Glossary of ConLaw 2
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- What are the requirements of standing?
- Injury in fact: has been or imminently will be injured.
Causation: D caused the injury
Redressability: court can remedy it. No advisory opinions on SC
- For the injury req of standing: Ps can only assert injuries that ____.
- They personally have suffered.
- Ps seeking dec or inj relief must show _____ to have an injury in fact for standing.
- liklihood of future harm.
- What are the exceptions to the rule that Ps cannot assert the claims of others? (3rd party standing)
- 1. a close relationship (doc/patient)
2. injured party is unlikely or unable to assert their own claim. (crim Ds to raise rights of prospective jurors
3. An org can sue for the rights of its members (see reqs)
- What must an organization have for 3rd party standing?
- 1. members themselves would have standing to sue.
2. intersts protecting are germane to the orgs purpose.
3. neither the claim nor relief requires participation of members.
- What are the classic egs of the no generalized grievances rule?
- Citizens and taxpayers. P cant sue to make the gov follow the law.
EXCEPTION: the Establishment Clause.
- What is the exception to generalized greivances ban in standing issues?
- The Establishment Clause issues.
Remember: money v. property. they CANNOT challenge property grants by the goverment.
- Whats ripeness?
- Whether a federal court can grant pre-enforcement review.
Is there really a case of controversy?
- What will a court look at in ripeness issue?
- 1. Will a hardship occur w/o preenforcement review?(greater hardship...greater liklihood of review.
2. The fitness of the issues and record for judicial review. (could the court gain by waiting?)
- What should you think when you see an exam Q with a Dec action?
- 1. Ripeness: Liklihood of future harm for injury.
- Whats mootness?
- When events after the filing end the Ps injury.
- What are the 3 exceptions to the mootness requirement?
- 1. wrong capable of repetition but evading review. (preggers)
2. voluntary cessation but free to resume the offense
3. class action suits: as long as one member has an ongoing injury.
- What are the four areas involving the political question doctrine?
- 1. the republican form of gov clause. 2. challenges to the prez's conduct of foreign activity 3. impeachment and removal process challenges. 4. partisan gerrymandering challenges
- Republican form of goverment and political question...qustion may involve a _____
- Form of an election. (but remember one person one vote, EP)
- What are the 4 ways a case comes to the SC?
- 1. Writ of Certiorari
2. US appeals Courts
3. Appeal of a 3 judge federal Dist Court
4. Suits b/w state goverments
- What can't there be for the SC to review a case?
- An independent and adequate state court grounds for the decision. (review won't change result. No advisory opinions.)
- Federal courts and state courts may not hear suits against _______.
- State governments.
- The Eleventh Amendment is about ________.
- State sovereign immunity.
- Sovereign immunity bars suits against states in state courts and __________.
- Federal Agencies. Alden v. Maine.
- When MAY states be sued? (Exception to 11th and sovereign immunity?)
- 1. When a state waives Sov Imm. 2. Under laws adopted pursuant to Sec 5 of the 14th Amendment. (title vii, not adea)
3. The feds may sue stats govs.
- The police power of Congress may be used in what 4 situation?
- 1. military 2. indian territory 3. Federal Lands and territories 4. Distric of Columbia (MILD)
- The necessary and proper clause says that Congress may _____.
- Choose any means to carry out its authority that is not prohibited by the Constitution.
- Congress may tax and spend for the ___________.
- General welfare.
- "General welfare" is an exam answer only when Congress is ___________.
- Taxing and spending or for the MILD police powers.
- Under the commerce power, and interstate commerce, Congress may regulate the _______, _______, and _________.
- channels, instrumentalities and economice activity that has a SUBSTANTIAL EFFECT on interstate commerce.
- When may a substantial effect on interstate commerce, for Commerce clause legislative power, be based on the cumulative impact of the activity?
- When the activity is economic in nature. When non-economic...NO. Remember, even Farming for home consumption...cumulative impact.
- The Tenth Amendment states that_________.
- all powers not granted to the United States are reserved to the States.
- Can Congress compel states to create regulatory or legislative action?
- NO.... but it may condition grants to states if the condition is EXPRESSLY STATED and RELATES to the PURPOSE of the SPENDING PROGRAM.
- What may Congress do to compel states?
- 1. prohibit harmful commercial activity by state governments.
- Congress, under Sec 5 of the 14th, may not do what?
- create new rights or expand the scope of rights. Congress may only prevent or remedy violations or rights recognixed by the courts.
- When Congress acts under Sec 5, 14th Amendment, what is the requirement of the laws it passes?
- They must be "proportionate and congruent" to remedying the constitutional violation.
- May Congress delegate its legislative power?
- YES. There is not limit on its ability to delegate its own power.
- Legislative veto and line item vetoes are __________.
- unconstitutional. The leg must both present and use bicameralism. The president must sign the bill in its entirety or reject it in its entirety.
- May Congress delegate executive power to itself?
- What two things have to happen to make a treaty?
- 1. negotiated by the president
2. ratified by THE SENATE.
- What other laws do treaties control?
- 1. state laws
2. federal laws enacted BEFORE the treaty.
BUT not the CONSTITUTION.
- What is an executive agreement?
- One between US and another foreign country effective when signed by the president and the head of the foreign state.
- What laws do executive agreements trump?
- 1. Conflicting state laws.
NEVER federal statutes or Constitution. They are not ratified by the Senate.
- The president as Commander in Chief may has ______ powers to use American troops in foreign countries.
- BROAD. Very broad.
- The president may appoint who?
- 1. Ambassadors
2. federal judges
3. officers of the US
- What is the contract clause?
- Article 1, Section 10 prohibits any state law "impairing the obligation of Contract."
- Principles that have emerged from the Contact Clause:
- 1) A state may NOT pass a law to undo its own contracts!!
- A law that INDIRECTLY impacts contracts does not:
- Invoke the contract clause problem. Eg: you sign a contract to buy property to build a them park, then the legislature passes a law saying no more them parks- the contract clause problem is not invoked because this would be an indirect effect on contracts.
- A state CANNOT willy-nilly change contractual terms unless:
- The law is NECESSARY TO SOLVE A BROAD ECONOMIC OR SOCIAL PROBLEM (eg: during the Depression).
- Takings and Impairments of Property Values:
- Both the feds and the states cannot take private property without JUST COMPENSATION.
- What are the questions to ask if you have an issue of taking or impairment of property values?
- 1) Was there a taking? (If law merely regulates land use & does not effect a taking = no compensation due.
- What is a TAKING?
- A physical occupation of property eg: govt. bulldozer comes through to build a property. The denial of all rights or use of land will also constitute a taking.
- Other regulations can impair VALUE of property and constitute a:
- Taking. Zoning ordinances ARE NOT usually considered a taking.
- Congress can appoint ________.
- inferior officers. It may vest the appointment of them in the president. The presidents appoint only heads of departments and cabinet officers.
- TESTED: May congress give itself the appointment powers?
- NO. Congress may not take away executive powers.
- Whom may the president fire?
- Any executive branch officer.
- What are the requirements for Congress to limit removal by president?
- 1. it must be an office where independence from the president is desirable and Congress CANNOT prohibit removal, it cona limit removal to where there is good cause.
- Who can be impeached and why?
- President, vice, federal judges and all officers of the US...for treason, bribery, or for high crimes and misdemeanors.
- Who convicts once impeachment happens?
- The Senate by 2/3 majority. (House impeaches by a simple majority vote.)
- The President is immune from _______.
- Civil suits for money damages for actions taken while he/she was in office. (not before office)
- The President has executive privilege for _________.
- Presidential papers and conversations. EXCEPTION: the privilege yields to other important government interests. Like an overriding need for information (criminal trial)
- The President may pardon for _________.
- FEDERAL CRIMES. not civil, not state.
- What are the kinds of preemption?
- 1. Express (field preemption)
2. Implied (when state and federal laws are mutually exclusive, federal law preempts)
REMEMBER: states may set environmental standards HIGHER than Federal law UNLESS Congress prohibits it.
- If a state law impedes the achievement of a Federal objective then the state law is ________.
- preempted. (implied)
- If congress evidences a clear intent to preempt state law ________.
- Federal law wins out by implied preemption.
- Can states tax or regulate federal activity?
- NO. The power to tax is the power to destroy. McCullough v. MD. This is only when it is a "significan burden" on Federal Activity.
- What is the dormant commerce clause?
- State and local laws are unconstitutional if they "place an undue burden on interstate commerce." (not in Constitution, SC)
- The privilege and immunities clause of Art IV applies to _________.
- states depriving citizens of other states the privs and immunities of its own citizens. (anti-discrimination)
- The privileges or immunities clause of the 14th Amendment applies to what?
- THE RIGHT TO TRAVEL. Its always the wrong answer unless this right is involved. It involves citizenship.
- When you see Dormant Commerce Clause or P&I clause of Art IV, what should you think?
- think a state law discriminates against out of staters what should you think? If it blatantly discriminates against out-of-staters, it violates the Dormant Commmerce Clause.
- If a law does not discriminate, what does not apply?
- The Privileges and Immunities Clause of Article IV.
- If a law does not discriminate but appears to burden interstate commerce, what should you apply and what is the TEST?
- The Dormant Commerce Clause.
Whether the burdens exceed the benefits. If there is a burden w/o benefit...DCC applies.
- If the law DOES discriminate but appears to burden interstate commerce, what should you apply and what is the TEST?
- Apply the DCC...
The law must be necessary to achieve an important government purpose.
1. Congressional approval
2. The market participant exception.
- What is the market-participant exception?
- It is an exception to the DCC for laws which discriminate and burden interstate commerce. A state may prefer its own citizens in receiving benefits from government programs or in dealing w/ government owned businesses.
- What are some examples of the DCC market-participant exception?
- 1. UCLA charges less tuition for in-staters. (benefit from a gov program)
2. SD owns a cement factory and charges its citizens less for cement.
- If a law discriminates against out-of-staters, what should you ask?
- Does the law regard the out-of-staters ability to earn a livelihood? If so it violates the PRIVILEGES AND IMMUNITIES CLAUSE of Art IV...unless it is necessary to achieve an important government interest.
- When a law intereferes with an out of staters ability to earn a living, and violates the P&I Clause of Art IV, what requirement should you remember?
- 1. It must discriminate against out-of-staters.
2. that discrimination must be with regard to civil liberties OR important economic activity
3. Corporation and aliens DO NOT get the P&I Art IV protection!
4. it must be necessary to achieve an important government purpose.
- May states use their tax systems to benefit in-state businesses?
- What activities may a state tax?
- Those with a substantial nexus to the state. The taxation must also be fairly apportioned.
- In order to get full faith and credit in another state, there must be ______,________,_________.
- the court had jurisdiction over the parties and subject matter, the judgment was on the merits, and final.
- Must private conduct comply w/ the Constitution?
- NO. But govenrment action AT ALL LEVELS must. (state and local)
- Who may apply constitutional standards to private conduct?
Thirteenth Amendment was used by Congress to prohibit private race discrimination. The discrim does NOT violate the 13th itself...ONLY slavery does that.
- Constitutional norms are applied to private conduct most often through ________________.
- The Commerce Clause. (Don't discriminate against blacks at your restaurant.)
- What can Congress NEVER use to regulate PRIVATE behavior?
- Section 5 of the Fourteenth Amendment. This can be used ONLY against the states.
- What are the two exceptions where private conduct MUST comply with the Constitution?
- 1. The public function exception. If the private entity is performin a task taraditionally, exclusively performed by the gov. (company town; running an election)
2. The entanglement exception.
- When would the governement be authorizing or encouraging or facilitating unconstitutional activity in order to trigger the entanglement exception to the Constitution application to gov action only?
- 1. Courts can't enforce racially restrictive covenants.
2. When the gov leases property to a restaurant that discriminates.
3. providing free books to racially discriminatory schools.
4. when a private entity regulates interscholastic sports IN a state. (NOT the NCAA, though.)
- When a private club w/ a liquour license from a state racially discriminates, is that entanglement?
- When a private school that is over 99% funded by the goverment fires a teacher for her speech, is that entanglement?
- The Bill of Rights applies "directly" only to _______.
- the Federal Government. It is applied to state and local government by incorporation into the Due Process Clause fo the 14th. SEE EXCEPTIONS.
- What Bills of Rights are not incorporated into the 14th Due Process Clause?
- 1. the Third--soldiers quartered
2. the 5th as to Grand jury indictments in criminal cases.
3. The 7th as to jury trial in civil cases.
4. the 8th as to excessive fines.
- Recite the rational basis test:
- The action must be "rationally related to a legitimate government purpose." There must only be a CONCEIVABLE purpose...not THE purpose.
- Who has the burden of prood in the rational basis test?
- The CHALLENGER.
- Recite the intermediate scrutiny standard:
- The action must be "substantially related to an important goverment purpose." The purpose must be the ACTUAL purpose...the action must be a GOOD way of solving the problem...not the best. GOV burden of proof.
- Recite the strict scrutiny standard:
- The action must be "necessary to achieve and COMPELLING goverment interest." Court looks at the ACTUAL purpose. There may be NO LESS RESTRICTIVE ALTERNATIVE. Gov has burden. Gov ususally loses.
- What are the two issues in procedural due process?
- 1. Has there been a deprivation of life, liberty or property?
2. What procedures are required?
- What is a deprivation of liberty?
- A loss of a significant freedom provided by the Constitution or statute. (WRITTEN LAW).
- Is harm to reputation a deprivation of liberty?
- NO. You must show tangible harm. (Paul v. Davis; shoplifter picture.)
- What is a deprivation of property?
- when there is an ENTITLEMENT and it is not fulfilled.
An answer which talks about "RIGHTS V. PRIVILEGES" is ALWAYS WRONG.
- What IS an entitlement?
- "The reasonable expectation of continued reciept of a benefit."
- Can government negligence alone create a deprivation of due process?
- NO...there must also be intentional government action or at least reckless action.
BUT...in EMERGENCY situations, the goverment is liable if its action SHOCKS THE CONSCIENCE of the court.
- Does the government have a duty to protect the people from privately created harms?
- NO. ONly if the government itself CREATES the harm.
- What is the test to determine what procedures are required to protect procedural due process?
- Balancing test. Balance the 1. importance of the interest of the individual, 2. the ability of additionaly procedures to increase the accuracy of the fact-finding and 3. the government's interest.
- Does Due Process require an "innocent owner defense" to government seizure?
- NO. The innocent owner's property can still be seized. (pot grown for eg.)
- What is substantive due process?
- When the government has an ADEQUATE REASON for taking away a person's life, libery or property.
- What is the standard for laws affective ECONOMIC rights?
- Rational basis review.
Eg: due process challenge to WAGE decrease --- rational basis.
- What are the two kinds of TAKINGS?
- 1. possessory taking: Government confication or physical occupation of property is always a taking.
2. Regulatory taking: Gov regulation is a taking when it leaves no reasonable economically viable uses of the property.
- If the government regulation decreases the value of a person's property...is that a taking?
- If the government ELIMINATES any possibility of economic development, is THAT a taking?
- When the goverment puts conditions on development of property, what is the takings test?
- The conditions must be justified by a benefity taht is roughly proportionate to the burden imposed.
- May a property owner bring a takings challenge to regulations that were in place at the time the property was acquired?
- Is the temporary denial of the owner's use of his property a taking?
- NO, so long as the government action is reasonable.
- If there has been a taking, what two question should you ask?
- 1. Is the taking for public use? (public use is broadly defined...so long as there is a reasonable belief that it will benefit the people.)
2. Is just compensation paid? (JC is measured by the LOSS TO THE OWNER, not gain by government. Reasonable market price.)
- To what does the Contracts Clausee apply?
- ONLY to state and local interference with government contracts. NEVER to the Federal Government. AND state and local CAN regulate FUTURE Ks.
- What level of scrutiny you apply to state and local interference with Private Contracts?
- Intermediate Scrutiny:
1. Does the legislation substantially impair a party's rights under an existing K?
2. If so, is the law reasonably and narrowly tailored means of promoting an important and legitimate public interest?
- What level of scrutiny when state or local laws interfere with GOVERNMENT contracts?
- STRICT SCRUTINY. (With their OWN contracts, NOT the Federal Governments'.
- What is an ex post facto law?
- One that CRIMINALLY punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed. DOES NOT APPLY TO CIVIL CASES.
- What test for "retroactive civil liability?" (like ex post facto, but to civil. EX post facto doesn't apply to civil).
- Rational basis test.
- Bill of attainder is what?
- A law which directs punishment for a speciifc person or persons w/o trial. Not OK.
- Privacy is a fundamental right under what doctrine?
- Substantive due process.
- Privacy rights are protected by what level of scrutiny?
- What are the privacy rights?
- 1. to marry. 2. to procreate 3. custody of one's children 4. keeping the family together 5. controlling the upbringing of one's children 6. purchasing and using contraceptives. 7.abortions 8. private consensual homsexual activity 9. refusing medical treatment.
- Can a judge order grand parent visitation over the parents objections?
- NO. Right to privacy.
- States may regulate abortions, prior to viability, so long as they do not ____________.
- create an undue burden on the ability to recieve an abortion. States may not PROHIBIT abortions prior to viability.
- What are examples of regulating abortions which are NOT an undue burden?
- 1. 24 hour waiting period.
2. that they be performed by licensed physicians.
States may not PROHIBIT partial birth abortions.
- After liability, states may prohibity abortions unless __________.
- it is necessary to protect the life or health of the woman.
- Are spousal and consent notification laws regarding abortion OK?
- NO. Unconstitutional. Right to privacy.
- Parental notice and consent laws for abortions are OK if __________________.
- there remains an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor's best interests or that she is mature enough to decide herself.
- What is the level of review for the privacy right to engage in homosexual activity?
- The Supreme Court has never said.
- What is the level of review for the privacy right to refuse medical treatment?
- The Supreme Court has never said.
- A state may require ____________ evidence that a person wanted treatment terminated before treatment is ended.
- clear and convincing
- May a state prevent family members from terminating treatment for another family member?
- Is there a constitutional right to physician assisted suicide?
- What are three activities which are not a fundamental right and trigger rational basis review?
- 1. right to practice a trade or profession
2. physician assisted suicide
3. right to education
- What are the activities which trigger the "undue burden test"?
- The right to an abortion.
- What three question should you ask on the exam for an approach to Equal Protection questions?
- 1. What is the classification?
2. What is the level of scrutiny?
3. Does the law MEET the level of scrutiny?
- What constitutional provisions concern EP?
- 1. EP clause of the 14th. NEVER applies to the Federal Government. ONLY to state and local.
2. EP is APPLIED to the Federal Government through the Due Process clause of the FIFTH Amendment.
- Classification based on race and national origin trigger ____________.
- Strict scrutiny.
- What ways can a race or national origin classification be proven?
- 1. on the face of the law (by its very terms)
2. If the law is facially neutral, by demonstrating BOTH discriminatory IMPACT and discriminatory INTENT. (Eg: peremptory challenge based on race.)
- What if the law BENEFITS minorities?
- Strict scrutiny IS applied.
A numerical set aside requires proof of PAST discrimination (Croson v. Adarand)
BUT, educational institutions may use race as ONE FACTOR...but don't add points to admissions scores based solely on race.
- May a seniority system be disrupted to promote affirmative action?
- What level of scrutiny is applied to GENDER classifications?
- Intermediate Scrutiny...PLUS, there must be "an EXCEEDINGLY PERVASIVE justification."
- If a law is facially neutral, how do you prove a gender classification?
- It requires both discriminatory IMPACT and INTENT.
Eg: Police must be 5'10". Rational basis...pervasive justification...?
- Does use of gender for a peremptory challenge violate EP?
- Can benign gender classifications be used?
- YES, but NOT if they are based on ROLE stereotypes. Do not perpetuate destructive stereotypes. Different than race.
Remedying past gender discrimination for differences in opportunities is OK!
- Can the state compensate for wage discrimination for women?
- What is the level of scrutiny for alienage classifications?
- Generally, Strict scrutiny.
BUT, if the classification involves self-government and the democratic process, then rational basis. See examples.
- When will rational basis review be used for classifications based on alienage?
- Five places:
1. Voting 2. Jury Service 3. Police Officer candidacy 4. Elemenatary or High School Teacher candidacy 5. Probabtion officer candidacy
- What is the test for CONGRESSIONAL discrimination against aliens?
- Rational basis. Congress has plenary power to control immigration.
- What is the level of scrutiny for undocumented alien children?
- Intermediate Scrutiny.
- What is the level of scrutiny for discrimination against non-marital children?
- Intermediate Scrutiny. If a law confers a benefit on all marital children and denies it to all non-marital children, it is ALWAYS unconstitutional.
- What is the level of review for AGE DISCRIMINATION?
- RATIONAL BASIS. Always TESTED.
- What are some other rational basis equal protection areas?
- Disability discrim, WEALTH discrimination (poverty is NOT a suspect class), economic regulations (hot dog vendor in New Orleans must have worked there 8 years), sexual orientation (Romer v. Evans)
- Is the right to travel protected under EP?
Strict Scrutiny: laws preventing people from moving from state to state, Durational residency requirements.
Rational Basis Review:
restrictions on FOREIGN TRAVEL
- Is the right to vote an EP issue?
What is the standard?
Strict Scrutiny. One person one vote.
Poll taxes are unconstitutional.
- Can property ownership be a requirement for voting or holding office?
- NO. Except voting in water districts.
- When are at-large elections unconstitutional?
- When there is proof of a discriminatory purpose.
- What standard if you use race to draw election district lines?
- Strict Scrutiny.
- Counting uncounted votes without standards violates _______.
- Equal Protection.
- The right to education IS / IS NOT a fundamental right?
- IS NOT. Rational basis review.
- What is the distinction b/w content based and content neutral restrictions on free speech?
- Content based center on subject matter or viewpoint restrictions. Generally, they must meet Strict Scrutiny.
Content neutral restrictions need only meet Intermediate Scrutiny. If it bans ALL speech, Intermediate Scrutiny.
- Court orders suppressing speech must meet __________.
- Strict scrutiny.
- What if the person who would challenge a court order suppressing speech violates the court order and THEN challenges it?
- They are then barred from later challenging it...IF the order is procedurally proper.
- When can the government require a license for speech?
- When 1) there is an IMPORTANT reason and 2)there are CLEAR CRITERIA leaving almost no discretion to the licensing authority AND 3) the licensing scheme contains procedural safeguards such as prompt determination of requests and judicial review.
- What is the difference between vague speech laws and overbroad speech laws?
- Vague: Can't tell what is and isn't allowed. (no offensive language or tending to corrupt morals)
Overbroad: regulates more speech than Constitution allows. EG: ordinance agains "all live entertainment"
- Are "no fighting words" statutes vague or overbroad?
- BOTH. If on exam a guy says mean mean stuff and gets convicted, the statute is vague and overbroad.
- When can the government regulate symbolic speech?
- 1. When the gov has an IMPORTANT interest UNRELATED to the suppression of the message AND
2. the impact is not greater than necessary to achieve the government purpose.
- Is nude dancing protected speech?
- Can the government ban flag buring?
Draft card burning?
YES...because of the government purpose.
- What about free speech and expenditure limits during a campaign?
- Expenditure limits: Unconstitutional
Contribution Limits: Constitional
- For incitement of illegal activity exception to free speech, what is the two part test?
- 1. SUBSTANTIAL LIKELIHOOD of IMMINENT illegal activity and
2. the speech was directed at CAUSING the illegal activity.
- What is the test for OBSCENE or SEXUALLY ORIENTED exception to free speech? BAR FAVORITE.
- Three parts and all three must be met:
1. material must appeal to the prurient interest
2. material must be patently offensive
3. Taken as a whole, the material must LACK SERIOUS REDEEMING SOCIAL VALUE. (ON BAR: the social value is based on a NATTIONAL standard).
- Can the government use zoning to regulate adult bookstores?
- What kind of pornography can be completely banned?
- Child Pornography.
BUT...the material MUST use CHILDREN, not adults or computer simumlations.
- May the government punish private possession of pornography?
UNLESS its CHILD PORNOGRAPHY.
- If a business is convicted of violating obscenity laws, may the government seize the assets of of the business?
- What are the exceptions to the general rule that profane or indecent speech is generally protected under the First Amendment?
- 1. When the speech occurs over the broadcast media. (its uniquely invasive of the home...less so cable.)
2. In schools.
- When is advertising not protected by the First Amendment?
- 1. When it is for illegal activity
2. When ad is false or deceptive.
- What if the commercial speech RISKS deception?
- IT CAN BE PROHIBITED.
- What are examples of commercial speech which inherently risk deception?
- 1. Gov may prevent professionals from advertising or practicing under a trade name.
2. Gov may prohibit attorney in person solicitation of clients FOR PROFIT.
Government MAY NOT prohibit accountants fron in person...profit.
- May an attorney solicit clients for profit by letter?
May an attorney solicity in-person for FREE solicitation?
- What is the standard for most other types of commercial speech?
- Intermediate Scrutiny.
The government's regulation MUST be NARROWLY TAILORED BUT it does NOT have to be the LEAST RESTRICTIVE alternative.
- If a P is a public official running for public office, when can he/she recover for defamation?
- When he/she proves FALSITY and ACTUAL MALICE.
The D must have KNOWN it was false or acted in reckless disregard of the truth to prove MALICE. The same test is used for public figures. Like celebrities.
- If the P is a "private figure" and suing for defamation what is the first question to ask?
- Is the matter sued upon a matter of "public concern?"
- If the P suing for defamation is a private figure and the matter is of public concern, what must the P prove?
- 1. Falsity
2. NEGLIGENCE by the D.
BUT the P may recover presumed or punitive damages ONLY by showing ACTUAL MALICE.
- If the P is a private figure and the matter is NOT of public concern, what must the P prove to get presumed or punitive damages?
- The P NEED NOT PROVE ACTUAL MALICE...
Show Negligence to recover generally.
- Can the government create liability for truthful reporting of government records lawfully obtained?
- If the media broadcasts a TAPE on an intercepted phone call, when is a privacy right violated?
- When the media didn't PARTICIPATE in the illegally intercepted call AND it involves a matter of public IMPORTANCE.
- May the government limit its OWN dissemination of information to protect privacy?
- YES. Gov need not give over its own papers,
EXCEPT maybe in criminal trials.
- Generally, government restriction based on content of speech must meet _________.
- Strict Scrutiny.
- What are the classic places where free speech is protected?q
- Sidewalks and parks.
EXCEPTION: in front of post office buildings.
- Government regulations of free speech must be ______ and _____ _______.
- Subject matter and content neutral.
- When may a government place time, place or manner restrictions on free speech?
- When the restriction serves an important government purpose AND leaves open adequate alternative places for communications.
Basically, Intermediate Scrutiny.
EG: No noisy trucks in neighborhoods at night. Example of all three.
- Should government regulations of public forums use the LEAST RESTRICTUVE ALTERNATIVE?
- No. Not necessary. ON EXAM.
Noise restriction... use NY equiptment concert promoters...why not decibel restriction? doesn't meet IMS.
- May city officials se permit fees for public demonstrations?
- What are limited public forums?
- Government properties that the government COULD close to speech but leave open.
EG: school facilities on evenings and weekends are nonpublic but if the gov opens them, the government MUST meet public forum rules.
- What are examples of non-public forums where the government can and does constitutionally close to speech?
- 1. Military bases, 2. Areas outside of prisons and jails, 3. Advertising space on city buses, 4. Sidewalks of post office property, 5. Airports (except distribution of literature...airport, only ban solicitation of money.)
- When the government restricts speech in non-public forums, what are the requirements?
- 1. Regulation must be reasonable and
2. viewpoint neutral.
- Is there a First Amendment right to access private property for free speech purposes?
Egs: shopping centers.
- Laws that prohibit or punish group membership must meet ____________.
- Strict Scrutiny.
- What three things must the government prove in order to punish membership in a group?
- 1. the person is actively affiliated w/ the group.
2. the person knows of its illegal activities and
3. the person has the specific intent of furthering those illegal activities.
- When the government requires disclosure of group membership the government must meet ___________.
- Strict scrutiny...
When the disclosure would chill association.
- What are the exception for the constitutionality of laws which prohibit a group from discriminating?
- 1. If the law interferes with intimate association (small dinner party)
2. If the law interferes with an expressive activity (Klan: no blacks; Nazis: No jews; Boy Scouts: no gay kids)
But JayCees can't be all male.
- The free exercise clause cannot be used to challenge a ____________________.
- neutral law of general applicability.
Native Americans can't eat peyote.
BUT if the law is motivated by a desire to limit religion OR if the law targets a particular religion...Strict Scrutiny.
- If I quit my job for religious reasons, can the government deny me benefits (unemployment for eg)?
- What is the test for violation of the establishment clause?
- 1. There must be a secular purpose to the law.
2. The effect must neither ADVANCE nor INHIBIT religion
3. There must not be EXCESSIVE ENTANGLEMENT w/ religion.
Think S. E. X.
MUST MEET ALL THREE.
- A Nativity Scene...Unconstitutiona?
- Yes if its by itself.
No if its accompanied by other religious symbols.
- Can the government sponsor religous activity in public schools?
No school prayer. No "silent" prayer. Not at football games. Not at graduation by a clergyman.
- If the government opens its facilities to student groups must it exclude religious groups?
And it CAN'T exclude them either.
- When, if ever, may the government give assistance to parochial schools?
- Only when the assitance is not used for religious instruction. For example, the government may provide parents with vouchers which they use in parochial schools. Mitchell v. LA.
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