random
first amendment
congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances
time, place, manner
1. traditional public forum
2. content neutral
3. significant government interest
4. narrowly tailored
5. leave open ample alternative channels
vagueness
2. person of ordinary intelligence knows what conduct is allowed or forbidden?
3. give too much enforcement discretion to police or regulators?
- a law must:
-- give fair notice to what is prohibited
-- avoid encouraging arbitrary enforcement
freedom of association - with messages
to justify burdening expressive association, the government action must:
- serve compelling state interest
- unrelated to suppressing ideas
- narrowly tailored to achieve interest
eleventh amendment
the eleventh amendment stops people from suing states for money in federal court unless the state agrees or congress allows it under the 14th amendment; but you can sue state officials in federal court to stop them from doing something (injunction), just not for money
speech
speech is conveyed if the speaker intended to communicate a message and there is a great likelihood that the message will be understood. speech can be compelled or forbidden
1. have secular purpose
2. not advance or inhibit religion
3. not result in excessive government entanglement with religion
overbreadth
"even if the law is not vague, it may still be over broad if it restricts a substantial amount of protected speech"
courts can strike down a law as facially invalid if:
- 1. it covers both protected and unprotected speech
- 2. the overbreadth is substantial in relation to the law's legitimate scope
second amendment
a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed
standing
standing means the plaintiff must be personally affected by the issue. to sue, they need a real injury, caused by the defendant, that the court can fix.
3-part test:
1. injury: is there a real, specific harm?
2. causation: did the defendant cause it?
3. redressability: can a court fix it?
obscenity: miller test
2. patently offensive
3. lacks SLAPS value
free exercise clause
1. if belief sincerely held?
2. is government action substantial burden on belief?
3. is law neutral or generally applicable? (smith test)
- neutral: law does not single out religion
- generally applicable: applies to everyone equally - religious or not
-- no to both: apply strict scrutiny
prior restraint
"a prior restraint is a government restriction that prevents speech before it occurs, and is presumptively invalid under the first amendment unless justified by a compelling interest and accompanied by adequate procedural safeguards."
test:
- 1. is this a prior restraint?
- 2. is there a compelling interest?
- 3. are there procedural safeguards?
right to bear arms
the second amendment protects the right to keep and bear arms for lawful purposes like self-defense. courts use a two-step test:
1. if the law restricts conduct by the second amendment (people, weapon, lawful purpose)
2. the government must show the law fits with the nation's historical tradition of gun regulation
ripeness
a case is ripe if it's ready to be decided - not based on guesses or future events. courts won't hear cases that are too early or hypothetical
2-part test:
1. hardship: will waiting hurt the parties in a serious way?
2. fitness: is the issue fully developed, not just hypothetical?
commercial speech: central hudson test
1. lawful/not misleading
2. government has substantial interest
3. ordinance directly advances government interest
4. restriction not more extensive than necessary
government speech
1. is speech traditionally used by government?
2. would people reasonably view speech as coming from government?
3. does government direct or control message?
- yes: most likely government speech
freedom of the press
"the first amendment protects freedom of the press by prohibiting prior restraints, limiting government interference, and requiring a showing of actual malice for defamation of public officials or figures"
tenth amendment
"the federal government can't force states to carry out federal law. it can encourage states with money, but not command or coerce them"
test:
1. is the federal government telling states or state officials what to do?
- yes, then commandeering which is unconstitutional. no, then step 2
2. is the law based on a real federal power, like commerce, taxing, or spending?
- no, then unconstitutional
3. if money is offered to states (spending power):
- are the rules clear?
- are they related to the money's purpose?
- is it not too coercive? (threatening to take all funds)
-- if yes, then ok. if too coercive, then unconstitutional
mootness
a case is moot if the problem is already over and the court can't fix anything. courts only hear live disputes where a real remedy is still possible
2-part test:
1. live issue: is the problem still happened?
2. remedy: can the court still do something to help?
exceptions:
1. capable of repetition, yet evading review: it keeps happening but ends too fast to finish a lawsuit
2. voluntary cessation: the defendant stops now, but could easily start again
expressive speech: o'brien test
1. ordinance within power
2. ordinance furthers government interest
3. interest unrelated to suppression of expression
4. restriction no greater than necessary
school speech
schools can regulate lewd, vulgar, or plainly offensive speech if it undermines educational goals - even if it wouldn't be restricted in public
freedom of association - with people
1. enter and maintain close personal relationships
2. government can only interfere if it has
- compelling interest
- regulation is narrowly tailored
defining state action
a private party's conduct counts as state action only when:
- government is significantly involved
- private party is performing a traditional and exclusive public function
- government has encouraged, coerced, or entangled itself in the private function
political questions
these are issues the constitution gives to another branch, so the courts don't handle them
test:
- constitutional assignment: does the constitution give this to another branch? - no clear rules: can't the court make a decision because it's too political?
- separation of powers: would the court interfere with another branch's job?