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Barrrrrrrrr Prep > ConLaw > Flashcards

ConLaw Flashcards

1
Q

Strict Scrutiny Review

A

Regulations affecting fundamental rights or suspect classifications.

Must be necessary to achieve a compelling government purpose.

The burden of proof is on the government

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2
Q

Intermediate Scrutiny Review

A

Regulations involving quasi-suspect classes.

Must be substantially related to an important government purpose.

Burden of proof is (often) on the government

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3
Q

Rational Basis Review

A

Do not affect fundamental rights or suspect classes.

Must be rationally related to a legitimate government purpose. Easy to meet unless arbitrary or irrational.

Burden of proof is on the challenger.

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4
Q

Justiciability

A

Whether there is a case or controversy. No advisory opinions

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5
Q

Is there a case or controversy?

A

What is being requested?
When is it brought?
Does the plaintiff have standing?

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6
Q

Ripeness

A

The issue is fit for a judicial decision and the plaintiff would suffer substantial hardship in the absence of review.

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7
Q

Mootness

A

When there is no ongoing injury, UNLESS there are controversies capable of repetition that evade review; defendant voluntarily stops the offending practice but is free to resume it;class actions where at least one class member’s claim is ripe.

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8
Q

Standing Requirements

A

Injury infact (concrete and particularized)
Causation
Redressability

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9
Q

Standing Exceptions

A

Challenging Tax Liability
10th Amendment
Congressional Spending
Standing to Assert the Rights of Others
Standing of Organizations
Standing for Free Speech Overbreadth Claims
Congressional Conferral
Test Cases

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10
Q

Sovereign Immunity (11th Amendment)

A

Private parties may not sue states in federal or state courts unless there is express waiver or implicit consent.

Plaintiff may sue local governments.

States can sue other states

Bankruptcy

State officers

Congress removes immunity

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11
Q

Abstention Doctrine

A

A federal court will abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law. Federal courts will not enjoin pending state criminal proceedings.

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12
Q

Will the Courts decide political questions?

A

No!

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13
Q

SCOTUS Original Jurisdiction

A

All casses affecting ambassadors, public ministers, consuls, and those in which a state is a party.

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14
Q

SCOTUS Appellate Jurisdiction

A

All cases to which federal judicial power extends under Article III.

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15
Q

Adequate and Independent State Grounds

A

SCOTUS will not exercise jurisdiction if the state court judgement is based on adequate and independent state grounds, even if federal issues are involved.

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16
Q

Is there a Federal Police Power?

A

No!

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17
Q

The Necessary and Proper Clause

A

Congress has the power to make all laws necessary and proper to carry out any of the legislative powers enumerated in Article I, so long as the law doesn’t violate another privision of the Constitution.

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18
Q

Taxing and Spending Power

A

To provide for the general welfare.

Taxing and spending may be for any public purpose not prohibited by the Constitution.

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19
Q

Spending Power Conditions

A

Valid

Congress can impose conditions on the grant of money to state or local governments if they are (1) clearly stated; (2) relate to the purpose of the program; (3) are not unduly coercive, and (4) do not otherwise violate the Constitution.

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20
Q

Under the Commerce Power, Congress may . . .

A

Regulate Channels
Regulate Instrumentalities
Regulate activities that have a substantial effect on interstate commerce.

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21
Q

Can Congress regulate intrastate commerce?

A

If there is a rational basis on which Congress could donduct that the activity in the aggregate substantially affects interstate commerce.

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22
Q

Can Congress compel activity?

A

The Commerce Clause does not give Congress the power to compel activity.

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23
Q

May Congress regulate private discriminatory activities?

A

If it has a substantial effect on interstate commerce.

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24
Q

Congress’s War Powers

A

Congress may declare war, raise and support armies, and provide for navies. They can make economic regulations and create military courts.

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25
Q

Congress’s Investigatory Power

A

Congress has a broad implied power to investigate to secure information for potential legislative or other official action. Congress can subpoen the President’s personal information to advance a legitimate legislative purpose.

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26
Q

Congress’s Property Power

A

Congress can dispose of and make rules for territories and other federal properties. Federal takings must be pursuant to an enumerated power.

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27
Q

Congress’s Postal Power

A

Congress can classify and place reasonable restrictions on the use of mail.

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28
Q

Congress’s Power over Citizenship

A

They may establish uniform rules of citizenship. Resident aliens must get notice and a hearing before they can be deported. They have the power over naturalization.

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29
Q

Congress’s Admiralty Power

A

The power is plenary unless they leave it to a state.

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30
Q

Congress’s Power to Coin Money and Fix Weights and Measures.

A

Yep

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31
Q

Congress’s Patent/Copyright Power

A

Yep

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32
Q

Can Congress Delegate Power?

A

Congress can delegate rulemaking or regulatory power to the executive branch or judicial branch as long as intelligible standards are set and the power isn’t something that is uniquely confined to Congress.

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33
Q

Congress’s Delegation on Major Questions

A

Has the agency historically asserted such power and is there clear congressional authrization?

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34
Q

Can the president use line item vetos?

A

Nope

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35
Q

Can Congress reserve a legislative veto?

A

No, Congress cannot give itself the ability to amend or repeal the existing law without undergoing bicameralism and presentment.

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36
Q

President’s Appointment Power

A

Ambassadors, SCOTUS justices, other officers. He may remove them, too.

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37
Q

Presidential Pardons

A

Pardons may be for any federal offenses but not impeachment or civil contempt.

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38
Q

President’s Veto Power

A

He can veto something Congress presents him, but his veto may be overridden by 2/3 vote of each house.

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39
Q

Pocket Veto

A

If the president does not sign or veto a law within 10 days, it is automatically vetoed if Congress comes out of session.

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40
Q

President’s War Power

A

He serves as commander in chief, and can “act militarily in actual hostilities agains the US without a congressional declaration of war.”

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41
Q

President’s Foreign Relations

A

He represents the U.S.

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42
Q

President’s Treaty Power

A

The president can enter into them, but needs consent of 2/3 of the Senate.

Count as Supreme Law of the Land if self-executing. Supremacy clause applies.

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43
Q

Treaty Power vs. Federal Laws

A

The last in time prevails

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44
Q

Treaty Power vs. Constitution

A

Treaties may not be inconsistent with the Constitution.

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45
Q

Executive Agreements

A

Signed by the President and the head of a foreign state. No need for Senate consent. Prevails over federal law.

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46
Q

Executive Privilege

A

The President has a privilege to keep certain presidential communications secret.

Exception: In criminal proceedings when the prosecution demonstrates a need for such information.

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47
Q

Executive Immunity

A

The President has absolute immunity from civil damages based on any action taken while exercising official responsibilities while in office.

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48
Q

Impeachment

A

POTUS, VP, and all civil officers: majority vote in house to bring the charges, 2/3 vote in Senate.

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49
Q

Powers Exclusive to the Federal Government

A

Powers enumerated either because the Constitution limits the power to the states or if it is expressly reserved for the federal government.

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50
Q

What Amendment grants states power to anything not reserved to the federal government?

A

10th Amendment

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51
Q

State Police Powers

A

General police powers to regulate the health, safety, and welfare of their people.

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52
Q

Is there federal police power?

A

No

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53
Q

When can federal taxes be applied to both state or private entities?

A

If it applies to both the public and private sector.

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54
Q

Anti-Commandeering Clause

A

The 10th Amendment limits Congress’s power to regulate the states alone by requiring states to act in a particular way.

Congress cannot compell states to enact state laws or enforce federal laws.

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55
Q

Can Congress invoke spending conditions?

A

Yes, non-coercive spending conditions on state use of funds do not violate the Anti-Commandeering principle.

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56
Q

Can Congress restrict states from discrimination?

A

Yes, under the Fourteenth Aendment

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57
Q

Intergovernmental Immunity Doctrine

A

States cannot interfere with or control the operations of the federal government.

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58
Q

Supremacy Clause

A

Federal law preempts state law.

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59
Q

Express Preemption

A

When a federal law expressly says that the states may not adopt laws concerning the subject matter of the federal legislation.

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60
Q

Implied Preemption Types

A

Conflict between State and Federal Requirements
State Prevents Achievement of Federal Objective
Field Preemption

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61
Q

Field Preemption

A

A valid federal law may impliedly occupy the entire field even if the state or local law is nonconflicting.

Courts look for intent

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62
Q

Presumption Against Preemption

A

Courts will state with the presumption that historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.

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63
Q

Interstate Compact Clause

A

If an agreement increases the states’ power at the expense of federal power, congressional approval is required.

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64
Q

Article IV Privileges and Immunities Clause

A

No discrimination by a state against nonresidents concerning commercial activities or fundamental rights.

Does not protect corporations or aliens

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65
Q

Exception

A

If the law is necessary to achieve an important government interest and there are no less restrictive means available.

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66
Q

14th Amendment Privileges Or Immunity

A

States may not deny their cirizens the privileges or immunities of national citizenship

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67
Q

Congressional Regulation of Commerce

A

Conflicting state laws are superseded and even nonconflicting state or local laws in the same field may be preempted.

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68
Q

Dormant Commerce Clause

A

A state or local government must not discriminate against or unduly burden interstate commerce.

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69
Q

State and Local Discriminatory Regulations must have:

A

An important, noneconomic state interest and no reasonable nondiscriminatory alternatives available.

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70
Q

Examples when a balancing test is used and consider less restrictive alternatives:

A

State control of corporations
Congressional approval
State as a “market participant”
Traditional government function

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71
Q

Who has the power to regulate foreign commerce?

A

Congress

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72
Q

Tax and Interstate Commerce

A

No discrimination to out-of-state businesses

It may be non-discriminatory if there is a :

Substantial nexus when a business avails itself in that state

Fair apportionment

Fair Relationship

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73
Q

Use Taxes and Interstate Commerce

A

Permissible in buyer’s state

Is there a substantial nexus?

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74
Q

Sales Taxes and Interstate Commerce

A

Generally do not discriminate against interestate commerce.

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75
Q

Ad Valorem Property Taxes

A

Based on the assessed value of the property in question.

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76
Q

When does Interstate Transportation Begin?

A

When (1) it is deliverd to an interstate carrier or (2) actually starts on the interstate journey

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77
Q

Tax on Instrumentalities:

A

Is there a taxable situs that has been properly apportioned?

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78
Q

Can you have “doing business” taxes?

A

Yes if substantial nexus, fairly apportioned, and non-discriminatory.

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79
Q

Can states tax foreign commerce?

A

Not really, limited by import-export Clause and commerce clause

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80
Q

Can the US sue a state?

A

Yes, without its consent

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81
Q

Can a state sue the US?

A

Only with consent

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82
Q

Can one state sue another?

A

Yes, in federal court, without its consent

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83
Q

Who does the Constitution apply to?

A

Only government action

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84
Q

Does the Constitution apply to the states?

A

Yes, the 14th amendment imcorporates almost all of the Bill of Rights except for 5th amendment grand jury requirement and 7th amendment jury trial requirements for civil cases.

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85
Q

Thirteenth Amendment

A

Prohibits anyone, even private actors, from slavery and involuntary servitude

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86
Q

Who has the right to protect citizenship rights?

A

Congress (14th Amendment Clause 5)

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87
Q

When does the constitution apply without state action?

A

When an entity performs exclusive public functions or has significant state involvement.

88
Q

Exclusive Public Functions

A

Activities that are so traditionally the exclusive prerogative of the state are state action no matter who performs them.

89
Q

When does state action exist without direct state actors?

A

When a state affirmatively facilitates, encourages, or authorizes acts of discrimination OR where there is sufficient entwinement between the state and private party.

90
Q

Where is the due process clause?

A

5th Amendment for federal government
14th Amendment for states

Must be intentional, not negligent

91
Q

Deprivation of Liberty:

A

Loss of significant freedom of action OR
Denied a freedom provided by the Constitution or a statute

92
Q

Deprivation of Property:

A

Personal and real property, and government benefits entitled to with reasonable expectation of continued receipt.

93
Q

What type of process is due process?

A

Notice
An opportunity to be heard
Neutral Decisionmaker

94
Q

Notice of due process deprivation must be:

A

Reasonably calculated to inform the person of the deprivation

95
Q

Factors to be weighed at a due process deprivation hearing

A

Importance of interest to the individual
Procedural safeguards
Government interest in fiscal and administrative efficiency

Usually but not always given a predeprivation hearing.

96
Q

Neutral decisionmaker for due process deprivation

A

No actual bias nor serious risk of actual bias

97
Q

Can due process rights be waived?

A

Yes

98
Q

Substantive Due Process Standards

A

Strict scrutiny when it comes to fundamental rights
Rational basis for all other rights

99
Q

Fundamental Rights protected by Substantive Due Process

A

First Amendment Rights
Right to interstate travel
Privacy-related Rights
Voting

100
Q

Substantive Due Process vs. Equal Protection

A

Substantive due pocess questions limit rights of all person.
Equal protection questions treat persons or a class of persons differently from others

101
Q

Privacy-Related Rights under due process:

A

Marriage
Procreation
Use of Contraceptives
Rights of Parents
Keeping Extended Family Together
Obscene Reading Material
Right to Interstate Travel
Right to Vote
Right to Bear Arms
Intimate Sexual Conduct

102
Q

Privacy-Related Rights under due process:

A

Marriage
Procreation
Use of Contraceptives
Rights of Parents
Keeping Extended Family Together
Obscene Reading Material
Right to Interstate Travel
Right to Vote
Right to Bear Arms
Right to Fair Notice
Intimate Sexual Conduct
Right to Refuse Medical Treatment

103
Q

Right to Bear Arms Standard of Review

A

The government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation.

104
Q

Is there a fundamental right to assisted suicide?

A

No

105
Q

Can the government compel vaccination against contagious diseases?

A

Yes

106
Q

Where in the Constitution are the equal protection clauses?

A

Fifth Amendment: federal government
Fourteenth Amendment: states

107
Q

Equal Protection–Fundamental Right or Suspect Classification

A

Strict Scrutiny

108
Q

Equal Protection–quasi suspect classification

A

Intermediate Scrutiny

109
Q

Proving Discriminatory Classification–Equal Protection

A

Discriminatory Intent

110
Q

3 Kinds of Discrimination–Equal Protection

A

Discriminatory on its face
Discriminatory as-applied
Disparate Impact

111
Q

Suspect Classifications–Equal Protection

A

Race
National Origin
Alienage (state and local only)

112
Q

School Integration–Primary and Secondary School

A

No intentional segregation.
Assigning students to a public school on the basis of race solely to promote diversity is not valid.

113
Q

Affirmative Action (“Benign Government Discrimination”)

A

Government action that favors racial or ethnic minorities is subject to the same strict scrutiny standard as it does against.

114
Q

Can the government remedy past discrimination?

A

Yes, if the past discrimination was persistent and readily identifiable.

115
Q

Can government action have a compelling interest in affirmative action?

A

Only if it is narrowly tailored to that interest

116
Q

Can colleges and universities use affirmative action to have a diverse student body?

A

Yes, but limited in that it must be a compelling interest, race and ethnicity can be used as a factor in holistic review, and the school must show no workable race-neutral alternatives would assure the diversity sought.

117
Q

Discriminatory Legislative Apportionment

A

If a plaintiff can show a redistricting plan was drawn on the basis of race discriminations, strict scrutiny unless the government can show the plan is narrowly tailored to serve a compelling state interest.

118
Q

Alien Classification–Federal

A

not subject to strict scrutiny.
Valid if not arbitrary and unreasonable.

119
Q

Alien Classification–State and Local

A

Subject to strict scrutiny

120
Q

Alien Classification–State and local self-governance

A

Rational basis review if a law discriminates against aliens here

121
Q

Gender Classifications–Equal Protection

A

Intermediate Scrutiny
Substantially Related to an important government purpose

122
Q

Nonmarital Children–Equal Protection

A

Intermediate scrutiny
Substantially related to an important government interest.

123
Q

Equal Protection–Animus

A

Animus will not meet rational basis review

124
Q

Takings Clause

A

Fifth Amendment
Public property may only be taken (1) for public use and (2) the government must pay just compensation

125
Q

Takings Clause–What kind of property?

A

Personal
Real
Certain intangibles

126
Q

What is the difference between a taking and a regulation?

A

A regulation does not require compensation

127
Q

Physical Takings

A

Confiscation of a person’s property or a permanent and regular physical occupation of a person’s property by the government

128
Q

Can temporary occupations be a taking?

A

Sometimes, depending on:
Degree of invasion
Duration
Government’s intent
Foreseeability of the result
Character of the property
Interference with Use of the property

129
Q

Development Exception to Takings

A

Count as a taking unless:
1. government can show essential nexus between the condition and the proposed development
2. the adverse impact is roughly proportional to the loss caused to the property owner from the forced transfer

130
Q

Emergency Exception to Takings

A

No taking is found if it is made pursuant to a public emergency such as war

131
Q

Use Restrictions (Regulatory Takings)

A

Denial of all economic value in land

Counts as a taking unless the principles of nuisance or property law make the use prohibitable.

132
Q

Decreasing Economic Value by Taking–Balancing Test

A

Regulations that merely decrease the value of property are not a taking if they leave an economically viable use for the property.

A court will consider:
1. government interest to be promoted
2. diminution in value to owner
3. substantially interferes with distinct, investment-backed expectations of the owner

133
Q

Takings–Public Use

A

Is the action rationally related to a legitimate public purpose?

134
Q

Takings–Just Compensation

A

Fair market value of the property at the time of the taking.

135
Q

Inverse Condemnation

A

Pay the property owner just compensation or terminate the regulation and pay the owner for damages

136
Q

The Contract Clause

A

Limits the ability of state and local governments to enact laws that retroactively impair contract rights.

137
Q

Is the contract clause applicable to the federal government?

A

No

138
Q

Contract Clause–Private Contracts

A

Intermediate Scrutiny if the legislation substantially impairs an existing private contract. Must serve an important and legitimate public interest and is reasonably and narrowly tailored

139
Q

Contract Clause–Public Contracts

A

Heightened scrutiny when the state is a party to the contract

140
Q

Ex Poste Facto Laws

A

Neither the states nor a federal government may pass a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner.

141
Q

When is a statute violating ex poste facto laws?

A
  1. makes criminal an act that was innocent when done
  2. imposes a greater punishment for an action than was imposed for the act when it was done
  3. reduces the evidence to convict a person of a crime from what was required when the act was committed
142
Q

Does the Ex Poste Facto Clause apply to civil cases?

A

Nope

143
Q

What is a bill of attainder?

A

Bills of attainder are legislative acts that inflict punishment on individuals withut a judicial trial.
No way Jose

144
Q

If a retroactive law does not violate the Contracts Clause, Ex Poste Facto Clause, or Bill of Attainder Clause, is it automatically valid?

A

No, it must still pass muster under the Due Process Clause

145
Q

What is speech?

A

Words, symbols, and expressive conduct.

Expressive conduct is inherently expressive and intended to convey a message or reasonably likely to be perceived as conveying a message.

146
Q

Unprotected Speech

A

Incitement
Fighting Words
Obscenity
Defamation
Some Commercial Speech

147
Q

Unprotected Speech–Encitement

A
  1. intended to produce imminent lawless action and 2. is likely to produce such action.
148
Q

Unprotected Speech–Fighting Words

A

Personally abusive words that are likely to incite immediate physical retalitiation in an average person. Must be more than merely annoying. True threats are among fighting words (words intended to convey to someone a serious threat of bodily harm).

Statutes must be viewpoint neutral

149
Q

Unprotected Speech–Obscenity

A

Describing or depicting sexual conduct specified by statute that, taken as a whole, by the average person:
1. appeal to prurient interest in sex (contemporary community standard)
2. patently offensive (contemporary community standards) AND
3. lacks serious literary, artistic, political, or scientific value (national, reasonable person standard)

150
Q

Is private possession of obscene material in the home punishable?

A

No

151
Q

What is child pornography?

A

Porn that is visual depictions of sexual conduct involving minors.

Simulated pictures of minors is okay.

152
Q

Can zoning regulations limit the size of sex shops?

A

Only if the regulation is designed to reduce the secondary effects of such businesses.

153
Q

Defamation–Public Official/Public Figure/public concern

A

all elements of defamation plus falsity

actual malice

154
Q

Actual malice

A
  1. knowledge of falsity or
  2. reckless disregard to the truth
155
Q

Who are public officials for the purposes of defamation?

A
  1. people holding or running for office
  2. public employees in positions of public importance
156
Q

Who are public figures for the purposes of defamation?

A
  1. assumed roles of prominence in society
  2. achieved pervasive fame and notoriety OR
  3. thrust themselves into particular public controversies to influence their resolution.
157
Q

What is a matter of public concern for puruposes of defamation?

A

Issues important to society or democracy.

158
Q

Private figure suing on a matter of public concern

A

The plaintiff can only recover actual damages for claims of negligenec.
The plaintiff must show actual malice for punitive or presumed damages

159
Q

Intentional Infliction of Emotional Distress

A

need actual malice for public officials or figures.

160
Q

Unprotected Speech-Commercial Speech

A

Commercial speech is not protected if it is
1. false
2. misleading OR
3. about illegal products or services

161
Q

A regulation for commercial speech will be upheld only if it:

A

Serves a substantial government interest
Directly advances that interest AND
Is narrowly tailored to serve that interest
(reasonable fit)

162
Q

Content-Based Regulations

A

Subject to strict scrutiny and are presumptively unconstitutional.

If it restricts speech based on subject matter or viewpoint.

CB = SS

163
Q

Content-Neutral Regulations

A

Subject matter and viewpoint neutral.
Subject to intermediate scrutiny.

Must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than is necessary.

TPM

CN = IS

164
Q

Traditional Public Forum

A

Public property that has historically been open to speech-related activities.

165
Q

Designated Public Forum

A

Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy.

e.g., a company town

166
Q

Regulations for public forum or designated public forum that are content based

A

strict scrutiny

167
Q

Regulations for public forum or designated public forum that are content neutral

A

Intermediate scrutiny
(narrowly tailored to serve an important government interest and leaves open alternative channels of communication)

168
Q

Limited Public Forum

A

Government forums not historically open generally for speech and assembly but opened for specific speech activity.

169
Q

Nonpublic Forum

A

Government property not historically open generally for speech and assembly and not held open for specific speech activities

170
Q

Regulations for Limited Public Forums and Nonpublic Forums

A

The government may reserve the forum for the intended use if they are viewpoint neutral and reasonably related to a legitimate public interest.

If it is viewpoint based, it is subject to strict scrutiny.

171
Q

Speech Restrictions in Public Schools

A

Can be reasonably regulated to serve the school’s educational mission.

172
Q

Personal student speech on public school campus

A

Cannot be sensored absent evidence of substantial disruption.

Unless drug use. None of that.

173
Q

Personal student speech not on public school campus

A

where pedagogical or safety interests clearly outweigh the speech interests

174
Q

School Speech

A

Regulations related to the school’s teaching must be reasonably related to legitimate pedagogical concerns.

175
Q

Speech Activities of Government Employees

A

only if the regulation is necessary to achieve a compelling government interest

176
Q

Unprotected Public Employee Speech

A

If a matter of private concern only if disruptive of the work environment.

If a matter of official duties or public concern, speech may be regulated.

177
Q

Protected Public Employee Speech

A

Speech on a matter of public concern but is not made pursuant to the employee’s official duties, the courts use a balancing test.

Private concern –> not clear

178
Q

Public Employee Participation in Political Campaigns

A

The federal government may prohibit federal executive branch employees from taking an active part in political campaigns.

179
Q

Can the government require loyalty oaths?

A

The government can require employees to take loyalty oaths, as long as they are not overbroad or vague.

180
Q

Void for Vagueness Doctrine

A

If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the due process clause.

181
Q

Overbroad Regulation Invalid

A

A regulation of speech or speech-related conduct will be invalidated as overbroad if it punishes substantially more speech than is necessary.

182
Q

Prior Restraints

A

Court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards.

Not favored.

Is there special societal harm?

183
Q

Prior Restraint Procedural Safeguards

A
  1. narrowly drawn, reasonable, and definite
  2. the injunction must promptly be sought and
  3. prompt and final judicial determination

Government bears the burden

184
Q

No Unfettered discretion

A

A regulation cannot give officials broad discretion over speech issues

185
Q

Can government officials seize obscene books and films?

A

Yes with a warrant based on probable cause.

Or they can purchase one.

Large-scale seizures must follow a full-scale adversary hearing

186
Q

Can movies be censored?

A

They can be screened

187
Q

Burden of Government

A

It must be narrowly tailored.

188
Q

Freedom of the Press

A

No greater First Amendment freedom than does a private citizen.

189
Q

Publication of Truthful Information

A

The press has a right

190
Q

Access to Trials

A

The First Amendment guarantees the public and press a right to attend criminal (and probably civil) trials, unless outweighed by an overriding interest stated in the trial judge’s findings.

191
Q

Internet and Cable Regulation

A

Strict scrutiny if content-based
Intermediate scrutiny if content-neutral

192
Q

Government Speech

A

Government speech cannot be challenged as violating the First Amendment.

The First Amendment doesn’t require the government to aid private speech or restrict the government from expressing its own views.

Rationally related to a legitimate state interest

193
Q

Compelling Private Speech

A

The freedom to speak includes the freedom not to speak.

194
Q

Mandatory Financial Support

A

The government may tax people and use the revenue to express a government message even if the taxpayer disagrees with the message.

195
Q

Government Funding of Private Speech

A

Must be viewpoint neutral, unless funding the arts

196
Q

Is trademark protection speech?

A

Trademark protection is not government speech, but private speech.

Content-based restrictions are subject to strict scrutiny.

197
Q

Freedom of Association

A

Implied
Content-based regulations are strict scrutiny.
Content-neutral is intermediate scrutiny

198
Q

Electoral Process

A

Balancing Test

199
Q

Limits on Contributions

A

Intermediate scrutiny.

Government cannot limit money spent to support or oppose a ballot referendum.

200
Q

Aggregate Contribution Limits

A

Unconstitutional

201
Q

Free Exercise Clause

A

The government may not punish someone on the basis of their religious belief, or related religious status or conduct.

202
Q

Religious Belief

A

Tents of traditional religions, as well as beliefs that play a role in the life of believers similar to the role that religion plays in the life of traditional adherents.

203
Q

Religious Belief–Sincerity or Truthfulness

A

Courts can question sincerity, but not truthfulness

204
Q

Discriminatory Laws on the basis of religion

A

Strict scrutiny if

Not neutral on its face OR
Facially neutral but not generally applicable

205
Q

Neutral Laws of General Applicability

A

Not subject to the free exercise clause. Unless it was designed to interfere with it.

206
Q

Exemptions not generally applicable

A

Laws that give government officials discretion to grant exemptions from the law are not applicable

207
Q

Religious Exemptions?

A

The Free Exercise Clause does not require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct.

208
Q

Religious Exemptions–Ministers

A

No employment violation suits for ministers. Unless unemployment.

209
Q

Do the Amish have to send their kids to high school?

A

No.

210
Q

Exclusion from a benefits program?

A

A state may not limit eligibility for a generally available governmentla benefit to nonreligious organizations.

211
Q

Establishment Clause

A

Prohibits government sponsorship of religion. The government cannot aid or formally establish a religion.

212
Q

Neutrality Principle–Establishment Clause

A

The government generally must refrain neutral with respect to religion, neither favoring nor disfavoring it.

213
Q

Can the government directly or indirectly coerce individuals to exercise or refrain from exercising their religion?

A

No

214
Q

Sect Preference–Establishment Clause

A

Government action cannot prefer one religious sect over another unless it is necessary to achieve a compelling interest (?)

215
Q

Cases Unconnected to Financial Aid or Education

A

Law favoring or burdening religion or a specific religious group is invalid. Burdening a large group of people that happen to have religious groups in it is upheld

216
Q

Cases involving financial benefits to religious institutions

A

Must be neutral toward religion

217
Q

Religious Activity in Public Schools

A

Invalid, but school accomodations may be valid.

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