Constitutional Law Flashcards
1
Q
What is the source of judicial power?
A
Article III
2
Q
How is judicial power limited?
A
Limits:
- Actual cases and controversies
- Political question doctrine
- Sovereign immunity
- Abstention
- SCOTUS special rules
3
Q
What is the doctrine that determines whether an actual case or controversy exists?
What does it depend on?
A
Doctrine of justiciability depends on:
- What the lawsuit requests (no advisory opinions)
- When when the lawsuit is brought (ripe and not moot)
- Who brings the lawsuit (someone with standing)
4
Q
What are advisory opinions?
A
Federal court opinions that would lack either:
- An actual dispute between adverse parties
- Any legally binding effect on the parties
5
Q
Would it be an advisory opinion if:
Secretary of State asks SCOTUS for an opinion regarding the meaning of federal treaties and laws?
A
YES
(no actual dispute)
6
Q
Would it be an advisory opinion if:
Plaintiff sues at the defendant’s request, and the defendant finances and directs the lawsuit?
A
YES
(no adverse parties)
7
Q
Would it be an advisory opinion if:
Federal law allows veterans to file pension claims in federal court, but gives the Secretary of War the power to ignore court decisions?
A
YES
(no legally binding effect)
8
Q
Would it be an advisory opinion if:
A firm subject to tax seeks a declaratory judgment on the constitutionality of the tax?
A
NO
9
Q
When is a controversy not ripe?
A
Pre-enforcement review of laws (i.e., declaratory judgment actions) are generally not ripe, unless both:
-
Substantial hardship in absence of review
- The more the better
-
Issues and record are fit for review
- The more legal than factual the better
10
Q
Would a case be ripe if:
Plaintiff seeks declaration on the constitutionality of an anti-contraceptive law not enforced in 80 years?
A
NO
(no substantial hardship, because no threat of enforcement)
11
Q
Would a case be ripe if:
Drug firms seek declaration that FDA lacked authority to require generic names on all drug labels and ads, where compliance would be extremely expensive and non-compliance would result in serious criminal and civil penalties?
A
YES
(substantial hardship, and more legal than factual)
12
Q
When is a controversy moot?
A
A case is not moot if:
- In a case for declaratory and injunctive relief:
- The challenged law or conduct continues to injure
- In a case for damages:
- Plaintiff is not made whole
Exceptions:
- Injury has passed, but:
- It is capable of reptition, yet evades review because of inherently limited duration
- Defendant may restart challenged activity at will
- Some other member of a class action suffers an ongoing injury
13
Q
Would a case be moot if:
Inmate suing to change prison condition completes sentence?
A
YES
(no more injury)
14
Q
Would a case be moot if:
Pregant woman challenging abortion restriction delivers?
A
NO
(capable of reptition yet evades review because of inherently limited duration)
15
Q
Would a case be moot if:
Strip club that city sought to close closes, and owner retires?
A
NO
(defendant may restart at will)
16
Q
What are the elements of standing?
A
- Injury
- Causation
- Redressability
17
Q
For purposes of standing, what constitutes injury?
A
Almost any harm, but not:
- Ideological (i.e., political) objections as citizen or taxpayer
- General grievances as citizen or taxpayer
Exceptions:
- Taxpayers have standing to challenge their tax liability
- Citizens have standing to challenge congressional spending (but not executive) in violation of the Establishment Clause
18
Q
For purposes of standing, when is the injury required to occur?
A
Injury must either:
- Have already occurred
- Will imminently occur
19
Q
For purposes of standing, who must suffer injury?
A
The plaintiff must personally suffer injury (i.e., no third-party standing)
Exceptions:
-
Close relationship (e.g., parent-child)
- P injured
- P unable or unlikely to sue
- 3P can adequately represent P
-
Organization on behalf of members (e.g., NAACP)
- Members have standing
- Members’ injury related to organization
- Members’ participation not required
-
Free speech overbreadth
- __Substantial overbreadth in sweep of law
- Not commercial speech
20
Q
Does the third-party have standing if:
Doctor challenging abortion law raising claim of patient?
A
YES
(close relationship)
21
Q
Does the third-party have standing if:
Non-custodial parent without decisionmaking authority challenging flag salute on behalf of child?
A
NO
(cannot adequately represent P)
22
Q
Does the third-party have standing if:
Publisher of obscene website challenging internet indency ban on behalf of those with non-obscene websites?
A
YES, but only if challenging non-commercial free speech
(free speech overbreadth)
23
Q
Does a legislator have standing if:
Challenging tie-breaking vote that nullified their vote?
A
YES
(sufficiently personal)
24
Q
Does a legislator have standing if:
Challenging line item veto that gave President power to alter legislation passed by Congress?
A
NO
(not sufficiently personal because injures entire body of Congress)
25
How do you satisfy the causation requirement for standing?
P must show that the injury is _fairly traceable_ to D
(i.e., not too many links in chain between D and injury)
26
How do you satisfy the redressability requirement for standing?
P must show that a favorable decision will _remedy the harm_
(i.e., through money damages or injunction)
27
What is the political question doctrine?
What are examples of political questions (6)?
Federal courts will not decide political questions - i.e., questions:
* Committed by Constitution to political brances
* Incapable of judicial resolution
* Inappropriate for judicial resolution
Examples
1. _Guarantee clause_ challenges to state's government as not republican
2. _Foreign affairs_ challenges to President's conduct of foreign policy and command
3. _Impeachment process_ challenges to procedures used by Senate to remove officials
4. _Partisan gerrymandering_ challenges to drawing election districts on a partisan basis
5. _Qualifications_ of members of Congress
6. _Seating of delegates_ at national political convention
28
Under the doctrine of soverign immunity:
Who is barred?
Who is not barred?
Sovereign immunity bars _states_ from being sued in _federal or state courts_
It does not bar:
* _State officers_ from being sued for either:
* _Injunctive relief_
* _M__oney damages_ from their own pocket
* _Local governments_ from being sued anywhere
29
Under the doctrine of soverign immunity:
What are the exceptions?
1. _Waiver_
2. Suits brought by _other states_
3. Suits brought by the _federal government_
4. _Bankruptcy_ proceedings
5. _Clear abrogation_ (repeal) by Congress under 14A powers to prevent _discrimination_
30
What is abstention?
Federal courts _decline to decide_ a federal constitution claim that turns on an _unsettled question of state law_
Federal courts _decline to enjoin_ pending _state judicial or administrative proceedings_
31
With regard to SCOTUS, what is the final judgment rule?
SCOTUS only hears a case if there was a _final judgment_ by either:
* _H__ighest state court_ capable of rendering a decision
* _Federal_ court of appeals
* _Three-judge_ district court
32
With regard to SCOTUS, what is Independent and Adequate State Grounds (IASG)?
SCOTUS will not review a _federal question_ if the state court decision _rests on a state law ground_ that is both:
* Independent (i.e., separate)
* Adequate (i.e., sufficient, legitimate)
(in other words, a state law ground is dispositive, regardless of the federal question)
33
What is the source of legislative power?
Article I, Sec. 8
34
How is legislative power limited?
It is limited to the _enumerated powers_
35
Does Congress have the general police power to pass laws?
No, unless:
* Federal land
* Indian reservations
* District of Columbia
36
What does the necessary and proper clause do?
It is not a basis for legislative power. Rather, it allows Congress to choose _any rational_ means to carry out an enumerated power, so long as that is not prohibited by the Constitution
37
What are examples of Congress' enumerated powers?
* Taxing and spending
* Regulate interstate commerce
* Citizenship
* Bankruptcy
* Federal property
* Patents and copyright
* Post offices
* Coining money
* Declaring war
* Raising and supporting armies
38
What is Congress' taxing and spending power?
What are the restrictions?
Congress can tax/spend to provide for the _general welfare_
Restrictons:
* Any strings on spending must:
* Relate to the purpose of spending
* Not violate the Constitution
E.g., cannot condition school spending on highway speed limits, or any spending on suppresion of government criticism
39
What is Congress' commerce power?
What are the limits?
Congress may regulate commerce:
* With foreign nations
* With indian tribes
* Among states
Limits:
* Cannot regulate _non-economic activity_ in area traditionally regulated by states
* Cannot _compel participation_ in commerce
* Even if lack of participation affects interstate commerce
40
Under the commerce clause, can Congress:
Ban discrimination at hotels and restaurants?
YES
| (substantial effect on IC in aggregate)
41
Under the commerce clause, can Congress:
Ban local cultivation and use of marijuana?
YES
| (substantial effect on IC in aggregate)
42
Under the commerce clause, can Congress:
Ban domestic violence against women?
NO
(non-economic activity traditionally regulated by states)
43
Under the commerce clause, can Congress:
Ban possessing gun within 1,000 feet of schools?
NO
(non-economic activity traditionally regulated by states)
44
Under the commerce clause, can Congress:
Mandate purchase of health insurance?
NO
(can't compel participation in commerce)
45
How can Congress prevent and remedy state discrimination?
* Commerce power (if applicable)
* 14A power to enforce equal protection
46
Can Congress delegate its power to:
Agencies
President
One chamber of Congress
Agencies
* YES, provided some _intelligible principle_ guides the agency's exercise of the power
President
* NO, line item veto is prohibited
* E.g., President can't make/overturn laws and avoid bicameralism and presentment
One chamber of Congress
* NO, legislative veto is prohibited
* E.g., one house can't make/overturn laws and avoid bicameralism and presentment
47
What is the speech or debate clause?
Members of Congress are immune from civil or criminal liability for their _legislative actions_
Legislative actions include:
* Speeches on floor
* Voting
* Committee reports
Legislative actions exclude:
* Bribes
* Tweets
* Town halls
* Speeches outside Congress
48
What is the source of executive power?
Article II
49
What are the domestic executive powers?
1. Execute or enforce laws
2. Appointment
3. Removal
4. Pardon
50
What are the foreign executive powers?
* War
* Treaties
* Executive agreements
51
What is the process for appointment of principal officers (i.e., ambassadors, federal judges, and officers - i.e., cabinet secretaries)?
1. President appoints
2. Either:
* Senate gives advice and consent by _majority vote_
* Recess appointment if recess of at least 10 days (valid until end of next Senate session)
52
What is the process for appointment of inferior officers (e.g., undersecretary of state, assistant attorney general, independent counsel)?
Congress may vest appointment power in:
* President
* Department heads
* Judiciary
53
What is the process for removal?
High-level executive officers
* President may remove _at will_
Other executive officers
* Congress may limit removal to _good cause_
Congress cannot remove executive officials except through the _impeachment process_
54
Who can the President pardon?
Anyone accused or convicted of a _federal crime_, unless the crime underlies impeachment by the House of Representatives
(Note: no civil pardons)
55
What are the executive branch's war powers?
Only _congress_ can declare war
But the President, as commander in chief, can deploy troops internationally to protect American lives
56
What is the executive branch's power/process with regard to treaties?
1. President negotiates
2. Senate approves by _2/3 vote_
3. Trumps existing and future state laws
4. Trumps existing (but not future) federal laws
57
What are executive agreements?
What is the executive branch's power/process with regard to executive agreements?
Agreements between the President and the head of another country
1. President negotiates
2. Trumps existing and future state laws
3. Trumps existing and future federal laws
58
What is the impeachment process?
1. House passes articles of impeachment by _majority vote_
2. Senate convicts by _2/3 vote_
3. Removal requires **_both_**
59
What are the President's immunities/privileges?
_Absolute immunity_ from any actions within responsibilities
_No immunity_ from actions prior to taking office
_Executive privilege_ protects confidentiality of communications
* Unless other government interests outweigh privilege
60
What are the different levels of the President's inherent (implied) powers?
* Highest
* Authorized by Congress
* Lowest
* Prohibited by Congress
* Twilight zone
* Neither authorized nor prohibited
61
What does the Tenth Amendment say with respect to federalism?
Powers that are neither granted to the Federal government, nor prohibited as to the states, are _reserved to the states_
62
Who has general police powers?
Reserved to the states
63
What is the anti-comandeering principle?
Congress cannot _compel_ states to enact or administer federal programs
E.g., requiring states to enact environmental regulations
64
Where is the supremacy clause in the Constitution?
What does it do?
Article VI
Makes federal law preempt inconsistent state and local laws
65
Explain the following types of preemption:
* Express
* Implied: Conflict
* Implied: Field
Express
* Congress expressly says that federal law preempts
Implied
* Conflict
* It is impossible to follow both federal and state law
* Field
* Extensive federal regulation indicates congressional intent to occupy the field
66
If federal law and state law conflict, but state law is more stringent, is there preemption?
No
67
If federal law and state law conflict, but state law is more lenient, is there preemption?
Yes
68
What is the dormant clause?
Prohibits state laws that discriminate or unduly burden interstate commerce
69
What is the privileges and immunities clause?
Prohibits state laws that discriminate against out of state US citizens with respect to their:
* Important commercial activities (i.e., livelihood)
* Fundamental rights
70
With respect to the dormant commerce clause:
Who is protected (i.e., plaintiff)
What is protected (i.e., claim)
Who is protected
* All out-of-staters
What is protected
* Interstate commerce
71
With respect to the privileges and immunities clause:
* Who is protected (i.e., plaintiff)
* What is protected (i.e., claim)
Who is protected
* US citizens (but not aliens or corporations)
What is protected
* Important commercial activities
* Fundamental rights
72
What is the test for the dormant commerce clause?
Discriminatory laws _favoring in-state over out-of-state_ commerce are invalid unless:
1. Necessary to achieve an important government purpose
2. Narrowly tailored (i.e., no less discriminatory alternative)
Non-discriminatory laws _applied both in-state and out-of-state_ are valid unless:
* Burden on interstate commerce clearly outweighs non-protectionist benefits
73
What are the exceptions to the dormant commerce clause?
* Congressional approval
* State is a market participant
74
What is the test for the privileges and immunities clause?
Discriminatory laws favoring in-state over out-of-state citizens are invalid unless:
1. Necessary to achieve an important government purpose
2. Narrowly tailored (i.e., no less discriminatory alternative)
NO EXCEPTIONS
75
When are state taxes invalid under the commerce clause?
When the tax are either:
* _Discriminatory_ taxes
* _Non-discriminatory_ taxes if no:
* Substantial _nexus_ between taxpayer and state
* Fair _apportionment_ to business done or benefits received in state
76
What does the privileges or immunities clause of the 14th Amendment do?
Preserves:
* Right to interstate travel (but not international travel)
* E.g., CA cannot limit benefits of new residents
* Right to petition the federal government
77
With respect to individual rights, what does the constitution apply to?
Government action (not private conduct)
78
What amendments are not incorporated?
* 3A - right to not have soldiers quartered in home
* 5A - right to grand jury indictment
* 7A - right to jury in civil cases
* 8A - right against excessive fines
79
When does a private party engage in state action?
When the private party performs a function done by the government both:
* Traditionally
* Exclusively
80
When does state involvement in private conduct amount to state action?
* Racial restriction enforced by state court
* State leases premises to business that discriminates
* State grants license to business that discriminates
* Voluntary associates of mostly public officials regulates
* State fails to protect person in custody from harm
81
What provisions govern procedural due process?
* 5A - applies to federal government
* 14A - applies to state and localities
82
What is the general rule regarding procedural due process?
An individual has a right to _fair process_ when the government acts to deprive him of _life, liberty, or property_
83
For purposes of due process, how do you determine if there was a deprivation?
_Intentional and reckless_, but not negligent conduct
84
What is liberty for purposes of due process?
Physical freedom
Constitutional and statutory rights
(not mere harm to reputation)
85
What is property for purposes of due process?
* Real property
* Personal property, tangible and intangible
* Government entitlement to which there is a r_easonable expectation of continued receipt_
86
If an individual is deprived, what process is due under procedural due process?
1. Notice
* Reasonably calculated to inform them of deprivation
2. Opportunity to be heard
* Pre-deprivation hearing, unless emergency
3. Neutral decision-maker
* No risk of bias
87
What are the different levels of scrutiny that SCOTUS applies?
* Rational basis
* Intermediate
* Strict
88
For rational basis scrutiny, what is the:
* Ends
* Means
* Burden
* Presumption
Ends
* Legitimate interest
Means
* Rationally related
Burden
* Challenger
Presumption
* Valid (i.e., gov't wins)
89
For intermediate scrutiny, what is the:
* Ends
* Means
* Burden
* Presumption
Ends
* Important state interest
Means
* Substantially related
Burden
* State
Presumption
* None
90
For strict scrutiny, what is the:
* Ends
* Means
* Burden
* Presumption
Ends
* Compelling state interest
* E.g., segregation, corruption, national security
Means
* Narrowly tailored
Burden
* State
Presumption
* Invalid (i.e., gov't loses)
91
What are the equal protection provisions?
* 5A - applies to federal government
* 14A - applies to states and localities
92
What are the steps for equal protection analysis?
1. Classification
2. Scrutiny
93
What are the classifications for strict scrutiny (i.e., suspect classifications)?
* Race
* National origin
* Alienage classifications by state generally
* Denial of fundamental rights to some
94
What are the classifications for intermediate scrutiny (i.e., quasi-suspect)?
* Gender
* Illegitimacy (i.e., born out of wedlock)
* Undocumented alien children by state
95
What are the classifications for rational basis scrutiny?
* Age
* Disability
* Wealth
* Alienage classifications by Congress
* Alienage classifications by state related to democratic governance
* All other classifications
96
How do you determine what a classification is?
* _Facial_ (i.e., is it facial classification?)
* _Disparate impact_ and _discriminatory intent_ (i.e., did it create an impact on a class with discriminatory intent?)
97
What level of scrutiny is applies to state classifications based on alienage (i.e., non-citizenship)?
Strict scrutiny
Exception:
* May require US citizenship for activities and positions _integral to democratic self governance_
* E.g., voting, holding office, being police, being teacher
* But not notary public
98
What level of scrutiny applies to gender classifications?
What does it uniquely require?
Intermediate scrutiny
Important interest requires _exceedingly persuasive justification_ (not role stereotype)
99
What is substantive due process involved with?
Unenumerated fundamental rights
100
What amendments protect substantive due process?
14A against states
5A against federal government
101
When is a right deemed fundamental?
When the right is either:
* Deeply rooted in this nation's history and tradition
* Implicit in the concept of ordered liberty
* (i.e., essential to freedom)
102
When is only substantive due process triggered, and when are both substantive due process and equal protection triggered?
Substantive due process only:
* Denying _everyone_ a fundamental right
Substantive due process and equal protection:
* Denying _some_ a fundamental right
103
Under substantive due process analysis, what level of scrutiny is applied for:
* Fundamental right
* Non-fundamental right
Fundamental right
* Strict scrutiny
Non-fundamental right
* Rational basis
104
Under substantive due process, what are the fundamental rights to which strict scrutiny is applied (7)?
1. Marriage
2. Procreation
3. Contraception
4. Custody, case, and upbringing of children
5. Living with extended family
6. Interstate travel
7. Voting
105
Under substantive due process, what is the one fundamental right to which a test other than strict scrutiny is applied?
What is that test?
Fundamental right: abortion
Test: undue burden
106
Under substantive due process, what are the non-fundamental rights to which strict scrutiny is applied (6)?
Definitely non-fundamental
1. Economic rights
2. Physician-assisted suicide
3. Education
Unspecified (but non-fundamental for bar purposes)
1. Private consensual adult sexual intimacy
2. Refusal of medical treatment
3. Right to bear arms
107
What is necessary to trigger strict scrutiny based on the fundamental right to marry?
Must be a _substantial interference_ (i.e., restrictions on age, proper identification, etc. are okay to protect the right)
108
What is necessary to trigger strict scrutiny based on the fundamental right to vote?
Must be a _substantial interference_ (i.e., restrictions on age, residency (but not more than 2 mo.), and citizenship are okay to protect the right)
Examples of substantial interference:
* Poll taxes
* Literacy tests
109
How do the population of voting districts have to be in relationship to eachother for:
State and local voting
Federal voting
State and local
* Must be _substantially equal_
Federal
* Must be _almost exactly equal_
110
What is the scope of a state's ability to regulate abortion at the following stages? What test is applied?
* Pre-viability
* Post-viability
Pre-viability
* Scope
* State can _regulate_ abortions to _protect mother's health_ or _life of fetus_
* Test
* No _undue burden_ (i.e., substantial obstacle) on access to abortion
Post-viability
* Scope
* State can _ban_ abortions unless necessary to _protect mother's life or health_
* Test
* None
111
What are examples of abortion regulations that are not an undue burden?
* Requiring a licensed physician
* Requiring informed consent
* Requiring 24-hour waiting period after informed consent
* Requiring parental consent for minor
* Banning partial-birth adoptions
* Not funding abortions
112
What are examples of abortion regulations that are an undue burden?
* Requiring spousal notification or consent
* Requiring extensive recordkeeping and reporting
113
What are the limits on takings?
The federal government and states may not take private property unless both:
1. For _public use_
2. For _just compensation_
114
What amendments impose limits on takings?
Federal government
* 5A takings clause
States
* 14A due process clause
115
What is a regulatory taking?
Regulations on use that not merely diminish the property but _leave no economically viable use_
116
What will satisfy the public use requirement for taking?
Any legitimate public use (i.e., rational basis review - very loose)
117
Can taking property from one private party and giving it to another satisfy the public use requirement for taking?
Yes, provided that the new user revitalizes the area
118
What satisfies the just compensation requirement for a taking?
FMV at the time of the taking
119
What are the three areas that deal with retroactive legislation?
1. Contract clause
2. Ex post facto laws
3. Bills of attainder
120
What does the contract clause say?
What's the applicable test?
No state can pass laws impairing the obligation of contracts
Test:
* _Private_ contract
* Substantial impairment of existing rights invalid unless:
1. Important government purpose
2. Reasonably related means
* _Public_ contracts
* Heightened scrutiny (intermediate or strict)
121
What is the rule regarding ex post facto laws?
Neither state nor federal government can pass legislation that retroactively alters criminal liability
122
What are the ex post facto categories that are invalid?
1. _Criminalizing_ acts that were innocent when done
2. _Making crimes greater_ than when committed
3. _Setting punishment greater_ than when act was done
4. _Reducing evidence required_ to convict from what was required at the time of the act
123
What is the rule regarding bills of attainder?
Neither state nor federal government can pass legislation that _designates particular individuals_ (i.e., by name or description) _for punishment_ without judicial trial
124
What is the freedom of speech analysis?
1. Is it speech?
2. Is the speech protected or unprotected?
* General restriction
* Public property
* Public school
* Public employment
3. Is the restriction vague, overbroad, or a prior restraint?
125
What level of scrutiny applies for the general restriction on freedom of speech?
Content-based restriction
* Strict scrutiny
Content-neutral restriction
* Intermediate scrutiny
126
What level of scrutiny applies for freedom of speech restrictions on public property?
* Public forum
* Follow general restriction approach
* Nonpublic forum
* Viewpoint based restriction
* Strict scrutiny
* Other restriction
* Reasonableness standard
127
What level of scrutiny applies for freedom of speech restrictions in public school?
* Student speech
* Pro drug use speech
* Restriction valid
* Other speech
* Must show substantial disruption
* School speech
* Reasonably related to legit pedagogical concern
128
What level of scrutiny applies for freedom of speech restrictions in public employment?
Private concern or pursuant to job duties
* No protection
Public concern
* Balancing test
129
What is speech?
Words
Symbols
Expressive conduct
130
What is expressive conduct?
Conduct that is:
* Inherently expressive
* Both:
* Intended to convey a message
* Reasonably likely to be perceived as conveying a message
131
What two categories receive only partial protection under freedom of speech?
Defamation about
* Public officials
* Public figures
* Matters of public concern
Commercial speech
* Not false
* Not misleading
* Not illegal
132
What categories receive no protection under freedom of speech?
* Incitement
* Fighting words
* True threats
* Obscenity
* Child pornography
* Defamation with actual malice
* Commercial speech if false, misleading, or illegal
133
What is incitement?
Advocacy of lawless action that is:
* _Intended_ to produce imminent lawless action
* _Likely_ to produce imminent lawless action
134
What are fighting words?
Words likely to _provoke_ an _immediate violent response_
135
What are true threats?
Words intended to convey to someone a _serious threat of bodily harm_
136
What is obscenity?
* Depiction of sexual conduct
* That _taken as a whole_
* By _contemporary_ standards:
* Appeals to the _purient_ interest in sex
* Is patently offensieve
* Lacks _serious social value_ by national standards
137
Can you have obscenity at home?
Yes
138
When can sexually explicit or indecent speech be "zoned"?
1. To protect children and unwilling adults from exposure
2. To prevent neighborhood crime and decay
3. Ample alternative must exist for the speech
139
What is child pornography?
Definition
* Depiction of children engaging in sexual conduct _whether or not obscene_
Note: in-home possession may be banned
140
When is defamation not banned?
When made _without actual malice_ about:
* Public officials
* Public figures
* Public concern matters
141
What is actual malice, and how must if be proven?
Proven by clear and convincing evidence, either:
* Knowledge of falsehood
* Reckless disregard of the truth
142
For purposes of defamation, who is a public figure?
* Someone holding or running for office
* A public employee in a position of public importance
* Public official
* Basically anyone who voluntarily puts themself out there
143
How do you determine whether a defamation claim is valid?
1. Identify the _plaintiff_ (i.e., public official, public figure, or private figure)
2. Identify the _subject matter_ of the defamation (i.e., public or private concern)
This determines whether you need to prove actual malice and what damages you may recover
144
What is the standard and what damages can be recovered if a defamation claim is against:
* Public official, public figure
* Regarding any matter
Standard
* Actual malice
Damages
* Any
145
What is the standard and what damages can be recovered if a defamation claim is against:
* Private figure
* Regarding public concern
Standard
* Actual malice
Damages
* If actual malice
* Presumed (i.e., statutory)
* Punitive
* If negligence
* Actual
146
What is the standard and what damages can be recovered if a defamation claim is against:
* Private figure
* Private concern
Standard
* No actual malice
Damages
* Any
147
What does commercial speech include?
What does it exclude?
Includes
* Ads and promotions of products and services
* Brand marketing (e.g., Nike swoosh)
Excludes
* Mere profit motive (e.g., NYT, WSJ)
148
What commercial speech is unprotected?
What is protected?
Unprotected
* False
* Misleading
* About illegal product or service
Protected
* All other commercial speech
149
What level of scrutiny applies to commercial speech?
Intermediate scrutiny:
* _Substantial government interest_ (e.g., consumer protection)
* _Narrowly tailored_ (reasonable fit, or perhaps least restrictive)
150
What are general speech restrictions?
What level of scrutiny applies?
Restrictions on _protected speech_ that are generally applicable (i.e., not limited to public property, public schools, or public employees)
Test
* Content-based
* Strict scrutiny
* Content-neutral
* Intermediate scrutiny
151
What is the difference between content-based and content-neutral speech restrictions?
Content-based
* Suppress speech because of the _message or harm_ that the message may produce (e.g., censorship)
Content-neutral
* Suppress speech for _reasons unrelated_ to the message
152
With content-based and content-neutral restrictions, what is the different meaning of "narrowly tailored"?
Content-based
* Least restrictive
Content-neutral
* No substantial overbreadth
153
For purposes of speech restrictions in public forums, what are the different types of government property?
* _Traditional_ public forum
* Cannot be undesignated as public forum
* _Designated_ public forum
* Can be undesignated as public forum
* _Non-public/limited_ public forum
* Catch-all category
154
What levels of scrutiny apply to speech restrictions in public forums?
Public forums (i.e., traditional or designated)
* Same as general restrictions:
* Content-based restriction
* Strict scrutiny
* Content-neutral restriction
* Intermediate scrutiny
Non-public/limited public forums
* Viewpoint-based
* Strict scrutiny
* Other
* Reasonableness test
155
What is the student speech test?
* Personal student speech
* Cannot be censored absent evidence of _substantial disruption_
* Exception: substantial disruption not needed if promoting _illegal drug use_
* School speech
* Can be censored if reasonably related to _legitimate pedagogical concern_
156
What is public employee speech is unprotected?
What is protected?
What is the test
Unprotected
* Either:
* Speech about _private concern_ (e.g., office gossip)
* Speech pursuant to _job duties_ (e.g., closing argument)
Protected
* Must be both:
* Speech about matters of _public concern_
* Not made pursuant to job duties
Test
* _Balance_ speech value against state interest in efficient operation of workplace
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What is the rule regarding political patronage?
What is the exception?
Public employees may not be _hired or fired_ based on political affiliation or expression
Exception: high-level policymakers and advisors
158
When is a speech restriction void for vagueness?
If persons of _common intelligence_ cannot tell _what speech is prohibited and what speech is permitted_
159
When is a speech restriction void for overbreadth?
When it prohibits a _substantial amount_ of speech that the government may not suppress
_Note_: exception for third-party standing under free speech overbreadth doctrine (i.e., third-party can raise non-commercial speech claim on behalf of those whose speech may not be censored even if his can be)
160
When is a speech restriction void for prior restraints?
What test applies?
When it prevents speech before the speech occurs, rather than punishing the speech afterwards
If _content-based restriction_, very strict scrutiny
Prior restraints are historically _disfavored_
161
What is required for licensing schemes (i.e., speech is conditioned on obtaining a license)?
Must have both:
* Sufficiently definite standards to _cabinet discretion_
* Prompt _judicial review_ of denials
162
What is the free exercise clause?
What can the government look at in deciding claims?
Claims involving traditional religion as well as beliefs that play a role in the life of a believer similar to that which religion plays a role
Scope of determination:
* Government can look into the _sincerity of beliefs_ but not the _truth of the beliefs_
163
What level of scrutiny is applies to free exercise claims?
* Discriminatory laws
* Strict scrutiny
* Neutral laws of general applicability
* Not subject to free exercise clause (i.e., gov't can impose such restrictions) unless:
* Restricting a religious organization's ability to discriminate against a minister (that is allowed)
164
What is the establishment clause?
What are the different tests used to see if it is violated?
Congress cannot make laws with respect to religion
Tests:
1. Neutrality test
2. Coercion test
3. Lemon test
4. Endorsement test
5. History and tradition test
165
What is the neutrality test under the establishment clause?
Government must remain neutral with respect to religion, _neither favoring nor disfavoring it_
166
What is the coercion test under the establishment clause?
Government may not _directly or indirectly coerce_ individuals to exercise or refrain from exercising religion
167
What is the lemon test under the establishment clause?
Violation if:
* _Primary purpose_ of the law is sectarian
* _Primary effect_ of the law is sectarian
* Law creates _excessive entanglement_ between government and religion
168
What is the endorsement test under the establishment clause?
From standpoint of _a reasonable 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
169
What is the history and tradition test under the establishment clause?
Sometimes SCOTUS has found that despite failing the other establishment clause tests, a state religous display or practice is a _tolerable acknowledgment_ of the role religion has played in the history and tradition of the nation
