Con Law

Question 1

First Amendment Overview

Answer 1

1A: Congress shall make no law abridging the freedoms of speech, press, association, and religion.
Applies to states via 14A

Question 2

Standing

Answer 2

1) injury in fact;
2) causation; and
3) redressability.

Question 3

Speech Definition

Answer 3

speech is broadly defined under 1A, and it can include symbolic/expressive conduct that would not be traditionally thought of as speech

Question 4

Vagueness
1A

Answer 4

requires the law give fair notice of the prohibited conduct such that a reasonable person would understand what is prohibited by the policy

Question 5

Overbreadth

Answer 5

regulates more speech than is necessary

Question 6

1A Prior Restraint

Answer 6

A prior restraint is an order (such as an injunction or gag order) or a licensing scheme that seeks to prohibit speech before it has occurred

Question 7

Public Forum

Answer 7

2 Kinds
(1) Designated or limited public forum (e.g., schools with after-school clubs)
(2) Traditional public forum (e.g., streets, sidewalks, and parks)

TEST: regulation must
(1) be content neutral,
(2) be narrowly tailored, and
(3) leave open alternative channels of communication.

Question 8

Symbolic Speech

Answer 8

regulating conduct; e.g. nudity): a law that regulates conduct and places an incidental burden on speech is allowable if
(1) the regulation is narrowly tailored to an important governmental interest
(2) it is unrelated to the suppression of the speech.

Question 9

Unprotected Speech

Answer 9

(1) clear and present danger - words that have a likelihood of inciting imminent lawless activity
(2) fighting words, - word that tend to cause an immediate breach of peace
(3) true threats
(4) obscenity

Question 10

Types of Less Protect Speech

Answer 10

(1) Commercial Speech
(2) School Speech
(3) Sexual / indecent speech

Question 11

Commercial Speech

Answer 11

(1) speech must lawful and not misleading,
(2) substantial
governmental interest,
(3) the statute must directly advance that interest, and
(4) the statute must be narrowly tailored (not more excessive than it needs to be).

Question 12

School Speech

Answer 12

Public school students have free speech rights but speech may be regulated if the regulations are reasonably related to legitimate pedagogical (educational) concerns.

Question 13

Sexual / Indecent Speech

Answer 13

(1) it appeals to a prurient interest in sex;
(2) it depicts or describes sexual conduct in a patently offensive way; and
(3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Question 14

Content Based

Answer 14

Strict Scurinity Applies unless
(1) symbolic speech or
(2) unprotected speech

Question 15

Viewpoint based speech

Answer 15

Strict Scrutiny Applies - almost always struck down

Question 16

Public School Regulation of Speech

Answer 16

can only regulate speech at school if there is a substantial likelihood that the speech will cause disruption to class.

Question 17

Freedom of Association

Answer 17

Guarantees the freedom to associate with groups whom one chooses.

Question 18

Private / NonPublic Forum Forum

Answer 18

e.g. military bases, airports, and prisons
Regulation must
(1) be viewpoint neutral, and
(2) have a reasonable relation to a legitimate government interest.

Question 19

Procedural Due Process

Answer 19

requires a showing that
(1) there was a deprivation of a protected interest,
(2) without due process protections (namely, notice and a hearing).

Question 20

Deciding What Process is Due

Answer 20

When deciding what process is due, the court looks at the
(1) nature of the interest affected,
(2) risk of erroneous deprivation
(3) the burden on the government.

Question 21

Substantive Due Process

Answer 21

government shall not infringe on individual rights in an arbitrary or irrational manner
(1) fundamental rights get SS
(2) Gender and illigetimacy get IS
(3) all other get RB

Question 22

Moot

Answer 22

An action is moot when a live controversy under no longer exists
Exceptions:
(1) Pregancy
(2) Just because D has voluntarily ceased activity does not mean that the case will not be considered moot

Question 23

Commerce Clause

Answer 23

(1) channels of interesate commerce
(2) instumentalaties of interestate commerce
(3) commercial activies that have a substantial economic effect on interstate commerce

Question 24

Congress Power to Delagate

Answer 24

Congress has the power to delagate its power, except those power that are uniquely confined to congress
(1) delegation will be upheld if it includes intelligible standard and
(2) delegations of extroardinarily broad authiryt require particularly clear congressional authorization

Question 25

10th Amendment

Answer 25

10A powern not granted by the consitution, nor prohibited by the states, are reserved to the states.

Restricts federal regulation of states in some ways.

Prohibits commandeeering

Question 26

Spending Clause

Answer 26

Congress has power to spend for the general welfare, congress is gerally free to condition its grants

Question 27

Spending Condition Valid?

Answer 27

Will be found valid if
(1) clearly stated
(2) relates to the purpose of spending program
(3) not unduly coercive

Question 28

Establishment Clause

Answer 28

Government cannot take action that has the effect of estabilshing or inhibiting religion

Court apllies LEMON test
government must show that
(i) the action has a secular purpose,
(ii) that the action’s primary effect is not to advance or inhibit religion, and
(iii) there is not excessive entanglement between the government action and religion.

Question 29

Test to see if Religion is Protected

Answer 29

NOT based on whether the particular religion is well known or well established
-whether the individual has a sincerely held religious belief (whether the individual’s belief and whether that belief has a similar role in the individual’s life as a typical religion would.)

Question 30

Free Excercise Clause

Answer 30

Individual has 1A right to free excercise their religious beliefs, need to prove that they have a sincerely held religious belief.

Question 31

Takings Clause

Answer 31

(1) Government cannot take private property for public property without just compensation (FMV)
(2) rational basis test
(3) Comes from the 5th amendment, which applies to states from the 14th amendment
(4) can be found when regulation affects value or use of property, in which case property owener can bring inverse condemnation action

Question 32

Inverse Condemation

Answer 32

(1) if reg. deprived all economic value of property
(2) it is considered the equivalent of physical apprioriation, thus a taking

Question 33

Total Taking

Answer 33

(1) permanent physical invasion
(2) use restriction no economic value left

Question 34

Temporary Taking

Answer 34

Court considers
(1) economic impact
(2) reaosnabl expectation of owner
(3) length of delay
(4) Good faith

Question 35

Partial Taking

Answer 35

Regs. that merely decrease the value of property, do not constitute a taking if they leave an economically viable use of property. Court looks act
(1) economic impact
(2) investment backed expecation of owner
(3) the whether reg substantially interferes with property

Question 36

Regulatory Taking