Constitutional Law Flashcards
(174 cards)
1
Q
What are the two determinations to a Con Law question?
A
1) To whom does the clause apply?
2) What does the clause do?
2
Q
Commerce Clause: Art. 1, Section 8
A
Applies to: federal gov’t
Source of Power
3
Q
What 4 categories can congress regulate under commerce clause?
A
1) channels of interstate commerce
2) instrumentalities of interstate commerce
3) articles moving in interstate commerce
4) activities “substantially affecting” commerce.
4
Q
Congress can regulate activity under commerce clause if:
A
1) activity is commercial; and
2) activity “substantially affects” interstate commerce OR activity is part of the general class of activities that! Collectively, substantially affect interstate commerce.
5
Q
What is the case and controversy requirement?
A
Federal court adjudication requires an actual and definite dispute between parties having adverse legal interests.
6
Q
What is the rule for STANDING?
A
Plaintiff must show a concrete personal state in the outcome.
Constitutional Standard:
1) Injury in Fact (economic, aesthetic, environmental)
2) Causation
3) Redressibility
7
Q
What is Justiciability?
RAMPS
A
Ripeness Advisory Opinions Mootness Political Questions Standing
8
Q
What is ripeness?
A
For a cause to be ripe, there must be a genuine, immediate threat of harm.
9
Q
What is mootness?
A
a case is moot unless an actual controversy exists at all stages of review unless the injury is capable of repetition, yet evading review.
10
Q
What is abstention?
A
1) Federal court will refuse to review a case based on an unsettled issue of state law (Pullman).
2) Federal court review prohibited where there are pending state criminal proceedings (Younger).
11
Q
What is the statutory regulation of appellate jurisdiction?
A
1) by certiorari (discretionary);
2) by appeal.
12
Q
What is the appoint clause of art.2, section 2?
A
1) President appoints “principal officers” with Senate consent (cabinet members, heads of departments);
2) Congress delegates appointment of “inferior officers” to
* the president;
* heads of departments and/or
* the judiciary.
13
Q
What is the hierarchy of laws?
A
1) Constitution
2) Act of Congress
3) Treaty
4) Executive agreement - foreign policy/affairs
5) Executive order - domestic policy.
6) State law
14
Q
What is the Supremacy Clause?
A
1) Suppression Doctrine: a federal law wills supersede any state law in direct conflict;
2) Preemption Doctrine: any state law in an area where Congress intends to occupy the field is unconstitutional.
15
Q
What is the 11th Amendment?
A
A state may not be sued in federal court by its own citizens or citizens of another state without consent.
EXCEPT:
1) State officials may be sued personally for
a) money damages or
b) enjoined for federal law violations.
2) A state may be sued by another state or by the US.
3) Congress may waive a state’s 11th Amendment immunity under the Enforcement Clause of Sec. 5 of the 14th Am.
16
Q
What is the Property Power?
A
Congress has the power to dispose of the territory or other property belonging to the US.
17
Q
How to approach a con law question?
A
1) Underline WHO is passing the law.
2) Determine the SUBJECT MATTER of the question.
3) Match the APPROPRIATE POWER of regulation.
18
Q
Ways to uphold a federal statute?
A
1) supremacy clause;
2) any enumerated power of congress; and
3) federal property power.
19
Q
Ways to uphold a state statute?
A
1) Dormant Commerce Clause
a) non-discriminatory
b) no undue burden on interstate commerce - use a balancing test.
2) Police Power - health, safety, welfare, morals and aesthetics.
20
Q
What is the affection doctrine?
A
Congress may regulate any activity which has a “substantial economic effect” on interstate commerce.
21
Q
What is “state action?”
A
A threshold requirement of government conduct which must be satisfied before private discrimination can be restricted under the 1st, 4th, 14th, or 15th Amendments (public function, significant state involvement or “encouragement”).
22
Q
How do you show a state statute is neutral on its face? (Think installing shower).
A
1) Discriminatory effect; and
2) Discriminatory purpose.
To raise the burden of persuasion above rational basis.
23
Q
What are the fundamental rights of privacy? (CAMPER)
A
Contraception Abortion Marriage Procreation Private Education Family Relations (child birth, child rearing, families living together)
24
Q
What is SDP?
A
A term used to classify the source from which the fundamental rights (vote, travel, privacy) derive.
25
What is article 4 of P&I Clause?
Prevents economic discrimination by one state against citizens or resident of another state UNLESS a substantial gov't interest exists.
26
What is PDP?
The procedural safeguards of notice and a hearing are available whenever there is a serious depravation of any life, liberty or property interest.
27
What is a bill of attainder?
Legislative punishment of a named group or individual without judicial trial.
28
What is an Ex Post Facto clause?
It INVALIDATES retroactive criminal laws that:
1) make criminal conduct that was NOT a crime when committed; or
2) Decrease the amount of evidence needed to convict/change the procedures for conviction.
29
What are the 4 facial attacks?
1) Overbreath
2) Vagueness
3) Prior Restraint
4) Unfettered Discretion: one person has too much power.
30
What is the test for "content neutral" regulation of time, place, manner?
Regulation must:
1) Further a significant gov't interest;
2) Be narrowly tailored; and
3) Leave open alternative channels of communication.
31
What is the obscenity test (Miller v. Calif.)?
To be obscene the material must:
1) appeal to the prurient interest in sex;
2) depict sexual conduct in a patently offensive way; AND
3) lack serious literary, artistic, political or scientific value.
32
What is the Central Hudson (vice advertising) test?
Gov't can regulate, BUT the regulation must:
1) directly advance;
2) a SUBSTANTIAL gov't interest; AND
3) be "narrowly tailored."
33
What is PDP?
The procedural safeguards of notice and a hearing are available whenever there is a serious depravation of any life, liberty or property interest.
34
What is a bill of attainder?
Legislative punishment of a named group or individual without judicial trial.
35
What is an Ex Post Facto clause?
It INVALIDATES retroactive criminal laws that:
1) make criminal conduct that was NOT a crime when committed; or
2) Decrease the amount of evidence needed to convict/change the procedures for conviction.
36
What are the 4 facial attacks?
1) Overbreath
2) Vagueness
3) Prior Restraint
4) Unfettered Discretion
37
What is the test for "content neutral" regulation of time, place, manner?
Regulation must:
1) Further a significant gov't interest;
2) Be narrowly tailored; and
3) Leave open alternative channels of communication.
38
What is the obscenity test (Miller v. Calif.)?
To be obscene the material must:
1) appeal to the prurient interest in sex;
2) depict sexual conduct in a patently offensive way; AND
3) lack serious literary, artistic, political or scientific value.
39
What is the Central Hudson (vice advertising) test?
Government regulation must:
1) directly advance;
2) a SUBSTANTIAL gov't interest; AND
3) be "narrowly tailored."
40
What is the test for establishment clause? (Lemon v. Kurtzman)
In order NOT to violate establishment clause:
1) The primary PURPOSE must be secular;
2) Primary EFFECT must neither inhibit nor advance religion.
3) No EXCESSIVE gov't entanglement with religion.
41
The only time you analyize state statutes' impact on interstate commerce under the Commerce Clause is when?
There is NO relevant federal legislation.
** If relevant FEDERAL LEGISLATION exists, then the analysis falls under the SUPREMACY clause.
42
Under the Supremacy Clause, what two questions do you ask?
1) Did Congress expressly authorize or prohibit state regulation? If so, that controls. If NOT:
2) Does the federal law preempt the state law? If the state law directly contradicts the federal law, it will be preempted. If there's no direct conflict, you have to determine if Congress intended the law to occupy the entire field.
43
What 4 factors do you look at to see if Congress intended the law to occupy the entire field?
1) whether the subject matter is traditionally classified as local or federal;
2) how pervasie the federal regulation is;
3) how similar the state and federal laws are; and whether there's a need for uniform federal regulations.
(PUSH - Pervasiveness, Uniformity, Similarity, History).
NOTE - preemption is an issue ANY time a state law conflicts with a federal law.
44
Welfare clause; art I, Section 8 is?
Applies to federal government
| Source of power.
45
What does the Welfare Clause do?
Gives congress the power to tax and spend for the general welfare. ANY federal legislation reasonably related to this power will be valid.
46
REMEMBER: STATES do have the power to legislate for the general welfare under the POLICE power. There is NO federal police power.
.
47
Contracts Clause; Art. I, Section 10
Applies to STATES only
| Prohibition on power.
48
What does the contracts clause do?
It prohibits states from passing any law that impairs the obligations of contracts. It's usually CORRECTLY applied when the state seems to be trying to ESCAPE its own obligations.
49
What is the most important thing to remember about the Contracts Clause?
A prerequisite for protection under this clause is that the CONTRACT must have existed WHEN THE STATUTE WAS PASSED.
** States CAN regulate contract formation PROSPECTIVELY*** If the contract DOES NOT predate the offending statute, the CC is irrelevant.
50
Atate modifications of contracts WILL be permissible if the modifications?
1) Serve an IMPORTANT and LEGITIMATE PUBLIC INTEREST; and
2) are NECESSARY to achieve that public interest; and
3) the contract impairment is REASONABLE under the circumstances.
51
Contracts Clause Example: State makes it a misdemeanor to have more than 5 stories without sprinkles. Fed. building 10 stories high has not sprinklers. State prosecutes.
The requirement violates the supremacy clause because the contract DOES NOT predate the statute.
52
P & I of the 14th Amendment
Applies to States
| Is a Limitation on power.
53
What does the P & I of the 14th Am. do?
It voids state enactments which clearly infringe on the privileges of NATIONAL CITIZENSHIP. Limited tot he fundamental rights shared by all citizens.
54
HINT: Usually the P&I of the 14th is not the right answer. There is better protection from DP and EP.
.
55
P&I, Art. 4, Section 2 "Interstate"
Applies to States
| Limitation on Power.
56
What does the interstate P&I clause do?
Prevents states from discriminating against out-of-state citizens and residents in matters concerning "essential activities" and "basic rights" UNLESS the discrimination is closely related to a SUBSTANTIAL state purpose and there are NO LESS RESTRICTIVE means available to achieve the purpose.
*** REMEMBER: this only applies to US citizens ***
57
11th Amendment?
Applies to Individuals
Limitation on Power
** VERY NARROW****
58
What does the 11th Amendment do?
It forbids most actions in federal court by private citizens for damages against the states.
It DOES NOT prevent suits by the federal gov't against states, or suits by anyone against state subdivisions, or equity suits in federal court where a state official has violated the claimant's federal constitutional rights or suits against a state official for money damages.
59
13th Amendment
Applies to ANYONE
| Limitation on power
60
What does the 13th Amendment do?
Outlaws "badges or incidents" of slavery. Gives Congress the pwer to prohibit virtually any discrimination against blacks or whites.
**Its the ONLY constitutional provision EXPLICITLY LIMITING PRIVATE ACTS BY INDIVIDUALS **
61
How do you determine the validity of a statute?
1) Determine first if the statute is a federal or state statute?
2) Analyze the validity of federal statutes or actions.
3) Determine the validity of state statutes.
62
How to analyze the validity of federal states or actions?
Congress can act only pursuant to its enumerated powers. Thus, any valid federal statute must be RATIONALLY related to an enumerated power
- OR -
must be NECESSARY and PROPER to effectuate an enumerated power.
63
What are the MAJOR powers of Congress?
```
CREATES DICE
Civil Rights
Elections
Admiralty
Taxation
Eminent Domain
Spending/Taxing for General Welfare
Defense
Interstate Commerce
Citizenship
External (Foreign) Affairs
```
64
What does the 10th Amendment do?
It reserves to the states (and the people) those powers not expressly delegated to Congress by the Constitution, nor prohibited to the States.
65
REMEMBER: THERE IS NO FEDERAL POLICE POWER
Only the states have police power. Congress can use its commerce power to do "police-like" things.
66
How do you determine the validity of state statutes?
In order for a state statute to be valid, a state enactment must meet a three part test:
1) The law must be enacted within the state's power's (police power).
2) It must not violate any person's Constitutional rights; and
3) It must not unduly burden interstate commerce.
*** If a state statute passes this test, it's valid. ***
67
What state legislation is enacted under the police powers?
If it involves PUBLIC HEALTH, SAFETY, WELFARE or MORALS.
** The POLICE POWERS are the most significant **
68
What are the two most common ways that states can violate the Constitution?
Equal Protection and Due Process
69
Can a state place a burden on interstate commerce?
YES, so long as it's not an UNDUE burden.
70
How do you determine if a state has placed an UNDUE burden on interstate commerce?
It's a balancing test: is the burden on interstate commerce outweighed by LEGITIMATE INTERESTS of the state in protecting its citizens, taking into account less burdensome alternatives. Also, the regulation must be NON-DISCRIMINATORY, unless the state has no reasonable, non-discriminatory alternatives in its effort to protect health and safety.
71
Is a state statute that forbids tandem trucks on its highways, in the light of proof that such trucks are more dangerous than tractor-trailers permissible?
NO, it's impermissible.
72
Is a state statute that bars tandem trucks on local roads but not highways because it's more dangerous permissible?
Maybe. This could be valid.
73
Is a state statute that shares trucks involved in interstate commerce $25/year for the privileges of using state highways where the revenues are used to defray the costs of maintain the roads permissible?
YES because the state interest is substantial and the burden is slight.
74
Is a state statute that charges a fee ONLY to out-of-state truckers for use to maintain the road permissible?
NO, even though the burden is the same, the regulation is discriminatory and the statute would be invalid.
75
What is the test to determine EP or DP?
If there's a classification, it's equal protection.
76
The nature of the classification for EP determines what?
The level of scrutiny.
77
REMEMBER: if the statute is a FEDERAL STATUTE, there is NO equal protection. Why?
Because the Equal Protection clause does not apply to the federal government.
78
Threshold Question: the equal protection clause applies only to government action (state action) not to actios taken by purely private parties and in which government played no substantial role.
.
79
How do you know if it's a "state action" when a private individual is involved.
1) Ask if there is a significant "nexus" of government involvement (whether the government encourages or benefits from the private conduct); and
2) if the private conduct has a "public function" that's normally exclusively reserved to the state.
** If the answer is YES to either, than there's a state action ***
80
If discrimination is an issue in "state action" it must be found discriminatory in one of the following ways....name them.
1) It must be discriminatory on its face; OR
2) It must be facially neutral but unequally administered; OR
3) Have an impermissible motive - the intent to discriminate.
** If you faced with a newly enacted statute but your;s not told anything about its background, it can be held invalid ONLY because it's invalid on its face!!!****
81
Strict Scrutiny applies ONLY to which classifications?
1) The classification is "suspect" - that is, it's based on race or alienage; OR
2) The classification relates to WHO may exercise a fundamental right.
82
What are the fundamental rights?
1) Freedom of association;
2) Interstate travel
3) Privacy
4) Voting
83
What is the compelling interest test?
It must be NECESSARY to promote a compelling governmental interest.
84
NOTE: A statute need only have a rational basis for discriminating against non-citizens in the context of essential state functions.
Thus, a state can require that state police, public school teachers, probation officers and others be US Citizens.
85
Intermediate Scrutiny applies to?
Gender and Legitimacy.
86
What is the test for intermediate scrutiny?
A law must be SUBSTANTIALLY related to an IMPORTANT STATE INTEREST in order to be valid.
87
Would a statute that prohibits children from inheriting property unless the paternage was proved during the father's life pass intermediate scrutiny?
Yes. The state's interest in promoting orderly properly distributed has been held to justify such a statute.
88
A statute that requires a paternity suit to be brought in the first two years of the child's life pass intermediate scrutiny?
NO. the "substantial relation" element is missing.
89
Rational relation applies to?
Everything else. If there is a set of facts imaginable that would make the law a reasonable way to achieve a legitimate gov't purpose, the law is valid.
90
What is procedural due process?
it addresses the fairness of the procedure used to deprive someone of a significant interest, typically property, but also life, or liberty.
** Generally ask if notice and a hearing are necessary **
91
REMEMBER: "property" does not always mean land.
It can also mean a property right in a license, a welfare recipient has a right in benefits, etc...
92
What is substantive due process?
SDP becomes an issue when state action substantially interferes with a FUNDAMENTAL right. (Vote, Travel & Privacy)
93
Who has the burden of persuasion in a due process problem?
If the impaired right is fundamental, then the BoP is on the government to DEFEND its action;
if the right is non-fundamental, then the burden of persuasion is on the person attacking the government's action.
94
REMEMBER: A federal statute bans unmarried people from buying contraception. EP or DP?
IT CAN'T be EP because EP ONLY applies to the states.
95
What rights does "freedom of expression" cover?
Speech, press, assembly and association.
96
What standards are required to uphold a statute regulating freedom of speech?
Must contain NARROW and DEFINITE standards.
97
What is over breadth?
If a statute prohibits not only unprotected speech, but some protected speech as well, its unconstitutionally OVERBROAD.
98
What is vague?
If the conduct prohibited by a statute is so unclearly defined that a reasonably person would have to GUESS AT ITS MEANING, it's unconstitutionally vague.
99
What are "fighting words?"
Fighting words are those personally ausive epithets likely to incite immediate physical retaliation in the ordinary citizen.
100
What is the "clear and present danger" test?
Government action CAN prohibit advocacy of illegal conduct if it meets the Brandenberg v. Ohio test if:
1) the advocacy is INTENDED to produce or incite IMMINENT illegal action; and
2) the advocacy is LIKELY to produce or incite such action
*** Then it can be prohibited ***
101
What is a prior restraint?
A govermental action that prohibits speech before it takes place.
** These actions are PRESUMPTIVELY INVALID due to their vagueness or to their placing to much discretion in the hands of public officials.**
102
When can a prior restraint be valid?
Where the mere existence of the communication is proven to create some SPECIAL HARM TO SOCIETY.
103
What is commercial speech?
Speech whose primary goal is a COMMERCIAL TRANSACTION.
** REMEMBER - it can be subject to greater regulation than non-commercial speech **
104
"Content Neutral" Regulation of time, place and manner (method)
Test:
1. Further a significant gov't interest
2. Be narrowly tailored; AND
3. Leave open alternative channels of communication.
105
What does a time, place, manner regulation require to be valid?
1) Must be NEUTRAL as tot he content of the speech, bot on its face and as applied;
2) Must further a SIGNIFICANT GOV'T INTEREST not capable of accomplishment by less restrictive means; AND
3) Must allow for adequate alternative channels for communicating the information.
106
HINT: Lots of question ask about groups obtaining a permit or license - REMEMBER
Be sure to apply the three-party test and not that the ordinance must set out the grounds for DENYING a permit in NARROW and SPECIFIC language that curtails the discretion of local officials.
107
What is the Lemon v. Kurtzman test for freedom of religion?
1) the gov't action must have a SECULAR purpose;
2) the PRIMARY or PRINCIPAL effect of the action must NOT be the ADVANCEMENT of religion; and
3) the gov't action must not foster EXCESSIVE gov't entanglement.
108
REMEMBER - the government can only regulate the PRACTICE of religion, not your BELIEFS.
.
109
ESTABLISHMENT CLAUSE PROBLEM....
If the government helps out private, religious school, the aid MUST be secular and aid to post-secondary schools is more likely to be upheld than aid to elementary or secondary school because there is less risk of entanglement.
110
What are "fighting words?"
Fighting words are those personally ausive epithets likely to incite immediate physical retaliation in the ordinary citizen.
111
What are "fighting words?"
Fighting words are those personally ausive epithets likely to incite immediate physical retaliation in the ordinary citizen.
112
What is the "clear and present danger" test?
Government action CAN prohibit advocacy of illegal conduct if it meets the Brandenberg v. Ohio test if:
1) the advocacy is INTENDED to produce or incite IMMINENT illegal action; and
2) the advocacy is LIKELY to produce or incite such action
*** Then it can be prohibited ***
113
What is the "clear and present danger" test?
Government action CAN prohibit advocacy of illegal conduct if it meets the Brandenberg v. Ohio test if:
1) the advocacy is INTENDED to produce or incite IMMINENT illegal action; and
2) the advocacy is LIKELY to produce or incite such action
*** Then it can be prohibited ***
114
What is a prior restraint?
A govermental action that prohibits speech before it takes place.
** These actions are PRESUMPTIVELY INVALID due to their vagueness or to their placing to much discretion in the hands of public officials.**
115
What is a prior restraint?
A govermental action that prohibits speech before it takes place.
** These actions are PRESUMPTIVELY INVALID due to their vagueness or to their placing to much discretion in the hands of public officials.**
116
When can a prior restraint be valid?
Where the mere existence of the communication is proven to create some SPECIAL HARM TO SOCIETY.
117
When can a prior restraint be valid?
Where the mere existence of the communication is proven to create some SPECIAL HARM TO SOCIETY.
118
What is commercial speech?
Speech whose primary goal is a COMMERCIAL TRANSACTION.
** REMEMBER - it can be subject to greater regulation than non-commercial speech **
119
What is commercial speech?
Speech whose primary goal is a COMMERCIAL TRANSACTION.
** REMEMBER - it can be subject to greater regulation than non-commercial speech **
120
REMEMBER: Constitutionally protected speech IS subject to reasonable time, place and manner regulations.
.
121
REMEMBER: Constitutionally protected speech IS subject to reasonable time, place and manner regulations.
.
122
What does a time, place, manner regulation require to be valid?
1) Must be NEUTRAL as tot he content of the speech, bot on its face and as applied;
2) Must further a SIGNIFICANT GOV'T INTEREST not capable of accomplishment by less restrictive means; AND
3) Must allow for adequate alternative channels for communicating the information.
123
What does a time, place, manner regulation require to be valid?
1) Must be NEUTRAL as tot he content of the speech, bot on its face and as applied;
2) Must further a SIGNIFICANT GOV'T INTEREST not capable of accomplishment by less restrictive means; AND
3) Must allow for adequate alternative channels for communicating the information.
124
HINT: Lots of question ask about groups obtaining a permit or license - REMEMBER
Be sure to apply the three-party test and not that the ordinance must set out the grounds for DENYING a permit in NARROW and SPECIFIC language that curtails the discretion of local officials.
125
HINT: Lots of question ask about groups obtaining a permit or license - REMEMBER
Be sure to apply the three-party test and not that the ordinance must set out the grounds for DENYING a permit in NARROW and SPECIFIC language that curtails the discretion of local officials.
126
What is the Lemon v. Kurtzman test for freedom of religion?
1) the gov't action must have a SECULAR purpose;
2) the PRIMARY or PRINCIPAL effect of the action must NOT be the ADVANCEMENT of religion; and
3) the gov't action must not foster EXCESSIVE gov't entanglement.
127
What is the Lemon v. Kurtzman test for freedom of religion?
1) the gov't action must have a SECULAR purpose;
2) the PRIMARY or PRINCIPAL effect of the action must NOT be the ADVANCEMENT of religion; and
3) the gov't action must not foster EXCESSIVE gov't entanglement.
128
REMEMBER - the government can only regulate the PRACTICE of religion, not your BELIEFS.
.
129
REMEMBER - the government can only regulate the PRACTICE of religion, not your BELIEFS.
.
130
ESTABLISHMENT CLAUSE PROBLEM....
If the government helps out private, religious school, the aid MUST be secular and aid to post-secondary schools is more likely to be upheld than aid to elementary or secondary school because there is less risk of entanglement.
131
ESTABLISHMENT CLAUSE PROBLEM....
If the government helps out private, religious school, the aid MUST be secular and aid to post-secondary schools is more likely to be upheld than aid to elementary or secondary school because there is less risk of entanglement.
132
What are "fighting words?"
Fighting words are those personally ausive epithets likely to incite immediate physical retaliation in the ordinary citizen.
133
What is the "clear and present danger" test?
Government action CAN prohibit advocacy of illegal conduct if it meets the Brandenberg v. Ohio test if:
1) the advocacy is INTENDED to produce or incite IMMINENT illegal action; and
2) the advocacy is LIKELY to produce or incite such action
*** Then it can be prohibited ***
134
What is a prior restraint?
A govermental action that prohibits speech before it takes place.
** These actions are PRESUMPTIVELY INVALID due to their vagueness or to their placing to much discretion in the hands of public officials.**
135
When can a prior restraint be valid?
Where the mere existence of the communication is proven to create some SPECIAL HARM TO SOCIETY.
136
What is commercial speech?
Speech whose primary goal is a COMMERCIAL TRANSACTION.
** REMEMBER - it can be subject to greater regulation than non-commercial speech **
137
REMEMBER: Constitutionally protected speech IS subject to reasonable time, place and manner regulations.
.
138
What does a time, place, manner regulation require to be valid?
1) Must be NEUTRAL as tot he content of the speech, bot on its face and as applied;
2) Must further a SIGNIFICANT GOV'T INTEREST not capable of accomplishment by less restrictive means; AND
3) Must allow for adequate alternative channels for communicating the information.
139
HINT: Lots of question ask about groups obtaining a permit or license - REMEMBER
Be sure to apply the three-party test and not that the ordinance must set out the grounds for DENYING a permit in NARROW and SPECIFIC language that curtails the discretion of local officials.
140
What is the Lemon v. Kurtzman test for freedom of religion?
1) the gov't action must have a SECULAR purpose;
2) the PRIMARY or PRINCIPAL effect of the action must NOT be the ADVANCEMENT of religion; and
3) the gov't action must not foster EXCESSIVE gov't entanglement.
141
REMEMBER - the government can only regulate the PRACTICE of religion, not your BELIEFS.
.
142
ESTABLISHMENT CLAUSE PROBLEM....
If the government helps out private, religious school, the aid MUST be secular and aid to post-secondary schools is more likely to be upheld than aid to elementary or secondary school because there is less risk of entanglement.
143
What are "fighting words?"
Fighting words are those personally ausive epithets likely to incite immediate physical retaliation in the ordinary citizen.
144
What is the "clear and present danger" test?
Government action CAN prohibit advocacy of illegal conduct if it meets the Brandenberg v. Ohio test if:
1) the advocacy is INTENDED to produce or incite IMMINENT illegal action; and
2) the advocacy is LIKELY to produce or incite such action
*** Then it can be prohibited ***
145
What is a prior restraint?
A govermental action that prohibits speech before it takes place.
** These actions are PRESUMPTIVELY INVALID due to their vagueness or to their placing to much discretion in the hands of public officials.**
146
When can a prior restraint be valid?
Where the mere existence of the communication is proven to create some SPECIAL HARM TO SOCIETY.
147
What is commercial speech?
Speech whose primary goal is a COMMERCIAL TRANSACTION.
** REMEMBER - it can be subject to greater regulation than non-commercial speech **
148
REMEMBER: Constitutionally protected speech IS subject to reasonable time, place and manner regulations.
.
149
What does a time, place, manner regulation require to be valid?
1) Must be NEUTRAL as tot he content of the speech, bot on its face and as applied;
2) Must further a SIGNIFICANT GOV'T INTEREST not capable of accomplishment by less restrictive means; AND
3) Must allow for adequate alternative channels for communicating the information.
150
HINT: Lots of question ask about groups obtaining a permit or license - REMEMBER
Be sure to apply the three-party test and not that the ordinance must set out the grounds for DENYING a permit in NARROW and SPECIFIC language that curtails the discretion of local officials.
151
What is the Lemon v. Kurtzman test for freedom of religion?
1) the gov't action must have a SECULAR purpose;
2) the PRIMARY or PRINCIPAL effect of the action must NOT be the ADVANCEMENT of religion; and
3) the gov't action must not foster EXCESSIVE gov't entanglement.
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REMEMBER - the government can only regulate the PRACTICE of religion, not your BELIEFS.
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ESTABLISHMENT CLAUSE PROBLEM....
If the government helps out private, religious school, the aid MUST be secular and aid to post-secondary schools is more likely to be upheld than aid to elementary or secondary school because there is less risk of entanglement.
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What are "fighting words?"
Fighting words are those personally ausive epithets likely to incite immediate physical retaliation in the ordinary citizen.
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What is the "clear and present danger" test?
Government action CAN prohibit advocacy of illegal conduct if it meets the Brandenberg v. Ohio test if:
1) the advocacy is INTENDED to produce or incite IMMINENT illegal action; and
2) the advocacy is LIKELY to produce or incite such action
*** Then it can be prohibited ***
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What is a prior restraint?
A govermental action that prohibits speech before it takes place.
** These actions are PRESUMPTIVELY INVALID due to their vagueness or to their placing to much discretion in the hands of public officials.**
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When can a prior restraint be valid?
Where the mere existence of the communication is proven to create some SPECIAL HARM TO SOCIETY.
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What is commercial speech?
Speech whose primary goal is a COMMERCIAL TRANSACTION.
** REMEMBER - it can be subject to greater regulation than non-commercial speech **
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REMEMBER: Constitutionally protected speech IS subject to reasonable time, place and manner regulations.
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What does a time, place, manner regulation require to be valid?
1) Must be NEUTRAL as tot he content of the speech, bot on its face and as applied;
2) Must further a SIGNIFICANT GOV'T INTEREST not capable of accomplishment by less restrictive means; AND
3) Must allow for adequate alternative channels for communicating the information.
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HINT: Lots of question ask about groups obtaining a permit or license - REMEMBER
Be sure to apply the three-party test and not that the ordinance must set out the grounds for DENYING a permit in NARROW and SPECIFIC language that curtails the discretion of local officials.
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What is the Lemon v. Kurtzman test for freedom of religion?
1) the gov't action must have a SECULAR purpose;
2) the PRIMARY or PRINCIPAL effect of the action must NOT be the ADVANCEMENT of religion; and
3) the gov't action must not foster EXCESSIVE gov't entanglement.
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REMEMBER - the government can only regulate the PRACTICE of religion, not your BELIEFS.
.
164
ESTABLISHMENT CLAUSE PROBLEM....
If the government helps out private, religious school, the aid MUST be secular and aid to post-secondary schools is more likely to be upheld than aid to elementary or secondary school because there is less risk of entanglement.
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What is the burden for Strict Scrutiny
Burden on government to show the regulation is NECESSARY to a COMPELLING government interest.
Applies to : Fundamental rights (Race, Alienage, National Origin)
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What is the burden for Intermediate Scrutiny
Burden on government to show the regulation is SUBSTANTIALLY related to an IMPORTANT government interest.
Example: Gender & Illegitimacy
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What is the burden for Rational Basis Scrutiny
Burdenon plaintiff to show the regulation is NOT rationally related to a LEGITIMATE government interest.
(Poverty, necessities, age, mental retardation, social and economic welfare measures).
Most under rational basis is going to be legitimate.
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What is the Casey standard?
A state may regulate abortion provided no "undue burden" is placed on a woman's right to obtain an abortion.
(PP: you have a fundamental right to an abortion - Casey changed that).
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What is the "public use" requirement?
The gov't satisfies the public use clause if it can demonstrate that the "exercise of eminent domain power is rationally related to a conceivable public purpose."
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When you are regulating WHAT Is being said, the message, what test applies?
STRICT SCRUTINY
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When you are regulating HOW, WHERE, WHEN (the method) is being said, what test applies
Unprotected Speech
1. Clear and Present Danger
2. Defamation
3. Obscenity
4. Child Pornography
5. Fighting words
6. Fraudulent commercial speech
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What are the three types of public speaking forums?
1. Public Forum - streets, sidewalks, public parks (areas generally open to public)
2. Limited Public Forum - school rooms, state owned theater (opened by state on permanent/limited basis)
3. Non Public Forum - most other public places (military bases, city bus, government workplaces, airport terminals).
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Free Exercise Methodology?
1) If there is purposeful interference apply STRICT scrutiny (think - no killing chickens case)
2) If it is an incidental burden apply rational basis test (think peyote case)
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What is Article III?
limits the jurisdiction of the federal court to "cases" and "controversies. Also allows congress the power to establish lower federal courts as Congress finds necessary.
