Con Law flashcards.txt

Ask: who is being treated different from whom? What "right" is being affected? Then, determine test (strict scrutiny, mid-level scrutiny, or rational review).

Use strict scrutiny if it is a suspect class - race or national origin [and gender in MD]. Use strict scrutiny if the distinction/classification restricts or applies to the exercise of the fundamental right of travel or voting.

Use mid-level scrutiny if the class is based on gender and illegitimacy.

For all other distinctions or rights (beyond race, national origin, travel, voting, gender and illegitimacy), use rational review test. Examples are wealth, occupation, or rights.

Ask: What liberty or freedom is being infringed? Is this a fundamental right (BFP [bodily, family, procreation) or another right (employment, education)? If fundamental right, then strict scrutiny. All others - rational review.

Law must be necessary (least restrictive alternative) for a compelling governmental interest. The burden is on the government. We should presume law is unconstitutional.

Law must be substantially related to an important governmental interest.

Law must be rationally related to a legitimate governmental interest. The burden is on the challenger. We should presume law is constitutional.

The Commerce Clause grants Congress the sole authority to regulate interstate commerce and under the Dormant Commerce Clause, a state may not discriminate against or substantially burden interstate commerce, without an important state interest.

The statute must pass the strict scrutiny test. (The state must have an important government interest with no non-discriminatory alternative). Exception: State can discriminate geographically under Market Participant Doctrine. (Does not apply to laws that regulate other private businesses).

If geographically neutral and the law does NOT excessively or unduly or substantially burden IC, then not in violation of Commerce Clause. If yes, the law must be justified by an important state interest.

State must show: (1) an important governmental interest and (2) that no non-discriminatory alternative is available.

Political, artistic, etc. (non-commercial or indecency, or FIDO) is all fully protected First Amendment Speech.

cB + Public Forum [PF] (every place or no place): law is valid only if it passes strict scrutiny. CB + Non-PF: law is valid if it is reasonable, considering the purpose of the property (if viewpoint-based, less likely to be reasonable). CB + Limited PF + Viewpoint-Neutral: law is valid only if it is reasonable, considering purpose of property. CB + Limited PF + Viewpoint-Based: law is valid only if passes strict scrutiny.

CN + PF (every place or no place): evaluate law as a time, place and manner restriction and the law is valid if: narrowly tailored to serve an important gov't interest & leaves alternate means to communicate. CN + Non PF/Limited PF: law is valid if reasonably serves property's purpose.

Unprotected speech, like cussing or personal epithets that would cause a reasonable person to fight. Must be face to face. Not mere insult

Unprotected speech. Imminent threat of immediate violence to others. Not "mere advocacy" of illegal conduct.

Unprotected speech. False statement of fact (not "mere opinion") which harms reputation. Public officials/figures must prove actual malice. Others must prove only negligence.

Unprotected speech. Use Miller test (average person, applying contemporary community standards, finds work, as a whole, appeals to prurient interest; the work depicts sexual conduct in a patently offensive way; the work, as a whole, lacks serious literary, artistic, political,scientific Value). Not mere nudity or obscene language.

Low-level protected speech. State can regulate or ban misleading or illegal commercial speech. Truthful speech can be regulated if it serves a substantial gov't interest and there is a "reasonable fit" between the regulation and substantial gov't interest.

Low-level protected speech. State can keep this away from kids. State can zone dity movies.

Regulation of "non-speech" element of conduct is proper if it serves important gov't interest, is unrelated to suppression of ideas, and is not greater regulation than necessary.

Law cannot regulate both protected & unprotected speech. If a reasonable person cannot tell what is covered/prohibited, law is vague.

State may not deprive a citizen of another state of the basic rights of citizenship. State can't keep out-of-stater from: owning property and making contracts and engaging in prive employment.

State law can't be passed that would impair existing contract obligation absent important public need.