Constitutional Law (Main Deck)* Flashcards

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1
Q

WHAT MUST YOU CONSIDER WHEN APPROACHING A CONSTITUTIONAL LAW QUESTION?

A

STEP 1: JUDICIAL AUTHORITY & REVIEW

A) Authority of the Courts

B) Jurisdiction

C) Judicial Review (Justiciable Case or Controversy)

STEP 2: TYPE OF CONSTITUTIONAL ISSUE

A) Separation of Powers

B) Relationship between Federal & State Powers (Federalism)

C) Constitutional Protections of Individual Rights

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2
Q

PRELIMINARY ISSUE:

RATIONAL BASIS REVIEW

(State the Rule)

A

Rule: Under rational basis review, the Plaintiff carries the burden of persuasion to demonstrate that a law is not rationally related to any legitimate government purpose.

Note: A law reviewed under the rational basis test will be deemed constitutional if there is any conceivable legitimate government purpose for the law and the law is reasonably related to achieving or furthering that objective.

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3
Q

PRELIMINARY ISSUE:

INTERMEDIATE SCRUTINY

(State the Rule)

A

Rule: Under intermediate scrutiny, the government carries the burden of persuasion to demonstrate that a law is substantially related to an important government purpose.

Note:

1) “Substantially related” means the law must be narrowly tailored to achieving the government’s objective.
2) The “Important government purpose” element requires that the government’s actual purpose be significant.

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4
Q

PRELIMINARY ISSUE:

STRICT SCRUTINY

(State the Rule)

A

Rule: Under strict scrutiny, the government carries the burden of persuasion to demonstrate that a law is necessary to achieve a compelling government purpose.

Note:

1) “Necessary” means the law must be the least restrictive means to achieving the government’s objective.
2) The “compelling government purpose” element requires that the government’s actual purpose be vital.

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5
Q

PRELIMINARY ISSUE:

WHAT IS THE DIFFERENCE BETWEEN THE NARROWLY TAILORED TEST & THE LEAST RESTRICTIVE MEANS TEST?

A

Rule: The narrowly tailored test is not as stringent as the least restrictive means test:

1) The narrowly tailored test requires that a law be designed to achieve the stated goal.
2) The least restrictive means test requires that there be no less restrictive way of achieving the stated goal.

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6
Q

JUDICIAL AUTHORITY & REVIEW:

FROM WHERE DO FEDERAL COURTS DERIVE THEIR AUTHORITY?

A

Article III ofthe United States Constitution vests the judicial power of the United States in the United States Supreme Court and provides for the creation of lower federal courts by Congress.

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7
Q

EXPLAIN THE JURISDICTION OF FEDERAL COURTS

A

Rule: Federal courts have jurisdiction over all cases that arise under the Constitution, federal laws, or federal treaties.

Supreme Court: The Supreme Court has original jurisdiction over:

1) Disputes between the United States and a state,
2) Actions by a state against the citizens of another state, AND
3) Cases involving ambassadors, public ministers, or consuls.

Note: The Supreme Court has exclusive jurisdiction only over disputes arising between two states. All other disputes can also be heard by lower federal courts.

Lower Federal Courts: The jurisdiction of the lower federal courts is determined by Congress and may be expanded, restricted, or modified through Congressional action. Lower federal courts have original jurisdiction over:

1) Disputes between citizens of different states,
2) Disputes between a United States citizen and a foreign country or citizen,
3) Issues arising under admiralty or maritime jurisdictions, AND
4) Cases involving the United States government.

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8
Q

JURISDICTION:

SUPREME COURT’S APPELLATE JURISDICTION

(State the Rule)

A

Rule: The Supreme Court has appellate jurisdiction to hear a case after the highest court of a state, a U.S. Court of Appeals, or a three-judge federal District Court panel has issued a final judgment on the case.

Note: Even if the procedural requirements are satisfied, the Supreme Court will have appellate jurisdiction to hear cases only if the U.S. Constitution, a federal law, or federal treaty is implicated.

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9
Q

JURISDICTION:

ADEQUATE & INDEPENDENT STATE GROUND DOCTRINE

(State the Rule)

A

Rule: Under the Adequate and Independent State Ground Doctrine, the U.S. Supreme Court does not have jurisdiction over the judgment of a state court that rests on both federal and state law if the state ground is:

1) Adequate to support the judgment, AND
2) Independent of federal law.

Note: A presumption exists that the Supreme Court has jurisdiction over judgments based on both federal and state law. The presumption will be overcome only if the state court explicitly states in its judgment that its decision rests on an independent state ground.

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10
Q

ABSTENTION

(Define & State the Rule)

A

Definition: Abstention is a federal court’s act of refraining from interfering with pending state court proceedings though the federal court has jurisdiction.

Younger Abstention: A federal court will not interfere with an ongoing state criminal prosecution unless the Defendant was prosecuted in bad faith, or other extraordinary circumstances exist.

Pullman Abstention: A federal court will abstain from hearing a case so that state courts can have the opportunity to settle an underlying state law question, the resolution of which may avoid the need to decide a federal question.

Note: Abstention is based on the principle that federal courts respect the sovereignty of states and the independence of state judicial systems.

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11
Q

JUSTICIABILITY:

JUSTICIABLE CASE OR CONTROVERSY REQUIREMENT

(State the Rule)

A

Rule: The Constitution limits the jurisdiction of federal courts to legitimate cases and controversies. Advisory opinions as to the constitutionality of a proposed law or regulation by the Supreme Court are forbidden.

Note: The four justiciability doctrines have been derived from Article Ill’s case or controversy requirement.

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12
Q

LIST THE 4 JUSTICIABILITY DOCTRINES

A

1) Standing
2) Ripeness
3) Mootness
4) Political Question

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13
Q

JUSTICIABILITY:

STANDING

(Define & State the Rule)

A

Definition: Standing is the issue of whether the Plaintiff is the proper party to bring a matter to the court for adjudication.

Rule: Two requirements generally must be met to establish a Plaintiffs standing:

1) The Plaintiff must have personally suffered an injury or be threatened with future injury, AND
2) The Plaintiff must reasonably allege that prevailing in the suit will redress or prevent the harm.

Note: To obtain injunctive or declaratory relief, the Plaintiff must show a likelihood of future harm.

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14
Q

STANDING:

TAXPAYERS & CITIZENS

(State the Rule)

A

Rule: Federal taxpayers generally do not have standing to challenge federal taxation or spending based solely on their status as taxpayers or U.S. citizens.

Exception: Standing is recognized if a taxpayer can establish a logical nexus between the Plaintiff’s status as a taxpayer and the claim. A logical nexus will be found where the challenged law:

1) Was passed under Congress’ Article I, Section 8 authority, AND
2) Violates constitutional limitations specifically imposed on the taxing and spending power.

Note:

1) This exception has been recognized by the Supreme Court only once, where the Court held a taxpayer had standing to challenge federal education spending by Congress as a violation of the establishment clause.
2) Citizens/taxpayers do not have standing to bring suit challenging discretionary executive branch expenditures.

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15
Q

STANDING:

THIRD PARTY

(State the Rule)

A

Rule: A Plaintiff generally does not have standing to bring suit on behalf of a third party.

Exception: Third-party standing is recognized when:

1) A special relationship exists between the Plaintiff and the injured third party, and the third party is unlikely to assert her own rights (e.g., Physician-Patient),
2) The third party would have difficulty asserting her own rights, OR
3) An organization is suing on behalf of its members and:
a) The members would have standing to sue,
b) The interests the organization seeks to protect are germane to its purpose,
c) Neither the claim asserted nor relief requested require individual participation, AND
d) The organization’s members are at risk of imminent and concrete harm.

Note: An organization must identify a specific harm its members will suffer to establish third-party standing. Generalized threats (e.g., to the environment) are not sufficient.

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16
Q

JUSTICIABILITY:

RIPENESS

(Define & State the Rule)

A

Definition: An issue is ripe when the facts of the case have matured to the point where judicial action is appropriate.

Rule: A claim is ripe for adjudication only if the impact ofthe law or regulation on the Plaintiff is sufficiently direct and immediate to render the issue appropriate for judicial review. To determine a claim’s ripeness for adjudication, courts look to:

1) The fitness of the issues and the record for judicial review, AND
2) The hardship to the parties of withholding court consideration.

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17
Q

JUSTICIABILITY:

MOOTNESS

(State the Rule)

A

Rule: A case will be dismissed as moot if events arising after the filing of a lawsuit terminate the injury or threat of injury to the Plaintiff.

Exception: A case will not be dismissed as moot if:

1) The wrong is capable of repetition, yet evading review, OR
2) The wrongful activity was voluntarily stopped by the Defendant and could be restarted.

Note: If an action becomes moot with regard to the named Plaintiff in a class action suit, the class will not lose standing as long as one member of the class remains injured or threatened with injury.

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18
Q

JUSTICIABILITY:

POLITICAL QUESTION

(State the Rule)

A

Rule: Under the Political Question Doctrine, federal courts will dismiss actions based on a political question as non-justiciable. A political question will be found if:

1) The issue has been committed to another branch of government by the Constitution,
2) Judicially manageable standards to decide the case on the merits do not exist and would be too difficult to create,
3) Judicial intervention would show insufficient respect for other branches of government, OR
4) Deciding the case would be impossible without engaging in policy decision-making.

Note: Common non-justiciable political questions include:

1) The republican form of government clause,
2) Challenges to the duration of war,
3) Challenges to presidential decisions regarding foreign affairs,
4) Challenges to political parties’ actions.

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19
Q

FROM WHERE DOES CONGRESS DERIVE ITS AUTHORITY?

A

Rule: Congress’ authority is derived from the Constitution’s granting of express powers and the courts’ reading of implied powers:

1) Express Powers: Powers specifically enumerated in the Constitution.
2) Implied Powers: Powers implied from the necessary and proper clause.

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20
Q

LIST THE MAJOR ENUMERATED & IMPLIED POWERS OF CONGRESS

A

Enumerated Powers (Art. I, §8):

1) Necessary & Proper Clause
2) Taxing & Spending Power
3) Patent & Copyright Power
4) Commerce Power
5) Establishing Federal Courts
6) War Powers
7) Bankruptcy Power
8) Postal Power
9) Power over Citizenship
10) Power to Coin Money, Fix Weights & Measures

Implied Powers:

1) Investigatory Power
2) Property Power

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21
Q

CONGRESSIONAL POWER:

NECESSARY & PROPER CLAUSE

(State the Rule)

A

Rule: The necessary and proper clause of Article I, Section 8 authorizes Congress to carry out its authority by any means not prohibited by the Constitution.

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22
Q

CONGRESSIONAL POWER:

TAXING & SPENDING POWER

(State the Rule)

A

Rule: Congress has broad power to tax for revenue-raising purposes, subject to the following conditions:

1) All indirect taxes (duties or excise tax) must be imposed uniformly among the states.
2) All direct taxes (those applied to people or property) must be apportioned among the states. AND
3) Export taxes are prohibited.

Note: The general welfare clause is a limitation on Congress’ power to tax and spend.

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23
Q

CONGRESSIONAL POWER:

USE OF THE TAXING & SPENDING POWER TO REGULATE

(State the Rule)

A

Rule: Courts will not question congressional motives or the regulatory effects of a tax if:

1) Congress has the power to impose the tax, AND
2) The tax will in fact raise revenue.

Note: Congress may use its power to tax and spend for regulatory purposes by placing conditions on qualifications for federal funding if:

1) Congress is acting in the public interest (i.e., general welfare of the people),
2) The conditions are expressly stated,
3) The conditions relate to the general welfare purpose of the spending program, AND
4) The spending is notfor an unconstitutional purpose (e.g., the money is not being used to discriminate).

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24
Q

CONGRESSIONAL POWER:

COMMERCE POWER

(State the Rule)

A

Rule: Under the Commerce Power, Congress may:

1) Regulate the channels of interstate commerce,
2) Regulate the instrumentalities of interstate commerce,
3) Regulate persons or things in interstate commerce, AND
4) Regulate activities that have a substantial effect on interstate commerce.
a) If the activity is economic, the substantial effect can be based on cumulative impact,
b) If the activity is non-economic, the substantial effect cannot be based on cumulative impact.

Note: Congress may not use its commerce power to compel a state to enact or enforce a federal regulation.

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25
Q

CONGRESSIONAL POWER:

WAR POWER

(State the Rule)

A

Rule: Congress has the power to declare war, raise and support the armed forces, and make laws governing the armed forces.

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26
Q

CONGRESSIONAL POWER:

BANKRUPTCY

(State the Rule)

A

Rule: Congress has the power to establish uniform laws
regulating bankruptcy throughout the United States.

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27
Q

CONGRESSIONAL POWER:

INVESTIGATORY POWER

(State the Rule)

A

Rule: Under the necessary and proper clause. Congress has an implied power to investigate any matter that falls within the legislative sphere

Note: This power includes the power to summon witnesses. If a witness refuses to appear, the witness may be cited with contempt and the matter forwarded to the Attorney General for prosecution.

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28
Q

CONGRESSIONAL POWER:

PROPERTY POWER

(State the Rule)

A

Rule: Congress has the power to enact laws regulating the territory and property of the United States.

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29
Q

WHAT POWER DOES CONGRESS HAVE UNDER THE 13th AMENDMENT?

A

Rule: Congress may regulate private behavior under the 13th Amendment to prevent racially discriminatory activity.

Note:

1) The 13th Amendment prohibits slavery and indentured servitude.
2) There is no state action requirement under the 13th Amendment.

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30
Q

WHAT POWER DOES CONGRESS HAVE UNDER THE 14TH & 15TH AMENDMENTS?

A

Rule: Congress has broad power to enforce rights recognized by the courts under the 14th and 15th Amendments Laws enacted to enforce these rights must be proportionate and congruent to remedying constitutional violations.

Note: Under the 14th or 15th Amendments, congress may not:

1) Create new rights. OR
2) Expand the scope of rights.

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31
Q

LIST 6 FEDERAL EXECUTIVE POWERS

A

1) Commander-in-Chief
2) Head of State
3) Appointment Power
4) Removal Power
5) Veto Power
6) Pardon Power

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32
Q

COMMANDER-IN-CHIEF

(State the Rule)

A

Rule: The President serves as commander-in-chief of the United State military.

Note: Pursuant to this power, the President may deploy American forces abroad without a declaration of war.

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33
Q

HEAD OF STATE

(State the Rule)

A

Rule: The President has the power to make treaties and enter into executive agreements with foreign nations.

Note: If the President signs a treaty, it must be ratified by two-thirds of the Senate to become law.

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34
Q

APPOINTMENT POWER

(State the Rule)

A

Rule: The President has the power to appoint ambassadors, federal judges, and officers ofthe United States.

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35
Q

REMOVAL POWER

(State the Rule)

A

Rule: The President has the power to remove with or without cause any executive appointee.

Exception: The President may not:

1) Remove federal judges, OR
2) Remove appointees in offices where the term is fixed by statute, unless good cause exists.

Note: Congress may limit removal if the office is one in which independence from the President is desirable. However, Congress can only do so with good cause.

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36
Q

VETO POWER

(State the Rule)

A

Rule: The Constitution requires the President to sign or veto federal legislation within ten days (excluding Sundays) of presentment of a bill by Congress. If the President does not sign the legislation:

1) And Congress is in session: The bill becomes law.
2) And Congress adjourns within ten days: The bill does not become law (i.e.. pocket veto).

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37
Q

PARDON POWER

(State the Rule)

A

Rule: The President may pardon persons accused or convicted of a federal crime. Under the Pardon Power, the President may:

1) Grant a full pardon (i.e., completely overturn a criminal conviction),
2) Commute a federal sentence (e.g., commuting a death sentence to life in prison),
3) Grant a conditional pardon (e.g., vacating a conviction but leaving a fine in place), OR
4) Pardon an entire class of people (e.g., pardoning all Vietnam draft-dodgers).

Note: The President does not have the power to pardon impeachments, civil judgments, findings of civil contempt, or state criminal convictions.

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38
Q

INTERBRANCH RELATIONSHIPS:

EXPLAIN CONGRESS’ ABILITY TO DELEGATE POWER

A

1) Congress can delegate legislative powers to the judicial or executive branches unless the power is exclusive to Congress.
2) Congress may not delegate executive power to itself.

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39
Q

INTERBRANCH RELATIONSHIPS:

WHAT ARE THE CONGRESSIONAL POWERS THAT CAN BE USED TO LIMIT OR RESTRICT THE EXECUTIVE?

A

1) Power to Impeach and Remove
2) Investigatory Power
3) Apportionment Power
a) Note: Under the Apportionment Power, Congress may direct the President to spend appropriated money.

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40
Q

INTERBRANCH RELATIONSHIPS:

LEGISLATIVE VETOES

(Define & State the Rule)

A

Definition: A legislative veto is a resolution by Congress to nullify or overturn an action by an agency ofthe executive branch.

Rule: Legislative vetoes are unconstitutional as an intrusion of executive authority.

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41
Q

INTERBRANCH RELATIONSHIPS:

IMPEACHMENT & REMOVAL

(State the Rule)

A

Rule: The President, federal judges, and officers ofthe Unites States may be impeached and removed for treason, bribery, or high crimes and misdemeanors. Removal ofthe individual from office requires:

1) Impeachment by the House of Representatives (requires a majority vote), AND
2) Conviction by the Senate (requires a two-thirds vote).

Note: Impeachment does not remove a person from office. If impeached by the House, that person must also be convicted by Senate. Only then will the official be removed from office.

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42
Q

INTERBRANCH RELATIONSHIPS:

WHAT ARE THE CONGRESSIONAL POWERS THAT CAN BE USED TO LIMIT OR RESTRICT THE JUDICIARY?

A

1) Congress has the power to establish and determine the jurisdiction of courts inferior to the Supreme Court.
2) Congress regulates the size of the federal courts, including the Supreme Court.
3) Congress may impeach members of the judiciary.

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43
Q

INTERBRANCH RELATIONSHIPS:

WHAT IS THE EXECUTIVE POWER THAT CAN BE USED TO LIMIT OR RESTRICT CONGRESS?

A

The President may veto legislative action.

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44
Q

INTERBRANCH RELATIONSHIPS:

EXECUTIVE PRIVILEGE

(State the Rule)

A

Rule: Under the Executive Privilege:

1) The President and executive officials may refuse to disclose information regarding presidential papers and conversations to Congress and the judiciary,
a) Note: This power is not absolute, but is held subject to other important government interests.
2) The President has absolute immunity to civil suits for any actions carried out while in office.

Note:

1) The Executive Privilege will not protect a President from criminal inquiries into acts carried out while in office.
2) The Executive Privilege extends to presidential aides.

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45
Q

INTERBRANCH RELATIONSHIPS:

TREATIES

(Define & State the Rule)

A

Definition: Treaties are agreements between the United States and a foreign country that are negotiated by the President and become effective when ratified by the Senate.

Rule 1: Treaties take precedence over conflicting state laws or executive agreements.

Rule 2: A conflict between a federal law and a treaty is resolved in favor of the last in time (i.e., the most recent).

Rule 3: The Constitution prevails over treaties.

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46
Q

INTERBRANCH RELATIONSHIPS:

EXECUTIVE AGREEMENT

(Define & State the Rule)

A

Definition: An executive agreement is an agreement between the United States and a foreign country that becomes effective when signed by the President and the head of a foreign nation.

Rule 1: Senate ratification of executive agreements is not required.

Rule 2: Executive agreements prevail over conflicting state laws.

Rule 3: The Constitution, federal statutes and treaties prevail over executive agreements.

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47
Q

INTERBRANCH RELATIONSHIPS:

LINE-ITEM VETOES

(Define & State the Rule)

A

Definition: A line-item veto is a veto that grants the President the power to veto selected provisions of Congressional bills.

Rule: Line-item vetoes are unconstitutional. The President must veto or sign the entire bill as presented by Congress.

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48
Q

INTERBRANCH RELATIONSHIPS:

WHAT IS THE EXECUTIVE POWER THAT CAN BE USED TO LIMIT OR RESTRICT THE JUDICIARY?

A

The President appoints the members of the judiciary with the advice and consent of the Senate.

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49
Q

INTERBRANCH RELATIONSHIPS:

WHAT IS THE JUDICIAL POWER THAT CAN BE USED TO LIMIT OR RESTRICT THE LEGISLATIVE AND EXECUTIVE BRANCHES?

A

The judiciary has the power of judicial review over the acts of the executive and legislative branches and may rule such acts unconstitutional.

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50
Q

RELATIONS OF FEDERAL & STATE POWERS:

WHAT SHOULD YOU CONSIDER WHEN THINKING ABOUT FEDERALISM?

A

1) Preemption
2) Intergovernmental Immunities
3) Dormant Commerce Clause
4) Privileges & Immunities Clause
5) Full Faith & Credit
6) Federal Police Power

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51
Q

PREEMPTION

(State the Rule)

A

Rule: The supremacy clause of Article VI provides that the
Constitution, and laws and treaties made pursuant to it,
are the supreme law of the land. Thus, if federal and state laws conflict, the federal law will preempt the state law.

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52
Q

EXPRESS PREEMPTION

(State the Rule)

A

Rule: Federal law will preempt any state law if Congress
explicitly states its intention that the federal law preclude
state legislation.

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53
Q

IMPLIED PREEMPTION

(State the Rule)

A

Rule: In the absence of express Congressional intent to preempt state law, implied preemption may be found if:

1) The state law impedes a federal objective,
2) Congress has signaled an intent to wholly occupy the field, OR
3) The state law sets a standard below a federal minimum standard.

Note:

1) States are generally free to enact more restrictive regulations than those passed by Congress, provided that doing so does not impede a federal objective.
2) Congressional intent to wholly occupy the field may be inferred from the wording ofthe legislation or from the legislative history of the law.

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54
Q

INTERGOVERNMENTAL IMMUNITIES:

FEDERAL IMMUNITY

(State the Rule)

A

Rule: States may not tax or regulate federal activities.

Exception: States may tax:

1) Independent contractors working for or with the federal government, provided the tax does not discriminate against federal contractors, AND
2) The income of federal employees.

Note: States may regulate federal land or territories only if Congress grants them the power to do so.

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55
Q

INTERGOVERNMENTAL IMMUNITIES:

STATE IMMUNITY

(State the Rule)

A

Rule: The 10th Amendment prohibits the federal government from taxing unique state activities or essential state government functions.

56
Q

SOVEREIGN IMMUNITY

(Define)

A

Definition: Sovereign immunity is the doctrine that prohibits federal courts from hearing suits against state governments without the state’s consent.

57
Q

WHEN CAN A STATE BE SUED IN FEDERAL COURT?

A

Rule: A state can be sued in federal court if:

1) A state explicitly waives immunity,
2) The federal government is bringing suit, OR
3) The suit is brought pursuant to federal laws adopted under Section 5 ofthe 14th Amendment.

58
Q

SOVEREIGN IMMUNITY:

SUITS AGAINST STATE OFFICERS

(State the Rule)

A

Rule: Lawsuits may be brought against state officers for:

1) Injunctive relief, AND
2) Money damages, if the state officers can be held personally liable.

Note: A lawsuit against a state officer will not be allowed if the state treasury will have to pay retroactive damages.

59
Q

10th AMENDMENT LIMITATIONS ON CONGRESS’ POWER

(State the Rule)

A

Rule: The 10th Amendment prohibits Congress from compelling state regulatory or legislative action.

Exception: Congress may:

1) Induce state governments to act by placing mandates on money grants to the states if the mandates are:
a) Expressly stated, AND
b) Related to the purpose of the spending program.
2) Prohibit harmful commercial activity by state governments.

Note: The 10th Amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’

60
Q

DORMANT COMMERCE CLAUSE

(State the Rule)

A

Rule: Where Congress has declined to regulate an area of interstate commerce, states may enact laws that regulate interstate commerce if the regulation does
not:

1) Place an excessive burden on interstate commerce, OR

2) Discriminate against interstate
commerce.

61
Q

DORMANT COMMERCE CLAUSE:

STATE LAWS THAT DISCRIMINATE AGAINST INTERSTATE COMMERCE

(State the Rule)

A

Rule: A state law that discriminates against interstate commerce will violate the dormant commerce clause and will be unconstitutional unless:

1) The law is necessary to achieve an important government purpose, AND
2) There are no less restrictive alternatives.

Note: A state law may be facially discriminatory or discriminatory in its effect.

62
Q

DORMANT COMMERCE CLAUSE:

MARKET PARTICIPANT EXCEPTION

(State the Rule)

A

Rule: A state may discriminate against out-of-state persons or businesses when a state acts as a market participant.

Note: Under the market participant exception, states may:

1) Choose to do business with in-state companies rather than out-of-state companies,
2) Grant lower tuition to in-state residents, AND
3) Require that private companies performing traditional government activities (e.g., trash hauling) within the state deal exclusively with state-owned and controlled repositories.

63
Q

DORMANT COMMERCE CLAUSE:

STATE LAWS THAT UNDULY BURDEN INTERSTATE COMMERCE

(State the Rule)

A

Rule: If a state law places an undue burden on interstate commerce, courts will balance the burden on commerce against the legitimate purpose of the state.

Note:

1) The government purpose must not be discriminatory.
2) As part of this determination, courts will inquire into the possibility of less restrictive alternatives to the state regulation.

64
Q

PRIVILEGES & IMMUNITIES:

WHERE IN THE CONSTITUTION WOULD YOU LOOK TO FIND THE THE PRIVILEGES & IMMUNITIES CLAUSES?

A

1) Article IV, Section 2, AND
2) Section 1 ofthe 14th Amendment.

Note: Aliens and corporations are not citizens and, thus, are not protected under the privileges and immunities clauses.

65
Q

PRIVILEGES & IMMUNITIES:

PRIVILEGES & IMMUNITIES CLAUSE OF SECTION 1 OF THE 14th AMENDMENT

(State the Rule)

A

Rule: The rights of citizens to the privileges of national citizenship are protected by the 14th Amendment. The privileges of national citizenship include:

1) The right to vote in federal elections,
2) The right to travel from state to state.
3) The right to enter public lands.
4) The right to petition Congress for redress.

66
Q

PRIVILEGES & IMMUNITIES:

PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV, SECTION 2 OF THE CONSTITUTION

(Define & State the Rule)

A

Definition: The privileges and immunities clause prohibits states from discriminating against nonresidents with respect to fundamental rights related to essential commercial activities (e.g., employment or earning a livelihood).

Rule: The citizens of each state are entitled to the privileges and immunities of the citizens in the several states.

Exception: A state law that discriminates against nonresidents with respect to fundamental economic activities will be valid if the state can show that:

1) Non-residents are the source of a problem the law is designed to remedy, AND
2) The law is narrowly tailored to remedying that harm.

67
Q

RELATIONS BETWEEN STATES:

FULL FAITH & CREDIT CLAUSE

(State the Rule)

A

Rule: The full faith and credit clause requires that courts in every state enforce the judgments of out-of-state courts if:

1) The out-of-state court had personal and subject matter
jurisdiction,

2) The judgment was on the merits, AND
3) The judgment was final.

68
Q

FEDERAL POLICE POWERS

(State the Rule)

A

Rule: Generally, policing authority is the states’ domain. Federal police power may only be exercised:

1) In Washington D C..
2) To exclude access to military bases.
3) On Indian reservations.
4) On federal lands and territories. AND/OR
5) To confiscate property from enemy aliens.

69
Q

INDIVIDUAL RIGHTS:

BILL OF RIGHTS

(Define & State the Rule)

A

Definition: The Bill of Rights is composed of the first ten amendments to the Constitution.

Rule: The Bill of Rights applies to the federal government, and most rights have been extended to the states through the 14th Amendment.

70
Q

WHICH BILL OF RIGHTS PROVISIONS ARE NOT INCORPORATED THROUGH THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT?

A

1) The 2nd Amendment right to keep and bear arms.
2) The 3rd Amendment right to not have a soldier quartered in one’s home,
3) The 5th Amendment right to grand jury indictment in criminal cases,
4) The 7th Amendment right to jury trial in civil cases,
5) The 8th Amendment right to be free from excessive fines.

Note: The 2nd Amendment right to bear arms was recognized as an individual right by the Supreme Court in 2008. However, the amendment has not been explicitly extended to state and local governments through the Due Process Clause ofthe 14th Amendment.

71
Q

INDIVIDUAL RIGHTS:

STATE ACTION REQUIREMENT

(State the Rule)

A

Rule: The Constitution protects only against state action. It does not protect against private actors’ conduct.

Note: State action may be found in private conduct where:

1) A private entity is carrying out an activity traditionally and exclusively performed by the state, OR
2) There is significant state involvement in the private discrimination.

72
Q

DUE PROCESS

(State the Rule)

A

Rule: Neither federal nor state governments can deprive a person of life, liberty, or property without due process of law.

Note: The right to due process derives from the 5th and 14th Amendments.

73
Q

WHAT IS THE DIFFERENCE BETWEEN PROCEDURAL DUE PROCESS & SUBSTANTIVE DUE PROCESS?

A

Procedural Due Process: Procedural due process ensures the fairness of the procedures government follows when it deprives a person of life, liberty, or property.

Substantive Due Process: Substantive due process ensures that the government is justified in depriving a person’s life, liberty or property interests.

74
Q

PROCEDURAL DUE PROCESS:

WHEN DOES A DEPRIVATION OF LIFE, LIBERTY, OR PROPERTY OCCUR?

A

Rule: A deprivation of life, liberty, or property occurs when state action negatively affects a person’s liberty or property rights:

1) Deprivation of liberty: The loss or restriction of a significant freedom provided by the Constitution or a statute.
2) Deprivation of property: The loss of property or an unfulfilled entitlement.

Note:

1) The loss of liberty or property as a result of negligent conduct by the government will not violate procedural due process.
2) The loss of liberty or property as a result of government conduct under emergency situations will not violate procedural due process.

75
Q

PROCEDURAL DUE PROCESS:

HOW DO COURTS DETERMINE IF GOVERNMENT PROCEDURES MEET THE REQUIREMENTS OF DUE PROCESS?

A

Rule: To determine if sufficient procedural safeguards have been provided, courts will look to:

1) The interest ofthe individual and the injury threatened by the official action,
2) Whether the risk of harm can be reduced with the introduction of additional procedural safeguards, AND
3) The government’s burden (fiscal and administrative) of introducing additional safeguards.

Note: Notice and a hearing are almost always required to meet the requirements of procedural due process.

76
Q

PROCEDURAL DUE PROCESS:

LIBERTY INTEREST -

SPECIAL CASES

A

American citizens held as enemy combatants: Requires notice of charges, representation by an attorney, and a meaningful hearing.

Commitment to a mental institution: Requires notice and a hearing for adults; only a hearing before a neutral fact-finder for children.

77
Q

DOES PROCEDURAL DUE PROCESS PROVIDE FOR AN INNOCENT OWNER DEFENSE AGAINST GOVERNMENT SEIZURE?

A

Rule: Procedural due process does not provide for an innocent owner defense against government seizure of property. If property is used in an illegal activity, the government may seize the property even if it has an innocent owner.

78
Q

IRREBUTTABLE PRESUMPTIONS

(State the Rule)

A

Rule: The use of certain irrebuttable presumptions by a court will violate procedural due process.

79
Q

SUBSTANTIVE DUE PROCESS:

ECONOMIC REGULATIONS

(State the Rule)

A

Rule: Generally, laws that regulate economic activity are subjected only to rational basis review.

80
Q

SUBSTANTIVE DUE PROCESS:

FUNDAMENTAL RIGHTS

(State the Rule)

A

Rule: To be valid, laws affecting a fundamental right must pass strict scrutiny.

Exception: Abortion employs a unique test, slightly less stringent than strict scrutiny.

81
Q

SUBSTANTIVE DUE PROCESS:

FUNDAMENTAL RIGHTS

(List Them)

A

1) Right to Vote
2) Right to Travel
3) Right to Privacy
a) Right to Use Contraception
b) Right to Abortion
c) Right to Keep the Family Together
d) Right to Marriage
e) Right to Control the Education of One’s Own Children
f) Right to Procreate
g) Right to Refuse Medical Treatment
4) 1st Amendment Rights

82
Q

FUNDAMENTAL RIGHTS:

THE RIGHT TO VOTE

(State the Rule)

A

Rule: The right to vote is a personal fundamental right, and laws restricting the right to vote must meet strict scrutiny.

Note:

1) One-person-one-vote requires that districts be roughly equal in population.
2) At-large elections are generally constitutional, unless there is a discriminatory purpose underlying the use of at-large districts.
3) Tallying uncounted votes in a presidential election without preset standards is unconstitutional.
4) Property or education requirements to vote and poll taxes will not meet strict scrutiny.

83
Q

FUNDAMENTAL RIGHTS:

THE RIGHT TO TRAVEL

(State the Rule)

A

Rule: The right to travel is a personal fundamental right, and laws restricting the right to travel must meet strict scrutiny.

Note:

1) Laws preventing people from moving into a state must meet strict scrutiny.
2) Lengthy residency requirements prior to obtaining state benefits must pass strict scrutiny.
3) A limitation on the right to foreign travel need only pass rational basis review.

84
Q

FUNDAMENTAL RIGHTS:

RIGHT TO ABORTION

(State the Rule)

A

Rule: The constitutionality of a law regulating abortion depends on the viability of the fetus:

1) Prior to viability: States may not ban abortions during the period before viability, but may regulate abortions if the regulation does not create an undue burden on the ability to obtain an abortion.
2) After viability: States may ban abortions if they provide an exception to protect the health or life of the mother.

Note:

1) It is unconstitutional for states to enact a complete ban on abortions.
2) Spousal consent and notification laws are unconstitutional.
3) Parental notice and consent laws for unmarried minors are constitutional if the minor can obtain the consent of a judge in lieu of parental consent.
4) Partial-birth abortion bans in the second trimester are constitutional if an exception for the life ofthe mother is provided.

85
Q

FUNDAMENTAL RIGHTS:

RIGHT TO MARRY

(State the Rule)

A

Rule: The right to marry is a personal fundamental right, and laws restricting the right to marry must meet strict scrutiny.

Note:

1) Strict scrutiny will be applied if a law creates a direct barrier to marriage.
2) Rational basis review will be applied if a law creates only an incidental barrier to marriage.

86
Q

FUNDAMENTAL RIGHTS:

RIGHT TO REFUSE MEDICAL TREATMENT

(State the Rule)

A

Rule: Competent adults have the right to refuse medical treatment, even life-saving medical treatment. However, a state may require clear and convincing evidence that a person wants the treatment terminated.

Note: The right to refuse treatment is an individual right, and the states have an important interest in safeguarding the sanctity of life. Thus, a state may prevent family members from terminating treatment for another.

87
Q

WHAT IS THE RELATIONSHIP BETWEEN SUBSTANTIVE DUE PROCESS & EQUAL PROTECTION?

A

Substantive Due Process:

1) Assures that a law will be fair and reasonable, AND
2) Applies when a law affects the rights of all persons with respect to a specific activity.

Equal Protection:

1) Assures that laws will not be applied differently to different people, AND
2) Applies where a law affects the rights of only some people with respect to a specific activity.

88
Q
A
89
Q

ARE FUNDAMENTAL RIGHTS TREATED DIFFERENTLY UNDER SUBSTANTIVE DUE PROCESS & EQUAL PROTECTION?

A

No. Laws affecting fundamental rights must meet strict scrutiny under both substantive due process and equal protection.

90
Q

EQUAL PROTECTION

(State the Rule)

A

Rule: Under the 14th Amendment, no state may deny to any person within its jurisdiction the equal protection of the laws.

91
Q

EQUAL PROTECTION:

APPLICATION TO THE FEDERAL GOVERNMENT

(State the Rule)

A

Rule: The principles of equal protection have been applied to the federal government through the due process clause of the 5th Amendment (i.e., substantive due process).

Note: Courts will only apply equal protection principles to the federal government when discrimination is so unjustifiable that it violates due process.

92
Q

EQUAL PROTECTION:

DISCRIMINATORY INTENT

(State the Rule)

A

Rule: To qualify a law for strict scrutiny, a Plaintiff must show the government acted with discriminatory intent. Discriminatory intent will be found if:

1) The law is discriminatory on its face.
2) The law is facially neutral but applied in a discriminatory manner. OR
3) The law is facially neutral, but discriminatory impact and discriminatory intent can be proven.

93
Q

EQUAL PROTECTION CLASSIFICATIONS:

RACE OR NATIONAL ORIGIN

(State the Rule)

A

Rule: Laws that discriminate on the basis of race or national origin must meet strict scrutiny. Discrimination on the basis of race or national origin will be found if:

1) The law is discriminatory on its face, OR
2) The law is facially neutral, but discriminatory impact and discriminatory intent can be proven.

Note:

1) Laws that benefit racial or ethnic minorities also must pass strict scrutiny.
2) Racial classifications may be used to remedy past intentional discrimination that has not yet been remedied.
3) Higher education institutions can use race as one of multiple factors in admissions decisions for the purpose of maintaining a diverse student body.
4) K-12 school districts cannot use a child’s race as the determining factor when assigning children to K-12 schools.
5) Seniority systems cannot be disrupted for affirmative action.

94
Q

EQUAL PROTECTION CLASSIFICATIONS:

GENDER CLASSIFICATIONS

(State the Rule)

A

Rule: Laws that discriminate on the basis of gender must meet intermediate scrutiny and have an exceedingly persuasive justification. Discrimination on the basis of gender will be found if:

1) The law is facially discriminatory on the basis of gender, OR
2) The law is facially neutral but there is both a discriminatory impact and a discriminatory intent.

Note: A law that benefits women will be upheld if the law is designed to remedy past discrimination that resulted in ascertainable differences in opportunity.

95
Q

EQUAL PROTECTION CLASSIFICATIONS:

ALIENAGE CLASSIFICATIONS

(State the Rule)

A

Rule: Generally, laws that discriminate on the basis of citizenship must meet strict scrutiny.

Exception: Laws may prevent non-citizens from:

1) Voting,
2) Serving on a jury,
3) Working as a police officer or probation officer,
4) Working as a teacher.

Note:

1) Federal legislation affecting undocumented aliens need only meet rational basis review due to Congress’ enumerated power to regulate citizenship and immigration.
2) The children of illegally present people have the right to primary and secondary education.
3) Non-citizens held as enemy combatants have the right to habeas corpus review in federal courts.

96
Q

EQUAL PROTECTION CLASSIFICATIONS:

ILLEGITIMATE CHILDREN

(State the Rule)

A

Rule: Laws that discriminate on the basis of legitimacy must meet intermediate scrutiny.

97
Q

EQUAL PROTECTION CLASSIFICATIONS:

LIST 4 CLASSIFICATIONS THAT MUST MEETONLY RATIONAL BASIS REVIEW

A

1) Age
2) Disability
3) Wealth
4) Sexual Orientation

98
Q

TAKINGS CLAUSE

(State the Rule)

A

Rule: Under the 5th Amendment’s takings clause, the government may confiscate private property for public use if the owner is provided just compensation.

99
Q

TAKINGS CLAUSE:

TAKING

(Define)

A

Definition: A taking may be possessory or regulatory:

1) Possessory Taking: Confiscation of property by the government.
2) Regulatory Taking: Government regulation that is so oppressive as to leave no reasonably economically viable use for the property.

Note:

1) A regulation causing a mere decrease in the value of property does not qualify as a taking.
2) A Plaintiff may challenge as a taking a regulation that was already in place when the Plaintiff purchased the property.
3) A temporary restriction on development is not a taking if the restriction is not in place for an unreasonably long period of time.
4) A regulation on development must be justified by a benefit proportionate to the burden imposed.

100
Q

TAKINGS CLAUSE:

PUBLIC USE

(State the Rule)

A

Rule: Ataking is for public use if the government acts with a reasonable belief that the use ofthe appropriated property will serve a public purpose.

Note:

1) A government may not take private property to benefit a particular class of identifiable individuals.
2) However, condemned property does not have to be made available to the general public. Taking is allowed as long as the use ofthe condemned property confers a benefit on the community (e.g., creation of jobs, increased tax revenue).

101
Q

TAKINGS CLAUSE:

HOW DO COURTS DETERMINE WHETHER THE COMPENSATION PROVIDED IS JUST?

A

Rule: Just compensation is based on the loss suffered by the owner, which is measured by the property’s market value at the time of the taking.

Note: The benefit bestowed upon the government or the entity to which the government assigns the property is irrelevant.

102
Q

CONTRACTS CLAUSE

(State the Rule)

A

Rule: Under Article I. Section 10, states are prohibited from impairing private contract rights.

Exception: A state law may impair private contract rights if:

1) The law is necessary to serve an important government interest, AND
2) The law is a reasonable and narrowly tailored means of promoting the important government interest.

103
Q

EX POST FACTO CLAUSE

(State the Rule)

A

Rule: Federal and state governments are prohibited from adopting laws that:

1) Criminally punish conduct that was lawful when it was carried out, OR
2) Increase the punishment for a crime after it has been completed

Note: An ex post facto law is a law that retroactively changes the legal consequences of acts already committed.

104
Q

BILL OF ATTAINDER

(Define & State the Rule)

A

Definition: A bill of attainder is a law that inflicts punishment on a specific person or easily ascertainable group of persons without a trial.

Rule: Federal and state governments are prohibited from passing bills of attainder.

105
Q

FREEDOM OF SPEECH:

STATE ACTION REQUIREMENT

(State the Rule)

A

Rule: For a restriction on speech to fall within the protection of the 1st Amendment, a governmental body must have affirmatively acted to restrict speech or endorsed or enforced a private actor’s restrictive action.

Note: Government speech is not protected by the 1 st Amendment.

106
Q

CONTENT-BASED RESTRICTION

(State the Rule)

A

Rule: Content-based restrictions must meet strict scrutiny. Two types of content-based restrictions are possible:

1) Subject-matter restrictions: Application ofthe law depends on the topic of the speech.
2) Viewpoint restrictions: Application of the law depends on the ideology or viewpoint of message

107
Q

CONTENT-NEUTRAL RESTRICTION

(Define & State the Rule)

A

Definition: Content-neutral restrictions are regulations that apply to all speech in a given context or setting, regardless of the content of the speech (i.e., subject
matter and viewpoint are immaterial).

Rule: Content-neutral restrictions must meet intermediate scrutiny.

108
Q

PRIOR RESTRAINT

(Define)

A

Definition: A prior restraint is a court order or licensing
scheme that prevents or prohibits speech.

109
Q

PRIOR RESTRAINT:

COURT ORDERS

(State the Rule)

A

Rule: Court orders suppressing speech must meet strict scrutiny.

Note: Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a procedurally proper court order is barred from later challenging it.

110
Q

PRIOR RESTRAINT:

LICENSING REGULATION

(State the Rule)

A

Rule: For a licensing regulation to meet strict scrutiny, the government must demonstrate:

1) An important reason for the licensing requirement, AND
2) The existence of clear criteria that give almost no discretion to the licensing authority to determine whether a license will be issued.

Note: Licensing schemes must also contain procedural safeguards such as judicial review and procedures to ensure prompt determination of license requests.

111
Q

VAGUENESS

(State the Rule)

A

Rule: A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what speech is allowed.

112
Q

OVERBREADTH

(State the Rule)

A

Rule: A law is unconstitutionally overbroad if it regulates substantially more speech than is necessary.

113
Q

SYMBOLIC SPEECH

(Define & State the Rule)

A

Definition: Symbolic speech is conduct that communicates a message.

Rule: The government can regulate symbolic speech if:

1) An important interest unrelated to suppression of the message is present, AND
2) The impact on speech is no more than necessary to achieve the government’s purpose.

114
Q

ANONYMOUS SPEECH

(State the Rule)

A

Rule: Anonymous speech is protected under the 1st
Amendment.

Note: The right to speak includes the right not to speak and the right not to disclose one’s identity as the speaker.

115
Q

WHAT TYPES OF SPEECH ARE UNPROTECTED OR LESS PROTECTED BY THE 1ST AMENDMENT?

A

1) Incitement to Lawlessness
2) Obscenity
3) Profane & Indecent Speech
4) Commercial Speech
5) Defamation
6) Fighting words

116
Q

INCITEMENT TO LAWLESSNESS

(Define & State the Rule)

A

Definition: Speech that is likely to cause or promote illegal activity.

Rule: The government may punish speech if:

1) The speaker intends to cause imminent illegal activity, AND
2) A substantial likelihood of imminent illegal activity exists.

117
Q

OBSCENITY

(State the Rule)

A

Rule: Obscene speech is not protected by the 1st Amendment. Material will be deemed obscene if the material:

1) Appeals only to the prurient interest in sex,
2) Depicts sexual conduct in a patently offensive way, AND
3) Lacks any serious redeeming artistic, literary, political or scientific value.

Note:

1) The prurient interest is measured by a local community standard.
2) Whether material is patently offensive is determined by the text of the law restricting the material.
3) The value of the material is measured by a national standard.

118
Q

PROFANE & INDECENT SPEECH

(State the Rule)

A

Rule: Generally, profane and indecent speech is protected by the 1st Amendment.

Exception:

1) Broadcast media: Because free broadcast media is uniquely intrusive into the home, laws restricting profanity or indecency on broadcast media need only meet rational basis review.
2) Schools: Because schools are responsible for instructing youth to be mindful of social decorum, laws restricting profane or indecent speech in schools need only meet rational basis review.

Note: Schools may also restrict student expression the school regards as promoting illegal drug use on school property or at public school-sponsored events.

119
Q

COMMERCIAL SPEECH

(State the Rule)

A

Rule: Generally, commercial speech is protected speech. However, commercial speech may be restricted if the speech:

1) Proposes unlawful activity, OR
2) Is misleading or fraudulent.

Note: To uphold a law restricting commercial speech, the law must:

1) Serve a substantial government interest,
2) Directly advance the substantial government interest, AND
3) Be narrowly tailored to serve the substantial government interest.

120
Q

CONSTITUTIONAL ISSUES IN DEFAMATION

(State the Rule)

A

Rule: The 1st Amendment’s protection of freedom of speech extends to certain defamation actions. A Plaintiff must prove additional elements to establish defamation if the Plaintiff is:

1) A public official,
2) A public figure, OR
3) A private person regarding a matter of public concern.

Note: If the defamatory statement concerns a private person and is a matter of private concern, the Plaintiff need only prove the common law prima facie elements to establish defamation.

121
Q

PUBLIC OFFICIAL

(State the Rule)

A

Rule: When a defamatory statement concerns a public official, in addition to the common law elements of defamation, a Plaintiff must prove:

1) That the statement was false, AND
2) That the Defendant acted with actual malice.
a) Actual malice may be found where the Defendant:
i) Knew the statement was false, OR
ii) Recklessly disregarded the veracity of the statement.

Note: The Plaintiff bears the burden of proof by clear and convincing evidence.

122
Q

PUBLIC FIGURE

(Define & State the Rule)

A

Public Figure: A person who is pervasively known.

Limited Public Figure: A person who engages in actions that generate publicity for the purpose of influencing the resolution of a controversy.

Rule: If the defamatory statement concerns a public figure, in addition to the common law elements of defamation, a Plaintiff must prove:

1) That the statement was false, AND
2) That the Defendant had actual malice.
a) Actual malice may be found where the Defendant:
i) Knew the statement was false, OR
ii) Recklessly disregarded the veracity of the statement.

Note: The Plaintiff bears the burden of proof by clear and convincing evidence.

123
Q

PRIVATE PERSON & MATTER OF PUBLIC CONCERN

(Define & State the Rule)

A

Private Person: A private person is one who does not represent a public institution and has not achieved fame or notoriety or otherwise attracted widespread public interest or scrutiny.

Matter of Public Concern: A matter of public concern is an issue or event that affects the public interest or that the public has a need to know.

Rule: If the defamatory statement regards a matter of public concern about a private person, in addition to the common law elements of defamation, a Plaintiff must prove that:

1) The statement was false,
2) The Defendant acted negligently in making the statement, AND
3) The Plaintiff was actually harmed.

Note: If the Plaintiff can show that the Defendant acted with actual malice, damages will be presumed and the Plaintiff need not show actual harm to recover.

124
Q

FIGHTING WORDS

(Define & State the Rule)

A

Definition: Fighting words are words that by their very utterance inflict injury or tend to incite an immediate breach ofthe peace.

Rule: Fighting words are not protected speech.

Note: Though fighting words are not protected speech, most laws that prohibit fighting words will be found unconstitutional due to vagueness or overbreadth.

125
Q

REGULATION OF TIME, PLACE & MANNER OF SPEECH

(State the Rule)

A

Rule: The government may generally place reasonable restrictions on the time, place and manner of speech.

126
Q

IN WHAT LOCATIONS MAY SPEECH BE REGULATED?

A

1) Public Forums: Government property that the government is constitutionally required to make available for speech (e.g., streets, sidewalks, public parks).
2) Limited Public Forums: Government property that the government could close to speech, but chooses to leave open (e.g., public schools after hours).
3) Non-Public Forums: Government property that the government may, and does, close to speech (e.g., military bases, jails).
4) Private Property: Property held by a non-governmental person or entity.

127
Q

REGULATING SPEECH IN PUBLIC FORUMS

(State the Rule)

A

Rule: To be constitutional, the regulation must:

1) Be content neutral (i.e., subject-matter and viewpoint neutral),
2) Be narrowly tailored to serve a significant government interest, AND
3) Leave open alternative channels for communication.

Note:

1) The use of designated protest zones or buffer zones is permitted if they provide a viable channel for communication.
2) Governments are not required to place monuments donated by private parties in public spaces (e.g., public parks) because permanent monuments on public land are government speech.

128
Q

REGULATING SPEECH IN LIMITED PUBLIC FORUMS

(State the Rule)

A

Rule: If the government chooses to open a location for speech, it must meet the constitutional requirements for regulating speech in public forums.

Note:

1) Unlike public forums, the government may choose to close a limited public forum.
2) If the government chooses to close the limited public forum, it must close it to all of the public.

129
Q

REGULATING SPEECH IN LIMITED NON-PUBLIC FORUMS

(State the Rule)

A

Rule: Government can restrict speech in non-public forums if the regulation is:

1) Viewpoint neutral, AND
2) Reasonably related to a legitimate interest.

Note: Regulation of speech in non-public forums does not have to be subject-matter neutral.

130
Q

REGULATING SPEECH ON PRIVATE PROPERTY

(State the Rule)

A

Rule: There is no 1st Amendment right of access to private property for speech purposes.

Note: States may interpret their own constitutions to allow for a right of access to certain private property locations for speech purposes.

131
Q

REGULATING SPEECH WITH LICENSING SCHEMES

(State the Rule)

A

Rule: Governments may require groups to obtain a license or permit before engaging in a demonstration. Licensing schemes are valid if:

1) The regulation is content neutral, AND
2) The officials in charge of licensing do not have unlimited discretion in determining who will be granted a license.

Note:

1) If a licensing scheme is facially invalid, it need not be complied with (i.e., the person wishing to speak (or protest) may do so without requesting a license).
2) If a licensing scheme is facially valid, it must be complied with (i.e., the person wishing to speak must seek a permit, wait until it is denied, then challenge the unconstitutionality of the licensing scheme).

132
Q

FREEDOM OF ASSOCIATION

(State the Rule)

A

Rule: State action that may curtail the freedom to associate is subject to strict scrutiny.

Exception: The government may punish membership in an illegal and subversive organization if it can be shown that the Plaintiff:

1) Actively affiliated with the group,
2) Had knowledge of its illegal activities, AND
3) Acted with the specific intent of furthering those illegal activities.

133
Q

FREEDOM OF ASSOCIATION:

GOVERNMENT REGULATION PROHIBITING DISCRIMINATION BY PRIVATE GROUPS

(State the Rule)

A

Rule: The government can prohibit a group from acting in a discriminatory manner unless the law interferes with:

1) Intimate association (e.g., small social gatherings), OR

2) Expressive activity (i.e., Boy Scouts, Daughters ofthe
American Revolution).

134
Q

FREE EXERCISE CLAUSE

(State the Rule)

A

Rule: The government may not discriminate against people on the basis of their religion.

Exception: The government may pass a law of general consideration and applicability that has a negative effect on a particular religion if the law was not specifically designed to inhibit the religion.

135
Q

ESTABLISHMENT CLAUSE

(State the Rule)

A

Rule: Congress may make no law respecting an establishment of religion or prohibiting the free exercise of religion.

Note:

1) A law that overtly prefers one religion over another must meet strict scrutiny.
2) A law that does not explicitly demonstrate a religious or sect preference must meet the following test:
a) The law must have a secular purpose,
b) The primary effect or purpose must not be to advance or inhibit religion, AND
c) The law must not foster excessive government entanglement with religion.

136
Q

FREE EXERCISE CLAUSE:

PUBLIC DISPLAYS

(State the Rule)

A

Rule: Public religious displays on government property are permitted if:

1) The display does not favor one religion over another, AND
2) A reasonable person would not construe the display to be an endorsement of religion in general.

137
Q

JOURNALIST PRIVILEGE

(SHIELD LAWS)

(State the Rule)

A

Rule: Though federal courts have inferred a qualified
journalist privilege from the 1st Amendment, Congress has not passed a shield law to create a journalist privilege.