Con Law Flashcards
Spending Power Conditions
1) Clearly stated
2) Related to the purpose of the program
3) Not unduly coercive
Privileges and Immunities Generally
Prohibits discrimination by a state against nonresidents of the state when the discrimination concerns fundamental rights (rights relating to commercial activities or civil liberties)
Only applies if discrimination is intentionally protectionist in nature
Privileges and Immunities Test
Invalid unless the state has a substantial justification and there are no less restrictive means
Dormant Commerce Clause Generally
States are prohibited from discriminating against or unduly burdening interstate commerce
Dormant Commerce Clause: Discriminatory Regulations Rule and 3 Exceptions
Almost always invalid unless:
1) Valid if it furthers an important, noneconomic state interest and there is no reasonable nondiscriminatory alternative available
2) Market Participant
3) It involves government action regarding the performance of a traditional governmental function (i.e. waste disposal)
Dormant Commerce Clause: Nondiscriminatory Regulations
Valid unless the burden outweighs the promotion of a legitimate local interest
Court will also consider whether less restrictive alternatives are available
State Action Requirements
1) Exclusive public función
2) Significant state involvement
Due Process Generally
Government cannot take a person’s life, liberty, or property without fair process (notice and a hearing)
Due Process Balancing Test
1) Important of the interest to the individual
2) Value of the specific procedural safeguards to that interest
3) Government interest in fiscal and administrative efficiency
Substantive Due Process Generally
If the law limits the liberty of all persons engaged in some activity
Equal Protection Generally
If a law treats a person or class or persons differently from others
Fundamental Rights
Right to travel Right to privacy - marriage - use of contraceptives - procreation - abortion - obscene reading material - keeping extended family together - rights of parents - intimate sexual conduct Right to vote First Amendment rights
Strict Scrutiny
Law is valid if it is necessary to achieve a compelling government purpose
Fundamental rights
Suspect Classifications
Intermediate Scrutiny
Law is valid if substantially related to an important government purpose
Quasi-suspect classifications
Rational Basis
Law is valid if it is rationally related to a legitimate government interest
Non-fundamental rights
Non-suspect classifications
Suspect Classifications
Race
National Origin
Sometimes Alienage (only state and local)
Alienage Exception:
Does not apply to state and local where it involves participation in self-government process or undocumented aliens
Quasi-Suspect Classifications
Gender
Legitimacy
Proving Discriminatory Classification Under Equal Protection
For strict or intermediate scrutiny, must also prove discriminatory intent through:
1) a law is discriminatory on its face
2) a discriminatory application of a facially neutral law
3) a discriminatory motive behind the law
Abortion Test
Pre-viability: can’t place an undue burden on woman
Post-viability: can prohibit abortion unless necessary to protect woman’s health or safety
Content-Neutral Speech Restriction Test
Must advance important interests unrelated to the suppression of speech and must not substantially burden more speech than necessary to further those interests
(intermediate scrutiny)
3 Situations Where Regulation of Speech is Facially Invalid
1) Vagueness
2) Overbroad
3) Unfettered Discretion
Public Forum Definition
Public property historically open to speech-related activities (streets, sidewalks, and public parks)
Designated Public Forum Definition
Public property that is not historically open to speech-related activities but which government has opened for such activities on a permanent or limited basis (schoolrooms that are open for after-school use)
Limited Public Forum Definition
Government property not historically linked with speech and assembly but open for specific speech activity (school gym open for debate on particular community issue)
Like a Designated Forum, but limited to a specific category of speakers or topics; (e.g.,a student conference center)
Nonpublic Forum Definition
Forums not held open for speech (military bases, school while in session, government workplaces)
Public and Designated Public Forums Test
1) Content neutral
2) Narrowly tailored to serve an important government interest
3) Leave open alternative channels of communication
Content-Based Speech Restriction Test
Must be necessary, and narrowly drawn, to serve a compelling government interest
Nonpublic and Limited Public Forums Test
1) Viewpoint neutral
2) Reasonably related to a legitimate government purpose
Low-Level Speech (3 Categories)
1) Defamatory Statements
2) Commercial Speech
3) Lewd/Profane/Indecent
Unprotected Speech
1) Advocacy of Imminent Lawless Action
2) Obscenity
3) Child Pornography
4) Fighting Words
5) True Threats
Imminent Lawless Action Test
Must show imminent illegal conduct is likely and that speaker intended to cause it
Fighting Words
Personally abusive words that are likely to incite immediate physical relation in an average person
Obscenity Elements
1) Appeals to prurient interest in sex (community standards)
2) Is patently offensive and affront to contemporary community standards
3) Lacks serious value (national standard)
Defamatory Speech: Public Official/Figure
Must prove actual malice
Defamatory Speech: Private Figure in Matter of Public Concern
Must prove negligence and actual injury
Defamatory Speech: Private Figure in Private Matter
Must prove negligence
Commercial Speech
Speech that proposes unlawful activity or is misleading or fraudulent receives less protection
Otherwise upheld unless:
1) Serves a substantial government interest
2) Directly advances that interest
3) Narrowly tailored to serve that interest
Prior Restraint
Government must show special societal harm and have the following safeguards:
1) Standards must be narrowly drawn, reasonable and definite
2) Injunction must be promptly sought
3) There must be prompt and final determination
Freedom of Association
Justified if compelling government interest, unreleased to the suppression of ideas, if the infringements are the least restrictive means
Free Exercise Clause
First Amendment guarantees that citizens may freely engage in the religious activities of their choice
Establishment Clause Generally
Prohibits the government from endorsing, supporting, or becoming too involved in religion and religious activities
Establishment Clause Test
Invalid unless:
1) Secular purpose
2) Primary effect neither advances nor inhibits religion
3) Does not produce excessive government entanglement with religion
