conlaw Flashcards
State Action Doctrine (Constitution) (3593)
The Constitution generally protects against wrongful conduct by the government, not private parties. A private party’s conduct must constitute state action for these protections to apply. State action is found when a private party carries on activities that are traditionally performed exclusively by the state, such as running primary elections or governing a “company town”.
Speech – 1st Amendment (3593)
The First Amendment applies to the states through the Fourteenth Amendment and protects the freedom of speech as well as the freedom not to speak. For example, the SCT has held that a child in public school has the right not to recite the Pledge of Allegiance.
Speech – Content Based vs. Content Neutral (5497)
Whether a municipal ordinance violates the 1st amendment right of freedom of speech depends on if the law is content-based or content neutral. A law is content-based if it applies to certain speech because of the idea expressed or the subject discussed, and a law is content-neutral when it is not necessary to hear or read the language in order to apply the regulation.
Speech – Content Based (Protected) (5497)
Any governmental regulation of speech that is content-based on its face will only be upheld if the regulation is necessary to achieve a compelling governmental interest AND is narrowly tailored to meet that interest (ie. the strict scrutiny test).
Although there is no precise definition of what is “compelling,” it is generally understood to be something that is necessary or crucial, such as national security or preserving public health/safety.
The law should be neither over-inclusive (reaching more people or conduct than necessary) nor under-inclusive (not reaching all of the people or conduct intended).
Even regulations that are not content-based on their face may still be content-based in application or intent, and these laws, too, will generally be subject to strict scrutiny.
The government must identify an actual problem, and the regulation of speech must be necessary to solve that problem. This standard is incredibly stringent and not often met.
Speech – Traditional Public Forum, Content Neutral (Protected) (3593) (264) (5497)
The 1st amendment protects the freedom of speech and expression. Protected speech can include written, oral, and visual communication as well as activities such as picketing and leafleting. While governmental regulation of the content and speech is severely constrained, the government’s ability to regulate the time, place, and manner of speech varies with the forum in which the speech takes place. A traditional public forums is one that are historically associated with expression, such as sidewalks, streets and parks. In a traditional public forum, the government may impose reasonable restrictions on the time, place, and manner of protected speech, provided that the restrictions: (i) are content-neutral as to both subject matter and viewpoint; (ii) are narrowly tailored to serve a significant government interest, and (iii) leave open ample alternative channels for communication of the information.
When dealing with time, place or manner regulations, the requirement that the regulation be “narrowly tailored” does not mean that the regulation must employ the least restrictive means, it need only promote a significant government interest that would be achieved less effectively absent the regulation.
Additionally, the SCT has held that aesthetic preservation and traffic safety are substantial government interest.
Designated Public Forum (264)
A designated public forum is created when a government authority voluntarily opens a space under its control to speech, such as civic auditoriums, publicly owned theaters, or school classrooms that the public is allowed to use afterhours. All the limits on governmental regulation of speech in a traditional public forum may also apply to regulation of a speech in a designated public forum. When a public school, as a designated public forum, permits the public to use its facilities, it cannot discriminate against an organization based on its beliefs.
Speech – Non Speech/Non Expressive Conduct/Nonpublic Forum (Not Protected) (264)
The 1st Amendment protects only the freedom speech and expressive conduct. If it is not considered expressive conduct, the 1st Amendment will provide no grounds for vacating a conviction. Even in the event that conduct is considered expressive, it is doubtful that the 1st Amendment will support an argument to vacate a conviction when the expressive conduct takes place in a nonpublic forum. A nonpublic forum is essentially all property that is not traditional or designated as a public forum, such as a government office. The government may regulate speech-related activities in nonpublic forums so long as the regulation is viewpoint-neutral and reasonably related to a legitimate governmental interest.
Equal Protection Rational Basis – 14th Amendment (States) (3465)
The Equal Protection Clause of the 14th amendment provides that “no state shall deny to any person within its jurisdiction the equal protection of the laws.” This clause applies only to state and localities. Laws classifying on the basis of age are reviewed under the rational basis standard. A law passes the rational basis standard if its rationally related to a legitimate governmental interest, a test of minimal scrutiny. There need not be an actual link between the means selected and a legitimate objective. However, the legislature must reasonably believe there is a link. Laws are presumed valid under this standard.
Enabling Clause - Section 5, 14th Amendment (3465)
The federal government may exercise only those powers specifically enumerated by the Constitution. The 14th Amendment, Section Five Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process guaranteed by the amendment, but not to expand those rights or create new ones. In enforcing such rights, there must be “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end. As a result, Congress may only override state government action that infringes upon 14th Amendment rights if the “congruence and proportionality” test is satisfied and its enforcement power does not stretch to prohibit a law that does not violate the Constitution.
Dormant Commerce Clause (4139) (4488)
The Dormant Commerce Clause is a doctrine that limits the power of the states to legislate in ways that impact interstate commerce. If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not: (i) discriminate against out of state commerce; (ii) unduly burden interstate commerce, or; (iii) regulate extraterritorial (wholly out of state) activity.
A state or local law discriminates against out of state commerce if it protects local economic interests at the expense of out of state competitors. If a state or local law, on its face or in practice, is discriminatory, then the law may be upheld if the state or local government can establish that: (i) an important local interest is being served, and; (ii) no other discriminatory means are available to achieve that purpose.
To evaluate whether the state law unduly burdens interstate commerce, a court will balance, case by case, the objectives and purpose of the law against the burden on interstate commerce and evaluate whether there are less restrictive alternatives. A nondiscriminatory state law that imposes an “incidental” burden on interstate commerce will nonetheless be unconstitutional if the benefits of the state law are grossly outweighed by the burdens on interstate commerce.
Dormant Commerce Clause: Market Participant Exception (4139)
A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator. If the state is a market participant, it may favor local commerce or discriminate against out of state commerce.
Sovereign Immunity – 11th Amendment (4488)
The 11th Amendment is a jurisdictional bar that prohibits the citizens of one state from suing another state in federal court. It immunizes the state from suits in federal court for money damages or equitable relief when the state is a defendant in action brought by a citizen of another state. There a few notable exceptions, including when a state waives its immunity under the 11th amendment. Additionally, when a state official, rather than the state itself, is named the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law.
Takings Clause – 5th Amendment: Per Se Taking & Regulatory Taking (3570) (5479)
Generally, a governmental regulation that adversely affects a person’s property interest is not a taking. However, it is possible for regulation to rise to the level of a per se taking, such as when a regulation results in a permanent physical occupation of the property by the government or a third party or when a regulation results in a permanent loss of the property’s economic value.
Even if an ordinance does not constitute an occupation of the property by the government or a third party, it is still subject to a 3-factor balancing test to determine whether the ordinance amount to a regulatory taking. The following factors are considered: (i) the economic impact of the regulation on the property owner; (ii) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property, and; (iii) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.
Takings Clause – 5th Amendment: Compensation (5479)
The 5th Amendment to the Constitution, as applied to the state by the 14th Amendment, guarantees that private property may not be taken for public use without adequate compensation. A government may seize private property not only for its own direct use but also to transfer the property to another private party. Although, such seizure is subject to challenge as not being made for a public use, the taking need merely be rationally related to a conceivable public purpose. The burden is on the person challenging the taking to prove a lack of legitimate interest or rational basis. Courts have held that economic redevelopment goals constitute a sufficient public purpose to justify the seizure. Moreover, a government-mandated transfer of property from one private party directly to another may be for a public use.
Takings Clause – 5th Amendment: Exactions/Conditions/Permits (3570)
A local government may exact promises from a developer, such as setting aside a portion of the land developed for a park in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is: (i) an essential nexus between the legitimate state interests and the conditions imposed on the property owner (ie. the conditions substantially advance a legitimate state interest), and; (ii) a rough proportionality between the burden imposed by the conditions on the property owner and the impact of the proposed development. In determining whether there is rough proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact.
