Con Law

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Source of Federal Judicial Power

Back 1

Article III Section 1 provides that the judicial power of the US shall be vested in one supreme court and in such inferior courts as the congress may from time to time ordain and establish

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Scope of Fed Judicial power

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cases arising under US Const, fed laws, and treaties

ambassadors, public ministers, and consuls

admiralty and maritime

cases in which US is a party

controversies between 2 or more states

cases between a state and a citizen of another state

cases between citizens of different states (diversity citizenship)

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11th amendment

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prohibits citizens of one state from suing their own state or another state on fed claims for money damages, in fed ct or state ct, without the state's consent

recognizes states' governmental immunity!

applies to diversity suits AND fed question cases

Sovereign immunity -the gov't cannot be sued without its consent!

BUT subdivisions of a state (cities, towns, etc) do NOT have immunity from suit under 11A

11A prohibits fed ct adjudications of claims by private parties against a state - despite Congress' enumerated powers under Art 1

Congress CAN authorize private suits by individuals to compensate for state violations of 13A, 14, and 15

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Exceptions to 11A

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suits against state officials for abusing their power in enforcing an unconstitutional state statute

fed suits brought by one state against another state, or suits brought by fed gov't against a state

most suits for injunctions - a private citizen may sue to enjoin a state official from acting in violation of P's fed const rights

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How states consent

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must clearly waive its 11A immunity and does so expressly and unequivocally (or by invoking fed ct jx)

state will NOT be held to have impliedly or constructively waived its immunity simply because Congress provides that a state will be subject ot private suit if it engages in certain federally regulated conduct (like infringing a federally granted patent) and the state voluntarily elects to engage in that conduct

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Complete preclusion of all jurisdictions may occur in certain instances!

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Ex: probation officers owed money under fed law cannot sue for it in either fed or state court!!

also, state can infringe patents or copyrights and thus violate fed law, but cannot be sued in either fed or state court by private parties unless they consent (BUT state officials CAN be sued for injunctive relief!)

Front 7

Limitations on Jx of Fed Cts

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case or controversy, mootness, ripeness, abstention, standing, political questions

Front 8

Case or controversy

Back 8

Art III, Section II limits jx of fed courts to cases and controversies

a case or controversy is a real and substantial dispute that touches the legal relations of parties having adverse interests and that can be resolved by a judicial decree of conclusive character

SCOTUS will NOT give advisory opinions to either the president or Congress concerning the consitutuionality of proposed action or legislation

does NOT preclude fed courts from granting declaratory judgments - a decision in which the court is requested to determine the legality of proposed conduct without awarding damages or injunctive relief. However, P must meet the case or controversy tests, as well as RAMPS

STATE courts MAY be allowed to render advisory opinions

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Mootness

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if a controversy or matter has already been resolved, then the case will be dismissed as moot - an ACTUAL case or controversy must exist at ALL stages of litigation (even if PRINCIPAL issue in lawsuit has been resolved, party still has an interest if there are collateral matters)

the case will not be dismissed for mootness if the injury is capable of repetition, yet evading review - like abortion

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Ripeness

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bars consideration of claims before they have fully developed - court will consider fitness of the issues for judicial determination and hardship to the parties from withholding court consideration

Case may be dismissed as unripe where a statute has never been enforced and there is no real threat that it ever will be (but sometimes they will - evolution case)

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Abstention

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fed ct may refuse to hear a particular case, when there are undecided issues of state law presented - this permits state court to resolve issues of state law, thereby making decision of a const issue unnecessary

fed court may abstain if meaning of state law or regulation is unclear - state court might interpret statute so as to avoid const issues

where state crim proceedings are pending, fed ct will abstain in a suit seeking injunction against state prosecution, absent a showing of bad faith harassment on the part of the state prosecutors - also, where state civil proceedings had commenced, or where civil contempt hearings had begun

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Standing

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Article III requires a person litigation a const question to show:

injury-in-fact: P must show direct and personal injury, actual or imminent, caused by action that he is challenging

causation: the injury was caused by the challenged action - injury must be caused by violation of duty affecting P's rights arising under cost or fed law

redressability: P must show that he will benefit from the remedy sought in litigation

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Specialized Problems of Standing

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generally, fed taxpayers do not have standing to challenge allegedly unconst fed expenditure on grounds that their injury is comparatively minute and indeterminative, and their interest is too remote

EXCEPTION: fed taxpayers have standing to challenge fed expenditures to aid parochial schools where taxpayer was challenging expenditure of money by Congress and violating Est. Clause (has not been extended to other areas of gov't activity)

traditionally, litigant lacks standing to assert the rights of 3rd parties not before the court

EXCEPTION: when P himself has suffered injury AND special relationship exists between claimant and third party because of the connection between the interests of the claimant and the const rights of the third person (physician-patient abortion, seller of banned stuff, etc) OR

the third party is unable of finds it difficult to bring suit on their own behalf

an association has standing to assert the claims of its members, even if the association has not suffered any injury itself IF

members would otherwise have standing to sue in their own right; interest asserted is germane to association's purpose, AND neither claim asserted nor relief requested would require participation by individual members in the lawsuit

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Political Questions

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Fed cts cannot hear cases involving political questions, which are matters assigned to another branch by the const or incapable of a judicial answer

Factors:

whether there is a textually demonstrable const commitment of the issue to a coordinate political dept

a lack of judicially discoverable and manageable standards for resolving it

impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion

impossibility of ct's undertaking independent resolution without expressing lack of respect due coordinate branches of gov't

an unusual need for unquestioning adherence to political decision already made

potential for embarrassment from multifarious pronouncements by various depts on one question

these recognize separation of powers and limitations of judiciary in resolving certain types of controversies

Other areas of political questions include decisions in regard to: impeachment process, amendment ratification process, president's power to unilaterally terminate a treaty, foreign affairs, and Guaranty Clause issues under Art.IV

**claim about racial gerrymandering is NOT a political question - but political gerrymandering IS a political question**

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SCOTUS and original jx

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Congress may neither enlarge nor restrict SCOTUS's original jx (ambassadors, states as parties, public ministers)

SCOTUS also has appellate jx, with such exceptions as Congress makes

SCOTUS has power to: hold acts of other branches of fed gov't unconst; hold state statutes unconst; review state court decisions to ensure that the states act in conformity with US Const and fed statutes; and decide other state law questions

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SCOTUS and diversity jx

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in cases of diversity jx, SCOTUS will defer to existing state court interpretation of state law;

will interpret state law which has not already been interpreted based on SCOTUS's prediction of how the state court will interpret the statute;

and will abstain from a decision if the state court's interpretation of unsettled state law could end the dispute and the SC cannot predict how the state court will rule

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Methods for invoking SCOTUS appellate jx

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by appeal (where jx is mandatory) - in 1988, act of Congress reduced obligatory review on appeal to decisions of 3-judge based fed district courts (so SCOTUS only HAS to hear your case when a 3-judge fed district court appeals)

by writ of certiorari (discretionary review where four or more justices vote to hear the case)

since the two categories of decisions that were subject to obligatory review on appeal have been eliminated, practically all decisions fro state supreme courts and federal courts are now reviewable by writ of certiorari, except decisions made purely on state law

Grounds for certiorari include: cases involving conflicts between different fed cts of appeal; highest cts of two states; highest state ct and a fed ct of appeals; or cases from state courts or US courts of appeal involving important, yet unresolved issues

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Adequate and Independent State Grounds

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although a state court decision may involve a fed question, if state court judgment can be supported on adequate and independent state ground, SCOTUS will not take jx - NO ADVISORY OPINIONS

where a state ct clearly states that state law violates other state law or a provision of the state const, that decision will be an adequate and independent state ground (regardless of whether the opinion also decides that state law violates a fed law as well)

where state ct's decision is based upon a fed interpretation of a similar fed law, adequate and independent state grounds will not apply, and SCOTUS may review it

where it is unclear whether the state court made its decision based upon state or federal interpretations of statutes, SCOTUS may take the case, although it also has the power to dismiss or remand the case for CLARIFICATION from state court - SCOTUS must look to the four corners of the opinion to see where the interpretation comes from. If they can't tell, they can: obtain clarification from state ct, OR presume that the state ct decision was rooted - at least in part - by fed law, and review the case

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Congress's Legislative Power

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legislative power is primarily the power to make laws, but incidental to that power is the right to conduct investigations and hearings, consider matters upon which legislation may be enacted, and do all other things necessary and proper to the enactment of legislation

Congress has enumerated power to collect taxes and spend money for general welfare, to borrow money on credit of US, to regulate and to raise and support the army, navy, and militia

The necessary and proper clause gives Congress implied power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this const in the gov't of the US, or any dept or officer thereof

enabling clauses of 13, 14, and 15 give Congress power to enforce those amendments by appropriate legislation

SO congress can make laws and conduct investigations and hearings!

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Commerce Power

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Congress can regulate: channels of interstate commerce, instrumentalities of interstate commerce (cars, trucks, etc), and activities that substantially affect interstate commerce

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Commerce Power: Affectation doctrine

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Congress now has the power to regulate any economic activity, whether carried on in one state or many, that has a SUBSTANTIAL EFFECT (whether directly or indirectly) upon interstate commerce

To use substantial effects test, Congress must show: that regulated activity is ECONOMIC in nature; and that the regulated activity (when taken cumulatively throughout the nation) has a SUBSTANTIAL EFFECT on interstate commerce

Cumulative effect doctrine: federal commerce power permits regulation of the amount of wheat a farmer can grow on his own land, for own consumption, because his activity, together with that of other farmers, had a substantial CUMULATIVE effect upon interstate commerce!

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Limits on commerce power

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Lopez! gun possession near schools is neither an economic activity, nor an activity that substantially affects interstate commerce, and since no jurisdictional element connecting particular gun possession to interstate commerce was expressed in the language of the statute, this was beyond limits of commerce clause!

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Other commerce clause applications

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upholding laws aimed at barring racial discrimination in activities connected with interstate commerce; upholding fed law prohibiting extortionate credit transactions (major source of revenue for organized crime, which then affects interstate commerce)

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10A and commerce clause

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10A is a very weak limitation of fed commerce power - generally applicable fed laws that regulate the states (state businesses and/or employees) do not violate 10A

10A DOES prevent Congress from interfering with state's lawmaking processes - may not commandeer leg processes for state by DIRECTLY COMPELLING them to enact and enforce a fed regulatory program!

Also prevents Congress from commandeering state exec officials! Can't order them to act as administrators of fed programs

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Taxing Power

Back 25

Congress can lay and collect taxes to raise revenue

A congressional act purporting to be a tax should be UPHELD as a valid exercise of the taxing power provided that is DOES raise revenue (objective test) OR that is was INTENDED to raise revenue (subjective test)

16A gives Congress power to collect taxes on incomes derived from ANY source

Congress has used its taxing power as a necessary and proper means o achieving a REGULATORY effect - as long as they have power to regulate activity taxed, tax can the be used as a regulating device rather than for revenue-raising purposes

Even when Congress does not have power to regulate activity taxed, tax will nevertheless be upheld if its DOMINANT INTENT is revenue-raising - so if it raises revenue, it's valid

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Spending Power

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Congress has power to lay and collect taxes to pay the debts and provide for the common defense and general welfare of US

General Welfare Clause - limitation on Congress's taxing and spending powers - not an independent source of congressional power - Congress's power to tax and spend must be exercised for the general welfare of the US

by exercising its spending power, Congress can require states to comply with specified conditions in order to qualify for federal funds

SCOTUS held that Congress may place a condition on the receipt of fed funds by a state if: spending serves general welfare, condition is unambiguous, condition relates to federal program, state is not required to undertake unconst action, and amount in question is not so great as to be considered COERCIVE to the state's acceptance

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War and Defense Powers

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Congress may: declare war; raise and support armies; provide and maintain a navy; and organize, arm, discipline, and call forth a militia

Congress has broad authority to initiate whatever measures it deems necessary to provide for national defense, in peacetime and wartime (the draft is fine, wage, price and rent control of civilian economy during war is fine, excluding civilians from certain restricted areas during wartime is fine)

Congress has power to establish military courts and tribunals - not Art III courts, so the accused is NOT entitled to same procedural safeguards set forth in Bill of Rights (right to jury trial or grand jury indictment)

Military cts have jx over offenses committed by servicemen on military post or area under military control - jx is determined by status of individual as armed service member, NOT connection between service and offense

Military cts also have jx over current members of armed forces, even while on a pass or on leave, for nonservice matters

as long as civilian courts are available, military cts do NOT have jx over civilians and their dependents unless Congress has affirmatively granted such jx

although civilian cts have no general power of review over court-martial proceedings, there can be a limited exam of regularity of such proceedings by a civilian ct

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Investigatory Power

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Necessary and Proper clause permits Congress to conduct investigations incident to its leg power!

Congress's investigatory power is broad, and it may extend to any matter within a legit legislative sphere

if a witness fails to appear after being summoned before a congressional committee or fails to answer a question posed by such a committee, Congress may either CITE the witness for CONTEMPT, or REFER the matter to US attorney general for PROSECUTION

Generally, a witness can raise as a defense: privilege against self-incrimination; lack of due process safeguards; or interference with 1A rights to privacy and freedom of association

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Property Power

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Congress has power to dispose of and make all needful rule and regulations respecting the territory or other property belonging to S

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Power of Eminent Domain

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Although Const does not expressly give Congress power of eminent domain, power to take property is implied in aid of other powers granted to fed gov't

power is limited! 5A provides that private property shall not be taken for public use without just compensation

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Admiralty and Maritime Power

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SCOTUS says that Necessary and Proper clause gives Congress complete and plenary power to fix and determine the maritime laws throughout the country

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Bankruptcy Power

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Congress has the power to establish uniform laws on subject of bankruptcies throughout the US

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Postal power

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Congress may establish post offices and post roads (now it is a self-operating entity within the gov't)

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Copyright and Patent Power

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Congress may promote progress of science and useful arts by securing for limited times to authors and inventors exclusive right to their respective writings and discoveries

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Speech and debate clause

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Senators and Reps for any speech or debate in either house shall not be questioned in any other place

protects legislators and their aides against criminal or civil proceedings for legislative acts!

HOWEVER, they can be liable based on defamation for issuing press releases or newsletters that injure reputation - they are INSULATED for acts that occur in regular course of leg process, but that does NOT bar prosecution for taking a bribe to influence legislation

it DOES forbid cts from enjoining members of Congress or their aids from issuing subpoenas or conducting their inquiry

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Civil War Amendments

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Congress has power to enforce 13(banning slavery); 14 (prohibiting states from violating protections regarding due process) and 15 (prohibiting states from discriminating in voting rights)

To validly enforce 14 or 15, Congress must show that: state gov'ts have engaged in widespread violations of amendments AND leg remedy is congruent with and proportional to the violations

Congress may enforce 13 even when the state governments have not violated the amendment - HOWEVER, congress may enforce 14 and 15 ONLY when state gov'ts have widely violated those amendments

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Appointment Power

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Article II - exclusive power to nominate high-level officials sch as cabinet members, ambassadors, and heads of agencies - BUT senate has power to confirm or reject President's nominees for such high-level appts

Pres appointment power is a limitation on congressional appointment power. Although Congress can appoint officials to its legislative committees, it cannot appoint members to any agency or commission with administrative powers

Congress can delegate the appointment of INFERIOR officers (including special prosecutors) to: the president, judiciary, or heads of departments

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Removal Power

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Although US const is silent with respect to removal opower, it is generally agreed that the pres may remove any exec appointee (ambassador, cabinet member) without cause

however, pres MUST have cause to remove executive officers having fixed terms and officers performing JUDICIAL OR QUASI JUDICIAL (like a member of the FTC) functions

Congress has no power to summarily remove an exec officer

fed judges cannot be removed by either Congress or pres during good behavior; formal impeachment proceedings are required for removal

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Veto Power

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once congress has passed legislation and presented it to pres, pres has 10 DAYS in which to act upon it. Unless he vetoes it within the 10 day period, it becomes law

pres can POCKET VETO a bill passed within 10 days of the end of a congressional term by not signing it

Congress has power to override a veto by 2/3 vote of both senate and house of reps

line-item veto - gives pres the power to cancel particular provisions of new federal legislation - UNCONSTITUTIONAL! It's a grant of power to the pres to amend a statutes, and that's valid ONLY when congress enacts a new statute followed by presidential signature

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Congressional Legislation and Presidential power

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pres may exercise only those powers expressly or impliedly granted by const or an act of congress. Moreover, if congress validly exercises one of its powers and overrides the pres, then congress prevails over president

Congress can enact leg that delegates rulemaking power to an exec or admin agency in some designated subject areas (like securities law, labor law, environmental law, etc), creating a HUGE exception to general rule that exec branch may not make law

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Pardon Power

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pres may grant reprieves and pardons for offenses against US, except in cases of impeachment

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Exec Privilege

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president has an absolute privilege to refuse to disclose info relating to military, diplomatic, or sensitive national security secrets

other confidential communications between pres and his advisers are presumptively privileged

BUT the presmption is overcome when confidential communications are subpoenaed as evidence in a criminal trial

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Obligation to Report

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pres needs to give the State of the Union address

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Commander in Chief- Military Powers

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pres has power to deploy military forces without a formal declaration of war in response to an attack upon the US

he additionally has power to seize private property during wartime unless Congress denies him that power

**President does NOT have power to declare war**

Unsettled Areas: it's unclear whether pres may commit forces without congressional approval to aid a US ally under attack and whether the president may order a preemptive strike in anticipation of an enemy attack

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Treaty Power

Back 45

Pres has power to make treaties with foreign nations by and with the advice adn consent of the Senate - Treaties require 2/3 of the senate before they can be enacted!

treaty is self-executing when it takes effect without the necessity of any further action by COngress beyond consent or ratification

a treaty is NOT self-executing when it requires Congress or state legislatures to pass legislation to implement its provisions - i.e. requiring a change in either fed or state law which would enable fulfillment of treaty obligations

in accordance with supremacy clause: self-executing treaties are considered the supreme law of the land, whereas treaties which are not self-execting become part of the supreme law of the land, and thus supersede existing fed and state statutes, only when further leg action is taken by Congress

Treaties win over conflicting state law regardless of whether a treaty precedes or follows it - BUT when treaty and fed statute conflict, last in time will prevail

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Executive Agreement

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the president has the power to enter into executive agreements and compacts with foreign nations.

these agreements PREVAIL over inconsistent state law!

Exec agreements are the sole responsibility of the president, and need NOT be ratified by Congress

Exec agreements do NOT prevail over fed statutes

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Congressional Limits on Executive

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Foreign Affairs - if Congress is acting within its constitutional powers, Congress may block the president from acting

Impeachment Power - House of Reps has sole power to impeach - Senate has sole power to try impeachments - 2/3 vote required for conviction!

Legislative Veto - occurs when Congress enacts a law containing a provision that Congress can change the law without a new congressional vote or presidential signature - UNCONSTITUTIONAL - violates requirements of bicameralism and presentment to the pres

Investigative Power - Congress has implied power to conduct investigations concerning all matters over which Congress has jx (Necessary and Proper clause)

Delegation to Exec - Congress can delegate authority to make rules have power of law to exec branch (agency rulemaking)

Appropriations Power - Congress by legislative act explicitly directs the president to spend appropriated money, the president has no power to impound the authorize funds by refusing to spend it

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Presidential limits on Congress

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Every act of Congress must be approved and signed by pres before it can become law, or, being disapproved, must be passed by 2/3 vote of each house

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Judicial Limits on Congress and President

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federal judiciary is the ultimate arbiter of cases whose disposition depends upon construction of teh Constitution, an act of Congress, or a federal treaty

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Pyramid power of US law

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US Const --> treaties and federal statutes (last in time) --> exec orders and agreements --> state const --> state law and ordinances

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Nature and Scope of Federal and State powers

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federalism: co-existence of national gov't and state gov'ts

States have general police power - Feds have NO police power

Feds must legislate through enumerated powers, while states may regulate any health, safety, welfare, moral, or aesthetic interest through their respective police powers

US Const limits state's police power by: reserving certain enumerated powers exclusively for fed gov't; restricting both fed and state gov'ts from acting in violation of constitutional provisions; and providing under the Supremacy clause that if congress enacts legislation with the intention of preempting state law, the congressional reg will control

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Immunity of the Federal Gov't

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fed gov't and its agencies are immune from suits by private individuals except where they allow themselves to be sued

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Taxation of the Fed Gov't by a State

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Fed gov't and its agencies are immune from state taxation and state regulation!

States MAY nevertheless collect a nondiscriminatory tax on persons who deal or contract with the fed gov't

state's sales ax on goods purchased by a contractor performing work for fed gov't is okay! but that sales tax is invalid if it falls on fed gov't itself. Also, state property tax is valid when applied to a building owned by US but used by a contractor, and a building owned by contractor doing work for the US will be subject to property tax. AND state income tax applied to employees of US domiciled within the state is valid!

Supremacy clause impliedly prevents states from regulating the activities of agents or instrumentailities of fed gov't if the regulation will interfere with the gov't's ability to carry out its federal functions

Congress has power to dispose of and make all needful rules and regulations respecting territory or other property belonging to the US - so federal lands (military bases, Indian reservations, FBI offices, etc) are subject to the authoirty of the fed gov't, except to the extent that Congress has ceded jx to the state!

States CANNOT require fed contractor to obtain a state license to construct facilities at an air force base

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Immunity of State Gov'ts

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Not immune from suits by fed gov't (SCOTUS has original, but not exclusive, jx)

not immune from suits by sister states (SCOTUS has original AND exclusive jx)

immune from most suits by state citizens under 11A (unless it consents, or a state officer may be sued for injunctive relief)

Congress can't commandeer state gov'ts

States enjoy immunity from federal taxation if tax is applied to either unique state activities or essential governmental functions

where a state engages in a proprietary business (one similar in nature to business operated by a private individual), then the state may be taxed to the same extent as a private citizen

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10th Amendment - authority reserved for the stats

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10A privdes that powers not delegated to the US by const, no prohibited by it to the states, are reserved to states respectively, or to the people

Const specifically prohibits any state from: making treaties with other nations, coining money, passing a bill of attainder, enacting an ex post facto law, impairing obligation of contracts, laying any duty on imports or exports, except where necessary for executing inspection laws, engaging in war, or maintaining a peacetime army

Anti-Commandeering Doctrine: 10A prohibits fed gov't from using enumerated power to force a state leg to pass a law or a state executing official to administer a fed program

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Dormant Commerce Clause

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Limitations on how states can regulate local transactions affecting interstate commerce

State law facially discriminates between out of state and in-state economic actors, state must show that: 1) reg serves a compelling state interest AND 2) reg is narrowly tailored to serve that interest

state law incidentally burdens - must show: 1) important state interest and 2) the burden is NOT EXCESSIVE in relation to interest served

exceptions - congress may expressly authorize states to legislate areas that would violate dormant CC and when states act as market participants, they may discriminate between in-state and out of state businesses

Traditionally, it is within state's police power to enact legislation for protection of health, safety, and welfare

if state reg furthers no ostensible benefit and imposes a substantial burden on interstate commerce, it will likely be held unconst

generally, public health measres are upheld so long as they do not discriminate against or unduly burden interstate commerce

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Reserved State Power in Taxation

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state taxation of interstate commerce permissible as long as tax does not discriminate against or unduly burden interstate commerce

Court will consider 4 factors in determining validity:

1) substantial nexus between activity taxed and taxing state (taxpayer must have sufficient contacts or presence within taxing state - substantial nexus is MORE than minimum contacts under the DPC

2) tax must be fairly apportioned (taxpayer has burden of proving unfair apportionment)

3) tax must not discriminate against interstate commerce (tax favoring local commerce will be invalidated unless okayed by Congress - Privileges and Immunities clause in Art IV prohibits state taxes that discriminate against nonresidents)

4) tax must be fairly related to services provided by taxing state

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Various Types of State Taxes

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states not permitted to levy an ad valorem tax on goods that happen to be in the taxing state on the tax day if those goods are still in the course of transit - however, validity of such ad valorem property taxes as applied to intrumentalities of commerce (airplanes, RR cars) depends upon:

wehter there is a taxable situs (nexus) within the state; and whether the tax is fairly apportioned to the amount to time the equipment is in the state

sales tax, use tax, doing-business tax, net income tax, flat license fee, license tax

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Sales tax

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tax upon the transfer of title of goods consummated within the state

if the sale is in the state (even if buyer takes good outside state) sales tax is VALID

if the sale is made to a buyer OUTSIDE the state (like seller delivers goods to out of state buyer) then sales tax in INVALID

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Use tax

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tax upon use of goods within state that were purchased outside of state

validity depends on whether the interstate seller, who receives goods from outside state, has a sufficient nexus within the taxing state

if seller maintains offices within taxing state (or even sends salespeople into the state as employees or independent contractors), there is a sufficient nexus even those tax imposed on interstate mail-order sales!

by contrast, if no sales office is maintained in state and all selling is done by mail, there is not sufficient nexus with the taxing state to justify the collection of a use tax

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Doing-business tax

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aka privilege, occupation, franchise, license, gross receipts, or net income tax!

can be measured by eiteher flat annual fee or a graduated rate based on proportion on amount of revenue derived from taxing state

as a general rule, such taxes must relate to the benefits conferred by taxing state upon interstate business

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Net income taxes

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may be applied by state upon a company engaging in interstate commerce or on a nonresident engaged in business of taxing state

a net income tax is valid only as long as the tax is fairly apportioned, has significant nexus, and is nondiscriminatory

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Flat license fee

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generally UNCONSTITUTIONAL

fee levied by state upon solicitors who solicit local orders and then fill them out of state and ship them through interstate commerce

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License tax

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on peddler or itinerant salesperson is valid when state levies it upon a seller who actually sells and delivers product within the state

license is valid as nondiscriminatory only as lon as tax fairly apportioned with an equal application to local salespeople

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State action v. private action

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State action requirement - constitutional rights can ONLY be violated by governmental actors!

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14th and 15th amendments

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Prohibit governmental conduct, and not private, and NOT private conduct which infringes upon protected individual rights

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Federal Violation of Const Rights

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private actors cannot violate Bill of Rights and other constitutional amendments that constrain federal gov't

the fed gov't CAN violate those individual rights!

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Exceptions to state action rule

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State action ca be found in the acts of private actors under:

the public function theory: where a private entity is carrying on activities traditionally and exclusively performed by the gov't

significant state involvement, endorsement, or encouragement theory: gov't and private entity are so closely related that the action by the private party fairly can be treated as action by the gov't

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Public Function Theory examples

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company town! streets, although privately owned, were the functional equivalent of city streets

BUT company town rationale did NOT apply to privately owned shopping center

since holding an election is a public function, a political part cannot racially discriminate about who votes!

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Significant State Action Theory examples

Back 70

restaurant owner whose business located in building owned by city can't discriminate

state court enforcement of restrictive covenants prohibiting sale or property to blacks is not okay!

BUT no state action in granting a liquor license to a private club that racially discriminated

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13A

Back 71

prohibits slavery and involuntary servitude

provides Congress with power to pass legislation prohibiting badges and incidents of slavery, and thus can be used to proscribe purely private acts of forced labor without requirement of state action!

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Supremacy Clause

Back 72

provides that Const, treaties, and law of US are supreme Law of the land

fed law will supersede any state law with which it is in direct conflict

Congress can preempt any state law in an area in which the exercise of fed power is const (where Congress does not intend to occupy the field completely, and state laws are not otherwise preempted, states may enact similar legislation)

Greater state protection is also permitted! where congress has legislated to establish minimum standards, states are free to enact more stringent standards than those mandated by fed law

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14A privileges and immunities clause

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long ago, SCOTUS said that the fundamental rights set forth in the Bill of Rights were NOT privileges and immunities of national citizenship

1999 - SCOTUS held that under 14A privileges and immunities clause (along with fundamental right to travel), new residents could challenge a state's denial of full unemployment benefits until a specified waiting period had been satisfied

the same year, ct struck down CA law limiting payment of welfare benefits for 1st year residents to the amount they would have received from their former state - this law violated right to travel freely from state to state, which ct said is protected by 14A P+I as a right of national citizenship

Front 74

14A DPC

Back 74

Doctrine of selective incorporation: incorporated bill of rights! 1, 4, 5, 6, 8, 2

Major rights NOT incorporated: 5 - grand jury in state criminal cases, 7 - right to a jury trial in state civil cases, 3 - preventing quartering soldiers in your home 8 - prevention of excessive fines

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Scope of DPC

Back 75

DPC and EPC protect rights of persons and NOT merely citizens

SO corporation IS considered a person for purposes of due process and equal protection, but NOT to self-incrimination privilege

aliens are considered persons for purposes of due process and equal protection

Front 76

Procedural due process

Back 76

5A and 14A - where there is a deprivation of one's life, liberty, or property interests, the individual is entitled to fundamentally fair procedural safeguards (like some form of notice and a meaningful hearing within a reasonably time)

Front 77

Deprivation of Liberty

Back 77

Bodily Restraints (state must give parolee evidentiary hearing before revokes parole or probation)

Physical Punishment (corporal punishment of pupils in a public school is valid, although a liberty interest exists)

Mental Institution (adversary hearing must be provided to adults before they are committed against their will - in the case of minor children, they need a screening by a neutral fact-finer is required)

Front 78

Acts that do NOT invade liberty interest

Back 78

injury to reputation (in the absence of other related harm)

forced administration of medicine

Front 79

Property interests

Back 79

public education, continued welfare benefits, retention of driver's license, public employment, prejudgment garnishment, forfeiture or property, business licensing

Front 80

Public Education

Back 80

there is a constitutionally protected property interest in the statutory entitlement to continued attendance at public school

BUT, no prior evidentiary hearing is required when a student is dismissed for academic reasons

Front 81

Continued Welfare Benefits

Back 81

a property interest is created by a statutory entitlement to continued welfare benefits

Front 82

Retention of Driver's License

Back 82

state may not revoke a driver's license without a hearing

Front 83

Public Employment

Back 83

property interest in a person keeping his job if the employment is under a tenure system or there is clear understanding, either express or implied, that the employee can be terminated only for cause
no property interest where police officer held his position at will of public employer!

no property interest when a state refuses to renew a fixed-term K

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Prejudgment Garnishment

Back 84

prejudgment attachment or garnishment of wages, without notice or hearing, violates procedural due process

property interest does not arise when an individual is first applying for employment. However, if the person has already been getting employment benefits, he has a property interest in continuing to receive them

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Forfeiture of property

Back 85

due process is satisfied where gov't sends certified letter to prison to notify inmate that property seized will be forfeited, because such an action is reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them opportunity to present their objections

Front 86

Business licensing

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1A and due process require that a licensing scheme for adult businesses provide applicants with prompt judicial determination of their claim that the gov't unconstitutionally denied a license, as opposed to mere prompt access to judicial review

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Life Interests

Back 87

capital punishment is clealry a deprivation of a life interest, and rigorous due process protections are applicable. When life interests have been claimed in other contexts, such as in abortion or right to die situations, SCOTUS has addressed it under other provisions of Const

Front 88

Type of process required in procedural due process

Back 88

once it's determined that there's sufficient deprivation of life, liberty, or property, the next step is to decide what process is required

FACTORS: private interest that will be affected by official action; risk of erroneous deprivation of this interest through the procedures used, and the probable value of additional or substitute procedures, and the gov't's interest in streamlined procedures, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail

Due process requires a judge to recuse himself when the judge has a pecuniary interest in the case, such that an average judge would possibly be tempted to render an imbalanced or untrue judgment

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Irrebuttable presumption

Back 89

sometimes irrebuttable presumptions violate procedural due process!

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Civil Proceedings

Back 90

SCOTUS held that a statutory presumption that a pregnant school teacher was physically incapable of performing her duties was unconstitutional

a state law requiring children of unwed fathers to become wards of the court was invalidated because its statutory effect was to create a conclusive presumption that unwed fathers were unfit parents

Front 91

Criminal Cases

Back 91

statutory presumption that possession of marijuana was conclusive proof that drug had been imported was invalidated, because it's frequently grown in the US

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Substantive Due Process - Economic Regulation

Back 92

NO LONGER used to protect rights of property and contract or to invalidate legislation that regulated economic activity

challenges to economic regulation are to be subjected to deferential RATIONAL BASIS scrutiny

burden is on challenger to prove regulation lacks rational connection to legit gov't interest

NEVER gets struck down on these grounds

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Substantive DP - fundamental rights

Back 93

Governmental regulation of fundamental rights of personhood get STRICT SCRUTINY - privacy rights!

Front 94

SDP Contraceptives

Back 94

Right of marital privacy - can't prohibit use of contraception

Single people have right to use it too

law prohibiting sale of contraceptives to minors except through licensed pharmacist UNCONSTITUTIONAL

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SDP Marriage

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the right to marry is deemed fundamental - any substantial interference with that right must be necessary to further a compelling interest

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Abortion

Back 96

Casey - rejected trimesters and adopted an UNDUE BURDEN standard

a woman has a protected privacy interest in choosing to have an abortion before fetus is viable

during first 2 trimesters (that is, before viability), gov't may regulate (but not ban) abortion in the interest either of the mother's health or of the potential life of the fetus. The regulation may not impose an undue burden on the woman's right to choose an abortion

for the period of time subsequent to viability, SCOTUS reaffirmed Roe in concluding that a state may regulate or even proscribe abortion except where it is necessary for the preservation of the life or health of the mother

Consent Requirements: neither spousal notification nor spousal consent may be required before a woman may obtain an abortion

parental consent may be required before an unemancipated woman under the age of 18 obtains an abortion if the state establishes a "judicial bypass" procedure through which a minor may obtain an abortion with the consent of a judge

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Public Funding for Abortion

Back 97

there is no constitutional right for indigent women to obtain gov't funding for abortions

furthermore, a state may prohibit the use of public facilities and public facilities and publicly employed staff in performing abortions

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Late-Term Abortion

Back 98

you need an exception for life and health of the mother - also when Nebraska tried to outlaw the procedure used in most 2nd trimester abortions, that was unconstitutional

BUT you can ban partial-birth abortion (with possibility for as applied challenges)

Front 99

Family Relations

Back 99

fundamental right exists for related persons to live together

zoning ordinance prohibiting members of extended family from living in a single household has been subjected to heightened scrutiny and held unconst

This fundamental right does NOT apply to unrelated persons

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Sexual Orientation

Back 100

stringent form of rational basis scrutiny - SCOTUS said a statute against gay sex furthered no legitimate state interest

parents were held to have protected liberty interest concerning the control of visitation with their children by others, including grandparents

Front 101

Private Education

Back 101

parents have a right to privately educate their children outside of public school system

Front 102

Obscene material

Back 102

the right to possess obscene material in the privacy of one's home in protected

BUT gov't can severely restrict sale, purchase, receipt, transport, and distribution of obscene materials, both in stores and through the mail

state can criminalize even private possession of child porn

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Right to Die

Back 103

the right of a terminally ill or comatose person to choose to die is NOT presently a fundamental right

nevertheless, a person has a well established due process liberty interst in not being forced to undergo unwanted medical procedures, such as life-support

but state has countervailing interest in preserving life - a terminally ill patient has no right to assisted suicide

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Right to Travel

Back 104

privileges and immunities clause of article IV, section II and the Commerce Clause mutually enforce the right of every citizen to travel freely from state to state

durational residency requirements for dispensing governmental benefits are subject to STRICT SCRUTINY

right to international travel is NOT absolute and may be subject to reasonable restrictions, and Congress may authorize the president to restrict travel to certain countries or danger areas

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Privileges and Immunities on the MBE

Back 105

frequently a wrong answer! Almost all privileges and immunities are protected by the Commerce clause, DPC, EPC

however, it is NOT entirely dead - it was an alternative to EPC protection with regard to right to travel

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Right to vote

Back 106

fundamental right of US citizens over 18 to vote extends to all fed, state, and local elections, as well as to PRIMARIES

Strict scrutiny review is used to adjudicate restrictions on the right to vote!

gov't regulations of ballot-access by candidates - based upon age, duration of residency, or payment of filing fees - requires only minim rational basis scrutiny

in addition, voter registration requirements and regulation of the time, place, and manner of casting ballots are valid so long as they do not impose an undue burden on right to vote

a rule of 1 person 1 vote is generally followed. Whenever the gov't attempts to establish a new apportionment or redistricting scheme, farily exact mathematical equality between districts is required so as not to dilute the fundamental right to vote

there MUST be equality in the distribution of the right to vote

EXCEPTION: voting CAN be limited to landowners for a special purpose water-storage district which cannot enact laws or perform gov't functions

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Takings clause

Back 107

5A - private property shall not be taken for public use without just compensation. This prohibition also applies to the states through the due process clause of 14A

extent to which a regulation advances a legit state interest is NOT a relevant factor in determining if a taking has occurred

Property can be taken by a variety of means: direct gov't appropriation, regulatory taking, temporary restriction, conditional permits

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Direct gov't appropriation

Back 108

where the state validly regulates for health, safety, or welfare purposes under its polic power, gov't action merely amounts to a regulation, and payment of just compensation is NOT required

However, a taking DOES occur where there is an actual appropriation of one's property

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A regulatory taking

Back 109

any permanent, physical invasion, NO MATTER HOW MINOR, will constitute a taking

a land-use regulation is a taking if it denies an owner all reasonable, economically beneficial uses of his land

to analyze regulations that merely decrease economic value, the court may use a balancing test to determine if there is a taking

Front 110

Temporary Restrictions

Back 110

when considering whether a takign has occurred, a ct will look at both the dimensions of a property interst (metes and bounds) and the term of years

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Conditional permits

Back 111

gov't can place a condition on the grant of a permit for land development if 1) there is a logical nexus between condition and governmental purposes and 2) there is rough proportionality between the impact on the proposed development and the governmental objectives served by the condition

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Takings and "public use"

Back 112

SCOTUS has interpreted "public use" language of the Takings Clause to mean "public purpose," and held that a city has the pwoer to take private property and transfer it to a private developer because of the public benefits of the proposed development

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Substantive due process and equal protection review applies...

Back 113

SDP review applies where law affects rights of all persons with respect to a specific activity (like a state law prohibits the sale of birth control devices except by prescription)

EPC review applies where a law affects the rights of SOME persons with respect to a specific activity (like state law prohibits the sale of birth control devices to unmarried persons except by prescription)

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Strict Scrutiny Standard

Back 114

Burden of persasion is on gov't to prove that the measure being challenged is NECESSARY to further a COMPELLING INTEREST

Necessary = there is no less restrictive alternative means available - very close fit between the mans and the end

the gov't usually fails to prove its burden under strict scrutiny, so an equal protection challenge to a law is generally successful

strict scrutiny review applies to gov't action that uses suspect classifications - RACE, ALIENAGE, and NATIONAL ORIGIN

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Intermediate Scrutiny Standard

Back 115

burden of persuasion is placed on GOVERNMENT to prove that the measure being challenged is SUBSTANTIALLY related to the achievement of an IMPORTANT gov't itnerest

substantially related: an exceedingly persuasive justification must be shown

intermediate scrutiny is way closer to strict than it is to rational basis

applies to quasi-suspect classes: GENDER and ILLEGITIMACY

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Rational Basis Standard

Back 116

burden of persuasion is on PLAINTIFF to show that the measre being challenged serves NO LEGIT GOV'T INTEREST or is not rationally related to any legit interest

Rational relationship - minimal requirement which means that the law cannot be arbitrary or unreasonable

practically any police power reg which furthers health, safety, or welfare purpose will be found legit - laws almost always upheld

rational basis review applies to all classifications not falling under strict or intermediate scrutiny, such as classifications based on age, poverty, wealth, disability, and need for necessities of life (food, shelter, clothing, med care)

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Proving Discrimination

Back 117

Discriminatory Intent - purposeful discrimination - MUST be shown to trigger strict or immediate scrutiny. Mere discriminatory effect is insufficnet. Discriminatory intent may be shown facially, as applied, or where a discriminatory motive exists

Facial Discrimination - arises where a law, by its very language, creates distinctions between classes of persons

Where a law that appears neutral on its face BUT in its APPLICATION has a disproportionate effect on a particular class of persons, strict or intermediate scrutiny will apply only if the court find a discriminatory PURPOSE exists

a facially neutral law can be applied in a discriminatory manner - where challenger can show a discriminatory purpose, the law will be invalidated

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Suspect Classifications - Strict Scrutiny

Back 118

Strict Scrutiny applies to classifications based on race, alienage, and national origin. Such laws will be presumptively invalid absent a showing by the state that the measure is necessary to achieve a compelling state interest

law prohibiting interracial marriages - unconst; deliberate de jure segregation - unconst; various plans to hinder desegregation, including closing of all public schools, public aid to private, segregated schools (tuition grants and exclusive use of public facilities - all unconst!

school boards have an affirmative duty to elminate the intentional racial segregation of schools (ct-orderd busing const when implemented to remedy past wrongs in particular school system - not getting white kids from outside districts to achieve integration)

where it can be shown that race was the predominant factor in defining the borders of a new election district - then strict scrutiny!

States may discriminate against aliens in activities where participation in the functioning of gov't is involved (state police officers, public school teachers)

SCOTUS has not held ILLEGAL aliens to be a suspect class - rational basis will apply

ONLY STATE laws that discriminate against aliens are subject to strict scrutiny - Congress has broad plenary power to regulate immigration

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Suspect Classifications - Intermediate Scrutiny

Back 119

Distinctions drawn between legit and illegit children subject to intermediate standard

Classifications must be substantially related to an important state interest

classifications that favor legitimates and disfavor illegitimates are generally struck down because overriding gov't interest in this area is not to punish offspring of an illicit relationship

GENDER - violate unless they serve an IMPORTANT gov't objectives and are substantially related to achieve those objectives

intermediate review applies whether the classifciation is invidious (intended to harm) or benign (intended to help or remedy past discrimination)

intentional, or purposeful, discrimination is required to trigger intermediate scrutiny; discriminatory effect is insufficient

Affirmative action based on gender is still intermediate scrutiny

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Affirmative Action

Back 120

must pass strict scrutiny

only justifications for affirmative action that have been upheld are: remedying the effects of past or present discrimination in a particular institution and achieving a diverse student body in an institute of higher education

school district may not assign individual students to schools based on race in order to achieve voluntary integration or racial balancing when school segregation is caused by social factors (DE FACTO segregation) and not cause by past or present gov't action (DE JURE segregation)

however, a school district is permitted to carry out such voluntary racial balancing by structural measures, such as redrawing school zones or building new schools

minority set-asides established by state or local gov't for construction projects (funding for minority-owned businesses) subject to strict scrutiny!

rule applies to any benign, or compensatory, program by any gov't entity that either favors or discriminates against racial or ethnic minorities

remedying past discrimination in a particular gov't institution is generally viewed as a compelling interest, but attempting to remedy general societal injustice through affirmative action is NOT

race or ethnic origin may be considered as a plus factor in admissions programs, for the purpose of achieving a diverse student body

However, a school may NOT use an admissions system that gives a set number of points to each minority applicant, even if the purpose is to create a diverse student body

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Other classifications

Back 121

Age is neither suspect nor quasi suspect - rational basis

poverty standing alone is not suspect

mental retardation is not quasi suspect - rational basis

Front 122

Privileges and Immunities - 14A

Back 122

very limited application

protected privileges and immunities: right to travel from state to state, to petition Congress for redress of grievances, to vote for national offices, to enter public lands, to be protected while in custody of US Marshals, and to assemble peaceably

**corps and aliens are NOT protected under 14A**

Front 123

Privileges and Immunities - Art. IV section 2 (Comity Clause)

Back 123

prohibits states from discriminating against nonresidents with respect to rights and activities that are fundamental to the national union

Corps and aliens are NOT citizens for these purposes

invalid forms of nonresident discrimination: state statute requiring nonresident commercial fisherman to pay a $2500 license fee to fish while a resident fisherman only pays 25

commuter tax applied to nonresidents who enter state to work, while residents exempt

state statute imposing residency requirements on women seeking an abortion - invalid because individual has funadmental right to seek med care

state law requiring employers to give hiring preferences to state residents

Doesn't protect nonresidents against ALL forms of discrimination:

state statute requiring nonresident to pay 225 for recreational hunting license, while resident pays 9, because it is within state's police power to regulate recreational, noncommercial activities

discrimination against nonresidents will be given special consideration if its purpose is the preservation of natural, state-owned resources

**discrimination against citizens or residents in regards to an ESSENTIAL economic right or liberty triggers Article IV P&I, whereas general economic discrimination against a business or entity is more often viewed using commerce clause**

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The Contract Clause

Back 124

to prevent state leg from passing retroactive laws impairing an existing contractual obligation

**applies ONLY to state legislation and NOT to state court decisions OR to fed gov't**

private contract can be modified by legislature under its police power when it is necessary to serve an important and legit public interest interest and the reg is a reasonable and narrowly tailored means of promoting that interest

so during Great Depression, statute imposing a moratorium on mortgage foreclosures was upheld

in determining whether a K may be modified, the court will consider: 1) severity of the impairment, and 2) importance of the public interest to be served

Front 125

Ex Post Facto Laws

Back 125

Constitution prevents both state and fed gov'ts from passing retroactive crim laws - Art I Section 10 Clause 1!

in general, a statute retroactively alters the criminal law IF:

1) makes criminal an act that was not a crime when committed

2) prescribes greater punishment for a crime after is commission;

3) decreases the amount of evidence required for conviction;

4) or extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired

Front 126

Bills of Attainder

Back 126

legislative act that that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct

Two places in Art 1 say no! Prevent both federal and state legislatures from passing bills of attainder

saying no member of the communist party can act as an officer of a labor union is the same as legislative punishment, and thus a bill of attainder

however, court later held that legislation authorizing gov't control of various presidential papers and tape recordings did not constitute a bill of attainder because the act was nonpunitive

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Establishment Clause

Back 127

where gov't program prefers on religion over another, STRICT SCRUTINY

where legislation or gov't program contains no religious or sect preference, SCOTUS follows LEMON

1) statute must have secular legislative purpose
2) primary effect or purpose must neither advance nor inhibit religion
3) statute must not foster an excessive gov't entanglement with religion

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Religious Activities Conducted at Public Schools

Back 128

Invalid: prayer and bible reading; law authorizing a period of silence for meditation or voluntary prayer; posting 10 commandments on the walls in public school classrooms; public school sponsoring a rabbi or other cleric to conduct a nondenominational prayer as part of graduation

state LEGISLATURE may employ a chaplain to conduct an opening day prayer, but a state court judge may not conduct such a daily prayer

on the other hand, refusing to fund religious groups and their activities simply because they are religious is not okay for schools to do

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Public School curriculum

Back 129

anti-evolution laws prohibiting teaching of Darwinian principles in public schools are unconst!

Front 130

Other Gov't Endorsement of Religion

Back 130

Displays that celebrate holiday season without favoring one religion over another are generally upheld - CONTEXT IS KEY

Look at extent to which objective observer would have perceived each display as governmental endorsement of religion

Front 131

Tax deductions for religious institutions

Back 131

usually SCOTUS upholds validity of property tax exemption for religious institutions as the equivalent of exempting other charitable orgs

tax exemption from sales and use taxes available only for the sale of religious magazines and books violates the Est. Clause as an endorsement of religion!

Front 132

Most gov't aid to schools unconst

Back 132

most gov't programs providing direct aid to parochial elementary and high schools have beenheld to violate Establishment clause because they involve excessive gov't entanglement with religion - BUT aid to ALL students is okay, as is busing for all, textbooks for all, public health services - basically if it's for all students and it's secular, it seems okay

BUT grants to parochial schools for salaries of teachers of secular subjects NOT okay - LEMON - entanglement!

Front 133

Providing public services through religious institutions

Back 133

fed grants to church-affiliated hospitals for maintenance and care of indigent patients have been held valid

Front 134

Free Exercise Card

Back 134

Gov't may NOT determine the truth or falsity of a person's religious beliefs, but MAY determine his sincerity in those beliefs!

public employment may NOT be conditioned on taking an oath based on religious beliefs

Where an individual's conduct is motivated by religious beliefs, the state may regulate or prohibit this activity if the regulation is neutral in respect to religion and is generally applicable - SMITH (exceptions: unemployment benefits and WI v. Yoder)

Where the gov't PURPOSELY interferes with particular conduct because it is dictated by religious beliefs, strict scrutiny analysis will be applied and the law will be held unconst unless it can be justified through proof of a compelling state interest served by narrowly tailored means

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Freedom of Expression

Back 135

Gov't may neither censor all categories of speech nor engage in content-based discrimination among different categories of speech (even if that speech is offensive)

EXCEPTIONS:

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Strict Scrutiny

Back 136

1) regulation of speech is allowable if it PASSES STRICT SCRUTINY

Front 137

Conduct Regulations

Back 137

2) Conduct Regulation - law which regulates conduct but creates an incidental burden on speech is allowable IF: 1) reg furthers an important or substantial gov't interest that is unrelated to the suppression of free expression AND 2) incidental restriction on speech is NO GREATER THAN IS NECESSARY to the furtherance of that interest

Do you really intend to control expression, not conduct? Strict scrutiny!

Front 138

Gov't as Speaker

Back 138

where the speaker is the gov't rather than a private actor, the gov't may discriminate based on the content of the speech

Where the gov't speaks, it may favor some views and disfavor others

Temporary installations by private orgs in public parks constitute private speech, but PERMANENT installations constitute GOV'T speech even if donated by private org

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Unprotected Speech

Back 139

a regulation which relates to unprotected speech is permissible

Unprotected Speech includes:

1) speech that advocates violence or unlawful action and is likely to produce such action (clear and present danger)

2) fighting words (words likely to incite ordinary citizen to acts of immediate physical retaliation) - look out for vague or overbroad statutes here!

4) Hostile audience speech (speech which elicits an immediate violent response against the speaker by an audience may be grounds for prosecution. The police, however, MUST make reasonable efforts to protect the speaker, to guard against a heckler's veto of unpopular speech!

5) Obscene speech (test: the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest (nat'l standard not used); work depcits or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and the work, as a whole, lacks serious literary, artistic, political, or scientific value (nat'l standard)

Child porn does not have to pass this test because of state's compelling interest in protecting children

6) defamatory speech

public official/figure, or statement involves matter of public concern? must prove actual malice (knowledge of falsity or reckless disregard for truth)

P is private person and statement concerns purely private concern? don't need to prove negligence or malice

P is a private person and subject of statement IS public concern? no actual malice needed, but must prove negligence about truth or falsity

Private P suing media D for false-light invasion of privacy concerning matter of public interest? need actual malice!

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Categories of speech that receive LOWER levels of protection than normal

Back 140

Commercial speech - protected if it's not false or deceptive and does not relate to unlawful activity. If it's not any of these things, gov't restrictions must: serve substantial gov't interest, directly advance that interest; and not be more extensive than is necessary to serve that interest

Sexual Speech - regulation of sexual speech must serve a substantial gov't interest and leave open reasonable alternative channels of communication

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Time, Place, Manner Restrictions - public forums

Back 141

Reasonable regulation of time, place, or manner of speech is allowed

Gov't may place reasonable TPM restraints in PUBLIC AREAS - streets, sidewalks, and parks

Regulations MUST: be content-neutral as to both subject matter and viewpoint; be narrowly tailored to serve significant gov't interest; and leave ample alternative channels for communication

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TPM - nonpublic forums

Back 142

Speech-related activities at nonpublic forums, like military bases, jails, gov't workplaces, and mailboxes, can be regulated by reasonable TPM restrictions IF:

they are viewpoint neutral AND reasonably related to a LEGITIMATE interest

Front 143

Freedom of Association

Back 143

State action which may curtail or have the effect of curtailing freedom of association is subject to close scrutiny!

Front 144

Public Employment

Back 144

In general, an individual cannot be denied public employment based upon membership in a political org unless the position is a high-level policy making position

an individual may be deprived of public employment for political association IF: 1) he is an ACTIVE member of a suvbersive org 2) such membership is WITH KNOWLEDGE of illegal aims of org and 3) he has a SPECIFIC INTENT to further those illegal ends

In the past, the court has chosen to deal with loyalty oath qualifications under vagueness and overbreadth doctrines

They CAN make public employees swear an oath to support the Const

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Prior Restraint

Back 145

gov't cannot suppress or restrain speech in advance of its publication or utterance - strong presumption against const validity of ANY system of prior restraint

EXCEPTIONS:

gov't agency can require prepublication review of writings related to employment of past or present employees where such a review is necessary to protect nat'l security

classified military info

Is restraining order against pretrial publicity appropriate? Look at: 1) nature and extent of pretrial publicity 2) availability of other measures to mitigate the effects of pretrial publicity and 3) the likely effectiveness of the restraining order

Requiring films to be submitted to Board of Censors before showing them are const IF: 1) standards for denial of license are nearrowly drawn and reasonable, 2) where license is denied, censor promptly seeks an injunction 3) burden of proving material is obscene is on censor 4) prompt judicial determination is provided

Rally/Parade License okay IF:

1) content-neutral as applied (message cannot be considered in granting permit) and 2) does not give licensing officials UNFETTERED discretion to determine who may receive a permit

IF the statute is facially void (gives licensing officials unrestricted discretion), speaker need not even apply for a permit - just go ahead

But generally, if one is enjoined from speaking, you must either obey injunction or appeal it - unless facially void

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Overbreadth

Back 146

Wording of a statute must be narrow and specific, and not overly broad so as to have a chilling effect upon protected speech

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Vagueness

Back 147

Governmental regulations must be drawn with narrow specificity

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Press

Back 148

Press has no greater freedom to speak than any ordinary member of the general public

gag orders pretrial will almost never be held const because judge has other options

newsperson has no 1A right to refuse to testify before a grand jury

generally, any prior restraint on publication will be uconst

Front 149

Bar Admission

Back 149

state is permitted, under DPC, to inquire into the qualifications and fitness of candidates for admission to the bar

state can refse bar membership to applicant who refuses to answer questions if his refusal obstructs bar examiner's investigation of his qualifications

bt cannot deny admission for past Communist party membership!