Hypos Study Group Room Flashcards
Hypo 1: What if political speech advocates for a nazi regime?
More likely to regulate if we believe they can [applies to both]
NAZI Men:
Hate Speech Skokie
No prior restraint?
Current Justices : PQ
public vs. private
symbolic content [TX v. Johnson]
(Policy) Chilling Effect
Justiciability: PQ, 11th amendment state,
-> sue privately
Strict Scrutiny
Unless O’Brien
GOV:
J. Jackson the const. is not a suicide pact
Compelling interest J. Stevens balancing
Public Safety
Time Place Manner
Brandenburg:
(1) illegality Masses
(2) immunity (holmes)
If you go after mafia conduct -
How + Who?
Regulatory Speech vs. Conduct
Speech = Conduct
Content Neutral - O’Brien
Public safety -> only allows you to get the actual actors but not the head
Speech only -> get for incitement
gets bigger issue
loan sharking?
Inter vs. Intrastate commerce
Comingling.
War? Dennis - restricting commies
Current Court could say Rational Basis
Overturning tests and making simple to avoid P.Q.
Amend 5
Article III restraints - simp Jx
-Create additional Courts Jx
Due process double jeopardy - military tribunal
Demonstrations about war.
During war time?
Incitement - Protests
War/Emergency - would not allow this conduct
Public Safety
Pentagon Papers, Prior Restraint
How to mass destruction?
during war?
Incitement: Brandenburg test: lawless, imminency
access to knowledge :opposition
Cohen
Emergency Powers
- times of war
Congressional Authority
Executive Authority
Commander in Chief
military/militia
Deep religious believer about blasphemy
How does it change if:
God says its worse?
God says punish the blasphemer?
Belief is held by Political Official?
Freedom of Speech - Content Based
Strict Scrutiny
Content Neutral: general safety
govmt. intent to regulating
RAV
Free Exercise : impose public safety
Establishment
Historical Deference - Live + Let Live
Kennedy
Thomas?
Threshold Justiciability - Immunity
Belief in Witches
Free Exercise
Brandenburg
Defamation NYT
Federalism
general police power -> individual acting as an official
11th amendment = no, we waive that
entangles -> voting
What if goldwater 2.0
PQ?
What if congress declares war on russia for attacking baltic states
Prez vetos 2/3 overrule
Im commander in chief, I decide when soldiers get used.
Who wins?
The other judges didn’t answer the question. They rely on this political question idea that someone else should get involved first.
2024 Presidential Candidate Trump has mentioned that he was not happy with the United States commitment under Article 5 of NATO. In response to that, some people in Congress have been saying lately we should pass a statute reaffirming NATO, saying that we want the United States to defend Europe if the Russians attack.
(Part 1) Is it a political question that we leave to Congress? Or is it something we give an answer on. And if we do give an answer on it, do we give J. Brennan’s answer that the President gets to do this.
Theoretically, Trump can say I’m going to treat this as something that does not apply anymore. One of the reasons to think that is because of the decision in Goldwater. The President’s the Commander in Chief, so if the president doesn’t want to fight, you’re probably not going to fight.
^ More on this because the power to declare war in our system is not given to the President, it’s given to the Congress under Article I §8.
(Part 2) What if the Congress declares war on Russia for attacking the Baltic states? Congress declared war on Russia, and the President vetoed it, and Congress overrode the veto by two-thirds? And then the President said, Well, I’m the commander in chief. I’ll decide when soldiers actually get used. Who has the last word on that? Does the court weigh in?
If the court were to say, “yeah you have to fight because Congress declared war → you might get to the lack of judicially discoverable manageable status. What’s the detail of what the President has to do - can the court get into the weeds of strategy or tactics? That’s the kind of classic situation where you guess the court’s probably gonna say “Political-Question.” Even if we think that the President should be compliant with the declaration of war, we can’t get into the details of doing that. He’s got that discretion as commander-in-chief. Congress’s course of action should be to impeach him - provide their own remedy.
Does Contracts Clause Apply to Pension Reform?
Pension obligations are becoming increasingly challenging to fulfill. Life expectancy has risen since the policy’s inception, leading to a growing elderly population. So, retirees are drawing more benefits than they contributed.
The physical demands of a job often dictate how long one can realistically remain in that position. This is one reason why these jobs often come with generous pensions, enticing individuals to take on the risk. In knowing that the job is physically demanding and may require early retirement, the pension offers the financial support needed for such a transition.
However, unlike the Federal Government, states and local governments have to pay their bills, they can’t just print money. So, if you’re revisiting those contracts on a public interest case of “we just can’t afford to hire the people we need now”
Ex: here in California, where local authorities cannot afford to hire today’s local police and firefighters because they’re paying such huge pensions to the people who did it yesterday.
A potential solution could be taxpayers would pay more. But, the voters wouldn’t like it and the legislature just won’t do it.
The legislature would then try to find other ways to reform these promises to pay back the pensions.
And the response for the people who are beneficiaries is - Contact Clause says you cannot change these since you, the State, are a party to these contracts. The current court very well might treat it as limiting states more than the Blaisdell courts did.
Still, the courts have never taken the position that these contracts are totally unchangeable. There can be a public interest consideration of either because of deference to the state, or in contracts to which the state is a party, as a matter of the court’s judgment that the public interest calls for some reform of over-generous contracts.
Hypo 9: CA has chosen to characterize some of the things we say to each other as commercial:
- Strength of reason to regulate speech here = doesn’t need to be strong
1) Paid for by charitable foundation – urges readers to get proper nutrition.
2) But suppose only FDA able to convey this info Q: should we care/should it make a difference who the advertiser is (saying as a public, service, or proposing commerce from which they’ll profit w the ad?
3) Are we more justified in restricting them when engaged in “commercial speech”?
4) Q: what counts as commercial speech for this purpose:
If you choose to categorize things as commercial speech
Baby Hypo: Affirmative Action?
You need strict scrutiny to draw compelling to protect against racial discriminations ; Flipped around now to mean No AA either
Intermediate Scrutiny for gender distinctions.
* Language from which they are viewed are substantially related
* Potential review under Equal Protection Clause
Current Event: Foreign Aid?
Policy Hypos: Are the courts suited to enforce positive rights?
Why is US so important for “Collective Action” Problems
Case Specific: Why no general grievance for Baker?
The case has to be taken or otherwise the people are unable to fix the corruption created by the legislature. Although it’s a major grievance the issue is controlled by the legislature and there’s nothing the people can do to change the situation without SCOTUS help.
