Federal Constitutional Law 13 Flashcards
The Supreme Court will not decide a challenge to a government action UNLESS
the challenger has “standing” to raise the issue.
A person has standing ONLY IF:
that person can demonstrate an injury in fact, which need NOT be economic. The person must also show that the injury was caused by the defendant and will be remedied by a decision in the person’s favor (that is, causation and redressability).
How does one establish an “injury in fact”?
The injury must be:
- particularized (that is, an injury that affects the plaintiff in a personal & individual way); and
- concrete (that is, an injury that exists in fact)
When does an organization have standing to challenge an action on behalf of its members?
If it can demonstrate that:
- its members have suffered an injury in fact that would give the members a right to sue;
- the injury is related to the organization’s purpose; and
- neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit.
What does the First Amendment protect?
The First Amendment, applicable to the states through the Fourteenth Amendment, protects the freedom of speech and the right of the people to assemble.
Content based regulations are subject to what SCRUTINY?
Pursuant to the First Amendment, content-based regulations on speech are subject to strict scrutiny.
What is the strict scrutiny standard?
Under the strict scrutiny standard, a law will be upheld only if it is necessary to achieve a compelling government purpose and is narrowly tailored to achieve that end.
May the government regulate the time, place, or manner of speech on public forums?
Yes.
What must the government show to avoid strict scrutiny in a time, place, and manner restriction?
Their regulations must be:
- Content neutral (viewpoint and subject matter neutral);
- Be narrowly tailored to serve an important government interest (the strict scrutiny standard);
- Leave open alternative channels of communication.
A time, place, or manner regulation must ALSO provide defined standards for applying the law (i.e. contain procedural safeguards and not grant officials unbridled discretion)
When is a regulation “content neutral”?
When it doesn’t discriminate based on any particular viewpoint or subject matter.
Will the courts permit content-based restrictions on unprotected speech?
Yes.
Unprotected speech includes “fighting words”, which is speech that…
is inherently likely to incite immediate physical retaliation or that is meant to communicate an intent to place an individual in fear of bodily harm.
Unprotected speech also includes language that creates a “clear and present danger” of imminent lawless action, TRUE OR FALSE?
True.
When is a speech restriction “overbroad”?
Where it prohibits substantially more speech than is necessary. Generally, if a regulation of speech or speech-related conduct punishes a substantial amount of protected speech, judged in relation to the regulation’s plainly legitimate sweep, the regulation is facially invalid.
What is the “void for vagueness doctrine”?
This is applied more strictly when First Amendment activity is involved. A regulation is invalid if it fails to give people reasonable notice of what is prohibited.
