1
Q
Valid Restrictions on Speech Considerations for Limited and Non-Public Forums
A
To be valid, a time, place, and manner regulation of a limited public forum must be viewpoint neutral and rationally related to a legitimate government purpose.
2
Q
Federal Judicial Power
A
- Interpret the Constitution, Federal Laws, Treaties, and Admiralty and maritime laws
- Disputes between states
3
Q
Case or Controversy Requirement
A
- Case cannot be requesting an advisory opinion
- The case can’t be ripe or moot
- Plaintiff must have standing
4
Q
Advisory Opinion
A
- Decisions that lack an actual dispute between adverse parties, or any legally binding effect on the parties
5
Q
Ripeness before Law is Enforced
A
- The issues are fit for a judicial decision
- The plaintiff would suffer substantial hardship in the absence of review
6
Q
Exceptions to Mootness
A
- Controversies that can be repeated but can’t be reviewed because of a short duration
- Cases where D voluntarily stops but is free to continue
- Class actions in which the class rep’s controversy has become moot but one class member’s claim is still viable
7
Q
Standing Components
A
- Injury in Fact
- Causation
- Redressability
8
Q
Citizenship Standing Rule
A
- People have no standing as merely “citizens” or “taxpayers” to claim that the govt is violating federal law or the Constitution
9
Q
Exceptions to Citizen’s having Standing
A
- A taxpayer can challenge their tax bill
- a person may have standing to allege that federal action violates the Tenth Amendment along as they have a redressable injury in fact
- A person has standing to challenge spending measures based on establishment clause
10
Q
Sovereign Immunity
A
- Bars a private party’s suit against a state in federal and state courts and agencies
11
Q
Exceptions to Sovereign Immunity
A
- Express Waiver
- Implicit Consent/Structural Waiver
- Actions against local governments
- Suits by other states or the federal government
- Bankruptcy
- Certain actions against state officers
- Congress removes the immunity
12
Q
Original Jurisdiction of the Supreme Court
A
- All cases affecting ambassadors, public ministers, consuls, states
13
Q
App. Jurisdiction of the Supreme Court
A
- Complete discretion to hear cases that come by certiorari
- Must hear cases that come by appeal if it was a three-judge decision from a federal court that grants or deny injunctions
14
Q
Legislative Branch Enumerated and Implied Powers
A
- Congress can exercise the powers enumerated in the Constitution plus any powers necessary and proper to carry out any of its enumerated powers
15
Q
Taxing and Spending Power
A
- Congress has power to tax and spend to provide for the general welfare
- May be for any public purpose not prohibited by the Constitution
16
Q
Spending Power Conditions
A
- Congress can impose conditions on the grant of money to state or local governments
- Valid if they are clearly stated, relate to the purpose of the program, are not unduly coercive, and do not violate the Constitution
17
Q
Validity of Taxes
A
- Most federal taxes will be upheld if they bear some reasonable relationship to revenue production or to promoting the general welfare.
18
Q
Commerce Power
A
- Regulate the channels of interstate commerce (waterways, highways, etc.)
- Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce
- Regulate activities that have a substantial effect on interstate commerce
19
Q
Intrastate Activity Regulation by Congress
A
- Court will uphold the regulation if it can think of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce
- Must be economic or commercial
- Can only regulate existing commercial activity but it does not give Congress power to compel activity
- Can prohibit discrimination
20
Q
Additional Congressional Powers
A
- War and related powers
- Investigatory powers
- Property Power
- Postal power
- Power over citizenship
- Admiralty power
- Patent/copyright power
- Power to coin money
21
Q
Delegation of Congress Powers
A
- Congress can delegate their powers to the executive branch
22
Q
Bicameralism and Presentment
A
- Passage of a bill by both houses of congress
- presenting to the president for signature or veto
23
Q
Implied Power of the President Tiers
A
- Strongest: the president acting with the express or implied authority of Congress. Actions likely are valid.
- Middle: If the president acts where congress is silent, constitutionality is uncertain, court will consider the circumstances. Must not prevent another branch from carrying out its duties.
Lowest: Acting against the express will of Congress and Congress had authority to act, then action likely is invalid
24
Q
Appointment Powers
A
- President can appoint ambassadors, cabinet, etc.
- Can remove purely executive officers but others like Supreme Court must go through the impeachment process
25
Other Powers of the President
- Pardons
- Veto Power
- Power over External Affairs
- Executive Agreements
- Treaty Power (w/ 2/3rds approval from the Senate
26
Anti-Commandeering
- Federal government cannot compel states to act. Can't have them enact state laws or enforce federal laws
- Exception is discrimination or taxes applying to state and private entities
27
Exclusive State Powers
- General police Powers
- regulating the health, safety, and welfare of their people
28
Express Preemption
- A federal law may expressly say that the states may not adopt laws concerning the subject matter of the federal legislation
29
Implied Preemption
- Conflict between State and Federal Law Requirements
- State Law prevents achievement of federal objective
- A valid federal law may impliedly "occupy" the entire field which bars the sate law even if the state or local law is nonconflicting
30
Presumption Against Preemption
- Courts start with the presumption that state police powers are not to be superseded unless clear purpose of Congress
31
Article IV - Privileges of State Citizenship
- Prohibits discrimination by a state against nonresidents when the discrimination concerns either important commercial activities or fundamental rights
32
Article IV Review
- Law will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available
33
Bill of Rights
- First Ten Amendments to the US Constitution limiting federal power
- Incorporated to the states through the Fourteenth Amendment except for right to a grand jury and right to a jury trial in civil cases
34
Thirteenth Amendment
- Prohibits slavery and involuntary servitude
- Can prohibit racial discrimination by anyone (govt or private citizen)
35
Fourteenth Amendment
- Prevents states from depriving any person of life, liberty, or property without due process of the law.
- Has to be state action
36
15th Amendment
- Prevents federal and state governments from denying the right to vote based on race
37
State Action Requirement
- Because the Constitution generally applies only to government action, to show a violation state action must be involved.
- Applies to govt
38
Private Citizens as State Actors
- Perform exclusive public functions, or
- have significant state involvement
39
Exclusive Public Functions
- Activities that are so traditionally the exclusive prerogative of the state are state action no matter who performs them
40
Significant State Involvement
- State action exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens, or where there is sufficient entwinement
41
Rational Basis Review
- Regulations that do not affect fundamental rights or involve suspect/quasi-suspect classifications will be upheld if they are rationally related to a legitimate government purpose
- Person challenging the law has burden of proof
42
Intermediate Scrutiny
- Regulations involving quasi-suspect classifications (gender, illegitimate children) are upheld if it is substantially related to an important government purpose
- Burden is on the government
43
Strict Scrutiny
- Regulations involving suspect classifications or limiting any fundamental rights will be upheld if they are necessary to achieve a compelling government purpose
44
Procedural Due Process
Fourteenth Amendment provides that a person has a right to a fair process when the government deprives of life, liberty, or property.
44
Liberty Deprivation
- Deprivation occurs if a person loses significant freedom of action, or
- is denied a freedom provided by the Constitution or a statute
45
Property Deprivation
- Real and personal property
- Government benefits that a person has a reasonable expectation to receive under state and federal law
46
Procedural Due Process Requires:
- Notice
- An opportunity to be heard; and
- A neutral decisionmaker
47
Type of Hearing Required
- Determined by a balancing test that weighs: - the importance of the interest to the individual and the value of specific procedural safeguards to that interest against
- the government interest in fiscal and administrative efficiency
48
Waiver of Due Process Rights
- Allowed if waiver is voluntary and made knowingly
49
Fundamental Rights Include:
- Right to free speech
- Freedom of religion
- Freedom of the press
- Right to interstate travel
- Privacy-related rights
- Right to vote
50
Substantive Due Process Triggered:
- When a law limits the rights of all persons to engage in some activity
51
Equal Protection Triggered:
- When a law treats a person or class of persons differently from others
52
Fundamental Privacy Rights
- Right to Marriage
- Right to procreation
- Parental rights
- Families to live together
- To read pornographic material in the home
53
Right to Travel
- An individual has a fundamental right to travel from state to state and to be treated equally after moving to a new state
- International travel is not a fundamental right
54
Right to Vote
- government cannot restrict the right to vote including for property ownership
- no poll taxes
- can be required to show id
55
State and local Election Population Requirements
- Population of voting districts must be substantially equal. The variance in the number of persons included within districts can't be unjustifiably large, but they do not need to be within a few percentage points
- a 10% variance is presumptively valid but higher can also be valid
56
Congressional Elections Requirements
- States must use almost mathematical equality when creating congressional districts.
- Even a 0.7% variance was invalidated
57
Standard of Review for Right to Bear Arms Cases
- If the regulation burdens an individual's right to keep and bear arms then the government must justify the regulation by demonstrating it is consistent with the country's historical tradition of firearm regulation
58
Proving Discriminatory Classification for Equal Protection
- There must be intent on the part of the government to discriminate. can be shown by, (1) a law that is discriminatory on its face, (2) a discriminatory application of a facially neutral law, (3) a facially neutral law with a disparate impact on a protected class of people
59
The "Taking" Clause
- The Fifth Amendment provides that private property may only be taken (1) for public use and (2) the government must pay just compensation
60
How to decide if there is a taking?
- A taking will be found if there is a confiscation of a person's property or
- a permanent or regular physical occupation of a person's property by the government
- Temporary occupations can be a taking depending on the interference of the property
61
Denial of All Economic Value of Land Rule
- If a government regulation denies a landowner of all economically viable use of their land, the regulation amounts to a taking
- temporary denials do not constitute a per se taking. court will decide whether fairness requires just compensation
62
Public Use Limitation
- If the government action is rationally related to a legitimate public purpose the public use requirement is satisfied
63
Just Compensation
- Measured by the fair market value of the property taken at the time of the taking.
64
Contract Clause
- limits the ability of state and local government to enact laws that retroactively impair contract rights
- Not applicable to federal government
65
Basic Contract Impairment Rules
- legislation that substantially impairs an existing private contract is invalid unless the legislation serves an important and legitimate public interest, and is a reasonable and narrowly tailored means of promoting that interest
66
What is Speech for First Amendment?
- Includes words, symbols, and expressive conduct
67
Expressive Conduct
- Any kind of conduct that is either inherently expressive or conduct that Is intended to convey a message, and reasonably likely to be perceived as conveying a message
68
Unprotected Speech
- Incitement
- Fighting Words
- True Threats
- Obscenity
- Defamatory Speech
69
Incitement
- Speech can be censored as incitement if it is intended to produce imminent lawless action and likely to produce such action
70
Fighting Wotrds
- Personally abusive words that are likely to incite immediate physical retaliation in an average person
71
True Threats
- Words that are intended to convey to someone a serious threat of bodily harm
72
Obscenity
- Speech is obscene if it describes or depicts sexual conduct by statute that, taken as a whole, by the average person appeals to the prurient interest in sex (using a contemporary community standard), is patently offensive under contemporary community standards, and lacks serious value using a national, reasonable person standard
73
Commercial Speech
- Commercial speech is not protected if it is false, misleading, or about illegal products or services
74
Commercial Speech Regulation Standard
- Will be upheld only if it serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest
75
Content-Based Speech Restrictions
- Regulations based on the content of the speech are subject to strict scrutiny and are presumptively unconstitutional.
- Content based if it restricts speech based on the subject matter or viewpoint of the speech
76
Content-Neutral Regulations
- Regulations that are subject matter and viewpoint neutral
- Subject to intermediate scrutiny8
77
Traditional Public Forums
- Public property that has historically been open to speech-related activities or which the government has thrown open for such activities
- Streets, sidewalks, public parks
78
Regulations in traditional public forums
- Content-based restrictions are subject to strict scrutiny
- Content-Neutral restrictions are subject to intermediate scrutiny which means it is narrowly tailored to serve an important government interest and leave open alternative channels of communication
79
Limited public forums and nonpublic forums
- LPF's are government forums not historically open generally for speech and assembly but opened for specific speech activity
- Nonpublic are government property not historically open for speech and assembly such as military bases
80
Regulations for LPF's and nonpublic
- Can regulate speech to reserve the forum for its intended use
- Regulations are valid if they are viewpoint neutral and reasonably related to a legitimate government purpose
- If viewpoint based subject to strict scrutiny
81
Speech restrictions in public schools
- Can be reasonably regulated to serve's the school's educational mission
- Student's personal speech on campus cannot be censored absent evidence of substantial disruption
- Student's personal off campus speech can only be limited if related to cheating, bullying, and safety interests
- Restrictions on school speech must be reasonably related to legitimate pedalogical concerns
82
Speech in Public Employment
- Under the First Amendment, speech generally cannot be regulated or punished unless necessary to achieve a compelling government interest
