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209 Cards in this Set

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What are the requirements for justiciability of a case or controversy in federal courts?
1) Standing (injury, causation, redressability, not third party, not generalized grievance)
2) ripeness
3) not mooted
4) not a political question
What is "standing"?
Issue of whether the plaintiff is the proper party to bring a matter to the court for adjudication
What are the requirements for standing?
1) Injury: plaintiff must allege or prove that he has personally been injured or will personally be imminently injured
2) Causation and redressability: plaintiff must allege and prove taht D caused injury such that a favorable decision is likely to remedy injury
3) No third party standing SUBJECT TO EXCEPTIONS
4) no generalized grievances: plaintiff cannot sue solely as a taxpayer interested in havin thte government follow the law unless alleging violation of establishment clause by government expenditures pursuant to a specific statute
What is "ripeness"?
The question of whether a federal court may grant pre-enforcement review of a statute or regulation
What is "mootness"?
Whether the issue is still a problem. If events after filing of a lawsuit end plaintiff's injury, case is moot. EXCEPTIONS:
1) voluntary cessation,
2) wrong capable of repetition evading review w/ chance it happens again to plaintiff,
3) class action suits where at least one member has an ongoing injury
Among a mix of individuals, who has the "best" standing for con law?
Plaintiffs who have suffered economic harm
What are the exceptions to the "no third party standing" rule?
If plaintiff independently meets all the standing requirements, he may present a third party's claims if:
1) Close relationship between the plaintiff and the injured thrid party (eg. doctor-patient) OR
2) injured third party is unlikely to be able to assert his or her own rights
3) organization may sue for members if members would have standing to sue, interests are germane to organization's purpose, and neither the claim nor relief requires participation of individual members
When a plaintiff seeks delcaratory judgment, look for...
ripeness issues!
What factors will the court consider in deciding ripeness?
1) hardship suffered WITHOUT preenforcment review
2) fitness of issues and record (does the court have all the info it needs; questions of law are better here). Balance these factors
What types of cases raise a "political question," such that courts will not adjudicate?
1) republican form of government clause cases
2) challenges to president's conduct of foreign policy
3) challenges to impeachment and removal process
4) challenges to partisan gerrymandering
What is requried for US Supreme Court review?
1) question of federal law presented
2) in a petition for certiorari from
3) final judgement of
a) highest state court
b) US Court of Appeals
c) three judge federal district court (OBLIGATORY REVIEW)
4) subject to complete discretion of the court.
5) for review of state court, there must not be an independent and adequate state law ground of decision
EXCEPTION: SCOTUS has original and exclusive jurisdiction for suits between state governments.
Give an example of "independent and adequate state law ground of decision"
Plaintiff wins in trial court and state appeals courts on both 4th A claim with judgment for $100,000 and state tort battery claim for $100,000
Can a court hear suits against state governments? On what grounsd?
NO. Eleventh amendment bars suits against states in federal court. Sovereign immunity bars suits against states in state courts or federal agencies.
EXCEPTIONS:
1) explicit waiver
2) suit brought pursuant to federla laws adopted under section 5 of 14th amendment
3) suit brought by federal government
4) bankruptcy proceedings
Can courts hear suits against state officers? Under what circumstances?
YES
1) for injunctive relief OR
2) for money damages to be paid out of their own pockets
BUT NOT if state treasury will be paying for retroactive damages.
What is the abstention doctrine, and when does it apply?
Federal courts must abstain from a suit for injunctive relief when there is a parallel state court proceeding in process
Is there a general federal police power?
No.
MILD EXCEPTIONS:
1) miliatary
2) Indian reservations
3) federal lands and territories
4) District of columbia
When does Congress have authority to act?
ONLY when there is express or implied Congressional Power (eg. necessary and proper clause, taxing and spending power, commerce power, etc.). Must be bicameralism and presentment to the president
What power/authority does the necessary and proper clause bestow?
Congress may choose any means not prohibited by the Constitution to carry out its authority (eg. however it wants to raise an army and navy)
What is the general grant of authority under teh taxing/spending power?
Congress may tax and spend for the general welfare at its discretion
What are the grants of authority under the commerce power?
1) regulate channels of interstate commerce
2) regulate instrumentalities of interstate commerce adn persons or things in interstate commerce
3) regulate economic activities that have a substantial effect on interstate commerce
4) regulate noneconomic activity that has a substantial effect on interstate commerce that is NOT based on cumulative impact.
NOT regulations of inactivity
Under what grants of authority may Congress act for the general welfare?
1) MILD exercises of federal police power
2) taxing/spending power AND THAT'S IT
What are instrumentalities of insterestate commerce?
Anything that facilitates insterstate commerce.
Eg. trucks, cars, internet, electricity, radio waves, etc.
What does the Tenth Amendment establish?
All powers not granted to states are reserved to states or people MEANING
1) Congress cannot directly compel state reuglatory or legislative action BUT
2) Congress may prohibit harmful commercial activity by state governments.
HOWEVER, can induce state government action by putting strings on grants so long as conditions are expressly stateed and relate to the purpose of the spending program and not unduly coersive
Can Congress make federal grants contingent on certain state actions?
YES, so long as:
1) conditions are expressly stated AND
2) conditions relate to the purpose of the spending program AND
3) conditions are not unduly coersive
What power does Congress have under section 5 under the Fourteenth Amendment?
Power to prevent or remedy violations of rights recognized by the courts, presuming taht the laws are proportionate and congruent to remedying constitutional violations. MAY NOT create new rights OR expand scope of rights. (eg. RFRA)
What limits exist on Congress' ability to delegate powers?
1) No limit on delegation of legislative powers
2) may NOT delegate executive power to itself or its officers
Are legislative vetos constitutional?
No
Are line item vetos constitutional?
No
What is a legislative veto?
Congress attempts to overturn an executive action with less than bicameralism and/or presentment
Can president sign or veto simply a portion of a bill passed by congress?
Nope
What powers does the executive have in the realm of foreign policy?
1) negotiate treaties (subject to Senate approval)
What powers does the executive have int he realm of domestic affairs?
1) appointment power
2) removal power
3) pardon power
What is a treaty?
Agreements between the US and a foreign country that are negotiated by the president and effective once ratified by senate
What is an executive agreement?
Agreement between US and foreign country that is effective when signed by the president andthe head of the foreign nation (NOT subject to senate approval)
Treaty v. state law. Which wins?
Treaty
Treaty v. federal statute. Which wins?
Whichever adopted last in time
Treaty v. US Constitution. Which wins?
US Constitution
What purposes can an executive agreement be used for?
Any
executive agreement v. state law. Which wins?
Executive agreement
Exectuvie agreement v. federal statute. Which wins?
Federal Statute
Executive agreement v. Constitution. Which wins?
Constitution
Under what circumstances may the President use American troops in foreign countries?
Basically, whenever he wants. Will likely be dismissed as political question.
What is the president's appointment power?
Power to appoint ambassadors, federal judges, and officers of the US, subject to confirmation of senate
Who has the power to appoint inferior officers of the US
Congress has discretion to vest in President; may not vest in congress itself
Who has the power to appoint heads of departments of the US?
Congress has discretion to vest in President; may not vest in congress itself
Who has the power to appoint judges to lower federal courts?
Congress has discretion to vest in President; may not vest in congress itself
What is an "inferior officer" of the US?
Any officer who can be fired by another officer
What is the president's removal power?
Power to fire any executive branch official, unless removal is limited by statute.
When can Congress limit removal of an executive official?
1) Independence from President is desirable AND
2) removal is not prohibited, just limited to good cause
When and how can executive officials be impeached?
When charged with treason, bribery, or high crimes and misdemeanors, executive officers may be impeached by a majority vote of the House of Representatives and convicted, resulting in removal from office, by 2/3 majority of Senate.
What are the contours of Presidential immunity?
ABSOLUTE immunity to civil suits for money damages for any actions while in office, BUT NOT for actions that occurred prior to taking office.
What are the contours of executive privilege?
Covers presidential papers and conversations, but must yield to other important government interest
What are the contours of the presidential pardon power?
May pardon anyone accused or convicted of federal crimes UNLESS convicted and impeached by Congress
Can the president pardon individuals convicted of state law crimes?
NO
Can the president pardon individuals for civil liability?
NO
What is "federalism?"
Limits on state and local power because of the existence of a national government
What is the preemption doctrine?
Pursuant to supremeacy clause of article VI, Constiution and laws and treaties made pursuant to it are the supreme law of the land
Valid federal law v. Valid state law. Which wins?
Federal law
When is a state or local law preempted by federal law?
When there is:
1) express preemption (law states directly taht federal law is exclusive in the field) OR
2) implied preemption (concurrent jurisdiction is inherently contradictory/mutually exclusive, state impedes federal objective, or clear stated intent to preempt sate law).
Can state tax or regulate federl government activity?
No, due to intergovernmental immunity
When will a state be deemed to have taxed or regulated federal government activity?
If state tax is to be paid from federal treasury, impresmissible
What is the dormant commerce clause?
Principle that state or local law is unconstitutional if it places an undue burden on interstate commerce; not actually in constitution, rather inferred from grant of power to Congress to regulate commerce between states.
What are the two dimensions of the Commerce Power?
1) power for congress to act to regulate commerce between states
2) prohibition on state activity to regulate commerce between states
What is the privileges AND immunities clause of Article IV?
No state may deprive citizens of other states of the privileges and immunities that it accords its own citizens
What is the privileges OR immunities caluse of the Fourteenth Amendment?
No state may deprive any citizen of the privileges or immunities of US Citizenship.
EFFECTIVELY ONLY involves right to travel; super narrow construction.
What is the principle behind the privileges and immunities clause of Article IV?
Anti-discrimination between states
When does the privileges and immunities clause of Article IV come into play?
When state or local government is discriminating against out of state individuals
When does the privilges or immunities clause of the Fourteenth Amendmet come into play?
ONLY for right to travel
First question in federalism question:
Does state law discriminate against out of staters?
In a federalism question, if a state law does not discriminate against out of staters, then ask:
Does it burden insterestate commerce?
-If YES, violates dormant commerce clause if its burdens exceed benefits.
-IF NO, then constitutional (Article IV does not apply)
In a federalism question, if a state law DOES discriminate against out of staters, then ask:
A: Is it necessary to achieve an important governmental interest?
IF YES, passes dormant commerce clause.
If NO violates dormant commerce clause, subject to
EXCEPTIONS:
1) congressional approval
2) market participant exception
B: Does it discriminate against out of staters with respect to their ability to earn a livelihood?
If YES violates Article IV unless necessary to achieve govenrmental prupose.
IF NO: Passes Article VI, but see question 1!
What types of discrimination against out of staters triggers the privileges and immunities clause of Article IV?
1) civil liberties OR
2) economci activities
Are corporations protected by the privileges and immunities clause of article IV?
No
Are aliens protected by the privileges and immunities clause of article IV?
No
What is the market participant exception to the dormant commerce clause?
A state or local government may prefer its own citizens in receiving benefits from government programs or in dealign with government-owned businesses
Can states use tax systems to help in-state businesses?
NO
When is an activity subject to state taxation?
Only if there is a substantial nexus to the state (a la touch and concern from property)
What does the full faith and credit clause require?
A judgment by a court in one state must be enforced by 1) court issuign judgment ahd subject matter and personal jdx
2) judgment was on merits
3) judgment was final
Requirements for the constitution to protect individual liberties:
1) Is there government action?
2) (If Bill of Rights question), has rightin question been incorporated against the states OR is the federla government the bad actor?
When and how can private conduct be required to comply with contstitutional norms?
1) If Congress passes a statute applying constitutional norms to private conduct. (Eg. private race discrimination legislation under the Thirteenth Amendment)
2) public function exception: Private entitity is performing a tast traditionally exclusively performed by the government
3) entangelement exception: government required to affirmatively authorize, ecourage, or facilitate, or enforce unconstitutional activity (eg. racially restrictive covenant).
Does race discrimination violate the Thirteenth Amendment?
NO! Only slavery. instead, violates statutes enacted to pursuant to section 2 of thirteenth amendment
Can Congreess reuglate private behavior under section 5 of the Fourteenth Amendment?
NO
Name the key examples of state action pursuant to the entanglement exception?
1) racially restrictive covenant
2) gov. leases premises to racially restrictive establishment
3) state provides books to schools aht racially discriminate
4) Private entitty regulates interscholastic sports within a state
name the key instances when there is NO state action under the entanglement exception?
1) private school fires teacher (even if 99% funded by gov.)
2) private club with liquor license from state racially discriminates
3) NCAA orders suspension of basketball coach at state university
Which of the Bill of Rights have been incorporated against the states?
ALL except
1) 3rd A right not to have a soldier quartered in person's home
2) 5th A right to grand jury indictment in criminal cases
3) 7th A right to jury trial in civil cases
4) 8th A right against excessive fines
What is the language for the rational basis test?
Is the law rationally related to a concievable, legitimate government purpose?
What is the langauge for the intermediate scrutiny test?
Is the law substantially and ACTUALLY related to an important government purpose?
What ist he language for the strict scrutiny test?
Is the law ncessary to achieve an actual, compelling government purpose?
Who bears the burden of proof under rational basis?
Plaintiff
Who bears the burden of proof under intermediate scrutiny?
Government
Who bears the burden of proof under strict scrutiny?
Government
What is "procedural due process"?
The procedures taht the government must follow to deprive someone of life, liberty, or property (ie. notice, etc.)
What is substantive due process?
WHO THE F*** KNOWS!?!??!? The finding of some substantive rights in the due process clause of the Fourteenth Amendment. Think privacy
What is the inquiry in equal protection?
Are the government's differences in the treatment of people justified?
Steps of a procedural due process analysis
1) Has there been a deprivation of life, liberty, or property?
2) Determine what procedures are required by balancing
a) importance of the interest to the individual
b) ability of additional procedures to increase the accuracy of the factfinding
c) government's interests
What is required for a deprivation of liberty?
A loss of a significant freedom provided by the Constitution or a statute (eg. adult being institutionalized v. parent institutionalizing a child).
Do prisoners have liberty interests?
Basically and typically, no.
What is a deprivation of property?
The plaintiff has an entitlement (either right OR privilege) and that entitlement is not fulfilled
Does procedural due process differentiate between rights and privileges?
NO
What is an entitlement, for purposes of due process analysis?
Reasonable expectation to continue receipt of a benefit (eg. public job promised for a year, but fired after 2 months with no process)
Can government negligence lead to a claim under due process analysis?
No. Must be reckless at minimum, and during emergencies, must shock the concscience
Does government's failure to protect people from privately inflicted harms violate due process?
No. (recall the child abuse case)
When does government have a duty to protect?
When government literally causes harm or when individual is in government custody
What are the seven clear examples of requirements under procedural due process?
1) Welfare benefits terminated: notice and hearing before termination
2) Social security disability benefits terminated: hearing after termination
3) School discipline: notice of charges and opportunity to explain before punsihment
4) Parental custody permanently terminated: notice and hearing before termination
5) Punitive damages: instructions to jury and judicial review
6) Americal held as enemy combatant: full due process rights
7) Government seizure of assets: notice and hearing before termination UNLESS exigent circumstances
What are the procedural due process requirements for infliction of corporal punishment in school?
NONE
When can the government seize assets without preceeding notice and a hearing?
1) asset used in illegal activity: may seize immediately, even if innocent owner
2) Exigent circumstances; when person may get rid of asset before trial, gov. may seize subject to post-seizure hearing
What test is required for government deprivation of economic liberties?
Rational basis test only
What constitutes a taking under the Constitution?
EITHER
1) possessory taking: government confiscates or physically occupies a property
OR
2) regulatory taking: govenrment regulation leaves no reasonable economically viable use of the property
What must the government do to legitimately seize private property unde the constitution?
1) Must be taken for public use AND
2) msut provide just compensation
When may the government place conditions on development of property?
Only when the benefit to the governent is roughly proportionate to the burden imposed on the land owner; otherwise, a regulatory taking
Can a property owner bring a takings challenge to regualtions that existed at the time the property was acquired?
Yes
Can the government impose temporary restrictions on development without constituting a "taking"?
Yes
When is a taking considered to be "for public use?"
Gov. acts out of a reasonable belief that the taking will benefit the public
Steps of a takings clause analysis:
1) is there a taking (possessory or regulatory)?
2) Is the taking for public use ?
3) Is just compensation paid?
How is "just compensation" measured under the atkings clause?
Loss to the owner in reasonale market value terms, NOT gain to the owner.
What does the contracts clause say?
No state shall impair the obligations of contracts
To what government actions does the contracts clause apply?
Only to
1) state or local interference (never federal)
2) with EXISTING contracts
Under what standard are contracts clause issues evaluated?
-Interference with private contracts: Intermediate scrutiny: legislation that substantially impairs a party's right must be a reasonably and narrolwy tailored means of promoting an important and legitimate public interest. I-nterference with government contracts: strict scrutiny
Does the ex post facto clause apply in civil acases?
NO; retroactie civil liability need only meet a rational basis test
What aspects of the right to privacy have been recognized as fundamental rights under substantive due process?
1) Right to marry
2) right to procreate
3) right to custody of children
4) Right ot keep family together
5) right to control upbringing of one's children
6) right to purchase and use contraceptives
7) Right to abortion (subject to limitations)
8) Right to private consensual homosexual activity
9) right to refuse medical treatment (but not to physicial assisted death)
What limitations may the state place on a woman's access to abortion, and what duties does the state have or not have in that space?
1) Pre- viability, may not prohibit but may regulate abortions so long as they do not create an undue burden on ability to obtain abortions
2) post-viability: state may prohibit unless it jeopardizes woman's life
3) NO duty to subsidize
4) NO duty to provide in public hospitals
5) May require parental notice and consent for unmarried minor's abortion, so lon gas there is an option for judicial reivew
may the state create an irrebutable presumption that a married woman's husband is the father of her child?
Yes
What are some SCOTUS approved regulations on abortions that do not create undue burdens?
1) 24-hour waiting period
2) abortions be performed by licensed physicians
3) prohibiting partial birth abortions
Are spousal consent laws constitutional?
NO
Are spousal notification laws constitutional?
No
What rights are protected under the second amendment?
Individuals may keep guns in the home for protection purposes
In what ways may the government regulate access to guns?
1) who can have guns
2) where guns can be located
What level of scrutiny is required for the second amendment?
UNCLEAR
Under what standard are laws regulating travel between states reviewed/
Strict scrutiny
Under what standard are durational residencey requirements for in state benefits reviewed?
Strict scrutiny
Under what standard are restrictions on foreign travel reviewed?
Rational basis review
How long can a state require an invidual to live in a district in order to vote there?
50 days
Under what standard are laws that restrict any citizens from voting reviewed?
Strict scrutiny
Are laws designed to protect integrity of electoral system *prevent voter fraud) permissible?
Yes, so long as they are on balance desirable
To which jurisdictions does the one-person-one-vote rule apply?
ALL state, local and federal. All districts msut be approximately equally proportioned
Are at larte electons constitutional?
Yes, unless there is proof of discriminatory purpose
Can the government use race to draw district boundaries to assist minorities?
Only if it meets strict scrutiny
Is education a fundamental right?
NO
What is the structure for an equal protection question?
1) What is the classification?
2) what level of scrutiny should be applied?
3) does the law meet the level of scrutiny?
What fundamental rights trigger strict scrutiny?
1) Marry
2) procreate
3) custody of children
4) keep family together
5) control raising children
6) purchase and use contraceptives
7) travel
8) vote
9) freedom of speech
10) freedom of association
11) free exercise if not a neutral law of general applicability?
What fundamental rights trigger an undue burden test?
Abortion
What rights are NOT fundamental rights, and what level of scrutiny are they subject to
1) pratctice a trade or profession
2) physician assisted suicide
3) education; rational basis scrutiny
What fundamental rights do we still not know the level of scrutiny for?
1) private homosexual activity
2) possession of firearms
3) refuse medical treatment
What what levels of government does the equal protection clause of the fourteenth amendment apply?
State and local ONLY
Does equal protection apply to the federal government? if so, how?
Through due process clause of fifth amendment
What is the difference between equal protection as applied to the federal government and the state and local govs?
None substantively, just source
What level of scrutiny is triggered by racial classifications?
Strict scrutiny
What level of scrutiny is triggered by classifications based on national origin?
Strict scrutiny
How is the existence of a racial classification proven?
1) Classification on face of law (eg. white men onlyl may....) OR
2) facially neutral laws may have BOTH discriminatory impact AND discriminatory intent. (eg. use of discrimatory peremptory challenges based on race)
What treatments for racial classifications BENEFITING minorities?
1) strict scrutiny applied
2) numerical set asides permitted as remedy for past discrimination
3) education may use race in black box admissions style, but not points
4) BUT Public K-12 schools may not use race as factor
What level of scrutiny is triggered by gender classifications?
Intermediate scrutiny + "exceedingly persuasive" justification
How is the existence of a gender classification proven?
1) classification on face of the law OR
2) facially neutral laws with BOTH dsicriminatory impact AND discriminatory intent ("real difference" requirements in terms of weight, height, etc. permitted)
What treatments for gender classifications BENEFITING women?
1) classifications based on role stereotypes not permitted (eg. economically dependent women)
2) classifications designed to remedy past wrongs permitted
What are alienage classifications?
Classifications discriminating based on non-US citizenship
What level of scrutiny is triggered by alienage classifications?
Generally strict scrutiny.
EXCEPTIONS:
1) rational basis for classifications concerning self-government and democratic process (voting, jury, police officer, teacher, probation officer).
2) rational basis for Congressional discrimination against aliens
3) intermediate scrutiny for discrimination against undocumented alien children
What level of scrutiny is tiggered by classifications based on marital or nonmaritla children?
Intermediate scrutiny
Are laws that deny a benefit to all non-marital children and grant it to all marital children constiutional?
NO, but case by case analysis when it discriminates against only SOME non-marital children.
What level of scrutiny is triggered for classifications other than race, gender, alienage, and marital-child status?
RATIONAL BASIS
What level of scrutiny is triggered by age discrimination?
Rational basis
What level of scrutiny is triggered by wealth discrimination?
Rational basis
What level of scrutiny is triggered by disability discrimination?
Rational basis
What level of scrutiny is triggered by economic regulations/ discrimination?
Rational basis
What level of scrutiny is triggered by sexual orientation discrimination?'
Rational basis
What are the methods of claiming a violation of free speech?
1) Subject matter restriction: strict scrutiny
2) viewpoint restriction: strict scrutiny
3) content neutral restricrtion: intermediate scrutiny
4) prior restraints suppressing entirely: strict scrutiny
5) prior restraints requiring licenses: "important reason + clear criteria"
6) vaguess
7) overbreadth
What is a prior restraint?
Judicial or administrative system that stops speech before it occurs
What is a subject matter restriction on free speech?
Whether the law applies based on teh topic of hte message; strict scrutiny applies
What is a viewpoint restriction on free speech?
Whether law applies depends on ideology of the message; strict scrutiny applies
ARe gag orders on the press to prevent prejudicial pretrial publicity constitutional?
Nope
Does a speaker have to comply with a court order suppressing speech?
Yes, if it was procedurally proper, until it is vacated or overturned, otherwise they are barred from challenging it
When can the government require a license for speecch?
1) important reason for licensing
2) no discretion left to authority
3) procedural safeguards like prompt determination
When is a law unconstitutionally vague?
When a reasonable person cannot tell what speech is prohibited adn what is allowed
When is a law unconstitutionally overbroad?
When the law regulates substantially more spech than the constitution allows to be regulated
What types of speech ARE protected by the Constitution?
1) ordinary speech, written or oral
2) symbolic speech
3) anonymous speech
4) speech by government
5) generally, all other, subject to
EXCEPTIONS
6) profane and indecent speech
EXCEPT
a) over broadcast media and
b) in schools.
7)cross burning, unless done with intent to threaten
8) expenditure limits in election campaigns
What types of speech are NOT protected by Constitution?
1) Fighting words (BUT TYPICALL VAGUE AND OVERBROAD)
2) incitement of illegal activity
3) obscenity and sexually oriented speech
4) locations of adult bookstores and movie theatres (by zoning ordinances)
5) private possession of child porn (assuming real children were used in making it)
6) ???????
7) nude dancing
8) contribution limits in election campaigns
9) advertising for illegal activity
10) false and deceptive advertising
11) commercial speech that risks deception although technically true
What regulations are permitted on symbolic speech?
Gov. can regulate communicative conduct if:
1) it has an important interest unrelated to suppression of the message AND
2) impact on communication is no greater than necessary to achieve the government's purpose
What types of true commercial speech can be regulated?
Generally any, subject to intermediate scrutiny.
Blanket prohibitions:
1) professionals can't practice under a trade name
2) attorneys may not solicit clients in person for profit
What is the test for obscenity?
1) appeals to the purient interest (shameful or morbid interest in sex based on local standard) AND
2) patently offensive under obscenity law AND
3) taken as a whole, it lacks serious redeeming artistic, literarly, political, or scientific value based on a national standard
What is the test for speech inciting illegal activity?
There must be:
1) a substantial likelihood of imminent illegal activity AND
2) speech must be directed to causing imminent illegality
Defamation analysis and defenses for a public official
1) For liability: false + actual malice.
2) Compensatory damages presumed, punitives as option
3) Plaintiff must prove falsity
Defamation analysis and defenses for public figures
1) For liability: false + actual malice.
2) Compensatory damages presumed, punitives as option
3) Plaintiff must prove falsity
Who is a public official, for defamation purposes?
Anyone who thrusts themselves into the limelight
Defamation analysis for private figure on a matter of public concern
1) for liability: negligence + actual injury
2) compensatory for actual injury, presumptive and punitive damages require actual malice
3) plaintiff must prove falsity
Defamation analysis for private figure on a matter of private concern
1) For liability: negligence?
2) compensatory damages for actual injury, presumed or punitivie dmaages don't require actual malice
3) burden on D to prove truth
Can government create liability for truthful reporting of information taht was lawfully obtained from government records?
No
Is liability permitted if media broadcastas a tape of an illegally intercepted call when the medica did not particpate in the illegality and it involves a matter of public importance?
No
IS the speech of government employees on the job in their performance of their duties protected by the First Amendment?
No
What information does the government have an obligation to disclose, despite privacy concerns?
Most criminal proceedings. Other than that, may limit dissemination
What regulations of speech are permitted in public forums?
1) Subject matter neutral (or pass strict scrutiny) AND
2) viewpoint neutral (or pass strict scrutiny) AND
3) subject to time/place/manner restriction that AND
4) serves an important government purpose AND
5) leaves open adequate alternative places for communication (although need not be least restritive alternative).
6) discretionary fees impermissible for public demonstrations.
What are public forums for purposes of free speech analysis?
Government properties that government is constitutionally required to make available for speech. Eg. parks and sidewalks
what is a designated public forum for purposes of free speech analysis?
non-public ofrums that the government chooses to open to speech
What regulations of speech are permitted in designated public forums.
SAME AS PUBLIC FORUMS 1) Subjectmatter neutral (or pass strict scrutiny) 2) vie) Subject matter neutral (or pass strict scrutiny) AND
2) viewpoint neutral (or pass strict scrutiny) AND
3) subject to time/place/manner restriction that AND
4) serves an important government purpose AND
5) leaves open adequate alternative places for communication (although need not be least restritive alternative).
6) discretionary fees impermissible for public demonstrations.
what is a limited public forum?
Government property that is lliited to certain groups' speech or discussion of onlyu some subjects
What regulations of speech are permitted in limited public forums?
1) reasonable AND
2) viewpoint neutral
What regulations of speech are permitted in non public forums?
1) reasonable AND
2) viewpoint neutral
What is a non-public forum?
Places the government does not open to speech (eg. outside prisons and jails, military bases, SIDEWALKS OUTSIDE POST OFFICES, airportsetc.)
Is the sidewalk outside a sidewalk a public forum?
NO
Is there a first amendment right to use a privately owned shopping center for speech?
1) Federally: no.
2) in CA: yes
IS thera first amendment right to access private property for speech purposes?
No
When can a person be punished for being a member in a group?
1) Actively affiliated with group AND
2) knew of its illegal activities AND
3) affiliated with specific intent of furthering illegal activities. (also strict scrutinY)
When can government require disclosure of group membership?
If such disclosure would chill membership: only subject to strict scrutiny
When is discrimination by a group permitted?
1) intimate associations 2) expressive activity where the discrimination is integral to the group's message. Otherwise, gov. may regulate
When do laws violate the free exercise clause?
if they are neutral and generally appliable: need only pass rational basis. If not: strict scrutiny
Can the government deny benefits to thsoe wh oquit their jobs for religious reasons?
No
What is the Lemon test for establishmetn clause?
1) s there a secular purpose for the law AND
2) is the effect to advance or inhibit religion? AND
3) Is there excessive entanglement with religion?
Can the governmetn sponsor religious activity in public schools?
No
Does the FCA need to have as much access to school facilities as the FFA?
Yes
can the government give assistance directly to parochial schools?
ONLY IF NOT USED FOR RELIGIOUS INSTRUCTION
Can the governmetn give parents money to spend on religious schools?
Yes
Can a defendant sue to enjoin an ongoing criminal prosecution in state court?
Generally, he lacks standing, unless he can show that the prosecution is solely designe to harrass