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304 Cards in this Set
- Front
- Back
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Four justiciability doctrines
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Standing, mootness, ripeness, political question
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What is standing?
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The issue of whether the plaintiff is the proper party to bring a matter to court for adjudication
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What are the four requirements for standing:
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P has been injured or imminently will be injured, D caused injury so that a favorable court decision is likely to remedy the injury, no third party standing (exceptions), no generalized grievances (exceptions)
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What must P show for standing if P seeks injunctive/declaratory relief?
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A likelihood of future harm
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'Best standing'
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P has personally suffered monetary loss
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What is the problem if there is no redressability?
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If a favorable court ruling would have no effect it would be an impermissible advisory opinion
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Third party standing - exceptions
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P must meet other standing requirements, and either close relationship between P and injured 3d party (parent/child; doctor/patient) or injured 3d party unlikely to be able to assert his/her own rights; organization may sue if members would have standing, interests are germane to organization's purpose, neither claim nor relief requires participation of individual members
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Can father sue on behalf of daughter, if he doesn't have legal custody, and custodial parent doesn't want to sue
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No (pledge case)
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When may P sue 'as a taxpayer'?
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ONLY to challenge government spending (of MONEY) pursuant to federal statutes as violating the Establishment Clause (RELIGION)
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When may P sue 'as a citizen'?
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Never
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What Establishment Clause spending won't be a basis for taxpayer standing?
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Spending from general expenditures (rather than fed statutes), grants of property (rather than money)
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What is ripeness?
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The question of whether a federal court may grant preenforcement review of a statute or regulation.
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When should I look for ripeness, especially?
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When there's a request for declaratory judgment?
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What criteria do courts consider in deciding ripeness questions?
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Hardship that will be suffered without preenforcement review, and fitness of the issues and the record for judicial review
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What is mootness?
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If events after the filing of a lawsuit end P's injury, the case must be dismissed as moot
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What are the exceptions to mootness?
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Wrong capable of repetition but evading review, voluntary cessation, class-action suits
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What case exemplifies wrong capable of repetition but evading review?
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Roe v. Wade, because gestation is shorter than litigation
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How does mootness work in class-action context?
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If named P's claim becomes moot, c/a will not be dismissed so long as one member of the class has an ongoing injury
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What are the nonjusticiable political qs?
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'Republican form of government' clause (Art. 4, § IV), challenges to the President's conduct of foreign policy, challenges to the impeachment and removal process, challenges to partisan gerrymandering.
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What's wrong with Vietnam war lawsuits saying President didn't have to declare war?
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They're nonjusticiable because they challenge the President's conduct of foreign policy
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Which cases must come to Supreme Court by writ of certiorari?
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All state court cases, all cases from U.S. court of appeals
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What does a writ of certiorari mean?
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Discretionary review
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Which cases must the Supreme Court hear on appeal?
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Decisions of three-judge federal district courts (available only for some specific statutes) - appeals heard DIRECTLY by U.S. supreme Court
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Which court(s) have original/exclusive jurisdiction?
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Suits between state governments
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What is the final judgment rule?
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Supreme Court may hear only after there has been a final judgment of the highest state court, or a U.S. Court of Appeals or of a 3-judge district court
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The final judgment rule means there's no ___ appeal
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Interlocutory
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For the Supreme Court to review a state court decision, there must not be …
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an independent and adequate state law ground of decision
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When can the Supreme Court review a state court decision?
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When there is no independent and adequate state law ground of decision
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What is the principle of sovereign immunity?
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The 11A bars suits against state in federal court (unless exception)
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May federal courts (or state courts) hear suits against state governments?
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No, not even on federal statutes
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When may states be sued - AKA, when does sovereign immunity not apply? (4)
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Express waiver, federal laws adopted under § 5 of 14A (which authorizes Congress to pass laws enforcing the 14A), suits by federal government, bankruptcy proceedings
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When may state officers be sued?
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For injunctive relief, for money damages to be paid out of their own pockets
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When may state officers NOT be sued?
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If the state treasury will wind up paying retroactive damages
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How do you get around sovereign immunity?
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Sue state officers for injunctive relief or money damages to be paid out of their own pockets (and don't name the state!)
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What does abstention mean in context of constitutional law?
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Federal courts may not enjoin pending state proceedings (even though federal court has jx and all justiciability requirements are met)
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What does congress need to act?
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Express or implied authority
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When does Congress have police power?
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MILD: When legislating for MILITARY, INDIAN reservations, federal LAND/territories, D.C.
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What does the Necessary and Proper clause allow?
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Congress may choose any means not prohibited by the constitution to carry out its authority
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What would allow Congress to hold a national bake sale to fund the army and the navy?
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The Necessary and Proper clause.
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For what purposes may Congress tax and spend?
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For the general welfare
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When is the general welfare sufficient justification for congressional action?
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Only for taxing and spending, or for the general welfare
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What is the commerce clause allow?
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Congress may regulate commerce among states, between U.S. and foreign states, or between U.S. and Indian tribe
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In what three situations may Congress regulate interstate commerce?
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Channels of commerce (railroad, Internet), instrumentalities of interstate commerce (trucks, radio waves) and persons/things in interstate commerce, economic activities that have a significant effect on interstate commerce (can be cumulative - home grown wheat/marijuana)
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What's the challenge with noneconomic activity and commerce clause legislation?
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Congress cannot find substantial economic impact based on cumulative, noneconomically activity
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What does the 10A do?
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Reserves to the states, or the people, all powers not granted to the U.S. states or prohibited to the states
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What does the 10A keep Congress from doing?
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Compelling state legislative or regulatory activity
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How may congress induce state government action without violating the 10A?
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By putting strings on grants, so long as the conditions are clearly stated and related to the purpose of the program.
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What does the 10A NOT keep Congress from doing?
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Prohibiting harmful commercial activity by state governments
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What does § 5, 14A allow?
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Congress may adopt laws to enforce the 14A
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What limits are there on § 5 legislation?
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Congress may not create or expand 14A rights. It may only prevent or remedy violations of 14A already recognized by courts; even then laws must be proportional and congruent to remedying the constitutional violation.
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What limit exists on Congress' ability to delegate legislative powers?
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Traditionally, the non-delegation doctrine; since 1937, no federal law has been struck down as excessive delegation of legislative powers
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Legislative and line-item vetoes are…
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Unconstitutional
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Why are legislative/line-item vetoes unconstitutional?
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They lack bicameralism and presentment
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May the President sign/veto only part of a bill?
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No; the President must sign/veto the bill in its entirety
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When may Congress delegate executive power to itself/its officers?
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Never
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What is a treaty?
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Agreement between U.S. and foreign power that is negotiated by president and ratified by senate
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Which controls, treaty or state law?
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Treaty
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Which controls, treaty or federal law?
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Last adopted
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Which controls, treaty or U.S. constitution?
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Constitution; if treaty conflicts, it is invalid
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What is an executive agreement?
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Agreement between U.S. and foreign power that is effective when signed by the president and head of a foreign nation
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What is the difference between a treaty and an executive agreement?
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Only treaties require senate ratification
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Which controls, executive agreement or state law?
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Executive agreement
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Which controls, executive agreement or federal law
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Federal law
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Which controls, executive agreement or constitution?
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Constitution; if executive agreement conflicts, it is invalid
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If someone sues over President's use of troops in foreign country?
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Best result, case dismissed as political question; otherwise, President will win because he has broad power to use troops
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Who must be appointed by the President?
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President appoints ambassadors, federal judges and officers of U.S.
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Who appoints inferior officers?
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Congress may vest appointment of inferior officers in President, heads of departments/agencies or federal courts
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What is an inferior officer?
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One who can be fired by other officers
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When may Congress give itself the appointment power?
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Never, because appointment power is an executive power
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The President may fire any executive branch officer unless…
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Congress by statute limits removal
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When may Congress limit removal?
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Must be an office where independence from President is desirable (not cabinet officer),statute must not prohibit removal (may say for good cause)
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Who may be impeached?
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President, VP, all officers of U.S.
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For which offenses may Congress impeach
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treason, bribery, high crimes/misdemeanors
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Does impeachment remove a person from office?
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No - a trial in the senate must follow
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Who impeaches?
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House
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When does the President have absolute immunity?
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For civil suits for money damages for anything President do to carry out office while in presidency
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When does President not have absolute immunity?
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Actions that occurred prior to taking office
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What protects presidential papers/conversations?
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Executive privilege
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When must executive privilege yield?
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Other important government interests (e.g., need for evidence to support defense in criminal trial)
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Who may president pardon?
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All accused/convicted of federal crimes, except offenses leading to impeachment
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When may president pardon as to state crimes?
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Never - only federal
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What's the difference re criminal/civil liability re presidential pardon power?
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President may pardon only criminal convictions (under federal, not state, law)
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What is the Supremacy Clause?
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Art. VI - the Constitution and laws, treaties made pursuant to it, is the supreme law of the land
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What are the types of preemption?
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If federal statute provides that federal law is exclusive in the field, then state laws are preempted (state/local governments cannot regulate in the field), implied (fed/state laws mutually exclusive, state law impedes achievement of a federal objective, clear congressional intent to preempt state law)
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May states set stricter environmental standards than federal law?
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Yes, unless Congress expressly prohibits (applies to non-environmental law, too)
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What does inter-governmental immunity prohibit?
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It prohibits states from taxing or regulating federal government activity
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Can a state tax a store operated by a federal government on an army base?
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No; this is prohibited by inter-governmental immunity
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Must the federal government comply with state anti-pollution laws?
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No, because of intergovernmental immunity
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What is the dormant commerce clause?
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The principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce
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What are the two applications of the Commerce Clause?
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Authority of Commerce to Act, limit on what state/local governments can do.
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What is the negative implications of the commerce clause?
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The dormant commerce clause
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What is the Privileges and Immunities Clause of Art. IV
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Art IV - no state may deprive citizens of other states of the privileges and immunities it accords its own citizens
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Which constitutional provision is an anti-discrimination provision protecting out-of-staters?
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Privileges & Immunities clause of Art IV
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The Privileges and Immunities Clause of 14A is always the wrong answer, unless the question involves…
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the right to travel
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What does the Privileges and Immunities Clause of the 14A protect?
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Freedom of travel
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How to analyze a law that doesn't discriminate among states?
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If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits.
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When does a state/local law NOT violate the Dormant Commerce Clause, if it discriminates against out of staters and burdens interstate commerce?
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ONLY when it is necessary to achieve an important governmental purpose (2 exceptions: Congressional approval of state/local law, market participant)
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What does the market participant exception allow?
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A state/local government may favor its own citizens in receiving benefits from government programs or in dealing with government-owned businesses
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What are the two situations that illustrate the market-participant exception?
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In-state tuition preferences by PUBLIC universities, discrimination by state-owned/operated businesses
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When does a state/local law NOT violate the Privileges and Immunities Clause of Art. IV, if it discriminates against out-of-staters with regard to their ability to earn a livelihood?
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When discrimination is necessary to achieve an important governmental purpose. (Factors: Law must discriminate against out-of-staters, must be with regard to civil liberties or important economic activities, corporations and aliens cannot use the privileges and immunities clause, discrimination must be necessary to achieve an important governmental purpose)
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If a state/local government discriminates against out-of-staters, and challenger is corporation or alien, which constitutional clause is available?
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Only the Dormant Commerce Clause (Privileges & Immunities Clause of Art. IV is only available to citizens)
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How may states use their tax systems to help in-state businesses?
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Not at all
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When may state tax activities?
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If there is a substantial nexus to the state
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How is state taxation of interstate business limited?
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It must be fairly apportioned (e.g., % revenues from state, % miles due to travel in state)
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What does Full Faith and Credit require?
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State/federal courts in one state must give full faith and credit to judgments of courts in another state, so long as court that rendered the judgment had JX over person/subject matter, judgment is on merits, judgment is final
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Re individual liberties, need the president of Austin College comply with the First Amendment?
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No
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Re individual liberties, need a local officer comply with the constitution?
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Yes - that's state action
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How may Congress apply constitutional norms to private conduct?
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By statute - 13A - Congress may prohibit private race discrimination; the commerce power can be used to apply constitutional norms to private conduct
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Can discrimination violate the 13A?
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No - only federal laws adopted under 13A (only slavery violates the 13A)
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Best grounds for Congress to use to adopt laws prohibiting race discrimination in housing?
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13A could work
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14A § 5 can regulate only…
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public action
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In what situations must private conduct comply with the Constitution?
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Public function (private entity performing a task traditionally/exclusively done by government - e.g., running a town, holding elections), entanglement (government affirmatively authorizes, encourages, facilitates unconstitutional activity - e.g., racially restrictive covenants
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Does the public function exception apply to private utilities (e.g., must the utility provide due process before cutting off service)?
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No. Running a utility is not a task that has been traditionally, exclusively done by government
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In what seven main situations does the entanglement exception apply?
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Government cannot enforce racially restrictive covenants, there IS state action when government leases premises to a restaurant that racially discriminates, there is state action when a state provides free textbooks to schools that racially discriminate (acting to encourage discrimination), there IS state action when a private entity regulates interscholastic sports within a state; there is NOT state action when a private school that is 99% government-funded fires a teacher because of her speech, when the NCAA orders suspension of a basketball coach at a state university, when a private club with a liquor license from the state racially discriminates
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When does the Court seem most willing to apply entanglement exception?
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When race discrimination is found
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How does Bill of Rights apply to state/local governments?
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Through its incorporation into the due process clause of the 14A.
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In what cases does the Bill of Rights not apply to state and local governments (because these rights are less fundamental)?
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Second Amendment right to bear arms, Third Amendment right not to have a soldier quartered in a person's home, Fifth Amendment right to grand jury indictment in criminal cases, Seventh Amendment right to jury trial in civil cases, Eight Amendment right against excessive fines
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Rational basis test
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Rationally related for a legitimate conceivable government purpose / burden on challenger / no least restrictive alternative analysis
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Intermediate scrutiny
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Substantially related to an important, actual government purposes/ burden on government/ no least restrictive alternative analysis
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Strict scrutiny
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Necessary to a compelling, actual government purpose / burden on government / least restrictive alternative analysis
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What is a substantive due process question?
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Whether the government has sufficient justification for taking away rights
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What is an equal protection clause question?
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Whether government's different treatment of people is adequately justified
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What is a procedural due process question?
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Whether the government followed sufficient process in taking away life liberty or property
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Due process violation analysis:
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Has there been a deprivation of life, liberty, or property? What procedures are required?
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When does a deprivation of liberty occur?
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If there is a loss of a significant freedom provided by the Constitution or a statute
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Is harm to reputation a violation of liberty?
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No
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Do prisoners have liberty interests?
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Rarely
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How do we consider whether a person has a property interest?
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Whether there is an entitlement = a reasonable expectation of continued receipt of a benefit
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What is the rights/privileges distinction?
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A red herring - it is always wrong to distinguish
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What kind of government act is required for due process violation?
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Intentional, reckless - not negligent
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When can an officer be held liable for due process violation, in an emergency case?
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Only if officer's act shocks the conscience and was intentional
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Does the government have a duty to protect people from privately inflicted harms?
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No
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When does the government have a duty to provide protection?
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Only if government literally creates the danger, or if the person is in government custody
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How to determine proper procedure?
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Balance the importance of the interest to the individual, ability of additional procedures to increase accuracy of the fact-finding, government's interests
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What procedure is required for termination of welfare benefits?
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Notice and hearing
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What procedure is required for termination of social security disability benefits?
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Only a post-termination hearing
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What procedure is required for a student to be disciplined by a public school?
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Notice of the charges and an opportunity to explain, but not necessarily a trial-type hearing
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What procedure is required before a student is disciplined through corporal punishment by a public school?
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None
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What procedure is required before a parent's custody of a child can be permanently terminated?
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Notice and a hearing
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What procedure is required for punitive damages?
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Instructions to the jury and judicial review
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Grossly excessive punitive damages violate…
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due process
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What procedure is required for an American citizen detained as an enemy combatant?
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Due process
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What procedure is required for prejudgment attachment?
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Except in exigent circumstances (reasonable belief that person would get rid of property before judgment), notice and hearing (Government may seize property used in illegal activity even if it has an innocent owner)
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What standard of review is used for laws affecting economic rights?
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Rational basis review
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What are examples of economic rights?
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Minimum wages, consumer protection law, laws regulating trade or profession
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What does the takings clause allow?
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The government may take private property for public use if it provides just compensation?
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Analysis for takings?
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Is there a taking (possessory/regulatory), is it for public use? Then just compensation must be paid or return the property
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What is a possessory taking?
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Government confiscation or physical occupation of property is always a taking
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What is a regulatory taking?
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Government regulation that leaves no reasonable economically viable use of the property
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When are government conditions on development of property a taking?
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When the benefit is not roughly proportionate to the burden imposed
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May a property owner bring a takings challenge to regulations that existed when the property was acquired?
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Yes
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Is the government's temporarily denying an owner use/development of property a taking?
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No, not if the government's action was reasonable.
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When is a taking for public use?
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So long as the government acts out of the reasonable belief that the taking will benefit the public
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How is 'just compensation' measured?
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By the loss to the owner in reasonable economic/market terms. The gain to the government is irrelevant.
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When does the contracts clause apply to the federal government?
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Never
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What does the contract clause state?
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No state shall impair the obligations of contracts
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To which contracts does the contract clause apply?
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State or local interference with existing contracts
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What is the test for determining whether local/state government interference violates the contracts clause?
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Does the legislation substantially impair a party's rights under an existing contract? If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest
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What is the standard for state/local interference with government contracts?
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Strict scrutiny
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How does the ex post facto clause apply in civil cases?
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It doesn't. An ex post facto law is a law that criminally punishes conduct that was lawfully when it was done or that increases punishment for a crime after it was committed
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What is the standard for retroactive civil liability?
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Rational basis review
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Privacy is…
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a fundamental right protected under substantive due process
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When may the federal government interfere with the right to privacy?
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Only when government can meet strict scrutiny (exception: abortion rights - different standard; homosexual activity/refuse medical care - no articulated standard)
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What rights are included in the right to privacy?
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Right to marry, right to procreate, right to custody of one's children, right to keep the family together (includes extended family), right to control the upbringing of one's children, right to purchase and use contraceptives, right to abortion, right to engage in private, consensual homosexual activity, right to refuse medical treatment; NOT right to physician-assisted suicide
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May the state create an irrebutable presumption that a married woman's husband is the father of her child
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Yes
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Regulation of abortions: Prior to viability…
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The government cannot prohibit abortions, but may regulate abortion so long as they do not place an undue burden on the ability to obtain an abortion
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Is a 24-hour waiting period for abortions an undue burden?
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No
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Is a requirement that abortions be performed by licensed physicians an undue burden?
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No
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Is the prohibition of 'partial birth abortions' an undue burden?
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No
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Regulation of abortions: After viability…
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States may prohibit abortions unless necessary to protect the public's life/health
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Does the government have a duty to subsidize abortions or provide abortions in public hospitals?
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No
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Is a requirement of spousal consent/notification and undue burden?
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Yes, these are unconstitutional
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Is a requirement of parental notice/consent for an unmarried minor's abortion and undue burden?
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No, so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor's best interests or that she is mature enough to decide for herself
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Do competent adults have the right to refuse medical treatment, even if it would be life-saving?
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Yes
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What evidence may a state require that a person wanted treatment terminated before it is ended?
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Clear and convincing evidence
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May a state prevent family members from terminating treatment for another?
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Yes
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Does the second amendment provide right to possess guns for self-protection?
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Yes
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What is the standard for laws preventing people from moving into a state?
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Strict scrutiny
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What is the standard for durational residency requirements?
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Strict scrutiny
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What is the standard for restrictions on foreign travel?
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Rational basis review
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What is the maximum allowable durational residency requirement?
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50 days
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Is the right to vote a fundamental right?
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Yes
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Poll taxes must pass…
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strict scrutiny
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Property requirements to vote…
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must meet strict scrutiny (and they won't)
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What is the standard for regulations of the electoral process to prevent fraud?
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The only need be on balance desirable
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One person-one vote must be met for…
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all state/local elections
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Are at-large elections constitutional?
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Yes, unless there is proof of a discriminatory purpose
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May race be used in drawing election district lines?
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Only if it meets strict scrutiny
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Counting uncounted votes without standard in a presidential election violates…
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equal protection
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The right to education is…
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not a fundamental right
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How to approach equal protection questions:
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What is the classification? What level of scrutiny should be applied? Does this law meet the level of scrutiny?
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When does the 14A apply to the federal government?
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Never
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How is equal protection applied to state and local governments?
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14A
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How is equal protection applied to federal governments?
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5A
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What is the standard for classifications based on race/national origin?
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Strict scrutiny
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How is the existence of a racial classification proven?
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Classification exists on the face of the law; if law is facially neutral, proving racial classification requires demonstrating both discriminatory impact and discriminatory intent
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Does discriminatory use of peremptory challenges based on race deny equal protection?
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Yes
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What is the standard for racial classifications benefiting minorities?
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Strict scrutiny
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Numerical set-asides to benefit minorities require…
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clear proof of past-discrimination
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How can educational institutions use race in admissions tests to help minorities?
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As one factor among many
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Colleges and universities have a compelling interest in …
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a diverse student body
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May colleges and universities add points to applicants' admissions scores solely on basis of race?
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No
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When may public school systems use race as a factor in assigning students to schools?
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Only if strict scrutiny is met - remedy for past discrimination
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What is the standard for gender classifications?
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Intermediate scrutiny - only if 'an exceedingly persuasive justification'
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How is the existence of a gender classification proven?
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Classification exists on the face of the law; if law is facially neutral, proving gender classification requires demonstrating both discriminatory impact and discriminatory intent
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Are gender classifications benefiting women allowed, if they are based on role stereotypes?
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No
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Are gender classifications allowed if they are designed to remedy past discriminations/differences in opportunity?
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Yes
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Is it constitutional to grant survivor benefits to women but not to men?
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No
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What is the standard for gender classifications benefiting women?
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Intermediate scrutiny
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What are alienate classifications?
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Laws that discriminate against non-citizens
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What standard is used for alien classifications when government discriminates against non-citizens?
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Strict scrutiny, but several exceptions (RBR for self-government and democratic process, Congressional discrimination against aliens; apparently, intermediate scrutiny for discrimination against undocumented alien children)
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When may government discriminate against non-citizens
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Voting, serving on jury, being police officer, teacher or probation officer
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What standard is used for discrimination against aliens regarding becoming notary?
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Strict scrutiny - not related to self-government/democratic process
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What standard is used for discrimination against nonmarital children?
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Intermediate scrutiny
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Are laws that deny a benefit to all non-marital children but grant it to all marital children constitutional, and under what test?
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No, intermediate scrutiny
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Rational basis review is used for
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All other discrimination (age, disability, wealth, economic, sexual orientation)
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No equal protection cases have been heard for religion, but the expectation is that that standard would be
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strict scrutiny
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Is poverty a suspect class?
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No - RBR
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Is age a suspect class?
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No - RBR
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Is sexual orientated a suspect class?
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No - RBR
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Free speech methodology
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Content-based v. content-neutral, prior restraint, vagueness/overbreadth, symbolic speech, anonymous speech
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Content-based restrictions on speech generally must meet…
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Strict scrutiny
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What are the two types of content-based laws?
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Subject matter restrictions (application of the law depends on the topic of the message), viewpoint restrictions (application of the law depends on the ideology of the message)
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Content-neutral restrictions on speech generally must meet…
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Intermediate scrutiny
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What is a prior restraint?
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A judicial order or an administrative system that stop speech before it is made
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Court orders suppressing speech must meet…
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Strict scrutiny
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Gag orders on the press to prevent prejudicial pretrial publicity…
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are not allowed
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Procedurally proper court orders…
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must be complied with until they are vacated or overturned
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A person who violates a court order is barred…
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from later challenging it
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When may the government require a license for speech?
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Only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority; licensing schemes must contain procedural safeguards, such as prompt determination of requests for licenses and judicial review
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When is a law unconstitutionally vague?
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If a reasonable person cannot tell what speech is prohibited and what is allowed
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When is a law unconstitutionally overbroad?
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When it regulates substantially more speech than the constitution allows to be regulated
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Are laws prohibiting fighting words protected by the First Amendment?
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No, because they are unconstitutionally vague and overbroad
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What are fighting words?
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Words directed at another that are likely to promote a fighting response
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Are fighting words constitutionally protected by the First Amendment?
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No <cq>
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When can government regulate symbolic speech?
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Only if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater necessary to achieve the government's purpose
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Is flag burning constitutionally protected speech?
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Yes
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What is symbolic speech?
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Conduct that communicates (flag burning, draft-card burning, campaign contributions, cross-burning)
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Is draft card burning constitutionally protected speech?
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No - the government had an important interest in making sure people had their draft cards…and the impact on communication was no greater than necessary to achieve the government's purpose
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Is nude dancing protected speech?
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No
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Is burning a cross protected speech?
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Yes, unless it is done with the intent to intimidate or threaten.
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Are campaign contributions constitutional?
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Yes
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Are campaign expenditure limits constitutional?
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No
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Is anonymous speech protected by the First Amendment?
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Yes
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Which speech is unprotected/less protected by the First Amendment?
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Incitement of illegal activity, obscenity and sexually-oriented speech, commercial speech, defamation, privacy
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When may the government punish speech related to the incitement of illegal activity
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When there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality
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What is the test for obscenity /sexually oriented speech?
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The material must appeal to the prurient interferes (shameful/morbid interest in sex - healthy interest not OK)(local standard); material must be patently offensive under the law prohibiting obscenity (based on legislative body involved), material must lack serious redeeming artistic, literary, political or scientific value (based on perception in the entire country)
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How can the government regulate the location of adult bookstores/movie theaters?
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Zoning ordinances
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Erogenous zoning…
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is permissible
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How may the government regulate child pornography?
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Child pornography may be completely banned, even if not obscene (material must have used children in its production)
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How can the government regulate private possession of obscene material?
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It can't - other than child pornography, which it can punish
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May the government seize the assets of businesses convicted of obscenity law violations?
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Yes
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Is profane and indecent speech protected by the First Amendment?
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Yes, except over broadcast media (FREE, over-the-air TV/radio) or in schools
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How may the government regulate advertising for illegal activity, and false and deceptive ads
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Prohibit and punish them - they're not protected by the First Amendment
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How may the government regulate true commercial speech that inherently risks deception?
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It may be prohibited
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May the government prevent professionals from advertising/practicing under a trade name?
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Yes (TX prohibited Sight for Sore Eyes)
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May the government prohibit attorney solicitation of clients for profit?
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Yes - but only in-person solicitation
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May the government prohibit accountants from in-person solicitation of clients for profit?
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No
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Generally, what is the standard for regulating commercial speech?
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Intermediate scrutiny
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Does government regulation of commercial speech need to be narrowly tailored or use the least restrictive alternative?
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Narrowly tailored? Yes; Least restrictive alternative? No
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How can a public official, candidate for public office, or public figure recover for defamation?
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Only by proving falsity of the statement and actual malice; promotes open debate about candidates/officials, or recognizes that public figures have access to limelight and can respond
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How can a private figure recover for damages for defamation regarding a matter of public concern?
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Only by proving falsity and negligence by the defendant; presumed (e.g., statutory/automatic)/punitive damages only by showing actual malice
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How can a private figure recover for damages for defamation NOT regarding a matter of public concern?
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P can recover presumed/punitive damages without showing of actual malice
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May the government create liability for the truthful reporting of information that was lawfully obtained from the government?
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No
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If the media broadcasts a tape of an illegally intercepted call, is liability allowed?
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Not if the media didn't participate in the illegality and it involves a matter of public importance
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May the government limit is dissemination of information to protect privacy?
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No
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When is there a first amendment right to attend government proceedings?
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Criminal trials and most pre-trial criminal proceedings
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Does the First Amendment protect the speech of government employees on the job in performance of their duties?
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No
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What places are available for speech?
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Public forums (sidewalks/parks) - government constitutionally required to make available for speech; limited public forums (government property that the government could close to speech but chooses to open to speech); non-public forums (government properties that the government constitutionally can/does close to speech), privately owned property
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In public forums, how may regulations avoid strict scrutiny?
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Only if the regulations are subject matter d viewpoint neutral - then, intermediate scrutiny - time/place/manner restriction must be a time, place or manner regulation that serves an important government purpose and leaves open adequate alternative places for communications
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Does government regulation of speech in public forums need to use the least restrictive alternative?
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No
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May city officials have discretion to set permit fees for public demonstrations?
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No - too great a danger that fee will vary based on content/viewpoint
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What is a limited public forum?
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Government property that the government could close to speech but chooses to open to speech.
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What is a school campus on weekends?
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A limited public form
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How may speech be regulated in a limited public forum?
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Same as public forum
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When can government regulate speech in a non-public forum?
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So long as regulation is reasonable and viewpoint neutral?
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What are examples of nonpublic forums?
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Military bases (even parts open to public), areas outside prisons and jails, advertising space on city buses, sidewalks on post-office property, airports
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What speech may government prohibit in airports?
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Solicitation of money, but not distribution of leaflets (fails RBR)
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What is the First Amendment right to access private property for speech purposes?
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None (but CA constitution has that right)
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What kind of right is freedom of association?
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Fundamental right
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What is the standard for laws prohibiting or punishing group membership?
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Strict scrutiny
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To punish membership in a group, it must be proven that the person:
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actively affiliated with the group, knowing of its illegal activities, with specific intent of furthering those activities
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What is the standard for laws that require disclosure of group membership, where such disclosure would chill association?
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Strict scrutiny
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When are anti-discrimination laws (laws that prohibit a group from discriminating) unconstitutional?
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Only when they interfere with intimate association (small dinner party) or expressive activity (Klan can exclude blacks; Nazi party can exclude Jews; Boy Scouts can exclude gays)
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What are the two constitutional clauses dealing with freedom of religion?
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General exercise clause, Establishment clause
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When can the free exercise clause NOT be used to challenge a law that affects exercise of religion?
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When the law is a neutral law of general applicability
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May the government deny benefits to individuals who quit their jobs for religious reasons?
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No
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What is the test for the establishment clause?
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A law is unconstitutional if it fails any one of these (SEX): there must be a secular purpose for the law, the effect must be neither to advance nor inhibit religion (the government must NOT symbolically endorse religion, or a particular religion, there must not be excessive entanglement with religion (government generally cannot directly pay for teacher salaries in parochial schools - otherwise would have to monitor specifics of what teacher teaches).
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What is the standard for government discrimination against religion speech or among religions?
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Strict scrunity - religious speech = protected speech; among religions = establish clause
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Government sponsored religious activity in public school is…
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not allowed
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Are student-delivered prayers before high school football games allowed?
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No
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Is a moment of silent prayer allowed?
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No
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Is a moment of silent reflection allowed?
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Unclear
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What protections do religious student/community groups have in schools?
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They must have the same access to school facilities as non-religious groups
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When may the government give aid to parochial schools?
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So long as it is not used for religious instruction
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May the government give vouchers for parents to use them in parochial schools?
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Yes
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Can federal government action violate the equal protection clause?
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No, because the equal protection clause is part of the 14th amendment, which doesn't apply to the federal government. BUT, grossly unreasonably discrimination by the federal government violates Fifth Amendment due process, using the same standards as for 14th Amendment equal protection violations.
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When can conduct by a private individual violate the Due Process Clause of the 14th Amendment?
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Only when the private individual was (i) performing exclusively public functions or (ii) took actions with significant state involvement
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A complete ban on truthful advertisement of a lawful product is probably...
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Unconstitutionally because it is overbroad/not narrowly tailored.
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What is the standard for regulations of commercial speech that concerns a lawful activity and is not misleading or fraudulent?
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The regulation will be valid if it (i) serves a substantial government interest, (ii) directly advances the interest, and (iii) is narrowly tailored to serve the substantial interest.
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May Congress regulate the wages and salaries of private/state/municipal employees, and if so, under what power?
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Yes, under its commerce power.
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Which branch has power to dispose of all property belonging to the federal government?
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Congress, under its property power, Art. IV, Sect. 3.
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Are charitable solicitations of funds in residential areas protected by the First Amendment?
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Yes - so municipal ordinance prohibiting door-to-door solicitation by charities that don't use at least 75% of funds for charitable purpose is unconstitutional
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May the government limit contributions by one person to a specific campaign? To a lobbying firm?
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Yes; no - the latter doesn't satisfy sufficiently important interest to outweigh the restraints it puts on First Amendment freedoms of speech/association
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