Federal Constitutional Law Flashcards
Standing
The plaintiff bears the burden of establishing injury in fact, causation, and redressability. The injury must be concrete and particularized. Although the threat of future injury can suffice, it cannot be merely hypothetical or conjectural, but must be actual and imminent. When a future injury is alleged, damages cannot be obtained, but an injunction can be sought.
Dormant Commerce Clause
limits the power of states to legislate in ways that impact interstate commerce.
In general, if Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not (i) discriminate against out-of-state commerce, (ii) unduly burden interstate commerce, or (iii) regulate extraterritorial activity.
Dormant Commerce Clause (Discrimination Against Out-of-State Commerce)
If a state or local regulation, on its face or in practice, is discriminatory, then the regulation may be upheld if the state or local government can establish that (i) an important public interest is being served, and (ii) no other nondiscriminatory means are available to achieve that purpose. Discriminatory regulation has rarely been upheld.
Dormant Commerce Clause (Exceptions)
Market-participant exception: A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator.
Traditional government function exception: State and local regulations may favor state and local government entities, though not local private entities, when those entities are performing a traditional governmental function, such as waste disposal.
Free Speech
In general, the government may regulate the content of speech only if Strict Scrutiny met
Exceptions: obscenity, subversive speech, fighting words, defamation, or commercial speech.
Restrictions on Commercial Speech
Restrictions on commercial speech are reviewed under a four-part test: (i) the commercial speech must concern lawful activity and be neither false nor misleading (fraudulent speech or speech which proposes an illegal transaction may be prohibited), (ii) the asserted governmental interest must be substantial, (iii) the regulation must directly advance the asserted interest, and (iv) the regulation must be narrowly tailored to serve that interest. In this context, narrowly tailored does not mean the least restrictive means available; rather, there must be a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends.
Comity Clause
Prohibits one state from discriminating against the citizens of another state. In this context, the term “citizen” does not include corporations or aliens.
Speech regulation in non-public forums
The government may regulate speech-related activities in nonpublic forums as long as the regulation is (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest.
Freedom of the Press
The press has the right to publish information about matters of public concern, and the viewers have a right to receive it. The First Amendment shields the media from liability for publication of a lawfully obtained private fact, so long as the news story involves a matter of public concern.
