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69 Cards in this Set

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Pervasive Entwinement

Where there are pervasive connections between govt and private party, there is state action.

5th amendment due process clause

Government cannot deprive person of life, liberty or property without due process of law.

14th amendment due process clause

A state may not deprive a person of life liberty or property without due process of law.



14th amendment incorporates the bill of rights into the states.



Example: violates 1st amendment as applied to the states through the due process clause of the 14th amendment.

Substantive due process steps

1. Is it a fundamental right?


2. Determine test: ss, is, rb

Fundamental Rights - BFPs & TVs

Bodily integrity, Family matters, Procreation, Travel, Voting

Procedural due process

Govt can't deprive you individually of liberty or property without notice and a hearing

Requirements for a due process hearing

Notice plus a meaningful opportunity to be heard

Bill of attainder

The law can't punish an individual by name

Ex post facto clause

The law can't make a crime out of a completed action that was legal when done or increase penalty for acting before the law

Contract clause

State law can't impair existing contract obligation absent important public need

Takings Clause

The government cannot take private property for public use without just compensation

14th amwndment Equal protection clause

No state shall deny any person equal protection of the laws

Strict Scrutiny

The distinction must be necessary for a compelling state interest



Suspect class, fundamental rights, MD: gender

Intermediate Scrutiny

Distinction must be substantially related to an important interest



Gender, illegitimacy

Rational Basis Review

The distinction must be rationally related to a legitimate interest

When will affirmative action pass strict scrutiny

A remedy for proven past discrimination or in higher education to achieve diversity

Privileges and immunities clause art 4

System may not deprive a cities of another state of the basic rights of citizenship.



Owning property and making contracts, engaging in private employment

Lemon Test

MD test for establishment clause.



P- secular Legislative purpose



E- primary effect not to advance or inhibit religion



E- not cause excessive entanglement with religion

Establishment clause

Congress shall make no law respecting the establishment of religion


religion

Free exercise clause

The government may not require into truth of belief but may ask about sincerity of belief.



A generally applicable criminal law is constitutional even if it inhibits religious practice. BUT the law cannot single out religion.

Unprotected speech categories

FIDO


Fighting words, incitement to violence, defamation, obscenity

Low level protected speech

Commercial speech, indecency

Fully protected speech

Political, artistic, everything not un or low protected speech

Fighting words

Unprotected speech.



Face to face words likely to incite immediate violence against speaker. OR "true threats"

Incitement to violence

Unprotected speech



Speech create clear and present danger of immediate lawless action against others. (More than advocacy)

Defamation (FIDO)

Unprotected Speech



Intentionally or negligently publishing a statement of fact concerning the plaintiff which is false and defamatory and proximately causes harm to the plaintiff's reputation



Public figures require actual malice.

Miller Obscenity

Unprotected Speech-POV



P- average person applying a contemporary community standard find work as a whole appeals to prurient interest.



O- the work depicts sexual conduct in a patently offensive way



V- the work as a whole that serious literary artistic political or scientific value

POV

Regulation of Indecency

Low level protected speech


Can't stop adults from seeing indecency but can protect kids through zoning and broadcasting limits.

Central Hudson Test for Commercial Speech

Low level protected speech.


Can ban if illegal or misleading.


Otherwise, can only regulate if:


Substantial government interest, law directly advances interest, reasonable fit between ends and means.


-can ban deceptive or intrusive attorney ads


-cannot ban truthful ads for liquor prices




Content Based Regulation

Regulation based on message or subject. Must review for viewpoint neutral or viewpoint based.

Content neutral regulation

Regulation of fully protected speech where all speech is banned, regardless of content.

Traditional public forum

Governmental property traditionally used for speech like parks or streets or land that is opened for expressive activity purpose

Limited public forum

Governmental property created for general speech but limited to particular groups or particular topics

Non public forum

Governmental property not a public forum like a military base, government office, public schools, public teachers mailbox.

Prior restraints

Where the government silences speech before it occurs presume it's unconstitutional. More than mere threats, when they're actually preventing speech without a good reason.

Overbreadth

Law is unconstitutional where it is substantially overbroad. This occurs when the law prohibits not only unprotected speech but too much protected speech as well

Vagueness

Law must give a person of common intelligence notice of what is prohibited

Regulation of expressive conduct

The government can't ban expressive conduct simply because they disagree with the message

2nd amendment

The government cannot totally ban private possession of firearms but reasonable regulation is probably OK

Government employees

Government cannot punish a government worker for speech on a matter of public concern unless it disrupts the office. The government can punish a government worker for a job related speech

Public forum+content based test

Unconstitutional unless it passes strict scrutiny

Non public forum + content-based test

Constitutional if reasonable considering the purpose of the property

LPF + CB + VN

Constitutional if it is reasonable considering the purpose of the property

Public forum + content-neutral

Constitutional as a time place and manner restriction if it is narrowly tailored to serve an important government interest in these an alternative means to communicate.



Not constitutional if the fee is based on the cost of crowd control

Non public forum + content-neutral

Constitutional if it is reasonable considering the purpose of the property. presumed constitutional

Limited public forum + content-neutral

Constitutional if it is reasonable considering the purpose of the property

State police power

States do not need a source of power to act

Supremacy Clause

Where there is a conflict between the federal and state governments the federal government trumps

Proof of standing for federal court

Actual, redressable injury that is personal, concrete and particularized and fairly traceable to the government

Ripeness

A party may only bring suit when an injury has occurred or is likely to occur and there is a substantial likelihood of prosecution by the government if you violated the law you're challenging.

Mootness

The claim must be alive throughout the case, including appeal. Exception: where the injury is capable of repetition yet evading review.

Political Question

And issues that is not for the courts but for the President or Congress such as impeachment expelling a House member amending the Constitution terminating a treaty

Congressional Powers

Congress must find their source of power before they may act.

Commerce Clause

Congress has the power to regulate trade that is interstate or international and the Indian tribes



Interstate= anything between states and local activities with a substantial effect on interstate commerce.



Congress cannot make a state pass a state law or make state employees enforce a federal law.

Taxing Power

Taxes are constitutional if they're designed to raise revenue but not if they're designed solely to regulate

Spending power

Congress can spend money for the general welfare but cannot regulate for the general welfare.

Imposing conditions for federal funds

Uder the Spending power,


Congress can impose conditions on states in exchange for federal funds if reasonably related to federal interests and pressure not corrosion

Enforcing the thirteenth fourteenth and fifteenth amendments

Congress may only enforce these amendments not create new rights

Congressional immunity

Speech and debate: the legislature is not liable for legislative acts or speeches on the floor of the House or Senate applies to the Legislature and their aides.



The legislator is still liable for speeches off the floor such as press conferences

11th amendment

Limits the ability of Congress to pass laws that let private individuals sue a state for money (except for violation of EP)

Dormant Commerce Clause

The dormant Commerce Clause grants Congress the sole authority to regulate interstate commerce and limits the state's ability to do so through geographic discrimination or placing substantial burdens



Note: Congress can authorize state discrimination


DCC- Geographic Discrimination

When regulating interstate commerce, a state may not discriminate based on geography (against out of state commerce) unless there is a compelling/important governmental interest and no non-discriminatory alternative is available to achieve this interest

Market participant doctrine

Where the state buys and sells its own own property it can discriminate like other private buyers or sellers and the dormant Commerce Clause does not apply. However, states cannot hoard their natural resources.

1st amendment free association clause

Limits the government's ability to regulate association with persons of one's choosing absent the involvement of some illegality. Special SS applies

Damages in constitutional violation

Seek declaratory judgments that the statute is unconstitutional and injunctive relief to enjoin future enforcement.

DCC - Substantial burden

When regulating interstate commerce a state statute may not substantially burden interstate commerce unless it is an important government interest

Commercial Speech

Speech that does nothing more than propose a commercial transaction. False or misleading commercial speech is not constitutionally protected

SS for Freedom of association

The limit on association must be necessary to serve a compelling state interest unrelated to the suppression of ideas and must leave an alternative means to communicate.

Check, List

Check: state action, standing, clues, remedy



List: Equal protection, due process, speech, religion, commerce clause, vagueness, over-breadth, other