Constitutional Law Flashcards
First Amendment
1st A generally restricts gov’t reg of speech based on the content of speech unless the gov’t can prove restriction is necessary to achieve a compelling interest.
Speech that incites imminent lawless action and fighting words is not protected.
Overbroad
overbroad regulations (punishing substantially more speech than is within its legitimate sweep) are not enforceable against anyone. Overbroad regulations are legitimate if they have been interpreted to bar the threat to constitutionally protected speech.
Defamation (Con Law)
A public figure must show actual malice to bring defamation action. actual malice = statement made with knowledge of its falsity or with reckless disregard of its truth.
Trespass (no first amendment defense)
trespass = intentional physical invasion of P’s real property. A tort is complete when done. First A. is not a defense.
Invasion of privacy
invasion of privacy includes publishing private information about a person that would be objectionable to a reasonable person.
Truth is not a defense. If the matter of public concern, the publication is privileged absent actual malice. Especially if published material is obtained legitamitely.
Equal Protection
14th A. equal pro. cl generally does not apply to private action. States may not unfairly treat similarly situated persons differently. Courts consider if discriminatory classification exists. if suspect classification determines the standard of review if not suspect class or quasi-suspect class then rational basis applies (law upheld unless P can show no rational relationship.)
State Action
Private action = state action when (1) private actor is performing a traditional and exclusive public function or (2) state is significantly involved in the private action (when enforcement of private action involves the use of courts or when private actors and state actors entwined. (regulation and state police and firefighters not enough for entwinement).)
Gender discrimination
When law discriminates on basis of sex court applies intermediate scrutiny. Discrimination is upheld if the government can prove discrimination substantially related to an important government interest. Government must show a genuine and exceedingly persuasive justification.
11th amendment
prohibits federal courts from hearing most private actions against state governments. (Includes actions in which state is a party or in which state must pay retroactive damages. Congress can remove 11th amendment immunity for actions created under the 14th amendment.
private parties may bring actions to enjoin officers from future conduct that violates the constitution or federal law. (and includes enjoining to prevent officials from enforcing unconstitutional state law).
Dormant Commerce Clause
The dormant commerce clause allows state/local governments to regulate aspects of interstate commerce where congress has not.
state/local regulations that discriminate against interstate commerce to protect local economic interests invalid under the Dormant commerce clause
Discriminatory regulations treat economic interests within the state differently from outside interests.
Almost always invalid. Valid if necessary to achieve an important noneconomic state interest and no reasonable alternative available.
Exception when the state is a market participant. The state may prefer its own citizens when the state buys/sells goods or services.
state law treating local and out of state interests alike that burdens interstate commerce valid unless burden outweighs promotion of legitimate local interest.
Time place manner restrictions
Public forum restrictions must be content-neutral, narrowly tailored to significant government interest, and leave open alternative channels of communication. Content-based public forum restrictions are subject to strict scrutiny.
regulation of conduct in a nonpublic forum is valid if viewpoint neutral and not aimed at the suppression of speech. (reasonably related to use of forum’s intended purpose).
