Constitutional Law (Bar Prep)

Front 1

fundamental right is _______ scrutiny

Back 1

strict
compelling governmental interest and no less restrictive way to achieve this interest.

right to interstate travel, privacy, voting, and First Amendment rights

Front 2

suspect classification includes _____________ and is ____________ scrutiny

Back 2

race and national origin
strict scrutiny

Front 3

quasi-suspect classification ____________scrutiny

Back 3

intermediate
substantially related to an important government purpose. The government bears the
burden of showing an “exceedingly persuasive justification” for the discrimination.

groups: women, legitimacy

Front 4

both strict and intermediate scrutiny require ______ action and ________ on behalf of dash 1. dash 2 is proven by__

Back 4

state action and intent. Intent on behalf of the state is shown by: law that is discriminatory on its face;
(ii) A discriminatory application of a facially neutral law; or
(iii) A discriminatory motive behind the law.

Front 5

If no suspect classification or fundamental right than in an equal protection analysis the court will use a __________test

Back 5

rational basis

Front 6

remedying past discrimination _______ a compelling governmental interest. If so, when.

Back 6

Is. However, this does not apply broadly for all discrimination but when the past discrimination was persistent and readily identifiable.

Front 7

fundamental rights can evoke:

Back 7

due process or equal protection issues.

Front 8

privacy is a ______ right

Back 8

fundamental

Front 9

Privacy includes

Back 9

marriage, sexual relations, abortion, and childrearing.

Front 10

rights as parents

Back 10

care, custody, and
control of their children

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Intimate Sexual Conduct

Back 11

making it a crime for fully consenting adults to engage
in private intimate sexual conduct (e.g., sodomy) that is not commercial

Front 12

collection and distribution of personal data

Back 12

The state may reasonably gather and distribute information about its citizens

Front 13

upheld restrictions on the right to vote

Back 13

residency [so long as requirements reasonable]
early registration for primaries

Front 14

invalid restrictions on the right to vote.

Back 14

poll taxes and property ownership or forbidding the party from allowing everyone to vote in the primary.

Front 15

candidate qualifications

Back 15

1. a fee cannot preclude indigents
2. can require candidates to show reasonable support (e.g. certain number of petitions and signatures to get on the ballot)

Front 16

right to travel

Back 16

An individual has a fundamental right to migrate from state to state and to be treated equally
after moving into a new state.

Front 17

allowable restrictions on right to travel

Back 17

increased penalties for a father abandoning his
children and leaving the state

Front 18

international travel

Back 18

not a fundamental right, but the federal government cannot impose arbitrary burdens.
ajudged by rational basis standard

Front 19

first amendment protections

Back 19

prohibits Congress from establishing a religion or interfering with the free
exercise of religion, abridging the freedoms of speech and press, or interfering with the right of assembly

Front 20

evaluation of the first amendment

Back 20

the Court will
weigh the great importance of speech and assembly rights against the interests or policies sought
to be served by the regulation

Front 21

Government's interaction with private speech

Back 21

Subject to the establishment clause and equal protection, the government can distinguish and selectively support speech.

Front 22

public monument

Back 22

permanent monument in a public park is government speech
and thus is not subject to Free Speech Clause scrutiny

Front 23

Government Funding of Private Speech

Back 23

must be viewpoint neutral, with an exception for funding the arts.

Front 24

content regulations of speech

Back 24

presumptively unconstitutional

Front 25

content-neutral regulation

Back 25

intermediate scrutiny.

namely: advance important interests unrelated to the supression of speech, and must not burden more speech than necessary to advance those interests.

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conduct related to speech

Back 26

Conduct related to speech can be regulated by content-neutral time, place, and manner restrictions

Front 27

Definition of facially invalid overbroad regulations

Back 27

substantial amount of
protected speech in relation to its plainly legitimate sweep.

Front 28

facially void regulation includes:

Back 28

void for vagueness, substantialy overbroad, officials are given unfettered discretion

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void for vagueness

Back 29

does not provide reasonable notice about which speech is forbidden.

Front 30

officials are given unfettered discretion

Back 30

for this not to apply, the law must provide some standards to officials telling them how to apply the law. ot

Front 31

Conduct regulation with relation to free speech is_____

Back 31

permitted.

The level of regulation allowed depends on the type of forum. (public forum, a designated public forum, a limited public forum, or a nonpublic forum)

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public forum

Back 32

a public venue which has historically been open to speech-related activities

Front 33

designated public forum

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Public property that has not historically
been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy

Front 34

The types of regulations permitted for public and designated public forums are:

Back 34

Reasonable time, place, and manner regulations that:
(i) Are content neutral;
(ii) Are narrowly tailored to serve an important government interest; and
(iii) Leave open alternative channels of communication.

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content-based injunctions must:

Back 35

satisfy a compelling government interest.

Front 36

non-content based injunctions must:

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burden no more speech
than is necessary to achieve an important government interest.

Front 37

Allowable regulation in government owned limited public forums and nonpublic forums.

Back 37

The government can regulate speech in such a forum to reserve the forum for its intended use.
regulations must be: Viewpoint neutral; and Reasonably related to a legitimate government purpose.

Front 38

categories of speech which the government can ban:

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Inciting Imminent Lawless Action, fighting words, obscenity. defamatory speech, some commercial speech,

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inciting imminent lawless action

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Speech can be burdened if it creates a clear and present danger of imminent lawless action.
It must be shown that imminent illegal conduct is likely and that the speaker intended to cause it.

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fighting words

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True threats, or contains words, personally
abusive words that are likely to incite immediate physical retaliation in an average
person

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obscene if:

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Appeals to the prurient interest in sex, using a community standard; and Is patently offensive and an affront to contemporary community standards; and
3) Lacks serious value (literary, artistic, political, or scientific), using a national
reasonable person standard

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minors standard for obscenity

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may be higher than the adullt standard.

Front 43

land use regulations with regards to obscenity.

Back 43

regulations may not ban such establishments altogether.

Front 44

liquor regulationne

Back 44

Laws relating to this power that affect free speech rights generally will not
be set aside unless they are irrational. (based on article 21)

Front 45

private possession of obscene material

Back 45

Cannot punish private possession of obscene material in the home.
except: child porn

Front 46

defamatory speech

Back 46

If the defamatory statement is about a public
official or public figure or involves a public concern, the First Amendment requires the
plaintiff to prove all the elements of defamation plus falsity and some degree of fault.

Front 47

commercial speech

Back 47

However, commercial speech that proposes unlawful activity or that is misleading or
fraudulent may be burdened. Any other regulation of commercial speech will be upheld only if it:
(i) Serves a substantial government interest;
(ii) Directly advances that interest; and
(iii) Is narrowly tailored to serve that interest.

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standards for prior restraint

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i) The standards must be narrowly drawn, reasonable, and definite;
(ii) Injunction must promptly be sought; and
(iii) There must be prompt and final determination of the validity of the restraint.

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restriction of press

Back 49

Generally the press has a right to publish truthful information regarding a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to
further an interest of the highest order.

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public access to trial

Back 50

right to attend the trial may be outweighed by an overriding interest stated in
the trial judge’s findings. The right includes the right to be present at voir dire and at other pretrial proceedings, unless the
judge makes specific findings that closure was narrowly tailored to preserve a higher value.

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regulations of radio and tv news

Back 51

This paramount right
allows government to forbid newspaper ownership of radio stations and to prohibit indecent speech over the airwaves.

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fair and equitable air time

Back 52

radio station may constitutionally be required to offer free broadcasting
time to certain individuals (e.g., opponents of political candidates or views endorsed by
the station, or persons who have been personally attacked in a broadcast).

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generally newspaper regulation

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strict scrutiny

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broadcast media

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less than strict scrutiny

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cable news

Back 55

in the middle, analagous to intermediate scrutiny.

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Internet Regulation

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strict scrutiny.

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examples of things free exercise clause would prohibit

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(i) State governments from requiring office holders or employees to take a religious oath
(the federal government is similarly restricted by Article VI);
(ii) States from excluding clerics from holding public office; and
(iii) Courts from declaring a religious belief to be false.

Front 58

what constitutes religious belief.

Back 58

The Court has never held an asserted religious belief to be not religious for First Amendment purposes.

Front 59

regulations allowed of exercise of religion

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Technically, the government may deny benefits to or impose a burden on
someone based on her religious beliefs if there is a compelling interest. However, the Supreme Court has never found an interest so compelling that it justifies such action.

Front 60

generally applicable conduct which burdens religion

Back 60

no burden. Free Exercise Clause does not require religious exemptions
EXCEPTION: state cannot refuse to grant unemployment benefits to persons who quit their jobs for religious reasons so long as belief sincere.

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overall free exercise clause rule

Back 61

Free Exercise Clause prohibits government interference with
religious beliefs, but it generally does not prohibit regulation of conduct. If the governmental
action regulates general conduct—including religious conduct—it is valid

Front 62

test for validity of government action under establishment clause.

Back 62

Lemon test
Has a secular purpose;
(ii) Has a primary effect that neither advances nor inhibits religion; and
(iii) Does not produce excessive government entanglement with religion

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modern focus for establishment clause (modern not lemon)

Back 63

action is neutral between the religious and nonreligious when there is no endorsement
of a particular religion

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Financial Benefits to Religious Institutions

Back 64

Recipient based aid: give aid in the form of financial assistance to a defined class
of persons as long as the class is defined without reference to religion or religious
criteria;
and
Aid to Colleges and Hospitals for nonreligious purposes
and
Aid to Grade Schools and High Schools so long as not excessive governmental entanglement

Front 65

federal judiicial ower

Back 65

defined by article 3 of constitution with a requirement for case and controversies case must be justiciable.

Front 66

standing

Back 66

injury: P must allege and prove that he or she has been injured or immediately will be injured.

injury is not established with only mere ideological objections.
P only may assert injuries they personally have suffered.
P seeking injunctive or declaratory relief must show a likeliood of future harm.

P must allege and prove that the d caused the injury so that a favorable court dcisions is likely to remedy the harm (causation and redressibility rquirement_

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third party standing

Back 67

No thirdparty standards except:
third party standing is allowed if there is a close relationship between P and the injured third party which means the P can be trusted to adequately present the interest of the third party.

Third party standing is allowed if the injured third party is unlikely to be able to assert his/her rights.

An organization may sue for its members if the members would have had standing,
interests are germane to the purpose of the organization.

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P must not be suing solel as

Back 68

a citizenor taxpayer

except under the establishment standing

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ripeness

Back 69

whether a federal court may grant preenforcement review of statute o regulation.

the court loooks at hardships that will be suffered without preenforcement reiew
fitness of the issue for judicial review

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mootness

Back 70

if events after the filing of the lawsuit end the P's injuiries, the case must be dismissed as moot because a P must present a justiciable injury hough a non-frivolous money claim.
unless capable of repition but evades review

voluntary cessation
class actions

Front 71

political question doctrine

Back 71

constitutional violations tht the federal courts will not adjudicate:

republican form of government
president's conduct of foreign policy
challenges to impechment and removal process
challenges to artisan gerrymandering.

Front 72

federal courts and state cours, otherthan su crt, may not hear suits against

Back 72

state governments under 11th government.
excelt if there is waiver,
states may also be sued pursuant to federal laws adopted under section 5 of the 14th amenmdent. congress canot authorize suits agains states under any other constitutional provision or power

fedral government, however, can still sue

and bnkruptcy proceedings.

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suits against stae officers

Back 73

are allowed even if the state government cannot be sued.

may be sued for injunctie relie,
mony damages to be paid out of their own pcket.

state officers may NOT be sued if it is the state treasury that will be paying retroctive damges.

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absention

Back 74

federal courts may not enjoin pending state court proceedings.if ther eis an unsettled q of state law, the feeral court wil stay

Front 75

congress's authority to act

Back 75

taxing, spending, commerce

Front 76

however for federal legislative power you need

Back 76

express or iplied congressional power
exceptions: mild
Article 1 section 8: all laws necessary and proper to exercise its power

taxing/spending power and hte commerce power

Front 77

exceptions where conress has a polie power

Back 77

miltiary
indian reservatins
lands (federlal laws)
district of columbia

Front 78

taxing and power clauses

Back 78

congess may tax and spend for the general welfare

regulate commerce with foreign nations and tribes

the supreme court says congess can regulate commerce"
congress may regulate channels of interstate commerce. challens are the places where commerce occurs
congress ma regulate the instrumentality of interstate commerce and persons in interstate commerce

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 on cumulative impact.

Front 79

tenth amendment as a limit on congress power states

Back 79

that all powers not granted to the United States nor prohibited to the states are reserved to the states or the people.

so:

congress cannot compel state regulatory or legislative action.
however, congress 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 programs.

congress may prohibit harmful commercial activity by state governments

Front 80

congress' ability to delegate powers

Back 80

has no limit.

however, legislatie vetoes and line-items vetoes are unconstitutional. for congress to act there must be bicameralism, and presentment. the president must sign or veto the bill in its entirty.

congress may also not delegate executive power to itself or its officers.

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foreign policy

Back 81

treaties:state laws that conflict with treaties are invalid

if a treaty conflicts with a federal statute the one adopted last in time controls.

if a treaty conflicts with the uS constitution, however, it is invalid.

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executive ageements

Back 82

can be used for any purpose a reaty can be used for.

prevails over conflicting state laws but never over conflicting laws or constitution.

Front 83

president's appointment power.

Back 83

president appoints ambassadors, federal judiciary, officers of the US althought he senate must approve nominations of this person.

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congress may vest the appointment of

Back 84

inferior officers in the presient, head of depatments, or lower federal courts.

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unless removal is limited by statute

Back 85

the president may fire any executive branch official. COngress, however, may by statute limit removal if

it must be an office where independent from president is desirable andd
congress cannot prohibit removal it can limit removal to where good cause is shown

Front 86

impeachment and removal

Back 86

the president, VP, federal judges, and all officers of he US can be impeached and removed from the office for treason, brivery, high crime or misdeameanor

impeachment does not remove a person from office.

impeachment by the HoR requires a vot, conviction from the senate requires a vote.

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president has absolute immunity from

Back 87

civil suits for money from any axn while in office, however not for axn that occur prior to assuming office

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president has executive privilege for

Back 88

papers and conservation, but such privilege must yeild to important governmental interests

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president has the power to pardon anyone accused or convicted of

Back 89

federal crimes, except where the person to be pardoned has been impeached by HoR that person can never be pardoned for the underlying crimes that led to the impeachment.

NOt to civil liability

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preemption

Back 90

Article VI: contains the preemption clause. the clause says the constitution and laws pursuant to it are the spreme laws of the land.

express
implied
taxng federal

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express preemption

Back 91

where congress has authority to act, it can state that its power is exclusive in a field. if it is exclusive ten state and local laws are preempted

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implied preemption

Back 92

implied reemption can be found even if federals tatute found when:

if it is not possible for someone to simultaneously comply with both federal and state laws,
if the state laws impedes the achievement of a federal objectives, then th stte or local law is deemed preempted

if congress evidences a clear intent to prempt a state laws

Front 93

state laws may not charge

Back 93

state tax to bepaid out of the federal treasury for federal government activity (inter-governmental mmunirt

Front 94

domrmant commerce clause/negative implication of the commerce cluase

Back 94

principle: undue burden on interstate commerce

no state or municipality may deny citizens of other states the privileges and immunities it affords its own at w/o substantial justification

the privileges or immunities of the 14th amendment: ued to preere a persons' right to travel from one state to another.

Front 95

privileges and immunities clause applies only if there is discrimination.

when is it discrimination

Back 95

if the law burdens interstte commerce, it violates the dormant comemrce if its burden on interstate commerce outweights the benefits of the law

unless it is necessary to achieve an important governmental purpose and the government must show that no less discriminatry measure can achieve its goal.

Front 96

exceptions in which laws which would otherwise violate the dormant commerce clause wll be upheld

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if congress approves it

if they are a market partcipant. a state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned business

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if the law discriminates against out-out-staters with regard to their ability to earn living

Back 97

it violates the privilege immunities clause of Art IV unless it is necessary to achieve an important governmental purpose.

Front 98

who cannot use a invoke the privileges and immunities cause

Back 98

corporations or aliens

Front 99

state taxation or interstate commerce

Back 99

states may not use their tax systems to help in state business
a state may only tax activities if there is a substantial nexus btween the product or activity oto be taxed and state

state axation of interstate busienss or companies ___FILL

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full faith and credit

Back 100

courts in one state must give full faith and credit that must enforce all jugments of courts in another state so long as

the court that rendered or issued the udgment must have personal and smj
judgment must be on the merits

judgment must be final

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constitution applies only to -___acion

Back 101

government action. private conduct need not comply with constitution.

congress, by statute, may aply constitutional norms to private conduct (example: race discrimination)

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where the congress by statute may apply constitutional norms to private conduct

Back 102

13th amendment: congress can prohibit racial discrimination and has broad powers to adopt laws to enforce this provision

pursuant to the commerce clause, congress can apply constitutional norms to private conduct as it did when it adopted the civil rights act of 1964.

canno use section 5 of the 14th amendment to regulate privte behavior, only state and local

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situations where private conduct must comply with the constitution

Back 103

constitutin applies if it performeing a task traditionally and exclusively done by the government. (public fxn exception)

entanglemnt exception: if the governmnt affirmatiely authroized, encourages, or facilitates the unconstitutional activity

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examples of where private conduct must comply with the constitution

Back 104

court cannot enforce raciall y rsrictie covenants

is state axn when the government, leases premises to a restaurant that racially discriminates

state axn when a state provides free books to private schools that racially discriminate

no state axn when a private school that is 99% funded by the government fires a teacher bc of her speech

there is no state axn when the NCAA orders the suspension of a basketball coach at the state universit

state axn when a private entit regualtes interscholastic sports within a state

no stat axn whern a private club with a liquor licenses from the state raiall discriminates

Front 105

bill of rights applies directly only to

Back 105

federal governments.
aplied to stte and local government through its incorporation into the due process of the fourtheenth amendment.

exc:

third amendment right to not have a soldier quartered in their home.

5th amendment right to grand jury indictment in criminal cases
7th amendment right to a jury trial in civil cases

eight amendment right against excessive fines

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rational basis test

Back 106

a law is upheld if it is rationally related to legitimate government purpose. challenger has he burden or proof to show either that there is no conceivable legitmate purpose or that the law is not rationally related to it

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intermediate scrutiny

Back 107

a law wll be upheld if it is substantially related to important governmental interest. government has the burden or proof. actual purpose means must be narrowly tailored but must not be least restrictive

Front 108

strict scrutiny

Back 108

law will be upheld if the law is necessary to achieve compelling government purpose government has the burden of proof.

Front 109

questions for procedural due process

Back 109

they are the procedures a government must follow tot ake away someone's life, liberty, and propety.

has there been a deprivation of life, liberty, or property

if there has been a deprivation and if there is what procedures are required

Front 110

bill of rights applies directly only to

Back 110

federal governments.
aplied to stte and local government through its incorporation into the due process of the fourtheenth amendment.

exc:

third amendment right to not have a soldier quartered in their home.

5th amendment right to grand jury indictment in criminal cases
7th amendment right to a jury trial in civil cases

eight amendment right against excessive fines

Front 111

rational basis test

Back 111

a law is upheld if it is rationally related to legitimate government purpose. challenger has he burden or proof to show either that there is no conceivable legitmate purpose or that the law is not rationally related to it

Front 112

intermediate scrutiny

Back 112

a law wll be upheld if it is substantially related to important governmental interest. government has the burden or proof. actual purpose means must be narrowly tailored but must not be least restrictive

Front 113

strict scrutiny

Back 113

law will be upheld if the law is necessary to achieve compelling government purpose government has the burden of proof.

Front 114

questions for procedural due process

Back 114

they are the procedures a government must follow tot ake away someone's life, liberty, and propety.

has there been a deprivation of life, liberty, or property

if there has been a deprivation and if there is what procedures are required

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deprivation of life, liberty, or property

Back 115

A deprivation of liberty occurs if there is he loss of a significant freedom provided by the constitution or a statute.

a deprivation of property occurs if a person has an entitlelement ( a reasonable expectation) to the continued reciept of the benefit) and that entitlement is not fulfilled

government negligence is not sufficient for a deprivation of due process. generally, there must be intentionally government action or at least reckless action for liability to exist.
however in emergency situations the government is liable under due process only if it conducts shocks the conscience.

generally, governments failure to protect people from privately inflicted harm does not deny due process.

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if there has been a deprivation
what is repaired

Back 116

three part balancing test

the importance of the interest ot to the individual.

ability of additional procedurs to increase the accuracy of the fact-finding.
AND
the government's interest usually effficiency and economy.

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examples of deprivation of life, liberty, or property

Back 117

welfare benefits: termination requires notice and a hearing.

social security disablity benefits: termination requires post-termination hearing

permanent termination of a parent's right to custody requires notice of a hearin.

except in an emergency, before an adult can be institutionalized, there must be notice and hearing

harm to reputation, by itself, is not loss of liberty.

prisoners rarey have liberty interests. when they sue asserting a loss of liberty, they almost always lose.

punitive damage awards requires jury instruction to guide discretion of ury and judicial review to ensure award is reasonable.

a non-citizen held as an enemy combatant is entitled to due process which means ability to challenge continued detention.

US citizens facing criminal charges in a foreign country held by the American military can file habeus corpus petition and sek review of their detention in federal court.

due process requires recusual of the judge if there is a substantial risk of actual bias.

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substantitive due process

Back 118

protecting economic liberty and safe guarding property.

whether te government has adequate reason for taking away a person's life, liberty, or property.

constitution provides only minimal protection for economic liberty.
only rational basis test is used for laws affecting economic rights.
the takings clause of the fifth amendment. the government may take private property for public use but only if it provides just compensation. Here the governmet does not use the levels of scrutiny, but rather a separate test for the takings clause.

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test for takings

Back 119

1. possessory taking: government confiscation or physical occupation of property is always a taking

regulatory taking: government regulation is a taking if it leaves no reasonable economic viability use of the property.

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government conditions on the development of property must be justified by

Back 120

a benefit that is roughly proportionate to burden imposed otherwise is a taking.

Front 121

a property owner may bring a takings challenge

Back 121

to regulations that existed at the time the proeprty was acquired

Front 122

temporarily denying an owner use of property

Back 122

s not a taking so long as the government's action is reasonable.

Front 123

taking for public use

Back 123

supreme court has thzt a taking is for public use so long as the government acts out of reasonable belief that the taking will benefit the public.

just compensation is measured in terms of loss to the owner in reasonable value terms, gain to the government is irrelevant

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just compensation

Back 124

measured in terms of loss to the owner in reasonable value terms.

gain to the government is irrelevant.

Front 125

government may take

Back 125

private property for public use if it pays just compensation.

Front 126

contracts clause in article 1 section 10 states that

Back 126

no state shal impair the obligations of contracts.

clause only applies to stae or loca interefernece with already existing contracts.

state and local governments may interfere with existing private contracts if the intermediate scrutiny is met. The exact language for the test in this istuation is

does the legislation substantially mapir a party's rights under an existing contract.

if so, is the law a reasonabl and narrowly tailored means of promoting an important and legitimate public interest.

stateor local interfernece with government contracts must meet strict crutiny.

constitutions ays that neither hte federal or state governments can adopt ex post facto laws.

the ex post facto clause does not apply in civil cases.

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privacy is a fundamental right protected under substantive due pocess and therefore strict scrutin

Back 127

the standard used when the government interferes with privacy right

the right to marry: need strict scrutiny
right to procreate: strict scrutiny
right to custody of one's children: a fundamental right that can obly be terminated if it proves a compelling reason such as parental abuse or neglect.
a state may create however an irrebutale presuption tht a married woman's husband is the father of her children.

right to keep the family together-broader than the concept of parents and children it includes extend family but a familial relationship.

right of parents to control the upbringing of their children: fundamental right.

right to pruchase and use contraceptives

right to abortion
undue burden

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right to abortion

Back 128

prior to viabilit: states cannot prohibit abortions but may regulate abortions so long as they do not create an undue burden on the abilit to obtin abortions.

24 hour waiting period constitutonal.

requirement that abortion be performed b licensed phsican is cnstitutional

prohibition of parial birth abortion is constitutional.

after viabilit, staesmay prohibit abortions unless necessary to protect the woman's life or health.

government has no duty to subsidize abortions in public hospitals.

spousal consent and notification laws are unconstitutional though.

parental notice and consent laws for unmarried minors. But also need an alternatie procedure where a minor can obtain an bortion by going before a judge who can approve the abortion by finding it would be in the minor's best interests or that she is mature enough to deicde for herself

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privacy and ame sex

Back 129

right to privacy protects a right to engage in private consensual same-sex activity.

no level of scrutiny

Front 130

right to reuse medical treatment

Back 130

compeent adults have the right to refuse medical treatment, even life-saving medical treatment.

A state has a compelling interest in protecting the sanctity of life and so may require clear and convincing evidence that a person wanted treatment terminated before its ended

a stae may prevent family members from terminating treatment for another.

Front 131

physician assisted death

Back 131

no constitutional right.

Front 132

right to bear arms

Back 132

the supreme court:

individuals have a right to have weapon for self-defense but has not specified the level of scrutiny to be used

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right to travel

Back 133

fundamenal right.

laws tht prevet people from moving into a state must meet strict scrutiny.

durational residency reqirements (requiring a person to live in a urisdictin for a specified amount of time to get a benefit must meet strict scrutiny
supreme court for voting urposes 50 days is maximum allowable durational requirement.

no fundamnetal right to international ravel so restrictions on foreign travel need only meet rational basis

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right to vote

Back 134

is a fundamental right.

laws that deny some citizens the right to vote must meet strict scrutiny.

one-erson-one vote musst be met for all state and local elections.
this usuall involves redistricting.

at-large elections. where all voters cast a vote for all officeholders) are constiutitonal unless there is proof of a discriminatory purpose.
discriminatory impact is not enugh.

use of race in drawing lection district lines for the benefiting minorities must meet strict scruin.

counting uncounted notes w/o standards in a presidential election violates equal protection.

there is no fundamental right to education under equal protection or the US constitution

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equal protection challenge

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whenever the government draws a distinction among people.

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constitutional provisins concerning equal protecton

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equal protection clause of the 14th amendment applies oly to stae and local governments never to the federal government.

equal protection is applied to thefedeal government through the due process clause of the fifth amendment.

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classification based on race, gender, and national origin

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strict scrutiny is the test used

classification exists on the face of the law
if the law is race neutral on its face then proving a racial classificationrequires demonstrating disrminatory impact and discriminatory intent.

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discriminatory use of eemptory challenges

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based on race denies equal protection.

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racial classifications beneiting minorities

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strict scrutny

numerical set asides require clear proof of past discrimination.
educational institutions may use race as on factor to benefit minorities and enchance diversit.

public school systems may not use race as a factor in assigning students to schools unless strict scrutin is met

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gender classifications

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intermediate scrutiny is used for sex-based discrimination and discrimination based on gender can only be llowed if there is exceedingly perusssive justification.

discriminaory use of preemptory challenges based on gender denes equal protection.

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gender classifications baenefiting women that are based on

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role stereotypes wil not be allowed.

designed to past discrimination in opportunity wil be alowd

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alienage classifications.

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strict scrutiny

but certain priileges may be reserved just for citizens. includ voting, serving o n jurites (rational basis used for these).

when congress discriminates against aliens, ational basis.

intermediate structiny for discrimination against undocument alien children.

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discriminatin against non-marital children

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intermediate scrutiny

laws that deny a beefit to all non-marital children, but grant it to all marital children are unconstitutional under intermediate scrutiny

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things rational basis is used for

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age discrimination
disability discrimination
wealth discrimination
government eocnomic regulation
sexual orientation discrimination

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first amendment
contentbased restrictions

Back 145

generally must meet strict scrutiny.

found
1) subject matter restriction
2) conent-neutral laws burdenng speech need only meet intermediate scrutiny.

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prior restaints. stopping speech before it occurs.

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court orders suppressing speech must meet strict scrutiny.

procedurally proper court orders must be complied with until they are vacated or overturned.

a person who violates a court order is barred rom later challenging it.

gag orders ont he press to prevent prejudicial pretrial publicity are allowed

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government can require a license for speech

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only if there is an important reason for licensing an clear and criteria leaving almost no discretion to the licensing authorit. in addition there must be procedural safeguards such as prompt determination of requests for licenses and judicial review of license denials.

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vagueness and overbreadth

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a law is unconstitutionally vague if a reaonable person cannot tell what speech is prohibited and what is allowed

a law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

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fighting words

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not protected speech but statutes attempting to punish use of such words are often found to be void for vagueness.

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symbolic speech

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government may regulate conduct that communicates i it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's goal

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examples of symbolic speach

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flag burning: constitutional

draft card burning: not constitutionall protected

nude dancing: not protected

burning a cross: protected unless there is an intent to intimidate and threaten.

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constitutional limits in election campaigns

Back 152

are allowed, expenditure limits are not
government cannot limit the amount a person spends to get a candidate elected, so long as the expenditures are independent of th candidate and are not disguised contributions. thus, corporate unions and other entities may spend whatever they wish to get a candidate elected.

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anonymous speech is

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protected by the first amendment.

a state interest in promoting transparency and accountabiit in elections is suficient to justfy pubic disclosure of names and addresses of persons who sign ballot petitions.

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spech by the overnment cannot be challenged

Back 154

as iolating the first amendment

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incidetement of illegal activity

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is unprotected by the first amendment.
modern test: government may punish speech if ther e is a substantial likehihood of imminent illegal activity and if the speech is direted to causing imient illegality.

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obscenty and sexually-oriented speech

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material must appeal to a pruruient interest or a shameful or morbit interest in sexu

material must be patently offensive under the law prohibiting obscenit.

taken as a whole the material must lack serious redeeming aristic, literary,political, or scientific value as determined by the national standrd.

government may use zoning ordinanry to regulate the number or location of adult bookstores and movie theaters.

child porno may be completely banned

government may not punish private possession of pobscene materials, but may punish private possession of child porn.

government may seize assets of businesses convicted of violating obscenity laws.

profane and indecent speech s generally protected b the first amendment.

exc: free over he air broadcast media

in schools

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commercial speech

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advertising for illegal activity, and false and deceptive ads are not protected b the first amendment.

even true commercial speech that inherently risks deception can be prohibited.
states may prevent professionals from advertising or practicing under trade names
states may prohibit attorney, in-person-solicitation of clients for profit

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lawyers who advertise as debt relief agencies

Back 158

can aiclude

legal status and nature of assistance provided
possibility of filing for bankruptcy.

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government may not prohibit ______ from

Back 159

accountants from in-person solicitations

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other commecial (other than lawyer and accountants) can be regulated by the government if

Back 160

intermediate scrutiny is met

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government regulation of commercial speech must be

Back 161

narrowly tailored but it does not need to be the least restrictive.

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if the P is a public official or rnning or public office the P can recover for defamation

Back 162

only by proviing wih clear and convincing evidence the falsity of the statement and actual malice, meaning that the d knew the statement was false or acted with reckless disregarded

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if the d is a public figure the P can recover for defamation by

Back 163

proviing falsit of the statement and actual malice.

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i the P is a private figue and the matter is of public concern. defamation

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a state may allow the P to recover compensatory damages for deamation by proving flsity of the statement and neglgience by the D that is that the speaker was not as caeful as a reasonable speaker should have been. however the P may reocver presumed or punitive damages only by showng actual malice.

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if the P is a private figure and the matter is not of public concern

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the P can recover presumed or punitive damages without proving actual malice.

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privacy, first amendment, and media

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a state may not create liability for truthful reporting of inormation that was legally obtained fromt he government's records

or may may not be hheld liable for broadcastng a tape of an illegally intercepted and recorded call so long as the media did not participate in hte illegalit and it involves a matter of public importance.

the government may restrict its own dissemination to protect privacy. the only instance where the public has a first amendemtnr ight to amend governemnt proceedings and have success to government papers for criminal tials and criminal pre-trai

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speech by government emploes on the job in the performance of their duties

Back 167

is not protected by the first amendment

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government restrictions based on the content of speech

Back 168

strict scrutiny

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public forums

Back 169

government properties that the government is constitutional equried to make it aailable for speech

regulations must be subjet matter and viewpoint neutral or othewise strict scrutiny

regulations must be a time, place, or manner regulation that serves an important governmental purpose and leaves open adequate alternative places for communication.

government regulation of speech in a public forum need not use the least restrictive alternative.

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permit fee requirement for parades or demonstrations are unconstitutional if

Back 170

city officials have disretion in setting the amount of the fees

Front 171

designated public forums

Back 171

government properties that the government could close off to speech but chooses voluntarily to open to speech. same rules as for public forum.

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limited public forums

Back 172

government properties that are dedicated to discussion or limited to certain groups. the government can regulate speech in limited public forums so longg as the regulation is reasonable and viewpoint neutral.

Front 173

nonpublic forums

Back 173

governemnt preropties that the government constitutionally an and does close off to speech. government can regulate seech in nn-public forums so long as the regulaton is reasonable (rational basis test) and viewpoint neutral

ex::
military basis
areas outside prisons and jails
schools
signs on public property
certain types of sidewalks
airports

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freedom of association

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laws that prohibit or punish group membeship: strict scrutiny

punish membeship in a group it mus tbe proven tha hte person
is acuall affiliated with the group,
has knowledge of the group's illegal acivities,
and has the specific inent of hurthering those illegal activites or objecties.

laws tat require disclosure of group members where such disclosure would chill association must meet strict scrutiny

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freedom of association does not protect a right to discriminae unless

Back 175

it is inimate association or where the discrimination is integral to an expressive activiy

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free exercise clause

Back 176

cannot be used to challengea neutral law of general applcabilit

however government may not deny benefits to individuals who quit job for religious reasons.

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establlishment clause

Back 177

secular prupose
e primary effect must be neither to advance nor inhibit religion
x there must not be excessive governmental entangelemnt with religion

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government cannot discriminate agains

Back 178

religious speech or amon religios unless strict scrutiny is met

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government sponsored religious activit in public schools is

Back 179

unconstitutional. but religious student and community groups must have the same access to school facilities as non-religious groups.
school prayers, even if voluntary, is not allowed, not even a moment of silent prayer is allowed.

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government may give associaance to a parochial school

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so long as it is not used for religious instruction. the government may proide parents vouchers which they use in parochial school