Constitutional Law

Question 1

The First Amendment generally prohibits the government from restricting the content of speech unless . . .

Answer 1

The First Amendment generally prohibits the government from restricting the content of speech unless the government can prove the restriction is necessary to achieve a compelling government interest.

Question 2

Certain categories of speech are not protected by the First Amendment, including _____, or speech that incites imminent lawless action; and “____ ____.”

Answer 2

Certain categories of speech are not protected by the First Amendment, including incitement, or speech that incites imminent lawless action; and “fighting words.”

Question 3

A regulation of speech will not be upheld if it is ______—i.e., prohibits substantially more speech than is necessary. A regulation punishing a substantial amount of protected speech judged in relation to its legitimate sweep is _____ ____ and cannot be enforced against ____.

What is the exception to this rule?

Answer 3

A regulation of speech will not be upheld if it is overbroad—i.e., prohibits substantially more speech than is necessary. A regulation punishing a substantial amount of protected speech judged in relation to its legitimate sweep is facially invalid and cannot be enforced against anyone

There is an exception to the above rule if a court has limited construction of the restriction so as to remove the threat to constitutionally protected speech.

Question 4

May a state regulate advocacy of lawless action in the abstract?

Answer 4

No. The Supreme Court has held that a statute may not constitutionally regulate mere advocacy of lawless action in the abstract; only speech that incites imminent lawless action can be regulated

Question 5

Fighting words

Answer 5

The term “fighting words” has been defined as personally abusive communications that, when addressed to an ordinary person, are likely to incite immediate physical retaliation.

Question 6

“Abusive words” statutes

Answer 6

are overbroad

Question 7

Defamation of public figures

Answer 7

At common law, a plaintiff may bring a defamation action against a defendant who makes a false statement about the plaintiff. Under the First Amendment, public figures cannot recover for defamation unless they can show that the defaming statement was made with actual malice.

Question 8

Actual malice

Answer 8

Actual malice will be found where the statement is made with knowledge that it is false or with reckless disregard of its truth or falsity.

Applies to public figures and on matters of public concern.

Question 9

When is invasion of privacy a tort?

Answer 9

It is a tort to publish private information about a person if a reasonable person would object to having the information made public. Truth is not a defense to this tort.

If the matter is one of legitimate public interest, its publication is privileged if it is made without actual malice, especially if the information was obtained legitimately, such as a picture taken in public.

Question 10

Equal Protection Clause

Answer 10

The Fourteenth Amendment Equal Protection Clause prohibits states and subsidiary state governments and entities from treating similarly situated people in a dissimilar manner without adequate justification. Generally, it does not apply to private action.

Question 11

When does private action constitute state action? What are some examples?

Answer 11

Private action will constitute state action when: (i) the private actor is performing a traditional and exclusive state function, or (ii) the state is significantly involved in the private action.

The Supreme Court has found significant state involvement where private entities are entwined with government entities. State regulation of an industry does not make the industry’s action state action.

Question 12

When a law intentionally discriminates on the basis of sex/gender, the Court applies _____ _____.

Answer 12

intermediate scrutiny.

Question 13

To uphold intentional discrimination on the basis of sex/gender, what must the government show?

Answer 13

To uphold intentional discrimination on the basis of sex/gender, the government must show an exceedingly persuasive justification. The interest needed to support intentional sex/gender discrimination must be genuine and not hypothesized for litigation. The government may not rely on overbroad generalizations about the different genders.

Question 14

Under ____ _____, discrimination will be upheld only if (i) the _____ can prove that (ii) the discrimination is ______ related to a/n ______ government interest

Answer 14

Under intermediate scrutiny, discrimination will be upheld only if (i) the government can prove that (ii) the discrimination is substantially related to an important government interest.

Question 15

State _____ or providing ______ _____, such as police or fire protection, does not make private action state action. Regulation of a/n _______ school does not make the school’s action the state’s. Nor does regulation of a/n ______.

Answer 15

State licensing or providing essential services, such as police or fire protection, does not make private action state action. Regulation of a private school does not make the school’s action the state’s. Nor does regulation of an industry.

Question 16

Bonuses: Only running a ____ or an ______ are traditional and exclusive public functions. The Supreme Court has found significant state involvement when enforcement of private action involves use of the ______.

Answer 16

Bonuses: Only running a town or an election are traditional and exclusive public functions. The Supreme Court has found significant state involvement when enforcement of private action involves use of the courts.

Question 17

May a private company sue a state in federal court for damages?

Answer 17

Rarely. The 11th Amendment prohibits federal courts from hearing most private actions against state governments. The prohibition includes actions in which the state is named as a party or in which the state will have to pay retroactive damages.

Congress can remove 11A immunity for 14A claims.

Question 18

_________ can remove 11th Amendment immunity as to actions created under the _______ Amendment

Answer 18

Congress can remove Eleventh Amendment immunity as to actions created under the Fourteenth Amendment.

Question 19

May a private company sue a state official to enjoin enforcement of an unconstitutional state law?

Answer 19

Yes. The Eleventh Amendment prohibits most actions against state governments. Private parties may bring actions to enjoin an officer from future conduct that violates the Constitution or federal law. This exception includes enjoining an appropriate state official from enforcing an unconstitutional state law

Question 20

Does a statute discriminate against interstate commerce?

Answer 20

State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid as violations of the Dormant Commerce Clause. For a regulation to discriminate against interstate commerce, it must treat economic interests from within the state differently from economic interests from outside of the state.

If a state law that treats local and out-of-state interests alike nonetheless burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest

Question 21

State or local regulations that discriminate against __________ commerce to ______ ______ ______ interests are almost always invalid as violations of the Dormant Commerce Clause.

Answer 21

State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid as violations of the Dormant Commerce Clause.

Question 22

When will a state law that treats local and OOS interests the same–but still burdens commerce–be invalid?

Answer 22

When the burden outweighs the promotion of a legitimate local interest.

Question 23

If you get a 1A Question–what do you start with?

Answer 23

The First Amendment to the United States Constitution guarantees the freedom of speech. The First Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment

Question 24

Under the First Amendment, regulations on the __________ of speech are subject to strict scrutiny and, therefore, are generally invalid.

Answer 24

Under the First Amendment, regulations on the content of speech are subject to strict scrutiny and, therefore, are generally invalid.

Question 25

Government may regulate the conduct of speech with ____, _____, and _____ regulations

Answer 25

Government may regulate the conduct of speech with time, place, and manner regulations.

Question 26

What are the three requirements of a time, place, and manner regulation of speech in a traditional or designated public forum?

Answer 26

A time, place, and manner regulation of speech in a traditional or designated public forum must (i) be content neutral; (ii) be narrowly tailored to serve a significant government interest [SS]; and (iii) leave open alternative avenues of communication.

Question 27

May a school prohibit religious clubs from using public property open for public use?

Answer 27

School classrooms are not traditional public forums and generally are not available for the exercise of First Amendment speech or assembly rights. If a school chooses to throw open its facilities for public use when the rooms are not being used for school purposes, the facilities become designated public forums.

At the times designated public forums are open for speech or assembly activities, their use may be limited only by regulations that would be allowed in public forums.

Question 28

What are the requirements for restrictions on a limited public forum?

Answer 28

Restrictions must be (i) viewpoint neutral ad (ii) reasonably related to a legitimate government purpose.

Question 29

Regulations that discriminate under the Dormant Commerce Clause are valid if they are ________ to achieve a/n ______ ______ ___ interest and there are ____ _____ _____ . Regulations are discriminatory if they distinguish between in-state and out-of-state businesses or consumers.

Answer 29

Regulations that discriminate under the Dormant Commerce Clause are valid if they are necessary to achieve an important noneconomic state interest and there are no reasonable alternatives. Regulations are discriminatory if they distinguish between in-state and out-of-state businesses or consumers.

Question 30

Establishment Clause

Answer 30

A state act does not violate the Establishment Clause if it passes the Lemon test. The Lemon test dictates that actions which have a secular purpose, primary effect is not to advance nor inhibit religion, and will not cause excessive entanglement are satisfactory under the Establishment Clause.

Question 31

Free Exercise Clause

Answer 31

An state action survives the Free Exercise Clause if the action is based on generally applicable criteria.

Question 32

Nonpublic forum

Answer 32

Government property not traditionally open for speech activities.

Question 33

A person does not have any right to access nonpublic forums for speech activities. Speech may be regulated in such forums by ________ neutral laws _______ related to a ______ government purpose.

Answer 33

A person does not have any right to access nonpublic forums for speech activities. Speech may be regulated in such forums by viewpoint neutral laws reasonably related to a legitimate government purpose.

[Alt: reasonable laws not aimed at suppression of speech.]

Question 34

May a state may enact a law that is neutral on its face, but effectively favors an in-state industry over an out-of-state industry?

Answer 34

Under the Dormant Commerce Clause, if Congress has not enacted laws regarding a subject, a state or local government may regulate local aspects of interstate commerce if the regulation: (i) does not discriminate against out-of-state competition to benefit local economic interests, and (ii) is not unduly burdensome.

A regulation is not unduly burdensome if the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced.

Question 35

May a state discriminate against out of state vendors when purchasing goods and services?

Answer 35

Although discriminatory regulations are almost always invalid under the Dormant Commerce Clause, an exception exists for when states act as market participants.

The Commerce Clause does not prevent a state from preferring its own citizens when the state is buying or selling goods or services.

Question 36

Does a state law that discriminates based on age violate the Equal Protection Clause when the state can show rational reasons for passing the law?

Answer 36

The Equal Protection Clause of the Fourteenth Amendment prevents states from unfairly treating similarly situated persons differently.

To determine whether a law violates the Equal Protection Clause, a court first considers whether a discriminatory classification exists. If so, the court determines what standard of review to use by considering whether a suspect classification is involved. When no suspect or quasi-suspect classification is involved, a court will review the law under the rational basis test. The court will uphold the law unless the challenger can show that the law bears no rational relationship to any legitimate government interest.

Question 37

To determine whether a law violates the Equal Protection Clause, a court first considers __________(1)___________. If so, the court determines what standard of review to use by considering whether a/n ____(2)__________ is involved.

Answer 37

To determine whether a law violates the Equal Protection Clause, a court first considers whether a discriminatory classification exists. If so, the court determines what standard of review to use by considering whether a suspect classification is involved.

Question 38

What test is used when no suspect or quasi suspect classification is involved?

Answer 38

Rational basis. When no suspect or quasi-suspect classification is involved, a court will review the law under the rational basis test. The court will uphold the law unless the challenger can show that the law bears no rational relationship to any legitimate government interest.

Question 39

Is Congress’ law okay?

Answer 39

The federal government is a government of limited powers. To pass a law, Congress must act pursuant to a power given to it by the Constitution. Congress has no general police power or power to legislate for the general welfare.

Question 40

What can Congress do under Sec. 5 of 14A?

Answer 40

Section Five of the Fourteenth Amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment. Under Section Five, Congress may not expand existing constitutional rights or create new ones.

Congress may only enact laws to prevent or remedy violations of rights already recognized by the courts. To be valid, laws must be congruent and proportional to solving a history or pattern of violations of such a right.

Question 41

What does congruent mean? Proportional?

Answer 41

A law is congruent if it matches the problem/right it is seeking to remedy. A law is proportional if it is tailored to enforce the right.

Question 42

The ______ Amendment prohibits governmental taking of private property for public use without just compensation

Answer 42

The Fifth Amendment prohibits governmental taking of private property for public use without just compensation.

Question 43

When is a taking almost always found?

Answer 43

A taking will almost always be found if there is an actual physical appropriation or destruction of a person’s property.

Question 44

Does an ordinance constitute a taking?

Answer 44

A restriction on how real property is used may constitute a taking. Cities may generally regulate the use of real property. A regulation will constitute a taking if it (i) amounts to a physical appropriation, (ii) denies an owner of all economic use, or (iii) unreasonably interferes with distinct investment-backed expectations of the owner

Question 45

Taking analysis starting blocks

Answer 45

The Fifth Amendment prohibits governmental taking of private property for public use without just compensation. While the government must fairly compensate an owner when her property is taken for public use, it need not pay compensation for mere regulation of property. A taking will almost always be found if there is an actual physical appropriation or destruction of a person’s property.

Question 46

Can a restriction on use of property constitute a taking?

Answer 46

Yes. A restriction on how real property is used may constitute a taking.

Question 47

When may a city force landowners to convey interests in their land in exchange for permission to build?

Answer 47

A city may not force landowners to convey interests in their land to the city in exchange for permission to build improvements on the property. These forced conveyances usually violate the Takings Clause of the Fifth Amendment.

A city can impose such a requirement if (i) a close nexus exists (the government can show that the condition relates to a legitimate government interest), and (ii) proportionality exists (the adverse impact of the proposed building/development on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupation rights)

Question 48

10th Amendment

Answer 48

The federal goverment is a government of limited powers–it has only those powers granted by the Constitution. Under the 10th Amendment, those powers not granted to the federal government are reserved to the states. This provision has often been cited as reserving some powers to the states. The Supreme Corut has held that Congress lacks the power to require state officials regulate their own citizens, or requiring/commandeering officials to act under federal law.

The Constitution grants Congress the power to spend for the general welfare. This may be for any public purpose and is not limited to the grant of another enumerated power. Congress may put conditions on the grant of money so long as the conditions: (1) are clearly stated, (2) relate to the purpose of the program, and (3) are not unduly coercive. There is no brightline test for what constitutes undue coercion.

Question 49

Commerce Clause

Answer 49

The Constitution gives Congress broad power to regulate interstate commerce. The term “commerce,” includes all activities involving or affecting two or more states. Specifically, the Supreme Court has held that the Commerce Clause grants Congress power to regulate (1) channels of interstate commerce, (2) instrumentalities of commerce, and (3) activities with a substantial effect on interstate commerce.

Question 50

Regulation of intrastate commerce

Answer 50

If intrastate activity regulated is economic, the regulation will be upheld if Congress could rationally conclude the activity in aggregate substantially affects interstate commerce.

If intrastate activity is non-economic, the regulation will be upheld only if (1) Congress made a factual showing that the activity has a substantial effect on interstate commerce, (2) there is a jurisdictional element of the statute requiring a connection to commerce, and (3) the link between the activity and commerce is not too attenuated.

If the regulated activity involves the production of a good for sale or the sale of a good or service, it will easily be classified as commercial activity. If it does not involve a commercial transaction, the Court may be inclined to characterize it as non-economic.