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111 Cards in this Set
- Front
- Back
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Standing requirements
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Injury, causation / redressability, no third party standing, no generalized grievances (except for est. clause)
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Ripeness inquiry
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Court weighs hardship that P will suffer without pre-enforcement review against fitness of issue and record for judicial review
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Mootness inquiry / exceptions
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Does case lack live controversy?
Exceptions: repetitive action that evades review (abortion), voluntary cessation, class action (only one P need still suffer injury) |
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Political questions that court will not hear
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Art. IV, Sec. 4 (republican form of government), challenges to President's foreign policy, challenges to impeachmnt/removal, challenges to party gerrymandering
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Soverign immunity bars suits against_________
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States in fed and state court, unless suit is by federal government, and against state officers if payment for damages would come from state treasury
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Congress's authority to act
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Taxing, Spending Commerce
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When Congress can regulate commerce
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1. Channels of interstate commerce
2. Instrumentalities of interstate commerce and persons and things in interstate commerce 3. Activities that have a substantial economic effect on interstate commerce (if activity is non-economic, cannot aggregate) |
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10A
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All powers not granted to US nor prohibited to states are reserved to states
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Is there a limit on Congress's ability to delegate its powers?
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No
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Legislative action requires___________
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Bicameralism and presentment
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Requirements to enact treaty, effect of treaty
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2/3 Senate Vote, negotiated by president
Same power as federal statute, limited by Constitution |
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Requirements to enact executive agreement, effect of agreement
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Signed by president and foreign nation (no Senate approval)
Limited by federal law and constitution |
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President appoints___________
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Ambassadors, federal judges and officers of the US, Senate must approve appointments
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When can President remove an executive branch officer?
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Anytime
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When can Congress limit President's removal power?
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When office is such that independence from president is desirable. Even then, President can still remove for cause.
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From what suite is President immune?
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Civil suits for money damages for actions taken while in office
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To what does Presidential Privilege apply?
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Papers and conversations, but it yields to important government interests
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Who can President pardon?
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Those accussed of federal CRIMES, if not impeached by House
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When is state law preempted by federal law under Supremacy Clause (Art. VI)?
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1. Express
2. Implied -Impossible to simultaneously comply -State law impedes federal objective -Congress eidences clear intent to preempt (immigration) |
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Can state charge state taxes to be paid from federal treasury?
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No
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What is DCC?
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Negative implications of commerce clause (Art. IV): state/local laws are unconstitutional if they place UNDUE BURDEN on interstate commerce
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What are privileges and immunities of Art. IV?
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No state or municipality shall deny citizens of another state the privileges and immunities it affords its own citizens (NOT CORPORATIONS) without substantial justification
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What are privileges or immunities of 14A?
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Preserves a person's right ot travel from one state to another
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Art. IV analysis of state action
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Discrimination against out-of-staters?
NO--> P&I inapplicable, but if law unduly burdens interstate commerce, it violates DCC YES--> If law burdens interstate commerce, it violates DCC unless it is necessary to achieve important government purpose. Gov't must show no less discriminatory alternative (exceptions: congressional approval and market participant). If discrimination concerns ability to earn a living, it violates P&I unless it is necessary to achieve important government purpose. |
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Who can invoke P&I of Art. IV?
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Anyone but corporations or aliens.
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Can states use tax system to help in-state business?
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No
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Requirements for full faith and credit
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Rendering court had personal and SM jurisdiction, judgment was on the merits, judgment was final
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What amendment applies directly to private action?
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13A prohibition of slavery. "Badges and incidents" includes racial discrimination.
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When does constitution apply to private action?
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When private entity performs task traditionally exclusively handled by government (public function), or when government affirmatively authorized, encouraged or facilitated unconstitutional activity (entanglement)
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Gov't leases premises to restaurant that racially discriminates - state action?
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No
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Private school that's 99% funded by state fires teacher for speech - state action?
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No
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NCAA orders suspension of basketball coach at state university - state action?
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No
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Private club with state liquor license rationally discriminates - state action?
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No
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State provides free books to private school that racially discriminates - state action?
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Yes
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Private entity regulates interscholastic sports within a state - state action?
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Yes
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Amendments NOT incorporated against states via 14A
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5A right to grand jury indictment in criminal cases
7A right to jury in civil cases 8A right against excessive fines 13A right not to have soldiers quartered in home |
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Rational basis test / who bears burden
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Rationally related to legitimate government interest / challenger
Actual purpose irrelevant |
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Intermediate scrutiny test / who bears burden
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Substantially related to important government purpose / government
Actual purpose must be important Narrow tailoring = means are good, but not necessarily least restrictive |
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Strict scrutiny test / who bears burden
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Necessary to achieve compelling government purpose / government
Actual purpose must be compelling Narrow tailoring = least restrictive |
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Procedural DP test
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Gov't cannot deprive a person of life, liberty or property without due process of law
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What is "liberty" for purposes of procedural DP?
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Loss of significant freedom provided by constitution or statute
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What is "property" for purposes of procedural DP?
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Person has entitlement (reasonable expectation to receipt of benefit) and that entitlement is not fulfilled
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Mental state required for procedural DP safeguards to kick-in
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Intentional or reckless gov't action (negligence will not lead to deprivation)
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What process is due when procedural DP applies?
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Three part balancing test:
1. Importance of interest to individual 2. Ability of add'l safeguards to increase accuracy of factfinding 3. Government's interest (usually efficiency or economy) |
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Substantive DP generally
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Does government have REASON for deprivation of life, liberty or property?
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If gov't affects economic liberties, what test applies?
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Rational basis, except in takings context
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Takings clause - what is test and where is it in constitution?
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5A
1. Is there a taking (possessory or regulatory)? 2. Is it for public use? (gov't must reasonably believe taking will benefit public) 3. Was just compensation paid? |
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Can a law that summarily takes from a class in general work a taking?
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No
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May a property owner bring takings challenge to regulations that existed when he purchased property?
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Yes
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May the government condition permission to develop property?
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Yes, if condition is justified by a benefit roughly proportional to burden imposed (in which case, it's not a taking)
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When does contracts clause of Art. I, Sec. 10 apply?
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When states impair the obligations of contracts.
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What level of scrutiny applies to state interference with private contracts?
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Intermediate scrutiny - is law a narrowly tailored means of promoting important and legitimate public interest?
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What level of scrutiny applies to state interference with government contracts?
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Strict scrutiny
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What level of scrutiny applies when state interferes with a fundamental right?
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Strict scrutiny
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Abortion regulation rules
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Pre-viability: state cannot prohibit, but may regulate provided it does not place unue burden on ability to obtain abortion
Post-viability: states may prohibit unless necessary to protect mother's health |
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Who can refuse medical treatment / what can states require?
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Competent adults can refuse, but states can require clear and convincing evidence that person wanted treatment terminated
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If a law prevents people from moving into a state, or includes a durational residency requirement, what level of scrutiny applies?
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Strict scrutiny
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When are at-large elections unconstitutional?
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When there's proof of discriminatory purpose and impact
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How is equal protection claim asserted against federal government?
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DP clause of 5A
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How does P show classification?
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Facially discriminatory, or discriminatory impact AND intent
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When are classifications BENFITING women constitutional?
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If designed to remedy past discrimination or differences in opportunity // NOT if based on role stereotypes
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What level of scrutiny applies to discrimination based on alienage?
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Strict scrutiny, unless CONGRESS is acting, in which case RB
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Non-marital children - level of scrutiny?
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Intermediate
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Age - level of scrutiny?
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RB
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Disability - level of scrutiny?
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RB
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Sexual orientation - level of scrutiny?
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RB
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Content-based regulations on speech - level of scrutiny?
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Strict
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Content based - types?
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Subject-matter: applicaiton of law depends on topic of message (certain topics off-limits)
Viewpoint: application of law depens on idiology (certain viewpoints off limits) |
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Prior restraints - level of scrutiny?
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Strict
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When is licensing of speech allowed?
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If gov't has impotant reason, clear criteria exist that allow no discretion to licensing authority, and there are proper procedural safeguards
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When is law void under 1A for vagueness?
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When reasonable person cannot tell what speech is prohibited (e.g. "tends to corrupt morals of youth")
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When is law void under 1A for overbreadth?
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When it regulated substantially more speech than the constitution allows (e.g. "all live ent." used to shut down strip clubs)
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When can gov't regulate communicative CONDUCT under 1A?
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When it has important interest unrelated to supression of the message, and the impact on communication is no greater than necessary to achieve gov't's goal
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Is flag burning protected?
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Yes
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Is draft card burning protected?
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No
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Is nude dancing protected?
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No
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Is cross burning protected?
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Yes, unless done with intent to intimidate
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Are limitations on contributions to election campaigns constitutional?
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Yes, but limits on expenditures are not
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Is anonymous speech protected y 1A?
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Yes
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Can government speech (i.e. funding) violate the 1A?
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No, government can fund what it wants to fund
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When is speech that incites illegal activity UNprotected?
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When there's a substantial likelihood of imminent illegal activity, and speech is directed toward causing imminent illegality
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Obscenity test
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Miller: speech is unprotected if it
1. Appeals to prurient interest ("shameful or morbid interest in sex"), 2. Is patently offensive, and 3. Taken as a whole, lacks serious LAPS value (determined on nat'l standard) |
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Can gov't use zoning to refulate number and location of adult bookstores and movie theaters?
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Yes
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Can gov't punish possession of obscenity?
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No, but it can punish possession of child porn
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When is "profane and indecent" speech unprotected?
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In free, over-air broadcast media and in schools
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What level of scrutiny applies to regulations on commercial speech?
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Intermediate, unless advertising is for illegal activity or ad is false and deceptive, the speech is true commercial speech that inherently risks deception (e.g. trade names for attorneys)
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Defamation requirements - public figure / publc official
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P must show falsity and actual malice with clear and convincing evidence
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What is actual malice for purposes of defamation?
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Knowledge that statement was false, or reckless disregard of the truth
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Defamation requirements - private figure in matter of public concern
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If P shows negligence: compensatory damages only
If P shows actual malice: presumed / punitive damages allowed |
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Defamation requirements - private figure in private matter
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P need only show negligence; D bears burden to show statement is true
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Is speech by governemnt employees while on the job protected by 1A?
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No
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When are regulations of public forums OK?
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If they're subject matter and viewpoint neutral, or if they meet strict scrutiny
T/P/M regs that serve important gov't purpose and leave adequate alternative channels of cummincation open are OK (megaphone in neighborhood) Regulations need NOT be least restrictive |
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Are regulations requiring a permit fee for a parade constitutional?
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Not if city official has discretion in granting fee
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When are regulations of designated public forums OK?
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If they're subject matter and viewpoint neutral, or if they meet strict scrutiny
T/P/M regs that serve important gov't purpose and leave adequate alternative channels of cummincation open are OK Regulations need NOT be least restrictive If school choses to open its doors to some organizations, it must open them to all |
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When are regulations of limited public forums OK?
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When reasonable and viewpoint neutral
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When are sidewalks not a public forum?
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When in front of a post office
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Are there 1A rights on private propety (e.g. shopping mall)?
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No
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Level of scrutiny for laws that prohibit or publish membership
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Strict
To punish, gov't must show that D actively affiliated with group, has knowledge of group's illegal activities, and has specific intent to further those activities |
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When can plaintiff not use "free exercise" guarantee of 1A to challenge a law?
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When the law is a neutral law of general applicability
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Test for challenge to establishment clause
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SEX (law fails if it fails any one prong)
Gov't must have SECULAR purpose Primary EFFECT must be neither to advance nor inhibit religion Law must not result in EXCESSIVE gov't entanglement with religion (e.g. gov't cannot pay salary of parochial schoolteachers directly) |
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If law discriminated against religious speech, what level of scrutiny applies?
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Strict
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Must religious student/community groups have same access to school facilities as non-religious groups?
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Yes
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Is school prayer, even if voluntary, constitutional?
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No
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May government give money to parochial schools?
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Yes, if money is not used for religious instruction
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Can corp. or alien sue under DCC?
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Yes, both
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Fundamental rights (6)
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Marriage, procreation, custody of children, keeping family together, control raising of children, purchase/use of contraceptive
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Fundamental rights protected by EP (2)
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Travel, voting
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Fundamental rights protected by 1A (2)
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Speech, association, religion
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Is practe of trade a fundamental right?
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No
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Is education a fundamental right?
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No
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When can states regulate foreign commerce?
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They can't
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