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169 Cards in this Set
- Front
- Back
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teatArticle III defines... and establishes...
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Defines powers of the federal courts. Establishes the cases and controversies requirement
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Standing
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The issue of whether the plaintiff is the proper party to bring the matter to adjudication
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Standing requirements
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Injury
Causation Rederessability |
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Injury (Standing)
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Plaintiff must allege that she will be injured or imminently will be injured
Must only be injury that plaintiff PERSONALLY have suffered Plaintiffs seeking INJUNCTIVE OR DECLARATORY relief must show a likelihood of future harm |
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Who has the best standing?
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Person who has personally suffered an injury. Usually monetary loss.
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Causation and Redressability (Standing)
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The plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury. Otherwise this is an ADVISORY OPINION.
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Third party standing?
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NO! A plaintiff cannot Assert claims of others of third parties who are not before the court. (Has to be PERSONALLY SUFFERED)
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Four exceptions for third party standing
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1. Close relationship (P has to be a trustee of injured - e.g. Dr. Patient, but not legal custody like a parent)
2. Third party unable to assert his or her own rights (rarely tested) 3. Associational Standing (on another card) |
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Associational Standing
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Organization may sue for its members, if
Members would have standing to sue Interests are germane to organization's purpose Neither the claim nor relief requires participation of the individual members |
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For 3rd Party Standing...
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P MUST ALSO MEET ALL OF THE OTHER REQUIREMENTS
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Generalized grievances in conlaw
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Typically not allowed. P must no be suing solely as a citizen or taxpayer interested in having gov't follow the law (key is not whether it affects a lot of people, but rather if the harm is not particularized to the citizen or taxpayer)
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Generalized Grievances (EXCEPTION)
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Taxpayers have standing to challenge government expenditures of money pursuant to federal statutes as violating the establishment clause. NARROW. And has been even more narrowed over the years
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Ripeness (DEFINED)
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Whether federal court may grant pre-enforcement review of a statute or regulation
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Ripeness (CONSIDERATIONS)
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The hardship that will be suffered without preenforcement review (greater the hardship, more likely court will hear it)
Fitness of issues and record for judicial review (does the federal court have all that it needs to decide the issue) |
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Mootness (DEFINITION)
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If events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot (MUST BE A LIVE CONTROVERSY)
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Mootness (EXCEPTIONS)
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1. A wrong capable of repetition but evading review (THIS IS THE ONE THE BAR FOCUSES ON) - e.g. it happened and it could happen again
2. Voluntary cessation (if D halts but can still resume at any time) 3. Class action suits (if named P's case becomes moot - case will not be dismissed if other P's still have standing) |
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Political question doctrine (DEFINED)
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Refers to constitutional violation that the federal courts will not adjudicate
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Political question doctrine (EXAMPLES)
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1. The "republican form of government clause" (Article IV, Section IV, Cases are dismissed as political questions, e.g. questions about republican elections)
2. Challenges to the President's conduct of foreign policy 3. Challenges to the impeachment and removal process (can't challenge the senate's impeachment proceeding) 4. Challenges to partisan gerrymandering |
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What is required for Supreme Court Review?
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All justiciability requirements must be met
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Justiciability Requirements
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1. Writ of certiorari
2. Final Judgment Rule 3, No independent and adequate state grounds |
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Writ of Cert rules
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All cases come to the Supreme Court by writ of certiorari (FOUR JUSTICES MUST VOTE IN FAVOR)
1. State courts come by writ 2. All cases from US COA come to SCOTUS by writ 3. Appeals exist for decisions of three-judge federal district courts (Case SKIPS circuits - Supreme Court review is required to decide them dictated by certain statutes) 4. SCOTUS has original and exclusive jxn for suits between state gov'ts |
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Final Judgment Rule
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NO Interlocutory Appeals - SCOTUS may hear cases only after there has been a final judgment of the highest state court, a circuit court, or a three-judge district court
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State Court Decision Rules
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There must be not an independent and adequate state law ground of decision
CHEMS: IF you win on both grounds, state and federal, you can't appeal. Even if fed gov't overturns your case - it can't overturn the state case, so you still win |
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Lower Federal Court Review
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Cannot hear suits against state governments. Called the Principle of Sovereign review.
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Principle of Sovereign Immunity
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Eleventh Amendment bars suits against states in federal court
Sovereign immunity bars suits against states in state courts or federal agencies So no federal courts, state courts or federal agencies |
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Sovereign Immunity Exceptions
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I. State can waive. MUST BE EXPRESS
II. State may be sued pursuant to fed laws adopted under section 5 of 14th amendment. Congress cannot authorize suits against states under other const. provisions III. Federal gov't may sue state gov'ts IV. Bankruptcy proceedings |
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Suits against state officers
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Even when the state government can't be sued - NAME THE STATE OFFICIAL. Limitations:
I. May be sued for injunctive relief II. May not be sued for money damages to be paid out of their own pockets iii. State officers MAY NOT BE SUED if it is the state treasury that will be paying retroactive damages |
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Abstention
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Fed cts may not enjoin pending state ct proceedings
1. Means when a fed ct has jxn but does not exercise it (Not frequently tested) |
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Fed Legislative Power
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Congress's authority to act - must be express or implied
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Police power?
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There is no general police power. But congress does have exceptions.
MILD Military Indian Reservations Lands and Territories that are Federal DC |
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Necessary and Proper Clause
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Basically anything that can be attenduatedly connected to congressional power
A congressional bake sale could be necessary and proper |
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Taxing/Spending Power
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Congress may tax and spend for the general welfare
THUS - if the bar exam says that Congress is acting for GENERAL WELFARE - they are right only if Congress is Taxing and Spending |
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The Commerce Power
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I. Congress may regulate channels of interstate commerce (highways, waterways, internet)
II. Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce (Electricity - radiowaves, insurance; PEOPLE! think about the Mann Act) III. Congress may regulate economic activities that have substantial effect on interstate commerce. Wickard (In the area of non-economic activity, a substantial effect cannot be based on cumulative impact - Morrison) |
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Tenth Amendment
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I. All powers not granted to the US, nor prohibited to the states, are reserved to the states or the people
II. Congress cannot compel state regulatory or legislative action |
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Congress Tenth Amendment "Exceptions"
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I. Congress can induce state gov't action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the pending program (CONDITIONS MUST NOT BE UNDULY COERCIVE)
II. Congress may prohibit harmful commercial activity by state governments (MUCH LESS TESTED) III. Congress's power under Section 5 of the Fourteenth amendment. May not create new rights or expand scope of rights, but only to prevent or remedy violations of rights recognized by the courts to be "proportionate" and "congruent" to remedying constitutional violations - you can't CREATE NEW RIGHTS - YOU JUST WORK WITH THE ONE'S YOU HAVE |
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Delegation of Power
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I. No limits exist on congress's ability to delegate power (not one federal law has been struck down since the 30's)
II. Legislative and line-item vetos unconstitutional. Must always be BICAMERALISM (passage by both House and Senate) and PRESENTMENT (giving bill to Pres to sign or veto - pres must sign or veto in entirety) INCLUDES AGENCY RULING III. Congress may not delegate executive power to itself or others |
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Treaties
1. State laws? 2. Federal laws? 3. Const? |
Agreements between US and Foreign Country that are negotiated by the president and are effective when ratified by the Senate
1. Prevail over conflicting state laws 2. Treaty conflicts with a federal statute, the one ADOPTED last in time controls 3. Invalid if conflicting with constitution |
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Executive Agreements
1. State laws? 2. Federal laws? 3. Const? |
Definition. An executive agreement is an agreement between the pres and head of foreign nation.
Can be used for any purpose 1. Prevails 2. Does not prevail 3. Does not prevail |
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President and foreign troops?
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Can't declare war - but he's got broad powers as commander in chief to use US troops in foreign troops
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Appointment Power
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I. President appoints amabassadors, federal judges, and officers of the US - Senate approves.
II. Congress may vest the appointments of inferior officers in the President, the heads of dept's, or the lower federal courts (Scotus has never defined distinction between officers and interior) |
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Removal Power
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Unless removal is limited by statute, the President may fire any executive branch office
I. FOR CONGRESS TO LIMIT REMOVAL: Must be an office where independence from president is desirable and NOT CABINET II. Congress cannot prohibit removal - can limit removal where good cause |
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Impeachment and Removal
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President, Vice President, federal judges, and officers of the United States can be impeached and removed from the office for treason, bribery or for high crimes and misdemeanors
1. Impeachment doesn't remove a person from office 2. Requires a majority vote, conviction in the Senate requires a 2/3 vote |
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Presidential Immunity
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I. Immune to civil suits for money damages while in office
II. But President is not immune for actions that occurred prior to taking office (Clinton v. Jones) |
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Executive Privilege
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President has it for presidential papers and conversations, but such privilege must yield to other important government interests. Could be
a. Evidence in a criminal trial b. Must be an OVERRIDING NEED |
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Pardon Power
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President may Pardon someone for FEDERAL crimes (always criminal never civil, not for state crimes)
EXCEPTION: Cannot pardon someone who was impeached |
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Preemption
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Governed by Supremacy Clause of Article VI - provides that Constitution, and laws and treaties made pursuant to it - are supreme law of the land (can be express or implied)
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Express Preemption
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1. Congress can say that they exclusively regulate this field
2. IT SAYS SO - Federal Law is exclusive |
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Implied Preemption
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1. If federal and state laws are mutually exclusive, federal law preempts state law (NOT POSSIBLE to simultaneously comply)
2. If state law impedes the achievement of a federal objective (E.g. denying benefits) 3. If Congress evidences a clear intent to preempt state law, federal law preempts state law (state law cannot CONTRADICT OR COMPLEMENT fed gov't) |
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"Inter-Governmental Immunity"
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States may not tax or regulate federal government activity.
Unconstitutional to pay state tax from federal treasury |
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Dormant Commerce Clause
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Or Negative Implications of the Commerce Clause
A. Congress has not acted B. State amy act in some regard to interstate commerce - but it is constrained by the dormant commerce clause |
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P& I Clause of Article IV
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I. Regulates state in regard to non-residents - an ANTI-DISCRIMINATION PROVISION
II. State may not deprive residents of another state the same P&I it affords to its own citizens |
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P or I Clause
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Always wrong on the bar unless it involves THE RIGHT TO TRAVEL
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If a state law does not discriminate against out of staters
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P&I Clause does not apply (anti-discrimination provision)
IF the law burdens interstate commerce - violates DCC if burdens exceed benefits (truck mud guards - different ones for Indiana - treated in-state and out of staters the same but burdened interstate commerce too much) |
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If the law discriminates against out of staters by burdening interstate commerce
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Violates DCC unless necessary to achieve an important government purpose. This is a MUCH HIGHER STANDARD and won't stand if an alternative could achieve its objective
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If the law discriminates against out of staters by burdening interstate commerce (EXCEPTION)
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1. Congressional approval
2. Market participant exceptions. State or local government may prefer it's own citizens in receiving benefits from gov't programs (disparity in tuition for in-staters v. out of staters) OR in dealing with government-owned businesses (South Dakota Cement Factory can charge less to instate people) |
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If the law discriminates against out of staters in re ability to earn a livelihood
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Violates P&I clause of Art. IV unless necessary to achieve an important gov't purpose. REQUIREMENTS:
a. Law must discriminate against out of staters b. Must be with regard to civil liberties OR IMPORTANT ECONOMIC ACTIVITIES (practicing law, yes, elk hunting, no) - usually involves the ability to earn a living c. Civil liberties never really comes up because people just sue under what civil liberty may be be NECESSARY to achieve an IMPORTANT government purpose |
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Biggest Carve-out of P&I Clause
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Corporations and aliens cannot use P&I Clause
Only use both for citizens |
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State Taxation of Interstate Commerce
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RARELY TESTED
1. States may not use their tax systems to help in-state businesses (this comes up from time to time) 2. A state may only tax activities if there is a substantial nexus to the state 3. State taxation of interstate businesses must be fairly apportioned |
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Full Faith and Credit
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Courts in one state must give full faith and credit to judgment of courts in other state - so long as
1. Court that rendered judgment had jxn over parties and subject matter 2. Judgment was on the merits 3. Judgment is final |
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State Action
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Constitution applies only to gov't action - private conduct need not comply with Constitution (Applies AT ALL levels - officers at ALL levels)
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When can Congress apply constitutional norms to private conduct by statute?
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1. Thirteenth Amendment can be used to prohibit private race discrimination (never violates the 13th amendment, only slavery does that - but can violate fed. statute made with help of 13th - only constitutional provision that applies to private conduct)
2. Commerce power can apply constitutional norms to private conduct (Civil Rights Act, Cumulative effect can make private action discriminate) 3. Congress cannot use section 5 of 14th amendment to regulate private behavior (only can regulate state and local) |
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Public Function Exception
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Constitution applies if a private entity is performing a task traditionally, exclusively done by government
Company Town Jaybird Cases Jackson Metro Edison - sometimes even if the gov't is in complete control (sponsored monopoly) no state action because function that a private company could do |
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Entanglement Exception
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Constitution applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity
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Entanglement Exception Examples
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1. Racially Restrictive covenants (state action)
2. Leases premises to restaurant that racially discriminates (state action) 3. No state action when state provides books to schools that racially discriminate 4. No state action when a private school that is over 99% funded by the gov't fires a teacher because of her speech (grants not state action, encouraging discrimination might be) 5. No state action when NCAA orders suspension of BBall coach at state university 6. When a private entity regulates interscholastic sports within a state (state action - INTRASTATE different than out of state, even though this is a private regulated group) 7. No state action when private club with liquor licenses from the state racially discriminates |
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Application of BOR
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I. Applies only to federal government
II. Applied to SAL governments through its incorporation into DP of Fourteenth amendment |
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What rights have not been incorporated
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Third Amendment: Quarter troops (would probably be struck down if anyone ever brought suit)
Fifth Amendment right to grand jury indictment in criminal cases (most states don't have it) Seventh Amendment right to jury trial in civil cases Eighth Amendment right against excessive fines (other parts have been incorporated) |
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Rational Basis Test
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Rationally related to legitimate government purpose. Don't even need to challenge actual purpose - just conceivable purpose.
BOP on challenger |
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Intermediate Scrutiny
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Substantially related to important government purpose.
Substantially related means narrowly tailored (a very good way - not the best way); government goal has to be more than legitimate - has to be actual purpose. Gov't has BOP |
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Strict Scrutiny
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Necessary to achieve compelling gov't purpose
Necessary means more than compelling (A LEAST RESTRICTIVE ALTERNATIVE) - also has to be an actual purpose Gov't has BOP |
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Procedural Due Process
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Procedures government must follow when it takes away life, liberty or property
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Substantive Due Process
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Gov't has adequate reason to take away life, liberty or property
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Equal Protection
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Are the gov'ts differences in the treatment of people adequately justified
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Procedural Due Process
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Has there been a deprivation of life, liberty, or property?
Deprivation of LIBERTY occurs if there is the loss of a significant freedom provided by the constitution or a statute A deprivation of PROPERTY occurs if there is an entitlement and that entitlement is not fulfilled (don't get tricked - the rights/priv distinction is not a thing) |
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Deprivation of Liberty (EXAMPLES)
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I. Except in emergency, before adults can be institutionalized, you must have notice and a hearing
II. Before institutionalizing a child - only need a screening by a neutral fact finder III. Harm to reputation is not a loss of liberty IV. Prisoners rarely have liberty interests |
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Deprivation of Property (EXAMPLE)
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Gov't can terminate a person in at-will contract, but if they fire him in the middle of the year - they have to have a hearing
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Entitlement
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Reasonable expectation to continue receipt of a benefit
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Gov't Negligence and DP
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Not sufficient for deprivation of DP. Generally must be INTENTIONAL GOVERNMENT ACTION or at least RECKLESS ACTION for liability to exist
In emergency situations: standard is "shocks the conscience" |
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Gov't failure to protect and DP
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Generally failure to protect from privately inflicted harms does not deny DP - Deshaney
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PDP Balancing Test
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If deprivation of life, liberty, property - balancing test
I. Importance of interest to individual (only if there has been deprivation) II. ability of additional procedures to increase accuracy of fact finding III. Government's interest (DIFFICULT TO SEE WHERE COURT MIGHT COME OUT) |
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PDP Concrete Examples
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1. Terminate welfare benefits - notice and hearing required
2. Terminate social security benefits - post termination hearing needed 3. Disciplined in public school - notice of charges and opportunity to explain yourself (no trial type hearing) 4. Corporal punishment - no due process required 5. Before parents right to custody of child can be permanently terminated, must be notice and hearing 6. Punitive damages require instruction to jury and judicial review (grossly excessive punitive damages violate due process) 7. American citizen held as enemy combatant must be given due process 8. Except in exigent circumstances, pre-judgment attachment on government seizure of assets must be preceded by notice and hearing (gov't may seize property used in illegal activity even if it has an innocent owner) |
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Economic Liberties
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Only RBR test is used - Constitution provides only minimal protection for economic liberties (Lochner was a deviation but now we're back)
If it says consumer protection on multistate - that's RBR |
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Takings clause
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Gov't may take private property for public use if it provides just compensation
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Takings Clause Questions
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Is there a taking?
Is it for public use? Is just compensation paid? |
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Possessory Taking
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Government confiscation or physical occupation of property is a taking (e.g. cable wires in apartments)
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Regulatory Taking
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Gov't regulation is taking if it leaves no reasonable economically viable use of property
NOT a taking simply because property decreases in value Penn central - decrease in value. Lucas - deprived of ANY economic use |
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Takings Notes
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I. Gov't conditions on development of property must be justified by a benefit that is roughly proportionate to burden imposed, otherwise it is a taking
II. Property owner may bring a takings challenge to regulations that existed at time property was acquired 3. Temporarily denying owner use of property ins not a taking so long as government's action is reasonable |
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Is it for public use? (Takings)
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Gov't may take private property but only for public use - SC has broadly defined public use in Kelo
PUBLIC USE: the government acts out of reasonable belief that takings will benefit the public (which in kelo meant acting out of reasonable belief that what they were doing would help the local economy by creating business) |
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Is just compensation paid?
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I. Measure by loss to owner (gain to taker is irrelevant)
II. Expressed in reasonable FMV terms |
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Contracts Clause (Art. 1, Section 10)
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Applies to states - must be already existing contracts.
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State and Local Interference with Private Contracts
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State or local interference with private contracts must meet intermediate scrutiny (different test):
Does legistlation substantially impair party's rights under existing contract? If so is law reasonably and narrowly tailored of promoting an important and legitimate public interest? |
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State or Local Interference with Gov't Contracts
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Must meet strict scrutiny - courts are suspicious when state tries to get out of contract to avoid damages
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Ex post facto clause
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Does not apply in civil cases.
A law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed. So often comes up as a wrong answer about contracts clause |
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Retroactive Civil Liability
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Must meet rational basis test
Bill of attainder law that directs punishment of specific person or persons without a trial ("Erwin Chemerinsky shall go to jail") |
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Privacy
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Protected under SDP.
1. Right to marry (strict scrutiny) 2. Right To procreate (no involuntary sterilization) 3. Right to custody of one's children (unless it meets parental need or comes from neglect. States can define custody (Michael H - marital presumptions okay)) 4. Right to keep family together (family is broader than parents and children, but everyone must be related) 5. Right to control upbringing of one's children (e.g. send them to parochial school - no grandparent visitation over parent objection) 6. Right to purchase and use contraceptives 7. Right to abortion - not strict scrutiny, but rather state may not create undue burden on ability to obtain abortions pre-viability. After viability only if necessary to protect woman's life or health. |
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Limitations on Right to Abortion
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Things not an undue burden - 24 hr waiting period, requirement that abortions be performed by licensed physicians, prohibiting partial birth abortions
Undue burden - spousal consent and notification laws Parental notice - may require it so long is there an alternative procedure where minor can go before judge by finding that it is in minor's best interest or she is mature enough to decide for herself No duty to subsidize abortions or provide abortions in public hospitals Never constitutionally required to pay for or use gov't funds to pay for abortions |
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Right to Privacy and Homosexual Activity
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Deemed private - but no level of scrutiny articulated
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Right to refuse medical treatment
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Competent adults have right to refuse medical treatment, even life-saving medical treatment
State may require C&C evidence that a person wanted treatment right before it ended State may prevent family members from terminating treatment for another |
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Physician assisted death (death with dignity)
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No consitutional right
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Second Amendment Right to Bear Arms
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Heller - court found that this right isn't limited to just weapons for militia service. Applies to the very least possession in home for purpose of your own security
Has been incorporated Gov't can regulate where people get guns and who has guns Never specified a level of scrutiny |
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Right to Travel
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I. Equal protection and P&I clause
II. Laws that prevent people from moving into state must meet strict scrutiny III. Durational residence requirements must meet strict scrutiny (will chill interstate travel - although some have been allowed, e.g. a 50 day residency period for voting to protect against voter fraud) IV. Restrictions on foreign travel need meet only the RBR test - SC has said there is not a fund. right to interstate travel |
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Right to Vote (Integrity of Elections)
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I. Laws that deny some citizens right to vote must meet strict scrutiny, but regs of electoral process to prevent fraud need only be balance desirable
II. Property restrictions almost never allowed |
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Legislative apportionment
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One person one vote must be met for all state and local elections (for any legislative districts - all must be the same population)
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At-Large Elections
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Constitutional unless there is proof of discriminatory purpose (e.g. three votes in Mobile Alabama to dissipate black vote)
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Race in Drawing election districts
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Must meet strict scrutiny
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Bush v. Gore
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Counting uncounted votes without present standards in a presidential election violates equal protection
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Hey, is there a fundamental right to education?
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No. Because of that, basically it's not an EPC violation that two schools have inequal facilities because one has a higher property tax than the other
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Equal Protection Question Approach
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1. What's the Classification?
2. What level of scrutiny should be applied? 3. Does this law meet the level of scrutiny? |
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14th Amendment applies to...
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State and local governments (equal protection applied to feds through due process clause of Fifth Amendment)
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Level of Scrutiny for Race and Natural Origin
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STRICT
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How to prove racial classification?
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1. Exists on face of the law
2. If facially neutral, provide a racial classification requiring both discriminatory impact and discriminatory intent (proof of just impact isn't enough to show discriminatory intent) Ex. Discriminatory use of peremptory challenges based on race denies equal protection (impact and intent) |
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How to treat racial classifications?
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Apply strict scrutiny
Numerical set-asides require clear proof of past discrimination (don't make it look like a quota but 1 to 1 hiring has been held to be okay.) Educational institutions may use it as one factor - but may not add points based on race Public schools may not use it as a factor in assigning students to schools unless meet strict scrutiny. |
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Level of Classification for Gender
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INTERMEDIATE! Gender discrimination only if exceedingly persuasive justification!
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How to prove gender classification
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1. Face of the law
2. if law is facially neutral, impact and intent (e.g. height and weight requirements for cops or peremptory challenges) |
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How do you treat gender classifications benefiting women?
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1. Use intermediate scrutiny regardless.
DO NOT ALLOW GENDER DICRIMINATIONS BASED ON ROLE STEREOTYPES (e.g. alimony, survival benefits) 2. Gender Classifications designed to remedy past discrimination and differences in opportunity will be allowed |
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Level of classification for alienage
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STRICT! (some have been struck down: right to receive welfare benefits, civil servants, bar admissions)
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RBR for Alienage?
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1. Those concerning self-government and democratic process (e.g. may discriminate in serving on a jury, being a cop, etc. but NOT being a notary public)
2. Only rational basis for Congressional discrimination against aliens 3. But Intermediate against undocumented alien children (Texas struck down law that kids of undocumented immigrants had to pay to go to school and legit kids didnt) |
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Legitimacy classification
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1. Use intermediate scrutiny
2. Laws that deny a benefit to all non-marital children, but grant it to all marital children always fail (but some will be upheld that are similar like forcing parents to have paternity test only while they're alive for illegitimate kid to inherit) |
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RBR used for everything else, especially...
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1. Age discrimination
2. Disability Discrimination (see Cleburne for some RBR with bite) 3. Wealth Discrimination (Poverty is NOT a suspect class) 4. Economic regs *under RBR and DP) 5. Sexual orientation discrimination |
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Content-Based Restrictions
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1. Must meet strict scrutiny
2.Two types A. Subject matter restrictions B. Viewpoint Restrictions |
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Subject Matter Restrictions
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Application of the law depends on the topic of the message
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Viewpoint Restrictions
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Application of the law depends on the ideology of the message
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Content-Netural Laws
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Apply to all speech, whatever topic. Generally need only meet intermediate scrutiny.
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Prior Restraint (Definition)
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Judicial order or administrative system that stops the speech before it occurs
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Prior restraint (Mechanics)
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Court orders suppressing speech must meet strict scrutiny. Procedurally proper court orders must be complied with until they are vacated or overturned. Person who violates a court order is barred from later challenging it.
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Licensing
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Gov't can require license for speech only if there is an important reason for licensing and a clear criteria leaving almost no discretion to licensing authority
Licensing schemes must contain procedural safeguards like prompt determination of requests or licenses and judicial review |
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Vagueness
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The law must be clear. Will be unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
E.g. book or magazine can't "corrupt the minds of youth" would be too vague |
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Overbreadth
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Law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
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Fighting Words
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I. "Likely to provoke a violent response"
II. Generally unconstitutionally overbroad - on the MBE they will always be unconstitutionally vague. |
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Symbolic Speech
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Government can regulate conduct that communicates if it has:
I. An important interest unrelated to suppression of the message AND II. IF the impact on communications is no greater than necessary to achieve the government's purpose (E.g. beating up on the bar examiners) |
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Symbolic Speech (Specific examples)
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I. Flag burning - protected
II. Draft card Burning - not protected III. Nude dancing - not protected IV. Burning cross - protected unless done with intent to threaten V. Contributions to political campaigns - restriction constitutional VI. Expenditure limits - unconstitutional |
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Anonymous Speech
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Protected
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Speech by Government
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First amendment doesn't apply - can't be challenged as violating first amendment (e.g. park monuments erected by government
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Incitement of illegal activity
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Not protected. Government may punish speech if there is substantial likelihood of imminent illegal activity and the speech is directed to causing imminent illegality.
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Obscenity and Sexually oriented speech
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I. Material must appeal to the prurient interest (not just lewd and lascivious, has to be shameful or morbid interest in sex)
II. Material must be patently offensive under the law prohibiting obscenity (laws must delineate specific types) III. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value - this is a NATIONAL standard. How it would be viewed across the country. |
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Zoning Ordinances and Adult Bookstores and Movie Theaters
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May be used to regulate location.
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Private possession of obscene materials
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MAY OT BE PUNISHED but the government may punish private possession of child porn.
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Child Porn
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Completely banned - even if not obscene. To be child porn, children must be used in production of material.
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Assets of Businesses Convicted of Violating Obscenity Laws
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May be seized in their entirety even if some of what was seized wasn't obscene
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Profane and Indecent Speech
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Generally not protected by first amendment. Two exceptions: Broadcast media and schools
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Commercial Speech
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Advertising for illegal activity and false and deceptive ads are not protected by the first amendment
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When can commercial speech be regulated?
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When it inherently risks deception.
Examples: Government may prevent professional from advertising or practicing under trade name. Government may prohibit in-person solicitation of clients for profit (unless for free representation, or if sent by a letter) OR When it falls under intermediate scrutiny (e.g. 30-day waiting period after accident for solicitation) |
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Commercial Speech Intermediate Scrutiny test
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Must be narrowly tailored but does not need to be least restrictive alternative
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Defamation: Plaintiff is Public Official Running for Public Office
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Plaintiff can recover for defamation by proving
1. Falsity of the statement 2. Actual malice |
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Defamation: Plaintiff is a Public Figure
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P can recover for defamation by proving
1. falsity of the statement and 2. actual malice |
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Defamation: plaintiff is private figure and matter is of public concern
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P can recover by proving
1. Falsity of the statement 2. Negligence by the D 3. Punitive damages only by showing actual malice |
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If the P is a private figure and the matter is not of public concern
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P can recover presumed or punitive damages by showing actual malice (Supreme Court has never established BOP)
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IIED for Defamatory speech
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Must meet defamations standards and cannot exist for speech otherwise protected by first amendment (Snyder, Falwell)
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Privacy
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1. Gov’t may not create liability for truthful reporting of information that was lawfully obtained from the government
2. Media broadcasts of a tape of a legally intercepted call, if the media did not participate in the illegality and it involves matter of public importance are not allowed to be prosecuted |
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How may the government limit its dissemination of information?
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Noting in first amendment that requires them to open their papers up to the public.
Only real right press and public have is access to a criminal trial and most criminal pretrial stuff |
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Speech by government employees in performance of their duties
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Not protected by first amendment
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All other government restrictions based on content of speech
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Must meet strict scrutiny (e.g. violent speech)
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Public Forum (DEFINED)
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Government properties that the government is constitutionally required to make available for speech
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Public Forum (qualifications)
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1. Regulations must be SUBJECT MATTER and VIEWPOINT NEUTRAL. If not – strict scrutiny must be met
2. Must be TIME, PLACE or MANNER REGULATION that serves an important government purpose and leaves open alternative places for communication (intermediate scrutiny) 3. Need not be least restrictive alternative 4. City officials can’t have discretion to set permit fees for public demonstrations |
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Designated public forums (DEFINED)
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Government properties that the government could close to speech but chose to open to speech (public school facilities on nights and weekends)
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Designated public forum (qualifications)
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Same as public forum
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Limited Public Forums (DEFINED)
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Gov't properties that are limited to certain groups or dedicated to discussion of only some subjects
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Limited Public Forums (qualifications)
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Gov't can regulate speech as long as regulation is reasonable and viewpoint neutral (commercial ads v. political ads on the bus)
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Non-public forums (DEFINED)
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Government properties that the government constitutional can and does close to speech
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Non-public forums (QUALIFICATIONS)
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Gov’t can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral. E.g.
1. Military bases (even parts open to public 2. Areas outside prisons and jails 3. Sidewalks on post office properties (*) 4. Airports |
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Private forums
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You have no first amendment rights
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Laws that prohibit or punish group members
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Must meet strict scrutiny. To punish membership, you must prove person:
1. Actively affiliated with group 2. Knowing of its illegal activities and 3. With the specific intent of furthering those illegal activities |
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Laws that require disclosure of group membership
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Must meet strict scrutiny where such disclosure would chill association
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Laws that prohibit a group from discriminating
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Constitutional unless they interfere with intimate association (say a small dinner party) or expressive activity (KKK, Nazi Groups)
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Free Exercise clause
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Cannot be used to challenge neutral law of general applicability. If it’s not a neutral law – strict scrutiny
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Individuals Who Quit Their Jobs for Religious Reasons
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Gov’t may not deny benefits (less frequently tested)
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Lemon Test (SEX)
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Not an establishment clause violation if
1. Secular Purpose in law (Primary purpose can’t be to advance religion) 2. Effect must be neither to advance nor inhibit religion (government may not symbolically endorse religion or a particular religion – e.g. nativity scene on government property, BUT NOT structure between two gov’t buildings that government didn’t pay for nor symbolically endorse) 3. Must not be excessive entanglement with religion (e.g. can’t directly pay teacher’s salary in parochial schools) |
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Religious Speech Among Religions
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Gov't may not discriminate unless strict scrutiny is met
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Gov't Sponsored religious activity in public schools
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Unconstitutional. But religious student and community groups must have the same access to school facilities as non-religious groups (School prayer has been consistently shut down , also clergy or student prayers at public school graduation. Moment of silence is okay)
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Government may give assurance to parochial schools if:
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Schools not use it for religious instruction. May also provide parent vouchers, which they use in parochial schools (parent in that case chooses to use it that way)
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