Constitutional Law Flashcards
(217 cards)
1
Q
What article of the Constitution covers the federal judicial power?
A
Article III
2
Q
Federal judicial power extends to cases involving:
A
(1) Interpretation of the Constitution, federal law, treaties, and admiralty and maritime laws; and
(2) Disputes between states, states and foreign citizens, and citizens of diverse citizenship
3
Q
What part of the Constitution allows the SCOTUS to review state acts?
A
Supremacy Clause
4
Q
Under Article III, federal courts have power over ______ and _______
A
Cases, Controversy
5
Q
True or False, federal judges have lifetime tenure?
A
True
6
Q
What is the only type of case in which the SCOTUS has exclusive original jurisdiction?
A
controversies between states
7
Q
What two ways can cases come to the SCOTUS?
A
(1) writ of certiorari; and
(2) appeals from three-judge panels of the federal district court
8
Q
SCOTUS has ________ discretion to hear cases that come to it by certiorari.
A
complete
9
Q
When is it appropriate for the SCOTUS to grant cert on a case coming from state courts?
A
(1) the constitutionality of a federal statute, treaty, or state statute is at issue;
(2) a state statute allegedly violates a federal law
10
Q
True or false: the constitution bars the federal courts from issuing advisory opinions?
A
True, there must be specific present harm or threat of specific future harm.
11
Q
What must a plaintiff show to satisfy a court that it would not be issuing an advisory opinion in a certain case?
A
That they have engaged in (or wish to engage in) specific conduct and that the challenged action poses a real and immediate danger to their interests.
12
Q
What factors will courts consider to determine whether a case is ripe for review?
A
(1) fitness of the issues for judicial decision;
(2) the hardship to the parties of withholding court consideration
13
Q
When will an issue not be fit for judicial decision under the ripeness doctrine?
A
When it relies on uncertain or contingent future events that may not occur as anticipated.
14
Q
What is the consequence if an issue has already been resolved before a judicial determination can be made on a matter?
A
The case will be dismissed as moot.
15
Q
What are the exceptions to the mootness doctrine?
A
(1) when the controversy is capable of repetition, but evading review; OR
(2) when a defendant who contrarily stops the offending practice but is free to resume
(3) a class representative may continue to pursue a class action after the representative’s controversy has become moot if claims of other class members are still viable
16
Q
What are the requirements a plaintiff must show to establish standing?
A
(1) injury in fact
(2) causation
(3) redressability
17
Q
What is required to have injury in fact?
A
(1) a particularized injury (one that affects the plaintiff in a personal way)
(2) a concrete injury
18
Q
Must a plaintiff have an economic injury in order to have standing?
A
No.
19
Q
Define redressability.
A
Exists when a decision in the litigant’s favor must be capable of eliminating her grievance
20
Q
May congress expressly grant standing to someone not having an “injury in fact”?
A
No, but congress can create new interests, injury to which may confer standing
21
Q
When does a plaintiff have standing to enforce a federal statute?
A
if she is within the “zone of interests” Congress meant to protect.
22
Q
True or false: generally, a plaintiff has standing to assert the claims of others to obtain standing
A
False
23
Q
When does a plaintiff have standing to assert the rights of others?
A
(1) if it is difficult for the third party to assert her own rights; OR
(2) a special relationship exists between the claimant and the third party (doctor/patient)
24
Q
When may an organization sue on behalf of its members?
A
(1) there is an injury in fact to members
(2) the injury is related to the organizations purpose; AND
(3) individual member participation in the lawsuit is not required
25
May a person claim standing because there are a citizen claiming that the government action violates federal law or constitution?
No, but a person may have standing to allege that federal action violates the tenth amendment, as long as the person has a redressable injury in fact.
26
True or false: a taxpayer has standing to litigate her own tax bill?
True
27
Does a tax payer have standing to challenge government expenditures? What are the exceptions to this rule?
No. A tax payer has standing to challenge congressional spending measures on First Amendment Establishment Clause grounds
28
What is the doctrine of independent and adequate State Grounds?
It states that the SCOTUS will not exercise jurisdiction if the state court judgment is based upon independent and adequate state law grounds, even if federal issues are involved.
29
True or false: the SCOTUS will temporarily abstain from resolving constitutional claim when the disposition rests on an unsettled question of state law.
True
30
Will a federal court enjoin pending state criminal proceedings?
No, except in cases of proved harassment or prosecution taken in bad faith
31
What types of claims are barred by the political question doctrine?
issues that are:
(1) constitutionally committed to another branch of government;
(2) inherently incapable of judicial resolution
32
What are common types of questions that federal courts will decline to hear under the political question doctrine?
(1) republican for of government" clause of Article IV
(2) challenges to congressional procedures for ratifying constitutional amendments;
(3) presidents conduct of foreign policy;
(4) partisan legislative apportionment (gerrymandering)
33
What does the Eleventh Amendment do?
prohibits federal courts from hearing a private party's or foreign governments claims against a state government.
34
What types of cases does the Eleventh Amendment apply to?
Cases in which state is named as a party or in which the state will pay retroactive damages (regardless of how the damages are categorized)
35
The Supreme Court has held that the doctrine of _______ ________ bars suits against a state government in state court, even on federal claims, unless the defendant state consents.
Sovereign Immunity
36
Are actions against local governments barred by the Eleventh Amendment?
No
37
Are actions against a state by the US or other states barred by the Eleventh Amendment?
No.
38
Are bankruptcy proceedings against a state barred by the Eleventh Amendment?
No.
39
When are actions against state officials allowed under the Eleventh Amendment?
(1) actions to enjoin an officer from future conduct that violates the Constitution or federal law;
(2) actions for damages against an officer personally
40
For what actions may Congress remove 11th Amendment immunity for the states?
actions created under the Fourteenth Amendment, where it is unmistakably clear that Congress intended to remove the immunity
41
What powers can Congress validly exercise under the Constitution?
those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government
42
Can the necessary and proper Clause, standing alone, support a federal law?
No.
43
What test will be used to judge the constitutionality of a tax?
(1) the tax must bear some reasonable relationship to revenue production, or
(2) have the power to regulate the activity taxed.
44
For what purpose may Congress use its spending power?
To provide for the common defense and general welfare. Congress may spend for any public purpose
45
What can Congress regulate under the Commerce Clause?
(1) channels of interstate commerce
(2) the instrumentalities of interstate commerce and person and things moving in interstate commerce
(3) activities that have a substantial effect on interstate commerce
46
When Congress attempts to regulate intrastate activity under the commerce clause, what standard must it meet in order to be constitutional?
(1) economic or commercial activity: the Court must be able to conceive of a rational basis on which Congress could conclude the activity in aggregate substantially affects interstate commerce.
(2) noneconomic activity: Congress must be able to show a direct substantial economic effect on interstate commerce.
47
True or False: Congress can compel activity under the Commerce Clause.
False
48
Who has the power to declare war?
Congress
49
Does Congress have a general police power?
No.
50
True or False: Congress has plenary powers over aliens?
True
51
Are resident aliens entitled to notice and hearing before being deported?
Yes
52
May the Legislature delegate legislative power to the other breaches of government?
Yes, as long as intelligible standards are set and the power is not uniquely confined to Congress. (however, no law has been struck down under this standard since 1936)
53
What is a legislative veto? are they constitutional?
It is an attempt by congress to overturn an executive agency action without bicameralism (house and senate approval) or presentment (to the president).
No, it is not constitutional
54
When may Congress vest the appointment power in someone other than the President?
when it is for the appointment of an inferior office
55
Can the President's pardon power be limited by congress?
No.
56
What portion of the house and senate must vote to overturn a presidential veto?
2/3
57
What is a line item veto? Is it constitutional?
A line item veto is an attempt by the president to veto discrete sections of a bill and approve others.
No, it is not constitutional
58
When are the president's powers at their highest and likely to be valid?
When she is acting with the express authority of Congress
59
When are the president's powers at their lowest and likely to be invalid?
When she is acting against the express will of Congress
60
What is the authority of the president when he acts where congress has been silent?
his action will be upheld unless it users the power of another govnmental branch or prevents another branch or prevents another branch from carrying out its tasks
61
Does the president have the power to declare war?
No
62
Are state laws that conflict with valid treaties are invalid?
Yes
63
Which prevails when a treaty conflicts with federal law?
The one enacted last in time
64
Which prevails when a treaty conflicts with the Constitution?
The Constitution
65
Do executive agreements need the consent of the Senate to be valid?
No
66
What prevails between a conflicting state law and executive agreement?
executive agreement
67
What prevails between a conflicting federal law and executive agreement?
the federal law
68
When does the executive privilege apply?
applies to keep certain communications secret. National Security is given the greater deference
69
When does the exception to the executive privilege apply?
Applies in criminal cases where presidential communications will be available to the prosecution where a need for such info is demonstrated.
70
What is executive immunity?
Absolute immunity from suit for any actions arising DURING presidency
71
Who is subject to impeachment?
All civil officers of the US
72
What is the process for impeachment?
(1) 1/2 vote of impeachment in the house
| (2) 2/3 vote of conviction in the senate
73
Because of the ________ Clause, a federal law may supersede or preempt local laws
Supremacy
74
What are the two general types of preemption?
express and implied
75
What are the three types of implied preemptions?
(1) conflict/impossibility
(2) obstacle
(3) field
76
True or false: in all preemption cases, the courts will start with the presumption that the historic police powers of the state are not preempted unless it was the clear and manifest purpose of Congress
True
77
May the US sue a state without its consent?
Yes
78
May states sue the US without its consent?
No, Unless the US has waived its immunity for the particular suit.
79
May a state sue another state without its consent?
Yes
80
When may Congress regulate the conduct of a state?
(1) congress may restrict state activities that violate civil liberties
(2) congress may regulate the states through its spending power (ice, conditions imposed on receipt of federal funds)
81
When may congress regulate the states through its spending power?
(1) when the conditions are clearly stated
(2) the conditions relate the purpose of the program; AND
(3) are not unduly coercive
82
May a state tax the federal government?
No, not without the US's consent
83
What does the Article IV Privileges and Immunities Clause prohibit?
discrimination by a state against nonresidents regarding fundamental rights
84
Are corporations protected by the Article IV Privileges and Immunities Clause?
No
85
What fundamental rights are protected by the Article IV Privileges and Immunities Clause?
rights relating to important commercial activities (pursuit of livelihood) or civil liberties.
86
When will a state law discriminating against nonresidents be valid under the Article IV Privileges and Immunities Clause? What must the state prove under this standard?
when there is substantial justification for the different treatment.
The state must show that the nonresidents are the cause or part of the problem the state is attempting to solve and there are no less restrictive means of achieving the state's goal
87
What is prohibited by the Fourteenth Amendment Privileges or Immunities Clause?
denial of the privileges and immunities of national citizenship. (primarily the right to travel, including the right to earn a livelihood)
88
Which branch of government has the power to regulate foreign commerce?
Congress
89
Under what circumstances may a state or local government regulate aspects of interstate commerce ?
When congress has not enacted a law regarding the subject.
If the state or local government chooses to regulate, it must not discriminate against or unduly during interstate commerce. If it does, it violates the commerce clause
90
If a state enacts regulations that discriminate against interstate commerce to protect local economic interests, those regulations are almost always _____
invalid
91
When may a discriminatory state or local law be valid under the dormant commerce clause?
(1) it if furthers an important noneconomic state interest and there are no reasonable nondiscriminatory alternatives
(2) the state is acting as a market participant
(3) the regulation is a favoring governing performing traditional government functions.
92
What test is applied to nondiscriminatory state laws under the dormant commerce clause?
a nondiscriminatory state law will be held valid unless the burden outweighs the promotion of legitimate local interest. The court will consider whether there are less restrictive alternatives available
93
The majority of the Bill of Rights is incorporated against the states through what federal law?
The due process clause of the Fourteenth Amendment
94
What parts of the Bill of Rights is NOT incorporated against the states?
(1) Third Amendment
(2) Fifth Amendment prohibition of criminal trials without a grand jury indictment
(3) Seventh Amendment's right to a jury trial in civli cases
95
True or false, the Thirteenth Amendment can only control governmental conduct.
False it controls both governmental conduct and private conduct
96
Congress may prohibit _____ racial discrimination under the commerce power if the activity has substantial effect on interstate commerce.
private
97
What is the first consideration when analyzing any potential constitutional violation?
Determine whether there was state action
98
In what areas will state action be found when the actor is seemingly a private one?
(1) private individuals performing exclusive public functions; OR
(2) have significant state involvement
99
If a state is attempting to enact a law that retroactively impairs a private contract right, what level of scrutiny will be used to review? What about a government right?
(1) Intermediate scrutiny
| (2) Intermediate scrutiny+
100
What is the basic principle underlying Procedural Due Process?
A fair process is required for a government agency to individually take a person's life liberty of property.
101
Will negligent deprivation of a person's life liberty of property trigger a procedural due process violation?
No, only intentional acts
102
What is a liberty for purposes of the due process clause??
freedom from bodily restraints; the right to contract and engage in gainful employment.
103
When will a court find that a deprivation of liberty has occurred?
when a person:
(1) loses a significant freedom of action; OR
(2) is denied a freedom provided by the Constitution or Statute
104
What is "property" for purposes of the due process clause?
personal belongings and realty; legitimate claim or entitlement to the benefit under state or federal law
105
What are examples of "property" interests for purposes of the due process clause?
(1) continued attendance at public schools
(2) welfare benefits
(3) some cases of government employment
106
What is the balancing test required to satisfy procedural due process?
(1) the importance of the interest to the individual
(2) the value of specific procedural safeguards to that interest
(3) the government interest in fiscal and administrative efficiency
107
What two things are always required for procedural due process?
fair procedures and an unbiased decisionmaker
108
What two things are usually required for procedural due process?
notice and a chance to respond before termination of the liberty or property interest
109
Can an individual waive her procedural due process rights?
Yes if the waiver is knowing and voluntary
110
May an equal protect claim be brought for arbitrary treatment against an individual, i.e. a class of one?
Yes.
111
What is the test for strict scrutiny?
In order to be upheld a government must be necessary to achieve a compelling government purpose. (sometimes characterized as narrowly tailored to achieve an overriding governmental purpose)
112
When is strict scrutiny applied?
(1) When a fundamental right is infringed (interstate travel, privacy, voting, and First Amendment rights);
(2) regulations involving suspect classifications (race, national origin, and alienage)
113
must a regulation subject to strict scrutiny have no less restrictive means available to achieve the government objective?
Yes.
114
Who bears the burden of proof when a government regulation is subject to strict scrutiny?
the government
115
When is intermediate scrutiny applied?
Most importantly:
(1) when regulations involve a quasi suspect classification (gender and legitimacy).
(2) regulation of commercial speech
116
What is the test for intermediate scrutiny?
the law is upheld if it is substantially related to an important government purpose
117
Who bears the burden of proof when a government regulation is subject to intermediate scrutiny?
probably the government
118
What is the rational basis test?
The law is upheld if its rationally related to a legitimate government purpose
119
When will a law be struct down under rational basis?
when ti is arbitrary or irrational
120
Who bears the burden of proof when a government regulation is subject to rational basis?
the challenger
121
Who does the due process clause of the fifth amendment apply to? The Fourteenth?
Fifth: federal government
Fourteenth: state government
122
When does strict scrutiny apply in a substantive due process analysis?
when a fundamental right is implicated
123
What standard applies to in a substantive due process analysis that does not implicate a fundamental right?
rational basis
124
Is federal government action subject to equal protection review?
Yes, through the fifth amendment due process clause
125
When is strict scrutiny applied in an equal protection analysis?
When a suspect classification is being discriminated against or when a fundamental right is involved.
126
When is intermediate scrutiny applied in an equal protection analysis?
When a quasi suspect classification is being discriminated against
127
When does rational basis review apply in an equal protection analysis?
Whenever the discrimination does not implicate a fundamental right or a suspect or quasi suspect class
128
Must there be discriminatory intent on the part of the government to sustain an equal protection challenge?
Yes
129
How is discriminatory intent shown in an equal protection analysis?
(1) law is discriminatory on its face
(2) a discriminatory application of a facially neutral law; OR
(3) there is a discriminatory motive behind the law
130
Is demonstration of a discriminatory effect enough to prove discriminatory motive?
No, you must show discriminatory motive
131
What are the suspect classifications?
race, national origin, and alienage
132
Does the government have a compelling interest in remedying past racial discrimination sufficient to satisfy strict scrutiny?
Yes, as long as the past discrimination was persistent and readily identifiable (cannot be generalized)
133
Does the government have a compelling interest in affirmative action if there was not past discrimination?
Yes, as long as the action is narrowly tailored to that interest
134
When can race be used in drawing up new voting districts?
When it is not the predominate factor
135
Are federal alienage classifications subject to strict scrutiny?
No.
136
Are state laws on alienage subject to strict scrutiny?
Yes
137
It is unconstitutional for a state to require United States citizenship for welfare benefits, civil service jobs, or to become a lawyer?
Yes
138
May a state law discriminate against alien participation in state government?
Yes, as long as it is rationally related to a legitimate state interest
139
Are undocumented aliens a suspect class?
No
140
What classification applies to gender
quasi suspect
141
What test is used to determine if a law discriminating against a quasi suspect class?
Intermediate scrutiny: the law must be substantially related to an important government interest
142
Are laws that attempt to remedy past discrimination against women valid under equal protection?
Yes
143
What is the government's burden when a quasi suspect class is involved in an equal protection analysis?
The government must show an exceedingly persuasive justification for the discrimination
144
What are examples of non suspect classifications, which will be reviewed for their rational basis?
age, disability, wealth
145
What are the fundamental rights under the Fourteenth Amendment?
right to interstate travel; voting; privacy; and First Amendment.
146
If a fundamental right is denied to everyone, what is the most appropriate constitutional challenge? At what standard?
Substantive due process; strict scrutiny
147
If a fundamanetal right is denied only to some individuals, what is the most appropriate constitutional challenge? At what standard?
Equal Protection; strict scrutiny
148
What categories are considered a part of the fundamental right to privacy?
CAMPPERS
```
Contraceptives
Abortion
Marriage
Procreation
Parental Rights
Extended Family (keeping together)
Reading Material (obscene)
Sexual Conduct
```
149
Under what scenario will the government be allowed to burden the right to marriage?
Where they are restricting the rights of inmates to marry, where the restriction is reasonably related to legitimate penological interests
150
What standard must a state prove to place a restriction on the right to get an abortion?
Pre-viability: before a fetus is viable (meaning that the fetus has a realistic chance of surviving outside of the womb) a state may adopt a regulation protecting the mother’s health and the life of the fetus if the regulation does not place an undue burden or substantial obstacle to the woman’s right to obtain an abortion.
Post Viability: once a fetus is viable, the state has a compelling interest in protecting the life of the fetus which can over ride the woman’s right to obtain an abortion, but the state cannot prohibit an abortion where necessary to protect the woman’s health or safety.
151
True or False: a court will attempt to fashion narrower decalroty and injunctive Relief against application of a statute that unconstitutionally infringes on a woman’s right to get an abortion.
True
152
Does the government have an obligation to pay for an abortion?
No
153
Does the right to read obscene material include the right to sell, purchase, or transport such material?
No
154
Do zoning regualtions that keep extended families from living together violate substantive due process?
Yes, but this right does NOT to extend to unrelated people
155
Does the right to engage in consensual sexual conduct apply to all sex between consenting adults?
No, it applies to private intimate sexual conduct that is not commercial in nature
156
What basis may the government limit the voting rights of citizens without being subject to strict scrutiny?
Residence (for a reasonable time i.e. 30 days), age, and citizenship.
157
May the government ever condition voting rights on the ownership of property?
Generally no. They may only in certain special purpose elections (water storage districts)
158
May a state constitutionally bar a political party from opening their primary election to anyone?
No
159
When does the “one person, one vote” principle apply?
Whenever any level of government, state or local, decides to select representatives to a governing body by popular elections from individual districts
160
True or false: states must use almost exact mathematical equality when creating districts, but Congress does not.
True
161
May states constitutionally charge candidates a fee which would make it impossible for an indigent to run for office?
No
162
Define the fundamental right engage in interstate travel.
An individual has a fundamental right to migrate from state to state and to be treated equally after moving into a new state.
163
What is the main problem that arises under the fundamental right to travel?
A problem arises when a state imposes a minimum durational residency requirement for receiving its benefits; or otherwise dispenses state benefits based on the length of time a person has resided in the state.
164
Is the right to international travel a fundamental right?
No, the rational basis test applies
165
What rights are contained within the First Amendment?
(1) prohibition on the establishment of a national religion;
(2) free exercise of religion
(3) freedom of speech
(4) freedom of the press
(5) freedom of assembly
166
Does the First Amendment restrict the government from expressing its views?
Generally no, as long as rational basis is satisfied
167
True or False: the free speech clause restriction government regulation of private speech.
True
168
What level of scrutiny applies to a city’s placement of a permanent monument in a public park?
Rational basis because it is government speech.
169
What are the two main categories of speech and assembly regulations
(1) content (regulations forbidding communication of specific ideas); and
(2) conduct (regulations of the conduct associated with speech such as time place and manner)
170
What level of scrutiny is applicable to content based restrictions on speech
Strict scrutiny, unless the speech falls within a lesser-protected or non protected category
171
What level of scrutiny is applicable to content-neutral restrictions on speech?
Intermediate scrutiny, meaning they must advance important interest unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests
172
When will a speech regulation be found unconstitutionally overbroad?
When it punishes a substantial amount of protected speech in relation to its plainly legitimate sweep.
173
When will a speech regulation be found unconstitutionally vague?
when a reasonable person cannot tell what speech is prohibited and what is allowed
174
True or false: laws prohibiting fighting words are regularly found to be unconstitutional
True. Though fighting words are not constitutionally protected under Chaplinsky, convictions under fighting-words statutes are regularly overturned as unconstitutionally overboard and vague
175
What is the test to be applied when the government seeks to regulate symbolic speech?
The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.
176
What are examples of constitutionally symbolic speech?
(1) flag burning
(2) cross burning done without the intent to threaten
(3) campaign contributions
177
Is anonymous speech protected under the First Amendment?
Yes, the First Amendment protects the right not to speak as well as the right to free speech
178
What categories of speech are not protected under the First Amendment?
(1) Incitement of Illegal Activity
(2) Obscenity and Sexually-Oriented Speech
(3) Fighting words
179
What is the test to determine whether speech can be punished as incitement?
(1) a substantial likelihood of imminent illegal activity; AND
(2) the speech is directed to causing imminent illegality
180
What is the test for obscenity?
(1) material must appeal to the prurient interest (shameful or morbid interest in sex) (measured by a community standard);
(2) the material must b patently offensive under the law prohibiting obscenity (measured by a community standard)
(3) taken as a whole, the material must lack serious artistic literary, political or scientific value (measured by a national standard)
181
May the government use zoning regulations to regulate the location of adult bookstores and movie theaters?
Yes
182
True or False: child pornography can be completely banned even if it is not obscene.
True
183
True or False: private possession of child pornography can be constitutionally prohibited
True
184
May the government seize the assets of a business convicted of violating obscenity laws?
Yes, the government may also destroy those assets
185
Profane speech is generally protected under the First Amendment except in what specific places?
(1) over the broadcast media
| (2) in schools
186
What types of commercial speech are not protected at all by the First Amendment?
(1) illegal activity
| (2) false and deceptive ads
187
What categories of commercial speech are considered to "inherently risk deception"? Can this categories be prohibited by a state?
(1) where professionals advertise or practice under a trade name;
(2) attorney in-person solicitation of clients for profit
Yes, these may be wholly banned.
188
What test is applied to true commercial speech that does not inherently risk deception?
Intermediate scrutiny: substantially related to an important government interest; means must be narrowly tailored to serve that interest.
189
What is a public forum? What are some examples?
Public property that has historically been open to speech-related activities;
Streets, sidewalks, public parks, and the Internet
190
What is a designated public forum?
Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis by practice or policies.
191
What elements does a valid time, place, and manner restriction for public forums or designated public forums have?
(1) content neutral
(2) narrowly tailored to serve an important government interest
(3) leave open alternate channels of communication
192
Must a time, place, manner restriction for speech in a public or designated public forum be the least restrictive means for accomplishing the government interest?
No, it must only be narrowly tailored
193
True or False: almost every legitimate governmental interest satisfied the significant/ important standard.
True
194
What standard must an content neutral injunction meet in order to be constitutionally valid?
it must burden no more speech than is necessary to achieve an important government interest
195
What is a limited public forum? What is an example?
government property not historically linked with speech and assembly but opened for specific speech activity.
School auditorium opened for a specific political debate
196
What is a non-public forum? What are some examples?
government property not historically linked with speech and assembly and not held open for speech activities.
military bases; schools while is session; government workplaces
197
What are the elements for a valid time, place, and manner restriction for limited public forums or non-public forums?
The government can regulate speech as long as the regulation:
(1) viewpoint neutral
(2) reasonably related to a legitimate government purpose
198
In a defamation action, what two additionally elements must a plaintiff prove if they are (1) a public official, (2) public figure, or (3) the matter involves a public concern
(1) falsity
| (2) some degree of fault
199
True or false: Actions based on IIED are not subject to the same constitutional requirements as defamation actions.
False, they are subject to the same requirements
200
What must the government show if it wishes to put a prior restraint on speech?
it must show some special societal harm will otherwise result
201
What procedural requirements must a valid prior restraint on speech have?
(1) standards must be narrowly drawn, reasonable, and definite;
(2) Injunction must be promptly sought; AND
(3) There must be prompt and final determination of the validity of the restraint
202
True or False: the press has greater freedoms than private citizens under the constitution because they are specially named apart from free speech.
False, in general the press has no greater freedom than private citizens.
203
Does the First Amendment guarantee the right of the public and press to attend criminal trials?
Generally, yes.
204
May the press be compelled to testify at grand jury proceedings?
Yes
205
Does the First Amendment give journalists the right to inspect prison grounds or interview specific prisoners?
No.
206
Is the freedom of association explicitly mentioned in the Constitution?
No
207
What does the freedom of assembly protect against?
(1) government prohibition of politically unpopular groups; AND
(2) undue burden on a person's right to join such groups
208
What standard does a regulation of the right to associate need to meet in order to be constitutionally valid?
it must be justified by a:
(1) compelling government interest
(2) unrelated to the suppression of ideas; AND
(3) infringements are the least restrictive means of protecting the government interest.
209
A regulation on campaign contributions must satisfy what standard?
intermediate scrutiny: it must be closely drawn to match a sufficiently important interests
210
True or false: the government may require employees to take loyalty oaths.
True, as long as the oaths are not overbroad or unconstitutionally vague
211
What does the Free Exercise Clause protect against?
the government from punishing someone on the basis of her religious beliefs
212
Must religious beliefs come from an organized religion or involve a supreme being?
No
213
Has the SCOTUS ever found an interest so compelling that it justifies a denial of government benefits or impose a burden on someone based on their religious beliefs?
No.
214
The Free Exercise Clause cannot be used to challenge government regulation unless the regulation was _____ ______ to interfere with religion
specifically designed
215
Does the Free Exercise Clause require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct?
No
216
Under the Establishment Clause, a regulation will be invalid unless the action:
LEMON TEST
(1) has secular purpose
(2) has primary effect that neither advances nor inhibits religion; AND
(3) does not produce excessive government entanglement with religion
217
What is the primary test under the Establishment Clause?
Lemon Test.
