Constitutional Law Flashcards
Con: What are the two types of restrictions on free speech? What level of scrutiny?
- Content-Based (subject matter & viewpoint): strict scrutiny
- Content-Neutral: intermediate scrutiny
Con: What level of scrutiny for court orders suppressing speech?
Strict
Con: What level of review for license requirement for speech?
Must be an important reason for licensing and clear criteria that leaves virtually no discretion to the licensing authority.
Con: When is a law regarding speech unconstitutionally vague?
When a reasonable person can’t tell what speech is permitted and what is prohibited
Con: When is a law regarding speech unconstitutionally overbroad?
When it restricts substantially more speech than the Constitution allows to be regulated
Con: How are fighting words laws characterized?
Unconstitutionally vague and overbroad
Con: Under what circumstances can the government regulate conduct that has a communicative message?
Where the government has an important interest that is not related to suppressing the message and the impact on communication is no greater than nec’y to achieve the gov’t purpose.
Flag Burning - protected // Nude dancing - protected // Burning cross - protected, unless intent to threaten
Con: Can the government compel speech?
No, that is unconstitutional
Con: What is standard with respect to communication that may excite illegal activity?
Unprotected if there is a substantial likelihood of imminent illegal activity and speech is directed at causing that activity
Con: What type of “obscene” speech is less protected?
- Appeals to prurient interest
- patently offensive under the law prohibiting it
- Taken as a whole, the material lacks serious redeeming artistic, literary, political or scientific value
Con: What is rule on zoning ordinances and adult bookstores / movie theaters?
Gov’t is permitted to use zoning to regulate their location
Con: What is level of scrutiny for restricting commercial speech? What are the exceptions?
Intermediate: Gov’t regulation must be narrowly tailored to serve an important gov’t interest. Exceptions for:
- False/Deceptive ads
- Ads for illegal activities
- Professional advertising / practicing under trade name
- Prohibiting atty’s from in person solicitation of clients for profit
Con: What is a public official / politician / public figure (e.g., celebrity) required to show in order to recover in a defamation action?
- Statement was false
- Made with actual malice or reckless disregard for the truth
Con: What is a private figure required to show in order to recover in a defamation action that relates to a matter of public concern?
- Statement was false
- Defendant was negligent
- Punitive damages require actual malice
Con: What is a private figure required to show in order to recover in a defamation action that DOES NOT relate to a matter of public concern?
- Statment was false
- Defendant negligent
- Don’t need actual malice to recover punitive damages
Con Law: Is speech of a gov’t figure in the performance of their duties protected?
No
Con: What is a public forum, and what type of speech regulation is permitted?
- Gov’t property that are constitutionally required to be made available for speech: sidewalks and parks are classics
- Regulations must be neutral as to subject matter and viewpoint
- Otherwise, a special form of strict scrutiny: must be a time/place/manner regulation that serves an important gov’t purpose and leaves available open adequate alternative places for communication
Con: What is a designated public forum, and what type of speech regulation is permitted?
- Properties that the gov’t COULD close to the public but chooses not do (e.g., schools)
- Same rules as public forums apply
Con: What is limited public forum, and what type of speech regulation is permitted?
- Gov’t properties that are limited to certain groups or dedicated to the discussion of only some subjects
- Gov’t CAN regulate speech as long as the regulation is reasonable and viewpoint neutral.
Con: What is a non-public forum, and what type of speech regulation is permitted?
- Gov’t properties that it can and does close to speech (e.g., areas outside prisons, post office, airports, polling places)
- Gov’t CAN regulate speech as long as the regulation is reasonable and viewpoint neutral.
Con: What is the standard of review for laws that prohibit people from gathering as a group?
Special form of strict scrutiny: government must demonstrate that the regulated actor actively affiliated with the group, knows of its illegal activities, and joined with the specific intent of furthering those activities.
Con: What is standard on disclosure of group membership?
Strict scrutiny, if the disclosure would chill association
Con: Can government prohibit a group form discriminating?
Yes, unless that interferes with intimate association (e.g., small dinner party) or expressive activity (e.g., neo nazi party)
Con: What is a key limit on a person’s right to invoke the free exercise clause?
Free Exercise clause cannot be used to challenge a neutral law of general applicability
Con: Can gov’t hold religious institutions liable for who they choose to be their ministers?
No, the Free Exercise Clause forbids that
Con: In what circumstances will a law be struck down under the Establishment Clause?
If it fails any of the three SEX elements:
- Law must have a secular purpose
- Effect of the law cannot advance or inhibit religion
- Cannot be excessive government entanglement with religion
Con: What standard of review for gov’t discrimination against religious speech or among religions?
Strict scrutiny
Con: can gov’t fund religious schools?
Yes, as long as funding isn’t used for religious instruction.
Con: What is the central question in an equal protection fact pattern?
Is there adequate justification for the government’s differing treatment of people?
Con: What is the analytical framework for an essay question on equal protection?
- What is the classification?
- What is the level of scrutiny?
- Does the government’s action meet that requirement?
Con: To which sovereigns does equal protection apply?
Equal protection rights apply directly to state and local governments through the 14th Amendment. They apply indirectly to the federal government under the due process clause of the 5th Amendment.
Con: What level of scrutiny for race / national origin classification? How do you demonstrate violation?
- Strict
- Face of the statute OR
- If facially neutral, discriminatory INTENT and discriminatory IMPACT
Con: What level of scrutiny for classifications that BENEFIT racial minorities?
- Strict
- Numerical set asides require proof of past discrimination
- Educational institutions may use race as one factor in admissions decisions - but they must demonstrate there was no race neutral alternative
Con: What standard of review for gender classification? How proven?
-intermediate scrutiny
-gov’t regulation is only permitted if there is an exceedingly persuasive justification
-face of the statute OR
if facially neutral, discriminatory INTENT and discriminatory IMPACT
Con: what is standard of review for alienage classification?
- strict, when applied against non-US citizens & undocumented immigrant children
- rational basis if classification relates to democratic process and self-gov’t (e.g., juries, voting, being a teacher/police offer/probation officer)
Con: What is standard of review for non-marital children?
intermediate scrutiny
Con: What are five classifications that are only subject to rational basis review?
Age // Disability // Wealth // Economic Regulation // Sexual Orientation
Con: What is the central question / two standards to write in a procedural due process fact pattern?
Has the government followed adequate procedures in depriving someone of life, liberty or property? A deprivation of liberty occurs when a person loses a significant freedom granted by the Constitution or by statute. A deprivation of property occurs where the person has an entitlement that is not fulfilled, which exists if there is a reasonable expectation of continuing receipt of a benefit.
Con: what process is required to satisfy procedural due process?
Three part test, in which the court must balance:
- the importance of the interest to the individual
- the ability of additional procedures to increase the accuracy of the fact-finding against an indvidual
- gov’t’s interest
Con: What is the general rule of the Takings Clause?
The 5th Amendment prohibits the government from taking property without paying just compensation. Property can be taken by a possessory (or physical) taking or a regulatory taking, which occurs when the government leaves no economically feasible alternative use of the applicable property.
Con: What must government show to justify the burden it imposes with respect to a taking?
Benefit that is roughly proportional to that burden.
Con: Can owner challenge a takings claim if the regulation predates their ownership?
Yes
Con: what is the standard of review for violation of the contracts clause?
intermediate scrutiny - only applies to state and local gov’ts - and has special phrasing:
- does the legislation substantially impair a party’s rights under an existing contract?
- If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public purpose
Con: what is the standard of scrutiny for a state or local gov’ts interference with a GOV’T contract?
strict
Con: What standard of review for right to privacy, and what are the key examples?
-Strict
Marry // Procreate // Custody of Children // Keep Family Together // Parents re: Parenting Decisions // Purchase/Use Contraceptives // Private Consensual Homosexual Activity // Refuse Medical Treatment
Con: What is standard of review for right to privacy’s protection of abortion rights?
- Prior to Viability: Cannot prohibit and it can only regulate abortion in a manner that does not place an undue burden on the right
- After Viability: May prohibit abortions unless nec’y to protect a woman’s life or health
- Spousal consent and notice is not constitutional
Con: What is general rule of federal judicial power?
Federal courts have power to hear cases and controversies, which requires that the case be justiciable. Jusiticiability, in turn, has four elements:
- Standing
a. Specific personal injury
b. Causation and redressability
c. No third party standing (except for lmtd exceptions) - Ripeness
- Mootness (dismiss if injury ends after filing, unless class action or it can be repeated and evade review)
- Restriction against cases implicating political questions.
Con: What are the four political questions?
- cases arising under republican form of gov’t clause
- challenging president’s conduct of foreign policy
- challenges to impeachment and removal
- challenges to partisan gerrymandering
Con: Over what cases does supreme court have original and exclusive jurisdiction?
Cases between state governments
Con: what is the general rule of sovereign immunity? What are the exceptions?
Lower federal courts cannot hear claims against state governments. Exceptions:
- Waiver
- Suits under federal laws adopted under Section 5 of the 14th Amend (i.e., Title __ cases)
- Bankruptcy
Con: May lower federal courts enjoin state court proceedings?
No, under the doctrine of abstention.
Con: What is general rule of federal legislative power?
Congress must have express or implied authority to act.
Con: What is the general rule of the commerce power?
Under Lopez, Congress has authority to legislate interstate commerce, which includes: (i) the people and things in interstate commerce, (ii) the channels of interstate commerce, and (iii) activities that have a substantial effect on interstate commerce.
Con: What is general rule of Tenth Amendment?
Federalism. Powers not granted to the federal government, or prohibited to the states, are reserved to the states or the people.
Congress cannot compel state legislative or regulatory activity. But note that it is permitted to condition grants of federal spending if related / proportional / not unduly coercive.
Con: What is the general authority granted to Congress under Section 5 of the 14th Amendment?
Congress is permitted to act to prevent or remedy violations of rights recognized by the court. Such laws must be proportionate and congruent to remedying constitutional violations.
Con: is there any limit on congress’s ability to delegate powers?
No
Con: treaty / executive agreement rules?
Treaty: effective when ratified by congress. Trumps conflicting state laws and earlier federal statutes.
Exec. Agmt.: effective when signed by president. Trumps conflicting state laws, but not federal statutes.
Con: What are two ways federal law can preempt state laws? What are standards?
Under the Supremacy Clause of Article 7, federal law is the supreme law of the land and trumps state laws.
- Express preemption occurs where federal law expressly preempts state and local laws in the text of the statute.
- Implied preemption occurs where law is silent and (i) state and federal laws are mutually exclusive, (ii) state law impedes a federal objective, or (iii) congress evinced a clear intent to preempt state/local law in its legislative history.
Con: What is the general rule of the dormant commerce clause?
Under the dormant commerce clause, a law that burdens interstate commerce is not permitted unless it is necessary to achieve an important government purposes.
Con: What is the general rule of the Privileges and Immunities Clause of Article 4?
Under the privileges and immunities clause of Article 4, a state may not discriminate against the citizens of another state with respect to the privileges and immunities it offers. Note, protects fundamental / important economic activities.
If the law discriminates with respect to a person’s ability to earn a livelihood, it must be necessary to achieve an important government purposes.
