Constitutional Law Flashcards
Defamatory Speech
First Amendment requires plaintiff to prove all the elements of defamation plus falsity and actual malice, if the defamatory statement is about a public official/figure.
Actual Malice means
- Knowledge it was false, or
- Reckless disregard as to its truth/falsity
(Public Officials = electeds or public importance, e.g. prosecutor, cop, principal.)
(Public figure = role of prominence in society, fame/notoriety, or thrust themselves into controversy)
Commercial Speech
Some is not protected if it is:
- False
- Misleading, or
- About illegal products/services.
Regulation of Commercial Speech
…will be upheld only if it:
- Serves a substantial government interest;
- Advances that interest; and
- Is narrowly tailored to serve that interest.
Content-Based Restriction
Strict Scrutiny
Advisory Opinions
No
Ripeness requires:
- Issue is fit for a judicial decision and
- Plaintiff would suffer substantial hardship in the absence of review
Mootness
remember it
Standing
- Injury in Fact (particularized and concrete)
- Causation
- Redressability
…no standing merely as citizens, except for tax bills and the Establishment Clause.
Standing to Assert Rights of Others
yes if,
- Difficult for 3rd Party to assert their own right, or
- Close relationship between claimant and 3rd Party
Standing of Organizations
- Injury to Members
- Members Injury is Related to the Organization’s Purpose
- Individual Member Participation in the Lawsuit is Not Required (not seeking individualized damages)
Standing to Enforce Government Statutes
Yes if they are within the “zone of interests” Congress meant to protect with that statute.
Sovereign Immunity
Can’t sue the state or the federal government
- States can sue other states
- Unless state waives
- CAN sue local governments
- U.S. can sue states
- States cannot sue U.S.
Political Question Doctrine
The court cannot decide the issue if it is a political question, which means the issue is:
- Constitutionally committed to another branch of government; or
- Inherently incapable of judicial resolution
E.g. President’s conduct of foreign policy, partisan legislative apportionment, etc.
Adequate and Independent State Grounds
No jurisdiction if there is an independent and adequate state ground for the lower state court decision. Michigan case.
Federal Police Power
None. Congress has no general police power except over federal land.
Taxing and Spending Power
Congress has it; may use for any public purpose not prohibited by the Constitution.
Spending Power Conditions
For Congress to impose conditions on the grant of money, the conditions must be:
- Clearly stated;
- Relate to the purpose of the program;
- Not be unduly coercive; and
- Do not violate the Constitution.
Commerce Power
Congress may regulate interstate commerce, including,
- Channels of Commerce, e.g. rivers/waterways/telephone lines/Internet
- Instrumentalities of Commerce, e..g planes/trains/automobiles
- Activities that Have a Substantial Effect on Interstate Commerce, e.g. FDR grain quota program.
War Powers
Congress has power to declare war, raise and support armies, and provide for and maintain a navy.
Investigatory Power
Congress has
Delegation of Legislative Power
Congress may delegate powers to administrative agencies as long as it does so with an intelligible principle behind it.
Major Question Doctrine
SCOTUS-made doctrine in which administrative agencies cannot decide “major questions” without pointing out clear congressional authorization for it.
Speech/Debate Clause
Immunity for Federal Legislators
Bicameralism and Presentment
remember
Impoundment
No power - cannot impound. Remember John Oliver clip.
Veto
Veto
Veto Override
Pocket Veto
Executive Agreements - Conflict with Other Laws
- Trumps State Law
- Subordinate to Federal Law
Executive Privilege
President has executive privilege to keep certain presidential communications secret.
Exception: In criminal proceedings, presidential communiques will be available to the prosecution where a need for such information is demonstrated.
Executive Immunity
President has absolute immunity from civil damages based on any action taken while exercising official responsibilities.
Tenth Amendment
All powers not granted to the federal government or prohibited to the states are reserved to the states or the people.
State Police Power
Tenth Amendment = States have General Police Powers
Anti-Commandeering Principle
Congress cannot commandeer the states by requiring them to enact state laws or to enforce federal laws.
Similarly, if Congress passes a tax that does not apply to private businesses but merely taxes state government entities, the Court may use 10A to prohibit that tax.
Does not apply when Congress regulates an activity in which both states and private actors engage. E.g. minimum wage laws.
Intergovernmental Immunity Doctrine
States cannot interfere with or control the operations of the federal government.
Supremacy Clause
Express Preemption: Federal law may just say outright the state cannot adopt laws on this subject matter.
Implied Preemption:
- If a state/local law prevents achievement of a federal objective, it is impliedly preempted.
- Field Preemption: A valid federal law may impliedly “occupy” the entire field, thus barring any state or local law even if that law is nonconflicting.
- But note that there is a presumption against preemption.
Interstate Compact Clause
If an agreement between states increases the states’ power at the expense of federal power, congressional approval is required.
Privileges and Immunities Clause
- Prohibits state discrimination against nonresidents. (not corporations/aliens) in commercial activities or fundamental rights.
- May be allowed if the law is necessary to achieve an important government purpose and there are no less restrictive means available.
Dormant Commerce Clause
States may not unduly burden or discriminate against interstate commerce.
If Congress has not enacted laws on the subject, state/local government can regulate aspects of interstate commerce.
Discriminatory Regulations by a State Against Other States
State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid (for example, New York cannot ban California wines or tax them at a higher rate than local wines).
Unless needed for an important state interest. E.g. State could prohibit importation of live bait fish because parasites could harm their own fish population.
Nondiscriminatory State Commerce Law
If a nondiscriminatory state law burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available.
Example: An Iowa statute banning trucks over 60 feet was held to be invalid because the state showed no significant evidence of increased safety and the burden on commerce was substantial.
State as Market Participant
A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses (for example, when hiring labor, buying or selling products, or giving subsidies).
Process for Interstate Commerce and State Questions
Federal Law Questions.
- Does the question refer to any federal legislation that might supersede the state regulation or preempt the field?
- …or that might authorize state regulation otherwise impermissible?
State Law Questions.
- If neither, does the state regulation discriminate against interstate or out-of-state commerce? If yes, invalid unless:
- Furthers an important, noneconomic state interest and there are no reasonable alternatives; or
- State is a market participant - Does it place an undue burden on the free flow of interstate commerce? If yes, invalid if the burden on commerce outweighs the state interest.
Nondiscriminatory Tax
Valid if:
- Substantial Nexus between the taxing state and the activity (business availing itself of the state.)
- Fairly Apportioned according to a rational formula.
- Fair Relationship to the services/benefits provided by the state.
“Doing Business” Taxes
Generally permitted. Must:
- Have a substantial nexus to the taxing state;
- Be fairly apportioned;
- Not discriminate against interstate commerce; and
- Fairly relate to services provided by the state.
Full Faith and Credit Clause
State court judgments must be recognized in other states.
This rule applies only if the judgment was on the merits and was final.
Exclusive Public Functions
Activities that are so traditionally the exclusive prerogative of the state are state action no matter who performs them.
So a company that runs a “company town” still can’t prohibit minorities from using the town park.
Intermediate Scrutiny
Substantially related to an important government purpose
Rational Basis
Rationally related to a legitimate government purpose.
Easy to meet unless arbitrary or irrational.
Strict Scrutiny
Upheld only if it is the least restrictive means to achieve a compelling government purpose.
Process Requires
- Notice
- Opportunity to be Heard
- Type/extent of hearing determined by a balancing of:
- Importance of interest to the individual and value of procedural safeguards to that interest against the government interest in efficiency. - Neutral decisionmaker
Fundamental Rights include:
- All First Amendment rights
- Right to interstate travel
- Privacy
- Voting
Restrictions on Right to Vote
- Reasonable time periods for residency are valid, e.g. 30 days
- ID
One Person One Vote
- State/Local Elections. Populations of voting districts must be substantially equal. 10% is a presumptively valid variance.
- Congressional Districts: Exact mathematical equality. 0.7% variance invalid.
Gerrymandering
Political Gerrymandering = Nonjusticiable
Racial Gerrymandering = up in the air kind of
Second Amendment
Must be consistent with the country’s historical tradition of firearm regulation
Right to Refuse Medical Treatment
…exists
Equal Protection
Suspect Classification → Strict Scrutiny (least restrictive means of achieving compelling govt purpose)
Three Types of Potential EPC Violation
- Discriminatory on Face → Invalid
- Discriminatory Application → probably not invalid now; think Yick Wo
- Disparate Impact → not invalid now
Affirmative Action
Only to remedy discrimination in that specific area/town or whatever.
Not past societal discrimination, and not for diversity.
Eminent Domain
- Only for public use
- Must pay just compensation
Taking v. Regulation
Taking:
- Confiscation of a person’s property
- Permanent or regular physical occupation of a person’s property by the government
- Sometimes temporary occupations, dependent on degree of invasion, duration, govt intention, foreseeability of the result, and more.
Regulation: If govt regulation denied landowner of all economically viable use of the land, that can be a taking.
- If it decreased economic value, maybe a taking, based on:
1. Govt interests;
2. Diminution in value to the owner;
3. Whether the regulation substantially interferes with the distinct, investment-backed expectations of the owner.
Public Use in a Taking
Broadly construed. Rationally related to a legitimate public purpose, e.g. health/welfare/safety, you’re good.
Just Compensation
Fair market value at the time of the taking
Contract Clause
Limits state and local govts.’ ability to enact laws that retroactively impair contract rights.
Does not impede the federal government.
Private Contracts
Intermediate Scrutiny
Legislation that substantially impairs an existing private contract is invalid unless the legislation:
1. Serves an important and legitimate public interest, and
2. Is a reasonable and narrowly tailored means of promoting that interest
Public Contracts
Heightened Scrutiny
Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the legislation will likely receive heightened scrutiny, especially if the legislation reduces the contractual burdens on the state.
Ex Post Facto Laws
May not pass a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner to punish a person for past activity
Bill of Attainder
Cannot target a person
Speech includes…
Words, symbols, and expressive conduct.
Expressive Conduct is:
- Inherently expressive; or
- Intended to convey a message and
- Reasonably likely to be perceived as conveying a message
Unprotected Speech
- Incitement
- Fighting Words
- True Threats
- Obscenity
- Defamatory Speech
Incitement
Speech is incitement if it is:
- Intended to produce imminent lawless action and
- Likely to produce such action.
Fighting Words
Personally abusive words that are likely to incite immediate physical retaliation in an average person.
True Threats
Words that are intended to convey to someone a serious threat of bodily harm.
Speaker must have a subjective understanding of the threatening nature. A mental state of recklessness is sufficient.
Obscenity
Speech is obscene if it describes or depicts sexual conduct specified by statute that:
- Appeals to the prurient interest, using a contemporary community standard;
- Is patently offensive under contemporary community standards; and
- Lacks serious value, using a national, reasonable person standard.
Defamatory Speech
If about a public official/figure or involves a matter of public concern, plaintiff has to prove all the elements of defamation plus:
- Falsity
- A degree of fault, usually actual malice.
-
Actual Malice means
- Knowledge it was false; or
- Reckless disregard as to its truth or falsity
Speech Restrictions on Government Property
Depend on whether the property is a:
- Public Forum
- Designated Public Forum
- Limited Public Forum
- Nonpublic ForumT
Traditional Public Forum
Public property historically open to speech-related activities.
Streets, sidewalks, public parks.
Designated Public Forums
Public property not historically open to speech-related activities, but which the government has thrown open for such activities.
Town hall open for use by civi group.
Content-Based Speech Regulation must be:
- Narrowly tailored to
- Serve an important government interest, and
- Leave open alternative channels of communication.
Need not be the least restrictive means.
Limited Public Forum
Government forums not historically open for speech/assembly, but opened for specific speech activity.
School gym open for a debate on a particular community issue; public university funding student publications.
Nonpublic Forums
Government property not historically open for speech/assembly and not held open for specific speech activities.
Military bases or government workplaces.
Regulation Level for Limited Public Forums and Nonpublic Forums
Govt. can regulate speech in this forum to reserve the forum for its intended use.
Regulation must be:
1. Viewpoint neutral; and
2. Reasonably related to a legitimate government purpose.
Regulation of Speech in a Traditional or Designated Public Forum
Content Based → Strict Scrutiny
Content Neutral → Intermediate Scrutiny
Speech Restrictions in Public Schools
School activities are not public forums
Personal Student Speech on Campus
A student’s personal speech on campus cannot be censored absent evidence of substantial disruption.
Personal Student Speech Off Campus
School is limited to preventing cheating, bullying, threats, and other speech where pedagogical or safety concerns predominate.
School Speech
Restrictions on speech related to the school teaching must be reasonably related to a legitimate pedagogical concern.
Public Employee Speech
Unprotected if at work and relating to official duties, even if r.e. public concern.
Protected if a matter of public concern but not made pursuant to official duties, subject to a balancing test (govt interest in efficiency of workplace v. speech’s value).
Void for Vagueness
Violates DPC
Safeguards for Prior Restraint Regulations
To be valid, a system for prior restraint must:
- Be narrowly drawn, reasonable, and definite;
- The injunction must be promptly sought; and
- There must be prompt and final judicial determination of the validity of the restraint.
Content-Based Restrictions on Freedom of the Press
Strict Scrutiny
Compelled Speech
you know
Government Funding of Speech is upheld if it is:
Rationally related to a legitimate state interest
First Amendment and Election Law
- Limits on Contribution → Intermediate Scrutiny
- Limits on Expenditures → No Limits
Free Exercise
Strict Scrutiny
A Law is Discriminatory Against Religion if it is:
Either →
- Not neutral on its face; or
- Facially neutral but not generally applicable (by design targets religion generally or a religion in particular)
Neutral Laws of General Applicability
Not challengeable under the Free Exercise Clause. Unless it was specifically designed to interfere with religion.
Laws with System for Exemptions Not Generally Applicable
A law that gives government officials discretion to grant exemptions from the law is not generally applicable.
Thus, if someone seeks an exception from such a law on religious grounds and the government refuses to grant the exception, that person can challenge the denial on Free Exercise Clause grounds. Strict scrutiny would apply.
Religious Exemptions Required?
No.
The Free Exercise Clause does not require religious exemptions from generally applicable regulations that happen to burden religious conduct.
Exceptions:
- Ministers can “discriminate” in hiring
- State can’t refuse unemployment benefits to people who quit jobs for religious reasons.
- Right of Amish not to educate children
Neutrality Principle
Govt neutral with respect to religion
Establishment Clause - History and Tradition
The Court has often stated that the Establishment Clause must be
interpreted by reference to historical practices and understandings.
