

Question 3

DCC - Non-Discriminatory Law

Answer 3

Rule - A nondiscriminatory state law will be upheld unless the challenger can show that the law’s burden on ISC clearly exceeds its local benefit.

Question 4

DCC - Discriminatory Law

Answer 4

Rule - A state law that discriminates against out of state commerce will be unconstitutional unless:
1. It is necessary to further a legitimate, non-economic interest, and
2. There are no reasonable nondiscriminatory alternatives

Question 5

Procedural Due Process Test

Answer 5

1. Is it a protected interest (life, liberty, property)
2. If yes - To determine how much process is due, the court looks to three factors:
   (1) The private interest affected
   (2) Risk of erroneous deprivation with the current procedures and probable value of additional/substitute safeguards, and
   (3) Gov’s interest, including burden of providing additional process

Question 6

SDP Scrutiny

Answer 6

1. Fundamental right (First VIP & liberty) –> Strict scrutiny
2. Gender or legitimacy –> intermediate scrutiny
3. Not fundamental right –> rational basis
4. 2nd Amendment –> Historical tradition test

Question 7

Intermediate Scrutiny

Answer 7

Rule - Under intermediate scrutiny, the government bears the burden to show that the law is substantially related to an important government interest.

Question 8

Content Based Restrictions

Answer 8

If the regulation does not regulate not symbolic or unprotected speech –> apply SS

Question 9

Viewpoint Based Restriction

Answer 9

Apply strict scrutiny

Question 10

Time, Place, Manner & Public Forum and Designated

Can Not Leave

Answer 10

Rule - A regulation in a public forum must be:
1. Content neutral
2. Narrowly tailored, and
3. Leave open alternative channels of communication

Question 11

Non-Public Forum

Virtual Reality

Answer 11

Rule - A regulation of speech in a private forum must be:
1. Viewpoint neutral, and
2. Reasonably related to a legitimate government interest

Question 12

Defamation

Answer 12

Public Figure or Public Official –> can only recover if show actual malice (knowing and reckless falsity)

Private Figure –> negligent falsity

Question 13

Prior Restraint Standard

Answer 13

Rule - A prior restraint is impermissible unless:
1. Standards are narrowly drawn, reasonable, and definite, and
2. Prompt review of the validity of the restraint

Question 14

Establishment Clause

Answer 14

If law has facial religious preference –> Strict Scrutiny

No facial preference but has the impact of favoring religion –> Historical Practices and Understanding Test

Question 15

Free Exercise Clause

Answer 15

If law intentionally targets religious conduct –> strict scrutiny

If law is generally applicable –> rational basis

Question 16

Regulatory Takings Test

Answer 16

1. Character of the government action
2. Owner loses all economically beneficial use of property
3. Reasonable investment-backed expectations

Question 17

Organizational Standing

Answer 17

1. Members themselves would have standing (injury, causation, redressability)
2. Interests at stake relate to organization’s purpose, and
3. If damages are sought, lawsuit does not require member participation

Question 18

Press & Public Rights to Attend Criminal Trials

Answer 18

Have right to attend but criminal proceedings can be closed if court can show closure satsifies strict scrutiny