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New - Land > Constitutional > Flashcards

Constitutional Flashcards

1
Q

5th Amendment
———–
What does 5th Amendment’s Due Process provide?

A

The due process clause
“No person shall . . . be deprived of life, liberty, or property, without due process of law . . .”

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2
Q

14th Amendment
———–
What does 14th Amendment’s Equal Protection provide?

A

“. . . nor shall any State deprive any person of life, liberty, or property without due process of law. . .

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3
Q

5th Amendment - Zoning
———–
What does due process ensure in the context of zoning?

A

due process clause ensures:
🔸Fairness in the way in which a zoning
regulation is adopted or a zoning decision is made (procedural due process),
and
🔸Fairness in the scope and implementation of the zoning regulation (substantive due process).

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4
Q

Taking
———–
State the 3 step inquiry to be made.

A

  1. Economic impact on O.
  2. Interference w/ investment backed expectation.
  3. ## Character of LG action - for public purpose,NOTES
  4. Eliminate a nuisance is not public purpose.
  5. Inv Back = taking – Inord Burd = Bert
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5
Q

14th Amendment
———–
What must be claimed under 14th Amend, Eq Protection?

A

14th Amend. Discriminate against
a. Interference w/ fundamental rights.
a. If in suspect class get heightened scrutiny.
Courts are deferential to LG.

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6
Q

1st Amendment
———-
State the 4 part test to review a sign regulation.

A

4 part test ~ (c) + (d) are hardest for LG
~~~
speech by MS. DAN
~~~
—SPEECH—
a. Speech re: lawful activity + not Misleading.

—RESTRICTION—
b. re: Subst govt interest (traffic, appearance)
c. Directly Advances that interest.
d. Narrow.

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7
Q

1st Amendment
———-
A sign ordinance that restricts First Amendment will be upheld if these 3 items found.

A

Upheld if:
a. Justified w/o reference to content
b. Narrowly tailored, and
c. Alternative channels to communicate.

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8
Q

1st Amendment
———-
State 2 things to look for when analyzing a claim that land use decision restricts Non-Commercial Speech.

A

  1. Content based restrictions (particularly as to signs)
    will receive heighted scrutiny
  2. Treatment of similar signs w/ different requirements.
  3. ## Reed v. City of Gilbert, 135 S.Ct. 2218 (2015).GOOD EXAM AREA. Because you can’t discriminate based on content.
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9
Q

1st Amendment
———-
Are Freedom of Religion claims found in land use?

A

Rarely.
If land use decision is neutral and of general applicability, it need not be justified by a compelling governmental interest even if it has
an incidental effect on burdening a particular religious practice.

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10
Q

14th Amendment
———–
State the 5 elements of an Equal Protection claim.

A

Elements:
1. Deprivation of a constitutionally protected right.
2. Deprivation occurred under color of State law.
3. Injury in fact sustained due to the deprivation.
4. The Def is not immune from suit.
5. More than nominal damages have been sustained.

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11
Q

State the 2 circumstances under which 1983 Qualified Immunity exists.

A

Qualified exists if:
1) Acting in one’s official capacity
2) Official conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known. (ex. not race).

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12
Q

State the 1 circumstance under which 1983 Absolute immunity exists.

A

Absolute exists if:
One who functions as a judge or prosecutor enjoys absolute immunity, even if given a different title.

Can be appropriate for governmental officials in a Q-J function.

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13
Q

Is Commercial Speech easier to control? Why or why not?

A

Traditionally use more lenient ‘intermediate scrutiny’ test but International Outdoor v. City of Troy says that if Commercial Sign is CONTENT BASED, use STRICT SCRUTINY (“SCIRT”) analysis.
———–
You can’t treat commercial signs differently based on content.
———-
>but easier to control private speech, what gives?

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14
Q

LG’s ability to regulate speech is greatest in a:
A. Public forum (streets, parks).
B. Quasi public forum.
C. Non public forum (airport terminal, university EM).
D. A LG may never regulate speech.

A

C. Non-public forum.

Why? b/c public forums are SUPPOSED to be used for expression. LGs ability to regulate there is quite limited.

PUBLIC - strict scrut; t/p/m + compell int
Q-PUB - less scrutiny; t/p/m + compell int
NONP - least scrutiny; t/p/m + compell int
~I always want to say A - public forum. Perhaps I’m confusing commercial w/ non-commercial. We know non-commercial is viewed w/ heightened scrutiny.

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15
Q

Is the 1st Amendment test applied more restrictively or less restrictively for non-commercial signs?

A

Depends on whether it is CONTENT BASED or not.
———–
Don’t focus on ‘commercial’ focus on ‘content.’
———–
SCIRT vs. Intermediate Scrutiny by MS. DANA

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16
Q

Does LG’s ordinances favor commercial or non-commercial speech?

A

Neither. An ordinance may not afford more protection to commercial speech than to noncommercial speech. That would be CONTENT BASED.

17
Q

State the 4 elements for content based.

A

Content based = content to wear a “SCIRT”
(1) strict scrutiny,
(2) compelling govt int,
(3) is the least restrictive means &
(4) narrowly tailored.
———–
Content neutral = the Neutral MS. DANA gives intermediate scrutiny
———–
(1) does speech concern (a) lawful activity & (b) is it non-Misleading?
(2) Substantial govt interest
(3) Directly & materially Advances the substantial interest
(4) Narrowly tailored.
(5) Alternative avenues of communication avail.

18
Q

State the differing INTEREST element in content based vs. content neutral.

A

Content based = SCIRT
compelling govt int,
———–
Content neutral = intermed scrutiny MS DANA
substantial govt interest
———–
Content based =
(1) strict scrutiny,
(2) compelling govt int,
(3) is the least restrictive means &
(4) narrowly tailored.
———–
Content neutral = the Neutral MS. DANA gives intermediate scrutiny
(1) does speech concern (a) lawful activity & (b) is it non-Misleading?
(2) Substantial govt interest
(3) Directly & materially Advances the substantial interest
(4) Narrowly tailored &
(5) Alternatives for communication.

19
Q

State the differing MEANS element of content based vs. content neutral.

A

Content based =
is the least restrictive means
———–
Content neutral =
means directly advance govt interest

20
Q

What the 2 elements that content based & content neutral share?

A

(1) narrowly tailored &
(2) alternatives for communication.

21
Q

State the 4 elements of content based speech regulation.

A

Content based =
(1) strict scrutiny,
(2) compelling govt int,
(3) is the least restrictive means &
(4) narrowly tailored.

22
Q

State the 5 elements of neutral content speech regulation.

A

(1) does speech concern (a) lawful activity & (b) is it non-Misleading?
(2) Substantial govt interest
(3) Directly & materially Advances the substantial interest
(4) Narrowly tailored &
(5) Alternatives for communication.

23
Q

State:
(1) the 4 elements of content based speech regulation
AND
(2) the 5 elements of content neutral regulation.

A

Content based = SCIRT
(1) strict scrutiny,
(2) compelling govt int,
(3) is the least restrictive means &
(4) narrowly tailored.
———–
Content neutral = the Neutral MS. DANA gives intermediate scrutiny
———–
(1) does speech concern (a) lawful activity & (b) is it non-Misleading?
(2) Substantial govt interest
(3) Directly & materially Advances the substantial interest
(4) Narrowly tailored &
(5) Alternatives for communication.

24
Q

Is regulation of commercial speech content based or content neutral?

A

Depends. Should be content neutral but BOLO.

25
Q

How do traffic safety or community aesthetics survive a challenge?

A

Focus on the governmental interest at stake.

26
Q

Give examples of content neutral regulations.

A
  1. Size
  2. Location – including public v. private property and/or commercial v. residential property
  3. Lighted/unlighted
  4. Fixed messages/scrolling-changing messages
  5. Total number of signs per street mile
  6. Time limitations for advertising of one-time events
  7. On-premises v. off-premises
27
Q

Give examples of content based speech regulation.

A
  1. Political signs
  2. Special Event signs
  3. Special/Garage Sale signs
  4. Community Event signs
  5. Development or Construction signs
  6. Grand Opening signs
  7. Directional/Informational signs
  8. Historic markers
28
Q

When would benign motives like traffic or aesthetic concerns not survive challenge?

A

When those motives applied equally to signs the town did not restrict as heavily.

29
Q

What advice can you give a town to direct them away from an unconstitutional ordinance?

A

The town has a number of content-neutral alternatives, such as restricting size, lighting,
—
if APPLIED EVENLY across all types of signs, regardless of their message,
—
the ordinance could probably survive.

30
Q

Could there be a total ban on signs?

A

A total ban on signs is content neutral.
Permissible if:
(a) Wholly impartial.
(b) Not LG’s way of choosing subjects permissible for public debate.

31
Q

Who famously analyzed a ban on all signs?

A

Justice Stevens.

32
Q

Re: political signs, can LG limit timing of display, timing of removal, or # of signs on private property?

A

No. You cannot limit the individual’s right to express himself.

33
Q

Re: political signs, state:
(a) 2 things you cannot regulate &
(b) 5 things you can.

A

CANNOT - timing, #

CAN - size, location, lighting, digital, sheer #

34
Q

Re: political signs
State 2 arguments to be made that regulation is permissible.

A

ARGUE:
A- Content neutral.
B- Reas “time, place and manner” restrictions.

35
Q

Give 5 examples of permissible political sign regulation.

A

(1) Size.
(2) Location.
(3) Lighting.
(4) Digital.
(5) Sheer # if high volume impacts aesthetics.

36
Q

State the 6 laws impacting sign regulations.

A

1) 1st Amend.
2) 5th Amend (Takings Clause).
3) 14th (Due Process & Equal Protection).
4) Fed. Hiway Beautification Act of 1965.
5) state highway billboard or advertising acts,
state planning requirements.
6) Local zoning codes.

37
Q

What’s the first thing a PL must show to argue about his signs?
———–
How does he show it?

A

Standing in Concrete Causes you to Re-Dress
———–
(1) suffered an invasion of a protected interest that is:
(a) concrete, particular, actual or imminent.
—
(2) Causal link b/w injury & conduct
—
(3) Likely the injury will be redressed by a favorable decision.

38
Q

Laws that target speech based on its content __________ __________ the 1st Amendment.

A

Presumptively violate.

39
Q

Beside Legis/QJ appeals, state 7 add-on avenues PL cd take.

A

Add 3 BEADs For Elizabeth
1983 Bh Equally 1st Amend Dp Exact Fluedra
———–
1) DP. (a) Proc, (b) Subst, (c) Taking.
2) Eq Pro – 14th Amend. – suspect class.
3) 1st Amend w/ door opener 14th Amend. – signs.
4) 42 USC 1983
* (a) dep, (b) color, (c) cz inj, (d) not imm, (3) more nom.
* Q. Imm. (1) w/i scope, (2) not viol clrly estab. law.
5) BH. VIC unfair Perm Direc FIB (not inv back)
6) Exactions. Nexus, exempt: non-AV, impact fees,
7) FLUEDRA. Unfair, standing, mechanics.

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