Individual Rights

Question 1

When is a person a public official, for purposes of 1stA?

Answer 1

When they are running for/holding elected office, or they are a public employee in a position of public importance

Question 2

When is a person a public figure, for purposes of 1stA?

Answer 2

When they have assumed a role of prominence in society, achieved fame or notoriety, or thrust themselves into public controversies

Question 3

What is a matter of public concern, for purposes of 1stA?

Answer 3

A matter of importance to society or democracy

Question 4

What must be shown to prove actual malice in a case by a public official/figure or in a case regarding a matter of public concern?

Answer 4

Knowledge of falsity (subjective awareness of falsity) OR reckless disregard as to falsity (subjective doubt that statement was true)

Question 5

When may a private party be considered a state actor for purposes of individual rights enforcement?

Answer 5

When the private party is performing a traditionally exclusive public function, or when there is “sufficient entwinement” between the state and the private party (including affirmative facilitation/enforcement of discrimination)

Question 6

When may a state discriminate against aliens without being subject to strict scrutiny?

Answer 6

When a state restricts aliens from participating in essential functions of state government or limits non-elective offices involving important public policy.

Question 7

What is the general rule for content-based restrictions on speech?

Answer 7

A content-based restriction on speech must be necessary to achieve a compelling state interest (presumptively invalid)

Question 8

What is the general rule for content-neutral restrictions on speech?

Answer 8

A content-neutral “time, place, or manner” restriction is allowed when it is narrowly tailored to achieve an important state interest and it does not restrict more speech that necessary.

Question 9

What are the definitions of a public forum and a designated public form?

Answer 9

A public forum is government property traditionally held open for speech activities; a designated public forum is government property opened to speech activities at specific times.

Question 10

What is the rule for content-neutral restrictions on public or designated public forums?

Answer 10

The restriction must be narrowly tailored to achieve an important government interest and must leave alternative forms of speech available.

Question 11

What are the definitions of a limited public forum and a non-public forum?

Answer 11

A limited public forum is government property opened to certain types of speech activity, a nonpublic forum is government property not held open to speech activities.

Question 12

What is the rule for speech restrictions on limited public forums or non-public forums?

Answer 12

The restriction must be viewpoint neutral, and must be reasonably related to a legitimate government purpose.

Question 13

What is the relevant 1st Amendment principle regarding over broad legislation?

Answer 13

Legislation which restricts substantially more speech than necessary is facially invalid, if application to Constitutionally protected speech is realistic and disproportionate to the legislation’s lawful sweep.

Question 14

What is the “one person, one vote principle”?

Answer 14

A 14th Amendment principle preventing dilution of the right to vote when members of a legislative, administrative, or executive body are elected from individual districts.

Question 15

When is speech obscene such that it is unprotected by the 1st Amendment?

Answer 15

When, taken as a whole, the speech

(1) Describes or depicts sexual conduct specified by statute
(2) Appeals to a prurient interest in sex, based on contemporary community standards
(3) Is patently offensive, based on contemporary community standards
(4) Lacks serious value, based on a national reasonable person standard

Question 16

When may a court restrict access of the press to criminal trials?

Answer 16

When closure is necessary to protect an overriding interest and narrowly tailored to protect that interest.

Question 17

What is the strict scrutiny standard?

Answer 17

A law subject to strict scrutiny must be necessary to achieve a compelling government interest.

Question 18

What is the intermediate scrutiny standard?

Answer 18

A law subject to intermediate scrutiny must be substantially related to an important government interest.

Question 19

What is the rational basis review standard?

Answer 19

A law subject to rational basis review will be upheld if it is rationally related to a legitimate government purpose.

Question 20

What is the rule established by the Takings Clause of the 5th Amendment?

Answer 20

The 5thA (incorporated by 14thA) states that property may not be taken for public use without providing just compensation.

Question 21

When is property taken for “public use” within the meaning of the Takings Clause?

Answer 21

When there is a reasonable belief that the use will benefit the public (use rationally related to a legitimate gov. purpose).

Question 22

How is “just compensation” measured under the Takings Clause?

Answer 22

Based on the fair market value of the property at the time of the taking.

Question 23

What is a regulatory taking?

Answer 23

A government regulation which deprives a landowner of all economically viable use of the land.

Question 24

How does a court determine whether a regulatory taking has occurred?

Answer 24

Court considers:

1) The government interest sought to be promoted by the regulation **

2) Diminution in value of the property to the owner

3) Whether the regulation interferes with distinct, investment-backed opportunities

Question 25

When is there a physical taking under the Takings Clause?

Answer 25

When the government confiscates real/personal property or there is a regular or permanent occupation of the property/a portion of the property by the government.

Question 26

What is the “Development Exception” to the Takings Clause?

Answer 26

A municipality making development conditional on a public easement or conveying part of title to the government is a taking UNLESS

1) There is an essential nexus b/w the condition and the proposed development (condition is related to a legitimate gov. interest)

2) The adverse impact on the proposed development is roughly proportional to the loss caused by the property owner

Question 27

When is speech considered incitement, such that it is unprotected under the 1st Amendment?

Answer 27

When it is intended and reasonably likely to incite imminent lawless action.

Question 28

When is speech considered fighting words, such that it is unprotected under the 1st Amendment?

Answer 28

When it consists of abusive language that is likely to provoke an immediate physical retaliation.

Question 29

When is speech considered a true threat, such that it is unprotected under the 1st Amendment?

Answer 29

When the speech is intended to or recklessly conveys a threat of serious bodily harm.

Question 30

What are a public schools interests in regulating speech, when the school is a government owned nonpublic forum?

Answer 30

On campus personal speech can’t be regulated unless it causes substantial disruption

Off campus personal speech can’t be regulated unless pedagogical/safety interests clearly outweigh speech interests

On campus speech related to school’s teaching can be regulated if the regulation is reasonably related to legitimate pedagogical concerns

Question 31

How does a court determine whether speech of a government employee commenting on matters of public concern outside the scope of their official duties is protected?

Answer 31

By balancing the value of the speech against the effect of the speech on the efficient operation of the workplace

Question 32

When does a person have a liberty interest entitling them to procedural due process protections if the interest is deprived?

Answer 32

When they lose significant freedom of action or are denied freedom provided by the Constitution or statute

Question 33

When does a person have a property interest entitling them to procedural due process protections if the interest is deprived?

Answer 33

When the person is deprived of real/personal property OR a government benefit in which they have a reasonable expectation of continued receipt (entitlement).

Question 34

What are examples of government benefits an individual may be entitled to?

Answer 34

Statutory remedies, tenured/term gov. employment, gov. employment subject to termination “for cause” by policy/practice, public education, welfare benefits, gov. licenses

Question 35

What is the rule regarding whether the government can regulate the publication of illegally obtained information?

Answer 35

The regulation must be narrowly tailored to serve a state interest of the highest order, as long as (1) the publication relates to a matter of public concern (2) the publisher did not obtain the information or know who did AND (3) the original speaker’s expectation of privacy was low

Question 36

What general protection is provided under Equal Protection doctrine?

Answer 36

The DP Clause of the 5thA and the Equal Protection Clause of the 14thA guarantee individuals the equal protection of the law.

Question 37

Generally, how may a school regulate speech?

Answer 37

Schools may regulate speech to accomplish their mission of educating students and keeping students safe

Question 38

What standard is used to evaluate whether “one person, one vote” is satisfied for state/local elections?

Answer 38

Population of voting districts must be substantially equal, and any deviation must be reasonable and tailored to a legitimate state interest

Question 39

What standard is used to evaluate whether “one person, one vote” is satisfied for congressional elections?

Answer 39

States must use almost exact mathematical equality to calculate populations of voting districts