Con Law 2

Front 1

prior restraint test

Back 1

Near v MN: 3 areas where injunction would be allowed-- 1) prevent publication of troops/locations/numbers or anything interfering with recruiting service 2)stop obscene publications for public morality 3)protect community against incitement to acts of violence and overthrow of gov by force.

also possilbly to ensure fair trial

Basically need compelling public interest and show ACTUAL damage will be done.

Front 2

incitement test

Back 2

brandenburg: advocacy is directed at inciting or producing imminent lawless action and is likely to produce such action

1) Intent to incite
2) likelihood of such action
3) imminent harm

Front 3

clear & present danger test

Back 3

old incitment test

can prohibit speech if words used are in such a circumstance and of such a nature that they'd create a clear & present danger of a harm that Congress has power to prevent

only need danger of it occurring

Front 4

fighting words test

Back 4

words that are likely to make the person they are addressed at commit an act of violence/immediate breach of peace

must be at a specific person!

ban ALL words in content neutral way

Front 5

hostile audiences

Back 5

can ban hostile speech if it isn't content based

neutral would be cross burning with intent to intimidate (not burning on basis or religion, race etc)

law will protect the speaker until the crowd gets out of control and then there is compelling interest to stop speaker

Front 6

hate speech

Back 6

cannot ban it but can enhance penalties because of it in criminal cases (WI v Mitchell)

Front 7

when is conduct protected as speech?

Back 7

tx v johnson

1) intent to convey particularized message
2) substantial likelihood that the message will be understood by those who view it

Front 8

o'brien test--speech plus

Back 8

1)within const. powers of the gov
2) furthers a substantial gov interest
3) that interest is unrelated to the suppression of free expression
4) incidental restrictions on speech are no greater than what is essential

Front 9

content based regulation

Back 9

basic test if you can regulate speech--is it content based or content neutral?

content based must pass strict scrutiny--narrowly tailored to compelling gov interest

Front 10

content neutral

Back 10

intermediate scrutiny-- substantial (important) gov interest, narrowly/closely tailored. leaves ample room for alternative opportunities for expression

Front 11

gov speech

Back 11

outside the 1st amendment--not subject to review by court

Front 12

overbreadth (in speech)

Back 12

regulates SUBSTANTIALLY more speech than constitution allows

Front 13

traditional public forum

Back 13

required to be open for speech

can only have content neutral or time/place/manner restrictions (or a content based if it could somehow survive strict scrutiny)

can require licensing

gov need not use the least restrictive means

Front 14

designated public forum

Back 14

can have viewpoint neutral restrictions--limit the populations that can access the forum

but can't then discriminate within those populations that are given access

Front 15

non-public forum

Back 15

gov can treat it like private property--can basically ban whatever it wants

Front 16

obscenity test

Back 16

miller

1) avg person, applying contemporary community stds, would find that the work, taken as whole, appeals to prurient interest
2) work depicts/describes in a patently offensive way sexual conduct specifically defined by the applicable law
3) whether work, taken as whole, lacks serious LAPS value (national std)

Front 17

child porn test

Back 17

Ferber-- miller test modified

1) whether work depicts sexual conduct specifically defined by the applicable law
2) whether it lacks serious LAPS value (don't need to take it as a whole)

Front 18

reasons to ban child porn

Back 18

1) intrinsically related to sexual abuse of kids
2) negligible LAPS value
3) advertising/selling it gives motive to produce more
4)state has compelling interest in protecting kids

Front 19

possession of obscene material

Back 19

private possession in own home can't be regulated
(unless its child porn, then it can be)

Front 20

offensive/indecent speech

Back 20

FCC case-- can have neutral time/place/manner restrictions on it

dial-a-porn indecent messages are allowed, but may be regulated

Front 21

commercial speech

Back 21

to get any protection it must 1) concern lawful activity and 2) not be misleading

test if regulations on it are valid:
1) must be subst. gov interest
2) regulation must directly advacne the interest asserted
3) AND it must not be more extensive than is necessary to serve that interest

Front 22

libel of public officials

Back 22

mistaken false statements are protected. only unprotected if:

1) statement was made with actual malice--meaning knowing falsity or reckless disregard to truth

recovery for IIED must also show actual malice

Front 23

libel for non public officials in public speech

Back 23

state can create own laws, but CANNOT be strict liability

punitive dmgs require actual malice

Front 24

printing private info

Back 24

protected--usually privacy interest will not win out if it is a matter of public concern

Front 25

compelled disclosure of group memebers

Back 25

subject to strict scrutiny b/c people may be less likely to associate if they know membership is disclosed

Front 26

assocaition in commercial organizations

Back 26

gov can interfere w/ membership for compelling reason (combat discrimination)

exception: if forcing members in would interfere with the message the group was created to send, its not allowed (Dale)

Front 27

association for private parties

Back 27

can't be forced to include everybody (gov can only compel this if its public accomodation)

Front 28

free exercise

Back 28

Smith test

1) religious belief doesn't exclude non-compliance with valid and neutral law of general applicability
2) if not neutral though, must pass strict scrutiny (lukumi)

any other law harming free exercise has to pass strict scrutiny

Front 29

establishment

Back 29

can't endorse one religion over another or religion over secular

Lemon test:
1) must have secular legis purpose
2) its primary effect must be one that neither enhances or inhibits religion--aka must be secular effect
3) must not foster excessive gov entanglement with religion

Front 30

religious symbol displays by gov

Back 30

to be allowed, typically need;

1) secular purpose to display
2) not advocating one religion over another, or religion over nothing

Front 31

school prayer

Back 31

prohibited. even if voluntary or student led b/c school would still be authorizing it

Front 32

funding religious schools

Back 32

lemon test applies

but giving aide to all schools with no thought of religion is prob okay, as is transferring old supplies from public school to relig one

child benefit theory: court typically finds secular purpose for school aide b/c its to benefit kid's edu

Front 33

suspect classes

Back 33

race, alienage (so long as not in connection with political process), legitimacy, ballot/access --fundamental rights

Front 34

affirmative action/remedies

Back 34

can use race based classifications to right a specific past wrong, still has to pass strict scrutiny though

(grutter)
race can't be controlling factor in gov decision

Front 35

state action

Back 35

EPC only applies to state actors or private parties if they are taking place of state

1) using judicial/political/execs/police to act or enforce
state facilitation of private acts
2) symbiotic relationship with state/entwinement
3)performing a state function

Front 36

process due (hearing)

Back 36

at minimum--notice of charges, hearing on relevant facts, impartial decision maker

Front 37

hearing before deprivation?

Back 37

weigh:
1) private interest affected
2) risk of erroneous deprivation with procedures already in place, and probable value of additional measures
3) gov interest--including function involved and burdens of adding more procedures

Front 38

punitive damages DP

Back 38

1) degree of reprehensibilty
2) disparity b/w harm suffered and punitive award
3) difference b/w this remedy and the civil penalties authorized in comparable cases

Front 39

sphere of privacy come from?

Back 39

1, 3, 4, 5, 9 amenmdnet plus 14th

create zones of privacy go cannot intrude upon

mostly in family interests--procreation, marriage, sex, child rearing

Front 40

casey

Back 40

undue burden test:

undue burden on woman's liberty to make the decision

(spousal reporting invalidated under this)

Front 41

fundamental rights

Back 41

to procreate
to marry
to raise child as with/direct upbringing
care/custody/control of kid
to refuse life saving medical care
NO right to die (suicide)
no right to be gay--but right to privacy for acts done in own home
to vote--apportionment/ballot access
to access courts--but prob for only things affecting fundament right (divorce, child custody
to travel (but not int'l)

Front 42

K clause

Back 42

only applies to states!

can't impair the obligations of K's

test:
1)is impairment substantial?
2) is there signif, legit interest?
3) is plan reasonably related to that goal?

Front 43

takings general

Back 43

for public purpose--benefit to econ suffices (Kelo)

Front 44

per se taking

Back 44

1) any permanent physical intrusion, no matter how small
(temporary may suffice as well)
2) any regulation that deprives of ALL (or virtually all) econ value

Front 45

Penn central test

Back 45

balance:

1) character of gov action/public benefit
2) econ impact on owner
3) consider what type of law it is--zoning usually upheld

Front 46

exactions

Back 46

nexus--what gov takes has to be related to the purpose of the original property restriction

proportionality: if harm from the allowed development is small, exaction must be small