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Constitutional Law Flashcards

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1
Q

What article of the Constitution covers the federal judicial power?

A

Article III

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2
Q

Federal judicial power extends to cases involving:

A

(1) Interpretation of the Constitution, federal law, treaties, and admiralty and maritime laws; and
(2) Disputes between states, states and foreign citizens, and citizens of diverse citizenship

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3
Q

What part of the Constitution allows the SCOTUS to review state acts?

A

Supremacy Clause

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4
Q

Under Article III, federal courts have power over ______ and _______

A

Cases, Controversy

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5
Q

True or False, federal judges have lifetime tenure?

A

True

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6
Q

What is the only type of case in which the SCOTUS has exclusive original jurisdiction?

A

controversies between states

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7
Q

What two ways can cases come to the SCOTUS?

A

(1) writ of certiorari; and

(2) appeals from three-judge panels of the federal district court

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8
Q

SCOTUS has ________ discretion to hear cases that come to it by certiorari.

A

complete

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9
Q

When is it appropriate for the SCOTUS to grant cert on a case coming from state courts?

A

(1) the constitutionality of a federal statute, treaty, or state statute is at issue;
(2) a state statute allegedly violates a federal law

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10
Q

True or false: the constitution bars the federal courts from issuing advisory opinions?

A

True, there must be specific present harm or threat of specific future harm.

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11
Q

What must a plaintiff show to satisfy a court that it would not be issuing an advisory opinion in a certain case?

A

That they have engaged in (or wish to engage in) specific conduct and that the challenged action poses a real and immediate danger to their interests.

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12
Q

What factors will courts consider to determine whether a case is ripe for review?

A

(1) fitness of the issues for judicial decision;

(2) the hardship to the parties of withholding court consideration

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13
Q

When will an issue not be fit for judicial decision under the ripeness doctrine?

A

When it relies on uncertain or contingent future events that may not occur as anticipated.

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14
Q

What is the consequence if an issue has already been resolved before a judicial determination can be made on a matter?

A

The case will be dismissed as moot.

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15
Q

What are the exceptions to the mootness doctrine?

A

(1) when the controversy is capable of repetition, but evading review; OR
(2) when a defendant who contrarily stops the offending practice but is free to resume
(3) a class representative may continue to pursue a class action after the representative’s controversy has become moot if claims of other class members are still viable

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16
Q

What are the requirements a plaintiff must show to establish standing?

A

(1) injury in fact
(2) causation
(3) redressability

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17
Q

What is required to have injury in fact?

A

(1) a particularized injury (one that affects the plaintiff in a personal way)
(2) a concrete injury

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18
Q

Must a plaintiff have an economic injury in order to have standing?

A

No.

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19
Q

Define redressability.

A

Exists when a decision in the litigant’s favor must be capable of eliminating her grievance

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20
Q

May congress expressly grant standing to someone not having an “injury in fact”?

A

No, but congress can create new interests, injury to which may confer standing

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21
Q

When does a plaintiff have standing to enforce a federal statute?

A

if she is within the “zone of interests” Congress meant to protect.

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22
Q

True or false: generally, a plaintiff has standing to assert the claims of others to obtain standing

A

False

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23
Q

When does a plaintiff have standing to assert the rights of others?

A

(1) if it is difficult for the third party to assert her own rights; OR
(2) a special relationship exists between the claimant and the third party (doctor/patient)

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24
Q

When may an organization sue on behalf of its members?

A

(1) there is an injury in fact to members
(2) the injury is related to the organizations purpose; AND
(3) individual member participation in the lawsuit is not required

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25
Q

May a person claim standing because there are a citizen claiming that the government action violates federal law or constitution?

A

No, but a person may have standing to allege that federal action violates the tenth amendment, as long as the person has a redressable injury in fact.

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26
Q

True or false: a taxpayer has standing to litigate her own tax bill?

A

True

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27
Q

Does a tax payer have standing to challenge government expenditures? What are the exceptions to this rule?

A

No. A tax payer has standing to challenge congressional spending measures on First Amendment Establishment Clause grounds

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28
Q

What is the doctrine of independent and adequate State Grounds?

A

It states that the SCOTUS will not exercise jurisdiction if the state court judgment is based upon independent and adequate state law grounds, even if federal issues are involved.

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29
Q

True or false: the SCOTUS will temporarily abstain from resolving constitutional claim when the disposition rests on an unsettled question of state law.

A

True

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30
Q

Will a federal court enjoin pending state criminal proceedings?

A

No, except in cases of proved harassment or prosecution taken in bad faith

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31
Q

What types of claims are barred by the political question doctrine?

A

issues that are:

(1) constitutionally committed to another branch of government;
(2) inherently incapable of judicial resolution

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32
Q

What are common types of questions that federal courts will decline to hear under the political question doctrine?

A

(1) republican for of government” clause of Article IV
(2) challenges to congressional procedures for ratifying constitutional amendments;
(3) presidents conduct of foreign policy;
(4) partisan legislative apportionment (gerrymandering)

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33
Q

What does the Eleventh Amendment do?

A

prohibits federal courts from hearing a private party’s or foreign governments claims against a state government.

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34
Q

What types of cases does the Eleventh Amendment apply to?

A

Cases in which state is named as a party or in which the state will pay retroactive damages (regardless of how the damages are categorized)

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35
Q

The Supreme Court has held that the doctrine of _______ ________ bars suits against a state government in state court, even on federal claims, unless the defendant state consents.

A

Sovereign Immunity

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36
Q

Are actions against local governments barred by the Eleventh Amendment?

A

No

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37
Q

Are actions against a state by the US or other states barred by the Eleventh Amendment?

A

No.

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38
Q

Are bankruptcy proceedings against a state barred by the Eleventh Amendment?

A

No.

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39
Q

When are actions against state officials allowed under the Eleventh Amendment?

A

(1) actions to enjoin an officer from future conduct that violates the Constitution or federal law;
(2) actions for damages against an officer personally

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40
Q

For what actions may Congress remove 11th Amendment immunity for the states?

A

actions created under the Fourteenth Amendment, where it is unmistakably clear that Congress intended to remove the immunity

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41
Q

What powers can Congress validly exercise under the Constitution?

A

those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government

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42
Q

Can the necessary and proper Clause, standing alone, support a federal law?

A

No.

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43
Q

What test will be used to judge the constitutionality of a tax?

A

(1) the tax must bear some reasonable relationship to revenue production, or
(2) have the power to regulate the activity taxed.

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44
Q

For what purpose may Congress use its spending power?

A

To provide for the common defense and general welfare. Congress may spend for any public purpose

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45
Q

What can Congress regulate under the Commerce Clause?

A

(1) channels of interstate commerce
(2) the instrumentalities of interstate commerce and person and things moving in interstate commerce
(3) activities that have a substantial effect on interstate commerce

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46
Q

When Congress attempts to regulate intrastate activity under the commerce clause, what standard must it meet in order to be constitutional?

A

(1) economic or commercial activity: the Court must be able to conceive of a rational basis on which Congress could conclude the activity in aggregate substantially affects interstate commerce.
(2) noneconomic activity: Congress must be able to show a direct substantial economic effect on interstate commerce.

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47
Q

True or False: Congress can compel activity under the Commerce Clause.

A

False

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48
Q

Who has the power to declare war?

A

Congress

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49
Q

Does Congress have a general police power?

A

No.

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50
Q

True or False: Congress has plenary powers over aliens?

A

True

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51
Q

Are resident aliens entitled to notice and hearing before being deported?

A

Yes

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52
Q

May the Legislature delegate legislative power to the other breaches of government?

A

Yes, as long as intelligible standards are set and the power is not uniquely confined to Congress. (however, no law has been struck down under this standard since 1936)

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53
Q

What is a legislative veto? are they constitutional?

A

It is an attempt by congress to overturn an executive agency action without bicameralism (house and senate approval) or presentment (to the president).

No, it is not constitutional

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54
Q

When may Congress vest the appointment power in someone other than the President?

A

when it is for the appointment of an inferior office

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55
Q

Can the President’s pardon power be limited by congress?

A

No.

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56
Q

What portion of the house and senate must vote to overturn a presidential veto?

A

2/3

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57
Q

What is a line item veto? Is it constitutional?

A

A line item veto is an attempt by the president to veto discrete sections of a bill and approve others.

No, it is not constitutional

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58
Q

When are the president’s powers at their highest and likely to be valid?

A

When she is acting with the express authority of Congress

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59
Q

When are the president’s powers at their lowest and likely to be invalid?

A

When she is acting against the express will of Congress

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60
Q

What is the authority of the president when he acts where congress has been silent?

A

his action will be upheld unless it users the power of another govnmental branch or prevents another branch or prevents another branch from carrying out its tasks

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61
Q

Does the president have the power to declare war?

A

No

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62
Q

Are state laws that conflict with valid treaties are invalid?

A

Yes

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63
Q

Which prevails when a treaty conflicts with federal law?

A

The one enacted last in time

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64
Q

Which prevails when a treaty conflicts with the Constitution?

A

The Constitution

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65
Q

Do executive agreements need the consent of the Senate to be valid?

A

No

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66
Q

What prevails between a conflicting state law and executive agreement?

A

executive agreement

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67
Q

What prevails between a conflicting federal law and executive agreement?

A

the federal law

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68
Q

When does the executive privilege apply?

A

applies to keep certain communications secret. National Security is given the greater deference

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69
Q

When does the exception to the executive privilege apply?

A

Applies in criminal cases where presidential communications will be available to the prosecution where a need for such info is demonstrated.

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70
Q

What is executive immunity?

A

Absolute immunity from suit for any actions arising DURING presidency

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71
Q

Who is subject to impeachment?

A

All civil officers of the US

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72
Q

What is the process for impeachment?

A

(1) 1/2 vote of impeachment in the house

(2) 2/3 vote of conviction in the senate

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73
Q

Because of the ________ Clause, a federal law may supersede or preempt local laws

A

Supremacy

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74
Q

What are the two general types of preemption?

A

express and implied

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75
Q

What are the three types of implied preemptions?

A

(1) conflict/impossibility
(2) obstacle
(3) field

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76
Q

True or false: in all preemption cases, the courts will start with the presumption that the historic police powers of the state are not preempted unless it was the clear and manifest purpose of Congress

A

True

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77
Q

May the US sue a state without its consent?

A

Yes

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78
Q

May states sue the US without its consent?

A

No, Unless the US has waived its immunity for the particular suit.

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79
Q

May a state sue another state without its consent?

A

Yes

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80
Q

When may Congress regulate the conduct of a state?

A

(1) congress may restrict state activities that violate civil liberties
(2) congress may regulate the states through its spending power (ice, conditions imposed on receipt of federal funds)

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81
Q

When may congress regulate the states through its spending power?

A

(1) when the conditions are clearly stated
(2) the conditions relate the purpose of the program; AND
(3) are not unduly coercive

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82
Q

May a state tax the federal government?

A

No, not without the US’s consent

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83
Q

What does the Article IV Privileges and Immunities Clause prohibit?

A

discrimination by a state against nonresidents regarding fundamental rights

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84
Q

Are corporations protected by the Article IV Privileges and Immunities Clause?

A

No

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85
Q

What fundamental rights are protected by the Article IV Privileges and Immunities Clause?

A

rights relating to important commercial activities (pursuit of livelihood) or civil liberties.

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86
Q

When will a state law discriminating against nonresidents be valid under the Article IV Privileges and Immunities Clause? What must the state prove under this standard?

A

when there is substantial justification for the different treatment.

The state must show that the nonresidents are the cause or part of the problem the state is attempting to solve and there are no less restrictive means of achieving the state’s goal

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87
Q

What is prohibited by the Fourteenth Amendment Privileges or Immunities Clause?

A

denial of the privileges and immunities of national citizenship. (primarily the right to travel, including the right to earn a livelihood)

88
Q

Which branch of government has the power to regulate foreign commerce?

A

Congress

89
Q

Under what circumstances may a state or local government regulate aspects of interstate commerce ?

A

When congress has not enacted a law regarding the subject.

If the state or local government chooses to regulate, it must not discriminate against or unduly during interstate commerce. If it does, it violates the commerce clause

90
Q

If a state enacts regulations that discriminate against interstate commerce to protect local economic interests, those regulations are almost always _____

A

invalid

91
Q

When may a discriminatory state or local law be valid under the dormant commerce clause?

A

(1) it if furthers an important noneconomic state interest and there are no reasonable nondiscriminatory alternatives
(2) the state is acting as a market participant
(3) the regulation is a favoring governing performing traditional government functions.

92
Q

What test is applied to nondiscriminatory state laws under the dormant commerce clause?

A

a nondiscriminatory state law will be held valid unless the burden outweighs the promotion of legitimate local interest. The court will consider whether there are less restrictive alternatives available

93
Q

The majority of the Bill of Rights is incorporated against the states through what federal law?

A

The due process clause of the Fourteenth Amendment

94
Q

What parts of the Bill of Rights is NOT incorporated against the states?

A

(1) Third Amendment
(2) Fifth Amendment prohibition of criminal trials without a grand jury indictment
(3) Seventh Amendment’s right to a jury trial in civli cases

95
Q

True or false, the Thirteenth Amendment can only control governmental conduct.

A

False it controls both governmental conduct and private conduct

96
Q

Congress may prohibit _____ racial discrimination under the commerce power if the activity has substantial effect on interstate commerce.

A

private

97
Q

What is the first consideration when analyzing any potential constitutional violation?

A

Determine whether there was state action

98
Q

In what areas will state action be found when the actor is seemingly a private one?

A

(1) private individuals performing exclusive public functions; OR
(2) have significant state involvement

99
Q

If a state is attempting to enact a law that retroactively impairs a private contract right, what level of scrutiny will be used to review? What about a government right?

A

(1) Intermediate scrutiny

(2) Intermediate scrutiny+

100
Q

What is the basic principle underlying Procedural Due Process?

A

A fair process is required for a government agency to individually take a person’s life liberty of property.

101
Q

Will negligent deprivation of a person’s life liberty of property trigger a procedural due process violation?

A

No, only intentional acts

102
Q

What is a liberty for purposes of the due process clause??

A

freedom from bodily restraints; the right to contract and engage in gainful employment.

103
Q

When will a court find that a deprivation of liberty has occurred?

A

when a person:

(1) loses a significant freedom of action; OR
(2) is denied a freedom provided by the Constitution or Statute

104
Q

What is “property” for purposes of the due process clause?

A

personal belongings and realty; legitimate claim or entitlement to the benefit under state or federal law

105
Q

What are examples of “property” interests for purposes of the due process clause?

A

(1) continued attendance at public schools
(2) welfare benefits
(3) some cases of government employment

106
Q

What is the balancing test required to satisfy procedural due process?

A

(1) the importance of the interest to the individual
(2) the value of specific procedural safeguards to that interest
(3) the government interest in fiscal and administrative efficiency

107
Q

What two things are always required for procedural due process?

A

fair procedures and an unbiased decisionmaker

108
Q

What two things are usually required for procedural due process?

A

notice and a chance to respond before termination of the liberty or property interest

109
Q

Can an individual waive her procedural due process rights?

A

Yes if the waiver is knowing and voluntary

110
Q

May an equal protect claim be brought for arbitrary treatment against an individual, i.e. a class of one?

A

Yes.

111
Q

What is the test for strict scrutiny?

A

In order to be upheld a government must be necessary to achieve a compelling government purpose. (sometimes characterized as narrowly tailored to achieve an overriding governmental purpose)

112
Q

When is strict scrutiny applied?

A

(1) When a fundamental right is infringed (interstate travel, privacy, voting, and First Amendment rights);
(2) regulations involving suspect classifications (race, national origin, and alienage)

113
Q

must a regulation subject to strict scrutiny have no less restrictive means available to achieve the government objective?

A

Yes.

114
Q

Who bears the burden of proof when a government regulation is subject to strict scrutiny?

A

the government

115
Q

When is intermediate scrutiny applied?

A

Most importantly:

(1) when regulations involve a quasi suspect classification (gender and legitimacy).
(2) regulation of commercial speech

116
Q

What is the test for intermediate scrutiny?

A

the law is upheld if it is substantially related to an important government purpose

117
Q

Who bears the burden of proof when a government regulation is subject to intermediate scrutiny?

A

probably the government

118
Q

What is the rational basis test?

A

The law is upheld if its rationally related to a legitimate government purpose

119
Q

When will a law be struct down under rational basis?

A

when ti is arbitrary or irrational

120
Q

Who bears the burden of proof when a government regulation is subject to rational basis?

A

the challenger

121
Q

Who does the due process clause of the fifth amendment apply to? The Fourteenth?

A

Fifth: federal government
Fourteenth: state government

122
Q

When does strict scrutiny apply in a substantive due process analysis?

A

when a fundamental right is implicated

123
Q

What standard applies to in a substantive due process analysis that does not implicate a fundamental right?

A

rational basis

124
Q

Is federal government action subject to equal protection review?

A

Yes, through the fifth amendment due process clause

125
Q

When is strict scrutiny applied in an equal protection analysis?

A

When a suspect classification is being discriminated against or when a fundamental right is involved.

126
Q

When is intermediate scrutiny applied in an equal protection analysis?

A

When a quasi suspect classification is being discriminated against

127
Q

When does rational basis review apply in an equal protection analysis?

A

Whenever the discrimination does not implicate a fundamental right or a suspect or quasi suspect class

128
Q

Must there be discriminatory intent on the part of the government to sustain an equal protection challenge?

A

Yes

129
Q

How is discriminatory intent shown in an equal protection analysis?

A

(1) law is discriminatory on its face
(2) a discriminatory application of a facially neutral law; OR
(3) there is a discriminatory motive behind the law

130
Q

Is demonstration of a discriminatory effect enough to prove discriminatory motive?

A

No, you must show discriminatory motive

131
Q

What are the suspect classifications?

A

race, national origin, and alienage

132
Q

Does the government have a compelling interest in remedying past racial discrimination sufficient to satisfy strict scrutiny?

A

Yes, as long as the past discrimination was persistent and readily identifiable (cannot be generalized)

133
Q

Does the government have a compelling interest in affirmative action if there was not past discrimination?

A

Yes, as long as the action is narrowly tailored to that interest

134
Q

When can race be used in drawing up new voting districts?

A

When it is not the predominate factor

135
Q

Are federal alienage classifications subject to strict scrutiny?

A

No.

136
Q

Are state laws on alienage subject to strict scrutiny?

A

Yes

137
Q

It is unconstitutional for a state to require United States citizenship for welfare benefits, civil service jobs, or to become a lawyer?

A

Yes

138
Q

May a state law discriminate against alien participation in state government?

A

Yes, as long as it is rationally related to a legitimate state interest

139
Q

Are undocumented aliens a suspect class?

A

No

140
Q

What classification applies to gender

A

quasi suspect

141
Q

What test is used to determine if a law discriminating against a quasi suspect class?

A

Intermediate scrutiny: the law must be substantially related to an important government interest

142
Q

Are laws that attempt to remedy past discrimination against women valid under equal protection?

A

Yes

143
Q

What is the government’s burden when a quasi suspect class is involved in an equal protection analysis?

A

The government must show an exceedingly persuasive justification for the discrimination

144
Q

What are examples of non suspect classifications, which will be reviewed for their rational basis?

A

age, disability, wealth

145
Q

What are the fundamental rights under the Fourteenth Amendment?

A

right to interstate travel; voting; privacy; and First Amendment.

146
Q

If a fundamental right is denied to everyone, what is the most appropriate constitutional challenge? At what standard?

A

Substantive due process; strict scrutiny

147
Q

If a fundamanetal right is denied only to some individuals, what is the most appropriate constitutional challenge? At what standard?

A

Equal Protection; strict scrutiny

148
Q

What categories are considered a part of the fundamental right to privacy?

A

CAMPPERS

Contraceptives 
Abortion
Marriage
Procreation
Parental Rights
Extended Family (keeping together)
Reading Material (obscene)
Sexual Conduct
149
Q

Under what scenario will the government be allowed to burden the right to marriage?

A

Where they are restricting the rights of inmates to marry, where the restriction is reasonably related to legitimate penological interests

150
Q

What standard must a state prove to place a restriction on the right to get an abortion?

A

Pre-viability: before a fetus is viable (meaning that the fetus has a realistic chance of surviving outside of the womb) a state may adopt a regulation protecting the mother’s health and the life of the fetus if the regulation does not place an undue burden or substantial obstacle to the woman’s right to obtain an abortion.

Post Viability: once a fetus is viable, the state has a compelling interest in protecting the life of the fetus which can over ride the woman’s right to obtain an abortion, but the state cannot prohibit an abortion where necessary to protect the woman’s health or safety.

151
Q

True or False: a court will attempt to fashion narrower decalroty and injunctive Relief against application of a statute that unconstitutionally infringes on a woman’s right to get an abortion.

A

True

152
Q

Does the government have an obligation to pay for an abortion?

A

No

153
Q

Does the right to read obscene material include the right to sell, purchase, or transport such material?

A

No

154
Q

Do zoning regualtions that keep extended families from living together violate substantive due process?

A

Yes, but this right does NOT to extend to unrelated people

155
Q

Does the right to engage in consensual sexual conduct apply to all sex between consenting adults?

A

No, it applies to private intimate sexual conduct that is not commercial in nature

156
Q

What basis may the government limit the voting rights of citizens without being subject to strict scrutiny?

A

Residence (for a reasonable time i.e. 30 days), age, and citizenship.

157
Q

May the government ever condition voting rights on the ownership of property?

A

Generally no. They may only in certain special purpose elections (water storage districts)

158
Q

May a state constitutionally bar a political party from opening their primary election to anyone?

A

No

159
Q

When does the “one person, one vote” principle apply?

A

Whenever any level of government, state or local, decides to select representatives to a governing body by popular elections from individual districts

160
Q

True or false: states must use almost exact mathematical equality when creating districts, but Congress does not.

A

True

161
Q

May states constitutionally charge candidates a fee which would make it impossible for an indigent to run for office?

A

No

162
Q

Define the fundamental right engage in interstate travel.

A

An individual has a fundamental right to migrate from state to state and to be treated equally after moving into a new state.

163
Q

What is the main problem that arises under the fundamental right to travel?

A

A problem arises when a state imposes a minimum durational residency requirement for receiving its benefits; or otherwise dispenses state benefits based on the length of time a person has resided in the state.

164
Q

Is the right to international travel a fundamental right?

A

No, the rational basis test applies

165
Q

What rights are contained within the First Amendment?

A

(1) prohibition on the establishment of a national religion;
(2) free exercise of religion
(3) freedom of speech
(4) freedom of the press
(5) freedom of assembly

166
Q

Does the First Amendment restrict the government from expressing its views?

A

Generally no, as long as rational basis is satisfied

167
Q

True or False: the free speech clause restriction government regulation of private speech.

A

True

168
Q

What level of scrutiny applies to a city’s placement of a permanent monument in a public park?

A

Rational basis because it is government speech.

169
Q

What are the two main categories of speech and assembly regulations

A

(1) content (regulations forbidding communication of specific ideas); and
(2) conduct (regulations of the conduct associated with speech such as time place and manner)

170
Q

What level of scrutiny is applicable to content based restrictions on speech

A

Strict scrutiny, unless the speech falls within a lesser-protected or non protected category

171
Q

What level of scrutiny is applicable to content-neutral restrictions on speech?

A

Intermediate scrutiny, meaning they must advance important interest unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests

172
Q

When will a speech regulation be found unconstitutionally overbroad?

A

When it punishes a substantial amount of protected speech in relation to its plainly legitimate sweep.

173
Q

When will a speech regulation be found unconstitutionally vague?

A

when a reasonable person cannot tell what speech is prohibited and what is allowed

174
Q

True or false: laws prohibiting fighting words are regularly found to be unconstitutional

A

True. Though fighting words are not constitutionally protected under Chaplinsky, convictions under fighting-words statutes are regularly overturned as unconstitutionally overboard and vague

175
Q

What is the test to be applied when the government seeks to regulate symbolic speech?

A

The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s purpose.

176
Q

What are examples of constitutionally symbolic speech?

A

(1) flag burning
(2) cross burning done without the intent to threaten
(3) campaign contributions

177
Q

Is anonymous speech protected under the First Amendment?

A

Yes, the First Amendment protects the right not to speak as well as the right to free speech

178
Q

What categories of speech are not protected under the First Amendment?

A

(1) Incitement of Illegal Activity
(2) Obscenity and Sexually-Oriented Speech
(3) Fighting words

179
Q

What is the test to determine whether speech can be punished as incitement?

A

(1) a substantial likelihood of imminent illegal activity; AND
(2) the speech is directed to causing imminent illegality

180
Q

What is the test for obscenity?

A

(1) material must appeal to the prurient interest (shameful or morbid interest in sex) (measured by a community standard);
(2) the material must b patently offensive under the law prohibiting obscenity (measured by a community standard)
(3) taken as a whole, the material must lack serious artistic literary, political or scientific value (measured by a national standard)

181
Q

May the government use zoning regulations to regulate the location of adult bookstores and movie theaters?

A

Yes

182
Q

True or False: child pornography can be completely banned even if it is not obscene.

A

True

183
Q

True or False: private possession of child pornography can be constitutionally prohibited

A

True

184
Q

May the government seize the assets of a business convicted of violating obscenity laws?

A

Yes, the government may also destroy those assets

185
Q

Profane speech is generally protected under the First Amendment except in what specific places?

A

(1) over the broadcast media

(2) in schools

186
Q

What types of commercial speech are not protected at all by the First Amendment?

A

(1) illegal activity

(2) false and deceptive ads

187
Q

What categories of commercial speech are considered to “inherently risk deception”? Can this categories be prohibited by a state?

A

(1) where professionals advertise or practice under a trade name;
(2) attorney in-person solicitation of clients for profit

Yes, these may be wholly banned.

188
Q

What test is applied to true commercial speech that does not inherently risk deception?

A

Intermediate scrutiny: substantially related to an important government interest; means must be narrowly tailored to serve that interest.

189
Q

What is a public forum? What are some examples?

A

Public property that has historically been open to speech-related activities;

Streets, sidewalks, public parks, and the Internet

190
Q

What is a designated public forum?

A

Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis by practice or policies.

191
Q

What elements does a valid time, place, and manner restriction for public forums or designated public forums have?

A

(1) content neutral
(2) narrowly tailored to serve an important government interest
(3) leave open alternate channels of communication

192
Q

Must a time, place, manner restriction for speech in a public or designated public forum be the least restrictive means for accomplishing the government interest?

A

No, it must only be narrowly tailored

193
Q

True or False: almost every legitimate governmental interest satisfied the significant/ important standard.

A

True

194
Q

What standard must an content neutral injunction meet in order to be constitutionally valid?

A

it must burden no more speech than is necessary to achieve an important government interest

195
Q

What is a limited public forum? What is an example?

A

government property not historically linked with speech and assembly but opened for specific speech activity.

School auditorium opened for a specific political debate

196
Q

What is a non-public forum? What are some examples?

A

government property not historically linked with speech and assembly and not held open for speech activities.

military bases; schools while is session; government workplaces

197
Q

What are the elements for a valid time, place, and manner restriction for limited public forums or non-public forums?

A

The government can regulate speech as long as the regulation:

(1) viewpoint neutral
(2) reasonably related to a legitimate government purpose

198
Q

In a defamation action, what two additionally elements must a plaintiff prove if they are (1) a public official, (2) public figure, or (3) the matter involves a public concern

A

(1) falsity

(2) some degree of fault

199
Q

True or false: Actions based on IIED are not subject to the same constitutional requirements as defamation actions.

A

False, they are subject to the same requirements

200
Q

What must the government show if it wishes to put a prior restraint on speech?

A

it must show some special societal harm will otherwise result

201
Q

What procedural requirements must a valid prior restraint on speech have?

A

(1) standards must be narrowly drawn, reasonable, and definite;
(2) Injunction must be promptly sought; AND
(3) There must be prompt and final determination of the validity of the restraint

202
Q

True or False: the press has greater freedoms than private citizens under the constitution because they are specially named apart from free speech.

A

False, in general the press has no greater freedom than private citizens.

203
Q

Does the First Amendment guarantee the right of the public and press to attend criminal trials?

A

Generally, yes.

204
Q

May the press be compelled to testify at grand jury proceedings?

A

Yes

205
Q

Does the First Amendment give journalists the right to inspect prison grounds or interview specific prisoners?

A

No.

206
Q

Is the freedom of association explicitly mentioned in the Constitution?

A

No

207
Q

What does the freedom of assembly protect against?

A

(1) government prohibition of politically unpopular groups; AND
(2) undue burden on a person’s right to join such groups

208
Q

What standard does a regulation of the right to associate need to meet in order to be constitutionally valid?

A

it must be justified by a:

(1) compelling government interest
(2) unrelated to the suppression of ideas; AND
(3) infringements are the least restrictive means of protecting the government interest.

209
Q

A regulation on campaign contributions must satisfy what standard?

A

intermediate scrutiny: it must be closely drawn to match a sufficiently important interests

210
Q

True or false: the government may require employees to take loyalty oaths.

A

True, as long as the oaths are not overbroad or unconstitutionally vague

211
Q

What does the Free Exercise Clause protect against?

A

the government from punishing someone on the basis of her religious beliefs

212
Q

Must religious beliefs come from an organized religion or involve a supreme being?

A

No

213
Q

Has the SCOTUS ever found an interest so compelling that it justifies a denial of government benefits or impose a burden on someone based on their religious beliefs?

A

No.

214
Q

The Free Exercise Clause cannot be used to challenge government regulation unless the regulation was _____ ______ to interfere with religion

A

specifically designed

215
Q

Does the Free Exercise Clause require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct?

A

No

216
Q

Under the Establishment Clause, a regulation will be invalid unless the action:

A

LEMON TEST

(1) has secular purpose
(2) has primary effect that neither advances nor inhibits religion; AND
(3) does not produce excessive government entanglement with religion

217
Q

What is the primary test under the Establishment Clause?

A

Lemon Test.

Bar Exam (14 decks)

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