Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

CA BAR > Constitutional Law > Flashcards

Constitutional Law Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Federal Judicial Power

A

Fed crts have the power to hear a case if P has standing, and the claim is ripe but not moot. Additionally, crts will not render advisory opinion or rule on a political question.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Standing

A

To have standing P bears burden of showing (1) an injury in fact (2) causation and (3) redressability.

Injury in fact – actual or imminent (more than hypo/future harm); suffered personally by P (not general grievance or harm to public at large). Injunctive or declaratory relief requires P to show a likelihood of future harm.

Causation – harm is fairly traceable to D’s conduct.

Redressability – favorable decision will remedy harm.

Exception – states have standing to vindicate more generalized injuries, where conduct contributes significantly to that injury and fav judgement will provide some relief.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

3rd Party Standing

A

Generally P cannot bring claims on behalf of 3rd parties, but exceptions.

  1. Injury to 3rd party harms some special relationship.
  2. Injury to 3rd party results in injury to P.
  3. Third party is unable to assert their own right.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

3rd Party Standing Organization.

A
  1. Organizations may bring claim on behalf of its members (even if no injury to org itself) if:
    (1) individual members have standing to sue;
    (2) interests are germane to org’s purpose; and
    (3) neither claim nor relief requires participation of individual members.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Standing: Tax Payer

A

No standing for generalized grievance regarding gov expenditures.

May challenge fed aid to religion on establishment grounds, except if aid is a generally available public benefit.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Ripeness

A

Case warrants a decision because actual controversy, either because real injury or immediate threat of injury. Case is ripe if threat of enforcement and P has a concrete plan to violate law—unless no history of enforcement.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Mootness

A

Litigation will have no effect b/c controversy has ended.

Except

  1. conduct capable of repetition yet evading review.
  2. voluntary cessation won’t render case moot unless unlikely to recur.
  3. cessation may moot claim for injunctive relief but not damages.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Advisory Opinion

A

Crts won’t render judgement for declaratory relief based on abstract or hypo facts.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Political Question

A

Crts won’t hear case if

(1) constitution has already assigned issue to another branch of gov;
(2) issue already reserved to another branch of gov; or
(3) issue is inherently one the judiciary cannot make.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Article III

A

Establish Supreme Court, auth cong to establish lower fed crts and limit their jx.

Fed judiciary has power to interpret const and declare whether state/fed action is constitutional.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Supreme Court Review

A
  1. SCOTUS has original and exclusive jx over suits between state gov’s.
  2. SCOTUS will hear a case from a state or court of appeal only by writ of certiorari (if 4 justices agree); and from a 3-judge fed district court decision by appeal.
  3. Will not hear case if decision was based on independent and adequate state grounds. If both state and fed grounds exist for deciding case, SCOTUS won’t hear if reversal of fed grounds wouldn’t change outcome of case.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Lower Fed Crt Review

Eleventh Amend & Sovereign Immunity Doc

A

Eleventh Amendment bar suits against states in their own courts.

Sovereign Immunity bars suits against states in their own courts or in fed agencies.

Exceptions when

  1. State consents to suit in fed court
  2. Inj/dec relief against state official (not state) to comply with fed const/law.
  3. Prospective damages, not retroactive damages.
  4. Past money damages if against state official and out of official’s own pocket.
  5. 14th amend violations by state, including past money damages if permitted by fed statute.

Simply doesn’t bar

  1. Suits against local gov.
  2. U.S. or another state is a party.
  3. Bankruptcy proceedings.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Abstention

A

Crt won’t hear case if strong state interest exists or decision requires resolution of state law best left to state crts.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Congressional Power Generally

A

Congress may exercise only powers expressly enumerated in the const and where necessary and proper (i.e., rationally related) to their execution.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Commerce Power

A

Is the power to regulate channels, instrumentalities, and people and things in commerce, and activities substantially affecting interstate commerce.

Substantially Affecting

  1. May regulate “intrastate activities”, including commodities not for commercial sale, if they have a substantial affect on commerce in the aggregate.
  2. Can’t reg noneconomic activities that don’t arise out of or are connected to commerce.
  3. May only reg existing activity; can’t reg inactivity or compel activity.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Taxing Power

A

Auth congress to collect taxes so long as reasonably related to revenue production and provided it does not impose a penalty.

Tax is a penalty if:

  1. imposes a heavy burden,
  2. resembles a punitive statute (scienter), and
  3. is enforced by agency responsible for punishing violation of the law (not revenue collection).
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Spending Power

A

Auth congress to pay debts and provide for general welfare. (See rule on conditions to fed funds.)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

War Powers

A

Auth congress to remedy domestic wartime disruption, power extends for duration of war, or beyond, when necessary to address the negative effects of war.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Treaty Power: Congress

A

Independent power which auth cong to pass legislation necessary to carry out obligations under a valid treaty.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Tenth Amendment

A

Limits cong power over the states.

Cannot

  1. Force state to enact legislation.
  2. Prevent state from enacting legislation.
  3. Conscript state officials to enforce fed law.

Except 10th amend does not bar generally applicable laws which reg state and priv actors.

Can

  1. induce action by attaching condition to fed funds provided condition is expressly stated and related to purpose of spending program. The condition must also not be unduly coercive.
  2. Preempt state law by enacting fed legislation
  3. Make fed preemption conditional, offer states choice between reg activity according to fed standards or face fed preemption.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Delegation of Powers

A
  1. Cong may delegate legislative powers to fed agencies, provided they leave clear guidelines by which the fed agencies must conform.
  2. Cong cannot delegate executive powers to itself.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Bicameralism and Presentment

A
  1. Legislative action (altering legal rights, duties, relationships) requires bicameralism (passage by both houses) and presentment (to prez for sig or veto)
  2. One-house or line-item veto is unconstitutional.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Presidential Powers Generally

A
  1. executive power
  2. veto power
  3. commander in chief

No power to make laws

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Implied Presidential Powers

A

Exercise of the prez’s implied powers arise in three instances, and whether it is valid depends on which of the three it is.

(1) is at its max when exercised pursuant to congressional auth/consent;
(2) is less certain when exercise in context of cong silence;
(3) when exercised contrary to express or implied congressional power, will be sustained only if denied to congress.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Treaty Power: President

A

Agreement between U.S. and foreign country negotiated by prez and which must be ratified by the senate to be effective.

If ratified, treaty prevails over state laws and prior fed law, unless violates constitution.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Executive Agreement

A

Agreement between U.S. and foreign country which is effective when signed by prez and head of foreign nation.

  1. prevails over state law
  2. never prevails over fed law or constitution
  3. except will prevail over fed law if pursuant to congressional authority.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Appointment of Executive Officers

A
  1. Prez can appoint ambassadors, fed judges and officers of U.S.
  2. Cong may vest app of inferior officers in prez, heads of dept or lower fed crts. Inferior officer exercises significant authority w/in executive branch.
  3. Cong cannot app officers exercising fed executive power; may app officers with similar cong power (i.e., investigative and informative powers)
  4. Prez can make recess appointment during cong intrasession recess; less than 10 days is presumptively invalid absent emergency.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Removal

A
  1. President can unilaterally remove U.S. Officer
  2. Congress may remove only by impeachment

Cong Restrictions on Removal

  1. Cannot restrict removal of high-level officers [cabinet members, ambassadors, heads of agency].
  2. Can restrict removal of officer from independent regulatory agency.
  3. Can restrict inferior officer to fixed term or removal only for cause.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Impeachment and Removal

A

President, fed judge, congress member can be impeached (by house) and removed from office (by senate) for treason, bribery, or for high crimes and misdemeanors.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Executive Privileges and Immunities

A

Absolute immunity from civil suit for official acts, but not for unofficial acts.

Executive privilege regarding prez papers and conversations, but must yield to other important gov interest.

No immunity for financial records from state grand jury subpoena, but if subpoena is from congressional committee, crt must balance competing interest.

Prez may pardon fed crimes.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Preemption

A

State law is preempted by fed law if there is

  1. express preemption;
  2. congress has occupied the field;
  3. state law conflicts with fed law.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

State Police Powers

A

State may exercise its general policy power if rationally related to health, safety or general welfare.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Dormant Commerce Clause

A

Prohibits states from discriminating against, or unduly burdening, interstate commerce.

(1) If law [facially] discriminates or [is neutral but] has a discriminatory purpose or effect, it violates the DCC unless it is substantially related to an important government purpose.

Exceptions.

Congress can approve of discrimination.

Market Participant Doctrine: When state acts as a market participant it can discriminate in favor of its citizens. However, cannot impose downstream restrictions that violate DCC.

When law is not facially discriminatory, or has a discriminatory purpose or effect:

(2) If law burdens interstate commerce, it violates the DCC if its burdens exceed its benefits.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Privileges And Immunities Clause Article IV

A

If law discriminates against non-residents [out of staters/towners] regarding their ability to earn their livelihood, it violates the P/I Clause of Art IV unless it is substantially related to an important government purpose.

  • Does not protect corporations and aliens
  • Cong cannot waive it
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

State Taxation of Interstate Commerce

A
  1. State cannot use a general industry tax to help the same in-state industry.
  2. State may only tax activities having a substantial nexus w/the state. May req out of state biz to collect sales taxes, even if they have no physical presence in state, provided they have substantial nexus to state.
  3. Tax of interstate biz must be fairly apportioned
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

State Action

A

Const protects individual liberties when there is gov or state action.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

Thirteenth Amendment

A
  1. Applies to priv conduct.
  2. Prohibits Involuntary servitude.
  3. Auth cong to pass laws necessary and proper to abolish the incidents of slavery (i.e., priv discrimination concerning contract and property rights, and in transportation, hotels, and public accommodations)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Civil Rights Enforcement Powers: Section 5, 14th Amendment

A
  1. Does not apply to priv conduct.
  2. Grants cong remedial powers to enforce civil rights, provided there is congruence and proportionality between const injury and remedy adopted.
    a. Congruent - widespread violations of constitutional rights, based on current (not past) findings.
    b. Proportionality - remedy must be narrowly tailored to the injury.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Private Action = State Action

A
  1. Public Function - when priv conduct involves performance of exclusive and traditional function of government.
    - white primaries
    - company town
    - private park open to public
    - not priv mall open to public
  2. Sig State Involvement - when gov action is sig tied to priv action because of encouragement, symbiotic relationship, or entanglement.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

Bill of Rights/Sub Due Process

A

Bill of rights and 5th amend due process clause applies directly to fed gov.

Most, but not all, of the bill of rights are incorporated into the due process clause of the 14th amend and applicable to the states.

Not Incorporated:

3rd - right to not have soldier quartered in home
5th - right to grand jury indictment in crim case
7th - right to jury trial in civil case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Levels Of Scrutiny

A

Strict – gov must prove law/classification is necessary to achieve a compelling gov purpose, that is narrowly tailored, and achieved by the least restrictive means.

Intermediate (midlevel) – gov must prove law/classification is substantially related to an important gov purpose that is narrowly tailored.

Rational Basis - challenger must prove law/classification is not rationally related to any conceivable legitimate gov purpose.

42
Q

Procedural Due Process

A

Protects the manner in which a protected interest is impaired.

  1. Generally requires notice and hearing by neutral decision maker.
  2. Must be intentional, gov neg or inaction is not enough.

Ask, was the P deprived of a protected interest?

Liberty Interest:

  1. restraint on physical freedom
  2. punishment
  3. deprivation of fundamental right

Property Interest:

  1. termination of interest, created by statute or gov K, in continued and existing
    - public employment
    - social security, welfare benefits
    - professional licenses
  2. cannot recover for repetitional injury, unless results in sig loss of employment or associational rights.

Then ask, what procedure is due and was P afforded it?

  1. importance of private interest at stake;
  2. risk of error from current procedures and value of additional procedures to the fact finding process; and
  3. importance of gov interest.
43
Q

Economic Liberties: Economic and Welfare Regulations

A

Apply rational basis test.

44
Q

Economic Liberties: Takings Clause

A

Gov may take priv property only for public use and just compensation (RBT).

Taking if

  1. gov physically occupies property;
  2. regulatory taking, gov regulation deprives owner of all reasonable economically viable use of property

Public use

  1. Not when purely private.
  2. Clearly satisfied when used by gov/public.
  3. Satisfied if rationally related to a conceivable public benefit.
45
Q

Economic Liberties: Contracts Clause

A

Prohibits state/local gov’s from passing laws which interfere with the obligation of (existing) contracts.

Private contract: if law substantially impairs K between private parties, subject to intermediate scrutiny.

Gov contacts: subject to strict scrutiny.

46
Q

Substantive Due Process: Fundamental Rights Generally

A

Apply strict scrutiny.

Right to travel
Privacy Rights
Voting Rights
First Amendment Rights

47
Q

FR: Privacy Rights

A 
Marriage
Procreation
Contraception (16+)
Family Formation
Parental (custody, ed, visitation)
Intimate Sexual Conduct (except illegal)
Abortion
Refuse Medical Care

No FR to physician assisted suicide.

48
Q

FR: Abortion

A

Prior to viability, states may not prohibit abortions, buy may regulate abortions provided they do not create an undue burden on the ability to obtain abortions.

After viability, states may prohibit, unless necessary to protect women’s life or health.

Valid Regulations

  1. 24 hour waiting period
  2. license physician req
  3. prohibition against partial birth abortions
  4. parental notice/consent, if alternative judicial procedure to show mature or in best interest

Invalid

  1. admitting privileges req in nearby hospital
  2. spousal consent
49
Q

FR: Right to Refuse Medical Care

A

Level of Scrutiny Unknown.

Competent adult has right to refuse medical care, including life saving treatment.

State may req clear and convincing evidence of unwanted med treatment.

State may prevent family member from terminating treatment for another.

50
Q

FR: Right to Travel

A

Law restricting right to travel subject to SS.

  1. laws preventing people form entering/leaving state
  2. durational residency requirements; invalid, one year residency req to receive welfare benefits, divorce or state provided medical care.

Restrictions on foreign travel subject to RBT.

51
Q

FR: Right to Vote

A

EP and due process principles apply.

  1. If law grants right to vote to some citizens, but denies it to others, subject to SS.
  2. If law seeks to prevent fraud [and promote confidence in election process], it will be upheld unless outweighed by burden on right to vote.
  3. Residency Restrictions
    - Gov unity may restrict vote to person within its boarders, subject to RBT.
    - Gov unity may req that person be a resident of a short period prior to an elction in order to vote in that election, subject to SS.
  4. Felons may be denied right to vote.
  5. EP req one person, one vote: voting districts must be approximately equal/proportional.
  6. Gerrymandering
    a. racial discrimination - state use of race as predominate factor to draw election districts subject to SS. State cannot use district lines to dilute racial vote because violates EP.
    b. Political discrimination - violates EP if show discrimination against politically identifiable group and discriminatory effect.
52
Q

No Fundamental Right to…

A
  1. Food
  2. Welfare
  3. Eduction
    - no right to equal education
    - but denial of education to undocumented children subject to intermediate scrutiny (conserving resources and discouraging immigration not impt gov interest)
53
Q

Equal Protection Generally

A

EP applies when gov classifications creates two categories subject to different treatment.

14th amend EP clause applies to state.

EP guarantees apply to fed gov via the due process clause of 5th amend.

54
Q

EP: Discrimination is proved by…

A
  1. facial discrimination bc law expressly creates two categories; or classification exists because cannot be explained except in racial terms.
  2. facially neutral law is applied in discriminatory way
  3. discriminatory intent and discriminatory impact
55
Q

Race, Ethnicity, National

Origin…

A

are suspect classes subject to SS.

Affirmative actions - classifications benefiting minorities in suspect classes are also subject to SS.

But crt has recognized two compelling interest:

  1. remedying past discriminatory effects
    a. must show clear proof of discrimination specific to gov unit
  2. diversity in education
    a. public ed institutions can consider race as one factor, but cannot be the predominate factor. Must show no race neutral alternative can achieve diversity. Must no unduly burden members of nonfavored racial groups.
  3. public elementary sch integration - cannot assign students on basis of race unless SS is met (i.e., compelling interest to remedy past intentional segregation)
56
Q

Alienage

A

Suspect class, subject to SS.

Except RBT applies when classification concerns self-government or democratic process (e.g., police, teachers, not notary public)

RBT applies when congress discriminates against aliens.

Educational rights of alien children, subject to IS.

57
Q

Gender

A

Quasi-suspect class, subject to IS.

Req exceedingly persuasive justification, not based on gender stereotypes.

Affirmative action benefiting women will be upheld if purpose is to remedy past gender-based discrimination.

Valid bc not similarly situated or impt gov interest:

  1. pregnancy exclusion from disability insurance
  2. statutory rape laws
  3. military draft
58
Q

Illegitimacy

A

quasi suspect, subject to IS.

59
Q

EP: RBT applies to…

A
  1. age
  2. disability
  3. wealth/poverty, except can’t deny access to art to indigent unable to pay where FR are involved
  4. economic regulations
  5. education (no right to equal education)
  6. sexual orientation (but check FR is implicated)
60
Q

FOS: Content based v. Content neutral

A
  1. Content based regulation subject to SS.
  2. Content nuetral regulation incidentally burdening speech will be upheld if
    (1) content neutral,
    (2) unrelated to suppression speech (based on objective purpose of statute, not individual motives of legislators),
    (3) substantially related to impt gov interest, and
    (4) which is narrowly tailored.
61
Q

FOS: Content Neutral Regulation of Conduct

A
  1. symbolic expression - conduct intended to communicate a message and likelihood is great it will be understood by those who view it.
    a. Same rule as content neutral regulations.
  2. Time, place, and manner (see public forum analysis).
62
Q

Prior Restraints

A
  1. If content based, subject to SS.
  2. If content neutral, subject to IS.
  3. Plus, subject to procedural safeguards: notice and hearing, and prompt judicial decision.

Types

a. Crt orders or injunctions must be complied with until vacated or overturned; if violated, will bar challenge.
b. Statutes, permits, and licensing schemes must contain objective criteria to prevent arbitrary or discretionary content-based application.

Gov interest

a. National security (publishing troop movements, instructions for atomic bomb)
b. Preserving fair trial
c. Obscenity (possibly)
d. Priv parties can contractually agree to prior restraint

63
Q

Vagueness

A

Law is unconstitutionally vague if
1. a reasonable person cannot tell what the law prohibits or allows (fair notice).
2, lacks minimum guidelines to prevent arbitrary or discriminatory enforcement by gov officials.

64
Q

Overbreadth

A

Law is unconstitutionally overbroad if it regulates substantially more speech than the const allows to be regulated.
1, a limiting judicial construction will save statute from overbreadth
2, but subsequent legislative amendment to save statute will not

65
Q

Incitement to Violence

A

gov may punish speech if

(1) there is a substantial likelihood of imminent illegal activity, and
(2) if the speech is directed to causing imminent illegal activity.

66
Q

Fighting Words

A

gov may punish speech if

(1) directly addressed to a person, and
(2) likely to incite immediate violence or retaliation by the person addressed.

Usually will be found overbroad or vague.

If viewpoint discriminatory, subject to SS.

67
Q

Hate Speech/Offensive Language

A

Not fighting words, subject to SS.

68
Q

True Threat

A

Unprotected speech subject to RBT, which are words or actions intended to place a person in fear bodily harm.

Distinguish “cross burning” form “cross burning with intent to intimidate”.

69
Q

Hekler’s Veto

A

Police may suppress speaker addressing hostile crowd likely to erupt in violence to prevent breach of peace. Crt balances interest of all parties.

70
Q

Obscenity

A

Gov can regulate sexual expression only if it is obscene, i.e., if the average person in the community finds the material taken as a whole

(1) appeals to the prurient interest,
(2) depicts sexual conduct in a patently offensive way, and
(3) lacks serious literary, artistic, political or scientific value.

Prurient interest: morbid interest, not mere nudity or sexual expression

Child Pornography - can ban even if not obscene. Must involve the use of children in production.

Possession - gov cannot punish possession of obscene materials unless child pornography.

71
Q

Defamation

A

Where P is a public figure or D has spoken on a matter of public concern, additional first amendment protections apply—P must prove traditional elements of defamation (i.e., the publication of a false statement of fact that attaches to the P which is defamatory) plus actual malice.

  1. Defamation
    a. Publication – intentional or negligent (unless actual malice standard applies)
    b. False statement – must be provably false, not mere opinion or parody. (Fact couched in the form of an opinion, will not be protected.)
    c. Attaches – statement can be reasonably connected to P
    d. Defamatory – tends to injure the plaintiff reputation
  2. First amend/actual malice standard applies if
    a. Public official – policy makers/candidates
    b. All-purpose public figure – having general fame and notoriety and pervasive involvement in the affairs of society
    c. Limited purpose public figure – plays a role in a pre-existing public controversy in order to influence outcome
    d. Public concern (including private persons)
    e. Private person/private concern
    - to recover actual damages, must show at least neg (states may req actual malice)
    - to recover presumed or punitive, must show actual malice
  3. Actual malice – knowledge it was false or reckless disregard whether it was false or not (i.e., purposeful avoidance or serious doubt as to truth)
  4. Intentional infliction of emotional distress – when due to defamation, same standard for liability and constitutional protections apply.
72
Q

Commercial Speech

A

(1) commercial speech is speech that does not more than propose a commercial transaction.
(2) for unlawful activity, false or misleading ads, warnings/disclaimers, RBT applies.
(3) must be lawful and will be upheld if
(i) serves a substantial gov interest,
(ii) directly advances that interest, and
(iii) is narrowly tailored to serve that interest (least restrictive means not req).

Vice products (lawful but harmful), same rule applies.

Special Rules for Attorneys and Professionals

  1. state may prohibit in-person solicitation for profit
  2. impt gov interest in protecting public form fraud, fraud, and overreach.
73
Q

Radio and Television (broadcast mediums)

A

Content based or content neutral, subject to IS.

  • fleeing expletives
  • vulgar or offensive words
  • captive audience interest
  • traditionally regulated by gov
74
Q

Phone, cable, or internet (non broadcast mediums)

A

Content based, SS.

Content neutral, IS.

75
Q

Non-Obscene Sexual Expresion

A

Protected speech subject to SS.

Zoning Commercial Sexual Expression: Adult entertainment/expression may be regulated as reasonable time, place and manner restrictions when aimed at the secondary effects (i.e., neighborhood deterioration/crime, if supported by empirical evidence) provided it is not aimed at expressive content.

76
Q

Violent Speech

A

Protected speech, subject to SS.

  • animal crush videos
  • violent video games
77
Q

Traditional Public Forum

A

Historically open to speech activities and which the constitution req the gov to keep open to speech (streets, sidewalks, parks, and internet).

In a traditional public forum, the gov may regulate speech if it is a time, place and manner reg, i.e.,

(1) content neutral,
(2) further impt gov interest,
(3) narrowly tailored (but not least restrictive), and
(4) leave open ample alternative channels of communications.

  • If content based, subject to SS.
  • Important gov interest
    1. traffic safety, orderly crowd movement
    2. aesthetics (posting on public utility poles);
    3. park maintenance (overnight sleeping in park);
    4. excessive noise;
    5. captive audience interest
    a. Targeted/focused residential picketing;
    b. Medical privacy and right to abortion: (stationary/floating buffer zones)

Also…

  • permit schemes
  • total medium bans
  • secondary affects
78
Q

Designated Public Forums

A

Public property gov opens up to speech but which it is not required to do so. Same rules apply as in traditional public forums.
- e.g., sch or univ open campus up to public

79
Q

Limited Public Forum

A

Gov properties limited to specific groups or subjects. (e.g., college hosts debate on specific community issue)

Gov may regulate if

(1) viewpoint neutral, and
(2) reasonably related to a legitimate gov purpose.

80
Q

Nonpublic Forum

A

Gov property that the gov constitutionally can and does close to speech.

Gov may regulate speech if

(1) viewpoint neutral, and
(2) reasonably related to a legitimate gov purpose.

Nonpublic Forums

  • military basis
  • schools
  • gov workplace
  • sidewalk next to post office building
  • airport terminal (unless resembles shopping mall)
  • candidate debate on public television
  • polling places
81
Q

Government as Quasi-Private Actor: Student Speech

A

Gov may regulate student speech if rationally related to a legitimate pedagogical concern.

  • Gov can reg vulgar speech, lewd conduct, and drug related speech.
  • Reg can’t be viewpoint discriminatory (banning armband protesting war; banning books expressing certain viewpoints)
82
Q

Government as Quasi-Private Actor: Public Employee Speech

A
  • If employee spoke on a matter of public concern, crts will weigh employee’s free speech interest against gov’s interest in effective gov.
  • If employee spoke on a matter of private concern or spoke in official capacity, this is not public concern, and crt will defer to gov’s decision.
83
Q

Government as Quasi-Private Actor: Government Speech

A

Aside from the establishment clause, gov speech is not subject to first amend scrutiny and gov is not req to speak in a viewpoint neutral manner.

  • Trademark licensing scheme is not gov speech, it is private speech subject to first amendment scrutiny.
  • Permanent monument in public park is gov speech; gov is not required to display permanent monument with a message with which it disagrees.
84
Q

Government as Quasi-Private Actor: Speech Restrictive Conditions on Public Funds

A
  1. Gov spending programs
    - Gov CAN limit use of funds within a spending program, including to convey a specific message favored by the gov.
    - However, the gov cannot place conditions outside the spending program that req the recipient to refrain from speech or adopt a particular view.
  2. Subsidizing private speech
    - Generally, req gov to grant funds on a viewpoint neutral basis (some exceptions—e.g., for art, which reqs consideration of the content of the art).
85
Q

Compelled Speech Generally

A

If gov compels speaker to speak, to alter his message, endorse a particular viewpoint, it is subject to SS.

Speech may be compelled if identified with speaker.

Examples

  • flag salute
  • peg of allegiance
  • state motto
  • speech altered when priv group req to include gay pride unit
  • mandate req crisis pregnancy center to adopt gov notice was altered speech
86
Q

Compelled Speech: Anonymous Speech

A
  1. Individual disclosure req for handbills, political/electoral materials, subject to SS.
  2. Candidate disclosure req subject to IS, bc impt gov interest in preventing fraud, promoting confidence in electoral process.
87
Q

Freedom of Association Generally

A

Restriction on right to associate or not associate subject to SS.

88
Q

Freedom of Association: Disclosing Membership

A

Disclosure of group membership subject to SS.

Except

  1. group is involved in unlawful activities.
  2. List of names of contributors for political candidates/committees (impt ints in preventing fraud and promoting confidence in election process)
89
Q

Freedom of Association: Punishment and Denial of Benefits

A

Laws that punish or deny benefits based on group membership are subject to SS.

Upheld if

(1) active member of group,
(2) know org advocates unlawful acts, and
(3) have specific intent to cary out the aims of org.

90
Q

Freedom of Association: Unions

A

Public employee cannot be compelled to

  1. join union, or
  2. nonmember cannot be compelled to pay “fair share” fee, even if for collective bargaining purpose and not for political advocacy.
91
Q

Freedom of Association: Compelled Inclusion

A

Gov may constitutionally may prohibit groups from discriminating against unwanted members (survive SS bc compelling interest to stop discrimination) unless doing so interfere w/associational freedoms:

(1) group is involved in expressive association;
(2) inclusion sig conflicts with the viewpoint advocated by group, and
(3) inclusion will sig burden group’s ability to advocate that viewpoint.

92
Q

Political Campaign Spending and Fundraising

A

Subject to IS, ints in preventing corruption or its appearance.

  1. contribution limits - limiting amt one person/group may contribute to one candidate, generally valid provided not ridiculously low.
  2. Aggregate spending limit - how much on candidate can collect from all contributors is invalid.
  3. Independent expenditure are invalid.
    - any person can independently spend any amt provided not coordinating w/candidate.
    - candidate can spend any amt of their own money
  4. Corporation have same speech rights as individuals
  • But laws reg core political speech are subject to SS.
  • issue advocacy, or
  • express candidate advocacy
93
Q

Journalism and Media

A
  1. Press has no greater freedom to speak or access than does general public.
  2. Laws restricting publication of truthful info lawfully obtained, subject to SS.
    - includes info unlawfully obtained, provided media did not participate in illegally obtaining it and info involved a matter of public concern.
  3. No clear standard for access to trials, but crt must articulates some “higher interest” to close proceedings to public—e.g., to protect jurors or children, or maintain fairness of trial.
  4. No newsperson privilege to protect disclosure of confidential sources unless
94
Q

Religious Clauses

A

Free exercise and establishment clauses apply to fed and state gov.

95
Q

Free Exercise Clause

A
  1. Neutral, generally applicable laws incidentally burdening religion are subject to RBT.
    a. neutrality prong - fatal if purposeful discrimination (based on text and circumstances of statutes, legislative history/comments, and if religious animus)
    b. generally applicable prong - fatal if law treats similar conduct in conflict w/the proposed interest differently by imposing different burdens.
  2. If not neutral or generally applicable, SS applies.
  3. Gov cannot deny a generally available public benefit on the basis of religion, even if it denies it to all religions.
96
Q

Establishment Clause Generally

A

SS applies where gov discriminates against religious speech, among religions, or between religion and non religion.

97
Q

Establishment Clause: Coercion test

A

Gov cannot use physical or mental coercion to induce participation in religions exercises.

98
Q

Establishment Clause: Lemon Test

A

A gov action benefiting religions does not violate the establishment clause if it passes the lemon test, i.e.,

(1) it has a secular purpose (may have a religious purpose provided there is a secular purpose as well);
(2) its primary effect neither advances nor inhibits religion; and
(3) it does not result in excessive gov entanglement with religion.

99
Q

Establishment Clause: Gov Aid to Religion

A

Apply LT.

  1. Has to be available to general public (if available only to nonreligious institution, or only religious institution, violates establishment clause)
  2. Cannot be used to pay for religious instruction.
  3. Upholding textbooks, computers, transportation, vouchers, etc., because generally available public benefit and secular purpose to provide education.
100
Q

Establishment Clause: Religion in Public Schools

A
  • Exclusive use of school grounds for religious purpose, will likely fail absent secular purpose.
  • If open to all, cannot deny religious groups access, subject to strict scrutiny.
  • Struck down:
    1. Prayer/bible reading
    2. Meditation/voluntary prayer
    3. Prayer at graduation
    4. Ten commandments on school wall
    5. Cannot stop teaching Darwinism or mandate teaching of creation science.
101
Q

Establishment Clause: Religious Displays

A

Apply LT.

  1. under effect prong - primary purpose depends on context of display, does something indicate primary purpose is not secular, e.g., other secular objects, historical as opposed to religious value.
  2. cases which could go either way
    - 10 commandments
    - nativity scene
    - Sunday school scene
    - KKK cross
    - legislative prayer (historical tradition)

CA BAR (2 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions