To pass constitutional muster under the First Amendment, a statute or ordinance that burdens speech based on its content generally must be:
Necessary to serve a compelling state interest
To be valid, a time, place, and manner regulation of a limited public forum must be:
Viewpoint neutral and rationally related to a legitimate government purpose
a regulation of speech is found to be overbroad, but judged in relation to its plainly legitimate sweep it does not prohibit a substantial amount of protected speech, may it be enforced
Yes, but only against persons engaging in activities that are not constitutionally protected
Under the clear and present danger test, speech may be sanctioned whenever it:
Is directed to producing or inciting imminent lawless action and is likely to produce such action
For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has:
A legitimate claim or entitlement to the benefit
the factors a court would consider when determining the procedures required under the Due Process Clause when a person faces deprivation of a protected benefit?
The importance of the individual interest, the value of specific safeguards to that interest, and the government's interest in efficiency
When a government classification intentionally discriminates on the basis of gender or legitimacy, the classification will be found unconstitutional unless the government can prove that the classification is at the least:
Substantially related to an important government purpose
If the state court decision turns on federal grounds and is from the highest court in the state, the Supreme Court can review the state court decision. If adequate and independent state grounds support the decision, will the Supreme Court review that stat
nope
youngston framework: these will be okay!
(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
lemon test for the establishment clause
1. The action has a secular purpose, 2. The action has a primary effect that neither advances nor inhibits religion, and 3. The action does not produce excessive government entanglement with religion.
Under the Privileges or Immunities Clause of the Fourteenth Amendment, a state may not infringe on its citizens'
right to travel (rights of national citizenship)
-does not include the bill of rights
may Congress adopt laws discriminating against interstate commerce? may states if authorized by federal law?
yes and yes
test for congress regulating noncommercial activity
factual finding is required that there is a substantial economic effect on interstate commerce
State regulation under dormant commerce clause
-cannot discriminate, no undue burden on interstate commerce
-undue burden: triggers balancing test
-the commerce clause will provide the basis for attacking the law
article 4 priv and immunities
invoked when state is discriminating against a citizen of another state
Supremacy clause
-will supercede an inconsistent state law
-will preempt a state law, where congress intends to occupy a field
different purpose? No intent to occupy the field
when are states immune from suit?
2. State cannot be sued in federal court by it's own citizens
a. Exceptions: state can sue US, congress can strip state of 11th amendment immunity (enabling clause of the 14th amendment, when violating ), can sue state official
full faith and credit clause
a. Each state shall give full faith and credit the judicial proceedings of every other state
i. The court that renders judgment must have PJ and SMJ
ii. Final judgment on the merits
rational basis burden?
d. Rational basis: burden on the PLAINTIFF to prove that it's not rationally related
8. Procedural safeguards of notice and hearing
a. Once you have an entitlement, you have the right to notice and hearing
b. Welfare: pre-termiantion, usually
c. Driver's license: prior hearing must be afforded, unless prior evidentiary proceeding has occurred
i. Conviction can serve as an evidentiary
state action requirement
a threshold requirement of government conduct which must be satisfied before private discrimination can be regulated (1st, 4th, 14th, 15th); public function (company town), significant state involvement (encouraging/authorizing/profiting from private cond
facial attacks based on the first amendmnet
i. overbreadth: punishing protected as well
ii. vagueness: so unclearly defined that persons of ordinary intelligence must guess at its meaning
iii. prior restraint
iv. unfettered discretion
-remember that taxes (ie favoring one sort of speech over anothe
obscenity test
i. Appeal to the prurient
1. Community standard
ii. Patently offensive
1. Community standrard
iii. Must lack serious literary/artisititc/etc
1. National reasonanble person standard
commercial speech
i. If speech is false or illegal ad: then totally prohibited
ii. Lawful commercial speech:
1. Directly advance
2. Substantial government interest
3. Narrowly tailored
what public forums?
a. Public forum: parks/streets/sidewalks
b. Designated public forum: not historically associated with it, but can be opened up
i. School or a library, may be open for public use
nonpublic forums
d. Non-public
i. Viewpoint neutral!
ii. Need not be content-neutral
iii. Must be rationally related to a legitimate interest
limited public forum
i. Reasonably related to a legitimate government purpose
ii. Can apply to libraries if they're not open to the public genreally
establishment clause
a. only strict scrutiny if sect preference
rational basis burden?
d. Rational basis: burden on the PLAINTIFF to prove that it's not rationally related