Constitutional Law

Question 1

State Action Requirement

Answer 1

To show a constitutional violation, “state action” must be involved. This concept applies to government and government officers at all levels and state action can be found in private individuals who 1) perform exclusive public functions or 2) have significant state involvement

Question 2

Public Forum

Answer 2

government property that has historically been open to speech-related activities (streets, sidewalks, public parks, and the internet)

Question 3

Designated Public Forum

Answer 3

Public property that has not been historically open to speech-related activities but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy (eg. schoolrooms that are open for after-school use by social, civic, or recreational groups)

Question 4

Time, Place, and Manner Restrictions

Answer 4

Government has the power to regulate conduct related to speech and assembly. The breadth of this power depends on whether the forum is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.

Regulation of public and designated public fora must be content neutral, be narrowly tailored to serve an important government interest (however, it need not be the least restrictive means for accomplishing the interest), and it must leave open alternative channels of communication.

Question 5

Limited Public Forum

Answer 5

Government property not historically linked with speech and assembly but opened for a specific speech activity (such as a school gym opened to a public debate)

Question 6

Nonpublic Forum

Answer 6

Government property that has not historically been opened to speech and assembly and that has not been held open for speech activities (such as military bases, schools while classes are in session, and government offices)

Question 7

Restrictions of Speech and Assembly on Limited or Nonpublic Forum

Answer 7

Government can regulate in such fora to reserve the forum for its intended use so long as the regulations are:

1) viewpoint neutral
2) reasonably related to a legitimate government interest

Question 8

Content-Based Regulations

Answer 8

to be valid, restrictions of the content of speech must be necessary to achieve a compelling government interest. The government has a compelling interest in the following areas:

1) inciting imminent lawless action
2) fighting words
3) obscenity (a) appeals to the prurient interest in sex using a community standard, b) is patently offensive, c) lacks serious value (literary, political, or scientific) using a national reasonable person standard

Question 9

Commercial Speech

Answer 9

as a general rule, commercial speech is protected by 1st Amendment unless it proposes unlawful activity or it is misleading/fraudulent. Any other regulation of commercial speech will be upheld only if:

1) serves a substantial governmental interest
2) directly advances that interest
3) is narrowly tailored to serve that interest

Question 10

Prior Restraints (censorship)

Answer 10

court orders preventing speech before it has occurred; rarely allowed. The government has a heavy burden in justifying; it must show that some special societal harm will result otherwise and then procedural safeguards must be in place: 1) the standards must be narrowly drawn, reasonable and definite; 2) injunction must be promptly sought; 3) there must be prompt and final determination on the validity of the restraint.

Question 11

Takings Clause

Answer 11

5th Amendment provides that private property may not be taken for public use without just compensation. This rule is applicable to the states through the 14th Amendment.

It is not a source of power but rather a limitation on the power.

A taking involves not only physical appropriation but also some government action that damages property or impairs its use.

Government action is reviewed under rational basis test.

Question 12

Due Process Sources

Answer 12

5th Amendment applies to the federal government

14th Amendment applies to states and local government

Question 13

Substantive Due Process

Answer 13

If a law limits liberty of all persons to engage in some activity, on the MBE it is usually a due process question

Question 14

Equal Protection

Answer 14

If a law treats a person or class of persons differently it usually is an equal protection problem.

Question 15

Strict Scrutiny

Answer 15

Is the necessary to achieve a compelling government purpose?

Applies when a suspect class is involved or the regulation involves a fundamental right.

Question 16

Fundamental Rights

Answer 16

Privacy
Interstate Travel
Voting
First Amendment Rights

Question 17

Suspect Class

Answer 17

National Origin
Race
Sometimes alienage

Question 18

Intermediate Scrutiny

Answer 18

Is the law substantially related to an important government purpose?

Applies where a quasi-suspect class is involved.

Question 19

Quasi-Suspect Class

Answer 19

Gender

Legitimacy

Question 20

Rational Basis Test

Answer 20

Is the law rationally related to any legitimate government purpose?

Burden is on the plaintiff

Applies where there is no suspect / quasi-suspect class and no fundamental rights are involved.

Question 21

First Amendment Freedoms

Answer 21

Prohibits Congress from:

1. establishing a religion or interfering with the exercise of religion
2. Abridging the freedoms of speech and press
3. Interfering with the right of assembly

These prohibitions are applicable to the states through the Fourteenth amendment.

Question 22

Freedom of Speech

Answer 22

The Free Speech clause prohibits government regulation of private speech; it does not require the government to aid private speech nor restrict the governement from expressing its views.

Generally, governement speech and government funding of speech will be upheld if rationally related to a legitimate government purpose.

Question 23

Content Neutral Regulations

Answer 23

Subject to intermediate scrutiny; they must advance important intereests unrelated to the suppression of speech and must not burden substantially more speech than necessary (or must be narrowly tailored) to further those interests.

Question 24

Overbroad

Answer 24

If a regulation or speech or speech-related conduct punishes substantial amounts of protected speech in relation to its plainly legitimate sweep (e.g. a retulation outlawing all First Amendment activity in an airport terminal) the regulation is facially invalid unless a court has limited construction of the regulation so as to remove the thread to constitutionaally protected expression.

Question 25

Void for Vagueness Doctrine

Answer 25

If a criminal law or regulation fails to give persons reasonable notice fo what is prohibited, it may violate the Due Process Clause. The principle is applied somewhat strictly when First Amendment activity is involved.

Question 26

Unfettered Discretion

Answer 26

A regulation cannot give officials broad discretion over speech issues; there must be defined standards for applying the law. If a statute gives licensing officials unbridiled discretion, it is void on its face and speakers need not even apply for a permit. If the licensing statute includes standards, a speaker may not ignore the statute, he must seek a permit and if it is denied, he can challenge the denial on First Amendment grounds.

Question 27

Scope of Speech

Answer 27

The freedom to speak includes the freedom not to speak. Thus, the government cannot require people to salute the flag or display other messages with which they disagree. The freedom can extend to symbolic acts undertaken to communicate an idea (e.g. wearing black to protest the war) although the government may regulate such conduct if it has an important interest in the regulation independent of the speech aspects of the conduct and the incidental burden on speech is no greater than necessary.

Question 28

Free Exercise Clause

Answer 28

Prohibits the government from punishing someone on the basis of her religious beliefs. The clause forbids:

1. State governments from requiring office holders or employees to take a religious oath (the federal gov’t is similarly restricted)
2. States from excluding clerics from holding public office.
3. Courts from declaring religious belief to be false

Question 29

Exceptions to Free Exercise

Answer 29

Government may prohibit general conduct—including reglious conduct—if it is valid. The only exception to this rule are those pertaining to unemployment compensation and the education of Amish children.

Question 30

Establishment Clause

Answer 30

Compels the government to pursue a course of neutrality toward religion. Government action challenged under the Establishment Clause will be found to be invalid unless the action:

1. Has a secular purpose
2. Has a primay purpose that neither advances nor inhibits religion
3. Does not produce excessive government entanglement with religion.

Question 31

Commandeering State Officials

Answer 31

The Supreme Court has held that Congress may not require state executive officials to enforce federal laws because such a requirement would upset the Constitution’s “dual sovereignty” structure (i.e. both the states and the federal government are sovereign)

Question 32

Privileges and Immunities Clause of 14th Amendment

Answer 32

Prohibits discrimination by a state against nonresidents.

Corporations and aliens are not protected by this clause.

Question 33

Commerce Clause

Answer 33

Commerce has power to regulate 4 areas related to interstate commerce:

1. The channels of interstate commerce
2. The instrumentalities of interstate commerce
3. Articles moving in interstate commerce
4. Any activity substantially affecting interstate commerce

Question 34

Dormant Commerce Clause

Answer 34

Where Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce so long as it is not discriminatory agasint or unduly burdonsome to interstate commerce.