Constitutional Law Flashcards
Content-Based Speech Regulation
Presumptively unconstitutional (strict scrutiny) to place burdens on speech because of its content aside from unprotected categories: FIDO
FIDO Unprotected Speech
Fighting words; Incitement; Defamation; Obscenity
Content Neutral Speech
Subject to intermediate scrutiny.
(1) Advance important interests unrelated to suppression of speech; and
(2) Not burden substantially more speech than necessary to further interests (narrowly tailored)
Conduct Based Regulations
Conduct related to speech can be regulated by content-neutral time, place, and manner restrictions. Scrutiny depends on the forum.
Public Forums
-Public property traditionally used for speech-related activities; and
-Designated forums that were made open for such activities.
Public Forum Regulations
(1) Content neutral (viewpoint and subject matter), (2) Narrowly tailored to serve significant gov. interest, and (3) Leave open alternative channels of communication.
Limited Forum
Gov. property not linked with speech and assembly but was opened for specific speech activity.
Nonpublic Forum
Not historically linked to speech activities and not opened for such activity.
Limited and Nonpublic Regulations
(1) Viewpoint neutral; and
(2) Reasonably related to legitimate gov. purpose.
Exaction
A local government may exact promises from a developer in exchange for a construction permit.
Essential nexus: Promise related to interest.
Rough proportionality: determine if promise carried out by interest - cannot be speculative.
Privileges and Immunities
Prohibits one state from discriminating against the citizens of another state (not corporations or non-citizens). Fundamental rights or essential activities. *Look for economic discrimination.
Must show substantial reason and substantial relationship.
P&I Substantial Reason
Exists if:
1: out-of-state citizens either cause or are part of the problem that the state is attempting to solve; and
2: no less restrictive ways to solve it.
Dormant Commerce Clause
In the absence of federal regulation, states may regulate intrastate commerce under DCC. Cannot discriminate against out-of-state commerce, cannot unduly burden interstate commerce, and cannot regulate wholly out-of-state activity.
DCC Discrimination
Protects state interests at the expense of out-of-state competitors.
Regulation must (1) serve an important local interest and (2) there are no other non-discriminatory means to achieve that interest.
DCC Undue Burden
Weigh effects on interstate commerce against state interest protected and whether there are less restrictive means.
Eminent Domain
The power of the gov. to take private property for a public purpose. Takings Clause of Fifth Amendment acts as a check on this power. It provides that:
Private property may be taken for public use, with just compensation.
Can be physical or regulatory taking.
Regulatory Taking
Consider (1) economic impact of regulation on owner, (2) the extent it interferes with owner’s reasonable investment backed expectations, and (3) the character of the regulation (benefit to society, how regulation distributes benefit/burden among owners, and if it violates owner’s essential attributes of ownership).
Per se Taking
-Permanent physical occupation (does not occur where owner is require to place something on land) OR
-Permanent total loss of property’s economic value.
Procedural Due Process
(1) Important of right affected;
(2) The value of specific procedural safeguards to that interest;
(3) government’s interest in fiscal and administrative efficiency.
