Con Law Flashcards
What are the fundamental rights?
- Privacy rights
- To marry
- Procreation
- Private education
- Family relations or the right of the nuclear family to live together
- sexual contact, fully consenting adults, private intimate sexual conduct not commercial in nature - Right to travel
- Right to vote
How can a plaintiff establish ripeness before a law or policy is enforced?
By showing:
1. The issues are fit for judicial decision;
2. P would suffer substantial hardship in the absence of review.
What are the 3 major components of standing?
Injury, causation, and redressability.
For substantive due process, what are the levels of scrutiny and what do they apply to?
- Strict scrutiny (is the law necessary to achieve a compelling gov’t interest?): applies to fundamental rights (privacy, interstate travel, voting, 1A
- Rational basis (is the law rationally related to a legitimate gov’t interest?): applied when no fundamental right involved
Under the 5th amendment, when may the gov’t take private property?
- For public use, and
- gov’t must pay just compensation
In a takings context, what are the factors to be considered when a regulation decreases economic value?
- Gov’t interest to be promoted;
- Diminution of value to owner;
- Whether reg substantially interferes with investment-backed expectations of the owner.
When can speech be considered incitement?
- Intended to produce imminent lawless action, and
- likely to produce such action.
What is a “true threat”?
Words that are intended to convey to someone a serious threat of bodily harm.
In 1A context, define “Actual Malice”
Statement made with:
- knowledge that it was false OR
- reckless disregard as to its truth or falsity.
Standard for private figure suing on a matter of public concern?
P may recover:
- Actual damages for negligence
- Punitive/presumed damages for actual malice
When is commercial speech NOT protected under 1A?
When it is:
1. False
2. Misleading
3. About illegal products or services
When will regulation of commercial speech be upheld?
If it:
1. Serves a substantial gov’t interest;
2. Directly advances that interest; and
3. is narrowly tailored to serve that interest.
What makes speech obscene?
Depiction of sexual conduct specifies by law that, taken as a whole:
- Appeals to the prurient interest (contemporary community standard)
- Patently offensive (CCS)
- No serious value (national reasonable standard)
1A standard for defamation, P is public official/figure?
Must show elements of defamation, plus:
- Falsity
- Actual malice
– knowledge of falsity
– reckless disregard for the truth
What level of scrutiny for (1) content-based regulations, and (2) content-neutral regulations?
(1) content-based: strict scrutiny
(2) content-neutral: intermediate scrutiny
– limits speech on some other basis (often TPM)
– Not overbroad: can’t burden more speech than necessary to promote gov’t interest
Regarding speech on gov’t property, what are the forums and associated standards of review?
Traditional Public Forum AND Designated Public Forum:
- content-based: SS
- content-neutral: IS (must have ample alternative channels)
Limited Public Forum AND Non-Public Forum:
- can restrict speech to preserve spaces for intended use;
- BUT can’t engage in viewpoint discrimination.
What is a traditional public forum?
Public property that has historically been open to speech-related activities.
Examples: streets, sidewalks, public parks.
What is a designated public forum?
Public property not historically open to speech-related activities, but which the gov’t has thrown open for such activities on a permanent or limited basis.
Examples: town hall open for use by social, civic, or recreation groups.
What is a limited public forum?
Gov’t forums not historically open generally for speech but opened for specific speech activity.
Example: school gym opened to host debate on community issue.
What is a non-public forum?
Gov’t property not historically open generally for speech and not held open for specific speech.
Examples: military bases, gov’t workplaces.
In an equal protection context, what are the different levels of scrutiny and what do they apply to?
Strict Scrutiny (is the law necessary to achieve a compelling gov’t interest?): Applies when suspect class involved:
- Race
- National origin
- Alienage (state/local) (except RB for positions and acts essential to self-governance.
Intermediate Scrutiny (is the law substantially related to an important gov’t interest?): Applies when quasi-suspect class involved:
- Gender
- Legitimacy
Rational Basis (is the law rationally related to a legitimate gov’t interest?): Applies when no suspect or quasi-suspect class:
- Age
- Disability
- Wealth
- Alienage (federal)
What are the 3 ways to prove discriminatory classification/intent of a statute?
- Facial discrimination
- Discriminatory application (need intent)
- Disparate impact (need intent)
Procedural due process requires:
- Notice;
- An opportunity to be heard; AND
- A neutral decisionmaker.
Are due process rights subject to waiver?
Yes, if the waiver is made voluntarily and knowingly.
Regarding procedural due process, the type and extent of the required hearing are determined by a balancing test that weighs:
- Importance of the interest to the individual; AND
- value of procedural safeguards to that interest; AGAINST
- the government interest in fiscal and administrative efficiency.
For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has __________.
A legitimate claim or entitlement to the benefit.
When may continued public employment be a protected property interest for procedural due process purposes?
When there is a clear practice or mutual understanding that an employee can be terminated only for “cause.”
The privileges and immunities clause of Art IV prohibits discrimination by a state against nonresidents of the state when the discrimination concerns:
- Important commercial activities;
- fundamental rights
Regarding privileges and immunities clauses, if a state law burdens an important commercial activity or fundamental right, it will be valid unless the law is:
- Necessary to achieve an important gov’t purpose; and
- there are no less restrictive means available.
- What does the Art. IV priv/imm clause protect?
- What about the 14A clause?
- Prohibits a state from discriminating against nonresidents regarding commercial activities and fundamental rights.
- The rights of national citizenship (e.g., right to vote for federal officers, right to interstate travel).
