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Constitutional Law Flashcards

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1
Q

Ripeness: Rule

A

Fed courts may only decide controversies that are ripe for judicial review

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2
Q

Ripeness: Application:

A

Pre-enforcement review of laws (declaratory judgment actions) are generally not ripe, unless substantial hardship in the absence of review AND issues and record are fit for review (more legal than factual, the better)

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3
Q

Advisory Opinions

A

No advisory opinions.

Fed courts may not render advisory opinions, which lack
an ACTUAL DISPUTE between adverse parties
any LEGALLY BINDING EFFECT on the parties

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4
Q

Mootness: Rule

A

Fed courts may only decide live controversies (i.e. plaintiff is suffering an ongoing injury)

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5
Q

Mootness: Application

A

In suit for injunctive or declaratory relief, challenged law or conduct continues to injure.

In suit for damages, plaintiff not made whole

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6
Q

Mootness: Exceptions

A

Though injury has passed, not moot if:

Injury is capable of repetition yet evades review because of inherently limited duration.

Defendant voluntarily ceases challenged activity but may restart at will.

In class action, one plaintiff suffers ongoing injury.

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7
Q

Standing

A

Plaintiff must have standing to sue.

Requires
Injury
Causation
Redressability

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8
Q

Injury

A

Almost any harm that is concrete (not hypothetical) and particularized (not general).

Ex: physical, economic, loss of constitutional or statutory rights

NOT ideological objections or generalized grievances as citizen or taxpayer

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9
Q

Injury: Exceptions

A

Taxpayer may challenge own tax liability

All citizens may challenge Congressional spending in violation of the establishment clause.

Citizens may NOT challenge executive spending.

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10
Q

When Injury Must Occur

A

Injury must have occurred or will imminently occur

Injunctive or declaratory relief: must show likelihood of future harm

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11
Q

Who Must Suffer Injury

A

Injury must be suffered personally by plaintiff rather than those not before the court.

No third party standing

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12
Q

Third Party Standing: Exceptions

A

(1) Close relationship
(2) Organized (on behalf of members)
(3) Free speech over-breadth (party whose speech can be censored sues on behalf of those whose speech cannot)

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13
Q

Third Party Standing Exceptions: Close Relationship

A

Plaintiff and third party injured

Third party unable or unlikely to sue

Plaintiff can adequately represent third party

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14
Q

Third Party Standing Exceptions: Organizations

A

Can sue on behalf of its members.

Organization AND members have standing. Members’ injury related to purpose of organization. Members participation not required (e.g. not seeking individualized damages)

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15
Q

Third Party Standing Exceptions: Free Speech Overbreadth

A

Party whose speech can be censored sues on behalf of those whose speech cannot

Substantial overbreadth in terms of law’s legitimate to illegitimate sweep.
Not commercial speech.

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16
Q

Causation

A

Plaintiff needs to show that the injury is fairly traceable to defendant

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17
Q

Redressability

A

Plaintiff must show that a favorable court decision can remedy the harm (e.g. through money damages or an injunction)

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18
Q

Sovereign Immunity: States

A

Lawsuits against federal and state courts and agencies barred

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19
Q

Sovereign Immunity: States

EXCEPTIONS

A

Waiver (by state or feds)

Plaintiff= state or federal government (they can sue each other)

Bankruptcy proceedings

Clear abrogation by Congress under 14th Amendment powers to prevent discrimination

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20
Q

Sovereign Immunity: State Officers

A

Can sue state officials for injunctive relief or money damages from their own pocket

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21
Q

Sovereign Immunity: Local Government

A

Can sue local governments, local government departments, government officials

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22
Q

Final Judgment Rule

A

SCOTUS only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a fed court of appeals, or (in special statutory situations) a 3- judge district court

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23
Q

Independent and Adequate State Grounds

A

SCOTUS will not review a federal question if the state court decision rests on an independent (separate) and adequate (sufficient) state law ground.

IASG exists if the outcome would be the same regardless of how the federal question is decided.

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24
Q

Federal Legislative Power: Source

A

Article 1, Section 8

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25
Q

Federal Legislative Power: Limit

A

Enumerated powers. Unlike states, Congress has no general police power to pass laws.

Exceptions: federa land, Indian reservations, D.C.

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26
Q

Necessary and Proper Clause

A

NOT A BASIS OF LEGISLATIVE POWER

Allows Congress to choose any rational means to carry out an ENUMERATED power, as long as means not prohibited by Constitution

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27
Q

Taxing and Spending Powers: Rule

A

Congress may tax and spend to provide for the general welfare.

Includes any public purpose not prohibited by the Constitution, even if not within an enumerated power.

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28
Q

Spending Conditions

A

“Strings” must related to purpose of spending and not violate Constitution.

Strings cannot be “unduly coercive”

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29
Q

Commerce Power: Rule

A

Congress may regulate commerce with

  • Foreign nations
  • Indian tribes
  • Among states
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30
Q

Interstate Commerce

A

CHANNELS of interstate commerce

INSTRUMENTALITIES of interstate commerce

SUBSTANTIAL EFFECT on interstate commerce in aggregate (of even purely local activities)

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31
Q

Commerce Power: Limits

A

Congress cannot regulate:

  • Noneconomic activity in area traditionally regulated by states
  • Compelling participation in commerce (even if lack of participation substantially affects interstate commerce)
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32
Q

14th Amendment Enforcement Power

A

Commerce power allows Congress to ban PRIVATE discrimination.

Congress may also ban STATE discrimination under its 14th Amendment power to enforce the guarantee of Equal Protection

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33
Q

Delegation of Power: Federal Agencies

A

May broadly delegate legislative power as long as there is some intelligible principle guiding the exercise of delegated power.

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34
Q

Delegation of Power: to the President

A

No line-item vetoes

Rationale: violates bicameralism (passage by both chambers) and presentment (giving bill in entirety to President to sign or veto)

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35
Q

Delegation of Power: to Congress

A

No legislative veto to void duly enacted laws without bicameralism and presentment

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36
Q

Federal Executive Power: Source

A

Article II

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37
Q

Federal Executive Power: Domestic Powers

A

Enforcement: President has power (and duty) to execute the laws

Inherent (Implied) Presidential Powers:

  • highest where authorized by Congress
  • lowest where prohibited by Congress
  • grey area where neither
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38
Q

Federal Executive Power: War

A

Congress alone has power to declare war.

President as Commander in Chief has broad discretion to deploy troops internationally to protect American lives and property.

  • Challenges may be non-justiciable (political question)
  • Congress checks through power of the purse
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39
Q

Federal Executive Power: Treaties

A

President negotiates

Senate 2/3 to approve

State law: trumps existing and future state law

Federal law: trumps existing (but NOT future) federal law

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40
Q

Federal Executive Power: Executive Agreements

A

President negotiates

Senate not involved

State law: trumps existing and future state law

Federal law: federal law always trumps

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41
Q

Tenth Amendment

A

Powers not granted to US, or prohibited to States, are reserved to the states or the people

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42
Q

General Police Powers

A

Reserved to States

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43
Q

Anti-Commandeering Principle

A

Congress cannot compel states to enact or administer federal programs

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44
Q

Supremacy Clause

A

Supremacy of Art. VI makes federal law preempt inconsistent state and local laws.

Federal laws: Constitution, statutes, regulations, treaties, and executive agreements

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45
Q

Express Preemption

A

Congress expressly says so

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46
Q

Implied (Conflict) Preemption

A

Impossible to follow both federal and state law, state law impedes federal law

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47
Q

Implied (Field) Preemption

A

Extensive federal regulation indicates Congressional intent to “occupy the field”

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48
Q

Dormant Commerce Clause

A

Prohibitive state laws that discriminate against or unduly burden interstate commerce.

Who: all out of staters
What (claims) protected: interstate commerce
How (test): discriminatory laws are invalid unless NECESSARY TO ACHIEVE IMPORTANT GOV’T PURPOSE unrelated to economic protectionism) and no less discriminatory alternatives.
Nondiscriminatory laws valid unless burden on interstate commerce clearly outweighs non-protectionist benefits.

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49
Q

Dormant Commerce Clause: 2 Exceptions

A

Congressional approval

Market participant (where state acts as a buyer or seller in the market)

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50
Q

Privileges and Immunities Clause of Article IV

A

Prohibits state laws that discriminate against out-of-state US citizens regarding important commercial activities (earning livelihood) or fundamental rights.

Who: US citizens (NOT aliens or corporations
What protected (claim): important commercial activities, fundamental rights
How protected (test): discriminatory laws (favoring in-state over out-of-state citizens) are invalid unless NECESSARY TO ACHIEVE AN IMPORTANT GOVERNMENT PURPOSE and no less discriminatory alternatives
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51
Q

Privileges and Immunities Clause 14th Amendment

A

Fundamental Right to Interstate Travel

Right to enter/leave a state
Equal treatment once become a permanent resident of a state
NO fundamental right to international travel
Right to petition federal government

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52
Q

Constitutional Framework for Protection of Individual Liberties: Application and Incorporation

A

Except for ban on slavery, Constitution applies only to government action, not private action.

Bill of Rights originally applies only to federal government; most protections have been incorporated against states (AND their political subdivisions) through the Due Process Clause of the 14th Amendment.

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53
Q

Not Yet Incorporated Provisions of the Bill of Rights

A

3A (quartering soldiers)
5A (right to GJ indictment)
7A (right to jury in civil cases)

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54
Q

State Action

A

State law

State officials acting officially (even if unlawfully)

Public function
Rule: state action exists when private party performs function done by government traditionally and exclusively

State involvement
Rule: significant state involvement in challenged private conduct (e.g. assistance, encouragement, supervision, entwinement, or approval) may count as state action

Failure to act IS NOT state action

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55
Q

Rational Basis

A

Ends= rational or legitimate interest

Means= rationally or reasonably related

Burden= challenger

Presumption= valid

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56
Q

Intermediate Scrutiny

A

Ends= important or significant state interest

Means= Substantially related/narrowly tailored (not least restrictive)

Burden= state

Presumption= none

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57
Q

Strict Scrutiny

A

Ends= compelling state interest

Means= Narrowly tailored

Burden= state

Presumption=invalid

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58
Q

Procedural Due Process Constitutional Provisions

A

5th Amend: DPC applies to federal government

14th Amend: DPC applies to states (and localities)

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59
Q

Procedural Due Process: General Rule

A

Individual has right to a fair process when government acts to deprive of life, liberty, or property

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60
Q

Deprivation

A

intentional (or perhaps reckless) rather than negligent

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61
Q

Liberty

A

Physical freedom (institutionalization, deportation)

Constitutional rights (parental rights)

NOT mere harm to reputation

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62
Q

Property

A

Real, personal, tangible, intangible

Government entitlement to which an individual has a reasonable expectation of continued receipt (NOT at-will employment)

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63
Q

What Process is Due?

A

Notice

Opportunity to be Heard

Neutral decision-maker

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64
Q

Notice

A

Reasonably calculated to inform person of deprivation

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65
Q

Hearing

A

Pre-deprivation hearing generally preferred unless impracticable

Balancing test determines nature and extent of procedures, considering

  • importance of interest to individual
  • Risk of error through procedures used
  • Accuracy gained through additional procedures
  • Burden on government (e.g. inefficiency and costs)
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66
Q

Neutral Decisionmaker

A

No actual or serious risk of bias

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67
Q

Unenumerated Rights

A

Substantive component of liberty protected by 14th Amendment Due Process Clause against state and localities and 5th Amendment Due Process Clause against federal government

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68
Q

Fundamental Right if…

A
  • Deeply rooted in this nation’s history and tradition
  • Implicit in the concept of ordered liberty in a free society
  • Identified as fundamental by reasoned judgment and new insight
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69
Q

If law denies everyone a fundamental right…

A

Substantive due process ONLY

70
Q

If law denies only some a fundamental right…

A

Substantive due process

AND

Procedural due process

71
Q

Level of Scrutiny/Substantive Due Process: Fundamental Right

A

Strict Scrutiny

Marriage
Procreation
Contraception
Custody
Care and upbringing of children
Living with extended family
Interstate travel
Voting
72
Q

Level of Scrutiny/Substantive Due Process: Non-Fundamental Rights

A

Rational Bais

Economic rights
Education
Physician-assisted suicide

73
Q

Fundamental Rights: Marriage (Divorce)

A

Substantial interference: strict scrutiny
Interracial marriage bans trigger and fail strict scrutiny under DPC and Equal Protection
Same sex marriage strict scrutiny

NOTE: reasonable requirements to protect rather than hinder right to marry are upheld under RATIONAL BASIS (e.g. rxble age of majority, need for ID)

74
Q

Fundmental Rights: Procreation

A

State may not sterilize repeat offenders of crimes of moral turpitude

75
Q

Fundamental Rights: Contraception

A

Ban on distribution and use of contraceptives or limiting sale to pharmacist is invalid

76
Q

Fundamental Rights: Parental Rights

A

Custody, care, and upbringing of children

77
Q

Fundamental Rights: Living with Extended Family

A

City may not prohibit extended family from living in a single household

78
Q

Fundamental Right: Interstate Travel

A

14th Amendment Privileges and Immunities Clause

Right to enter and leave a state
Equal treatment once become a resident of a state
No fundamental right to international travel

79
Q

Right to Vote

A

Rational basis for reasonable requirements that protect rather than hindre the right to vote

  • age
  • residency (50 days)
  • citizenship (US citizens)

Strict scrutiny for onerous or potentially discriminatory restrictions

  • poll taxes
  • literacy tests
  • racial gerrymandering– if race predominates
80
Q

One Person, One Vote Principle

A

State and local representatives: below 10% presumptively valid

Fed reps: as close as possible

81
Q

Abortion: Pre-Viability

A

Scope: state may REGULATE (but not prohibit) abortions to protect women’s health or life of the fetus

Test: undue burden (i.e. substantial obstacle) on access to abortion in purpose or effect, weighing benefits of law (backed by evidence) against burdens on women

82
Q

Abortion: Post-Viability

A

State may prohibit abortions UNLESS necessary to protect woman’s life or health

83
Q

Private Consensual Adult Sexual Intimacy

A

No legitimate state interest in criminal ban on same-sex intimate conduct (Lawrence)

Sounds like rational basis review

84
Q

Refusal of Medical Treatment

A

Competent adult may refuse lifesaving medical treatment. State may require clear and convincing evidence of individual’s wish and may prevent family members from terminating treatment.

No right to physician-assisted suicide. State may compel vaccination against contagious diseases.

85
Q

Bear Arms

A

2nd Amendment protects right of individuals at least to have handgun in home for self-defense

86
Q

Equal Protection Clause Provisions

A

14th Amendment Equal Protection Clause applies to states and localities

5th Amendment Due Process Clause has “equal protection component” that applies to the federal government

87
Q

Equal Protection Clause: Trigger + Steps

A

Trigger: government treating people differently

Analytical Steps:

(1) Classification
(2) Level of review

88
Q

Classifications

A

Determining classification:

Facial
Disparate impact AND discriminatory intent

Rational basis
Intermediate scrutiny (quasi-suspect)
Strict scrutiny (suspect)
89
Q

Classifications: Rational Basis

A

age, disability wealth, alienage, classifications by Congress

90
Q

Classifications: Intermediate Scrutiny (Quasi-Suspect)

A

Gender, illegitimacy, undocumented alien children

91
Q

Classifications: Strict Scrutiny

A

Race, national origin, alienage, classifications by states

92
Q

Race and National Origin: Level of Scrutiny

A

Strict Scrutiny

School integration: valid if NARROWLY TAILORED to remedy past segregation

Affirmative action in schools: if race is NONDISPOSITIVE, its narrowly tailored

Affirmative action in government contracts and hiring: acceptable if remedying past discrimination, but not okay to promote racial diversity

93
Q

Alienage (Non-Citizen Status)

A

Congressional classification: rational basis

State and local classification: strict scrutiny

Exception: state and local governments may reasonably require citizenship for activities and positions integral to democratic self-governances (voting, holding elected office, being police officers or public school teachers, NOT being a notary public)

94
Q

Gender

A

Intermediate scrutiny

Interpretation: important interest requires EXCEEDING PERSUASIVE JUSTIFICATION, not role stereotypes

95
Q

“Legitimacy” (Non-marital children)

A

Intermediate scrutiny

Laws that discriminate against ALL non-marital children are likely prejudicial and invalid

Laws that distinguish among non-marital children are more likely to be upheld

96
Q

Children of Undocumented Aliens

A

Unclear if RB or SS but clear that discrimination is irrational.

Apply RB with a bit of bite.

97
Q

Fundamental Rights

A

Strict scrutiny

98
Q

All other classifications

A

Rational basis.

Examples: age, disability, income, intelligence, health, sexual orientation.

Animus is NOT rational.

99
Q

Takings Rule

A

Fed government (5th Amend. takings clause) and states (14th Amen. DPC) may not take private property unless

(1) public use
(2) just compensation

100
Q

Takings: Property

A

Real personal property (incl. rights to possess, use, dispose, etc.)

Some intangible property (interest on attorney trust accounts, trade secrets, NOT welfare benefits)

101
Q

Physical Taking

A

Confiscation.

Regular or permanent occupation.

Temporary occupation may be takings depending on degree of invasion, duration, government intention, and foreseeability w/r/t result, character, of property, and interference with use.

102
Q

Physical Taking: Development Exception

A

Traditional conditions on property development (e.g. streets, utilities, easements) are not taking if benefits are roughly proportional to burdens

103
Q

Physical Taking: Emergency Exception

A

Taking less likely to be found, even for complete and permanent deprivation, if pursuant to public emergency, such as war.

104
Q

Regulatory Taking: Bright-Line Rule

A

Taking if regulation on use does not merely diminish property value but leaves not economically viable use.

105
Q

Regulatory Taking: Ad Hoc Approach

A

Maybe (but difficult to claim) a taking considering

  • Economic impact of regulation
  • Interference with investment-backed expectations, and
  • Character of government action
106
Q

Public Purpose

A

Any legitimate public purpose, ie any purpose that government reasonably believes will benefit public

107
Q

Just Compensation

A

Fair Market Value at time of taking (benefit to government is irrelevant)

108
Q

Retroactive Legislation: Contract Clause and Applicability

A

No state shall…pass any…law impairing the obligation of contracts.

Applicability:
-state and local laws only, NOT federal government, judicial decision

109
Q

Retroactive Legislation: Private Contracts

A

Substantial impairment of existing rights invalid, unless

  • legitimate or significant purpose
  • rxble or appropriate means
110
Q

Retroactive Legislation: Public Contracts

A

Heightened scrutiny (intermediate or strict scrutiny)

111
Q

Ex Post Facto Laws

A

Rule: neither state nor federal government may pass legislation that retroactively alters criminal liability

112
Q

5 Ex Post Facto Categories

A

(1) Criminalize act that was innocent when done
(2) Make crime greater than when committed
(3) Set greater punishment than when act was done
(4) Reduce evidence required to convict from what was required at time of the act

113
Q

Bills of Attainder: Rule

A

Neither state nor federal gov’t may pass legislation that designates particular individuals (by name or description) for punishment without judicial trial

114
Q

Bills of Attainder: Punishment

A

traditional sanctions, and punitive measures (e.g. exclusion from employment and benefits)

115
Q

True Threats

A

Test: words intended to convey to someone a serious threat of bodily harm (perhaps recklessly conveying such a threat suffices)

116
Q

Obscenity

A

Depiction of sexual conduct defined by state law that taken as a whole, by contemporary community standards:

  • appeals to the prurient interest in sex
  • is patently offensive, AND
  • lacks serious social value by national standards

Mere nudity, soft-core porn, and dirty words are NOT obscene

Right to privacy extends to possession of obscenity AT HOME, which may not be banned

117
Q

Zoning

A

Sexually explicit or indecent speech that is not obscene may nonetheless be subject to zoning:

  • to protect children and unwilling adults from exposure
  • or to prevent neighborhood crime and decay

Amply alternative channels must exist for the speech.

118
Q

Child Pornography

A

Test: depiction of children engaging in sexual conduct by state law, whether or not obscene.

Must be actual children (not virtual, or adult actors)

In-home possession may be banned.

119
Q

Defamation

A

Rule: to promote robust public debate, 1st Amendment bars recovery under state defamation law for speech made without actual malice about

  • public officials
  • public figures, or
  • matters of public concern
120
Q

Actual Malice

A

(by clear and convincing evidence)

knowledge of falsity, or
reckless disregard for the truth

121
Q

Public Officials

A

Holding or running for elective office (at any level)

Public employees in positions of public important (e.g. prosecutor, school principal, police officer)

122
Q

Public Figures

A

Assumed role of prominence in society

Achieved pervasive fame and notoriety

Thrust themselves into particular public controversies to influence their resolution

123
Q

Public Concern

A

Matters important to society and democracy

124
Q

Defamation: Analytical Steps

A

Identify

  • Type of plaintiff (public official, public figure, private figure)
  • Subject matter of alleged defamation (public or private concern)

These will determine

  • Whether the plaintiff must prove actual malice (in addition to proving state defamation elements) and
  • What damages plaintiff may recover
125
Q

Public Official/Public Figure, Any Subject

A

Actual malice.

Any damages allowed.

126
Q

Private Figure, Public Concern

A

Actual malice.
Presumed and punitive damages allowed.

OR

Negligence
Actual damages

127
Q

Private Figure, Private Concern

A

NO ACTUAL MALICE

Any damages allowed

128
Q

Intentional Infliction of Emotional Distress

A

As with libel, Court has required ACTUAL MALICE for recovery under tort of IIED, at least where plaintiff is public figure or public official, and speech is a matter of public concern

129
Q

Commercial Speech Includes

A

Includes: ads and promotions of products and services, brand marketing (e.g. Nike swoosh). Content matters.

Insufficient: profit motive

130
Q

Commercial Speech: Unprotected

A

False
Misleading
Illegal Product or Service

131
Q

Commercial Speech: Protected

A

all other commercial speech

132
Q

Commercial Speech

A

Test: intermediate scrutiny

Substantial government interest (e.g. consumer protection)

Narrowly tailored (reasonable fit– least restrictive)

133
Q

General Free Speech Tests

A

Content based: strict scrutiny

Content neutral: intermediate scrutiny

134
Q

Content-Based

A

Restrictions facially target certain topics or messages, or are justified by reference to potential harms produced by certain topics or messages

135
Q

Content Neutral

A

Do not target certain topics or messages, and suppress speech for reasons unrelated to any topics or messages. Often channels speech on basis of time, place, or manner.

136
Q

Intermediate Scrutiny: Ends/Means/Burden/Result

A

Ends: Important interest

Means: Narrowly tailored (not substantially overbroad, seriously tried less restrictive measures)

Burden: on state

Result: ?

137
Q

Strict Scrutiny: Ends/Means/Burden/Result

A

Ends: compelling interest

Means: narrowly tailored (least restrictive)

Burden: on state

Result: usually invalid

138
Q

Speech

A

words, symbols, and expressive conduct

Expressive conduct:

  • conduct that is inherently expressive
  • conduct that is intended to convey message and reasonably likely to be perceived as conveying message
139
Q

Freedom of Speech Analysis

A
  1. Is it speech?
  2. Is the speech protected or unprotected?

3a. General restriction
Content based? SS
Content Neutral? IS

3b. Public Property
Public form? go back to General Restriction analysis
Limited/Nonpublic forum? Rxble, not viewpoint based SS

3c. Public School
Student speech? Substantial disruption (unless pro drug use)
School speech? Reasonably related to legitimate pedagogical concern

3d. Public Employment
Private concern at work place or public concern pursuant to job duties? No protection.
Private concern outside as citizen? balancing

  1. Is restriction vague, overbroad, or prior restraint?
140
Q

Unprotected Speech (7 Types)

A 
Incitement
Fighting Words
True Threats
Obscenity
Child Pornography
Defamation with actual malice
Commercial speech (false, misleading, or illegal)
141
Q

Partly Protected Speech

A

Defamation about public officials, public figures, or matters of public concern

Commercial speech (not false, misleading, or illegal)

142
Q

Protected Speech

A

All other speech

143
Q

Incitement

A

Test: advocacy of lawless action that is INTENDED to produce imminent lawless action and LIKELY to produce imminent lawless action

Mere advocacy of lawlessness if protected speech

144
Q

Fighting Words

A

Test: words likely to provoke an IMMEDIATE VIOLATE RESPONSE

145
Q

Political Patronage

A

Public employees may not be hired or fired based on political affiliation or expression

Exception: high-level policy makers and advisers

146
Q

Vagueness

A

Test: law is void for vagueness if PERSONS OF COMMON INTELLIGENCE cannot tell what speech is prohibited and what is permitted

147
Q

Overbreadth

A

Test: law is invalid as overbroad if it prohibits a substantial amount of speech that the government may not suppress

Third party standing is allowed (plaintiff whose speech may be censored raises a non-commercial speech claim on behalf of others whose speech may not be censored)

148
Q

Prior Restraints: Definition

A

Licensing schemes (e.g. permits) or injunctions that prevent speech BEFORE it occurs, rather than punishing speech afterwards

149
Q

Prior Restraints Disfavored

A

Historically, prior restraints greatly disfavored.

No special tests, but harder for government to win.

150
Q

Prior Restraints: Licensing Systems

A

Must have sufficiently definite standards to cabin discretion, as well as prompt judicial review of denials

151
Q

Press, Expressive Associations, Corporations, & Unions

A

generally treated THE SAME as other speakers

152
Q

Government Speech

A

Generally NOT subject to 1st Amend.

1st Amend. does not constrain government from espousing whatever views and policies it wishes.

1st Amend. does constrain government’s ability to compel private parties to convey message

153
Q

Free Exercise Clause: Religion

A

Traditional religion as well as beliefs that play role in the life of the believer similar to the role that religion plays in the life of traditional adherents.

To decide religion claims, government (including courts) may inquire into SINCERITY of religious beliefs, but not their truth

154
Q

Free Exercise Test: Discriminatory Laws

A

Strict Scrutiny

Not neutral facially w/r/t religion

Not generally applicable but targeted at religion generally or a religion in particular

155
Q

Free Exercise Test: Neutral Laws of General Applicability

A

NOT subject to Free Exercise Clause

Exception: religious or organizations that are exempt from employment discrimination suits by their ministers

156
Q

Establishment Clause: Neutrality Test

A

Gov’t must remain neutral w/r/t religion, neither favoring nor disfavoring it

157
Q

Establishment Clause: Coercion Test

A

Gov’t may not DIRECTLY or INDIRECTLY coerce individuals to exercise (or refrain from exercising) religion

158
Q

Establishment Clause: Lemon Test

A
  1. Primary purpose is secular
  2. Primary effect is secular
  3. No excessive entanglement between government and religion
159
Q

Establishment Clause: Endorsement Test

A

From standpoint of rxble and informed observer, government must not appear to endorse or disapprove of religion, making it seem relevant to a person’s standing in the political community

160
Q

Establishment Clause: History and Tradition

A

Sometimes, a state religious display or practice is a tolerable acknowledgement of the role religion has played in the history and tradition of the nation.

Note: it helps if the display or practice has been around for a while or is in a historical setting

161
Q

Public Schools: Personal Student Speech

A

Cannot be censored absent evidence of substantial disruption

EXCEPTION: speech promoting illegal drug use does not require showing any disruption

162
Q

Public Schools: School Speech

A

(including co-opted student speech)

Can be censored if reasonably related to a legitimate pedagogical concern

163
Q

Public Employment: Public Employee Speech Unprotected

A

Private concern at work place (e.g. office gossip)

Public concern, but pursuant to official duties (e.g. TPS report, closing argument)

164
Q

Public Employment: Public Employee Speech Protected

A

Private concern outside workplace (e.g. dinner conversations)

Public concern, as citizen rather than as pursuant to official duties, at or outside workplace (e.g. political chat at lunch)

165
Q

Type of Government Property: Traditional Public Forum

A

Description: open to public as free speech zone “from time immemorial”

Ex: parks, streets, sidewalks

Note: cannot be undesignated as a public forum

166
Q

Type of Government Property: Designated Public Forum

A

Description: open by policy or purposeful practice as free speech zone

Ex: college kiosks, college email systems

Note: can be undesignated as public forum

167
Q

Type of Government Property: Limited Public Forum

A

Description: reserved for particular topics or speakers

Ex: courtroom, university classroom, university student activity fund

Note: sometimes called non-public forum

168
Q

Type of Government Property: Non-public Forum

A

Description: not opened by tradition or designation as free speech zone.

Ex: post offices, DMVs, airports

Note: catch-all category

169
Q

Type of Government Property: Levels of Scrutiny

A

Public forums
Content based: SS
Content neutral: IS

Limited/Non-public forums
Rxble given nature of forum
SS if viewpoint based

170
Q

Viewpoint-Based Restrictions

A

Content based restriction that limits speech to one side of subject

171
Q

Test for Protected Public Employee Speech

A

Balance speech value v. state interest in efficient and effective operation.

Bar Exam (15 decks)

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