ConLaw Flashcards
Spending power conditions
Congress conditions on spending valid if they
- are clearly stated
- relate to the purpose of the program
- are not unduly coercive
- do not otherwise violate the Constitution
Article IV Privileges and Immunities
Prohibits discrimination of states against nonresidents if it concerns important commercial activities or fundamental rights.
Will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available.
14th Amendment Privileges and Immunities
States may not deny their citizens the privileges and immunities of national citizenship.
DCC
State government cannot discriminate against or unduly burden interstate commerce.
May be valid if necessary to achieve an important, noneconomic state interest and there are no reasonable alternative available.
***exception for Congressional approval or market participant
Rational Basis
Law must be rationally related to a legitimate government purpose.
Person challenging has burden
Intermediate Scrutiny
Law must be substantially related to an important government interest.
Strict Scrutiny
Law must be necessary to achieve a compelling government purpose.
Government has burden
Substantive Due Process
5th Amendment - federal
14th Amendment - states
Fundamental rights include: 1st Amendment rights, right to interstate travel, privacy-related rights, voting
***Deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty
One Person One Vote
State and local = must be substantially equal populations
Congressional = almost mathematical equality
EP Clause
14th Amendment = states
5th Amendment = federal
Intent can be shown through:
- discriminatory on its face
- discriminatory application or
- disparate impact
Contract impairment
Law is invalid unless it serves an important and legitimate public interest and is a reasonable and narrowly tailored means of promoting that interest
Incitement
speech that is intended to produce imminent lawless action and is likely to produce such action
Fighting words
speech likely to incite immediate physical retaliation
True threats
speech intended to convey to someone a serious threat of bodily harm
Obscenity
Sexual speech that
- appeals to the prurient interest in sex, using a contemporary community standard
- is patently offensive under contemporary community standards and
- lacks serious value using a national, reasonable person standard
Actual malice for defamation
Show by clear and convincing evidence that the statement was made with knowledge that it was false or reckless disregard as to its truth or falsity
Regulations on commercial speech
Will be upheld only if it
- serves a substantial government interest
- directly advances that interest and
- is narrowly tailored to serve that interest
Content based regulations
Subject to strict scrutiny
Content neutral regulations
Both subject-matter and viewpoint neutral are subject to intermediate scrutiny
Often time, place, and manner regulations
Public forums and designated public forums
Public property that has historically been open to speech or has not been historically open to speech, but which the government opens for on a permanent or limited basis
Content based = strict scrutiny
Content neutral = intermediate scrutiny
Limited public forums and nonpublic forums
Not historically open to speech but has been opened for a specific activity or not held open at all
Regulations valid IF:
- viewpoint neutral and reasonably related to a legitimate government purpose (rational basis)
Government employee - Unprotected employee speech
Private concern = speech was disruptive of work environment
Made on the job and pursuant to official duties - even if public concern
Government employee - Protected employee speech
Public concern = not made pursuant to official duties
Private concern outside of office = no detrimental effect on the workplace
Free Exercise Clause
prohibits governments from punishing someone on the basis of their religious belief or related religious status or conduct
