Constitutional Law Flashcards
What is Congress’s power over interstate commerce?
Congress can regulate the channels and instrumentalities of interstate commerce, persons and things in interstate commerce, or anything that has a “substantial effect” on interstate commerce—meaning, it can regulate anything economic or anything non economic that substantially affects interstate commerce, even if it is purely intrastate.
What is the dormant/negative Commerce Clause?
States lack the power to discriminate against interstate commerce or unreasonably burden it.
If a state law discriminates against interstate commerce, the state law is valid if what?
To be valid, the law must be:
1. Necessary to serve a compelling state interest and
2. There is no reasonable non discriminatory alternative
Usually unconstitutional.
If a state law is NON-DISCRIMINATORY on its face but it still burdens interstate commerce, it’s valid if?
It is valid only if it serves an important state interest and does not impose an unreasonable burden on interstate commerce.
More likely to be constitutional.
Exception to the Dormant Commerce Clause:
Market participant doctrine—the state is acting as a market participant or business rather than a regulator, and is as such allowed to favor its own residents.
Congress has the power to enforce constitutional rights under its enforcement power found in the ___.
Thirteenth, Fourteenth, and Fifteenth Amendments.
Note: Congress does not have the power to expand rights.
___ is required in order to sue under the First, Fourteenth, or Fifteenth Amendments.
State action.
Plaintiff needs to show a government actor or action “fairly attributable to the government.”
State action is present when:
A state passes a law or permits its officials to take action, or when a private actor is performing a traditional and exclusive government function (conducting elections/running a company town) or when private action is closely controlled by the state.
Three standards under the Equal Protection Clause
Strict scrutiny; intermediate scrutiny; rational basis.
Strict scrutiny
The government must prove that the law is narrowly tailored to achieve a compelling interest.
Applies to fundamental rights, racial or ethnic discrimination, and alienage when the classification is made by the state (unless public-function doctrine applies).
Intermediate scrutiny
Government must prove the classification is substantially related to an important government interest.
Applies to classifications regarding gender and illegitimacy.
Rational basis
Plaintiff must prove that the law is not rationally related to a legitimate government interest.
Applies to every other classification—poverty, wealth, age, education, etc.
If MEE is testing freedom of speech for a STATE action, start your essay with:
The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.
Remember, there must be government regulation of private speech.
Government engaging in content-based discrimination or viewpoint-based discrimination requires what kind of scrutiny?
Strict scrutiny.
A law which regulates CONDUCT and places an INCIDENTAL burden on speech is constitutional if the regulation is? (2 requirements)
- If it furthers a substantial governmental interest that is unrelated to the suppression of free expression, and
- No greater than necessary to the furtherance of that interest
A law regulating unprotected speech needs to pass:
Rational basis scrutiny
Categories of unprotected speech:
- speech inciting immediate lawless or violent behavior (“clear and present danger”): directed at inciting and likely to incite imminent lawlessness
- fighting words: words likely to incite an immediate violent reaction
- true threats or words as conduct: defamation, harassment, etc.
- obscene speech: appeals to a prurient interest in sex, depicts/describes sex in a patently offensive way, and lacks serious literary/artistic/political/scientific value.
Commercial speech
What are the 4 requirements for commercial speech to be constitutional?
(1) the speech must be lawful and not misleading
(2) the statute must serve a substantial governmental interest
(3) the statute must directly advance that interest and
(4) the statute must be no more than necessary to serve that interest.
Sexual or indecent speech
What are the 2 requirements for it to be constitutional?
The law must serve:
1. a substantial governmental interest and
2. leave open reasonable alternative channels of communication.
For time-place-or-manner restrictions
What are the 3 requirements for a PUBLIC FORUM AND DESIGNATED PUBLIC FORUM restrictions to be constitutional?
Restriction in a public forum (one historically associated with free speech) or a designated public forum (school that opens its doors to such activities) must be:
1. content neutral
2. narrowly tailored to serve an important governmental interest, and
3. leave open alternative channels of communication.
Speech in public schools
Students have free speech rights, however, speech in schools may be regulated so long as the regulations are reasonably related to legitimate educational concerns.
What are prior restraints?
A prior restraint is government action that prohibits speech or other expression before the speech happens.
Prior restraint typically happens in a few ways. It may be a statute or regulation that requires a speaker to acquire a permit or license before speaking. Prior restraint can also be a judicial injunction that prohibits certain speech.
What are overboard or vague laws? (Which are both unconstitutional)
Presumed unconstitutional:
Overbroad means if they prohibit substantially more expression than is necessary.
Vague means if a reasonable person cannot tell what is prohibited by the law.
Rights of the press—free speech
What kind of speech rights does the press have?
What are the 2 requirements for the press to publish something?
The press has no greater free speech rights than anyone else.
The press may publish information that is lawfully obtained and that is a matter of public concern.
