1 Az Con Law

Front 1

Justiciability

Back 1

Requires a case or controversy with:
1) A specific present harm or threat of specific future harm (ripeness)
2) NOT moot
3) Claimant must have standing

Front 2

Standing:

Back 2

Person must have concrete stake in the outcome. P must show
1) She will personally suffer direct or immediate injury caused by the allegedly unlawful gov't action
2) Causal connection exists between injury and the conduct complained of; AND
3) Injury will be addressed by the relief sought.

Front 3

Third-Party Standing

Back 3

Usu. no standing for 3rd party harm, however, a claimant who has standing (some personal stake of her own) may assert the rights of a third party if it si difficult for the 3rd party to assert her own rights, or if there is some special relationship between claimant and third party.

Front 4

Legislative Powers:
Commerce Clause

Back 4

Congress has the exclusive power to regulate all foreign and interstate commerce

Front 5

Legislative Powers:
Commerce Clause
Congress has the right to regulate:

Back 5

1) Channels of interstate commerce
2) Instrumentalities of interstate commerce and persons or things in interstate commerce
3) Activities that have a substantial (even if cumulatively substantial) effect on interstate commerce.

Front 6

Congress
10th Amendment:

Back 6

Limit on Congressional power. States that all powers not specifically granted to the U.S. and not prohibited to the states are reserved to the states or the people.

Front 7

State Regulation of Commerce:

Back 7

Congress has plenary power over interstate commerce. Any activity with any impact on interstate commerce can be regulated by Congress. However, states have CONCURRENT power to regulate local aspects of interstate commerce.

Front 8

State Regulation of Commerce:
3 Limitations

Back 8

State cannot regulate commerce IF:
1) It's preempted--express or implied
2) If the state discriminates against out of state commerce
3) If the state unduly burdens interstate commerce.

Front 9

State Regulation of Commerce:
Pre-Emption

Back 9

Express preemption occurs when COngress prohibits state regulation.
Implied preemption occurs when act of Congress or federal law supersedes any state or local action that actually conflicts with teh federal rule. A conflict exists even if the state or local law merely interferes with the achievement of a federal objective. Further, even if a state or local law does not conflict with federally regulated conduct or objectives, the law may fail if it appears that Congress intended to occupy (preempt) the entire field. Absent an explicit indication of federal intent, a court will consider a number of factors.
1) Comprehensiveness: the less comprehensive the federal statute,the less likely that Congress intended to preempt the field.
2) Whether an agency has been created to enforce the federal law: existence of an agency implies that all matters arguably in the agency's jurisdiction are preempted.
Despite its plenary power, Congress may permit or prohibit states to regulate commerce.

Front 10

State Regulation of Commerce:
Negative Commerce Clause

Back 10

If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce, if it
1) Does not discriminate against out of state commerce
2) Does not unduly burden interstate commerce (e.g. incidental burden on interstate commerce does not outweigh the legitimate local benefits of the regulation)
--> Discrimination: State regulation will be struck down if it discriminates by terms or in application.

Front 11

State Regulation of Commerce:
Negative Commerce Clause:
Discrimination Exceptions

Back 11

State regulation of interstate commerce will be struck down if it discriminates against interstate commerce either on its face or in its application, EXCEPT:
1) Important state interest: furthers an important,non-economic state interest (e.g. health or safety) or there are no reasonably non-discriminatory alternatives.
2) Market Participant: Where the state is acting as a market participant, it may prefer its own citizens (e.g. when hiring, buying, selling or giving subsidies).
However, market participant exception is limited in scope. Restrictions that are imposed by the state on private business not dealing directly with the government are in the state's capacity as a market regulator rather than as market participant.

Front 12

State Regulation of Commerce:Privileges and Immunities Clause:

Back 12

The P&I clause of Article 4 states that the states cannot deny citizens of other states the privileges and immunities of its own citizens. Thus, state regulation of interstate commerce will be struck down if it discriminates against out of state person with regard to important economic interests (e.g. livelihood or civil liberties) unless it is necessary to achieve AN IMPORTANT STATE INTEREST and there are no less restrictive means.
Corporations and aliens can't sue under P&I--consider Dormant Commerce Clause.

Front 13

State Regulation of Commerce:
Undue Burden

Back 13

Even if the state regulation is non-discriminatory (local and out-of-state interests are treated fairly) the state must have a legitimate purpose for the regulation, and the incidental burdens on interstate commerce must not outweigh the legitimate interests of the state. Part of this balancing process involves analyzing whether or not there are less restrictive alternatives to regulation.

Front 14

INDIVIDUAL RIGHTS:
Procedural Due Process: Standing

Back 14

Generally: P must have concrete stake in outcome.
1) Direct or immediate injury caused by unlawful gov't action.
2) Injury redressed by relief sought.
3) 3rd party standing: P with standing may assert rights of 3rd party ONLY if difficult for 3rd party to assert her own rights, OR if there is a special relationship between P and the 3rd party.

Front 15

INDIVIDUAL RIGHTS:
Bill of Rights: DP Clause of 14th Am.

Back 15

State shall not take a person's life, liberty or property without due process of law.
Gov't negligence is not sufficient for a deprivation of DP.
Generally, must be internal gov't actions or at least reckless disregard for liability.

Front 16

INDIVIDUAL RIGHTS:
State Action

Back 16

Q applies only to gov't action. State action includes the act of any gov't agency or subdivision, however, in limited circumstances private conduct must comply with Q:
1) Private entity is performing a task traditionally exclusively done by gov't.
2) Gov't authorizes, encourages or facilitates unQ activity.

Front 17

INDIVIDUAL RIGHTS:
Procedural Due Process: Deprication of Liberty

Back 17

Deprivation of liberty occurs where a person
1) Loses significant freedom of action; or
2) Is denied a freedom provided by the Q or a statute. Liberty includes right to K and to engage in gainful employment. E.g.: Commitment to mental institution, driver's license suspension, termination of parental rights

Front 18

INDIVIDUAL RIGHTS:
Procedural Due Process: Deprivation of Property

Back 18

Occurs if there is an entitlement, and that entitlement is not fulfilled.
Entitlement is a reasonable expectation in CONTINUED receipt of benefit.
EX: Public education (disciplinary suspensions of more than a few days, academic dismissal), welfare benefits, disability benefits, gov't employment (tenured or terminable for cause only), civil forfeitures.

Front 19

INDIVIDUAL RIGHTS:
Procedural Due Process
Types of Process:

Back 19

Due process requires notice and opportunity to be heard. To determine what procedures necessary:
Mathews v. Eldridge balancing test:
1) Importance of interest to individual
2) Ability of additional procedures to increase the accuracy of fact finding; and 3) gov'ts interest in fiscal and administrative efficiency.

Front 20

INDIVIDUAL RIGHTS:
Takings: Standing

Back 20

1) Person must have a concrete stake in the outcome of the case. P must show that 1) she will personally suffer immediate and direct ham caused by gov't action, 2) Injury redressed by relief sought.
3) 3rd party standing. Claimant with standing may assert the rights of 3rd parties if 3rd parties find it difficult to assert for themselves, or if there is a special relationship between P and 3rd party.

Front 21

INDIVIDUAL RIGHTS:
Bill of Rights: 5th Am: Takings

Back 21

Provides that private property may not be taken for public use without notice and compensation.
Applicable to states through 14th Am.

Front 22

INDIVIDUAL RIGHTS:
Bill of Rights: 5th Am: Takings
State Action

Back 22

Q applies only to state action. State action includes act of any gov't agency or subdivision. However, private conduct must comply with Q if the private entity is performing an activity that has traditionally been the exclusive province of the gov't. OR the gov't authorizes, encourages or facilitates un-Q activity.
Applicable to states v. 14th Amendment.

Front 23

INDIVIDUAL RIGHTS:
Bill of Rights: 5th Am: Takings

Back 23

Standing / 3rd Party Standing

Front 24

INDIVIDUAL RIGHTS:
Bill of Rights: 5th Am: Takings

Back 24

Taking includes not only physical appropriation, but also some gov't action that damages property or impairs its use.
1) Public use: If gov't action is RATIONALLY related to a legitimate public purpose (for health, welfare, safety, economic or aesthetic reasons) the public use requirement is met.

Front 25

INDIVIDUAL RIGHTS:
Bill of Rights: 5th Am:
Takings vs. Regulation

Back 25

Actual appropriation or physical invasion: Almost always amounts to a taking.
Use Restrictions:
1) Denial of all economic value of land = taking. If gov't regulation denies landowner of all economic use of his land, the regulation amounts to a taking.
2) Decreasing economic value = Balancing Test.

Front 26

INDIVIDUAL RIGHTS:
Bill of Rights: 5th Am:
Takings vs. Regulation
Balancing Test:

Back 26

Court will consider:
1) Social good sought to be promoted
2) Diminution in value to the owner
3) Owner's reasonable expectations regarding the property
4) The more drastic the reduction in value or the less it promotes public welfare the more likely it is to be a taking.
REMEDY: Just compensation.
1) pay property owner just compensation for the taking: FMV; or
2) Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect.

Front 27

Individual Rights:
Substantive Due Process: Standing

Back 27

1) Standing: P must have concrete stake in the outcome of the case, the harm caused by the allegedly illegal gov't action must be direct and imminent, and the relief requested must redress the injury.
Third party standing: If P has standing, she may assert the rights of third party who would have difficulty asserting the right for themselves, or with whom she has a special relationship.

Front 28

Individual Rights:
Substantive Due Process:
Applicability

Back 28

DP clause of the 5th Am. states that the state shall not take the life, liberty or property of an individual without due process of law. Applied to states by 14th Am.

Front 29

Individual Rights:
Substantive Due Process:
State Action

Back 29

Q applies only to gov't action, State action includes the act of any government agency or subdivision. Private conduct must comply with the Q if private entity is performing a task traditionally exclusively the province of the government, or with the gov'ts encouragement, authorization or facilitation.

Front 30

Individual Rights:
Substantive Due Process:
FUNDAMENTAL RIGHTS

Back 30

1) Privacy
2) Vote
3) Travel

Front 31

INDIVIDUAL RIGHTS:
Bill of Rights: 5th Am: Takings

Back 31

Provides that private property may not be taken for public use without notice and compensation.
Applicable to states through 14th Am.

Front 32

INDIVIDUAL RIGHTS:
Bill of Rights: 5th Am: Takings
State Action

Back 32

Q applies only to state action. State action includes act of any gov't agency or subdivision. However, private conduct must comply with Q if the private entity is performing an activity that has traditionally been the exclusive province of the gov't. OR the gov't authorizes, encourages or facilitates un-Q activity.
Applicable to states v. 14th Amendment.

Front 33

INDIVIDUAL RIGHTS:
Bill of Rights: 5th Am: Takings

Back 33

Standing / 3rd Party Standing

Front 34

INDIVIDUAL RIGHTS:
Bill of Rights: 5th Am: Takings

Back 34

Taking includes not only physical appropriation, but also some gov't action that damages property or impairs its use.
1) Public use: If gov't action is RATIONALLY related to a legitimate public purpose (for health, welfare, safety, economic or aesthetic reasons) the public use requirement is met.

Front 35

INDIVIDUAL RIGHTS:
Bill of Rights: 5th Am:
Takings vs. Regulation

Back 35

Actual appropriation or physical invasion: Almost always amounts to a taking.
Use Restrictions:
1) Denial of all economic value of land = taking. If gov't regulation denies landowner of all economic use of his land, the regulation amounts to a taking.
2) Decreasing economic value = Balancing Test.

Front 36

INDIVIDUAL RIGHTS:
Bill of Rights: 5th Am:
Takings vs. Regulation
Balancing Test:

Back 36

Court will consider:
1) Social good sought to be promoted
2) Diminution in value to the owner
3) Owner's reasonable expectations regarding the property
4) The more drastic the reduction in value or the less it promotes public welfare the more likely it is to be a taking.
REMEDY: Just compensation.
1) pay property owner just compensation for the taking: FMV; or
2) Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect.

Front 37

Individual Rights:
Substantive Due Process: Standing

Back 37

1) Standing: P must have concrete stake in the outcome of the case, the harm caused by the allegedly illegal gov't action must be direct and imminent, and the relief requested must redress the injury.
Third party standing: If P has standing, she may assert the rights of third party who would have difficulty asserting the right for themselves, or with whom she has a special relationship.

Front 38

Individual Rights:
Substantive Due Process:
Applicability

Back 38

DP clause of the 5th Am. states that the state shall not take the life, liberty or property of an individual without due process of law. Applied to states by 14th Am.

Front 39

Individual Rights:
Substantive Due Process:
State Action

Back 39

Q applies only to gov't action, State action includes the act of any government agency or subdivision. Private conduct must comply with the Q if private entity is performing a task traditionally exclusively the province of the government, or with the gov'ts encouragement, authorization or facilitation.

Front 40

Individual Rights:
Substantive Due Process:
FUNDAMENTAL RIGHTS not stated in the Q

Back 40

1) Privacy
3) Travel
4) Marry
5) Procreate

Front 41

Individual Rights:
Fundamental Rights

Back 41

Any law restricting such a right must BOTH serve a COMPELLING STATE PURPOSE, and be NARROWLY TAILORED TO THAT PURPOSE.

Front 42

Individual Rights:
Fundamental Rights: Privacy
Contraceptives and abortion

Back 42

1) Contraceptives: right to purchase and use contraceptives.
2) Abortion: Pre-viability a state may adopt regulation protecting mother's health, IF regulation does not place an undue burden on or substantial obstacle to a woman's ability to obtain an abortion.
Once the fetus is viable, state's interest in fetus's life can override woman's right to choose to abort, but state cannot prohibit abortion IF necessary to protect woman's health or safety (which are interpreted broadly)

Front 43

Individual Rights:
Fundamental Rights:Privacy
Marriage:

Back 43

Right of male and female to enter into marriage relationship. Still being battled out at the state level--CA & CT are the most recent to ban same-sex marriage. AZ has prohibited it as well.

Front 44

Individual Rights:
Fundamental Rights: Privacy
Procreation

Back 44

Whether, when and how to have a child.

Front 45

Individual Rights:
Fundamental Rights: Privacy
Upbringing of Children:

Back 45

Education, religious upbringing, care, custody, control: subject to state's right to prescribe reasonable educational standards.
Fundamental right to custody of one's children/

Front 46

Individual Rights:
Fundamental Rights: Privacy
Family Relation

Back 46

The right to keep the family together, including extended family so long as they are related. (Moore v. East Cleveland)

Front 47

Individual Rights:
Fundamental Rights:
STRICT SCRUTINY

Back 47

Government must prove that the regulation is necessary to achieve a COMPELLING state interest, and NARROWLY TAILORED to achieve that interest.

Front 48

Individual Rights:
Fundamental Rights:
RIGHT TO VOTE:

Back 48

Fundamental right under 14th Am.
Regulations affecting these rights other than on the basis of residence, age, citizenship are reviewed under strict scrutiny standard. Felons may be denied right to vote.
Gov't must show that the regulation is necessary to a compelling state interest, and narrowly tailored to achieve it.

Front 49

Individual Rights:
Fundamental Rights:
RIGHT TO TRAVEL:

Back 49

14th Am: Individual has a fundamental right to migrate from state to state and receive equal treatment in each.
Regulations on this right are subject to the strict scrutiny standard, and must be necessary to a compelling government interest, and narrowly tailored to achieve that interest.

Front 50

Individual Rights:
Fundamental Rights:
NO FUNDAMENTAL RIGHT:
Obscenity outside the home.

Back 50

Right to read obscene material in one's home is fundamental, and regulations are subject to strict scrutiny.
However, outside the home, there is no right to buy, sell or transport such material. Regulations affecting these abilities are subject to rational basis test--P has the burden of showing that the regulation is not rationally related to a legitimate government purpose.

Front 51

Individual Rights:
Fundamental Rights:
NO FUNDAMENTAL RIGHT: Sodomy

Back 51

All sodomy laws in the U.S. are now unconstitutional and unenforceable when applied to non-commercial, consenting adults in private. (Lawrence v. Texas) Regulations affecting these rights are reviewed under the rational basis standard, to be upheld, the claimant must prove that the regulation has no rational relationship to a legitimate government purpose--Court here applied a strange hybrid of rational basis and EP grounds.

Front 52

EQUAL PROTECTION
Standing

Back 52

Person must show that she has a concrete stake in the proceedings, that she has suffered or is about to suffer direct or immediate injury, and that injury will be redressed by the relief sought.
3rd Party Standing: A P with standing may assert the rights of 3rd parties if the 3rd party would find it difficult to assert his own rights, or if a special relationship between P and 3rd party exists.

Front 53

EQUAL PROTECTION:
DP clause of 14th AM:

Back 53

Provides that a state shall not take a persons life, liberty or property without due process of law. EP of the 14th Am is applicable to the federal government via REVERSE incorporation through DP clause of 5th Am.

Front 54

EQUAL PROTECTION:
DP clause of 14th AM:
State Action Requirement

Back 54

The Q applies only to gov't action which includes the action of any gov't agency or subdivision. However, private conduct must comply with the Q where the private entity is performing a function traditionally the sole province of the gov't, or where the gov't authorizes, facilitates or encourages unconstitutional activity.

Front 55

EQUAL PROTECTION:
Suspect Classification: RACE

Back 55

14th Am guarantees equal protection of the laws.
SCOTUS has held that ALL racial classifications imposed by fed, state, or local gov't, even if "remedial" or "benign" are considered suspect classifications and are therefore subject to strict scrutiny. To be upheld the gov't must show a compelling state interest, and NO less restrictive alternative means of achieving that interest. For strict or intermediate scrutiny to be applied, there must be intent on the part of the gov't to discriminate.

Front 56

EQUAL PROTECTION:
Suspect Classification: RACE
Intent to Discriminate Shown By: Facially discriminatory statute.

Back 56

Law discriminatory on its face--in the language of the law. Creates distinction between classes of persons.

Front 57

EQUAL PROTECTION:
Suspect Classification: RACE
Intent to Discriminate Shown By: Discriminatory Application

Back 57

Law that is neutral on its face, but discriminatorily applied. (Yick Wo v. Hopkins)

Front 58

EQUAL PROTECTION:
Suspect Classification: RACE
Intent to Discriminate Shown By: Discriminatory Motive

Back 58

Law that is neutral on its face, and in its application, but has disproportionate impact on a particular class of persons. A discriminatory impact alone will ONLY be reviewed under the RATIONAL BASIS TEST.
Disproportional impact plus a discriminatory purpose will result in STRICT SCRUTINY. (Legislature's discriminatory motive must be shown--e.g. by evidence of a history of discrimination.)

Front 59

EQUAL PROTECTION:
Suspect Classification: RACE
Benign Gov't Discrimination: Affirmative Action:

Back 59

14th Am guarantees equal protection of the laws. Racial classification, whether favoring or discriminating against, racial or ethnic minorities is suspect classification and must be subjected to strict scrutiny. To be upheld, the gov't must be able to show that the racial classification is necessary to a compelling state interest and that there is no less restrictive way to achieve the government's purpose.

Front 60

EQUAL PROTECTION:
Suspect Classification: RACE
Benign Gov't Discrimination: Affirmative Action: Remedying Past Discrimination

Back 60

Gov't has a COMPELLING INTEREST in remedying past discrimination against a racial or ethnic minority. The past discrimination must have been pervasive and readily identifiable. A race-based plan cannot be used to remedy general past "societal discrimination." For affirmative action programs to pass Q muster, the gov't must show actual past discimination, the result of which the current program is tailored to remedy. A general desire to increase diversity, absent any showing of actual past discrimination is insufficient.
Where there was NO past discrimination: Gov't may still have a compelling interest in affirmative action--Gov't action must be narrrowly tailored to that interest.

Front 61

EQUAL PROTECTION:
Suspect Classification:Alienage

Back 61

1) Federal: Because of Congress' plenary power over aliens, fed alienage classifications are subject to rational basis review. The claimant must prove that the alienage classification was not rationally related to a legitimate government purpose.

Front 62

EQUAL PROTECTION:
Suspect Classification:Alienage
ARIZONA: State and Local

Back 62

14th Am guarantees equal protection of the laws. Alienage is a suspect classification and is subject to STRICT SCRUTINY. To be upheld, the government must have a compelling state interest which means that there are no less restrictive alternatives to achieve the government's prupose.

Front 63

EQUAL PROTECTION:
Suspect Classification:Alienage
Participation in Self-Government Process

Back 63

If a law discriminates against alien participation in self-government activities (e.g. voting, jury service, elective office) the rational basis standard is applied. Also, teh rational basis standard is used for local and state laws limiting certain non-elective offices involving important public policy (e.g. police officers, probation officers and teachers)

Front 64

EQUAL PROTECTION:
Quasi-Suspect Classifications

Back 64

14th Am guarantees equal protection under the law.
Gender classifications are considered quasi-suspect classifications and are therefore subject to intermediate scrutiny. To be upheld, gov't must show an exceedingly persuasive justification for the discrimination. Intentional discrimination against men or women are genearlly invalid particularly if they perpetuate archaic stereotypes of males or females. However, classification benefitting women designed to remedy past discrimination tends to be valid.

Front 65

FIRST AMENDMENT:
Standing

Back 65

Person must have a concrete stake in the outcome of the case, and must show that she will personally suffer immediate or direct injury from the unlawful gov't action and that the injury will be redressed by the relief sought.
Third party standing may be asserted by P with standing if the 3rd party would find it difficult to assert her own rights, or a special relationship exists between P and 3rd party.

Front 66

BILL OF RIGHTS:
First Amendment

Back 66

First Amendment prohibits Congress from restricting speech and religion. The First Amendment is applicable to the states through the 14th Amendment. First Amendment protects only against action by government or "state actors"

Front 67

BILL OF RIGHTS:
First Amendment
State Action

Back 67

Q applies only to state action, State action include the actions of any government agency or subdivision. However, private actors must comply in the limited situations where they carry out tasks typically the exclusive province of the federal government, or the government authorizes, encourages or facilitates unconstitutional activity.

Front 68

BILL OF RIGHTS:
First Amendment
FREEDOM OF SPEECH

Back 68

1) Facial Attack: Overbreadth
Void for overbreadth if it regulates substantially more speech than is necessary to achieve the compelling state interest.
2) Vagueness: Reasonable person can't determine what conduct or speech is prohibited.
3) Prior Restraint: Laws that attempt to prohibit speech before the speech occurs. Prior restraint must meet strict scrutiny, where the gov't must prove that the law is necessary to achieve a compelling government interest.
IF the government is merely requiring a license for speech, rather than prohibiting the speech altogether, the licensing statute will be upheld if it is substantially related to an important government interest.
Additionally: Licensing scheme must NOT grant gov't officials unfettered discretion (standards drawn must be narrowly drawn, reasonable and definite) and must have provisions for prompt and judicial review if the license is denied.

Front 69

BILL OF RIGHTS:
First Amendment
FREEDOM OF SPEECH
Restraining Order

Back 69

Prior to the issuance of a court order, the constitutionality of a licensing scheme may be challenged by engaging in the prohibited conduct *without* the required license. After a court order is issued, the proper manner in which to raise the constitutionality of a licensing scheme is to move to have the court order be modified or dissolved. Generally before a restraining order may be issued, due process requires notice and an opportunity to be heard.

Front 70

BILL OF RIGHTS:
First Amendment
FREEDOM OF SPEECH
Unfettered Discretion

Back 70

A regulation is void for unfettered discretion if it gives government broad discretion in its application.

Front 71

BILL OF RIGHTS:
First Amendment
FREEDOM OF SPEECH
Scope of Speech

Back 71

Wherever government seeks to regulate free speech, court will weigh importance of the rights against the interests or policies sought to be served by the regulation.
Freedom of speech = right to speak, freedom from being compelled to speak or made to endorse beliefs with which one does not agree. Gov't can't require people to display messages with which they disagree (e.g. license plate mottos) Freedom can extend to symbolic acts undertaken to communicate an idea, although the conduct itself may be regulated if the gov't has an important interest in the regulation independent of the speech aspects of the conduct and the incidental burden on speech is no greater than necessary.

Front 72

BILL OF RIGHTS:
First Amendment
FREEDOM OF SPEECH
Content Based:

Back 72

Regulations of speech are either content based or conduct based. In GENERAL: content based regulations--except for obscenity, fighting words and defamation--presumptionally unconstitutional and must meet strict scrutiny.
Gov't must prove that the regulation is necessary to a compelling gov't interest and there are no less restrictive means to achieve gov't purpose. Even regulations touching on exceptions to content based regulations are unconstitutional if overbroad or give the gov't too much discretion in their application.

Front 73

First Amendment
FREEDOM OF SPEECH
UNPROTECTED SPEECH: Clear and Present Danger Exception

Back 73

1) Advocacy of unlawful conduct; Speech can be burdened if it creates a clear and present danger of IMMINENT lawless action. MUST be shown that imminent illegal conduct is likely, and that the speaker intended to cause it.

Front 74

First Amendment
FREEDOM OF SPEECH
UNPROTECTED SPEECH:
Fighting Words

Back 74

Speech can be burdened if it constitutes fighting words. (personally abusive words that are likely to incite immediate physical retaliation in an average person) Words that are merely annoying are not sufficient.
Supreme Court will not tolerate fighting words statutes that are designed to punish only certain viewpoints--e.g. proscribing only fighting words that insult on the basis of race, gender, religion.

Front 75

First Amendment
FREEDOM OF SPEECH
UNPROTECTED SPEECH:
Obscenity

Back 75

Speech is obscene if it describes or depicts sexual conduct that if taken as a whole, by the average person,
1) Appeals to the prurient interest in sex, using a community standard
2) is patently offensive and an affront to contemporary community standards
3) Lacks serious value (literary, artistic, scientific, aesthetic or political) using a national 'reasonable person" standard.
Defense: movie reviews may be used to show artistic value for an "obscene" film.

Front 76

First Amendment
FREEDOM OF SPEECH
UNPROTECTED SPEECH:
Defamation

Back 76

'Nuff said.
Truth is a defense.

Front 77

First Amendment
FREEDOM OF SPEECH
Content Neutral/Conduct Based Regulation of Speech

Back 77

State may regulate conduct based speech, that is, the non-communicative aspects of speech as to time, place and manner. Whether or not it is a valid restriction depends on the type of public forum involved.

Front 78

First Amendment
Content Neutral/Conduct Based Regulation of Speech:
Public Forum:

Back 78

Public forum held open to the public and a limited public forum (a place held open at times) must be made constitutionally open for speech. Valid restrictions must be:
1) Content neutral
2) Narrowly tailored to achieve a significant government interest
3) Leave open alternative channels of communication.
Thus, the court will weigh 1st Amendment interests at stake against the public interest served by a regulation limiting speech.

Front 79

First Amendment
Content Neutral/Conduct Based Regulation of Speech:
NON-Public Forum

Back 79

Where non-public forum is involved, gov't regulation on time, place and manner of speech will be upheld if they are
1) Viewpoint neutral
2) Reasonably related to a legitimate government purpose.

Front 80

First Amendment
Content Neutral/Conduct Based Regulation of Speech:
Private Forum

Back 80

Can be regulated if they are reasonable to limit access to homes and other private forums.

Front 81

First Amendment
Religious Freedom

Back 81

Prohibits Congress from restricting or establishing religion.

Front 82

First Amendment
Free Exercise Clause

Back 82

Prohibits gov't from punishing, denying benefits to or imposing burdens on someone based on the person's religious beliefs.
Under the Smith test, Free Exercise Clause can't be used to challenge a law of general applicability unless it can be shown that the intent or the law was to interfere with religion.
SCOTUS has held that the Free Exercise clause does not require exemptions from government regulation for a person whose religious beliefs prevent her from conforming her behavior to the requirements of the law.

Front 83

First Amendment
Establishment Clause

Back 83

There must be a secular purpose for a law; that the effect must neither be to advance or inhibit religion (no endorsement) and there must be no excessive entanglement between government and religion. If any of these requirements is violated, it would result in an unconstitutional endorsement of religion by gov't violating the Establishment Clause. SCOTUS has made clear that treating religion the same as other uses does not violate the Establishment Clause.