Barbri Constitutional Law

Front 1

What is the requirement for cases and controversies?

Back 1

It is the 4 justicability requirements that need to be met before case may be heard in any federal court

Front 2

What are the 4 Justicability requirements?

Back 2

1. Standing
2. Ripeness
3. Mootness
4. Political question doctrine

Front 3

What is standing? (4 justicability requirements to get into federal court)

Back 3

the issue of whether the plaintiff is the- proper party to bring a matter to the court for adjudication.

Front 4

What are the four requirements for standing?

Back 4

1. Injury - P must allege and prove that she personally has been injured or imminently will be injured (if seeking declaratory or injunctive relief must show likelihood of future harm to the P)
2. Causation and redressability - P must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury
3. No third party standing - P can't assert the claims of others. (3 exceptions)
4. No generalized grievances - P must not be suing solely as a citizen or a taxpayer interested in having the govt. follow the law. (1 Exception)

Front 5

What are the three exceptions to the statement, P's can't assert the claims of others (ie no 3rd party standing)?

Back 5

1. close relationship b/w the P and the injured third party. (ex. Drs. in abortion cases)
2. if the injured third party is unlikely to be able to assert his own rights
3. Associational standing - an organization may sue for its members if the members would have standing to sue AND the interests are germane to the organization's purpose AND neither the claim nor relief requires participation of individual members.

Front 6

What is the exception to the standing rule against no generalized grievances?

Back 6

Taxpayers have standing to challenge government expenditures as pursuant to specific federal statutes as violating the Establishment Clause b/c the Establishment Clause was meant to limit government expenditures

Front 7

What is ripeness? (4 justicability requirements)

Back 7

Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation (usually declaratory judgment)

Front 8

What are the two considerations when assessing ripeness?

Back 8

1. the hardship that will be suffered w/o preenforcement review
2. The fitness of the issues and the record for judicial review (ie does the fed court have everything it needs to decide the issue)

Front 9

What is mootness? (4 justicability requirements)

Back 9

Case must involve a live controversy/on-going injury. If the events after the filing of the lawsuit end the plaintiff's injury then the case is dismissed as moot. (2 Exceptions)

Front 10

What are the three exceptions to the mootness rule? (4 justiciability requirements)

Back 10

1. *Wrong capable of repetition but evading review - possibility that the wrong could hapeen again and would always evade review. ex. Roe v. Wade (by the time got to court no longer pregnant and could always get pregnant again)
2. Voluntary cessation - b/c could always resume act.
3. Class action suits - so long as one member of the class has an on-going injury.

Front 11

What is the political question doctrine? (4 justiciability requirements)

Back 11

The political question doctrine refers to the constitutional violations that the federal courts will not adjudicate.

Front 12

There are four types of constitutional violations that the federal courts will not adjudicate, what are they?

Back 12

1. The republican form of government clause
2. challenges to the President's conduct of foreign policy
3. Challenges to the impeachment and removal process
4. Challenges to partisan gerrymandering.

Front 13

How do cases from the state courts and the United States courts of appeal come to the Supreme Court?

Back 13

By writ of certiorari - up to judge's discretion whether hear the case

Front 14

How do appeals from three-judge federal district courts come to the Supreme Court?

Back 14

Statute will say there is an appeal to the Supreme Court - it will be mandatory they hear it.

Front 15

What kinds of cases does the Supreme Court have original and exclusive jurisdiction over?

Back 15

Under Art 3 - suits between state governments

Front 16

What is the final judgment rule?

Back 16

Supreme Court may hear cases only after there has been a FINAL JUDGMENT of the highest state court, a US Court of Appeals or a 3-judge federal district court.

Front 17

If a state court decision rests on two grounds, one state and one federal, what must happen for the Supreme Court to hear the case?

Back 17

A decision on the basis of the federal law will change the result of the case.

Rule: For a Supreme Court to review a state court decision, there must NOT be an INDEPENDENT AND ADEQUATE STATE LAW GROUNDS FOR THE DECISION.

Front 18

What is the principle of soverign immunity?

Back 18

11th Amendment bars suits against state governments in federal court.

Extends to bar suits against states in state courts or federal agencies (Exceptions)

Front 19

What are the 4 situations in which states may be sued (exceptions to sovereign immunity)?

Back 19

1. Express waiver
2. pursuant to federal laws adopted under Section 5 of th 14th Amendment (Congress cannot authorize suits against states under other constitutional provisions)
3. Federal govt may sue state governments
4. Bankruptcy proceedings

Front 20

When are suits against state officers allowed, even when the state govt. can't be sued?

Back 20

1. state officers may be sued for injunctive relief
2. state officers may be sued for money damages to be paid out of their own pockets (personally liable)
3. state officers may NOT be sued if its the state treasury that will be paying retroactive damages.

Front 21

What is abstention rule?

Back 21

Federal courts may not enjoin pending state court proceedings. Fed court has jurisdiction but doesn't exercise it.

Front 22

When does Congress have the authority to act under the constitution?

Back 22

1. Where there is an express or implied congressional power. Congress does NOT have a general police power only the states do (Exceptions)
2. The necessary and proper clause
3. The taxing/spending power and the commerce power
4. The 10th Amendment limits congressional power - all powers not granted to the US, nor prohibited to the states are reserved to the states.
5. Congress' power under section 5 of the 14th Amendment - Congress may not create new rights or expand the scope of rights.

Front 23

What are the 4 exceptions to the statement "congress doesn't have a general police power"?

Back 23

MILD
1. Legislating for MILITARY
2. INDIAN Reservations
3. Federal LANDS and territory
4. D.C.

Front 24

What power does Congress get under the necessary and proper clause?

Back 24

Congress may use any means not prohibited by the Const. to carry out its authority

Front 25

What is Congress' taxing/spending power?

Back 25

Congress may create any tax or spending program to enhance the GENERAL WELFARE.

Front 26

What is Congress' commerce power?

Back 26

1. Congress may regulate the CHANNELS of interstate commerce
2. Congress may regulate the INSTRUMENTALITIES of interstate commerce
3. Congress may regulate economic activities that have a SUBSTANTIAL EFFECT on interstate commerce. (in the area of non-economic activity a substantial effect cannot be based on cumulative impact)

Front 27

What is the 10th Amendment limit on Congressional powers?

Back 27

10th Amendment states that all powers not granted to the US, nor prohibited to the states, are reserved to the states or the people.
- * Congress cannot compel state regulatory or legislative action (no forcing states to do something) BUT can INDUCE state government action by putting strings on grants, so long as the conditions are EXPRESSLY STATED and RELATE TO THE PURPOSE OF THE SPENDING PROGRAM.
- Congress MAY prohibit harmful commercial activity by state governments.

Front 28

What is Congress' power under section 5 of the 14th Amend?

Back 28

Congress may NOT create new rights or expand the scope of rights. Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be proportionate and congruent to remedying consitutional violations.

Front 29

What is Congress' authority to delegate powers?

Back 29

1. No limit exists on Congress' ability to delegate legislative power.
2. Congress may not delegate executive power to itself or its officers

Front 30

What is a legislative veto?

Back 30

where Congress attempts to overturn an executive action w/o bicameralism or presentment.

Always UNCONSTITUTIONAL

Front 31

What is a line-item veto?

Back 31

When Pres. attempts to veto part of the bill while signing the rest into law.

Always UNCONSTITUTIONAL

Front 32

In order for Congress to act, what two events must occur?

Back 32

1. Bicameralism - passage by both the House and the Senate
2. Presentment - giving the bill to the Pres to sign or veto. (Pres. must sign or veto in its ENTIRETY)

Front 33

What are treaties?

Back 33

Agreements b/w the US and a foreign country that are negotiated by the PRESIDENT and are effective when ratified by the Senate.

Front 34

What happens when a treaty conflicts with a state law?

Back 34

Treaty prevails - state law becomes invalid

Front 35

What happens when a treaty conflicts with a federal statute?

Back 35

** The one adopted LAST IN TIME controls

Front 36

What happens when a treaty conflicts with the US Constitution?

Back 36

The treaty is invalid

Front 37

What is an executive agreement?

Back 37

An agreement b/w the US and a foreign country that is effective when signed by the President and the head of the foreign nation. (doesn't require Senate approval to be effective)

Front 38

What can an executive agreement be used for?

Back 38

any purpose. Anything done by treaty can be done by executive agreement.

Front 39

What happens if an executive agreement conflicts with a state law? federal law? US Constitution?

Back 39

Executive agreements prevail over conflicting state laws but NEVER over conflicting federal laws or the US Const.

Front 40

What powers does the Pres. have as Commander-in-Chief?

Back 40

broad powers to use American troops in foreign countries (Pres. NEVER been invalidated)

Front 41

What is the Pres' appointment power?

Back 41

President appoints ambassadors, federal judges and officers of the US. (Senate must confirm for appointee to take power)
2. Congress may vest (give the job to) the appointment of inferior officers in the President, heads of departments or the lower courts.
3. Congress MAY NOT give itself or its officers the appointment power.

Front 42

What is Congress' appointment power?

Back 42

Congress MAY NOT give itself or its officers the appointment power but it may give the appointment power to appoint inferior officers to the President, heads of departments or the lower federal courts.

Front 43

What is the Pres' removal power?

Back 43

unless removal is limited by statute, the Pres may fire any executive branch office.

Front 44

What power does Congress have over the Pres' removal power?

Back 44

1. For Congress to limit removal, it must be an office where independence from the President is desirable (ie can't limit removal of Pres' cabinet)
2. Congress cannot prohibit removal, it can limit removal to where there is a good cause.

Front 45

Who can be impeached and why?

Back 45

Pres, VP, federal judges and officers of the US for treason, bribery or high crimes and misdemeanors.

Front 46

What is the impeachment and removal process?

Back 46

House has sole power to impeach by a majority vote then goes to the Senate which must convict by a 2/3rds vote which causes removal.

Front 47

Can Pres. be a defendant in a civil suit while in office?

Back 47

No. Pres has absolute immunity to civil suits for money damages for actions while in office. Pres. doesn't have immunity for actions that occurred prior to taking office.

Front 48

Pres has an executive privilege over what?

Back 48

presidential papers and conversations but the privilege must yield to other important government interests. (ex. US. v. Nixon - executive privilege must yield to provide evidence in a criminal trial)

Front 49

What is the Presidents power to pardon?

Back 49

Can pardon those accused or convicted of FEDERAL crimes NOT state crimes or civil liability. EXCEPTION: when a person has been impeached there can never be a pardon.

Front 50

What is federalism?

Back 50

limits on state and local power b/c of federal government and other states.

Front 51

What is the Supremacy Clause of Art. 6?

Back 51

the Constitution, the laws and treaties made pursuant to it are the SUPREME LAW OF THE LAND ie if there is a conflict b/w federal and state/local law then federal law wins.

Front 52

What are the two ways in which federal preemption of state law is found?

Back 52

1. Express Preemption - federal statute explicitly says the federal law is exclusive in a particular area
2. Implied preemption (3 ways)

Front 53

What are the three ways implied preemption of state law is found?

Back 53

1. * If federal and state laws are mutually exclusive, federal law preempts state law. State MAY set environmental standards STRICTER than Federal law unless strictly prohibited by Congress
2. If state law impedes the achievement of a federal objective, federal law preempts
3. If Congress evidences a clear intent to preempt state law (see legislative history), federal law preempts.

Front 54

What is inter-governmental immunity?

Back 54

states may not tax or regulate federal government activity (ie unconstitutional to pay state tax out of federal treasury)

Front 55

What is the dormant commerce clause?

Back 55

states and local laws are unconstitutional if they place an UNDUE BURDEN on interstate commeerce.

Rule inferred from Congress' commerce power

Front 56

What is the privileges AND immunities clause of Art. 4?

Back 56

No state may deny citizens of the other states the privileges and immunities it accords its own citizens - anti-discrimination clause

Front 57

What is the privileges OR immunities clause of the 14th Amend?

Back 57

involves the right to travel

Front 58

What is the analysis if a state law does not discriminate against out-of-staters?

Back 58

If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits.

The privileges and immunities clause of Article 4 does NOT apply.

Front 59

What is the analysis if a state law discriminates against out-of-staters and burdens interstate commerce?

Back 59

It violates the dormant commerce clause UNLESS it is necessary to achieve an important government purpose.
EXCEPTIONS:
1. Congressional approval - once commerce acted, not dormant
2. the market participant exception - a state or local govt may prefer its own citizens in receiving benefits from govt programs or in dealing with govt-owned businesses.

Front 60

What is the analysis if a state law discriminates against out-of-staters with regard to their ability to earn a living?

Back 60

Violates the privileges and immunities clause of Art. 4 UNLESS it is necessary to achieve an important govt. purpose.
Elements:
1. law must discriminate against out-of-staters
2. discrimination must be regarding civil liberties or important economic activities (not just hobbies)
3. Corporations and aliens cannot use the privileges and immunities clause (can use dormant commerce clause)
4. the discrimination must be necessary to achieve an important government purpose.

Front 61

What are the three important rules regarding state taxation of interstate commerce?

Back 61

1. states may not use their tax systems to help in-state businesses
2. a state may only tax activities if there is a substantial nexus to the taxing state
3. state taxation of interstate businesses must be fairly apportioned (ie only tax revenue associated w/ the state)

Front 62

What is full faith and credit?

Back 62

Courts in one state must give full faith and credit to judgments of courts in another state so long as:
1. The court that rendered the judgment had personal and subject matter jurisdiction
AND
2. The judgment was on the merits
AND
3. the judgment was final

Front 63

The US Const. only applies to action by who?

Back 63

the government. private conduct need not comply with the US Constitution. (Exceptions)

Front 64

When MAY Congress, by statute apply constitutional norms to private conduct?

Back 64

1. Congress can enact statutes under the 13th Amend to prohibit private race discrimination.
2. Commerce power
3. CANNOT use section 5 of the 14th Amend to regulate private behavior.

Front 65

What are exceptions to the general rule that the Const. only applies to government action ie when MUST private conduct comply with the Const?

Back 65

1. Public Function Exception - if a private entity is performing a task traditionally, exclusively done by the government.
2. Entanglement exception - The Const. applies if the government affirmatively authorizes, encourages or facilitates unconstitutional activity. (either govt. must stop or private conduct must comply with Const)

Front 66

How can you tell when the government has become entangled with a private entity so that the entanglement exception applies?

Back 66

very hard to tell, pattern is that if race is involved the court tends to apply entanglement but where there is any other const. right, no entanglement.

Front 67

Who does the Bill of Rights directly apply to?

Back 67

Only the Federal Government

Front 68

When does the Bill of Rights apply to state and local governments?

Back 68

When the Rights is incorporated through the due process clause of the 14th Amendment. (not everyone one but almost all)

Front 69

What Bill of Rights rights are NOT incorporated to the states?

Back 69

1. 2nd Amendment right to bear arms
2. 3rd Amendment right to not have a soldier quartered in a person's home
3. 5th Amendment right to grand jury indictment in a criminal case (state's don't HAVE to, can if they want)
4. 7th Amend right to jury trial in civil cases
5. 8th Amend right against excessive fines (all other 8th Amend provisions have been incorporated)

Front 70

What is the Rational basis test?

Back 70

law must be rationally related to a legitimate government purpose

Front 71

Who has the burden of proof when the rational basis test is used?

Back 71

Challenger has the burden of proving no conceivable legitimate purpose or law is not rationally related.

Front 72

What is intermediate scrutiny?

Back 72

Substantially related to an important government purpose.

Front 73

Who has the burden of proof under intermediate scrutiny?

Back 73

Government.

Front 74

What is strict scrutiny?

Back 74

Necessary (least restrictive means) to achieve a compelling (actual) government purpose

Front 75

Who has the burden of proof under strict scrutiny?

Back 75

Government

Front 76

What is the definition of substantive due process?

Back 76

an adequate reason for taking away life, liberty or property

Front 77

What is the definition of equal protection?

Back 77

How people are treated relative to one another.

Front 78

What is procedural due process?

Back 78

procedures that the government must follow when it takes away a person's life, liberty or property.

Front 79

When does a deprivation of liberty occur?

Back 79

when there is the loss of a significant freedom provided by the Constitution or statute. ** Harm to reputation by itself is NOT a loss of liberty.

Ex. 1. Except in an emergency before an adult can be institutionalized must be a hearing but when a parent institutionalizes a child only need a screening b/c assumed that parent's act in the best interest of the child.
2. Prisoners RARELY have liberty interests

Front 80

When does a deprivation of property occur?

Back 80

if an entitlement exists and is NOT fulfilled (previously Supreme Court used a rights vs. privileges analysis but entitlement has replaced that)

An entitlement exists if there is a reasonable expectation that person will continue to receive a benefit.

Front 81

What level of government action must there be for liability for a deprivation of due process to exist?

Back 81

Intentional or at least reckless. Negligence is Not sufficient. BUT in emergency situations, the government is liable under due process only if its conduct "shocks the conscience." (ie govt. acted with the intent to cause harm)

Front 82

Is the govt's failure to protect people from privately inflicted harm deny due process?

Back 82

No UNLESS the govt. literally creates the danger/person is physically w/in govt. custody

Front 83

What procedures are required into order to meet the requirements of procedural due process?

Back 83

Balance the following 3 factors:
1. importance of the interest to the individual
2. ability of additional procedures to increase the accuracy of the fact-finding
3. government's interests

Front 84

What are the seven main examples of the procedural due process balancing test?

Back 84

1. before a person's welfare benefits can be terminated must be notice and a hearing
2. if SSD terminated only need a post-termination hearing
3. Student disciplined by public school - need notice of charges and opportunity to explain
4. Parental custody of kids terminated - need notice and hearing
5. Punitive damages - need instructives to jury and judicial review (grossly excessive punitive damages will violate DP)
6. American citizen detained as an enemy combatant must be given DP - notice, representation, trial
7. Except in exigent circumstances pre-judgment & attachment or govt. seizure of assets must be proceeded by notice and hearing. (Govt. may seize property used in illegal activity even if property has an innocent owner)

Front 85

What level of scrutiny is applied to laws affecting economic rights?

Back 85

Rational basis

Front 86

What is the takings clause?

Back 86

the government may take private property for public use if it provides just compensation.

Front 87

What are the two ways of finding that there is a governmental taking?

Back 87

1. Possessory taking - govt confiscation or physical occupation of property (doesn't matter how small)
2. Regulatory taking - if a govt. regulation leaves NO reasonable economically viable use of the property. (not a taking if it just decreases the value of the property)

Front 88

When a govt puts conditions on the development of a property, when will the conditions become a taking?

Back 88

when the benefit is NOT roughly proportionate to the burden imposed.

Front 89

May a property owner bring a takings challenge to regulations that existed at the time the property was acquired?

Back 89

Yes

Front 90

Is temporarily denying an owner use of a property a taking?

Back 90

No so long as the government's action is reasonable.

Front 91

How do you determine whether a taking is for public use?

Back 91

public use is interpreted very broadly and a taking is for public use so long as govt. acts under a reasonable belief that the taking will benefit the public

Front 92

What is just compensation for a taking?

Back 92

the reasonable market value to the owner. (govt. benefit is irrelevant)

Front 93

What is the contracts clause (art. 1 section 10)?

Back 93

No state shall impair the obligations of contracts.

Front 94

Who does the contracts clause apply to?

Back 94

state or local interference w/ EXISTING contracts (not future). Never applies to Federal govt. (challenge under DP)

Front 95

What level of scrutiny applies to state or local interference w/ private contracts?

Back 95

intermediate (with weird language):
If the legislation substantially impairs a party's rights under an existing contract, the law must be a reasonably and narrowly tailored means of promoting an important and legitimate public interest.

Front 96

What level of scrutiny applies to state or local interference w/ government contracts?

Back 96

strict scrutiny

Front 97

What is the ex post facto clause?

Back 97

Prohibits both the state (Art. 1 section 10) and the federal (Art 1 section 9) from passing legislation which RETROACTIVELY alters the CRIMINAL LAW (not civil) to punish conduct that was lawful when it was done or that increases punishment for a crime after it was committed.

Front 98

Privacy is a fundamental right protected under what?

Back 98

substantive due process

Front 99

What level of scrutiny do laws that deal with privacy rights get?

Back 99

strict scrutiny

Front 100

What are the 9 delineated privacy rights and one non-right?

Back 100

1. right to marry
2. right to procreate
3. right to custody of one's children (govt. may create an irrebutable presumption that a married woman's husband was the father of her child)
4. The right to keep the family together (broader then just immediate family but must be related)
5. The right to control the upbringing of one's children
6. The right to purchase and use contraceptives
7. The right to abortion (not strict scrutiny)
8. The right to engage in private consensual homosexual activity (no identified level of scrutiny)
9. Right to refuse medical treatment (Qualifications)
10. NO right to physician-assisted suicide.

Front 101

What is the constitutional structure for when states may/may not prohibit/regulate abortion?

Back 101

Prior to viability: states may not prohibit abortions, but may regulate abortions so long as they do not create an UNDUE BURDEN on the ability to obtain abortions.

After viability: states may prohibit abortions unless necessary to protect the women's life or health.

Front 102

What duty does the govt. have to subsidize or provide abortions?

Back 102

none

Front 103

Are spousal consent and notification laws pertaining to abortion constitutional?

Back 103

No

Front 104

Are parental notice and consent laws pertaining to abortion constitutional?

Back 104

Yes 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 interest or that she is mature enough to decide for herself.

Front 105

Who has a right to refuse medical treatment, even life-saving?

Back 105

competent adults

Front 106

What may a state require for a person to terminate treatment before it has ended?

Back 106

clear and convincing evidence that that is what a person wants

Front 107

May a state prevent a family member from terminating treatment for another?

Back 107

Yes

Front 108

Can the govt. regulate an individual's second amendment right to bear arms?

Back 108

yes. govt can regulate where and who.

No indicated level of scrutiny.

Front 109

Under what constitutional provisions is the right to travel protected?

Back 109

Equal Protection
Privileges and Immunities Clause of the 14th Amendment

Front 110

What level of scrutiny is applied for laws that prevent people from moving into a state (right to travel)?

Back 110

strict scrutiny

Front 111

What are durational residency requirements and what level of scrutiny do they get?

Back 111

Rules requiring a person live in a jurisdiction for a certain amount of time before getting a benefit.
Strict scrutiny

Front 112

What level of scrutiny must restrictions on foreign travel meet?

Back 112

rational basis

Front 113

The right to vote is a fundamental right under what?

Back 113

Equal Protection.

Front 114

What level of scrutiny must laws affecting the right to vote meet?

Back 114

Laws that deny some citizens the right to vote must meet STRICT SCRUTINY.
Regulations of the electoral process to prevent fraud only need be ON BALANCE DESIREABLE

Front 115

When are at-large elections unconstitutional?

Back 115

when there is proof of a discriminatory purpose (impact is NOT enough).

At-large election - where all the voters vote for all of the office holders (ie no districts)

Front 116

All districts for a jurisdictional body must be ___________ in population

Back 116

about the same

Front 117

When race is used in drawing election district lines what level of scrutiny must be applied?

Back 117

strict

Front 118

What principal does counting uncounted votes w/o standards in a presidential election violate?

Back 118

Equal Protection

Front 119

Is there a fundamental right to education?

Back 119

No.

Front 120

What is the approach to equal protection questions?

Back 120

1. What is the classification?
2. What level of scrutiny should be applied?
3. Does this law meet the level of scrutiny?

Front 121

Who does the equal protection clause of the 14th Amend apply to?

Back 121

state and local govts.

Front 122

How is equal protection applied to the federal govt?

Back 122

through the due process clause of the 5th Amend.

Front 123

What level of scrutiny is applied to classifications based on race or national origin?

Back 123

strict

Front 124

How is the existence of a racial classification proven?

Back 124

The classification exists on the face of the law
OR
If the law is facially neutral, proving a racial classification requires demonstrating BOTH discriminatory impact and discriminatory intent.

Front 125

How should racial classifications benefiting minorities be treated?

Back 125

1. strict scrutiny is applied
2. Numerical set-asides require CLEAR PROOF of past discrimination
3. Educational institutions may use race as one factor (No quotas) in admissions decisions to help minorities by universities have a compelling interest in a diverse student body
4. Public school systems may NOT use race as a factor in assigning students to schools unless strict scrutiny is met.

Front 126

What level of scrutiny is applied to classifications based on gender?

Back 126

intermediate scrutiny plus exceedingly persuasive justification

Front 127

How is the existence of a gender classification proven?

Back 127

1. Classification exists on the face of the law
2. If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent.

Front 128

How should gender classifications benefiting women be treated?

Back 128

1. Intermediate scrutiny
2. Gender classifications benefiting women that are based on role stereotypes will not be allowed.
3. Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed.

Front 129

What are alienage classifications?

Back 129

laws that differentiate based on US citizenship

Front 130

What level of scrutiny is used with alienage classifications?

Back 130

strict EXCEPT:
1. Rational basis when alienage classifications (a) concern self-govt and the democratic process (voting, jury, police officers, teachers, probation officers) (b) when there is Congressional discrimination against aliens (b/c Congress has plenary power regarding immigration)
2. Intermediate Scrutiny when there is discrimination against undocumented alien children.

Front 131

What level of scrutiny is used when law discriminates against non-marital children?

Back 131

Intermediate scrutiny
Laws that deny a benefit to all non-marital children but grant it to all marital children are unconstitutional.

Front 132

What type of scrutiny does age, disability and wealth discrimination, economic reglations and sexual orientation discrimination get?

Back 132

rational basis

Front 133

What level of scrutiny do content-based restrictions on speech get?

Back 133

strict

Front 134

What are the two types of content based laws?

Back 134

1. subject matter (topic) restrictions
2. viewpoint (ideology) restrictions

Front 135

What level of scrutiny do content-neutral laws burdening speech need to meet?

Back 135

intermediate scrutiny

Front 136

What level of scrutiny do court orders surpressing speech need to meet?

Back 136

strict scrutiny

Front 137

Procedurally proper court orders suppressing speech must be commplied with until they are vacated or overturned, what happens if a person violates a court order?

Back 137

they are barred from later challenging it

Front 138

Are gage orders on press to prevent prejudicial pre-trial publicity allowed?

Back 138

No.

Front 139

When can a government require a license for speech?

Back 139

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.

Front 140

When is a law unconstitutionally vague?

Back 140

when a reasonable person cannot tell what speech is prohibited and what is allowed.

Front 141

When is a law unconstitutionally overbroad?

Back 141

if it regulates substantially more speech than the constitution allows to be regulated.

Front 142

When can the govt. regulate symbolic speech?

Back 142

If the govt. has an important interest unrelated to suppression of the message and if the impact on the communication is no greater than necessary to achieve the government's purpose.

Front 143

Are the following examples of symbolic speech constitutionally protected or not: flag burning, draft card burning, nude dancing, cross burning, contribution/expenditure limits in election campaigns, in ballot initiatives?

Back 143

Flag burning - Protected
Draft card burning - unprotected
nude dancing - unprotected
cross burning - protected unless proof of intent to threaten or intimidate
contribution limits in election campaigns are protected, expenditure limits are not.
Ballot initiatives - both contribution and expenditure limits are ok

Front 144

Is anonymous speech constitutionally protected?

Back 144

Yes

Front 145

What speech is unproteced or less protected by the 1st Amend?

Back 145

1. Incitement of illegal activity
2. obscentity and sexually-oriented speech
3. commercial speech
4. defamation

Front 146

What is incitement of illegal activity?

Back 146

speech that where there is a substantial liklihood of imminent illegal activity and if the speech is directed to causing imminent illegality.

Govt may punish

Front 147

What is the test for obscenity?

Back 147

1. The material must appeal to the prurient (shameful or morbid interes in sex) interest (local or community standard)
AND
2. The material must be patently offensive (law must specifically delineate what is offensive) under the law prohibiting obscenity (local/community standard)
AND
3. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value. (national standard)

Front 148

What is erogenous zoning and is it constitutional?

Back 148

zoning ordinances to regulate the location of adult bookstores and movie theaters.

Constitutional

Front 149

May govts seize the assets of businesses convicted of violating obscentity laws?

Back 149

Yes

Front 150

Is profane or indecent speech protected by the 1st Amend?

Back 150

Yes EXCEPTIONS:
(1) over the broadcast media b/c uniquely intrusive.
(2) in schools

Front 151

What type of advertising is NOT protected by the 1st Amend?

Back 151

advertising for illegal activity, and false and deceptive ads

Front 152

True commercial speech that ______________ can be prohibited.

Back 152

inherently risks deception

Front 153

May the govt. prevent professionals from advertising or practicing under a trade name? If so, why?

Back 153

Yes. b/c bad professionals could keep changing their trade name ie it inherently risks deception

Front 154

May the govt. prohibit attorneys from soliciting clients in person for profit? Accountants?

Back 154

Attorneys - yes but can't prohibit letter solicitation for profit or in-person solicitation not for profit

Accountants - No.

Front 155

What level of scrutiny do regulations on commercial speech have to meet?

Back 155

intermediate - government regulations must be narrowly tailored, but need not be the least restrictive alternative

Front 156

If a plaintiff is a public figure, what two additional elements does he need to prove to recover for defamation?

Back 156

falsity
malice

Front 157

if the plaintiff is a private figure and the matter is of public concern, the state may allow the plaintiff to recover for defamation if she proves what two additional factors?

Back 157

falsity
negligence by the defendant.

Plaintiff may recovered presumed (statutorily assigned) or punitive damages only by showing malice

Front 158

If the plaintiff is a private figure and the matter is not a public concern what potential damages may the plaintiff recover?

Back 158

compensatory for actual injury
presumed or punitive (do not require actual malice)

Front 159

The government may not create liability for __________of information that was ____________ from the government.

Back 159

truthful reporting
lawfully obtained

Front 160

When may the media broadcast a tape of an illegally intercepted call?

Back 160

when the media did not participate in the illegality and it involves a matter of public importance.

Front 161

For what reason may the government limit its dissemination of information?

Back 161

to protect privacy (Public/press has right to view criminal trials only)

Front 162

Is speech by govt employees on the job in the performance of their duties protected by the 1st Amend?

Back 162

No.

Front 163

Govt. restrictions based on the content of speech must meet what level of scrutiny?

Back 163

strict

Front 164

What places are available for speech?

Back 164

1. Public forums
2. Limited public forums
3. Non-public forums

Front 165

What are public forums?

Back 165

government properties that the govt is constitutionally required to make available for speech ex. sidewalks and parks

Front 166

What level of scrutiny do regulations on speech in public forums have to meet?

Back 166

If the regulation is a subject/viewpoint neutral time, place and manner regulation then must serve an important government purpose and leave open adequate alternative places for communication. (doesn't need to be the least restrictive alternative)

If NOT subject matter/viewpoint neutral then must meet strict scrutiny