ConLaw All

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  1. A case is Justiciable, and can be heard by a Federal Court when . . .
    • Standing
    • Ripeness
    • Live controversy (not moot)
    • Not a political question
  2. When does π have Standing?
    • Injury: Personal non-ideological harm
    • Causation and Redressability: court can remedy harm caused by ∆
    • No third party standing: All πs before court have personally suffered injuries
    • No generalized grievances: Suit not solely as "citizen" or "taxpayer"
  3. When may a π bring suit on behalf of a TP?
    • Close relationship: Key is whether π can adequately represent interest of injured party
    • Injury party unlike to assert rights: unless π does so on injured party's behalf
    • Organizational standing: (i) members would have standing, (ii) interests germane to org's purpose, (iii) neither the claim nor relief requires participation of individual members
  4. Ripeness: Can court grant pre-enforcement review? Must show . . .
    • Hardship w/o pre-enforcement review
    • Fitness of issues for judicial review
    • Adequate record
  5. When is a case not moot (i.e., "live")?
    • 1) Live controversy ( π still injured after filing lawsuit)
    • 2) Non-frivolous money damages
    • 3) Injury is repetitive and evades judicial review
    • 4) ∆ voluntarily ceases (possible to resume harm in future)
    • 5) Class action suits—not moot so long as ONE member of the class has an ongoing injury.
  6. Non-justiciable political question?
    • Guarantee of republican form of government
    • Challenge to President's foreign policy
    • Challenge to impeachment and removal
    • Challenge to partisan gerrymandering
  7. When can the Supreme Court hear a case?
    • 1) Case is justiciable
    • 2) Writ of cert from state court, US Courts of Appeals, 3-Judge Panel of Federal District Court; or suits between states
    • 3) Final judgment from appropriate court
    • 3) If coming from state court, no independent & adequate state law ground for decision (Example, in a state court decision resting on two grounds, one on state law the other on federal law, if the SC's reversal of the federal law ground would not change the result in the case, the Court cannot hear it)
  8. Generally, can a lower federal court hear a suit against a state government?
    • NO. Generally, a lower federal court can't hear a suit against a state government.
    • Note: State governments include state-level agencies, but do not include local governments (e.g., cities towns) or individual officials (even at the state-level)
  9. When can a state be sued in a lower federal court?
    • Express waiver - State expressly consents to suit in lower federal court
    • Suit is under law adopted under Sect. 5 of the 14th Amendment
    • When the Federal Govt is the plaintiff suing the state
    • Bankruptcy proceedings
  10. Are suits against state-level officials allowed?
    • Yes, if suit is for injunctive relief; or money damages to be paid out of officer’s own pockets.
    • BUT not ok if state treasury will be paying retroactive damages.
  11. Can a federal court enjoin a pending state court proceeding?
    No. A federal court cannot enjoin a pending state court proceeding.
  12. What are the 3 powers of Congress the MBE is most concerned about?
    • Taxing
    • Spending
    • Commerce
  13. Does the federal government have police power over the citizens of the several states? (hint: MILD)
    • No. Congress does not have a general police power. However, Congress may exercise police power in limited situations, if the exercise of that power is MILD
    • M: Military
    • I: Indian reservations
    • L: Lands (federal lands)
    • D: District of Columbia
  14. The federal government is often said to be one of limited powers. What does this mean?
    It means that the government can exercise only those powers granted to it by the Constitution. This means that Congress can only act (i.e., legislate) where its authority is express or implied from the Constitution.
  15. What does the Necessary-and-Proper clause means, in terms of Congressional authority?
    The necessary and proper clause means that Congress can adopt those laws that are "necessary and proper" to exercise the authority expressly granted to it by the Constitution.
  16. For what purpose may Congress exercise its power to Tax and Spend?
    The "general welfare" (especially where it is tied to MILD)
  17. What can Congress regulate under the Commerce Clause?
    • Congress regulate commerce with foreign nations, the indian tribes, and commerce among the several states. This means that Congress can regulate the following:
    • • Channels of interstate commerce (such as highways, waterways, the internet, etc.)
    • • Instrumentalities of interstate commerce (e.g., trains, airplanes)
    • • Persons or things in interstate commerce
    • • Economic activities that have a substantial effect on interstate commerce (e.g., cumulative effect of wheat growers)
  18. What powers do the states (people) have?
    Tenth Amendment: All powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.
  19. Can Congress compel states to adopt regulatory or legislative action? (the "stick" approach)
    • No. However, Congress can induce state government action by putting conditions on grants of federal money (the "carrot" approach) IF
    • 1) the conditions are expressly stated, AND
    • 2) the conditions are related to the purpose of the spending program
  20. Can Congress prohibit harmful commercial activities approved by a state government?
  21. Can Congress delegate its legislative power?
    • YES! There is no limit on the extent to which Congress may delegate its legislative power
    • However, Congress may not delegate executive powers to itself or its officers. Legislative vetoes are unconstitutional.
    • Exam Tip: There is no such thing as excessive delegation of legislative power by Congress
  22. What is a Line-Item-Veto?
    • Defined:
    • A line-item-veto is a bill that allows the President to sign, by line item, some provisions into law and to veto, by line item, other provisions.
    • Unconstitutional:
    • • The line-item-veto is unconstitutional because it violates the constitutional requirement of bicameralism and presentment.
    • • In other words, the President may sign into law an entire bill, or may veto an entire bill, but cannot sign only some portions of a bill and not others.
  23. What is a Treaty?
    • An agreement between the US and a foreign country
    • Negotiated by the President
    • Effective when ratified by Senate
  24. If a state law conflicts with an effective treaty, which one prevails?
    The Treaty prevails because of the Supremacy Clause.
  25. If a treaty conflicts with a federal statute, which one wins?
    The one adopted last in time controls—the one adopted earlier must yield to the more recently adopted law or treaty.
  26. What is an Executive Agreement?
    • An agreement between the US and a foreign country
    • Effective when signed by the President and head of the foreign country
  27. For what purpose may an Executive Agreement be used?
    Any purpose! Including things that could be effected by treaty.
  28. If an Executive Agreement conflicts with a state law, which one wins? With a federal law?
    • State law conflict: The Executive Agreement wins
    • Federal law conflict: The federal law wins (includes treaties and, of course, the Constitution)
  29. Can the President direct the movement of American troops in foreign countries?
    • YES! As Commander-in-Chief, the President has broad authority to direct the movement of American troops both domestically and abroad. This power is valid, even if used for an ostensibly wacky purpose. This power is also valid, even if Congress has not formally declare a war.
    • Exam tip: On the MBE, the best answer is that the President's exercise of power is not subject to judicial review because it is an unjusticiable political question. The next best answer is that the President wins.
  30. How are ambassadors, federal judges, and officers of the US appointed?
    President appoints, and Senate gives its advice and consent
  31. What types of appointments don't require Senate approval?
    Appointment of inferior officers don't require Senate approval when Congress has expressly vested appointment power in others—most notably the President, heads of departments, and the lower federal courts
  32. Can the President freely remove (fire) an executive branch official?
    YES, unless removal is expressly limited by statute
  33. Under what circumstances can Congress expressly limit the President's power to remove executive branch officials? (hint: 2 requirements)
    • 1) Officer's independence from the President is desirable, AND
    • 2) Removal of the independent officer is limited to instances of a showing of "good cause" (i.e., Congress may limit, but cannot prohibit removal)
  34. When does impeachment occur?
    • • Impeachment: occurs in the House of Representatives by a majority vote, BUT
    • • Conviction: occurs in the Senate by a two-thirds vote (60 votes)
  35. Who can be impeached?
    • President
    • Vice President
    • Federal Judges
    • All Officers of the United States
  36. What acts are impeachable?
    • Treason, or
    • Bribery, or
    • High crimes and misdemeanors
  37. Does the President have immunity from civil suits?
    • • YES, but only from civil suits while in office and for money damages
    • • There is no immunity for actions that occurred prior to taking office
  38. What is the Executive Privilege?
    • A privilege assertable by the President, and which prevents disclosure or discovery of presidential papers and conversations.
    • Note: the privilege is qualified, not absolute, and may yield to other important government interests.
  39. Under what circumstances may a Presidential Pardon be granted?
    • Accusation or conviction of Federal crimes.
    • A few things to note:
    • • Applies to federal, not state crimes
    • • Applies to criminal offenses, not civil liability
    • • Cannot pardon persons impeached by the House of Representatives
    • • Cannot pardon underlying crimes that led to impeachment
  40. What is the "Supremacy Clause" of Article VI of the Constitution?
    Provides for preemption of other conflicting laws. Preemption may be EXPRESS (such as where a federal statute expressly says that state laws are preempted) or it may be IMPLIED
  41. When is preemption Implied?
    • When it is impossible to simultaneously comply with both federal and state law;
    • State law impedes the achievement of a federal objective; OR
    • Congress evidences a clear intent to preempt state law.
    • BUT states may set environmental standards stricter than federal law, unless Congress clearly prohibits it.
  42. May states tax the federal government?
    No. States may not charge state tax to be paid out of the federal treasury for federal government activity. For example, a state could not level property taxes on a federal agency occupying a building, or impose sales taxes on the goods sold at a PX.
  43. What is the Dormant Commerce Clause?
    In recognition that Congress could legislate to prevent burdens on interstate commerce, the Dormant Commerce Clause operates as a bar on state law that unduly burdens interstate commerce.
  44. What is the Privileges and Immunities Clause?
    • Article IV:
    • • Prevents a state or municipality from denying citizens of other states the privileges and immunities it affords its own citizens without substantial justifications.
    • Fourteenth Amendment:
    • • Preserves a person's right to travel from one state to another.
    • P&I of 14th Amendment is always the wrong answer UNLESS the question is about right to travel.
  45. If a state law does NOT discriminates against out-of-staters 1) Is there an impact on the DCC? 2) Is there an impact on the Privileges and Immunities clause?
    • 1) Dormant Commerce Clause: The law could violate the DCC if the law's burden on interstate commerce outweighs the benefits of the law
    • 2) Privileges and Immunities: No violation, because this clause does not apply if there is no discrimination against out-of-staters
  46. If a state law discriminates against out-of-staters, does it violate the DCC? (hint: general rule, 3 exceptions)
    • If a law burdens interstate commerce, the law will violate DCC unless—
    • 1) Least discriminatory means to reach important purpose: It is necessary to achieve an important state government purpose (rarely found) AND the state government shows that no less discriminatory alternative can achieve its goal, OR
    • 2) Congressional approval: Congress expressly approves the law, OR
    • 3) Market participant exception: The state or local government is acting as a market participant—in this case, the state may favor its own citizens over out-of-staters (e.g., in-state tuition at a state university)
  47. What happens if a state law discriminates against out-of-staters re: their ability to earn a living?
    • RULE: The law violates the Privileges and Immunities Clause of Article IV unless the law is necessary to achieve an IMPORTANT GOVERNMENT PURPOSE
    • NOTE: Corporations and aliens cannot invoke the privileges and immunities clause
  48. Can a state use its tax system to assist in-state businesses?
    • NO
    • This constitute discrimination against out-of-state businesses, and would violate the DCC
  49. When can a state impose taxes on an interstate business or company?
    • 1) Nexus: When there is a substantial nexus between the product or activity to be taxed in the state, AND
    • 2) Apportionment: The taxation is fairly apportioned among the taxing state and other states in which the business or company may operate
  50. Must the courts of one state give Full Faith and Credit to judgments from courts of another state?
    • Yes, provided the following three are all satisfied:
    • 1) PJ & SMJ: the court that rendered the judgment had personal jurisdiction and subject matter jurisdiction over the ∆ and the controversy, AND
    • 2) On Merits: the judgment entered was on the merits, AND
    • 3) Final: the judgment was final.
  51. Individual liberties are protected from what types of action?
    • State action:
    • Constitutional protections apply only against the government
    • Private action:
    • The Constitution itself does not protect individual liberties from private action, although Congress may by statute apply constitutional norms to private conduct (e.g., the Civil Rights Act of 1964)
  52. In what situations must Private Conduct comply with the Constitution?
    • Public Functions:
    • When the private entity is performing a task traditionally and exclusively done by the government (e.g., running of a private town)
    • Entanglement:
    • The Constitution also applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity (see next card for key examples)
  53. Examples of Government Entanglement
    • In the following examples, a private party must comply with Constitutional protections of individual liberties because state action is (or is not) deemed to apply.
    • State Action 1: Court enforcement of racially restrictive covenants
    • State Action 2: Government leases premises to a restaurant that racially discriminates
    • State Action 3: State provides books to private schools that racially discriminate
    • State Action 4: Private entity regulates interscholastic sports within a state
    • But, there is NO state action in the following examples—
    • No state action 1: Private school that is over 99% funded by the government fires a teacher because of her speech
    • No state action 2: NCAA orders suspension of a basketball coach at a state university
    • No state action 3: Private club with a liquor license from the state racially discriminates
  54. Against whom does the Bill of Rights apply?
    • Federal Government: The Bill of Rights applies directly only against the federal government.
    • State/Local Governments: However, portions of it are applied to state and local governments through the due process clause of the 14th Amendment (subject to exceptions)
  55. Some Amendments in the Bill of Rights are not applied against the states through the 14th Amendment due process clause. Which ones are they?
    • • Third Amendment right to not have a soldier quartered in a person's home
    • • Fifth Amendment right to grand jury indictment in criminal cases
    • • Seventh Amendment right to jury trials in civil cases in state court
    • • Eighth Amendment right against excessive fines BUT other parts of the Amdmt have been deemed incorporated (cruel and unusual punishment and excessive bail).
  56. Rational Basis review
    • Test:
    • A law will be upheld if it is "rationally related to a legitimate government purpose."
    • Burden of Proof:
    • A challenger has the burden of proof to show either that there is no conceivable legitimate purpose or that the law is not rationally related to it.
    • Note: Challenger usually fails
  57. Intermediate Scrutiny
    • Test:
    • Law will be upheld if it is "substantially related to an important government purpose."
    • Burden of Proof:
    • Government has burden to prove substantial relation and important govt purpose.
  58. Strict Scrutiny
    • Test:
    • Law will be struck down as unconstitutional unless it is "necessary to achieve a compelling government purpose."
    • Burden of proof:
    • on the Government
  59. What is meant by Procedural Due Process?
    • The procedures the government must follow to take away someone's life, liberty, or property. The analytical steps are:
    • 1) Has there been a deprivation of life, liberty, or property? If yes, then . . .
    • 2) What procedures are required?
  60. When does a deprivation of life, liberty, or property occur?
    • • Loss of a significant freedom provided by the Constitution or a statute
    • • Loss of an entitlement of which a person has a reasonable expectation of receiving, or a reasonable expectation of continuing to receive
  61. Does government negligence constitute a deprivation of life, liberty, or property?
    • • Government negligence is generally insufficient to reach due process deprivation.
    • • Generally, there must be intentional government action, or at least reckless action for a deprivation to occur
    • • In emergency situations, need govt conduct that “shocks the conscience.” (e.g. high speed chase)
  62. Would the government's failure to protect someone from a privately-inflicted harm constitute a procedural due process violation?
    • No.
    • Generally, the government's failure to protect someone from a privately-inflicted harm is not a procedural due process violation. EXCEPTION: govt created danger or the person is in govt custody
  63. If there has been a deprivation, what kind of procedure must the government provide to satisfy procedural due process?
    • The type of procedure needed depends on a 3-factor balancing test. Consider the following:
    • 1) Importance of the interest to the deprived individual, and
    • 2) Whether additional procedures would provide better and more accurate decisions and reduce erroneous deprivation, and
    • 3) The government's interest in efficiency and cost-savings
  64. Examples of procedures designed to reduce erroneous deprivation
    • a) Welfare benefits: Termination requires both notice and a hearing
    • b) Social Security benefits: Termination requires only a post-termination hearing
    • c) Parent's custodial rights over children: Termination requires both notice and a hearing
    • d) Punitive damages: Requires jury instructions and judicial review
    • e) Non-citizen held as enemy combatant: Ability to challenge continued detention
    • f) US citizens facing criminal charges in a foreign country held by American Military: Habeas corpus petition and judicial review of detention in federal court
    • g) Risk of actual judicial bias: Requires recusal of the actually biased judge
  65. What is Substantive Due Process?
    Substantive Due Process asks whether the government has an adequate reason for taking away a person's life, liberty, or property.
  66. What 2 areas receive the most focus in Substantive Due Process?
    • 1) Protection of economic liberties (though only minimal protection afforded; rational basis test), and
    • 2) Safeguarding property
  67. WHAT is the test for a Fifth Amendment Taking?
    • 1) Is there a taking of private property? (Possessory or regulatory)
    • 2) Was it for public use? (If no, Govt must return property)
    • 3) Was there payment of just compensation? (Must be reasonable market value)
  68. WHEN does a Fifth Amendment Takings occur?
    • Possessory taking:
    • Government confiscates or physically occupies physical property (no matter how minimal the physical occupation (e.g., cable TV wires is a Fifth Am. Taking))
    • Regulatory taking:
    • Government regulation leave no reasonably economically viable use of the property (Penn Central. Held: no taking, because owner could still derive economic use from RR and ground-level retail)
  69. Does a temporary denial of property use rise to the level of a Fifth Amendment Taking?
    • NO, temporarily denying an owner use of his/her property is not a taking so long as the government's action is reasonable. 2-part test:
    • 1) Public use: Is it for "public use"? (broadly construed), and if so—
    • 2) Just compensation: Is just compensation paid? Just compensation is measured in terms of loss to the owner in reasonable market value terms; gain to the government is irrelevant.
  70. When can a state or local government interfere with an existing private contract?
    • • When the legislation does NOT SUBSTANTIALLY IMPAIR a party's rights under the contract, OR
    • • the law is a REASONABLE and NARROWLY TAILORED MEANS to promoting an IMPORTANT and LEGITIMATE public interest
  71. Can a state or local government interfere with a government contract?
    NO, unless the interference passes strict scrutiny (compelling interests, least restrictive means)
  72. The Constitution prohibits both the federal and state governments from adopting ex post facto laws. This means that neither the federal nor state governments can adopt laws that . . .
    • a) Criminally punish conduct that was lawful when it was done, OR
    • b) Increase punishment for a crime after it was committed
    • Note that the prohibition against ex post facto laws applies only to criminal cases—the prohibition does not apply to civil cases
  73. When the government interferes with a person's Privacy Rights, what level of judicial review is applied?
    • Strict scrutiny (i.e., compelling interest, least restrictive means)
    • Exam tip—on the MBE, the best answer is that the government must meet strict scrutiny in order to interfere with a person's right to privacy (it won't necessarily be the case that the government should automatically lose)
  74. What rights are protected by a person's Right to Privacy?
    • Marriage
    • Procreation
    • Custody of one's children
    • Keep "family" together
    • Control and upbringing of one's children
    • Purchase and use contraceptives
    • Abortion (see separate card)
    • Private consensual same-sex activity
    • Refuse medical treatment (see separate card)
    • Travel across state lines (see separate card)
    • Vote (see separate card)
  75. What rights to an abortion does a woman have prior to viability of the fetus?
    • Prior to viability a state . . .
    • Cannot prohibit abortions. May regulate abortions, so long as doing so presents no undue burden on the ability to obtain an abortion.
    • The prohibition of “partial birth abortions” is not an undue burden
  76. What rights to an abortion does a woman have AFTER viability of the fetus?
    After the fetus has become viable, a state may prohibit abortions to protect the woman's life or health
  77. Is the government required to subsidize abortions or to provide abortions in public hospitals?
  78. Are notice and consent laws for abortions constitutional?
    • 1) Spousal consent and notification laws are always unconstitutional
    • 2) Parental notice and consent laws for unmarried minors may be constitutional, so long as the state creates an alternative judicial procedure
  79. Although a person has a right to refuse medical treatment, what limits can a state impose on the exercise of that right?
    • • Competent adults have the right to refuse medical treatment, even life-saving medical treatment
    • • Can require clear and convincing evidence that a person wants treatment terminated
    • • May prevent family members from terminating treatment of another
    • • May prohibit physician-assisted suicide (there is no constitutional right to this)
  80. Limitations imposed on a person's Right to Travel are reviewed with strict scrutiny. What sorts of actions come within the right to travel (and are therefore subject to strict scrutiny)?
    • • Law that prevent a person from moving into or between states
    • • Durational requirements precedent to receiving in-state benefits (exam tip on voting–50 days is the maximum allowable durational requirement)
    • • NB: There is no fundamental right to international travel (need only satisfy rational basis)
  81. The right to vote is a fundamental right. What level of scrutiny is used to review limitations on that right?
    • Strict scrutiny must be met if a law denies some citizens the right to vote. Note—
    • 1) One-person-one-vote
    • 2) At-large elections are constitutional unless there is proof of a discriminatory purpose (not just impact)
    • 3) Use of race in drawing electoral districts must meet strict scrutiny
    • 4) Counting uncounted votes without standards in a presidential election violates equal protection
  82. Is education a fundamental right?
    NO, there is no fundamental right to education under Equal Protection or the US Constitution
  83. Is there a fundamental right to practice a trade or profession?
    NO. This is not a fundamental right under Equal Protection or the US Constitution.
  84. What tells you that Equal Protection is an issue?
    • When the government draws distinctions between people—i.e., treats classes of people differently. Examples include:
    • • Race and national origin
    • • Gender
    • • Alienage (citizens, non-citizens, documented, undocumented)
    • • Non-marital (illegitimate) children
    • • deals with suspect and quasi-suspect classifications
    • • e.g., race or national origin, gender, alienage, illegitimacy)
    • • deals with a state discriminating against NON-RESIDENTS
  86. What are the 3-steps to analyzing an Equal Protection question?
    • 1) What is the CLASSIFICATION?
    • 2) What LEVEL OF SCRUTINY applies?
    • 3) Does the law SATISFY the level of scrutiny?
  87. What classifications are most frequently encountered in an Equal Protection problem?
    • • Race and national origin
    • • Gender
    • • Alienage
    • • Non-marital children
    • • Age
    • • Disability
    • • Wealth
    • • Sexual orientation
  88. When the government discriminates against people on the basis of race or national origin, what level of scrutiny applies?
    Strict scrutiny
  89. How do you know whether discrimination is occurring on the basis of race or national origin? (2 possibilities)
    • 1) the classification exists on the face of the law (law is facially discriminatory)
    • 2) the law is both discriminatory in purpose AND impact (if law is facially neutral)
  90. Does the discriminatory use of peremptory challenges (removal of potential jurors) based on race or national origin violate equal protection?
    YES. Can't use peremptory challenges based on race or national origin without good cause for doing so
  91. When the government discriminates in favor of persons because of race or national origin, what level of scrutiny applies?
    Strict scrutiny still applies
  92. In order for a numerical set-aside in favor of a racial minority to be valid, what must be shown?
    Clear proof of past discrimination
  93. When may educational institutions use race or national origin in admissions decisions to benefit members of that class?
    • • When race/national origin is one factor out of many
    • • When race/national origin is NOT the sole basis for adding points to an admissions score
  94. Can a public school use race as a factor in assigning students to schools?
    NO, not unless strict scrutiny is met
  95. What level of scrutiny must sex-based discrimination satisfy?
    • Intermediate Scrutiny:
    • This means that discrimination based on gender can be allowed only if there is exceeding persuasive justification for the discrimination
  96. Does the discriminatory use of peremptory challenges (removal of potential jurors) based on gender violate equal protection?
    YES. Can't use peremptory challenges based on gender without good cause for doing so
  97. How do you prove that the government is discriminating based on gender? (2 possibilities)
    • • law is facially discriminatory
    • • law is facially neutral, but is discriminatory in impact and purpose
  98. When the government discriminates in favor of a person because of her gender, what level of scrutiny applies?
    • Intermediate Scrutiny
    • This means that the discrimination, albeit favorable, will be unlawful unless it can be shown that there is an exceeding persuasive justification for the classification. Examples—
    • a) Gender classifications benefitting women that are based on role stereotypes are unconstitutional
    • b) BUT gender classifications benefiting women that are designed to remedy past discrimination or differences in opportunity are constitutional
  99. When the government discriminates against a non-citizen, what level of scrutiny must be met?
    • Generally, strict scrutiny applies. Exceptions:
    • • Self-govt or democratic process: e.g., voting, serving on a jury, being a police officer, teacher, or probation officer—rational basis applies
    • • Congress discriminates against aliens—rational basis applies
    • • Discrimination against undocumented aliens—intermediate scrutiny applies (exceeding persuasive justification)
  100. When a law denies benefits to all illegitimate children, but grants those benefits to all marital children, what level of scrutiny applies?
    Intermediate scrutiny (exceeding persuasive justification). E.g., different intestate inheritance rights for marital children versus illegitimate children
  101. Strict scrutiny must be satisfied when there is discrimination involving what classifications?
    • • Race
    • • National origin
    • • Alienage (except for self-govt, democratic process, congressional discrimination)
  102. Intermediate scrutiny must be satisfied when there is discrimination against what classifications?
    • • Gender
    • • Non-marital children
    • • Undocumented alien children (maybe)
  103. To what classes of discrimination does Rational Basis Review apply?
    • • Age
    • • Disability
    • • Wealth or poverty
    • • Government economic regulations
    • • Sexual orientation
    • • Alienage—related to self-govt, democratic process, congressional discrimination
  104. Generally, what standard of scrutiny applies to a government restriction of speech?
    • Strict scrutiny
    • To satisfy strict scrutiny (1) the law must be necessary to achieve a compelling government interest, and (2) the law uses the least restrictive means of achieving that compelling interest
  105. What are the major issues relating to Free Speech?
    • 1) Type of restriction (e.g., content vs. content-neutral)
    • 2) Whether the type of speech is protected (content)
    • 3) Where and how the speech may occur (content-neutral)
  106. Free speech analysis distinguishes between 2 types of restrictions. They are . . .
    • 1) Content based restrictions (e.g., regulation of subject matter or viewpoint), and
    • 2) Content neutral restrictions (e.g., regulation of manner, timing, or places where speech occurs)
  107. What level of scrutiny must a content-based restriction satisfy?
    • Strict scrutiny
    • To satisfy strict scrutiny (1) the law must be necessary to achieve a compelling government interest, and (2) the law uses the least restrictive means of achieving that compelling interest
  108. What level of scrutiny must a content-neutral restriction satisfy?
    • Intermediate scrutiny
    • To satisfy intermediate scrutiny (1) the law must be substantially related to an important government purpose, and (2) the restrictions have been narrowly-tailored to meet that important purpose
  109. Court orders that suppress speech before it occurs . . .
    • 1) Must meet strict scrutiny
    • 2) Must be complied with until they are vacated or overturned (Collateral bar rule: a person who violates a court order is barred from later challenging it)
    • 3) Are never enforceable against the press to prevent pretrial publicity (Exam tip–this is true, even if the judge believes that pretrial publicity is necessary to ensure a fair trial)
  110. If the gov't requires a license for speech, what is needed for that license to be constitutional?
    • 1) Important reason for the license
    • 2) Clear criteria, such that an award or denial of the license involves no discretion of the licensing authority
    • 3) Prompt procedural safeguards (e.g., prompt determination of requests and judicial review of denials)
  111. A restriction on speech is unconstitutionally Vague when . . .
    • Unconstitutionally vague when a reasonable person would not be able to tell what speech is prohibited and what is permitted.
    • Example: A law making it a crime to distribute literature that "tends to corrupt the minds of youth" would be unconstitutionally vague
  112. A restriction on speech is unconstitutionally Over-broad when . . .
    It regulates substantially more speech than the Constitution allows to be regulated
  113. When may the government regulate Symbolic Speech (i.e., conduct)?
    • 1) Important interest unrelated to suppression, and
    • 2) Impact on communication is no greater than is necessary to achieve the government's goal
  114. Examples of Symbolic Speech. Which of these are protected speech?
    Flag burning;
    Anonymous speech;
    Draft card burning;
    Nude dancing;
    Cross burning
    • • Flag burning: Protected
    • • Anonymous speech: Protected
    • • Draft Card burning: Not protected
    • • Nude Dancing: Not protected
    • • Cross Burning: Protected UNLESS done in order to intimidate (then it's not protected)
  115. Can the government restrict monetary support of political campaigns?
    • • Particular campaigns: Maximum limits on contribution to a particular candidate are permissible
    • • Support of campaigns in general: No limit on the amount of money that can be spent in support of campaigns in general
  116. Is speech that incites illegal activity protected by the First Amendment?
    • NO. Speech is treated as inciting illegal activity if:
    • (1) there is a substantial likelihood of imminent illegal activity; and
    • (2) if the speech is directed at causing imminent illegal activity
  117. Is obscene and sexually-oriented speech protected by the First Amendment?
    • NO, if all parts of the following 3-part test are met—
    • 1) The material appeals to the prurient interest, or a "shameful or morbid interest in sex"
    • 2) The material is patently offensive under the law prohibiting obsenity
    • 3) As a whole, the material lacks serious redeeming artistic, literary, political, or scientific value as determined by national standards
  118. Can the government use zoning ordinances to regulate the number or location of adult bookstores and movie theaters?
    Yes. “Erogenous zoning is permissible.”
  119. Child pornography . . .
    • May be completely banned, even if it is not obscene.
    • Note–to be child pornography, actual children must be used in the production of the material. Drawings or adults of child-like appearance may not be banned, unless obscene (see separate card for protection of obscene materials)
  120. Can the government punish possession of obscene materials?
    • • No, mere possession of ordinary obscene materials is not punishable.
    • • However, mere possession of child pornography is punishable
  121. Is profane and indecent speech protected by the First Amendment?
    • YES, generally EXCEPT where
    • i) broadcast over free television or radio channels (uniqueness of intrusion), or
    • ii) where used in schools

    Govt has less power over cable or internet because you can control whether that comes into your home.
  122. False and deceptive advertisements, or advertisements for illegal activity are . . .
    NOT PROTECTED by the First Amendment
  123. Can true commercial speech be prohibited?
    YES, if the speech is advertising illegal activity or has inherent risks of deception
  124. Review standard for govt regulation of commercial speech that is not false, deceptive, and that does not advertise illegal activity
    • Intermediate scrutiny
    • This means that the regulation of the commercial speech must (1) substantially relate to an important government purpose, and (2) the regulation is narrowly-tailored to further that important purpose (note: need not be least restrictive alternative)
  125. What must a public official or figure prove in order to recover on a claim of defamation?
    • 1) Defamatory statement
    • 2) Identifying π
    • 3) Published to at least one third party
    • 4) Injury to reputation AND
    • 5) Actual malice (this means the statement is (1) false, and (2) made intentionally or with reckless disregard of the truth)
  126. What must a private individual prove in order to recover on a claim of defamation?
    • • Defamatory statement
    • • Identifying π
    • • Published to at least one third party
    • • Injury to reputation
    • Note: If the matter is one of "public concern," the private π must also show that the statement is FALSE and that the ∆ made the statement NEGLIGENTLY
  127. A state cannot impose liability for the reporting of information from government records if . . .
    • • The report is truthful, and
    • • The information was legally obtained
  128. Can a broadcaster (the media) be held liable for broadcasting an illegally intercepted and recorded phone call?
    No, so long as (1) the media did not participate in the illegal interception, AND (2) the broadcast involves a matter of public importance.
  129. Can the govt restrict its own dissemination of info to protect privacy?
    Yes. EXCEPTION: Public has a right to attend govt proceedings and to access govt papers for criminal trials and criminal pre-trial proceedings.
  130. Can the govt restrict the speech of its employees?
    Yes. Speech by govt employees was on the job in the performance of their duties is NOT protected. Other govt restrictions must meet strict scrutiny.
  131. What places are available for public speech?
    • • Public forums
    • • Limited public forums
    • • Non-public forums
  132. Speech regulation in a Public Forum (e.g., parks, most sidewalks)?
    • 1) Must be content-neutral—i.e., time, place, manner
    • 2) Must serve important govt interest and leave open adequate alternative places for speech
    • 3) Can't regulate subject matter or viewpoints, unless strict scrutiny satisfied
    • 4) City officials cannot have discretion in setting amount of permit fees charged for parades and demonstrations
  133. What is a Limited Public Forum, and what regulation can be imposed on speech there?
    • 1) What is it: Non-public places the govt could close to speech, but keep open (e.g., schools at night or on weekends)
    • 2) What rules apply: Same as Public Forums (content neutral, serve important govt purpose, adequate alternative forums available, no discretion in setting permit fees
  134. What is a Non-Public forum, and what restrictions can be imposed on speech there?
    • 1) Government properties that the gov't constitutionally can and does close-off to speech. Examples include—
    • • Military bases
    • • Areas outside Prisons and Jails
    • • Advertising space on city buses or subways
    • • Sidewalks outside of post offices
    • • Airports (can't prohibit distribution of literature, but can prohibit collection of money)
    • 2) Government can regulate speech in a non-public forum so long as the regulation is viewpoint neutral and is "reasonable" (i.e., satisfies rational basis review)
  135. Is there a First Amendment right to free speech on private property?
    No. Private property includes places such as privately-owned shopping centers.
  136. Laws that prohibit or punish group membership (i.e., free association) must meet . . .
    • Strict Scrutiny
    • To satisfy strict scrutiny (1) the law must be necessary to achieve a compelling government interest, and (2) the law uses the least restrictive means of achieving that compelling interest
  137. To constitutionally punish membership in a group, what must be shown?
    • 1) ∆ member is actively affiliated with the group
    • 2) the group is engaged in illegal activities
    • 3) ∆ has knowledge of the group's illegal activities
    • 4) ∆ has the specific intent of furthering those illegal activities or objectives
  138. Laws that require disclosure of membership in a particular group must satisfy what level of scrutiny?
    Strict scrutiny IF disclosure would "chill" association with the group
  139. Does the Freedom of Association protect a right to discriminate?
    • No. Laws that prohibit a group from discriminating are constitutional unless it is—
    • • a”n intimate association" (e.g., private dinner party), OR
    • • the discrimination activities are integral to the expressive activities of the group (e.g., KKK, Boy Scouts)
  140. Free (Religious) Exercise Clause
    • • Can't be used to challenge a neutral law of general applicability (e.g., can't overturn ban on use of peyote)
    • • Protects the benefits (entitlements) of individuals who quit their jobs for religious reasons
  141. In order for government action to withstand a challenge based on the Establishment Clause, what must be shown? (3 things)
    • S: there is a Secular purpose for the law
    • E: the primary Effect of the law neither advances nor inhibits religion
    • X: no eXcessive government entanglement with religion (e.g., balance Christian images with Jewish, Muslim, etc.)
  142. Can public schools sponsor religious activity?
    • NO. Govt sponsored religious activity in public schools is unconstitutional, even voluntary school prayer. HOWEVER—
    • • Religious student and community groups must have the same access to school facilities as non-religious groups.
    • • Govt may give assistance to parochial schools, so long as it is not used for religious instruction.
  143. When does a π have standing to sue the Govt solely as a "Citizen" or as a "Taxpayer”?
    When suing under the Establishment Clause
Card Set:
ConLaw All
2015-01-03 02:59:37
twiggy924 conlaw hawaii consolidated

Consolidated Con Law flashcards
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