Constitutional Law For Bar

Front 1

Standing: Injury

Back 1

1. Injury: P must show injured or imminently will be injured, must be personally injured (Sierra--send someone to park to use it)
□ Congress can define injury. Not established with mere ideological objection.
□ Injunctive or declaratory relief: show likelihood of future harm (LA v. Lyons)
□ Exam tip: best standing--P who has personally suffered injury, and if more than one, then P who suffered economic damages.

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Standing: causation and redressibility

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2. Causation and redressability: P must allege D caused injury and favorable court ruling would redress harm (i.e. not advisory).
□ Federal statute: tax exempt status must provide free indigent care. Rev. Rul. says free indigent care not required. Indigents who sue do not have standing because cannot show the forcing IRS to remove rev. rul. would mean free care

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Standing: no third party standing

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3. No third party standing: P cannot assert claims of others who are not before court because P's must present personally suffered injuries
□ Exceptions:
® Close relationship: P can be trusted to adequately represent injured parties' interest. (Doctor-patient, not parent-child if no custody)
® Unlikely to assert: if injured third party is unlikely to be able to assert own rights. (Criminal defendants on behalf of prospective jurors who are discriminated against in peremptory challenge stage of jury selection.)
® Associational standing: organization can sue for members if (1) members have standing, (2) interests are germane to the organization, (3) claim/relief does not require individual members.

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Standing: no generalized grievances

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4. No generalized grievances: must not be suing solely as citizen or taxpayer.
□ Exception: Taxpayer has standing to challenge government expenditures (money) as violating Establishment Clause (but no standing for property grant to religious institutions).
□ Exam Tip: fact pattern will usually say P suing as “citizen” or “taxpayer”.

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Ripeness

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○ Ripeness: Is the matter ready for review? Ripeness usually achieved when violation of law occurs, defendant is prosecuted, and defendant challenges the law’s constitutionality. If someone wants declaratory judgment without first violating, ask whether a federal court may grant pre-enforcement review of a statute or regulation
§ Evaluation: 1) hardship suffered without pre-enforcement review. 2) Fitness of issues and record for judicial review.
□ Example: FDA requires stating generic name of drug in ad, companies sued saying no authority, Court held ripe because hardship (violate and fined or spend millions to comply) and fitness (authority is pure question of law so record is complete).

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Mootness

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○ Mootness: if events after filing lawsuit end P's injury, then case must be dismissed as moot because P must present a live controversy. Non-frivolous money damages keep claim alive even if P dies.
§ Exceptions: when the end of P’s injury does not end suit—
□ Wrong capable of repetition but evading review because of inherently limited time duration (will happen to that plaintiff again).
□ Voluntary cessation by defendant of the harm to plaintiff (but could start again at any time).
□ Class action where named plaintiff’s claim is moot, but one member in class has ongoing injury.

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Political question

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Political question doctrine: federal courts will not adjudicate. Best left to political branches
§ U.S. guarantee to each state “republican form of government clause”
□ Exam Tip: If local government practice or structure is challenged by claiming violation of the republican form of government clause, Court will dismiss as political question.
§ Foreign policy: challenges to the President’s conduct of foreign policy (including War without vote in Vietnam).
§ Impeachment and removal process
§ Gerrymandering: challenges to partisan districts redrawn to maximize votes

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Supreme Court Review

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○ Writ of Certiorari: most cases come to Court by writ.
§ Discretionary: All cases from state courts; All cases from courts of appeals come by writ (4 judges to hear case). Obligated to hear case only for appeals from 3-judge district court panel.
○ Original and exclusive jurisdiction over cases between state governments. Original jurisdiction for cases with ambassadors, public ministers, consuls.
○ Final judgment rule: Court can only hear case after final judgment by highest state court or court of appeals.
○ State court review: must not be independent and adequate state law ground of decision. Two grounds, state and federal, if SCOTUS reversal on federal ground will not change result, SCOTUS will not hear case.

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State immunity

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○ State immunity: Generally, Federal Courts and State Courts may not hear suits against State Governments. 11th Amendment bars suits against states in Federal court. Sovereign Immunity bars suits against states in State court or Federal agencies
§ Exceptions:
□ Waiver: state must expressly consent
□ §5 of 14th Amendment: States may be sued pursuant to federal laws adopted under §5 of 14th Amendment. But Congress cannot authorize suits against states under other constitutional provisions (e.g. commerce clause).
□ Federal Government: Federal Government may sue State Governments.
□ Bankruptcy proceedings : 11th amendment does not apply to federal law pursuant to federal bankruptcy power.
□ State officers: may be sued for money damages and injunctive relief. But state officers cannot be sued if state treasury will be liable for retroactive damages.

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Lower court review: abstention

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○  Abstention: Federal courts many not enjoin pending State court proceeding (even if it has jurisdiction to hear).

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No police power

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• Congress Authority act: Congress must have express or implied power to act--no general police power. State and local governments have police power.
○ Police Power exceptions: Congress can exercise police power in certain “MILD” areas (1) Military, (2) Indian reservations, (3) Federal Land and territories, or (4) District of Columbia.

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Necessary and proper

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• Necessary and Proper Clause (Art 1. §8): Congress can choose any means not prohibited by constitution to carry into effect enumerated powers in Article I (Congress’s express powers).

Front 13

Tax and spend

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• Tax and Spend Power: Congress may tax and spend for the general welfare. Congress may create any tax to raise revenue and any spending program to spend it if Congress believes it promotes welfare.

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Commerce clause power

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• Commerce Power: Interstate commerce includes foreign nations, Native American tribes, and several states.
○ Lopez--Congress may regulate:
1. channels of commerce: highways, waterways, internet;
2. instrumentalities of commerce: persons and things in interstate commerce;
3. activities with substantial effect on interstate commerce: Congress may regulate economic activities that have a substantial effect (alone or cumulatively) on interstate commerce, even if the matter is otherwise local. However, where effect is non-economic, substantial effect cannot be based on cumulative impact.

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10th Amendment power

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• 10th Amendment: All powers not granted to Federal Government are reserved to states.
○ Congress cannot compel or commandeer state regulatory or legislative actions.
§ Congress can induce state government action by putting strings on grants (conditions must be express/clear and relate to the purpose of the spending program).
○ Congress may prohibit harmful commercial activity by state governments.

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§5 of 14th Amendment

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• §5 of 14th Amendment: Congress may act only to prevent or remedy violations of rights recognized by courts (no expansion of rights). Must be “proportionate” and “congruent” to remedying the violations.

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Delegation of powers

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○ Permissible: No significant limit on Congress’ ability to delegate legislative power to executive agencies or to the judiciary as long as they use intelligible principles. .
§ Exam Tip: “Excess of delegation of legislative powers” is always wrong.
○ Impermissible: Congress may not delegate executive power to itself or its officers. Cannot pass a law and then give one of its officers (legislative agents) the power to enforce or implement the law.

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Legislative Veto & Line Item Veto

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○ Legislative Veto & Line Item Veto: Both unconstitutional because they violate the “bicameral and presentment” requirements of passing a law. For congress to act, there always must be bicameralism (passage by both House and Senate) and presentment (giving the bill to the President to sign or veto).
§ Line Item: President cannot pick and choose parts of bills. Must veto or accept in their entirety.
§ Legislative: Congress cannot attempt to overturn executive action by resolution because there is no bicameralism or presentment in a resolution.

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Foreign policy--treaties

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○ Treaties: negotiated by president and effective when ratified by Senate.
§ State laws that conflict with treaties are invalid
§ If a treaty conflicts with federal statute, one adopted last controls
§ If a treaty conflicts with Constitution, treaty is invalid.

Front 20

Foreign policy--executive agreements

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○ Executive agreement: effect when signed by president and head of foreign nation. No senate approval required. Can be used for any purpose (anything that can be done by treaty).
§ Executive agreements prevail over conflicting state laws, but never prevail over conflicting federal laws or constitution.

Front 21

Foreign policy--commander-in-chief

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○ Commander-in-chief: President has broad powers as Commander-in-Chief to use American troops in foreign countries.
§ Congress can refuse to appropriate money.
§ Probably a political question, but if not SCOTUS has never declared use of troops unconstitutional.

Front 22

Domestic powers--appointment power

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○ Appointment power: president appoints U.S. ambassadors, federal judges, and officers (with Senate approval).
§ Congress may vest appointment of inferior officers in president, heads of departments or lower federal courts.
□ Inferior officers are those that can be fired by officers of U.S.

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Domestic powers--removal power

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Removal power unless removal is limited by statute, President may fire any executive officer.
§ Congress may limit removal of any office where independence from President is desirable (e.g., special prosecutor, but not cabinet member)
§ Congress cannot prohibit removal, can only limit to where good cause is shown.

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Domestic powers--impeachment & removal

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○ Impeachment & Removal: President, Vice-President, Federal Judges, and Officers can be impeached and removed from the office for treason, bribery, and high crimes and misdemeanors.
§ Process: House impeaches (requires majority vote). Senate removes (requires 2/3).

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Presidential immunity

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○ Presidential Immunity: absolute immunity from civil suits for money damages for any actions while in office. Can be sued when no longer in office.
§ No immunity for acts that occurred prior to taking office.

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Executive privilege

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○ Executive Privilege: presidential papers and conversations, but privilege must yield to other important governmental interests/overriding need (i.e., criminal investigation).
§ Balance president’s interest in maintaining privilege with Congress’ interest in disclosure.

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Pardon power

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○ Pardon Power: Can pardon those accused or convicted of Federal crimes (not state crimes, Not for underlying crimes that lead to Impeachment). Criminal only. Not for civil, including civil contempt (in jail).

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Preemption

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• Preemption: Supremacy Clause of Article 6 provides--Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. If there is conflict between Federal law and State law, Federal law wins out.
○ Express preemption: When congress has power to act, it can state that it is exclusive in field and if Federal statute says that Federal law wholly occupies field, then State and Local laws are preempted.

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Implied preemption

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○ Implied Preemption: Federal statute is silent, but preemption implied:
§ Impossibility preemption: impossible to simultaneously comply
§ Obstacle Preemption: If State law impedes achievement of Federal objective, Federal law preempts State law.
□ States can have stricter environmental law, and other standards.
§ Field Preemption. Congress evidences clear intent to preempt State law (through legislative history), Federal law preempts State law (e.g. Immigration law).
○ State Tax : Federal Government has “intergovernmental immunity”—States may not charge state tax to be paid out of Federal Treasury for federal government immunity.

Front 30

Dormant commerce clause

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○ Dormant Commerce Clause: principle that State and Local laws are unconstitutional if they place an undue burden on interstate commerce. (aka, Negative Implications of the Commerce Clause)
§ If no discrimination against out of state but burdens interstate commerce, violates dormant commerce by balancing burden of complying with law with state interest in having it.
§ If discriminates against out of state, violates dormant commerce if 1) important government purpose and 2) no less discriminatory alternative.
§ Exceptions:
□ Congress can approve legislation.
□ Market participant: state may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses. (state university)

Front 31

Privilege & Immunities (Article IV):

Back 31

○ Privilege & Immunities (Article IV): no state may deny citizens of other states the privileges and immunities it accords its own citizens. Only applies if there is discrimination against out of staters.
§ If it does discriminate against out of state with regard to ability to earn a living, must show that it is necessary to achieve important government purpose.
§ Does not apply to corporations or aliens. (Look to dormant commerce clause if corporation; individual apply both privilege and immunities and dormant commerce clause).

Front 32

Privileges Immunities Clause (14th Amendment):

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• Privileges Immunities Clause (14th Amendment): State governments cannot prevent their own citizens from exercising rights of US Citizens (i.e., right to travel).
○ Exam tip: always a wrong answer unless it involves right to travel.

Front 33

State Taxation of Interstate Commerce:

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• State Taxation of Interstate Commerce: States may not use their tax systems to help in-state business (e.g., State cannot give tax credit for purchase of products produced instate and no credit for purchase of products made out of state—an impermissible use of State tax and burden on interstate commerce).
○ Substantial Nexus requirement: States can only tax activities related to State, and taxation of interstate business must be fairly apportioned (only its fair share of activity connected to state).

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Full Faith and Credit:

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Full Faith and Credit: Courts in one State must give full faith and credit to judgments of courts in other States, so must enforce, so long as: (1) the court rendering judgment had personal and subject matter jurisdiction, (2) judgment was on merits, and (3) judgment is final.

Front 35

Constitutional norms regulating private action by statute

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• Government action: constitution applies only to government action. Federal state, or local government must be acting; Private conduct need not comply.
○ Congress may by statute apply constitutional norms to private conduct.
§ 13th amendment: Congress can prohibit private race discrimination pursuant to power from 13th amendment, but slavery is only provision applies directly to private conduct.
§ Commerce clause: can use commerce clause to apply constitutional norms to private conduct, such as 1964 Civil Rights Act.
Congress cannot use Section 4 of 14th amendment to regulate private conduct, only state and local governments.

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○ Exceptions: where private conduct must comply with Constitution
Public function

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§ Public function: Constitution applies if a private entity is performing a task traditionally and exclusively done by government (e.g. company owned town, election for government office).

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○ Exceptions: where private conduct must comply with Constitution
Entanglements

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§ Entanglement: constitution applies is government affirmatively authorizes, encourages, or facilitates unconstitutional activity. Cases are inconsistent:
□ Courts cannot enforce racially restrictive covenants (contract among neighbors not to sell to blacks).
□ State action where government leases premises to restaurant that racially discriminates.
□ State action when state provided free books to private school that racially discriminates. Rule: giving books encourages segregation.
□ No state action when private school (even 99% funded by government) fires a teach because of her speech. Rule: government subsidy is insufficient for finding state action.
□ No state action when NCAA orders suspension of basketball coach at state university. NCAA is largely made up of public colleges, but SCOTUS said private institution.
□ State action when private entity regulates interscholatic sports within State.
® State athletic association must give DP to high school for recruiting violation. difference between NCAA and State Athletic Association—Operates in one State vs. whole country).
No state action when private club with liquor license from state racially discriminate

Front 38

Application of bill of rights to the states

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○ Application to States: Due Process clause of 14th Amendment applies the Bill of Rights (selectively) to State and Local governments.
§ Never found to apply:
□ (a) 2nd Amendment right to bear arms--right to own guns for self protection but SCOTUS did not specify level of scrutiny;
□ (b) 3rd Amendment right to not have soldiers quartered in a person's home;
□ (c) 5th Amendment right to grand jury indictment in criminal cases (States don’t have to use grand juries);
□ (d) 7th amendment right to jury trial in civil case. NY could abolish jury trials in civil cases;
□ (e) 8th Amendment right against excessive fines. NY can apply an excessive fine. But the other prohibitions of 8th Amendment (cruel and unusual punishment, etc) have been incorporated.

Front 39

Levels of scrutiny

Back 39

• Levels of Scrutiny: When dealing with individual liberties, court applies different levels of scrutiny—
○ Rational Basis Test: Law will be upheld if it is rationally related to a legitimate government purpose.
§ Burden: Challenger must show (1) no conceivable legitimate purpose OR (2) no rational relationship.
§ conceivable legitimate purpose (not an actual purpose). Highly deferential.
○ Intermediate Scrutiny: Law upheld if it is substantially related to an important government purpose.
§ Burden: Government must show (1) actual important purpose AND (2) means chosen must be narrowly tailored (not least restrictive)
○ Strict Scrutiny: Law upheld if necessary to achieve a compelling government purpose.
Burden: Government must show (1) actual purpose, compellingly vital AND (2) necessary.

Front 40

Deprivation of life, liberty or property triggering DP?

Back 40

○ Life: Death penalty is distinctive, and the government must give a hearing (and abide by the requirements of Eight Amendment) before imposing it.
○ Liberty: deprivation if a loss of a significant freedom provided by Constitution or statute.
□ Detention whether criminal or civil. Before an adult can be institutionalized, he must be given notice and a hearing. When a parent institutionalizes a minor, the government need only provide screening by a neutral fact finder.
§ Harm to reputation by itself is not a loss of liberty
§ Prisoners rarely have liberty interests.
○ Property: deprivation if there is an entitlement as distinguished from expectation (no obligation to renewal).

Front 41

government conduct triggering DP

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○ Must be intentional government action or at least reckless action for liability to exist (NOT negligence).
§ Exception: In emergency situations government is liable for conduct only if action "shocks the conscience"
○ Generally government's failure to protect people form privately inflicted harms does not deny due process. Government only liable it if literally creates the danger or in government's custody.

Front 42

Once DP is triggered, what procedures are required to satisfy DP

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Balancing test: importance of interest to individual; value of additional procedure to increase accuracy of fact-finding; government's interest, usually efficiency and saving money.
○ Welfare benefits: termination requires notice and a hearing, but SS requires only post-termination hearing
○ Termination of rights to custody: notice and a hearing
○ Punitive damage awards: requires jury instructions to guide jury's discretion and judicial review to ensure that any award is reasonable.
○ Non-citizen held as enemy combatant gets DP, meaning ability to challenge continued detention.
○ U.S. citizens facing criminal charges in foreign country held by U.S. military can file habeas corpus petition and seek review of detention in federal court
○ DP requires recusal of judge if substantial risk of actual bias.

Front 43

• Takings clause: government can take private property for public use if it provides just compensation

Back 43

○ Is there a taking?
1. Possessory taking: government confiscation or physical occupation of property is always a taking (doesn't matter how small it is)
2. Regulatory taking: government regulation is taking if it leaves no reasonable economically viable use of the property. Not just decreasing value.
§ Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking.
§ property owner may bring takings challenge to regulations that existed at time property was acquired. (Ex. Can acquire property knowing about limits on development and then bring takings challenge).
§ Temporarily denying an owner use of property is not taking (if reasonable).
○ Is it for public use? Virtually every taking is for public use. Taking is for public use so long as government acts out of reasonable belief that taking will benefit public. (If it is not for public use, the Government must return the property).
Is just compensation paid? Measured in terms of loss to owner in reasonable market value terms. Gain to government irrelevant

Front 44

Contracts clause

Back 44

• Contracts clause: no state shall impair the obligations of contracts
○ Application: applies only to state or local interference with existing contracts.
§ Never applies to federal government
§ State or local may interfere with private contracts if meet intermediate scrutiny:
□ Does legislation substantially impair a party's right under existing contract? If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest
§ State or local interference with government contracts must meet strict scrutiny. (Court is suspicious of locality trying to get out of its contract without paying damages).
○ Ex post facto law: applies only criminally, not civilly.

Front 45

• Privacy: fundamental right protected under substantive due process (Court applies strict scrutiny—the law must be necessary to achieve a compelling governmental purpose).
Rights subject to strict scrutiny:

Back 45

○ Rights subject to strict scrutiny:
§ right to marry, to procreate, to access to contraception.
§ Right to custody of one's children: terminated only if state proves compelling reason such as parental abuse or parental neglect.
□ State may create irrebuttable presumption that married woman's husband is father of her child.
§ Right to keep family together (broader than parents and children, includes entire family related to one another)
§ Right of parents to control upbringing of their children: no grandparent visitation rights; to educate child as one sees fit (includes sending child to parochial schools and educating child in language other than English);
§ Right to read and enjoy obscene material in the privacy of one’s home (exception child pornography)

Front 46

More rights subject to strict scrutiny

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§ Right to read and enjoy obscene material in the privacy of one’s home (exception child pornography)
§ Right to engage in private, consensual homosexual activity. (No level of scrutiny articulated).
§ Right to refuse medical treatment: competent adults have right to refuse even life-saving treatment(No level of scrutiny specified).
□ state may require clear and convincing evidence that a person wanted treatment terminated before it is ended AND may prevent family members from terminating treatment for another.
No constitutional right to physician-assisted suicide.

Front 47

Privacy right to abortion

Back 47

§ right to abortion (strict scrutiny is not used. Standard is "Undue Burden Test”:
□ Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create undue burden on ability to obtain abortions.
® 24 hour waiting period, performed by licensed physician, prohibition of "partial birth" are not undue burdens. But spousal notification is impermissible.
® Parental notice and consent law for unmarried minors are allowed as long as there is judicial bypass to find in minor's best interests or that is mature enough to decide for herself.
□ After viability, states may prohibit unless necessary to protect woman's life or health.
□ Government has no duty to subsidize abortions or provide abortions in hospitals.

Front 48

• Fundamental rights under equal protection analysis
Right to travel

Back 48

○ Right to travel: laws that prevent people moving into a state must meet strict scrutiny
§ Durational residency requirements (requiring person to live in jurisdiction for specified amount of time to get a benefit) must meet strict scrutiny. For voting 50 days is maximum allowable durational requirement.
§ No fundamental right to international travel so restrictions on foreign travel need meet only ration basis test.

Front 49

• Fundamental rights under equal protection analysis
Right to vote

Back 49

○ Right to vote that deny some citizens right to vote must meet strict scrutiny
§ One person one vote must be met for all state and local elections (districts must be roughly equal in population)
§ At-large elections (where all votes case vote for all officeholders) are constitutional unless proof of discriminatory purpose
§ Racial gerrymandering must meet strict scrutiny: if government uses race as predominant factor to benefit minority, look to see if district is drawn strangely
§ Counting uncounted votes without standards in presidential election violates equal protection.
○ No fundamental right to education under equal protection

Front 50

Equal protection classifications: race

Back 50

○ Race and National Origin (Strict Scrutiny)
§ Proving existence of racial classifications? 1) classification exists on the face of the law OR 2) If law is facially neutral, proving racial classification requires demonstrating both discriminatory impact and discriminatory intent.
§ Racial classifications benefiting minorities (apply Strict scrutiny)
□ numerical set-asides require clear proof of past discrimination.
□ Education institutions may use race as one factor in admissions to benefit minorities and enhance diversity.
□ Quotas almost always struck down, no points based solely on race.
□ Public school cannot use race to assign students unless strict scrutiny met

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Equal protection classifications:gender

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○ Gender (intermediate scrutiny is used for sex-based discrimination--allowed only if exceedingly persuasive justification
§ Proving gender classification: 1) on face of law OR 2) if law is facially neutral, need both discriminatory impact and discriminatory intent
§ Gender classifications which benefit women, based on role stereotypes, will not be allowed. But gender classifications benefiting women that are designed to remedy past discrimination or differences in opportunity will be allowed.

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Equal protection classifications: alienage

Back 52

○ Alienage (generally strict scrutiny, with exceptions)
§ Laws prohibiting aliens from government employment or government benefits generally fail under strict scrutiny.
§ Exceptions (not strict scrutiny):
□ Certain privileges just for citizens (only rational basis): voting, being on a Jury, being a Police officers, a Teacher, or a Probation officer, but one does not have to be U.S. citizen to be a Notary Public.
□ When Congress discriminates against aliens, only rational basis test applies
□ Intermediate scrutiny applies for discrimination against undocumented alien children.
□ Undocumented alien children: It appears that intermediate scrutiny is used. Example: Texas law that children of citizens and documented aliens right to public education; but undocumented aliens do not have same right (Court: law is constitutional).

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Equal protection: other classifications

Back 53

○ Non-marital children (intermediate scrutiny)
§ Law that deny benefit to all non-marital children, but grant it to all marital children are unconstitutional.
○ Rational basis applies to all other types of discrimination
§ Age discrimination: Ex. equal protection challenge to gov’t mandatory retirement .
§ Disability discrimination: Ex. Zoning limited ability to have home for mentally disabled (Gov’t LOST, but rational basis was applied).
§ Wealth discrimination: Poverty is not a suspect class.
§ Economic regulations: Ex. To be a push cart vendor, must work there for 8 years (upheld)
§ Sexual orientation discrimination: Only rational basis review, but law discriminating against sexual orientation was struck down (in Roemer).

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• Distinction between content-based and content-neutral restrictions:

Back 54

○ Content based restrictions on speed generally must meet strict scrutiny.
1) Subject matter restrictions: application of law depends on topic of the message. (judges cannot discuss certain issues)
2) Viewpoint restrictions: application of law depends on ideology of speech. (pro-war ok, but anti-war not ok)
○ Content-neutral generally need to meet only intermediate scrutiny.
§ Classic examples are time, place and manner restrictions

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Prior restraints

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• Prior restraints: judicial order (or administrative system) that stops speech before it occurs, must meet strict scrutiny.
○ Procedurally proper court orders must be complied with until they are vacated or overturned. If violate, barred from later challenging it.
○ Gag orders on press to prevent prejudicial pretrial publicity are not allowed.
○ Licenses/Permits for speech activity: government can require license for speech only if important reason for licensing guidelines are clear leaving almost no discretion left to executive officials and procedural safeguards such as prompt determination of requests for licenses and judicial review of license

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Vagueness and overbreadth

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• Vagueness and overbreadth
○ Vague: a law is unconstitutionally vague if reasonable person cannot tell what speech is prohibited and what is allowed
○ Overbreadth: law is unconstitutionally overbroad if it regulates substantially more speech than constitution allows to be regulated.

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Symbolic speech

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• Symbolic speech: government may regulate conduct that communicates if it has an important interest unrelated to the content and if the impact on communication is no greater than necessary to achieve government's goal.

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Speech examples:

Back 58

○ Flag burning is protected; draft card burning is not protected speech (important interest in emergency military mobilization.
○ Nude dancing is not protected speech.
○ Burning a cross is protected speech, unless there proof of intent to threaten or intimidate.
○ Contribution limits on election campaigns are allowed; expenditure limits are not allowed. Can restrict how much money you can give to a certain candidate, but cannot regulate overall amount of money you give away.
○ Anonymous speech is protected
○ Speech by government cannot be challenged as violating First Amendment.

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incitement and fight words

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○ Incitement: incitement of illegal activity is unprotected by First Amendment. Modern test: government may punish speech if there is substantial likelihood of imminent illegal activity and if speech is directed to causing imminent illegality.
○ Fighting words : not protected if intent to provoke violent response.

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Obscenity

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○ Obscenity: 3-part test material is obscene if: 1) appeal to prurient interest (shameful/morbid interest in sex) ; 2) patently offensive under law prohibiting obscenity; 3) taken as a whole, material must lack serious artistic, literary, political or scientific value (national, not local standard).
§ Government may use zoning ordinance to regulate number of location of adult bookstores and movie theaters
§ Child pornography can be banned, even if not obscene. To be child pornography, children must be used in production of material.
□ May not punish private possession of obscene materials, but may punish private possession of child pornography
§ Government may seize assets of businesses convicted of violating obscenity laws.

Front 61

Profanity

Back 61

○ Profane and indent speech is generally protected by First Amendment (Fuck the draft shirt in court is ok)
§ Exception: free, over-the-air broadcast media (TV and radio, but not cable), in schools.

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Commercial speech

Back 62

Commercial speech: advertising for illegal activity, and false and deceptive ads are not protected by first amendment.
§ Even true commercial speech that inherently risks deception can be prohibited
□ States may prevent professionals from advertising or practicing under a trade name
□ States may prohibit attorney, in-person solicitation of clients for profit (can offer pro bono representation, can solicit by mail).
□ Government may not prohibit accountants from in-person solicitation from in-person solicitation of clients for profit.
§ Other commercial speech can be regulated by government if intermediate scrutiny is met.
§ Standard: Government regulation of commercial speech must be narrowly tailored, but it does not need to be least restrictive alternative.

Front 63

Defamation

Back 63

§ Public official: if P is public official or running for public office, P can recover for defamation only by proving falsity of statement and actual malice (D knew statement was false or acted in reckless disregard for truth)
§ Public figure: if P is public figure (thrusts themselves into limelight, celebrities) P can recover only by proving falsity and actual malice.
§ Private figure/public concern: if P is private figure and matter is of public concern, state may allow P to recover for defamation by proving falsity and negligence by D (not as careful as reasonable person should have been).
□ Damages: compensatory for actual injury; presumed (automatic damages) or punitive damages only by showing actual malice
§ Private figure/Private concern: if P is private figure and matter is not of public concern, P can recover presumed or punitive damages without showing actual malice.

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Privacy

Back 64

○ Privacy: government may not create liability for truthful reporting of information that was lawfully obtained (law prohibited publication of rape victim's name without her consent).
§ Media may not be held liable for broadcasting illegally intercepted and recorded call, so long as media did not participate in illegality and involves matter of public concern.
§ Government may restrict its own dissemination of information to protect privacy. Only instance where public has first amendment right to attend government proceedings and have access to government papers is for criminal trials and criminal pre-trial proceedings.
§ Speech by government employees on job in performance of their duties is not protected by first amendment.

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Public forums

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○ Public forums: government properties that government is constitutionally required to make available for speech. (parks and sidewalks*)
§ Regulation: must be subject matter and viewpoint neutral, if not, strict scrutiny must be met. Must be time, place, or manner regulations that serve an important government purpose and leaves open adequate alternative places for communication.
§ Need not use least restrictive alternative (City can require use of its equipment at concert).
§ Permits: city officials cannot have discretion to set amount of permit fees for public demonstrations.

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Limited public forums

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○ Limited public forums: government properties that government could close off to speech, but chooses to voluntarily open to speech. Same rules as for public forums. (examples: schools open at night or weekend).

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Nonpublic forums

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○ Nonpublic forums: government constitutionally can and does close for speech. Government can regulate speech in non-public forums so long as regulation is reasonable (meets rational basis).
§ Examples: (1) Military bases; (2) Outside prisons/jails; (3) advertising space on city bus; (4) sidewalks on post office property; (5) Airports (prohibit solicitation of money; cannot prohibit distribution of literature).

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Private property

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○ Private property: no first amendment right of access to private property for speech purposes. Example: no first amendment right to use privately owned shopping centers

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Freedom of association

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• Freedom of association: laws that prohibit or punish group membership must meet strict scrutiny
○ Must prove person is : actively affiliate with the group; has knowledge of group's illegal activities; has specific intent of furthering those illegal activities or objectives
○ Laws that require disclosure of group membership where such disclosure would chill association, must meet strict scrutiny.
○ Freedom of association does not protect right to discriminate, unless it is intimate association where discrimination is integral to expressive activity.
§ Exception intimate association: small dinner party
§ Exception where discrimination is integral to expressive activities of group: KKK, Nazi party, Boy Scouts.

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Free exercise clause

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○ Free exercise clause: cannot be used to challenge neutral law of general applicability
§ Government may not deny benefits to individual who quit their jobs for religious reasons.

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Establishment clause

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3-part test (SEX):
1. secular purpose;
2. Effect cannot advance/inhibit religion. Government must no symbolically endorse religion or particular religion (nativity scene by itself not allowed, but allowed if accompanied by symbols of other religion and secular symbols).
3. X, not excessive government entanglement with religion. Cannot directly pay teacher's salaries in parochial schools because would have to find out whether secular or religious teaching.
§ Content based: Government cannot discriminate against religious speech or among religions unless strict scrutiny
§ Government sponsored religious activity in public schools is unconstitutional but religious groups must have same access to school facilities as non-religious groups.
□ School prayer, even moment of silence, not allowed
§ Government may give assistance to parochial schools, so long as not used for religious instruction. Can give vouchers is allowed.