Constitutional Law - Mbe - Texas Bar Exam 2010

Front 1

Judicial Power - Overview

Back 1

Under Art 3 of Constitution, fed courts only decide actual cases and controversies (not hypothetical questions)

Whether lawsuit is justiciable depends on:
a. what it requests (no advisory opinions)
b. when it is brought (ripe and not moot)
c. who brings it (someone with standing)

Additional doctrines limiting fed court review:
d. political question
e. sovereign immunity
f. abstention
g. special rules governing Sup Ct review

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No Advisory Opinions

Back 2

fed courts may not render advisory opinions

advisory opinions lack:
a. an actual dispute between adverse parties
b. any legally binding effect on the parties

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Ripeness

Back 3

fed courts may only decide controversies that are ripe for judicial review

requests for pre-enforcement review of laws are not ripe, unless there is:
1. substantial hardship in absence of review, and
2. issues on record are fit for review

the more imminent and likely the substantial hardship, and the more legal than factual the issue, the more ripe the controversy

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Mootness

Back 4

fed courts may only decide live controversies rather than ones that have passed due to post-filing events

lawsuit is moot if P's injury has ended unless:
1. injury is capable yet evades because of inherently limited duration (ex. pregnancy)
2. D stops the challenged activity, but may start up again
3. in class actions, one P suffers ongoing injury

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Standing

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P must have standing to sue - standing requires alleging and proving injury, causation, and redressability

Injury:
1. almost any harm counts as injury
2. ideological objections or generalized grievances as a citizen or taxpayer do not count
3. injury must have occurred or will imminently occur (anyone seeking injunctive/declaratory relief must show certainty of future harm)
4. no 3rd party standing (injury must be personally suffered by P rather than those not before court)

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Exceptions to no third party standing

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1. 3rd party unlikely/unable to sue, P has suffered injury, and P can adequately represent 3rd party's interests, often because of close relationship
2. organizations on behalf of members - org may sue not only for itself, but its members as well if
a. members would have standing
b. members' injury related to purpose of organization
c. neither claim nor relief requires participation of members
c. free speech overbreadth - P whose speech is proscribable or unprotected may raise claim of 3rd party whose speech is protected if substantial overbreadth in terms of illegitimate to legitimate sweep, and not commercial speech (ex. publisher of obscene website may challenge online pron ban on behalf of non-obscene pron websites)

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Legislative standing

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legislators may challenge acts that injure them personally, rather than their legislature generally

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Causation and Redressability

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Causation = P must show that injury is fairly traceable to D

Redressability = P must show that favorable court decision can remedy the harm (through money damages or injunction)

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Political Question Doctrine

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Fed courts will not decide political questions, which are those:
a. committed by Constitution to political branches of government or
b. incapable of, or in appropriate for, judicial resolution

Examples:
1. Guaranty Clause (Art IV, Sec 4): challenges state's govt as not a "republican form of govt"
2. Foreign Affairs: challenges Pres's conduct of foreign policy and command decisions
3. Impeachment Process: challenges procedures used by Senate to remove officials
4. Partisan Gerrymandering: challenges to drawing election districts on a partisan basis
5. Elections and Qualifications of members of Congress
6. Seating of Delegates at national political convention

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Sovereign Immunity

Back 10

sovereign immunity from 11A and principles of federalism bar actions against states (not localities) in fed courts and agencies and state courts

exceptions:
1. waive sovereign immunity by state through express consent
2. suits by other states or fed govt
3. bankruptcy proceedings
4. clear abrogation of sovereign immunity by Congress under (and only under) its 14th Amendment powers to prevent discrimination

Not barred:
1. suits against state officers for injunctive relief or money damages from their own pockets
2. suits against local govts (cities and counties)

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Abstention

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Fed courts may decline to decide a fed constitutional claim that turns on an unsettled question of state law (ex. equal protection claim that depends on meaning of ambiguous new state immigration law)

Fed courts generally may not enjoin pending state administrative or judicial proceedings (ex. criminal trial allegedly in violation of Due Process)

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Sup Ct Review

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1. Final judgment rule: Sup Ct generally may only hear a case after there has been a final judgment by the highest state court, a fed court of appeals, or (in special statutory situations) a 3-judge district court
2. Independent and adequate state grounds: Sup Ct will not review a case raising a fed question if the state court decision rests on an independent and adequate state law ground, such that the outcome be the same regardless of how the federal question is decided (ex. state sup ct finds a search violates both 4A to Constitution as well as an independently interpreted provision of the state constitution prohibiting unreasonable searches)

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Legislative Power - general principles

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-Fed legislative powers are limited and enumerated in Art 1 of Constitution; Congress has no general police power to enact legislation (except fed land, Indian reservations, and DC)
-Taxing, spending, and commerce powers are the broadest and most important
-Necessary and proper clause expands enumerated powers because it allows Congress to choose any means to carry them out as long as those means are not prohibited by Constitution

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Congressional Enumerated Powers

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1. Admiralty
2. Citizenship
3. Bankruptcy
4. Federal property
5. Patents and copyright
6. Post offices
7. Coining money
8. Territories and DC
9. Declaring war
10. Raising and supporting armies
11. Providing and maintaining navy

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Taxing and Spending Powers

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Congress may tax/spend to provide for the general welfare (for any public purpose not otherwise prohibited by Constitution, even if not within an enumerated power) - ex. tax carbon emissions or spend on primary education for states following federal education standards

Note: "strings" must relate to purpose of spending and not violate the Constitution

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Commerce Power

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Congress may regulate commerce with foreign nations, Indian tribes, and among the states

Interstate commerce - allows regulations of almost anything, even purely local/intrastate activities that in aggregate have substantial effect on national economy

Interstate Commerce includes:
a. transmitters of interstate commerce (ex. highways, internet)
b. instrumentalities of interstate commerce (ex. planes, trains)
c. activities with substantial effect on interstate commerce in the aggregate (ex. growing what in backyard for home consumption)

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Delegation of Power

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To Agencies: Congress may broadly delegate legislative power to administrative agencies as long as it sets forth some intelligible principle or standard to guide the exercise of delegated power (ex. delegation of authority to EPA to regulate air pollutants)

To President: Congress may not give Pres the power of a line item veto; violates bicameralism and presentment

To Congress: Congress may not give itself a legislative veto to void duly enacted laws; it must pass new legislation rather than take any shortcuts around bicameralism and presentment

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Speech and Debate Clause

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Members of Congress enjoy immunity from civil and criminal liability for legislative acts (ex. speeches on floor, voting, committee reports), but not for bribes or speeches and publications outside of Congress

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Executive Powers - Domestic

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Domestic Power:
1. Enforcement - Pres has power/duty to execute laws
2. Appointment and removal of ambassadors, fed judges, and officers (Pres appoints; Sen gives advise, consents by majority vote)
3. Pardon - Pres may pardon anyone accused/convicted of federal crime

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Executive Powers - Foreign

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Foreign Power:
1. War - Congress alone has power to declare war; Pres as commander-in-chief has broad discretion to deploy troops internationally to protect Amer lives and property (ex. Vietnam)
2. Treaties and Executive Agreements
a. Treaties - Pres negotiates; Sen ratifies by 2/3 vote; trumps existing and future state law; trumps existing fed law, but not future fed law or Constitution
b. Executive Agreements - Pres enter with foreign nation; Sen does nothing; trumps existing/future state law; fed law on books trumps

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Impeachment

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Congress may impeach Pres, VP, fed judges, and all officers of US for treason, bribery, or other high crimes and misdemeanors

Process:
a. House passes articles of impeachment by majority vote
b. Senate convicts with 2/3 vote
c. Removal requires both

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Presidential Immunity and Executive Privilege

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Absolute immunity from civil damages for any actions arguably within official responsibilities

No immunity from private suits (even while in office) for conduct prior to taking office

Executive privilege protects confidentiality of presidential communications, but privilege may yield if outweighed by other important government interests (ex. need for evidence in criminal trial)

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Federalism - 10th Amendment

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powers not granted to US, or prohibited to the states, are reserved to the states or the people

ex. Congress cannot compel states to enact legislation; Art I does not grant Congress that authority, and the 10th A reserves general police powers to the states

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Supremacy and Preemption

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Supremacy Clause (Art VI): fed law preempts inconsistent state and local laws

Express preemption - fed law displaces state law when Congress intentionally says so; Congress can express an intent to occupy an entire field (ex. cigarette labeling)

Implied preemption: even if Congress is silent, fed law may implied preempt state law:
a. conflict preemption - impossible to comply with both fed and state law or state law frustrates achievement of fed law objective
b. field preemption - extensive federal regulation in an area indicates congressional intent to "occupy the field" (ex. immigration)

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Dormant Commerce Clause (Negative Commerce Clause)

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even where Congress has not acted to regulate commerce (no preemption), states and localities may not discriminate against or unduly burden interstate commerce

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Dormant Commerce Clause - Discriminatory Laws

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laws with purpose of favoring commerce by in-stators over out-of-stators, or that have a substantial discriminatory impact on out-of-stators

discriminatory laws are generally invalid unless:
a. necessary to serve an important government purpose (unrelated to economic protectionism) and
b. no less discriminatory alternatives

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Dormant Commerce Clause - Nondiscriminatory Laws

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balancing test: state law that neutrally applies to in-staters and out-of-staters is generally upheld; nonetheless, if it burdens interstate commerce, it is invalid if the burdens outweighs (non-protectionist) benefits

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Dormant Commerce Clause - Exceptions

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1. Congressional approval: state law may discriminate if legislated by Congress (ex. Congress authorizes states to require all milk to be pasteurized in state where sold)
2. Market participant: state acting not as regulator but as seller or buyer may discriminate or burden interstate commerce (ex. state-owned cement plant may charge less to instate buyers than out-of-state buyers; city may require contractors to use workforce comprised of at least 50% cit residents; state may give tax subsidies to attract or encourage business development; state universities may charge less tuition for in-state residents)

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State Taxation of Interstate Commerce

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Same dormant commerce clause considerations apply - discriminatory taxes generally invalid; nondiscriminatory taxes must pass balancing test

Invalid if:
a. singles out interstate commerce (ex. tax credit for gas sellers for in-state but not out-of-state ethanol)
b. no substantial nexus between taxpayer and state (ex. sales tax on items sold in, or shipped from, another state)
c. not fairly apportioned to business done in state or benefits received in state (ex. property tax applied fully to railroad cars with only 25% in-state travel; gross receipts tax fully applied to in-state business with 75% sales out-of-state)

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Privileges and Immunities (Art IV)

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"The citizens of each state shall be entitled to all Privileges and Immunities of citizens in the several states"

states may not discriminate against out-of-state citizens (not persons or corporations) with respect to important commercial activities or civil liberties unless:
a. necessary to achieve important government purpose and
b. no less restrictive alternatives

independent of dormant commerce clause, but not mutually exclusive

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Federal Immunity

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states may not tax/regulate the federal government (including agents/activities) without its consent

ex. state may not require contractor to obtain state license to build facilities on federal air force base, nor may state assess property tax for the base

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Individual Rights - Application and Incorporation

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Except for 13A prohibition against slavery, Constitution applies only to government action, not private conduct

Bill of Rights applies to fed govt, but most protections have been incorporated against states (and their political subdivisions) through the 14A
- exceptions: 3A right not to have soldiers quartered in home; 5A right to grand jury indictment; 7A right to jury in civil cases; 8A right against excessive fines

Congress may apply constitutional norms to private conduct by statutes pursuant to:
-Art I legislative powers (ex. ban on racial, gender and religious discrimination in private hotels and restaurants through Commerce Clause power)
-13A power to enforce prohibition against slavery (ex. ban on racial discrimination in private employment and housing)

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State Action

Back 33

Easy examples = state law, state officials acting officially (even if unlawfully)

Harder cases:
a. Public function performance - state action exists when private party performs function traditionally an exclusively done by govt (ex. company runs "company town")
b. State involvement - state action may be found where there is some state involvement, assistance, encouragement, or approval of challenged private conduct (ex. voluntary assoc of mostly public and some private high schools, run mainly by public school officials during school hours, regulates sports within a state)

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Scrutiny - Rational Basis

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Ends = legitimate interest

Means = rationally related

Burden = challenger

Presumption = valid

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Scrutiny - Intermediate

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Ends = important state interest

Means = substantially related

Burden = state

Presumption = none

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Scrutiny - Strict

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Ends = compelling state interest

Means = narrowly tailored (least restrictive)

Burden = state

Presumption = invalid

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Contracts Clause
or Contract Clause

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States (not fed govt) may not enact legislation that substantially impairs existing K rights retroactively, unless:
a. private contracts - satisfies rational basis or intermediate scrutiny (test unclear)
b. public contracts - satisfies intermediate or stricter scrutiny (stricter, but test unclear)

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Ex Post Facto Laws

Back 38

neither state nor fed govt may pass legislation that retroactively alters criminal liability to:
a. criminalize act that was innocent when done
b. makes crime greater than when committed
c. sets greater punishment than when act was done
d. reduce evidence required to convict from what was required at time of act

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Bills of Attainder

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neither state nor fed govt may pass legislation that designates particular individuals (includes businesses) for punishment without judicial trial

ex. Congress passes law denying salary payments to 3 fed employees that the House of Reps determines to be subversive

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Procedural Due Process - Overview

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under due process clause of 5A (applicable against fed govt) and 14A (applicable against states), an individual has right to a fair process when government acts to deprive the individual of life, liberty, or property

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Was there a deprivation of life, liberty or property?

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Deprivation = must be intentional (or reckless) rather than negligent

Liberty = physical freedom; fundamental and constitutional rights (ex. termination of parental rights, revocation of drier's license)

Property = real and personal, tangible and intangible; govt entitlement to which an individual has a reasonable expectation of continued receipt (ex. welfare benefits, public education, government licenses)

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If deprived of life, liberty, or property, what process was due?

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Minimum: notice and hearing before neutral decision-maker
-Notice: inform person of action against him
-Hearing:
1. Pre-deprivation: required unless govt shows impracticable
2. Post-deprivation examples: emergency institutionalization or suspension of driver's license upon breathalyzer refusal
3. Balancing test determines nature and extent of procedures considering:
a. importance of interest to individual
b. risk of error through procedures used, and accuracy gained from additional procedures, and
c. burden of govt (ex. inefficiency and costs)
-ex. termination of parental rights: requires notice, hearing, proof of neglect/misconduct by clear and convincing evidence; detention of citizen as enemy combatant requires meaningful opportunity to contest factual basis for detention, considering burden on Executive in wartime

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Takings

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neither fed govt (5A) nor states (14A) may take private property for public use without just compensation

Taking:
1. Physical taking - occupation or confiscation even if tiny/temporary:
a. development exception - govt conditions on property development are not takings if benefit is roughly proportional to burden
b. emergency exception - taking less likely to be found, even if deprivation is complete and permanent, if pursuant to public emergency such as war
2. Regulatory taking - regulations on use that not merely diminish but leave no economically viable use; temporary regulatory denial of all economic use may not be a taking so long as reasonable under circumstances

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Public Use

Just Compensation

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any legitimate public purpose counts (any purpose that govt reasonably believes will benefit the public)

fair market value at time of taking (benefit to government is irrelevant)

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Equal Protection - Overview

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Equal Protection Clause of the 14A (states and localities) and the Equal Protection Clause of the 5A (federal government) govern claims that the government is treating people unequally

When evaluating EP claims, identify the govt classification which gives the level of review (rational basis, state almost always wins; strict scrutiny, state almost always loses)

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Classifications - Rational Basis

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Age, disability, wealth, alienage classifications by Congress, alienage classifications by state related to democratic governance, all other classifications

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Classifications - Intermediate Scrutiny

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GUI
Gender,
classification of Undocumented alien children by state (assumed)
Illegitimacy,

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Classifications - Strict Scrutiny

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ROAD
Race,
national Origin,
Alienage classifications by state generally,
Denial of fundamental rights to some

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Determining Classification

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a. Facial: classification appears on face of law (ex. requirement that firefighters be male)

b. Disparate impact + discriminatory purpose (ex. DA consistently uses peremptory challenges to strike all blacks form juries of black defendants)

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Race and National Origin

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Test: strict scrutiny

Application:
1. School integration
2. Affirmative action
a. Government hiring and contracting
b. Higher education

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Alienage (non-citizen status)

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1. Congressional Classification
a. Test: rational basis
b. Application: Congress may choose not extend health care coverage to non-citizens for fiscal reasons

2. State Classification
a. Test: strict scrutiny
b. Application: state and local governments may not require US citizenship for employment (generally), govt benefits, property ownership, or admission to bar
c. Exception: state and local govts may require US citizenship for activities/positions integral to local self-governance (ex. voting, holding elective office, being police officer; not being a public notary)

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Gender

Back 52

Test: intermediate scrutiny

Application: gender discrimination requires an exceedingly persuasive justification to be upheld under intermediate scrutiny; those based on general role stereotypes will not be upheld

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Legitimacy (non-married children)

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Test: intermediate scrutiny

Application:
1. laws based on prejudice and that deny benefits to all non-marital children are invalid (ex. law permitting parents to sue for wrongful death for marital but not non-marital children)
2. laws that distinguish among non-marital children may survive intermediate scrutiny (ex. law allowing non-marital children to inherit from father only if paternity was established during latter's lifetime)

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Fundamental Rights

Back 54

Test: strict scrutiny

Ex. denial of right to marry to smokers

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All other classifications

Back 55

Test: rational basis

Examples: age, disability, income intelligence, health, sexual orientation

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Fundamental Rights & Substantive Due Process - Overview

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Sup Ct has found that Constitution protects certain unenumerated "fundamental rights" as a substantive component of liberty protected by the Due Process Clauses of the 14A (states/localities) and 5A (fed govt)

Equal Protection often also serves as a basis for protecting many of these fundamental rights

One way to determine whether a right is fundamental is to ask whether it is deeply rooted in nations history/tradition

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Is it Due Process and/or Equal Protection?

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a. Denying everyone a fundamental right raises a due process problem
b. Denying some but not others a fundamental right also raises an equal protection problem

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Rights and Levels of Scrutiny

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Strict Scrutiny (fundamental) = marriage, procreation, contraception, custody, care and upbringing of children, keep extended family together, travel, vote

Undue Burden (fundamental) = abortion

Rational Basis (non-fundamental) = economic rights, physician-assisted suicide, education

Unspecified (non-fundamental) = private consensual adult sexual intimacy, refuse medical treatment, bear arms

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Marriage (and Divorce)

Back 59

substantial interference by state with right to marry is necessary to trigger strict scrutiny

ex. requiring marriage license obtainable by all unmarried adults with proper identification is valid under rational basis review

ex. denying marriage to mixed racial couples triggers strict scrutiny under Due Process as well as Equal Protection

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Procreation

Back 60

ex. involuntary sterilization of mentally retarded is invalid

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Contraception

Back 61

ex. ban on distribution and use of contraceptives, or limiting sale to pharmacist, is invalid

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Parental Rights

Back 62

includes custody, care, and upbringing of children

ex. state may not require public school education or education in English

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keep extended family together

Back 63

ex. city zoning may not prohibit extended family from living in a single household

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Travel

Back 64

a. privileges and immunities clause of 14A protects right to interstate travel, which includes right to
1. enter and leave a state
2. equal treatment if one becomes a permanent resident of a state (ex. CA could not limit 1st year residents of state to welfare benefits they would have received in prior state of residence)
b. no fundamental rights to international travel

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Right to Vote

Back 65

rational basis: although right to vote fundamental, states may prescribe reasonable voting requirements based on:
1. age (ex. 18)
2. residency (ex. 50 days)
3. citizenship (ex. US citizens)

strict scrutiny: applies to more onerous and potentially discriminatory restrictions, such as:
1. poll taxes or literacy tests
2. dilution of right to vote - one person, one vote principle:
i. in elections for state/local reps, Equal Protection requires voting districts be substantially equal in population size (16% variance upheld as reasonable)
ii. in elects for fed reps to the House, Art I requires that congressional districts within a state be almost equal in population (even .7% variance has been invalidated)
3. racial gerrymandering - race was predominant factor
4. political gerrymandering - never invalidated by Sup Ct and perhaps non-justiciable political question

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Abortion

Back 66

Pre-viability: state may regulate but not prohibit abortions to protect the mother's health or the life of the fetus, so long as regulation does not impose an undue burden on the ability to obtain an abortion

Post-viability: state my prohibit abortions unless necessary to protect mother's life or health

Undue burden: requiring spousal notification/consent; extensive record keeping that is not directed at preserving maternal health or does not protect patient privacy

Not Undue Burden: licensed physician required; informed consent; 24-hour waiting period; parental consent for minor as long as judicial bypass available; banning "partial birth" abortions; not funding abortions

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Private Consensual Adult Sexual Intimacy

Back 67

ex. criminal ban on same-sex sodomy is invalid

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Refuse Medical Treatment

Back 68

competent adult may refuse lifesaving medical treatment, but state may require clear and convincing evidence of individual's wish, and may prevent family members from terminating treatment for another

No right to physician-assisted suicide (rational basis)

State may compel vaccination against contagious diseases

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Bear arms

Back 69

against federal and state governments, 2A protects right of individual to have handgun in home for self-defense

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1st Amendment - Freedom of Speech

Back 70

1. Speech includes words, symbols, and expressive conduct (conduct that is inherently expressive or is intended to convey message, and is reasonably likely to be perceived as such)
2. Unprotected and protected speech - "freedom of speech" protected by 1A does not include certain categories of unprotected speech
-few categories of speech receive only partial protection, such as defamation and commercial speech
-all other expression receives full 1A protection

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Categories of Speech

Back 71

Unprotected: incitement, fighting words, true threats, obscenity, child porn, defamation with actual malice, commercial speech (false, misleading, illegal)

Partly protected: defamation about public officials or matters of public concern; commercial speech (not false, misleading, illegal)

Protected: all other speech

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Incitement

Back 72

Brandenburg Test: advocacy of use of force of law violation that is intended to produce imminent lawless action and likely to produce such action

mere advocacy of lawlessness short of Brandenburg is protected speech

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Fighting Words

Back 73

Test: words likely to provoke an immediate violent response

Sup Ct has not upheld a fighting words conviction in more than half a century

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True Threats

Back 74

Test: words intended to convey to someone a serious threat of bodily harm

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Obscenity

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Test: depiction of sexual conduct that taken as a whole by contemporary community:
a. appeals to prurient interest in sex
b. is patently offensive
c. lacks serious social value (literary, artistic, political, scientific) value by national standards

Mere nudity, soft-core porn, and "dirty words" are not obscene

Sexually explicit/indecent speech that is not obscene may nonetheless be subject to zoning:
a. to protect children and unwilling adults from exposure
b. to prevent neighborhood decay or crime
c. so long as ample alternative channels exist for the speech

Right to privacy extends to possession of obscenity in the home, which may not be banned

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Child Porn

Back 76

Test: depiction of children engaging in sexual conduct, whether or not obscene

in-home possession may be banned

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Defamation

Back 77

To protect press and other critical speakers, 1A bars recovery under state defamation law for speech about public officials that was not made with actual malice (knowingly false or reckless disregard for truth)

Public figure: persons who have assumed roles of prominence in society, achieved pervasive fame or notoriety, or thrust themselves into particular public controversies to influence their resolution

Public concern: matters important to society/democracy

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Commercial Speech

Back 78

Examples:
1. Easy - advertising a product
2. Medium - promoting brand
3. Hard - corporate speech on mattes of public concern (ex. Exxon ad on importance of renewable energy)

Unprotected: false/misleading commercial speech, or advertising for illegal activities

Limited protection: all other commercial speech; content-based restrictions on commercial speech are not subject to strict scrutiny, but a form of intermediate scrutiny:
1. substantial/important govt interest (ex. consumer protection)
2. narrowly tailored (reasonable fit rather than least restrictive)
ex. ban on in-person solicitation for pecuniary gain is valid as to lawyers, but not as accountants; total ban on truthful price advertising are generally invalid

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General Speech Restrictions (applicable regardless of speaker or locale)

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Levels of Scrutiny:
1. content-based = strict scrutiny: content-based restrictions suppress speech because of message or the perceived harms that the message may produce (ex. censorship)
2. content-neutral = intermediate scrutiny: content-neutral restrictions suppress speech for reasons unrelated to message (channeling rather than censoring); usually channels speech on basis of time, place, manner

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Speech Restrictions on Government Property

Back 80

Forum Doctrine: level of scrutiny that speech restrictions on govt property receive depends on how open the property is to speech

Public forums: govt property that by tradition or purposeful designation are open to public for all kinds of expressive activity (ex. parks, streets, college kiosks, sidewalks)

Nonpublic forum: govt property not open generally for public speech, but limited to speech if any related to the purpose of the property (ex. classes, mailboxes, airports)

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Speech Restrictions on Government Property - Levels of Scrutiny

Back 81

Public Forum
a. content based = strict scrutiny
b. content neutral = intermediate scrutiny

Nonpublic forum:
a. reasonable regulations in light of nature of forum
b. if viewpoint based, strict scrutiny

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Public Schools

Back 82

Personal student speech: cannot be censored absent evidence of substantial disruption (ex.suspension for wearing black armband to protest war is invalid; exception: showing of disruption not needed for speech reasonably viewed as promoting illegal drugs)

Circular student or school speech: can be censored if reasonably related to legitimate education concern of school (ex. age inappropriate newspaper article about pregnancy for HS journalism class)

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Public Employment

Back 83

Speech on matters of private concern: no 1A protection

Speech on matters of public concern: balance speech value v. govt interest in efficient operation in workplace (ex. teacher may not be fired for writing letter to editor criticizing allocation of school funding; exception: speech pursuant to official job duties, such as responsibility to report misconduct to superiors, is not protected)

Political patronage: public employees may not be hired or fired based on political affiliation or expression, except for high-level policy-makers or their advisors

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Vagueness, Overbreadth, Prior Restraints - applicability

Back 84

any speech restriction, whether general or in a public forum, may also be challenged on grounds that it is unconstitutionally vague or overbroad, or operates as a prior restraint

Front 85

Vagueness

Back 85

Test: statute is vague on its face, and invalid under the 1A, if persons of common intelligence cannot tell what speech is proscribed and what is permitted

ex. ban on "opprobrious and offensive" words

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Overbreadth

Back 86

Test: statute is overbroad, and invalid under the 1A, if it prohibits a substantial amount of speech that the government may not suppress

ex. ban on all 1st A activities at LAX

3rd party standing is allowed (P, whose speech may be proscribed, raises non-commercial speech claim on behalf of others not before the court)

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Prior Restraints

Back 87

Definition = licensing scheme or injunction that prevents speech before it occurs, rather than punishes speech afterwards

Disfavored - historically, prior restraints have been greatly disfavored and govt has a heavy burden for defending them:
a. content-based prior restraints are subject to very strict scrutiny
b. licensing systems must have sufficiently definite, narrow standards to cabin discretion, and prompt judicial review of denials (ex. injunction against press publication of "Pentagon Papers" was invalid)

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Free Exercise Clause

Back 88

1A forbids govt from prohibiting the free exercise of religion, which includes traditional religious belief and exercise thereof, as well as beliefs that play a role in the life of the believer similar to the role that religion plays in the life of traditional adherents

For purposes of adjudicating religious claims, govt (including courts) may inquire into sincerity of religious beliefs, but not their truth

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Free Exercise Clause - Discriminatory Laws

Back 89

level of review: strict scrutiny

ex. not neutral with respect to religion (ban on clergy holding public office)

ex. not generally applicable, but targeted at religion generally or a religion in particular (ban on animal sacrifice except hunting or in licensed facilities)

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Free Exercise Clause - Neutral Laws of General Applicability

Back 90

Not subject to free exercise clause

Examples:
1. ban on underage drinking (Catholics)
2. ban on head dress for driver's license photos (Muslims)
3. ban on peyote (Native American religions)

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Establishment Clause - Neutrality

Back 91

Neutrality: govt must remain neutral with respect to religion, neither favoring nor disfavoring it; examples:
a. neutral: providing police protection to churches on same basis as to secular community
b. favor: exemption of religious publications, but not others, from sales tax
c. disfavor: allow all student groups, except religious ones, afterhours access to school meeting rooms

Front 92

Establishment Clause - Coercion

Back 92

government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) religion

ex. providing clergy invocation and benediction at middle-school graduation

Front 93

Establishment Clause - Lemmon Test

Back 93

as often ignored as used but never overruled, this test finds an establishment of religion if either:
a. primary purpose is sectarian (religious);
b. primary effect is sectarian;
c. excessive entanglement between government and religion

ex. posting copies of Ten Commandments on walls of public school classrooms has a primarily sectarian purpose, despite legislative statement to the contrary

Front 94

Establishment Clause- Endorsement

Back 94

from standpoint of reasonable and informed observer, govt must not appear to endorse religion, making it seem relevant to a person's standing in the political community

examples:
a. endorsement - lone display of nativity scene on courthouse steps
b. non-endorsement - display of creche surrounded by Santa, reindeer, elephant, clown, candy cane, teddy bear, and other non-sectarian holiday symbols

Front 95

Establishment Clause - history and tradition

Back 95

sometimes Court sets aside endorsement principle and finds that a state religious display or practice is a tolerable acknowledgment of the role religion has played in the history and tradition of the nation rather than an establishment of religion; helps if display or practice has been around for a while

examples: legislative prayer; 4-decade old Ten Commandments on Texas capitol grounds surrounded by dozens of other displays of historical or societal significance

Front 96

Establishment Clause - Aid to Parochial Schools

Back 96

confusing and conflicted area, but aid is more likely to be upheld if:
1. the more neutral it is (ex. fin aid to all students, as opposed to only parochial school students)
2. the less convertible it is to religious instruction (ex. reimbursement for standardizes secular state tests, as opposed to exams written internally by teachers)
3. if aid goes to students, who privately choose to use it at parochial schools, rather than directly to schools (ex. vouchers giving parents choice of private schools, as opposed to salary supplement for private and parochial school teachers of secular subjects)