Con Law

Question 1

Spending Power Conditions

Answer 1

1) Clearly stated
2) Related to the purpose of the program
3) Not unduly coercive

Question 2

Privileges and Immunities Generally

Answer 2

Prohibits discrimination by a state against nonresidents of the state when the discrimination concerns fundamental rights (rights relating to commercial activities or civil liberties)

Only applies if discrimination is intentionally protectionist in nature

Question 3

Privileges and Immunities Test

Answer 3

Invalid unless the state has a substantial justification and there are no less restrictive means

Question 4

Dormant Commerce Clause Generally

Answer 4

States are prohibited from discriminating against or unduly burdening interstate commerce

Question 5

Dormant Commerce Clause: Discriminatory Regulations Rule and 3 Exceptions

Answer 5

Almost always invalid unless:

1) Valid if it furthers an important, noneconomic state interest and there is no reasonable nondiscriminatory alternative available
2) Market Participant
3) It involves government action regarding the performance of a traditional governmental function (i.e. waste disposal)

Question 6

Dormant Commerce Clause: Nondiscriminatory Regulations

Answer 6

Valid unless the burden outweighs the promotion of a legitimate local interest

Court will also consider whether less restrictive alternatives are available

Question 7

State Action Requirements

Answer 7

1) Exclusive public función

2) Significant state involvement

Question 8

Due Process Generally

Answer 8

Government cannot take a person’s life, liberty, or property without fair process (notice and a hearing)

Question 9

Due Process Balancing Test

Answer 9

1) Important of the interest to the individual
2) Value of the specific procedural safeguards to that interest
3) Government interest in fiscal and administrative efficiency

Question 10

Substantive Due Process Generally

Answer 10

If the law limits the liberty of all persons engaged in some activity

Question 11

Equal Protection Generally

Answer 11

If a law treats a person or class or persons differently from others

Question 12

Fundamental Rights

Answer 12

Right to travel
Right to privacy
  - marriage
  - use of contraceptives
  - procreation
  - abortion 
  - obscene reading material
  - keeping extended family together
  - rights of parents
  - intimate sexual conduct
Right to vote
First Amendment rights

Question 13

Strict Scrutiny

Answer 13

Law is valid if it is necessary to achieve a compelling government purpose

Fundamental rights
Suspect Classifications

Question 14

Intermediate Scrutiny

Answer 14

Law is valid if substantially related to an important government purpose

Quasi-suspect classifications

Question 15

Rational Basis

Answer 15

Law is valid if it is rationally related to a legitimate government interest

Non-fundamental rights
Non-suspect classifications

Question 16

Suspect Classifications

Answer 16

Race
National Origin
Sometimes Alienage (only state and local)

Alienage Exception:
Does not apply to state and local where it involves participation in self-government process or undocumented aliens

Question 17

Quasi-Suspect Classifications

Answer 17

Gender

Legitimacy

Question 18

Proving Discriminatory Classification Under Equal Protection

Answer 18

For strict or intermediate scrutiny, must also prove discriminatory intent through:

1) a law is discriminatory on its face
2) a discriminatory application of a facially neutral law
3) a discriminatory motive behind the law

Question 19

Abortion Test

Answer 19

Pre-viability: can’t place an undue burden on woman

Post-viability: can prohibit abortion unless necessary to protect woman’s health or safety

Question 20

Content-Neutral Speech Restriction Test

Answer 20

Must advance important interests unrelated to the suppression of speech and must not substantially burden more speech than necessary to further those interests

(intermediate scrutiny)

Question 21

3 Situations Where Regulation of Speech is Facially Invalid

Answer 21

1) Vagueness
2) Overbroad
3) Unfettered Discretion

Question 22

Public Forum Definition

Answer 22

Public property historically open to speech-related activities (streets, sidewalks, and public parks)

Question 23

Designated Public Forum Definition

Answer 23

Public property that is not historically open to speech-related activities but which government has opened for such activities on a permanent or limited basis (schoolrooms that are open for after-school use)

Question 24

Limited Public Forum Definition

Answer 24

Government property not historically linked with speech and assembly but open for specific speech activity (school gym open for debate on particular community issue)

Like a Designated Forum, but limited to a specific category of speakers or topics; (e.g.,a student conference center)

Question 25

Nonpublic Forum Definition

Answer 25

Forums not held open for speech (military bases, school while in session, government workplaces)

Question 26

Public and Designated Public Forums Test

Answer 26

1) Content neutral
2) Narrowly tailored to serve an important government interest
3) Leave open alternative channels of communication

Question 27

Content-Based Speech Restriction Test

Answer 27

Must be necessary, and narrowly drawn, to serve a compelling government interest

Question 28

Nonpublic and Limited Public Forums Test

Answer 28

1) Viewpoint neutral

2) Reasonably related to a legitimate government purpose

Question 29

Low-Level Speech (3 Categories)

Answer 29

1) Defamatory Statements
2) Commercial Speech
3) Lewd/Profane/Indecent

Question 30

Unprotected Speech

Answer 30

1) Advocacy of Imminent Lawless Action
2) Obscenity
3) Child Pornography
4) Fighting Words
5) True Threats

Question 31

Imminent Lawless Action Test

Answer 31

Must show imminent illegal conduct is likely and that speaker intended to cause it

Question 32

Fighting Words

Answer 32

Personally abusive words that are likely to incite immediate physical relation in an average person

Question 33

Obscenity Elements

Answer 33

1) Appeals to prurient interest in sex (community standards)
2) Is patently offensive and affront to contemporary community standards
3) Lacks serious value (national standard)

Question 34

Defamatory Speech: Public Official/Figure

Answer 34

Must prove actual malice

Question 35

Defamatory Speech: Private Figure in Matter of Public Concern

Answer 35

Must prove negligence and actual injury

Question 36

Defamatory Speech: Private Figure in Private Matter

Answer 36

Must prove negligence

Question 37

Commercial Speech

Answer 37

Speech that proposes unlawful activity or is misleading or fraudulent receives less protection

Otherwise upheld unless:

1) Serves a substantial government interest
2) Directly advances that interest
3) Narrowly tailored to serve that interest

Question 38

Prior Restraint

Answer 38

Government must show special societal harm and have the following safeguards:

1) Standards must be narrowly drawn, reasonable and definite
2) Injunction must be promptly sought
3) There must be prompt and final determination

Question 39

Freedom of Association

Answer 39

Justified if compelling government interest, unreleased to the suppression of ideas, if the infringements are the least restrictive means

Question 40

Free Exercise Clause

Answer 40

First Amendment guarantees that citizens may freely engage in the religious activities of their choice

Question 41

Establishment Clause Generally

Answer 41

Prohibits the government from endorsing, supporting, or becoming too involved in religion and religious activities

Question 42

Establishment Clause Test

Answer 42

Invalid unless:

1) Secular purpose
2) Primary effect neither advances nor inhibits religion
3) Does not produce excessive government entanglement with religion