Constitutional

Question 1

To pass constitutional muster under the 1st Am, a statute or ordinance that burdens speech based on its content generally must be:

Answer 1

Necessary to serve a compelling state interest

Question 2

[1st Am]

To be valid, a time, place, and manner regulation of a limited public forum must be:

Answer 2

viewpoint neutral and rationally related to a legitimate government purpose.

Question 3

If a regulation of speech is found to be overbroad, but judged in relation to its plainly legitimate sweep it does not prohibit a substantial amount of protected speech, may it be enforced?

Answer 3

yes, but only against persons engaging in activities that are not constitutionally protected.

Question 4

In determining the procedures required under the DP Clause, the courts consider:

Answer 4

(i) The importance of the individual’s interest that is involved;
(ii) The value of specific procedural safeguards of the individual’s interest; and
(iii) The gov’t’s interest in fiscal and administrative efficiency.

Question 5

When a gov’t classification intentionally discriminates on the basis of gender or legitimacy, the classification will be found unconstitutional unless the gov’t can prove that the classification is at the least:

Answer 5

substantially related to an important gov’t purpose

Question 6

For a PL to have standing to bring an action in FC, the following are all required:

Answer 6

injury in fact, causation, and redressability.

Question 7

the President’s power over domestic affairs:

Answer 7

(i) Where the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid;
(ii) Where the President acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the gov’t or prevent another branch from carrying out its tasks; and
(iii) Where the President acts against the express will of Congress, he has little authority and his action likely is invalid, at least if Congress has acted constitutionally.

Question 8

In determining whether gov’t action is valid under the Establishment Clause,
the Crts usually use the 3-part Lemon test, which is–

Answer 8

1. The action has a secular purpose,
2. The action has a primary effect that neither advances nor inhibits religion, and
3. The action does not produce excessive gov’t entanglement with religion.

Question 9

If Congress has not acted, state regulation of interstate commerce is valid if—

Answer 9

the regulation does not discriminate against out-of-state competition and does not unduly burden interstate commerce.

Question 10

When the gov’t take private property for public use, what is the measure of damages?

Answer 10

the measure of damages required for just compensation is the loss the owner incurs.

Just compensation is measured by the FMV of the property taken at the time that the taking

Question 11

exceptions to the Mootness doctrine (where the case can continue even if mooted):

Answer 11

(1) Main injury resolved, but potential Collateral Consequences remain
(e. g. someone who was convicted and has fully served his sentence but is now suing on a const’l right, challenging his criminal conviction, etc).

(2) Wrongs Capable of Repetition yet Evading Review — FC will allow a case to continue if it is the type for which persons will frequently be faced with a particular situation, but will likely cease to be in a position where the FC can provide a remedy for them in the time that it takes for the justice system to address their situation.
(3) Voluntary Cessation — , but must be shown to be permanent cessation. If Def merely stops, but is “free to return to his old ways,” then not moot.

Question 12

the 11th Am will prohibit a FC from hearing a claim for damages against a State Gov’t (although not against state officers) unless

Answer 12

(1) Bankruptcy proceeding;
(2) the State has consented to allow the lawsuit in FC (waiver);
(3) the PL is the Feds or another state; or
(4) Congress has clearly granted FCs the authority to hear a specific type of damage action under the 14th Am (e.g., under a civil rights statute) (clear abrogation)

Question 13

What is the Necessary & Proper Clause ?

Answer 13

the N&PC grants Congress the power to make all laws necessary and proper (i.e., appropriate) for carrying out an enumerated power (as long as the means not prohibited by the Const’n).

Question 14

Congress’s Taxing Powers

Answer 14

Congress has the power to tax, and most taxes will be upheld if they bear some reasonable relationship to revenue production; or if Congress has the power to regulate the activity taxed.

Question 15

Individuals have a fundamental right to travel from state to state, which encompasses the right:

Answer 15

(i) to leave and enter another state, and (ii) to be treated equally if they become permanent residents of that state.

Question 16

Right to Vote

Answer 16

Rational Basis for reasonable requirements that protect (rather than hinder right to vote).
[age (e.g., 18); residency (e.g., 50 days); citizenship (U.S. citizens)]

Strict Scrutiny for onerous or potentially discriminatory restrictions.
[Poll taxes; Literacy tests]

Question 17

One Person, One Vote Principle

Answer 17

For State & Local representatives (including state senators), the population of voting districts must be substantially equal.

For Federal representatives (not U.S. Senators), the population of congressional districts within a state to be as close to mathematical equality as practicable.

Question 18

Obscenity is unprotected.

Speech is obscene if:

Answer 18

it describes or depicts sexual conduct (defined by state law) that, taken as a whole, by contemporary community standards:

• –Appeals to the prurient interest in sex;
• —is patently offensive; AND
• —lacks serious social value (literary, artistic, political, or scientific) by national standards.

Question 19

Content-based regulations on speech

Conduct-based regulations on speech

Answer 19

Strict Scrutiny

Intermediate Scrutiny

Question 20

state law is impliedly preempted –

Answer 20

(1) Actual conflict b/w state and federal law: if a state law conflicts with federal law requirements, the state law will be held to be impliedly preempted.
(2) Field Preemption — a valid federal statute or regulation may impliedly “occupy” the entire field, thus precluding any state law even if the state law is non-conflicting

Question 21

a tax measure will be upheld if:

Answer 21

(1) it bears some reasonable relationship to revenue production; or
(2) if Congress has the power to regulate the taxed activity

(most tax measures are upheld)

Question 22

Fundamental Rights include:

Answer 22

Right to Travel;
Right to Privacy ;
Voting;
All 1st Am Rights

Thus, gov’t limitations on these rights, if challenged, generally will be held invalid unless the gov’t can prove that the limitation is necessary to achieve a compelling gov’t interest (i.e., strict scrutiny)

Question 23

To be valid, Gov’t regulations of speech in Public Forums & Designated Public Forums must:

Answer 23

(i) be content neutral (i.e., subject matter neutral & viewpoint neutral);
(ii) be narrowly tailored to serve an important gov’t interest; and
(iii) leave open alternative channels of communication.

Question 24

To be valid, gov’t regulations of speech in Limited Public Forums & Non-Public Forums must:

Answer 24

(i) be viewpoint neutral; and

(ii) reasonably related to a legitimate gov’t purpose.

Question 25

categories of unprotected speech:

Answer 25

[1] Incitement;

[2] Fighting Words;

[3] True Threats;

[4] Obscenity;
[5] Child Porn;

[6] Defamatory Speech;

[7] Some Commercial Speech

Question 26

What does the Fourteenth Amendment Privileges or Immunities Clause protect?

Answer 26

The 14th Am PorI Clause prohibits states from denying their citizens the rights of national citizenship
(such as the right to petition Congress for redress of grievances, the right to vote for federal officers, the right to enter public lands, the right to interstate travel, and any other right flowing from the distinct relation of a citizen to the US Gov’t).

Question 27

If a state tax on interstate commerce discriminates against a natural person who is a nonresident, which of the “Clauses” are likely to be relevant in determining whether the tax is valid?

Answer 27

The Commerce Clause would be relevant in determining the validity of a state tax on interstate commerce that discriminates against a natural person who is a nonresident. The DCC prohibits taxes that discriminate against nonresidents.

The P&I Clause of Art.IV would be relevant in determining the validity of a state tax on interstate commerce that discriminates against a natural person who is a nonresident. This Clause prohibits a state from discriminating against nonresidents regarding commercial activities.

The EP Clause would also be relevant in determining the validity of a state tax on interstate commerce that discriminates against a natural person who is a nonresident. This Clause prohibits states from unreasonably discriminating among similarly situated people.

[note– the PorI Clause of the 14th Am would not apply to a state tax on interstate commerce that discriminates against a natural person who is a nonresident. It applies when a state denies its own citizens rights of national citizenship.]

Question 28

Under the rules the Supreme Court currently uses to determine whether an abortion regulation is valid, the government may not impose an undue burden on a woman’s ability to obtain an abortion __________.

Answer 28

Before viability

After viability, the gov’t may prohibit abortion unless the woman’s health is threatened

Question 29

In First Amendment free speech cases, public property that historically has been open to speech-related activity is called a __________.

Answer 29

Public Forum (e.g., sidewalks, public parks)

Question 30

In First Amendment free speech cases, public property that usually is not used for speech-related activity, but that the government has opened for such activity at particular times is called a___________.

is public property that usually is not used for speech-related activity, but that the government has opened up for such activity for a particular purpose is called a _____________.

Answer 30

Designated Public Forum (e.g., a public school gym that can be reserved by the public for use when not being used by the school).

Limited Public Forum - (e.g., a school gym that has been opened up to host a political debate).

Question 31

For a governmental regulation of speech in a public or designated public forum to be valid, what is necessary?

Answer 31

The regulation must be content neutral, the regulation must be narrowly tailored to serve an important government interest, and the regulation must leave open alternative methods of communication in order to be valid.

However, that even if these requirements are met, the regulation may be invalidated for other reasons, such as for being vague or overbroad.