ConLaw Flashcards
Standing
INJURY - CAUSATION - REDRESS
A person must have a stake in the outcome of a case. For standing, P must show:
(1) injury in fact or imminent threat of injury,
(2) caused by alleged unlawful gov’t action, and
(3) redressability.
State Action
U.S. Constitution only prohibits infringement of constitutional rights by gov’t actors. Litigant must show that action is attributable to state actors, which includes gov’t agencies and officials acting under color of state law.
First Amendment - Freedom of Speech
1ST -> 14TH -> STATES
The First Amendment (which applies to the states through the 14th Amendment) requires the government not to interfere with freedom of speech.
First Amendment - Limits on Regulation
PRIOR, BROAD, VAGUE, UNFETTERED
Government is limited in how it may regulate speech. Regulation of speech cannot (1) be a prior restraint, (2) be overbroad, (3) be vague, or (4) provide unfettered discretion to gov’t officials.
First Amendment - Prior Restraint
ADVANCE REGULATION - SPECIFIC HARM - PROCEDURAL SAFEGUARDS
Prior restraint is regulation of speech that occurs in advance of its expression. They are presumed unconstitutional, except when: (1) it avoids a particular harm, and (2) certain procedural safeguards are provided to the speaker, including narrowly drawn, reasonable, and definite standards.
First Amendment - Overbroad Regulation
PROTECTED AND UNPROTECTED, MORE SPEECH THAN NECESSARY
Law is overbroad and unconstitutional when it prohibits both protected and unprotected speech, regulating substantially more speech than necessary.
First Amendment - Vague
NO NOTICE
A law is void for vagueness if it gives no reasonable notice as to what specific speech is prohibited.
First Amendment - Unfettered Discretion
DEFINED STANDARDS
A regulation provides unfettered discretion if it does not provide defined standards on how to apply the law, thereby giving regulating officials unfettered discretion over speech issues. Such regulation is void on its face.
First Amendment - Content-Based Regulation
STRICT SCRUTINY
Under strict scrutiny, government may regulate the content of speech if it can show that the regulation is
(1) necessary and
(2) the least restrictive means to achieve
(3) a compelling government interest.
First Amendment - Content-Neutral Regulation
INTERMEDIATE SCRUTINY - NO SUPPRESSION - NO SUBSTANTIAL BURDEN
Under intermediate scrutiny, content neutral speech regulations are upheld if government shows:
(1) they advance important interests unrelated to speech suppression, and
(2) do not burden substantially more speech than necessary to further the important government interest.
First Amendment - Time, Place, and Manner Restrictions
VARIES WITH FORUM
The government’s ability to regulate time, place, and manner of speech varies with the forum in which the speech takes place.
First Amendment - Time, Place, and Manner - Public Forum
CONTENT NEUTRAL - NARROWLY TAILORED, SIGNIFICANT - ALTERNATIVE CHANNELS
A public forum may be traditional or designated (aka limited public forum).
Traditional public forums are those historically associated with expression, such as sidewalks and parks.
Designated public forums have not historically been used for speech-related activities, but government has opened for limited use.
To be valid, government regulations on speech in either type of public forum must be:
(1) content neutral,
(2) narrowly tailored to serve a significant government interest, and
(3) leave open alternative channels of communication.
First Amendment - Time, Place, and Manner - Nonpublic Forum
VIEWPOINT NEUTRAL - RATIONAL BASIS
Nonpublic forum is all public property that is neither a traditional nor designated public forum. Government may regulate speech-related activities in nonpublic forums as long as regulation is:
(1) viewpoint neutral, and
(2) reasonably related to a legitimate government interest.
Viewpoint neutral means speech on certain issues can be prohibited altogether; regulation is not viewpoint neutral if it allows only one side of an issue to be presented.
First Amendment - Time, Place, and Manner - Private Forum
USUALLY NO FREE SPEECH
There is no First Amendment right to free speech in a completely private forum, except when the private forum serves a public function.
First Amendment - Freedom of Association
STRICT SCRUTINY
Freedom of association protects the right of people to associate with or organize any groups or gatherings without restriction. Under strict scrutiny, the government may impair the freedom of association if the regulation is necessary and the least restrictive means to achieve a compelling government interest.
