deck_5254957 Flashcards
(32 cards)
A statute regulating speech based on content must be:
necessary to serve a compelling state interest (strict scrutiny)
A time, place, and manner regulation of a limited public forum must be:
- viewpoint neutral - rationally related to a legitimate government interest
A regulation that is overbroad, but does NOT prohibit a SUBSTANTIAL amount of protected speech - may it be enforced?
Regulation will be enforced against people whose speech is not protected, but will not be enforced against people engaged in protected speech
A regulation that is overbroad and prohibits a substantial amount of protected speech when judged in relation to its plainly legitimate sweep - may it be enforced?
No - it is facially invalid and cannot be enforced against anyone.
Can the government regulate commercial speech?
Yes - but only if the regulation serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest.
When can speech be sanctioned under the clear and present danger test?
When speech is directed to produce or incite IMMINENT lawless action and is likely to produce such action
Deprivation of liberty
A person has been deprived of liberty if she (i) loses significant freedom of action; or (ii) is denied a freedom provided by the Constitution or a statute.
Factors the court will consider in determining the procedures required for proper due process:
i) Importance of the individual interest ii) value of specific safeguards to that interestiii) government’s interest in efficiency
When a government action based on gender classifications is challenged, what standard applies?
Intermediate scrutiny - classification (the law/action) will be upheld if govt can prove that it is substantially related to an important government interest Ex. classifications benefiting women designed to remedy past discrimination will generally be upheld because remedying past gender discrimination is an important govt interest
For a plaintiff to have standing to bring case in federal court requires:
Injury in fact - specific injury, cannot be theoreticalCausation Redressibility - that a favorable ruling will eliminate the harm to plaintiff
What is the scope of Congress’s spending power?
Congress may spend to achieve any public purpose that does not violate the Constitution Congress can use spending measures to impose requirements by attaching strings to federal money, and regulate activity it cannot otherwise regulate - (e.g., require the recipient to act in a certain way)
What is the scope of Congress’s commerce power?
- all transportation that constitutes interstate commerce - any transmissions across state lines - electricity, gas, TV, phone, radio, mail, internet - any activity (local or interstate) that has a substantial effect on interstate commerce
Youngstown framework regarding President’s power:
(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 government 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.
Requirements for executive agreements -
- must not conflict with existing federal statutes, treaties, or Constitution - do NOT require advice & consent of the senate - MAY conflict with state law, and state law becomes unenforceable
Is government action valid under the Establishment Clause?
Government action is valid if: - Action has a secular purpose - Primary effect does not inhibit or advance religion - Action does not produce excessive entanglement with religion
The Free Exercise Clause prohibits…
The government from punishing conduct just because it is religious. The intent of a law cannot be to interfere with religion Religiously neutral laws of general applicability are valid even without religious exemptions
Market Participant Exception
An exception to the Dormant Commerce Clause – If the state itself is a market participant, it is allowed to favor its own citizens (NOT restricted by the Dormant Commerce Clause) Ex. paying residents more for something than it would pay a nonresidentNo market participant exception to the Privileges and Immunities Clause
What constitutes a taking under the Fifth Amendment?
Physical appropriation, destruction, physical invasionEx. govt regulation that authorizes permanent use of private property by the general public **Mere decrease in value of the property does NOT constitute a taking
When is strict scrutiny triggered for a government action that has a race classification?
There must be both -discriminatory effect AND-intent to discriminate - can be shown by:i) facial discrimination (racial classification appears in the law itself) ii) law was applied in discriminatory manner; or iii) law was enacted with a discriminatory motive If discriminatory effect and discriminatory intent are shown, then discriminatory classification will be upheld only if it is necessary to serve a compelling govt interest (strict scrutiny)If law does NOT discriminate, then challenger has difficult burden of proof to show that statute is not rationally related to a legitimate state interest
If Congress has expressly appropriated funds in a bill, can President decline to spend these funds?
No - President cannot “impound” (refuse to spend) funds that Congress has expressly mandated in an appropriations provision of a bill
When will SCOTUS hear a case from state court?
Only if the state court judgment turned on federal grounds - if the decision would rest on an adequate and independent state ground even if the federal issue were resolved, then SCOTUS will not hear it
Regulations of political speech are upheld if:
government can prove that they are necessary to achieve a compelling government interest
Free Exercise Clause prohibits:
government from punishing conduct just because it is religious
If a government action has a preference for some religious sects over others, will it be upheld?
Only if regulation is narrowly tailored to promote a compelling government interest.
