Constitutional Law Flashcards
State Action Requirement
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
Public Forum
government property that has historically been open to speech-related activities (streets, sidewalks, public parks, and the internet)
Designated Public Forum
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)
Time, Place, and Manner Restrictions
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.
Limited Public Forum
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)
Nonpublic Forum
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)
Restrictions of Speech and Assembly on Limited or Nonpublic Forum
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
Content-Based Regulations
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
Commercial Speech
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
Prior Restraints (censorship)
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.
Takings Clause
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.
Due Process Sources
5th Amendment applies to the federal government
14th Amendment applies to states and local government
Substantive Due Process
If a law limits liberty of all persons to engage in some activity, on the MBE it is usually a due process question
Equal Protection
If a law treats a person or class of persons differently it usually is an equal protection problem.
Strict Scrutiny
Is the necessary to achieve a compelling government purpose?
Applies when a suspect class is involved or the regulation involves a fundamental right.
Fundamental Rights
Privacy
Interstate Travel
Voting
First Amendment Rights
Suspect Class
National Origin
Race
Sometimes alienage
Intermediate Scrutiny
Is the law substantially related to an important government purpose?
Applies where a quasi-suspect class is involved.
Quasi-Suspect Class
Gender
Legitimacy
Rational Basis Test
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.
First Amendment Freedoms
Prohibits Congress from:
- establishing a religion or interfering with the exercise of religion
- Abridging the freedoms of speech and press
- Interfering with the right of assembly
These prohibitions are applicable to the states through the Fourteenth amendment.
Freedom of Speech
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.
Content Neutral Regulations
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.
Overbroad
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.
