Brainscape's Knowledge GenomeTM

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


See full index

(Studicata) > Constitutional Law > Flashcards

Constitutional Law Flashcards

1
Q

MED

STATE SOVEREIGN IMMUNITY (11th AMENDMENT)

A

The 11th Amendment is a jurisdictional bar that prohibits:

  1. The citizens of one state or a foreign country from suing another state in federal court for money damages or equitable relief; AND
  2. Suits in federal court against state officials for violating state law.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

MED

11TH AMENDMENT EXCEPTIONS

A

The following are exceptions to the application of the 11th Amendment:

  1. Consent. A state may consent to a suit by waiving its protection.
  2. Injunctive Relief. When a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law or may be compelled to act in accord with federal law despite state law to the contrary.
  3. Individual Damages. An action for damages against a state official is not prohibited so long as the official himself will have to pay.
  4. Congressional Authorization. Congress may abrogate state immunity from liability it is clearly and expressly acting to enforce rights created by the 14th Amendment.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

LOW

STANDING

A

A federal court cannot decide a case unless the plaintiff has standing (i.e., a concrete stake in the outcome of the action). To have standing, a plaintiff bears the burden of establishing three elements:

  1. Injury in Fact. The injury must be concrete and particularized (when a harm is concrete, though widely shared, there is standing). However, it does not have to be physical or economic. While the threat of future injury can suffice, it cannot be merely hypothetical or conjectural, it must be actual and imminent.
  2. Causation. The injury must be fairly traceable to the challenged action (i.e., the the defendant’s conduct caused the injury).
  3. Redressability. It must be likely that a favorable court decision will redress an injury suffered by the plaintiff.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

lowest

TAXPAYER STANDING

A

Generally, a taxpayer does NOT have standing to file a federal lawsuit simply because the taxpayer believes that the government has allocated funds in an improper way. However, a taxpayer does have standing to litigate whether, or how much, she owes on her tax bill. In addition, a taxpayer has standing when the taxpayer challenges governmental expenditures as violating the Establishment Clause.

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

lowest

THIRD PARTY STANDING

A

Generally, one cannot assert the constitutional rights of others to obtain standing, but a claimant with standing in her own right may also assert the rights of a third party if:

  1. The third party would experience difficulty or is unable to assert their own rights;
  2. There is a special relationship between the plaintiff and the third party; OR
  3. The plaintiff’s injury adversely affects the plaintiff’s relationship with the third party.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

lowest

ORGANIZATIONAL STANDING

A

An organization may bring an action when it has suffered an injury. In addition, an organization may bring an action on behalf of its members (even if the organization itself has not suffered an injury) if:

  1. Its members would have standing to sue in their own right; AND
  2. The interests at stake are germane to the organization’s purpose.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

lowest

RIPENESS

A

A federal court will NOT consider a claim before it has fully developed. For a case to be ripe for litigation, the plaintiff must have experienced a real injury or imminent threat thereof.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

lowest

MOOTNESS

A

A case has become moot if further legal proceedings would have no effect (i.e., there is no longer a controversy). A live controversy must exist at each stage of review (not merely when the complaint is filed).

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

lowest

CAPABLE OF REPETITION, YET EVADING REVIEW

A

A case will NOT be dismissed as moot if the controversy is a type that may often recur, but that will not last long enough to work its way through the judicial system (e.g., abortion challenges once the woman is no longer pregnant).

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

lowest

VOLUNTARY CESSATION

A

A case will NOT be dismissed as moot if the defendant voluntarily ceases the wrongful action once litigation has commenced. The court must be assured that there is no reasonable expectation that the wrong will be repeated.

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

lowest

MOOTNESS IN CLASS ACTIONS

A

An entire class action will NOT be dismissed as moot solely because the named party’s claim in the class is resolved and becomes moot.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

lowest

ADVISORY OPINIONS

A

Federal courts may NOT render advisory opinions on the basis of an abstract or hypothetical dispute. An actual case or controversy must exist. However, courts may issue declaratory judgments (i.e., judgments that determine the legal effect of proposed conduct without awarding damages or injunctive relief) so long as the action in question poses a real and imminent danger to a party’s interests.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

lowest

POLITICAL QUESTIONS

A

A federal court will NOT rule on a matter in controversy if the matter is a political question to be resolved by one or both of the other two branches of government. A political question not subject to judicial review arises when:

  1. The Constitution has assigned decision making on the matter to a different branch of government; OR
  2. The matter is inherently not one that the judiciary can decide.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

lowest

NECESSARY AND PROPER POWER

A

Congress can exercise those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government. Thus, Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government.

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

LOW

TAXING POWER

A

Congress has the power to tax, and most taxes will be upheld if:

  1. They bear some reasonable relationship to revenue production; OR
  2. Congress has the power to regulate the activity taxed.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

LOW

SPENDING POWER

A

Congress may spend to “provide for the common defense and general welfare.” Spending may be for any public purpose.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

MED

COMMERCE POWER

A

Congress has the power to regulate all foreign and interstate commerce. To be within Congress’s power under the Commerce Clause, a federal law regulating interstate commerce must either regulate the:

  1. Channels of interstate commerce;
  2. Instrumentalities of interstate commerce and persons and things in interstate commerce; OR
  3. Activities that have a substantial effect on interstate commerce.

When Congress attempts to regulate intrastate activity under the third prong, the Court will uphold the regulation if:

  1. The regulation is of economic or commercial activity (e.g., growing wheat or medicinal marijuana even for personal consumption); AND
  2. The court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.

However, if the regulated intrastate activity is noneconomic and noncommercial (e.g., possessing a gun in a school zone or gender-motivated violence), the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce, which it generally will not be able to do.

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

LOW

13th, 14th, AND, 15th AMENDMENT ENFORCEMENT POWER

A

Each of the 13th, 14th, and 15th Amendments [ban on slavery, equal protection and due process, and voting rights] contain a provision that authorizes Congress to pass “appropriate legislation” to enforce the civil rights guaranteed by those Amendments.

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

lowest

DELEGATION OF LEGISLATIVE POWER

A

Legislative power may generally be delegated to the executive or judicial branch provided that:

  1. Intelligible standards are set to the guide the delegation; AND
  2. The power is NOT uniquely confined to Congress (e.g., power to declare war).
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

lowest

THE PRESIDENT’S DOMESTIC POWERS

A

The President has the power to:

  1. Reprieve or pardon federal offenses, except in cases of impeachment;
  2. Appoint all officers of the United States (e.g., ambassadors, Supreme Court Justices, etc.) with the advice and consent of the Senate;
  3. Remove any executive appointee without cause and without Senate approval, except in cases of federal judges (federal judges may only be removed by impeachment); AND
  4. Veto any bill presented to her by Congress.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

lowest

VETO PROCEDURE

A

Upon presentment of a bill, the President has 10 days to act. If the president signs the bill, it becomes law. If the President does nothing, the bill becomes law without the President’s signature so long as Congress is still in session at the end of the 10-day period. If the President vetoes the bill by sending it back with objections, Congress may override the veto and enact the bill into law by a two-thirds vote in each house.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

lowest

LINE ITEM VETO

A

The President may NOT exercise a line item veto (refusing part of a bill and approving the rest).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

lowest

SCOPE OF PRESIDENTIAL POWER

A

In order to determine whether the President’s actions are within the scope of his constitutional power, the court must consider the degree of congressional authorization the President is acting with:

  1. When the president is acting with the express or implied authorization of Congress, presidential authority is at its highest, and the action is strongly presumed to be valid.
  2. When Congress has not spoken, presidential authority is diminished, and the action is invalid if it interferes with the operations or power of another branch of government.
  3. When Congress has spoken to the contrary, presidential authority is at its lowest, and the action is likely invalid.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

lowest

THE PRESIDENT’S FOREIGN POWERS

A
  1. Commander in Chief. Although the President is commander in chief of the military, only Congress may declare war. However, the President may take military action without a declaration of war in the case of actual hostilities against the United States.
  2. Treaties. The President has the exclusive power to negotiate treaties, although a treaty may only be ratified with the concurrence of two- thirds of the Senate.
  3. Executive Agreements. The President has the power to enter into executive agreements (e.g., trade agreements) with foreign nations without approval the Senate.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

lowest

EXECUTIVE PRIVILEGE

A

The President has a privilege to keep certain communications secret. National security secrets are given the greatest deference by the courts.

In criminal proceedings, presidential communications will be available to the prosecution where a need for such information is demonstrated.

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

lowest

EXECUTIVE IMMUNITY

A

The President has absolute immunity from civil damages based on any action he took within his official responsibilities as President; however, there is no immunity for acts that allegedly occurred before taking office.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

lowest

IMPEACHMENT

A

The President, Vice President, and all civil officers of the United States are subject to impeachment. Grounds include treason, bribery, high crimes, and misdemeanors. A majority vote in the House is necessary to invoke the charges of impeachment, and two-thirds vote in the Senate is necessary to convict and remove from office.

28
Q

lowest

EXCLUSIVE FEDERAL POWERS

A

Power of States Expressly Limited. Some powers are exclusively federal because the Constitution limits or prohibits the use of the power by state (e.g., treaty power, coinage of money).

Inherent Federal Powers. Other powers are exclusively federal because the nature of the power itself is such that it can be exercised only by the federal government (e.g., declaration of war).

29
Q

MED

EXCLUSIVE STATE POWERS

A

The 10th Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people.

30
Q

MED

FEDERAL REGULATION OF STATES

A

The federal government has virtually unlimited power to regulate the states. Generally, Congress may regulate the states so long as it is exercising an enumerated power. While Congress cannot command state legislatures to enact specific legislation, it may encourage state action through the use of its taxing and spending powers. (e.g., Congress can condition federal highway funds on the state’s requiring a minimum drinking age of 21).

31
Q

MED

DORMANT COMMERCE CLAUSE

A

If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not:

  1. Discriminate against out-of-state commerce;
  2. Unduly burden interstate commerce; OR
  3. Regulate wholly out-of-state activity.

Legislation that violates any of the above requirements is generally deemed unconstitutional unless:

  1. The state is acting as a market participant rather than a market regulator;
  2. The legislation favors state or local government entities that are performing a traditional government function; OR
  3. Congress explicitly permits the legislation.
32
Q

lowest

SUPREMACY CLAUSE

A

The Supremacy Clause provides that federal law is the “supreme law of the land.” Any state law that directly or indirectly conflicts with a federal law is void under the Supremacy Clause.

33
Q

lowest

EXPRESS PREEMPTION

A

Federal law expressly preempts state law when:

  1. The Constitution makes the federal power exclusive; OR
  2. Congress has enacted legislation that explicitly prohibits state regulation in the same area.
34
Q

lowest

IMPLIED PREEMPTION

A

Federal law implicitly preempts state law when:

  1. Congress intended for federal law to occupy the entire field (intent to occupy a field can be inferred from a framework of regulation so pervasive that Congress left no room for states to supplement it or when there is a federal interest so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject);
  2. The state law directly conflicts with the federal law (e.g., requiring conduct that is forbidden by the federal law or making it impossible to comply with both); OR
  3. The state law indirectly conflicts with the federal law by creating an obstacle to or frustrating the accomplishment of the federal law’s purpose.
35
Q

HIGH

STATE ACTION REQUIREMENT

A

Generally, the Constitution protects against wrongful conduct by the government, not private parties (there is an exception for the prohibition of slavery, which applies to the government and private parties). Thus, state action is required to trigger an individual’s constitutional protections.

State action may exist in cases of private parties when:

  1. A private person carries on activities that are traditionally performed exclusively by the state; OR
  2. There are sufficient mutual contacts between the conduct of a private party and the government (this is a question of the degree of state involvement).
36
Q

lowest

PROCEDURAL DUE PROCESS

A

The Due Process Clause of the 14th and 5th Amendments guarantees that no person shall be denied life, liberty, or property without due process of law. Thus, a fair process (e.g., notice and hearing) is required for a government agency to take a person’s life, liberty, or property.

Only intentional (not negligent) deprivation of these rights violates the Due Process Clause. The type and extent of procedural due process that is required is determined by a three-part balancing test that weighs:

  1. The importance of the individual’s interest that is being affected; AND
  2. The value of specific procedural safeguards to that interest; AGAINST
  3. The government interest in fiscal and administrative efficiency.
37
Q

lowest

SUBSTANTIVE DUE PROCESS

A

A governmental regulation that infringes upon a fundamental right is subject to the strict scrutiny standard of review, while a governmental regulation that does not infringe upon a fundamental right is subject to the rational basis standard of review. Fundamental rights, triggering strict scrutiny, include:

  1. The right to interstate travel;
  2. The right to vote; AND
  3. The right to privacy (includes:
    1. right to marry;
    2. right of married persons to use contraceptives;
    3. right of adults to engage in non-commercial, consensual sex;
    4. right of parents to make decisions regarding the care, custody, and control of their children;
    5. the right of related persons to live together in a single household)
38
Q

lowest

STANDARD OF REVIEW: STRICT SCRUTINY

A

The government must prove that the regulation is the least restrictive means to achieve a compelling government interest (very difficult to prove).

39
Q

lowest

STANDARD OF REVIEW:

INTERMEDIATE SCRUTINY

A

The government must prove that the regulation is substantially related to an important government interest.

40
Q

lowest

STANDARD OF REVIEW: RATIONAL BASIS

A

The challenger must prove that the regulation is not rationally related to any legitimate government interest (very difficult to prove).

41
Q

MED

EQUAL PROTECTION CLAUSE

A

When the government makes laws that classify people into groups, the constitutionality of the law will be evaluated according to the type of classification made:

  1. If a suspect classification is involved, the strict scrutiny standard applies. Classifications are suspect if they are based on race, ethnicity, national origin, or alienage (alienage is only suspect if the classification is made by state law).
  2. If a quasi-suspect classification is involved, the intermediate scrutiny standard applies. Classifications are quasi-suspect if they are based on gender or legitimacy (non-marital children).
  3. For all other classifications (e.g., age, disability, and wealth classifications), the rational basis standard applies.
42
Q

MED

GOVERNMENTAL INTENT

IN EQUAL PROTECTION

A

For strict or intermediate scrutiny to be applied in an equal protection analysis, there must be intent on the part of the government to discriminate. A discriminatory effect or disparate impact toward a group of people alone is not enough to show governmental intent.

Governmental intent may be shown by:

  1. A law that is discriminatory on its face;
  2. A discriminatory application of a facially neutral law; OR
  3. A discriminatory motive behind a facially neutral law.
43
Q

LOW

AFFIRMATIVE ACTION

A

States may implement regulations to remedy past discrimination if the class has actually suffered persistent and readily identifiable past discrimination. A race-based plan cannot be used to remedy general past “societal discrimination.” The level of scrutiny applied to the regulation depends on the classification.

44
Q

LOW

TAKINGS CLAUSE

A

The power of the government to take private property for public purposes is known as “eminent domain.” The Takings Clause of the 5th Amendment acts as a check on this power. It provides that:

  1. Private property may be taken;
  2. For public use;
  3. With just compensation (fair market value).
45
Q

LOW

REGULATORY TAKINGS

A

Generally, a governmental regulation that adversely affects a person’s property interest is not a taking; however, it is possible for a regulation to rise to level of a taking (requiring just compensation). In determining whether a regulation constitutes a taking, the following factors are considered:

  1. The economic impact of the regulation on the property owner;
  2. The extent to which the regulation interferes with the owner’s reasonable investment-backed expectations regarding the use of the property; AND
  3. The character of the regulation (including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership).
46
Q

LOW

PER SE TAKINGS

A

A governmental regulation clearly results in a taking when the regulation results in a:

  1. Permanent physical occupation of the property; OR
  2. Permanent total loss of the property’s economic value.
47
Q

LOW

EXACTION AS A TAKING

A

A local government may exact promises from a developer (e.g., setting aside a portion of the land being developed for a public use in exchange for issuing the necessary construction permits) without violating the Takings Clause if there is:

  1. An essential nexus between legitimate state interests and the conditions imposed on the property owner; AND
  2. A rough proportionality between the burden imposed by the conditions on the property owner and the impact of the proposed development.
48
Q

LOW

PRIVILEGES AND IMMUNITES CLAUSE

A

The Privileges and Immunities Clause prohibits one state from discriminating against the citizens of another state (does not apply to corporations or aliens). Out-of-state citizens are protected against discrimination with respect to any fundamental rights or essential activities (e.g., pursuit of employment, transfer of property, engaging in the political process, etc.).

However, discrimination against out-of- state citizens may be valid if the state can show a substantial reason for the difference in treatment. A substantial reason exists if:

  1. The out-of-state citizens either cause or are part of the problem that the state is attempting to solve; AND
  2. There are no less restrictive means to solve the problem.
49
Q

lowest

EX POST FACTO LAWS

A

The state or federal government may NOT pass an ex post facto law. An ex post facto law is a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity.

A statute retroactively alters a law in a substantially prejudicial manner if it:

  1. Makes criminal an act that was innocent when done;
  2. Prescribes greater punishment for an act than was prescribed when it was done; OR
  3. Reduces the evidence required to convict a person of a crime from what was required when the act was done.
50
Q

lowest

BILLS OF ATTAINDER

A

Bills of attainder are legislative acts that inflict punishment on individuals without a judicial trial. Both state and federal governments are prohibited from passing bills of attainder.

51
Q

lowest

FREEDOM NOT TO SPEAK

A

The freedom to speak includes the freedom not to speak. Thus, the government generally cannot require people to salute the flag or display other messages with which they disagree (e.g., a person need not display the state motto “live free or die” on a license plate).

_________________________

The freedom can extend to symbolic acts undertaken to communicate an idea (e.g., wearing a black armband to protest war), although the government may regulate such acts if:

  1. The government has an important interest independent of the suppression of speech; AND
  2. The incidental burden on speech is no greater than necessary to further that interest.
52
Q

LOW

OVERBREADTH DOCTRINE

A

Under the overbreadth doctrine, if a regulation of speech or speech-related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid. (e.g., a regulation outlawing ALL 1st Amendment activity in an airport terminal; a regulation prohibiting all canvassers from going onto private residential property to promote ANY cause without first obtaining a permit).

53
Q

LOW

VOID FOR VAGUENESS DOCTRINE

A

A statute or regulation is void for vagueness if it does not put the public on reasonable notice as to what is prohibited.

54
Q

LOW

PRIOR RESTRAINTS (CENSORSHIP)

A

A prior restraint is a regulation of speech that occurs before its expression. Generally, prior restraints are presumed to be unconstitutional with limited exceptions, including:

  1. There is a particular harm to be avoided (e.g., restraining a newspaper from publishing troop movements).
  2. Procedural safeguards are provided to the speaker (e.g., the standards must be narrowly drawn, reasonable, and definite).
55
Q

MED

CONTENT-BASED SPEECH REGULATIONS

A

Speech regulations are content-based if they prohibit communication of specific ideas.

It is presumptively unconstitutional to place burdens on speech because of its content, except for certain categories of unprotected speech (e.g., obscenity, defamation, etc.).

56
Q

MED

CONTENT-NEUTRAL SPEECH REGULATIONS

A

Content-neutral speech regulations generally must:

  1. Advance important interests unrelated to the suppression of speech; AND
  2. Not burden substantially more speech than necessary to further those interests.
57
Q

MED

CONDUCT-BASED TIME, PLACE, AND MANNER SPEECH REGULATIONS

A

The government has power to regulate the conduct associated with speech (time, place, and manner), although the breadth of this power depends on whether the forum involved is a public or nonpublic forum.

58
Q

MED

CONDUCT-BASED SPEECH REGULATIONS IN PUBLIC FORUMS

A

Public property that has historically been open to speech-related activity is called a public forum (e.g., streets, sidewalks, and public parks). Public property that has not historically been open to speech-related activities, but which the government has made open for such activities on a permanent or limited basis, by practice or policy is called a designated public forum (e.g., schoolrooms that are open for after-school use by social, civic, or recreation groups). The government may regulate speech in public forums and designated public forums with reasonable time, place, and manner regulations that:

  1. Are content-neutral (i.e., are subject matter and viewpoint neutral)
  2. Are narrowly tailored to serve an important government interest; AND
  3. Leave open alternative channels of communication.
59
Q

MED

CONDUCT-BASED SPEECH REGULATIONS IN NONPUBLIC FORUMS

A

Government property that has not historically been linked with speech and assembly but has been opened for specific speech activity is called a limited public forum (e.g., school gym opened to host a debate on a particular community issue).

Government property that has not historically been linked with speech and assembly and has not been opened for specific speech activity is called a nonpublic forum (e.g., military bases, schools while classes are in session, government workplaces, etc.).

The government may regulate speech in limited public forums and nonpublic forums if the regulations are:

  1. Viewpoint neutral; AND
  2. Reasonably related to a legitimate government purpose
60
Q

MED

CATEGORIES OF UNPROTECTED SPEECH

A

To be valid, restrictions on the content of speech must be necessary to achieve a compelling government interest. The government has a compelling interest in the following categories of speech, which are deemed “unprotected speech” under the 1st Amendment:

  1. Inciting imminent lawless action;
  2. Fighting words;
  3. Obscenity;
  4. Defamatory speech; AND
  5. Some commercial speech
61
Q

LOW

INCITING IMMINENT LAWLESS ACTION

A

Speech can be restricted if it creates a clear and present danger of imminent lawless action. It must be shown that that:

  1. Imminent illegal conduct is likely; AND
  2. The speaker intended to cause it.
62
Q

LOW

FIGHTING WORDS

A

Speech can be limited if it constitutes fighting words.

Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person.

The Supreme Court will not tolerate fighting words statutes that are designed to punish only certain viewpoints (e.g., prohibiting only fighting words that insult on the basis of race, religion, or gender).

63
Q

lowest

OBSCENITY

A

Obscene speech is not protected. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:

  1. Appeals to the prurient interest in sex, using a community standard;
  2. Is patently offensive; AND
  3. Lacks serious literary, artistic, political, or scientific value, using a national reasonable person standard.
64
Q

lowest

COMMERCIAL SPEECH

A

Generally, commercial speech (e.g., advertising) is afforded 1st Amendment protection if it is truthful. However, commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent may be restricted as unprotected speech. Any other regulation of commercial speech will be upheld only if it:

  1. Serves a substantial government interest;
  2. Directly advances that interest; AND
  3. Is narrowly tailored to serve that interest.
65
Q

lowest

FREEDOM OF ASSOCIATION

A

Freedom of Association protects the right to form or participate in any group, gathering, club, or organization without government interference.

However, the government may infringe upon this right if they can satisfy strict scrutiny. A person may only be punished or deprived of public employment based on association if that individual:

  1. Is an active member of a subversive organization;
  2. Has knowledge of the organization’s illegal activity; AND
  3. Has a specific intent to further those illegal objectives.
66
Q

lowest

FREE EXERCISE CLAUSE

A

The Free Exercise Clause prohibits government from punishing someone on the basis of her religious beliefs or interfering with her exercise of religion.

However, the government can deny benefits or impose a restriction on someone based on her religious beliefs so long as there is a compelling interest that satisfies strict scrutiny (the Supreme Court has never found an interest so compelling that it justifies such action).

67
Q

lowest

ESTABLISHMENT CLAUSE

A

The Establishment Clause, along with the Free Exercise Clause, compels the government to pursue a course of neutrality toward religion.

Government action challenged under the Establishment Clause will be found invalid, unless the action:

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

(Studicata) (15 decks)

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