Glossary of Con Law II
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- Can Congress create a new right or change the scope of existing rights?
- No. It can only prevent or remedy violations of rights recognized by the courts. Such laws must be proportionate and congruent to remedying constitutional violations.
- Is there any limit on Congress's ability to delegate legislative power?
- No. Answers that rely on an excess of delegation power are almost always wrong.
- What kind of vetos are unconstitutional?
What are they?
- Legislative veto: attempts to overturn legislation w/out bicameralism or presentment. You need both.
Line item veto: president wants to veto only part of a bill. Unconstitutional.
- What is bicameralism?
- Passage of a bill by both the House and the Senate.
- What is presentment?
- Giving the bill to the President to sign or veto.
- Can Congress delegate executive power to itself or its officers?
- No. Congress can give its powers away, but it cannot take powers.
- What is a treaty?
When is it effective?
- An agreement b/t the U.S. and a foreign country negotated by the President.
A treaty is effective when it is ratified by the senate.
- Treaty v. State Law - which governs?
- Treaty v. Federal Law - which governs?
- The one adopted last in time governs.
- What is an executive agreement?
- It is an agreement b/t the U.S. and a foreign country that is effective when signed by the President and the head of the foreign nation.
- Does an executive agreement require Senate approval?
- How does an executive agreement stack up against a treaty, in terms of what it can accomplish?
- It can do anything that a treaty can do.
- Executive agreement v. State Law - which governs?
- Executive agreement.
- Executive agreement v. Federal Law - which governs?
- Federal law.
- Is Senate approval required for a
(2) executive agreement?
- (1) Yes
- What happens when it conflicts with a state law?
(2) executive agreement
- (1) Treaty Controls
(2) Executive Agreement Controls
- What happens when it conflicts with a federal statute?
(2) executive agreement
- (1) Whichever was adopted last in time controls
(2) Federal statute controls
- What happens if a treaty or executive agreement conflicts with the Constitution?
- The Constitution controls.
- When you are presented with a question about the President deploying troops, which answer choices should you look for?
- First, Political question doctrine (power over foreign affairs)
Second, Powers as Commander in Chief
- Who can the president appoint?
Are there any other requirements on appointment?
- Ambassadors, federal judges, and officers of the U.S.
They require Congressional approval.
- Who decides who gets to appoint inferior officers?
Who may appoint inferior officers?
- Congress decides.
The President, heads of departments, or lower federal courts.
- Can Congress or Congressional officers make appointments?
- No. It cannot pass legislation under which Congress appoints officers of a new agency.
- Can the President fire executive branch officers?
- Yes, unless limited by statute.
- When can Congress limit the President's ability to fire executive branch offiers?
- When two conditions are met:
(1) The limitation is a limitation for good cause. Congress can never *prohibit* removal.
(2) It ust be an officer where independence from the President is desireable.
- Who can be impeached and removed from office?
- The President, Vice president, federal judges, and officers of the U.S.
For treason, bribery, or high crimes and misdemeanors.
- Does impeachment remove a person from office?
- No. If the House impeaches, then there is a trial in the Senate, which must convict the person in order to remove him from office (what happened with Clinton).
- What are the voting requirements for impeachment and conviction?
- Impeachment: majority vote of the House.
Conviction: 2/3 vote of the Senate.
- Can a citizen sue the President in a civil suit for money damages?
- It depends. President has absolute immunity to civil suits for money damages for any actions WHILE IN OFFICE. President does NOT have immunity for actions prior to taking office (Clinton v. Jones).
- What is executive privilege?
- The President's authority to keep presidential papers and coversaions with advisors secret. However, it must yield to other important government interests (Nixon).
- What is a Presidential pardon?
Are there exceptions?
- The president can pardon anyone for FEDERAL CRIMINAL liability.
Exception: he cannot pardon impeachment by the house.
- What are the two types of preemption?
- (1) Express preemption
(2) Implied preemption
- What is express preemption?
- When a federal statute says that federal law is exclusive in a field.
- What is implied preemption?
- (1) If federal and state law are mutually exclusive, federal law preempts state law. However, states can set stricter env stds.
(2) If state law impedes achievement of federal objective. Fla law says filing with NLRA bars unemp benefits. Preempted b/c goal of NLRA was to encourage these claims, and this deters them.
(3) If Congress evidences a clear intent to preempt state law in legislative history.
- Can states regulate or tax federal government activity?
- No. It is unconstitutional to pay a state tax out of the federal treasury.
- Can the state tax
(1) a mom and pop store on leased Federal land?
(2) the px?
- (1) Yes.
- What does Article IV privileges and immunities clause cover?
- The privileges of STATE citizenship regarding FUNDAMENTAL RIGHTS.
Prohibits a state from denying the citizens of other states the privileges and immunities it accords its own citizens.
- What does the 14th Amendment privileges and immunities clause cover?
- The privileges of NATIONAL citizenship.
Always a wrong answer unless it involoves the right to TRAVEL.
- What is the dormant commerce clause?
- State and local laws are unconstitutional if they inflict an undue burden on interstate commerce. The Constitution does not expressly say this.
MBE sometimes calls this the "negative implications of the commerce clause."
- Does the privileges and immunities clause of Art. IV apply to everyone?
- It does not apply to Aliens or Corporations.
- What sort of discrimination does the P & I clause of Art. IV prohibit?
- Discrimination relating to FUNDAMENTAL RIGHTS (commercial activities or personal liberties). Struck down: disparate prices for commercial fishing license; giving resident creditors priority; requiring residence to practice law; income tax only on nonresidents; required hiring preferences.
- Are there any exceptions to the P & I clause of Art. IV?
- Yes. There is a "substantial justification" exception. It must show
(1) nonresidents either cause or are part of the problem it wants to solve, and
(2) there is NO LESS RESTRICTIVE means of solving it.
- What types of things does the P & I clause of the 14th Am prohibit?
- It prohibits states from denying citizens the privileges and immunities of national citizenship. Ex. petition Cong for grievances, to vote for federal officers, etc. Mostly the right to travel.
- What is the right to travel?
- Well, the obvious, plus the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.
- What is the basic pattern of questioning for DCC and P & I?
- (1) Does the state law discriminate against out of staters?
No - P&I clause of Art. IV does not apply. If its burdens on interstate commerce exceed its benefits, then it violates DCC.
Yes - DCC or P&I?
- Are there any exceptions to the dormant commerce clause ban on state laws favoring state citizens and thereby burdening interstate commerce?
(1) State govt has the burden of showing that the discrimination, which burdens interstate commerce, is necessary to achieve an important government interest.
(2) Congressional approval
(3) Market participant exception
- What is the market participant exception to a dormant commerce clause violation?
- It is where a state/local govt may prefer its own citizens in receiving benefits from govt programs or in dealing with govt-owned businesses. UC can charge out of staters more tuition.
- What if you have a state law that discriminates against out-of-state aliens?
- It's not a P&I clause issue, it is just a DCC issue. The P&I clause of Art. IV does not apply to aliens.
- Can states tax to help in-state businesses?
- Who can a state tax?
- A state may only tax activities with a substantial nexus to the state.
- Can a state tax interstate businesses?
- Yes, so long as the tax is fairly apportioned.
- When does one state have to give another state's judgment full faith & credit?
- (1) the court that rendered the judgement had jx over the parties
(2) the judgment was on the merits
(3) the judgment is final
- When does the Constitution apply to private conduct?
- ONLY via statute, as passed by Congress, or via certain exceptions.
(1) Enforcing 13th Am via statute
(2) Commerce power
(3) If state or local govt enforcers, via section 5 of the 14th Amendment.
- Can the 13th Amendment prohibit discrimination?
- Not directly. The 13th Am prohibits slavery and involuntary servitude. Based on its enforcement power, Congress has adopted a statute prohibiting discrimintaion.
- What are the three ways that Congress can apply Constitutional norms to private conduct?
- (1) Through the enforcement clause of the 13th Amendment.
(2) Through the commerce clause.
(3) NOT section 5 of the 14th Amendment. Under section 5, Congress may only regulate state and local action. Morrison.
- What are the exceptional circumstances where private conduct must comply with the Constitution?
- (1) Public function. If a private entity is performing a task traditionally, exclusively done by public. Run town, election.
(2) The entanglement exception. When government action would affirmatively authorize, encourage, or facilitate unconstitutional activity by a private party. Ex. no enforcement of racially restrictive covenants, people leasing govt land must comply. Not enough: subsidies, etc.
- Is there state action when a private school that is over 99% funded by the govt fires a teacher for her speech?
- No. Subsidies are insufficient for state action.
- Is there state action when a private entity regulates interscholatic sports WITHIN a state?
But, there is no state action when the NCAA, which is national, orders suspension of coach at a public university.
- To whom does the Bill of Rights (Am 1-10) apply?
- It applies directly to the Federal government.
It applies to the states via the DPC of the 14th Amendment, except the 2nd Am right to bear arms, rt not to have soldier stay in home, 5th Am right to grand jury indictment in criminal cases, 7th Am right to a jury trial in civil cases, 8th Am right against excessive fines (other 8th Am rights do apply).
- In state court, do you have a 7th Am right to a jury trial in a civil case?
- No. That part of the Bill of Rights does not apply to the states.
- In STATE court, does a CRIMINAL defendant have a 5th Am right to a grand jury indictment?
- No. That right has not been incorporated.
- What are the three levels of scrutiny?
- (1) Rational basis test
(2) Intermediate scrutiny
(3) Strict scrutiny
- What is the first thing you should do in an essay where the state is alleged to have violated the Bill of Rights?
- If applicable, say that the B of R applies to the states via the DPC of the 14th Amendment.
- What is the rational basis test?
- The law will be upheld if it is RATIONALLY RELATED to a LEGITIMATE government purpose. That purpose need not be the law's actual purpose.
The CHALLENGER had the Burden of Proof. (B.O.P.)
- What is the intermediate scrutiny test?
- Law will be upheld if it is SUBSTANTIALLY related to an IMPORTANT government purpose.
Looks at the *actual* purpose.
Govt need not use the BEST least restrictive means, just a good one.
The GOVT has the B.O.P.
- For a law to pass intermediate scrutiny, does it have to employ the least restrictive means possible of promoting that goal?
- What is strict scrutiny?
- The law will be upheld if it is NECESSARY to achieve a COMPELLING government purpose.
Looks at *actual* purpose.
The means must be necessary to the goal; there may be no less restrictive way to achieve the goal.
The GOVT has the B.O.P.
- What two questions should one ask for a procedural due process question?
- (1) Has there been a deprivation of life, liberty, or property?
(2) What procedures are required?
- Procedural Due Process:
What is a deprivation of liberty?
- It occurs if there is the loss of a significant freedom provided by the Constitution or a statute.
Institutionalize an adult, child (only netural fact finder review).
- Does harm to reputation count as a freedom worthy of due process?
- Do prisoners have robust due process rights?
- No. They almost always lose DPC challenges.
- What is a deprivation of property?
- Occurs if there is an ENTITLEMENT and it is not fulfilled.
NEVER employe rts vs. privileges analysis.
DO use the word "entitlement," which is a reasonable expectation of continued receipt of a benefit.
- Can the government commit a due process clause violation through negligence?
- No. There must be INTENTIONAL government action, or at least RECKLESS action.
In emergencies, the govt is liable under DPC only if its conduct "shocks the consciece."
- Imagine that a high speed police chase led to the death of a teenage boy. Is there a DPC violation?
- No. It was an emergency situation, and so police are only liable if their behavior "shocks the conscience."
- Imagine that the govt fails to protect a citizen from a privately inflicted harm (like a parent abusing a child for years). Is there a DPC violation?
- Generally no. The government only has such a duty if the person is in government CUSTODY or the government CREATES THE HARM.
- If there has been a deprivation of life, liberty, or property, how do you decide what procedures are required?
- You use a balancing test.
(1) The importance of the interest to the individual
(2) The ability of additional procedures to increase the accuracy of the fact-finding
(3) the government's interests, which are usually efficiency and saving money.
- What are the DPC requirements for termination of welfare benefits?
- Pre-termination notice + a hearing.
- What are the DPC requirements for termination of disability benefits?
- Post-termination hearing.
- What are the DPC requirements for discipline of a student by a school?
- Notice of charges and an opportunity to explain, but no trial.
- What are the DPC requirements for termination of a parent's rights to a child?
- Pre-termination notice and hearing.
- What are the DPC requirements for huge punitive damage awards?
- Instructions to the jury and judicial review. If they are grossly excessive, they violate DP.
- What are the DPC requirements for detaining a US citizen as an enemy combatant?
- Notice of charges, representation by counsel, and a meaningful hearing.
- What are the DPC requirements for a pre-judgement attachment or government seizure of assets?
- Pre-seizure notice and a hearing.
Exception: exigent circumstances, where the govt has reason to believe that the defendant would dispose of the property if given notice. In that case, notice and hearing after seizure.
- What if the govt seizes property in emergency circumstances, and a co-owner asserts an innocent owner defense?
- Doesn't matter. No DPC violation.
- What is SUBSTANTIVE due process?
- It asks whether the govt has an adequate reason for taking away a person's life, liberty, or property. It protects economic liberties and privacy.
- What are the economic liberties protected by substantive DP?
- (1) Property interests (takings clause)
(2) Pre-existing contracts (contracts clause)
- Under substantive due process, what test is used for laws affecting economic rights?
ex. employment regulation, consumer protection laws...
- Rational basis review.
- What test do you use for a government taking under the 5th Am?
- Not rational basis review.
(1) Is there a taking?
(2) Is it for public use?
(3) Is just compensation paid?
- What are the two types of government takings?
- (1) Possessory taking: govt confiscation or physical occupation of property.
(2) Regulatory taking: govt regulation is a taking if it leaves NO reasonable economically viable use for the property.
- For a govt taking, is the amount of property possessed relevant? What if it's just 1 square foot?
- Doesn't matter.
- For a regulatory taking, how severe does the decrease in economic value have to be?
- It has to leave NO reasonable economically viable use. Penn Central: Co. bought station intending to build on top of it. New regulation prevented bldg. Still no taking b/c other uses possible.
- Is it a taking when the government imposes conditions on DEVELOPMENT of property?
- The government must justify the conditions by a benefit roughly proportionate to the burden imposed. Otherwise it is a taking.
- May a property owner bring a takings challenge to regulations that existed at the time of purchase of property?
- Is it a taking when the govt temporarily denies an owner use of property?
- No, so long as the govt action is reasonable. In Tahoe, found reasonable to prevent building for 3 years for an environmental study.
- Under takings analysis, what constitutes "public use"?
- Broad definition: a "reasonable belief" that it will benefit the public. It can be taking property from one private owner to give it to another (like a developer).
- Under takings analysis, what is just compensation?
- It is an amount equal to the loss to the owner. The gain to the taker is irrelevant.
- What does the contracts clause say?
- It states that no STATE shall impair the obligations of contracts. Art. 1 section 10.
- Does the contracts clause apply to future contracts?
- No! It applies only to STATE OR LOCAL interference with EXISTING contracts.
- What is the test for a contracts clause violation against a PRIVATE actor?
- Sort of intermediate scrutiny.
(1)Does the legislation substantially impart a party's rights under an existing contract?
(2) If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
- What is the test for a contracts clause violation against a PUBLIC actor?
- Strict scrutiny.
- What if legislation changes civil liability after it has occurred?
- It must meet a rational basis test. Ex post facto criminal laws are prohibited by the Constitution. Remember contracts issues are civil.
- What kind of test do you use if the government inteferes with someone's right to privacy?
- Strict scrutiny, since privacy is a fundamental right protected under substantive due process.
- What are the privacy rights?
- (1) Marry
(3) Custody of one's children Exception: can create irrebutable presumption that a woman's child is that of her husband
(4) Keep family together
(5) Control upbringing of one's children
(6) Purchase and use contraceptives
(8) Engage in private consensual sexual activity
(9) Refuse medical treatment
- Is it OK for a court to order grandparent visitation over a parent's objection?
- No. That would interfere with the parent's right to control the upbringing of her child.
- What is the standard for right to abortion?
- Pre-viability: may not prohibit, but may regulate so long as does not create an undue burden on ability to obtain. 24 hr waiting period OK, physician required OK.
Post-viability: states may prohibit unless necessary to protect the woman's life or health.
- Does the government have a duty to subsidize abortions or provide them in public hospitals?
- Can a state require spousal consent or notification?
- No. Unconstitutional as an undue burden.
- Can a state require an unmarried minor requirement of parental notice/consent?
- Yes, as long as there is an alternate procedure of going before judge to prove maturity.
- What are the 3 basic things to remember about refusing medical treatment?
- (1) Competent adults can refuse, even if life-saving.
(2) States may require clear and convincing evidence that a person wanted treatment terminated.
(3) States may prevent family members from terminating treatment for another, since the rt belongs to the indvidual.
- Is there a constitutional privacy right to physician-assisted suicide?
- How should you approach an equal protection question?
- (1) What is the classification?
(2) What level of scrutiny should be applied?
(3) Does this law meet the level of scrutiny?
- Who does the EPC of the 14th Am apply to?
- (1) Only to state and local governments.
(2) The federal govt is regulated by the 5th Am DPC.
- What categories get strict scrutiny?
- Race, national origin, alienage (generally).
- What categories get intermediate scrutiny?
- Gender and legitimacy.
- How do you prove a racial classification for equal protection purposes?
- (1) Exists on the face of the law
(2) Law is facially neutral, but can show BOTH discriminatory impact AND discriminatory intent.
- What standard do you use in evaluating racial classifications to the benefit of minorities?
- Strict Scrutiny.
- Equal protection:
When can there be a law that has numerical set-asides for certain racial groups?
- Only if there is evidence of past discrimination.
- What are the rules for using race in admissions?
- It can be one factor among many. However, you cannot assign a student "point" based solely on race.
Why? Colleges have a compelling state interest in diversity.
- How can you prove a gender classification?
- (1) Exists on the face of the law
(2) Law looks neutral, but can show BOTH discriminatory impact AND intent.
If cannot demonstrate this classification, use RBR.
- What is the standard for laws benefiting women?
- Intermediate scrutiny.
Exception: gender classifications benefiting women that are based on role stereotypes are not OK.
- Can a state pass a law benefiting women because of past discrimination?
- Under EPC, alienage is usually a strict scrutiny standard. When do you use rational basis review?
- For laws that concern self-government and the democratic process. Voting, jury, police, teacher, probation officer. NOT notary public.
- What is the standard when Congress is discriminating against aliens?
- Rational basis review.
- What is the level of scrutiny for undocumented alien children?
- Unclear, but probably intermediate scrutiny. Uncon to require these kids to pay for a public education.
- Would it be constitutional to have a law that denies a benefit to all non-marital children, but grants it to all marital children?
- No. It would fail intermediate scrutiny.
- What are some of the trickier classifications that get rational basis review?
- Age, disability, wealth, economics, sexual orientation.
- What level of scrutiny do you use to evaluate an impingement on fundamental rights?
- Strict scrutiny.
- What fundamental rights are protected by equal protection?
- Travel, Vote, NOT education
- What are some examples of ways that the govt might restrict the right to travel?
- (1) Prevent people from moving into a state
(2) Durational residency requirements
- What level of scrutiny do restrictions on FOREIGN travel have to meet?
- Rational basis review.
- What are the basics of the fundamental right to vote?
- (1) Cannot deny some people right to vote. In one case, OK to base on property ownership b/c was a water district election.
(2) One person one vote must always be met.
- Are at large elections OK under the equal protection clause?
- The right to vote is a protected fundamental right.
However, they are OK unless there is proof of a discriminatory purpose.
- What is the standard of review for use of race in drawing election district lines?
- Strict scrutiny, even if it is to benefit minorities.
- Does it violate equal protection to count uncounted votes without standards?
- Yes! Bush v. Gore.
- Is there a fundamental right to education, protected by equal protection?
- What are the different standards for the different types of speech?
- Content-BASED restrictions must meet strict scrutiny.
Content-NEUTRAL restrictions must meet intermediate scrutiny.
- What are the two types of content-based speech laws?
- (1) Subject matter restrictions: application of law depends on topic of speech.
(2) Viewpoint restrictions. Applicability of law depends on ideology of message.
- If you want to challenge a court order, say restricting speech, what must you do?
- You MUST follow the court order and then challenge it. Once you violate a court order, you cannot challenge it.
- What is the standard for prospective restraints on speech, like court orders repressing speech?
- Strict scrutiny.
- Can the government require a license for speech?
- Yes. But only if
(1) there is an important reason for licensing, and
(2) there are clear cirteria, leaving almost no discretion to the licensor, and
(3) there are procedural safeguards like prompt determination of requests for judicial review.
- What are two examples of grounds one can use to challenge speech laws?
- (1) Vagueness: a reasonable person cannot tell what is prohibited and what is allowed
(2) Overbreadth: regulates substantially more speech than the constitution allows.
- Can the government regulate symbolic speech?
- Yes. It can regulate conduct that communicates, if it
(1) has an important interest unrelated to the suppression of the message
(2) the impact on communication is no greater than necessary to achieve the purpose
Ex. flag burning OK, draft card burning not OK.
- Is anonymous speech protected by the 1st Am?
- Yes. It is implicit in the right to speak.
- What speech is UNPROTECTED or LESS protected by the 1st Amendment?
- (1) incitement of illegal activity
(2) obscenity and sexually-oriented speech
(3) commercial speech
- When does speech "incite illegal activity?"
- When there is a
(1) substantial likelihood of imminent illegal activity and
(2) the speech is directed to causing imminent illegality.
- What is obscene or sexually-oriented speech?
- (1) Must appeal to prurient interests (also, shameful or morbid). A LOCAL standard.
(2) Must be patently offensive under the law prohibiting obscentiy. Must fit the statutory definition.
(3) Taken as a whole, it must lack serious redeeming artistic, literary, political, or scientific value. Set by a NATIONAL standard.
- Can the government use zoning ordinances to regulate the location of adult bookstores and movie theatres?
- Yes. "Erogenous zoning" is ok!
- To be banned, does child porn have to include actual kids?
- Yes. It must involve actual children, not computer generated or young looking adults.
- Can the government punish private possession of obscene materials?
- No. But it can punish private possession of child pornography (to protect children).
- Can the government seize and destroy assets of businesses convicted of violated obscenity laws?
- Yes. In one case, it was $9 million in damages!
- Does the First Am protect profane or indecent speech?
- Yes, generally, "Fuck the draft" shirt OK.
Exceptions: broadcast media, schools. However, not so much concern about cable, which people select and pay for.
- What types of commercial speech are not protected by the 1st Am?
- (1) Advertising for illegal activity
(2) False and deceptive ads
(3) Sometimes, true commercial speech that INHERENTLY risks deception.
- Can the govt prevent professionals from advertising or practicing under a trade name?
- Yes. OK under the 1st Am because trade names make deception possible, even when there is no evidence of it.
- Can the government prevent in-person solicitation by an attorney?
- Yes. In-person solicitation leads to unacceptable pressure and deception.
Sending letters is OK.
Offer of free aid OK.
Not OK to prevent accountants from in-person solicitation.
- What is the test for regulating other types of commercial speech?
- Intermediate scrutiny. For instance, it is OK to prevent attorneys from soliciting for 30 days after an accident in order to protect the privacy of the victims.
- Does government regulation of commercial speech need to be the least restrictive means possible?
- No. It only needs to be narrowly tailored under an intermediate scrutiny standard.
- What does a public official have to show in order to recover for defamation?
- (1) clear and convincing evidence of falsity
(2) clear and convincing evidence of actual malice. Malice = knew statement was false or had reckless disregard for the truth.
Policy: protects open and earnest debate
- What does a PUBLIC figure have to show in order to recover for defamation?
Who is a public figure?
- (1) clear and convincing evidence of falsity
(2) clear and convincing evidence of actual malice.
A public figure is anyone who "thrusts" himself into the linelight, and likely have access to the media for responses.
- What does a PRIVATE figure have to show to recover for defamation?
- Depends on whether is is a matter of "public conern."
Yes: show falsity and negligence for general recovery. Actual malice for punitive damages.
No: Falsity and negligence for general and punitive damages.
- Can the govt create liability for the truthful reporting of info that was lawfully obtained from govt?
- No. Even the names of rape victims are OK.
- Can the media broadcast a tape of an illegally intercepted call?
- Only if the media DID NOT PARTICIPATE in the illegality, and if it involves a MATTER OF PUBLIC IMPORTANCE.
- Can the government restrict access to criminal proceedings?
- No, unless they are juvenille.
- What are the places available for speech?
- (1) public forums
(2) limited public forums
(3) non-public forums
- What is a "public forum" under the 1st Am?
- Govt properties that the govt is constitutionall REQUIRED to make available for speech. Ex. sidewalks and parks.
- What are the standards for restrictions on speech in public forums?
- It depends.
Intermediate scrutiny if: subject matter neutral and viewpoint neutral + time,place, or manner regs that serve an important govt purpose and leave open adequate alternative places for communication. Need not use least restrictive means.
Strict scrutiny: all others
- Can a city official have discretion to set fees for public demonstrations?
- No! It can lead to content-based discrimination.
- What is a limited public forum?
- Govt property that the govt could close to speech, but voluntarily chooses to open to speech.
Ex. schools and other facilities opened up to community groups on weekends.
- What are the standards for restricting speech in a limited public forum?
- The same as for a public forum.
- What is a non-public forum?
- Govt property that the govt constitutionally can and DOES close to speech.
- Can the govt regulate speech in non-public forums?
- Yes, if it is
(1) reasonable (rational basis)
Exs: military bases, parks on bases, areas outside jails, ad space on city busses, sidewalks on post office property, airports (but can distribute literature).
- Can the government restrict speech on post office sidewalks?
- So long as it is content neutral, yes. Post office sidewalks are a non-public forum.
- Is there any right to access to private property for speech purposes?
- NO! However, in CA, there is a right to use private shopping centers for speech purposes.
- Is the "takings" clause a grant of government power to take land?
- No. It is a limitation on what the government can do.
- What protects the freedom of association?
- The First Am., even though it is not explicitly mentioned in it.
- Is freedom of association an absolute right?
- No. The government may infringe upon it if they pass strict scrutiny.
- What conditions must the government meet to punish membership in a group?
- Must show that the person is
(1) Actively affiliated with the group
(2) Knowing of its illegal activities; and
(3) with specific intent of FURTHERING those illegal activities.
- What is the standard for laws that require disclosure of group membership?
- Strict scrutiny. Why? In part because disclosure laws chill group membership.
- Can law prohibit a private group from discriminating?
- Yes, unless they interfere with intimate association or expressive activity.
(1) intimate associate = dinner party
(2) expressive activity = no gay scout leaders
- If a law is neutral and has general applicability, can someone challenge it on free exercise grounds?
- No. Remember the peyote case in WA. OK to outlaw peyote because it was not motivated by a desire to harm that Native American religion.
If law is not neutral or not of general app., then it must MEET STRICT SCRUTINY.
- Can a person quit their job for religious reasons?
- Yes. The government cannot deny unemployment benefits to people who quit for religious reasons.
- What is the establishment clause?
- It states that the government can make no law regarding the establishment of religion. It is in the 1st Am.
- What is the test for whether a law violates the establishment clause?
- (1) There must be a Secular purpose for the law. Not OK if primary purpose is to advance religion, and
(2) Effect must be neither to advance nor inhibit religion
(3) Must not be eXcessive entanglement with religion.
Numonic: S. E. X.
- If the government discriminates among religions, or against religious speech, what standard must the behavior meet?
- Strict scrutiny.
- Is it okay for a TX courthouse to have a huge sculpture of the 10 Commandments?
- Yes, if it is surrounded by other symbols.
- Can the government sponsor any religious activities in school?
- No. However, religious student and community groups must have the same access to areas as non-religious groups.
- Are these things unconstitutional?
(1) school prayer
(2) moment of silent prayer at school
(3) student prayers at HS football games
(4) a "moment of silent reflection"
- (1) yes
- Can the government give assistance to parochial schools?
- Yes, as long as it is not used for religious instruction. For instance, the government can give parents vouchers that they use in parochial schools.
- What is the order of issues for an essay on the equal protection clause of the 14th Amendment?
- (1) A state action?
(2) What the 14th Am says
(3) Possible sources of discrimination (ex. age, gender). Facially discriminatory, or effect + intent?
(4) Level of scrutiny for each category
(5) Who has the burden for each level of scrutiny and whether that party meets the burden.
- What is the order of the issues for an essay on substantive due process under the 14th Amendment?
- (1) State action?
(2) What DPC says: violation of fundamental right = strict scrutiny
(3) Any fundamental rights violated? If no, rational basis review. If yes...
(4) Does the law meet the standard?
- When an essay says "constitutional issues," what should you think of?
- At least these:
(1) Equal protection
(2) Due process
(3) First Amendment assembly and speech
- If a court order seems unconstitutional, how should a party protest it?
- He should obey the order and protest it.
If he disobeys the order, he cannot protest it and he will be held in CONTEMPT of court.
- What does a judge have to allege to constitutionally restrict 1st Am. access to criminal trials?
- He must ARTICULATE an OVERRIDING interest that outweighs the 1st Am right.
He must show that he used the least drastic means of promoting that interest.
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