Federal Con Law Flashcards
1
Q
to assert standing…
A
a plaintiff must have a concrete personal stake in the outcome, to do that the plaintiff must establish (1) injury –in fact and (2) causation: the relief sought must eliminate the harm alleged, also known as redressability.
2
Q
Generally, one cannot assert the constitutional rights of others to obtain standing, but…
A
a claimant with standing in her own right may also assert the rights of a third party if: (1) it is difficult for the third party to assert her own rights or (2) a special relationship exists between the claimant and the third party
3
Q
Under the Federal Constitution, in order for an individual to assert that their rights have been violated under the 14th Amendment, they must show…
A
their rights have been violated by a state actor.
Federal state action implicates the 5th amendment.
4
Q
Government funding does not automatically implicate state action, the question is…
A
how involved the state is, and if they are advancing the actors denial of certain rights or simply taking a neutral stance on it
5
Q
Under the Federal Constitution, the 1st Amendment grants…
A
grants citizens the freedom of speech, which is a basic and fundamental right to the Constitution
6
Q
1st Amendment rights are applicable to the states through…
federal through…
A
Due Process Clause of the 14th Amendment
federal 5th amendment
7
Q
The freedom of speech is not absolute. The following categories of speech are considered “unprotected” under the 1st Amendment and thus, the government is free to regulate these forms of speech.
A
words that invite imminent lawless action, fighting words, obscenity, defamation and commercial speech.
8
Q
Imminent lawless action exists when…
A
speech poses clear and present danger meaning the speech invites imminent and violent action and the speech is likely to produce such action.
9
Q
Fighting words are usually…
A
directed a specific person, this type of speech insights violence and aggression
10
Q
Normally, any restriction on a person’s freedom of speech that is based on the person’s expressive conduct is judge under the standard of…
A
Strict Scrutiny means which that in order for a law to be found constitutional, it must be narrowly tailored to achieve a compelling state interest and be the least restrictive means possible.
11
Q
Content Neutral restrictions are based on…
A
time, place and manner of the expression, also known as content-neutral restrictions which are subject to intermediate scrutiny.
These restrictions must be content neutral and must be substantially related to an important government interest. They need not be the least restrictive means and must leave open alternative forms for the expression to take place.
12
Q
Content neutral regulations cannot be…
A
vague or overboard, the regulations must give reasonable notice of what is prohibited and cannot prohibit more speech than necessary to achieve its goal.
13
Q
Name the test for:
1- Public forum
2- Non-public forum
A
1- Public forum: intermediate type scrutiny
2-Non-public forum: rational basis type scrutiny
14
Q
Content Based: content-based regulations…
A
restrict speech based on its subject matter and/or viewpoint
E.g.: ordinance banning political protests – restricts speech based on its subject matter (politics)
E.g.: city grants a rally permit to a liberal group, but denies a rally permit for a conservative group – restricts speech based on viewpoint (ideology of the message)
15
Q
In analyzing whether a breach of a person’s freedom of expression has taken place, it is necessary to first evaluate…
A
where the speech has taken place. Case law has drawn a distinction between public forum, limited public forum, and nonpublic forum
16
Q
Name the test:
In nonpublic areas, such as someone’s front lawn and billboards, these restrictions must be…
A
reasonably related to a legitimate government interest.
17
Q
What place are people afforded the most protection under the constitution under the 1st Amendment?
A
public areas, which are known and historically popular for being a place where people express themselves, such as at a park or a courthouse, where citizens are afforded the most protection under the constitution.
In public areas, the government must meet the same burden described above for content-neutral restrictions (intermediate scrutiny - These restrictions must be content neutral and must be substantially related to an important government interest. They need not be the least restrictive means and must leave open alternative forms for the expression to take place).
18
Q
commercial speech is afforded First Amendment protection if…
A
it is truthful.
However, commercial speech that poses unlawful activity or that is misleading or fraudulent may be burdened. Regulation of commercial speech will be upheld if it (1) serves a substantial government interest, (2) directly advances that interest and (3) is narrowly tailored to serve that interest.
19
Q
Regulation of commercial speech will be upheld if it…
A
(1) serves a substantial government interest, (2) directly advances that interest and (3) is narrowly tailored to serve that interest.
20
Q
The Establishment Clause prohibits laws respecting the establishment of religion. If a government regulation or action includes a preference for one religious sect over another, it is invalid unless…
A
it is narrowly tailored to promote a compelling interest.
It is unlikely that the government could ever have a compelling interest in preferring one religious group
21
Q
If a government regulation or action does NOT prefer one religious sect over another the compelling interest test is NOT used. Instead the _____ test will be used. Explain the test.
A
Lemon Test
if a government regulation or action contains no sect preference, it is valid under the Establishment Clause if it:
(1) has a secular purpose,
(2) neither advances nor inhibits religion, and
(3) does not produce excessive government entanglement with religion [Free Exercise Clause]
Religious freedom does not justify practices inconsistent with the public peace or safety
22
Q
The Due Process provisions of the 14th Amendment provide that the government cannot deprive a person of…
A
life, liberty, or property without due process of law.
23
Q
There are two kinds of due process:
A
(1) procedural due process and (2) substantive due process.
24
Q
Under procedural due process in order to deprive someone of life, liberty, or property, there must be…
A
(1) notice and (2) a hearing.
25
Property interests include:
jobs, licenses, benefits, and public education. Liberty interests include: right to contract and right to gain rightful employment
26
Substantive due process acts as a limitation on the actions that the state can undertake. The government has violated a persons substantive due process rights when they have...
impaired one of their fundamental rights. These rights include: (1) the right to vote, (2) the right of interstate travel, (3) the freedom of speech and (4) the right to privacy. The right to privacy encompasses: the right to use contraception, the right to have an abortion, the right to marry, the right to procreate, the right private education and the right to raise a family. The court imposes strict scrutiny review on laws that impair a persons fundamental rights, thus unless the government can show that the law is necessary to promote a compelling interest, it will not be upheld.
27
Fundamental rights include...
What test does the government impose when a fundamental right is violated?
(1) the right to vote,
(2) the right of interstate travel,
(3) the freedom of speech and
(4) the right to privacy. The right to privacy encompasses: the right to use contraception, the right to have an abortion, the right to marry, the right to procreate, the right private education and the right to raise a family.
The court imposes strict scrutiny review on laws that impair a persons fundamental rights, thus unless the government can show that the law is necessary to promote a compelling interest, it will not be upheld.
28
The United States Constitution prohibits the government from discriminating between...
similarly situated persons. The court must review the legitimacy of governmental actions and it has three standards of review: strict, intermediate, and rational
29
strict scrutiny
Regulations affecting fundamental rights or involving suspect classifications (race, national origin and alienage) are reviewed under the strict scrutiny standard: the law will be upheld if the government can show it is necessary to achieve a compelling government purpose
30
intermediate scrutiny
(2) Regulations involving gender and illegitimacy are reviewed under the intermediate scrutiny standard: the law is upheld if the government can show it is substantially related to an important government purpose.
31
rational basis
(3) Regulations that do not affect the above classifications are reviewed under the rational basis standard: the law will be upheld if the petitioner can prove that it is rationally related to a legitimate government purpose.
32
The 5th Amendment’s Taking Clause prohibits...
How is the prohibition is applicable to the states?
governmental taking of private property for public use without just compensation.
The prohibition is applicable to the states through the 14th Amendment
33
Physical appropriations almost always amount to takings, even if the amount of property taken is small UNLESS...
Exceptions: emergencies and nuisances (the state can destroy diseased trees to prevent spread of the disease)
34
Use restrictions that deny all economic value of land amount to a taking but a regulation that
merely decreases the value of property will not amount to a taking if the regulation leaves an economically viable use of property
35
A regulation that merely decreases the value of property will not amount to a taking if the regulation leaves an economically viable use of property. The court will consider:
No clear formula, courts will consider:
o Social goals sought to be protected
o The diminution in value to the owner
o Owners reasonably expectations regarding property
36
The normal remedy for a taking is...
just compensation... Fair market value ordinarily is measure by the loss to the owner (rather than the gain to the taker) based on the condition and nature of the property at the time it was taken
37
Intro to Standing: Standing is the issue of whether...
Standing must be...
the plaintiff is the proper party to bring a matter to court for adjudication.
met at all stages of litigation, including on appeal.
38
For the plaintiff to have standing, four requirements must be met:
1- injury in fact
2- causation and redressability
3- cannot assert 3rd parties
4- no generalized grievances
39
Explain injury in fact.
(1) injury in fact which requires both a particularize injury that effects the plaintiff in a personal way and a concrete injury that exists in fact,
40
Explain causation and redressibility
(2) causation and redressability where the plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the harm. However, if a federal court ruling would have no effect, then it’s an advisory opinion and therefore it is not allowed.
41
(3) A plaintiff cannot assert the claim of third parties not before the court because plaintiff must present personally suffered injuries UNLESS the following exceptions apply:
(a) close relationship exists between the plaintiff and the injured third party that allows for the third parties interest to be adequately presented,
(b) if the injured third-party is unlikely to be able to assert his or her own rights, or
(c) an organization may sue for its members if:
(i) the members would have standing to sue,
(ii) the interests are germane to the organization's purpose, and
(iii) neither the claim or relief requires participation of individual members (it is allowed if members have actual injuries related to the organization).
42
Standing element (3)... A plaintiff cannot assert the claim of third parties not before the court because plaintiff must present personally suffered injuries UNLESS the following exceptions apply:
(a) close relationship exists between the plaintiff and the injured third party that allows for the third parties interest to be adequately presented,
(b) if the injured third-party is unlikely to be able to assert his or her own rights, or
(c) an organization may sue for its members if: (name the three elements...)
(i) the members would have standing to sue,
(ii) the interests are germane to the organization's purpose, and
(iii) neither the claim or relief requires participation of individual members (it is allowed if members have actual injuries related to the organization).
43
Takings (4) No generalized grievances are allowed. The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law UNLESS the following exceptions apply:
(a) the taxpayer has standing to challenge government expenditures pursuant to federal (or state and local) statutes violating the Establishment Clause.
44
Ripeness is the question of whether...
a federal court may grant pre-enforcement review of a statute or regulation.
45
Ripeness two factors:
The court considers two factors
(1) the greater the hardship that will be suffered without pre enforcement review, the more likely it is the court will hear the matter and
2) The fitness of the issues, which are certain not contingent upon future events that may not occur as anticipated and the record before the court.
46
Mootness
A real controversy must exist at all stages of the review. If the matter has already been resolved, the case will be dismissed as moot UNLESS the following exceptions apply:
(1) controversies capable of repetition, but evading review due to short duration or (2) a defendant who voluntarily stops the offending practice but it's free to resume it, or (3) a class action suit if claims of the members are still viable.
47
RIPENESS AND MOOTNESS EXTRAS
Ripeness bars consideration of cases _____ they have _____; Mootness bars their consideration _____ they have been _______.
Ripeness bars consideration of teams before they have developed; Mootness bars their consideration after they have been resolved.
48
Congress can regulate interstate commerce with...
foreign nations, with Indian tribes, and among states
49
To be within Congress’s power under the Commerce Clause, a federal law regulating interstate commerce must either Regulate the...
(1) channels (roads, rails, waterways, phones, The Internet, etc),
(2) instrumentalities and persons and things (trucks, trains, planes, etc), or
(3) activities that have a substantial economic effect on interstate commerce.
50
The court will uphold the regulation if it is of ______ economical commercial activity and the court can conceive ______ on which Congress could conclude that the activity, ______ Interstate Commerce.
The court will uphold the regulation if it is of economical commercial activity and the court can conceive a rational basis on which Congress could conclude that the activity, in the aggregate, substantially effects Interstate Commerce.
51
If the regulated Interstate activity is ______ or and _____, the court entity will not aggregate the effects and the regulation will be upheld only if...
If the regulated Interstate activity is noncommercial or and noneconomic, the court entity will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on Interstate Commerce which is generally difficult to do.
52
The Commerce Clause gives Congress power only to regulate...
existing commercial activity; It does not give Congress power to compel activity.
53
The 10th amendment act as...
a limit on congressional power states that all power not granted to the United States, nor prohibited to the states, are reserved to the states for the people.
54
Three principles emerge from the 10th:
(1) Congress cannot compel state regulatory or legislative action, but it can place conditions on grants as long as they are: (a) clearly stated (b) related to the purpose of the grant and (c) not duly coercive.
(2) Congress may prohibit harmful commercial activity by state governments, and
(3) The 15th amendment is a limitation on both the states and the federal government by prohibiting them from denying any citizen the right to vote based on race of color. The amendment has an enabling clause that allows Congress to adopt legislation protecting the right to vote from discrimination. The 15th amendment does not give the federal courts complete freedom to regulate state voting - Treating some states more harshly than others requires extraordinary justification and decade old data is not sufficient.
55
Congress may delegate its power to the executive or judicial branch as long as...
intelligible standards are set, which almost anything suffices, (2) the power is not uniquely confined to Congress such as declaring war or impeachment, and (3) does not violate separation of powers. Congress may not appoint members of a body with administrative or enforcement powers.
56
Commandeering State Officials
| The Supreme Court has held that Congress may not require state executive officials (such as the police) to
enforce federal laws because such a requirement would upset the constitution's dual sovereignty structure.
57
The Privileges and Immunities Clause of Article 4 protects against...
state and local laws that deny out-of-state persons important economic interests such as livelihood or civil liberties and the discrimination is intentionally protectionist in nature
58
The Privileges and Immunities Clause of Article 4 protects against state and local laws that deny out-of-state persons important economic interests such as livelihood or civil liberties and the discrimination is intentionally protectionist in nature, the laws is invalid unless...
the state has a substantial justification and there are no other less restrictive means. It must show that nonresidents either cause or are part of the problem that the state is attempting to solve and there is no less restrictive means to solve the problem.
59
When Congress regulates Interstate Commerce, conflicting state laws are...
superseded and even non-conflicting state or local laws in the same field may be preempted.
60
State regulation of Interstate Commerce prompts a Dormant Commerce Clause analysis.
(1) State regulations affecting an activity addressed by federal legislation is invalid if...
(2) State regulations discriminating against Interstate Commerce to protect local economic interests are invalid UNLESS...
(3) if the state regulation is nondiscriminatory, that is, a law that treats in-state and out-of-state persons alike, but burdens Interstate Commerce it is invalid UNLESS....
(1) State regulations affecting an activity addressed by federal legislation is invalid if the federal law preempts the field or the state law conflicts with the federal law. However, state regulation is valid if the Federal law authorizes state law;
(2) State regulations discriminating against Interstate Commerce to protect local economic interests are invalid UNLESS (i) the law furthers an important, noneconomic state interests and there are no reasonable nondiscriminatory alternatives; (ii) the state is acting as a market participant such as when buying or selling, hiring labor, or giving subsidies; or (iii) it involves government action regarding the performance of a traditional government function such as waste disposal.
(3) if the state regulation is nondiscriminatory, that is, a law that treats in-state and out-of-state persons alike, but burdens Interstate Commerce it is invalid UNLESS the state’s interest in the regulation outweighs the burden on interstate commerce.
61
T or F
| The Commerce Clause does protect corporations or an alien.
True
62
T or F
| The Privileges and Immunities Clause of Article 4 does not protect corporations or aliens.
True
63
Under the Privileges and Immunities Clause of the 14th Amendment states may not
deny their citizens the privileges or immunities of national citizenship, the right to petition Congress for redress of grievances, the right to and vote for federal officers, the right to Interstate travel.
64
T or F
| Corporations and aliens cannot use or invoke the Privileges and Immunities Clause of the 14th Amendment
True
65
The 14th Amendment prevents state and local government from depriving any person of life, Liberty, or property without due process and equal protection of law. Generally, private conduct is not prohibited by this amendment (or the 15th) only where...
some state action is involved.
66
State Action
Because the constitution generally applies only to governmental action, to show a constitutional violation “state action” must be involved. State action can be found in actions of seemingly private individuals who:
(1) perform exclusive public functions, such as running a town or elections, or
(2) show significant state involvement and the state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens such as official encouragement or use of judicial machinery, but mere regulation, provision of public services, or licensing not enough.
67
Retroactive legislation: Contracts Clause
The Contracts Clause limits the ability of states to enact laws that retroactively impair contract rights. It does not affect contracts that are...
not yet made nor is it applicable to the federal government, but flagrant contract impairment would violate the 5th amendment due process clause.
68
State legislation that substantially impairs an existing private contract is invalid unless...
this legislation
(1) serves an important and legitimate public interest and
(2) is a reasonable and narrowly tailored means of promoting that interest. Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the legislation will likely receive stricter scrutiny, especially if the legislation reduces the contractual burdens on the state.
69
The state or federal government may not pass an ex post facto law that which These only apply in ____ cases.
(1) criminally punishes conduct that was lawful when it was done or (2) that increases punishment for a crime after it was committed, or (3) reduces the evidence required to convict a person of a crime from what was required when the act was committed.
These only apply in criminal cases.
70
Bills of Attainder
| neither state nor federal government may pass legislation that
designates particular individuals, by name or description, for punishment without traditional trial.
71
Procedural Due Process
A fair process, _____ and a ______, is required for a government agency to individually take a person’s ____, ____, or ____. Only ____, deprivation of these rights violates the due process clause
A fair process, notice and a hearing, is required for a government agency to individually take a person’s life, liberty, or property. Only intentional, deprivation of these rights violates the due process clause.
72
The right to liberty includes...
Such a deprivation of liberty occurs if...
freedom from bodily restraints, the right to contract, the right to engage in gainful employment.
Such a deprivation of liberty occurs if (1) a person loses significant freedom of action or (2) is denied a freedom provided by the Constitution or a statue.
73
A deprivation of property occurs if...
a person Has been denied a legitimate claim or entitlement to a benefit under state or federal law and has a reasonable expectation to the continued receipt of a benefit. Some examples include government employment.
74
Procedural Due Process
Government negligence is not sufficient for deprivation of due process. Generally, there must be...
However, (exceptions)
Generally, the government's failure to protect people from _____ inflicted harms does not deny due process.
intentional government action or at least reckless action for liability to exist. ,
However, in emergency situations, the government is liable under due process only if its conduct shocks the conscience.
Generally, the government's failure to protect people from privately inflicted harms does not deny due process.
75
Procedural Due Process
| The type and extent of required procedures are determined by a three-part balancing test that weighs:
(1) importance of individual right. The more important the interest is to the person the more procedural protection will be required by the court
(2) value of specific procedural safeguards to that interest - The more additional procedures will lead to more accurate decisions and reduction in erroneous deprivation the more than likely the court will require them;
(3) against governmental interest in fiscal and administrative efficiency.
76
Presumptively, ____ procedures and an ____ decision maker will always be required. Notice and a chance to respond ____ ______ of the Liberty or property interests are usually required.
Presumptively, fair procedures and an unbiased decision maker will always be required. Notice and a chance to respond before termination of the Liberty or property interests are usually required.
77
Due process examples
requiring both notice and a hearing: termination of welfare benefits, permanent termination of a parent's right to custody, except in an emergency, before an adult can be institutionalized. Notice of charges an opportunity to explain: When a student is disciplined by your school; Corporal punishment in a school does not require any due process. Harm to reputation by itself is not a loss of Liberty
punitive damage awards required jury instructions to the jury to guide discretion, and judicial review to ensure that any award is reasonable; grossly excessive punitive damages violate due process. US citizens facing criminal charges in a foreign country and held by the American Military are entitled to due process protections, such as having a lawyer, knowing the charges, and being able to file a habeas corpus petition to seek review of their detention in federal court. The government may seize property used in illegal activity even if it has an innocent owner.
78
Procedural Due Process Exam TIP: Step 1 & 2
Step one: Has there been any deprivation of life, Liberty, or property?
Step 2: what procedures are required to remedy a deprivation?
79
Takings
The 5th Amendment provides that ____ property may not be taken for public use without ____ compensation. This rule is applicable to the states via the ____ amendment.
Takings
The 5th Amendment provides that private property may not be taken for public use without just compensation. This rule is applicable to the states via the 14th amendment.
80
Takings include ____ appropriation or government action that _____ property or _____ its use. It is applicable to ____ and _____ property.
Takings include physical appropriation or government action that damages property or impairs its use. It is applicable to real and personal property.
81
Takings
If the government's action is ___ ____ to a ____ public purpose, such as ___ , ___ , ___ , ___ , or ___ reasons, the public use requirement is satisfied.
If the government's action is rationally related to a legitimate public purpose, such as health, welfare, safety, economic, or aesthetic reasons, the public use requirement is satisfied.
82
When may a private enterprise take property for public?
Authorized takings by private enterprises if there for a public advantage such as for railroads and Public Utilities.
83
To resolve a takings issue, what two questions must you ask?
The crucial issue is whether governmental action is a taking that requires payment of just compensation or it is merely a regulation which does not require compensation.
84
In determining whether government action is a taking or regulation consider the following guidelines:
(1) an actual or physical appropriation of property will almost always amount to a taking even if it is temporary unless in emergency situations
(2) Restrictions on real property that deny all economic value of the land, a regulation prohibiting any building on the land, amounts to a taking unless principles of nuisance (citrus trees) or property law make the use profitable.
85
Takings: Restrictions on property that merely decrease the value, prohibiting the most beneficial use, do not amount to a taking if they
leave an economically viable use for the property. The court will consider (i) the social goal sought to be promoted; (ii) the diminution in value to the owner; and (iii) whether the regulation substantially interferes with investment-backed expectations of the owner.
86
Temporal denials of all economic use of a property does not constitute a taking instead...
the court will carefully examine and weight relevant circumstances in order to determine whether fairness and justice require just compensation.
Government action that amounts to a temporary appropriation or physical invasion of property may amount to a taking such as a temporary flooding caused by a government release of dammed up waters.
87
Government conditions on development of property, known as exactions, must be...
justified by a benefit that is roughly proportionate to the burden imposed; otherwise, it is a taking.
The government frequently puts conditions on the development of property, and landowners argue those conditions are regulatory takings.
88
When a restriction on the use of property deprives the owner of the economic value of the land, the government must either:
(a) pay just compensation, measured by the fair market value of the property taken at the time of the taking, or (b) terminate the regulation and pay the owner for damages that occurred when the regulation was in effect.
89
Substantive Due Process and Equal Protection guarantees require the court
to review the substance of the law rather than the procedures employed.
90
If a law limits liberty for all persons to engage in some activity,
it is generally a question of due process.
91
If a law treats a person or class of persons differently from others,
it is usually in equal protection issue.
92
If a law limits liberty for all persons to engage in some activity, it is generally a question of ________. If a law treats a person or class of persons differently from others, it is usually an _______ issue.
If a law limits liberty for all persons to engage in some activity, it is generally a question of due process. If a law treats a person or class of persons differently from others, it is usually in equal protection issue.
93
Substantive Due Process guarantees require the court to...
review the substance of the law rather than the procedures employed
94
If a law limits liberty for all persons to engage in some activity, it is generally a question of...
due process
95
The due process clause of the ____ amendment applies to the federal government, and the due process clause of the ____ amendment applies to state and local governments. The same tests are applied under each clause.
The due process clause of the 5th amendment applies to the federal government, and the due process clause of the 14th amendment applies to state and local governments. The same tests are applied under each clause.
96
When a fundamental right is limited, the law or action is evaluated under...
In all other cases, the ___ ____ standard is applied.
When a fundamental right is limited, the law or action is evaluated under the strict scrutiny standard. In all other cases, the rational basis standard is applied.
97
EQUAL PROTECTION
The Equal Protection Clause of the 14th Amendment is limited to _____. However, _____ _____ discrimination by the federal government violates the _____ ____ Clause of the ____ amendment.
The Equal Protection Clause of the 14th Amendment is limited to state action. However, grossly unreasonable discrimination by the federal government violates the Due Process Clause of the 5th amendment.
98
If a law treats a person or class of persons differently from others, it is usually an ____ _____ issue.
If a law treats a person or class of persons differently from others, it is usually in Equal Protection issue.
99
Whenever the government draws a distinction among people, there is a basis for an
equal protection challenge.
100
When the Supreme Court addresses individual liberties under the constitution, the outcome of the analysis will depend on the...
classification of the right, the level of scrutiny applied, and whether the law meets the level of scrutiny.
101
For fundamental rights or suspect classifications...
strict scrutiny applies and, the government must show...
race, national origin, alienage
strict scrutiny applies and, the government must show the law is necessary to achieve a compelling government purpose.
102
For quasi-suspect classifications
intermediate scrutiny applies, and the government must show...
(gender or legitimacy)
intermediate scrutiny applies, and the government must show... the law is substantially or narrowly tailored to an important state interest.
103
For all other classifications,
rational basis is applied, and the...
challenger must prove the law is not rationally related to a legitimate government purpose.
104
Proving Discriminatory Classification
| For strict or intermediate scrutiny to be applied, there must be...
intent on the part of the government to discriminate.
105
For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Intent may be shown by...
Intent may be shown by (1) a law that is discriminatory on its face; (2) a discriminatory application of a facially neutral law, showing both discriminatory impact and discriminatory intent; or (3) a discriminatory motive behind the law. Discriminatory effect alone is not enough.
106
Alienage Classifications
| Congress has ____ ____over aliens therefore federal alienage classifications are valid if they are...
Congress has plenary power over aliens therefore federal alienage classifications are valid if they are not arbitrary and unreasonable.
107
State and local laws on alien are ___ classifications subject to ___ ___.
However, if the law discriminates against alien participation in... (such as...) ___ ___ is applied.
State and local laws on alien are suspect classifications subject to strict scrutiny.
However, if the law discriminates against alien participation in state government (voting, jury service, elective office, police officers, probation officers, and K-8 teachers) rational basis is applied.
108
There are special rules for how courts treat gender classifications benefiting women. Those that are based on rule ____ are not allowed. Those designed to remedy...
There are special rules for how courts treat gender classifications benefiting women. Those that are based on rule stereotypes are not allowed. Those designed to remedy past discrimination or differences in opportunity will be allowed.
109
Classifications that are not suspect or quasi suspect including... are evaluated under what test?
Classifications that are not suspect or quasi suspect including age, disability, intelligence, government economic regulations, and wealth are evaluated under the rational basis standard.
The rational basis test requires the challenger prove the law is not rationally related to a legitimate government purpose.
110
Fundamental rights
Certain fundamental rights are protected under the 14th amendment of the US Constitution. If they are denied to everyone, it is a ___ ___ ___ issue. If they are denied to some individuals but not others, it is an ___ ___ problem. The applicable standard in either case is ___ ___.
Laws that unreasonably burden fundamental rights act as penalties and are unconstitutional.
Certain fundamental rights are protected under the 14th amendment of the US Constitution. If they are denied to everyone, it is a substantive due process problem. If they are denied to some individuals but not others, it is an equal protection problem. The applicable standard in either case is strict scrutiny. Thus, government action must be necessary to protect the compelling government interests and there must be no less restrictive means to achieve this goal. Laws that unreasonably burden fundamental rights act as penalties and are unconstitutional.
111
Durational residency requirements, requiring a person to live in a jurisdiction for a specified amount of time to get a benefit, must meet ___ ___.
What is the max durational req for voting?
Durational residency requirements, requiring a person to live in a jurisdiction for a specified amount of time to get a benefit, must meet strict scrutiny.
The Supreme Court has said that for voting purposes, 50 days is the maximum allowable durational requirement.
112
Laws that deny some citizens the right to vote must meet ___ _____.
The use of race in drawing election districts lines for the purpose of benefiting minorities must meet ___ ___
Counting uncounted votes without standards in a presidential election violates ___ ____
Laws that deny some citizens the right to vote must meet strict scrutiny.
The use of race in drawing election districts lines for the purpose of benefiting minorities must meet strict scrutiny.
Counting uncounted votes without standards in a presidential election violates equal protection
113
There is no fundamental right to international travel, so restrictions on foreign travel need meet only the ___ ___ test.
There is no fundamental right to international travel, so restrictions on foreign travel need meet only the rational basis test.
114
The ____ Amendment prohibits Congress from establishing a ____ or interfering with the free ____ of religion, abridging the freedoms of ____ and ____ , or interfering with the right of ____ . These prohibitions are applicable to the states through the ____ amendment.
Whenever the ____ seeks to ____ the freedoms of speech or assembly, the court will ____ the great importance of ____ and ____ rights against the interest or policies sought to be served by the ____ .
The First Amendment prohibits Congress from establishing a religion or interfering with the free exercise of religion, abridging the freedoms of speech and press, or interfering with the right of assembly. These prohibitions are applicable to the states through the 14th amendment.
Whenever the government seeks to regulate the freedoms of speech or assembly, the court will weigh the great importance of speech and assembly rights against the interest or policies sought to be served by the regulation.
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The Free ____ Clause of the First Amendment restricts government regulation of ____ speech; it does not require the government to ____ private speech nor restrict the government from ____ its views. Speech by the government ____ be challenged as violating the First Amendment.
The Free Speech Clause of the First Amendment restricts government regulation of private speech; it does not require the government to aid private speech nor restrict the government from expressing its views. Speech by the government cannot be challenged as violating the First Amendment.
116
Generally, ____ speech and funding of ____ speech will be upheld as long as it is ____ ____ to a ____ state interest. But, spending programs may ____ impose conditions that limit First Amendment activities of ____ ____ outside the scope of the ____ program itself.
Generally, government speech and funding of private speech will be upheld as long as it is rationally related to a legitimate state interest. But, spending programs may not impose conditions that limit First Amendment activities of fund recipients outside the scope of the spending program itself.
117
T or F
A city’s placement of a permanent monument in a public park is government speech and thus is not subject to the Free Speech Clause scrutiny, even if the monument is privately donated.
True
118
When the government chooses to fund _____ messages, it generally must do so on a _____ _____ basis with the exception of funding the _____ . Government may _____ proposed specialty license plate design submitted by private individuals while accepting others.
When the government chooses to fund private messages, it generally must do so on a viewpoint neutral basis with the exception of funding the arts. Government may reject proposed specialty license plate design submitted by private individuals while accepting others.
119
Content or Conduct
It is presumptively ____ to place burdens on speech because of its ____ , such as regulations forbidding communication of specific ideas, except for certain categories of speech, like ____ and ____ . Conduct regulations which regulate the ____ usually associated with speaking, can be regulated by ____ -____ time, place, and manner restrictions.
It is presumptively unconstitutional to place burdens on speech because of its content, such as regulations forbidding communication of specific ideas, except for certain categories of speech, like obscenity and defamation. Conduct regulations which regulate the conduct usually associated with speaking, can be regulated by content-neutral time, place, and manner restrictions.
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Content-Based and Content-Neutral Restrictions
| To be valid, content-based restrictions on speech must be ____ to achieve a ____ government interest.
Content-Based and Content-Neutral Restrictions
| To be valid, content-based restrictions on speech must be necessary to achieve a compelling government interest.
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Content-neutral regulations, which is ____ ____ and ____ ____ , generally are subject to ____ scrutiny, requiring the government to prove that a law or action advances ____ interests ____ to the ____ of speech and must ____ burden ____ more speech than ____ to ____ those interests.
Content-neutral regulations, which is subject matter and viewpoint neutral, generally are subject to intermediate scrutiny, requiring the government to prove that a law or action advances important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests.
122
Regulations that are ____ , ____ , or give officials ____ ____ are unconstitutional.
Regulations that are overbroad, vague, or give officials unfettered discretion are unconstitutional.
123
Overbreadth
| A law is unconstitutionally ____ , and ____ ____ , if it regulates a ____ ____ of ____ speech.
A law is unconstitutionally overbroad, and facially invalid, if it regulates a substantial amount of protected speech.
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Vagueness
| If a law or regulation ____ to give persons reasonable ____ of what is prohibited, it may violate the ____ ____ Clause.
If a law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the Due Process Clause.
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Unfettered discretion/ Prior Restraint
A regulation cannot give officials ____ ____ over speech issues; There must be ____ ____ for applying the law. If a statute gives licensing officials ____ ____ , it is ____ ____ ____ ____ and speakers need ____ even apply for a permit. If it includes ____, a speaker may ____ ignore the statute; he must ____ a permit and if it is denied, there must be ____ ____ in place such as ____ determination of licensing ____ and judicial review of ____ .
A regulation cannot give officials broad discretion over speech issues; There must be defined standards for applying the law. If a statute gives licensing officials unbridled discretion, it is void on its face and speakers need not even apply for a permit. If it includes standards, a speaker may not ignore the statute; he must seek a permit and if it is denied, there must be procedural safeguards in place such as prompt determination of licensing requests and judicial review of denials.
126
The freedom of speech includes the freedom ____ to speak. This freedom extends to ____ ____ undertaken to ____ an idea. The government may ____ conduct that communicates if it has an ____ interest ____ to the ____ of the message and if the ____ on the communication is ____ ____ than ____ to achieve the government’s goal.
The freedom of speech includes the freedom not to speak. This freedom extends to symbolic acts undertaken to communicate an idea. The government may regulate conduct that communicates if it has an important interest unrelated to the suppression of the message and if the impact on the communication is no greater than necessary to achieve the government’s goal.
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TIME PLACE AND MANNER
The government has the power to regulate the conduct associated with speech and assembly although the breath of this power depends on whether the forum involved is a ____ forum, a ____ public forum, a ____ public forum, or a ____ -public forum.
The government has the power to regulate the conduct associated with speech and assembly although the breath of this power depends on whether the forum involved is a public forum, a designated public forum, a limited public forum, or a non-public forum.
128
Public Forum/Designated Public Forum
What is a public forum?
What is a designated public forum?
Public property that has historically been open to speech related activities such as streets, sidewalks, public parks, and the Internet is a public form.
Public property that has not historically been open to speech related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy, is called a designated public forum.
129
Public Forum/Designated Public Forum
To avoid ____ ____ , a government regulation on time, place, and manner of speech and assembly in public forums and designated public forums must: (1) , (2) However, it need NOT be the ____ ____ ____ for accomplishing the interest; AND (3)
To avoid strict scrutiny, a government regulation on time, place, and manner of speech and assembly in public forums and designated public forums must:
(1) be content neutral, that is subject matter neutral (application of the law depends on the topic of the message) and viewpoint neutral (application of the law depends on the ideology of the message);
(2) be narrowly tailored to serve an important government interest. However, it need NOT be the least restrictive means for accomplishing the interest; and
(3) must leave open alternative channels of communication.
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T OR F: Almost every legitimate governmental interest satisfies the significant/important standard.
True
131
T OR F: Remember that even if a regulation meets the time, place, and manner requirements above, it could still be invalid if it is overbroad, vague, or gives government officials unfettered discretion.
True
132
Limited Public Forums and Non-Public Forums
Speech and assembly can be more broadly regulated in what forum? Explain this type of forum.
What is a non-public forum?
Limited Public Forums and Non-Public Forums
Speech and assembly can be more broadly regulated in limited public forums, which are government property not historically linked with speech and assembly but open for specific speech activity such as in school gyms open to host a debate.
A non-public forum is government property not historically linked with speech and assembly and not held open for speech activities, such as military bases, schools while classes are in session, government workplaces, prisons, airports, etc.
133
In what forums may the government regulate speech to reserve the forum for its intended use?
In both locations, regulations are valid if they are: (1) and (2)
They need not be ____ ____ .
The government can regulate speech in such a forum to reserve the forum for its intended use. In both locations, regulations are valid if they are: (1) viewpoint neutral; and (2) reasonably related to a legitimate government purpose. They need not be content neutral.
134
T or F
Private property like shopping centers are afforded no First Amendment right for speech purposes.
In nonpublic forums may even discriminate against the identity of the speaker
True
135
UNPROTECTED SPEECH
| To be ____ , restrictions on the ____ of speech must be ____ to achieve a ____ government interest.
UNPROTECTED SPEECH
| To be valid, restrictions on the content of speech must be necessary to achieve a compelling government interest.
136
the following are deemed to be unprotected speech under the First Amendment:
Fighting words
Incitement of Illegal Activity
Obscenity and Sexual Orientated Speech
Zoning and Sexual Orientated Speech
Defamation
137
Explain Fighting words
Speech can be burdened if it created clear and present danger of imminent lawless action. Illegal contact is likely and that the speaker intended to cause it.
138
Explain Incitement of Illegal Activity
Two true threats like cross burning carried out with the intent to intimidate, are not protected by the 1st amendment. Speech also can be burdened if it constitutes fighting words, personally abusive words that are likely to incite immediate physical retaliation in an average person, but these laws that attempt to punish the use of such words are often found invalid for overbreadth or vagueness. Words that are merely annoying are not sufficient. The Supreme Court will not tolerate fighting word statutes that are designated to punish only certain viewpoints such that prescribe only fighting words that insult on the basis of race, religion, or gender.
139
Explain Obscenity and Sexual Orientated Speech
Speech is obscene if it describes or depicts sexual contact that, taken as a whole, by the average person: (1) appeals to the prurient interests in sex, using a community standard; (2) is patently offensive and an affront to contemporary community standards; And lacks serious value, literary, artistic, political, or scientific, using a national reasonable person standard.
140
Explain Zoning and Sexual Orientated Speech
The government must show the law must directly advance a substantial government interest and must be no more extensive than necessary to serve that interest. The regulation must be narrowly drawn and there must be a reasonable fit between the legislation’s end and the means chosen. This applies to zoning laws on adult theaters and bookstores, nude dancing bars, symbolic speech, etc.
141
Explain Defamation
Defamatory statements can be burden. If the defamatory statement is about a public official or public figure or involves a public concern, the First Amendment requires a plaintiff to prove with clear and convincing evidence the falsity of this statement and actual malice, meaning that the defendant knew the statement was false or acted with reckless disregard of the truth.
142
Private Figure & Public Concern
If the plaintiff is a private figure and the matter is of public concern, a state may allow the plaintiff to recover compensatory damages for defamation by proving falsity of the statement and negligence by the defendant for not being careful as a reasonable speaker should have been. However, the plaintiff may recover presumed or punitive damages only by showing actual malice.
143
Private Figure & Not Public Concern
If the plaintiff is a private figure and the matter is not a public concern, the plaintiff can recover presumed or punitive damages without proving actual malice.
144
T or F: The First Amendment may also play a role in certain privacy actions (see torts outline) .
True
145
Commercial Speech General Rule
As a general rule, commercial speech is afforded First Amendment protection if it is truthful. however, commercial speech that proposes unlawful activity or that is misleading or fraudulent may be burdened.
SPECIFIC RULE
Any other regulation of commercial speech will be upheld only if it: (1) serves a substantial government interest; (2) directly advances that interest; and (3) is narrowly tailored to serve that interest. Complete bands on truthful advertisement of lawful products are on very unlikely to be upheld due to a lack of catering. The government may require commercial advertisers to make disclosures if their disclosures are not unduly burdensome and they are reasonably related to the state's interest in preventing deception.
Test Tip: Narrowly tailored does not require the least restrictive means of accomplishing the legislative goal; There just must be a reasonable fit between the goal and the means chosen.
146
Commercial Speech
As a general rule, commercial speech is afforded First Amendment protection if it is truthful. however, commercial speech that proposes unlawful activity or that is misleading or fraudulent may be burdened. Any other regulation of commercial speech will be upheld only if it:
(1) serves a substantial government interest; (2) directly advances that interest; and (3) is narrowly tailored to serve that interest. Complete bands on truthful advertisement of lawful products are on very unlikely to be upheld due to a lack of catering. The government may require commercial advertisers to make disclosures if their disclosures are not unduly burdensome and they are reasonably related to the state's interest in preventing deception.
Test Tip: Narrowly tailored does not require the least restrictive means of accomplishing the legislative goal; There just must be a reasonable fit between the goal and the means chosen.
147
T or F: Narrowly tailored does not require the least restrictive means of accomplishing the legislative goal; There just must be a reasonable fit between the goal and the means chosen.
True
148
False Speech
Falsity does not make speech unprotected. Where it is unprotected, it is based on the harm caused like saying you won a Purple Heart in order to get a benefit that only Purple Heart vets get, that falsely is unprotected because of the harm which involves stealing benefits.
149
Violent Video Games
A state may not prohibit the sale or rental of violent video games to minors. Violence is not an area of unprotected speech it is a content-based restriction that does not need strict scrutiny.
150
Compelled Speech
Compelled speech violates the First Amendment. Example nonunion members cannot be forced to pay a proportionate share of union dues on the ground that they not do benefit because they may not share the same political views as the union.
151
Speech by Government Employees
When acting pursuant to official duties expression may be punished. When not acting pursuant to official duties and one the expression does not involve the matter of public concern it may be punished. And two expression involves a matter of public concern The court balances the interests of the parties.
152
Freedom of Association and Belief general rule
Laws that prohibit or punish group membership must meet strict scrutiny, the government must prove a law serves a compelling government interest unrelated to the suppression of ideas and must use the least restrictive means of protecting that interest.
153
Freedom of Association and Belief
Laws that prohibit or punish group membership must meet strict scrutiny, the government must prove a law serves a compelling government interest unrelated to the suppression of ideas and must use the least restrictive means of protecting that interest.
To punish membership in a group it must be proven that the person: (1) (2) and (3)
(1) is actively affiliated with the group; (2) has knowledge of the group's illegal activities; and (3) has specific intent of furthering those illegal activities or objectives.
154
Laws that require disclosure of a group membership, where such disclosure would chill association, must meet strict scrutiny. Freedom of Association generally does not protect a right to discriminate except for
(1) intimate association such as in one's own home, and (2) where discrimination is integral to the expressive activities of the group such as the KKK.
155
Privacy and the First Amendment
A state may ____ create liability for the ____ reporting of information that was ____ obtained from the government's records.
A state may not create liability for the truthful reporting of information that was legally obtained from the government's records.
156
The government may ____ its own dissemination of information to ____ privacy. The ____ instance where the public has a ____ Amendment right to attend government ____ and have access____ to government ____ is for ____ trials and most criminal ____ proceedings.
The government may restrict its own dissemination of information to protect privacy. The only instance where the public has a First Amendment right to attend government proceedings and have access to government papers is for criminal trials and most criminal pretrial proceedings.
157
The ____ may ____ be held liable for broadcasting a tape of an ____ intercepted and recorded call, so long as the ____ did ____ ____ in the ____ and it involves in matter of ____ ____ .
The media may not be held liable for broadcasting a tape of an illegally intercepted and recorded call, so long as the media did not participate in the illegality and it involves in matter of public importance.
158
Freedom of Religion General Intro
The First Amendment prohibition on ____ of religion and its protection of the free ____ of religion is applicable to the states through the ____ amendment.
The First Amendment prohibition on establishment of religion and its protection of the free exercise of religion is applicable to the states through the 14th amendment.
159
Freedom of Religion Analysis
Ask whether ____ interferes with religious ____ and one that interferes with ____ that a person wishes to engage in because of his ____ . The freedom to hold religious beliefs is ____ . ____ may be regulated even if the regulation interferes with a person’s ____ ____ UNLESS the regulation is designed to regulate actions ____ because they are religious.
Ask whether statute/action interferes with religious belief and one that interferes with conduct that a person wishes to engage in because of his religion. The freedom to hold religious beliefs is absolute. Conduct may be regulated even if the regulation interferes with a person’s religious practices UNLESS the regulation is designed to regulate actions only because they are religious.
160
Freedom of Religion/Free Exercise Clause
The Free Exercise Clause prohibits government from ____ someone on the basis of her religious ____ . The clause ____ state of government from requiring office ____ or ____ to take a religious ____ , the states from excluding ____ from holding public office, and courts from declaring religious beliefs to be ____ .
The Free Exercise Clause prohibits government from punishing someone on the basis of her religious beliefs. The clause forbids state of government from requiring office holders or employees to take a religious oath, the states from excluding clerics from holding public office, and courts from declaring religious beliefs to be false.
161
The Free Exercise Clause ____ be used to challenge a ____ law of ____ applicability UNLESS the regulation was ____ ____ to interfere with religion (____ ).
Moreover, the Free Exercise Clause does not require religious ____ from ____ applicable governmental ____ that happened to ____ religious ____ (such as a law that regulates the conduct of all people can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him from complying with the law).
The Free Exercise Clause cannot be used to challenge a neutral law of general applicability UNLESS the regulation was specifically designed to interfere with religion (chickens). Moreover, the Free Exercise Clause does not require religious exemptions from general applicable governmental regulations that happened to burden religious conduct (such as a law that regulates the conduct of all people can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him from complying with the law).
162
To summarize, the Free ____ Clause ____ government interference with ____ ____ , but it generally does not ____ regulation of ____ . If the governmental action ____ general conduct, including religious conduct, it is ____ (____ ). The only exception to this rule are those pertaining to ____ ____ and the ____ of Amish children.
To summarize, the Free Exercise Clause prohibits government interference with religious beliefs, but it generally does not prohibit regulation of conduct. If the governmental action regulates general conduct, including religious conduct, it is valid (peyote). The only exception to this rule are those pertaining to unemployment compensation and the education of Amish children.
163
The ____ Clause, along with the Free Exercise Clause, compels the government to pursue a course of ____ toward religion.
Government action challenged under the Establishment Clause will be found ____ UNLESS the action passes the ____ test: (1) has a secular purpose; (2) has a primary effect that does not advance nor inhibit religion; And (3) does not produce excessive entanglement with the religion.
Freedom of Religion/Establishment Clause
The Establishment Clause, along with the Free Exercise Clause, compels the government to pursue a course of neutrality toward religion. Government action challenged under the Establishment Clause will be found invalid UNLESS the action passes the Lemon test: (1) has a secular purpose; (2) has a primary effect that does not advance nor inhibit religion; And (3) does not produce excessive entanglement with the religion.
164
Freedom of Religion/Establishment Clause
The Establishment Clause, along with the Free Exercise Clause, compels the government to pursue a course of neutrality toward religion. Government action challenged under the Establishment Clause will be found invalid UNLESS the action passes the ____ test: (1) ____ ; (2) ____ ; And (3) ____.
Freedom of Religion/Establishment Clause
The Establishment Clause, along with the Free Exercise Clause, compels the government to pursue a course of neutrality toward religion. Government action challenged under the Establishment Clause will be found invalid UNLESS the action passes the Lemon test: (1) has a secular purpose; (2) has a primary effect that does not advance nor inhibit religion; And (3) does not produce excessive entanglement with the religion.
165
Government Sponsored Religious Activity in Schools
Government sponsored religious activity in public schools is ____ , but religious ____ and ____ ____ must have the same ____ to school facilities as ____ -____ groups.
The Supreme Court has held that the ____ interest test ____ ____ apply to ____ cases involving public school sponsorship of extracurricular activities; instead, the ____ ____ ____ rules apply: sponsorship of associations can be subject to regulation that is ____ ____ an ____ ____ to a ____ government interest.
Government Sponsored Religious Activity in Schools
Government sponsored religious activity in public schools is unconstitutional, but religious students and community groups must have the same access to school facilities as non-religious groups.
The Supreme Court has held that the compelling interest test does not apply to infringement cases involving public school sponsorship of extracurricular activities; instead, the limited public forum rules apply: sponsorship of associations can be subject to regulation that is viewpoint neutral an reasonably related to a legitimate government interest.
166
Parochial Schools
The government may give assistance to ____ schools, so long as it is not used for ____ instruction. The government may provide parents ____ which they use in parochial schools. The government has a ____ secular purpose for quality education and parents are able to ____ where to spend the voucher.
Parochial Schools
The government may give assistance to parochial schools, so long as it is not used for religious instruction. The government may provide parents vouchers which they use in parochial schools. The government has a valid secular purpose for quality education and parents are able to choose where to spend the voucher
