Constitutional Law Flashcards
SPEECH
Expressive conduct: (1) intended to convey message and (2) reasonably likely to be perceived as conveying such message.
SPEECH WITHOUT 1A PROTECTION
INCITEMENT
FIGHTING WORDS
TRUE THREATS
OBSCENITY
DEFAMATORY SPEECH
SOME COMMERCIAL SPEECH
INCITEMENT
Imminent lawless action – (1) intended to produce and (2) likely to produce.
FIGHTING WORDS
- Likely to incite immediate physical retaliation in average person
- (more than just annoying)
TRUE THREATS
Intend to convey serious threat of physical harm.
OBSCENITY
Sexual conduct that:
(1) appeals to prurient interest - CONTEMP. COMM. ST.
(2) is patently offensive - CONTEMP. COMM. ST
(3) lacks serious value - NATIONAL STANDARD
Private possession of obscene material is OK.
DEFAMATORY SPEECH
Public figure/official:
(1) prominent role in society;
(2) achieved fame/notoriety; or
(3) thrust themselves into public controversy
Matter of importance to society
DEFAMATION if:
(1) false
(2) actual malice (knowledge of falsity + reckless disregard)
COMMERCIAL SPEECH NOT SUBJECT TO 1A PROTECTION
If:
(1) illegal product
(2) misleading
(3) false
TAKING CLAUSE
Government can only take property with:
(1) Good cause and
(2) Just compensation
IS THERE A TAKING?
(1) Confiscation
(2) Occupation
Temporary occupation might be a taking unless (1) emergency or (2) development (look for nexus).
Denial of economic value: does not qualify if temporary.
Diminished of value might be a taking. Balance:
(1) Diminished value
(2) Distinct, investment-based expectations of aggrieved party
(3) Government interest
EQUAL PROTECTION
Equal protection = treating a group different from others.
Substantive due process = taking rights from everyone.
STRICT/INTERMEDIATE SCRUTINY if government intends to discriminate.
(1) Discriminates on its face
(2) Discriminatory application of facially neutral law
(3) Discriminatory effect
Remedying discrimination (e.g. busing) OK.
Promoting diversity: not OK.
PROCEDURAL DUE PROCESS
Right to fair process when government deprives of life, liberty, or property (includes benefit/entitlement: reasonable expectation of continued receipt).
Requirements:
(1) NOTICE reasonably calculated to inform
(2) OPPORTUNITY TO BE HEARD balance govt interest against individual interest plus value of procedural safeguard
(3) IMPARTIAL ADJUDICATION no actual or apparent bias
JUDICIAL POWER
Need:
- Causation
- Redressability
+ 11th Amendment (sovereign immunity - no action against state government, unless Congress removes protection)
+ Original jurisdiction of Supreme Court (admiralty, ambassadors)
+ State Supreme Court has final say on state law - Standing: CONCRETE AND PARTICULARIZED INJURY
+ No federal taxpayer standing (except to challenge congressional spending)
+ Asserting the rights of others: standing + close relationship + can’t assert on his own
+ Organizational standing: members injured + action related to organization’s purpose + members don’t need to participate
TIMING: FIT FOR JUDICIAL REVIEW + SUBSTANTIAL INJURY
+ Live controversy must exist at all stages of judicial review
- Ripeness
- Not moot (unless repeating)
INDIVIDUAL LIBERTIES
Bill of Rights: limits state power (14th Am incorporates against states)
STATE ACTION REQUIRED:
+ Actual state action
+ Action traditionally the domain of the state
+ Affirmative facilitation by state
STRICT SCRUTINY
Must show law is necessary to achieve compelling government purpose
State bears burden of proof
For fundamental rights (voting, interstate travel, 1A, privacy (unenumerated)) and suspect classifications (race, religion, national origin, alienage (except federal govt))
INTERMEDIATE SCRUTINY
Must show law is substantially related to important government purpose
Gender, status of child
Burden is unclear but usually state bears it
