Con Law Big Rules Flashcards
Content-Based Restrictions get what scrutiny?
The government must satisfy strict scrutiny and show that it is narrowly tailored to a compelling governmental interest
Content-neutral restrictions
Generally, the government MAY regulate time place and manner of content-neutral speech if the regulation shows
1) it is narrowly tailored to achieve a significant government interest and
2) leaves open alternative channels of communication
4 Forum Types
Traditional public forum
Designated public forum
Limited public forum
Non-public forum
Scrutiny for Traditional and Designated Public Forum Scrutiny
For content-based restrictions –> strict scrutiny
Content neutral –> intermediate scrutiny
Define Designated Public Forum
Not traditionally been available to the public for free speech but that the government chooses to make available
Limited Purpose public forums definition
Specifically opened by the government as open to certain groups or topics.
Restrictions must be 1) reasonable and 2) viewpoint neutral
Non public forum
Public places that have traditionally been limited for free speech – schools, military bases, jails, inside of courthouse, and airports
Standard for Limited Public and Non public forums
1) reasonable
2) view point neutral
Religious Speech in Public Forums
Apply regular public forum rules – discrimination on the basis of religious speech is invalid viewpoint/content-based discrimination
Free Exercise Clause
Smith Test – 1) neutral and generally applicable –> rational basis
NOT neutral and generally applicable –> strict scrutiny
Establishment Clause Test
1) No discrimination amongst religions
2) No endorsement
3) where there’s potential Establishment clause violation unless there’s a history and tradition going back to the Founders
Privileges and Immunities Clause Rule
States may not intentionally discriminate against non-residents concerning
a) civil liberties OR
b) important economic activities like ability to earn a livelihood
BUT laws that discriminate against non-residents will be upheld if the State is justified for the discrimination – when
1) substantial reason for difference in treatment AND
2) discriminatory law has a substantial relationship to that reason
DOES NOT PROTECT ALIENS OR CORPORATIONS
5th Amendment Takings
The government may take private property for public use if it provides just compensation
public use – rationally related to conceivable public purpose (very liberal)
just compensation – fair market value at the time of the taking
Two types of Takings
Possessory taking - physically takes or occupies the property
Regulatory takin – regulations deprive owner of all economically viable use or beneficial use
Penn Central Taking Test
Courts taking occurred by balancing private and community interest
1) economic impact
2) extent of interference
3) character of govt action
Land Permits and Takings
Conditions placed on the approval of permits DO NOT constitute an uncompensated taking if
1) there is an essential nexus between the state interest and permit condition AND
2) the govt makes an individualized determination and the condition is roughly proportional
Strict Scrutiny under the Fourteenth Amendment and Fifth
Narrowly tailored to a compelling governmental interest (least restrictive means)
Applies to racial, national origin or alienage
Intermediate Scrutiny
Gender and marital children classification
Government show that the classification is substantially related to an important government interest
Rational basis
Applies to non suspect classes
Party bears burden of showing not rationally related to any legitimate interest (any conceivable interest is sufficient)
Procedural Due Process
Guarantees no deprivation of life, liberty, or property without due process of law
Look at
1) importance of the interest
2) risk of error under current procedures and the value of additional procedures
3) importance of state interest and the burdensome the govt that would arise from the additional safeguards
Fundamental Rights
vote
interestate travel
right to privacy
right to marry
right to procreate
use contraceptives
raise one’s children
Test to deprive fundamental rights
Strict scrutiny
Non-fundamental rights test
Rational basis
Basic requirement for EPC/DPC issues
Government action
Can be a private party if
1) doing a traditional public function (powers traditionally and exclusively reserved to govt)
2) significant govt involvement exists to authorize, encourage, or facilitate private conduct that is unconstitutional
Dormant Commerce Clause
1) No discrimination (economic protectionism) exception for state actor
2) discriminatory impact unless
a) narrowly tailored to achieve a legitimate, non-protectionist state objective and no less discriminatory alternatives
3) unduly burdensome regulations
unconstitutional when
1) burden on interstate commerce
2) clearly excessive to the putative benefits of the state/local govt
Field Preemption
appears the law intself or its legilative history that the federal govt intended to exclusively occupy a given field
5 Restrictions on conditioned federal funds
1) must be unamibious
2) related to federal interest
3) cannot induce unconstitutional
4) cannot be so coercive as to turn pressure into compulsion
5) spending for general welfare
Commerce Clause Regulations
1) channels
2) instrumentalities
3) substantial effect on interstate commerce
When intrastate affected, it is subjected to rational basis
