Mbe Conlaw

Front 1

Article III defines:

and establishes:

Back 1

Defines powers of the federal courts.

Establishes the cases and controversies requirement

Front 2

Standing

Back 2

The issue of whether the plaintiff is the proper party to bring the matter to adjudication

Front 3

Standing requirements

Back 3

(1) Injury
(2) Causation
(3) Rederessability

Front 4

Injury (Standing)

Back 4

Plaintiff must allege that she was 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

Front 5

Who has the best standing?

Back 5

An individual who has personally suffered an injury.

Usually monetary loss.

Front 6

Causation and Redressability (Standing)

Back 6

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.

Front 7

Third party standing? (in general)

Back 7

Generally, a plaintiff cannot assert claims of third parties who are not before the court.

(PERSONALLY SUFFERED requirement)

Front 8

Exceptions for third party standing

Back 8

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

Front 9

Associational Standing

Back 9

Organization may sue on behalf of its members, if:
(1) Members would have standing to sue
(2) Interests are germane to organization's purpose
(3) Neither the claim nor relief requires participation of the individual members

Front 10

Generalized Grievances - Tax payer Standing

Back 10

Generalized grievances = not allowed

Taxpayer = can challenge OWN tax liability

Can ONLY challenge government expenditures as violating the establishment clause.

Front 11

Ripeness

Back 11

Generally: Whether federal court may grant pre-enforcement review of a statute or regulation.

Will review if:
(1) Hardship will be suffered without preenforcement review (greater the hardship, more likely court will hear)
(2) Fitness of issues and record for judicial review (court has enough information to decide the issue)

Front 12

Mootness

Back 12

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)

Front 13

Mootness

Back 13

Generally: No live controversy, because events after filing of lawsuit end P's injury.

Exceptions:

(1) Wrong capable of repetition but evading review
(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)

Front 14

Political question doctrine

Back 14

Definition: A constitutional violation that the federal courts will not adjudicate -- no manageable standards.

1. "Republican form of government clause" (Article IV, Section IV)
2. Challenges to the President's conduct of foreign policy
3. Challenges to the impeachment and removal process
4. Challenges to partisan gerrymandering

Front 15

Supreme Court -- Justiciability Requirements

Back 15

1. Writ of certiorari
2. Final Judgment Rule
3, No independent and adequate state grounds

Front 16

Supreme Ct -- Writ of Cert rules

Back 16

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

Front 17

Final Judgment Rule

Back 17

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

Front 18

State Court Decision Rules

Back 18

There must be not an independent and adequate state law ground of decision:

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

Front 19

Lower Federal Court Review

Back 19

Cannot hear suits against state governments. Called the Principle of Sovereign review.

Front 20

Principle of Sovereign Immunity

Back 20

11th Amendment bars suits against states in federal court
Sovereign immunity bars suits against states in state courts or federal agencies

(No federal courts, state courts or federal agencies)

Front 21

Sovereign Immunity Exceptions

Back 21

(1) State can EXPRESSLY waive.
(2) Congress can authorize suits against states pursuant to federal laws adopted under Section 5 of the 14th Amendment.
(3) Federal gov't may sue state gov'ts
(4) Bankruptcy proceedings

Front 22

Suits against state officers

Back 22

State Official may be sued:
(1) For injunctive relief
(2) Can get money damages out of state official's own pockets; but...not from state treasury (paying retroactive damages).

Front 23

Abstention

Back 23

Federal Court may not enjoin pending state ct proceedings
Fed Ct. will not exercise jx (when it has it).

Front 24

Federal Legislative Power

Back 24

Article I: Congress's authority to act - must be express or implied

Front 25

Congress - General Police Power?

Back 25

No general police power. But congress does have exceptions (MILD):
Military
Indian Reservations
Lands and Territories that are Federal
D.C.

Front 26

Necessary and Proper Clause

Back 26

Congress may use ANY MEANS not prohibited by the Constitution to carry out its authority.

Front 27

Taxing/Spending Power

Back 27

Congress may TAX and SPEND for the GENERAL WELFARE

Front 28

Commerce Power

Back 28

Congress may regulate:

(1) the channels of interstate commerce (highways, waterways, internet)
(2) the instrumentalities of interstate commerce and persons or things in interstate commerce
(3) intrastate activities (economic or commercial) having a substantial effect on interstate commerce. (Wickard)

If non-economic, non-commercial activity, a substantial effect cannot be based on cumulative impact; MUST show substantial effect.

Front 29

10th Amendment

Back 29

All powers not granted to the U.S., nor prohibited to the states, are reserved to the states or the people.

Congress cannot: compel state regulatory or legislative action

Front 30

Congress Tenth Amendment "Exceptions"

Back 30

(1) 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.
(2) Congress may prohibit harmful commercial activity by state governments
(3) Congress 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 - (Section 5 of the Fourteenth amendment)

Front 31

Delegation of Power

Back 31

(1) No limits on congress's ability to delegate power
(2) Legislative and line-item vetos unconstitutional.

To pass law must always be:
(a) BICAMERALISM (passage by both House and Senate)
(b) PRESENTMENT (giving bill to Pres to sign or veto - pres must sign or veto in entirety)
INCLUDES AGENCY RULING

(3) Congress may not delegate executive power to itself or others

Front 32

Treaties:
1. State laws?
2. Federal laws?
3. Const?

Back 32

Agreements between US and Foreign Country that are negotiated by the president, effective when ratified by the Senate

(1) Treaty prevails over conflicting state laws
(2) Treaty conflicts with a federal statute, the one ADOPTED last in time controls
(3) ALWAYS invalid if conflicting with constitution

Front 33

Executive Agreements:
1. State laws?
2. Federal laws?
3. Constitution?

Back 33

An executive agreement is an agreement between the president and head of a foreign nation.
Can be used for any purpose

Constitution > Federal Law > Executive Agreement > State Law

Front 34

Commander In Chief

Back 34

President has broad powers as commander in chief to use US troops in foreign troops - but, can't declare war

Front 35

Appointment Power

Back 35

(1) President appoints amabassadors, federal judges, and officers of the US - Senate approves.

(2) 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)

Front 36

Removal Power

Back 36

Unless limited by statute, President may fire any executive branch officer:

(1) FOR CONGRESS TO LIMIT REMOVAL: Must be an office where independence from president is desirable and NOT CABINET
(2) Congress cannot prohibit removal - can limit removal where good cause

Front 37

Impeachment and Removal

Back 37

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 (House), conviction in the Senate requires a 2/3 vote

Front 38

Presidential Immunity

Back 38

(1) Absolute immunity for official acts
(2) Not immune for actions that occurred prior to taking office

Front 39

Executive Privilege

Back 39

President has it for presidential papers and conversations, BUT such privilege must yield to other important government interests: Priviege can be outweighed by OVERRIDING need.

Front 40

Pardon Power

Back 40

President may Pardon someone for FEDERAL crimes (always criminal never civil, not for state crimes)

EXCEPTION: Cannot pardon someone who was impeached

Front 41

Preemption

Back 41

Supremacy Clause of Article VI: The Constitution, laws and treaties made pursuant to it - are supreme law of the land (can be express or implied)

Front 42

Express Preemption

Back 42

1. Congress can say Feds exclusively regulate this field
2. IT SAYS SO - Federal Law is exclusive

Front 43

Implied Preemption

Back 43

Federal Law preempts if:

(1) state law is inconsistent
(2) state law impedes the achievement of a federal objective
(3) If Congress evidences a clear intent to preempt state law.

Front 44

"Inter-Governmental Immunity"

Back 44

States may not tax or regulate federal government activity.
Unconstitutional to pay state tax from federal treasury

Front 45

Dormant Commerce Clause

Back 45

In the absence of federal regulation, state regulation of commerce is valid, so long as:

(1) no discrimination against out-of-state interests;
(2) regulation does not unduly burden interstate commerce;
(3) regulation does not apply to wholly extraterritorial activity.

(applies to corporations).

Front 46

Privileges & Immunities Clause of Article IV

Back 46

A state may not deprive residents of another state the same privileges and immunities it affords to its own citizens, absent substantial justification.

(does not apply to out-of-state corporations).

Look for residency requirements:
invalid - private employment
valid - public employment
valid - recreational opportunities

Front 47

Exceptions to no discrimination against out-of-state interests (DCC)

Back 47

(1) Congressional approval/consent
(2) Market participant: State or local government may prefer it's own citizens when buying/selling goods.
(3) Subsidies

Front 48

State Taxation of Interstate Commerce

Back 48

Discriminatory Taxation = only if congress consents

Non-discriminatory Taxation Requirements:

(1) substantial nexus between taxing state and the property/activity to be taxed;
(2) must be fair apportionment of tax liability among states.

Front 49

Full Faith and Credit

Back 49

Courts in one state must give full faith and credit to judgment of courts in other state if:

(1) Final Judgement
(2) On the Merits
(3) By a court with Jurisdiction.

Front 50

Congressional regulation of PRIVATE conduct

Back 50

(1) 13th Amendment can be used to prohibit private race discrimination

(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)

Front 51

Public Function Exception

Back 51

"State Action" if a private entity is performing a task traditionally, exclusively done by government

Front 52

Entanglement Exception

Back 52

"State Action" if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity

Front 53

Entanglement Exception Examples

Back 53

State Action:
(a) Racially Restrictive covenants
(b) Leases premises to restaurant that racially discriminates
(c) When a private entity regulates interscholastic sports within a state

No State Action:
(a) provides books to schools that racially discriminate
(b) private school 99% funded by the gov't fires a teacher because of her speech
(c) NCAA orders suspension of coach at state university
(d) private club with liquor licenses from the state racially discriminates

Front 54

Application of Bill of Rights

Back 54

(1) Federal Gov't -- 5th Amendment
(2) State and Local governments through its incorporation into DP of Fourteenth amendment

Front 55

What rights have not been incorporated

Back 55

3rd: Quarter troops
5th: right to grand jury indictment in criminal cases
7th: to jury trial in civil cases
8th: against excessive fines (other parts have been incorporated)

Front 56

Rational Basis Test

Back 56

Rationally related to legitimate government purpose (conceivable purpose).
Burden --> on challenger

Front 57

Intermediate Scrutiny

Back 57

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.
Burden --> on Gov't

Front 58

Strict Scrutiny

Back 58

Necessary to achieve compelling gov't purpose
Necessary means more than compelling (A LEAST RESTRICTIVE ALTERNATIVE) - also has to be an actual purpose
Burden --> Gov't

Front 59

Procedural Due Process

Back 59

Procedures government must follow when it takes away life, liberty or property

Front 60

Substantive Due Process

Back 60

Gov't has adequate reason to take away life, liberty or property

Front 61

Equal Protection

Back 61

Are the gov'ts differences in the treatment of people adequately justified

Front 62

Procedural Due Process Analysis

Back 62

(1) Has there been a deprivation of life, liberty, or property?
LIBERTY = loss of a significant freedom provided by the constitution or a statute
PROPERTY = entitlement and that entitlement is not fulfilled

(2) Importance of the procedure to preserving that interest;

(3) Governmental Interest: Burden on the government in offering that procedure

Front 63

Procedural DP Examples

Back 63

(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)

Front 64

Economic Liberties

Back 64

Only get Rational Basis Review

Front 65

Takings clause

Back 65

Gov't may take private property for public use if it provides just compensation

Front 66

Takings Clause Analysis

Back 66

(1) Was there a taking?
(2) Was taking for public use?
(3) Was just compensation paid?

Front 67

Possessory Taking

Back 67

Government confiscation or physical occupation of property is a taking

Front 68

Regulatory Taking

Back 68

TAKING: If regulation leaves no reasonable economically viable use of property

NOT TAKING: property decreases in value

Front 69

Conditional Development

Taking Standing

Temporary deprivation?

Back 69

(1) Conditions on development of property must be justified by a benefit that is roughly proportionate to burden imposed, otherwise = taking

(2) Property owner may bring a takings challenge to regulations that existed at time property was acquired

(3) Temporarily denying owner use of property is not a taking so long as government's action is reasonable

Front 70

Is it for public use? (Takings)

Back 70

PUBLIC USE: if the government acts out of reasonable belief that takings will benefit the public, even if give land to other private individual

Front 71

Is just compensation paid?

Back 71

Fair Market Value @ time of taking

Front 72

Contracts Clause (Art. 1, Section 10)

Back 72

Applies to states -- must be ALREADY EXISTING contracts.

Front 73

State and Local Interference with Private Contracts

Back 73

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?

Front 74

State or Local Interference with Gov't Contracts

Back 74

Must meet strict scrutiny - courts are suspicious when state tries to get out of contract to avoid damages

Front 75

Ex post facto clause

Back 75

Invalidates: A law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed.

Front 76

Retroactive Civil Liability

Back 76

Must meet rational basis test

Bill of Attainder: An act of a legislature declaring a person or group of persons guilty of some crime and punishing them without privilege of a judicial trial

Front 77

Privacy

Back 77

Protected under Substantive Due Process:
(1) Right to marry (strict)
(2) Right to procreate (no involuntary sterilization)
(3) Right to custody of one's children
(4) Right to keep family together
(5) Right to control upbringing of one's children
(6) Right to purchase/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.

Front 78

Limitations on Right to Abortion

Back 78

Not Undue Burden:
(1) 24 hr waiting period
(2) requirement that abortions be performed by licensed physicians
(3) prohibiting partial birth abortions

Undue burden:
(1) spousal consent and notification laws
(2) Parental notice - BUT, may require it if 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
(3) No duty to subsidize abortions or provide abortions in public hospitals
(4) Never constitutionally required to pay for or use gov't funds to pay for abortions

Front 79

Right to Privacy and Homosexual Activity

Back 79

Deemed private - but no level of scrutiny articulated

Front 80

Right to refuse medical treatment

Back 80

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

Front 81

Physician assisted death (death with dignity)

Back 81

No consitutional right

Front 82

Second Amendment Right to Bear Arms

Back 82

Applies to possession in home for purpose of your own security

Gov't CAN regulate
(1) where people get guns
(2) who has guns

Front 83

Right to Travel

Back 83

Strict Scrutiny (Equal protection and P&I clause)

Notes:
(1) Durational residence requirements must meet strict scrutiny

(2) Restrictions on foreign travel need meet only the Rational Basis

Front 84

Right to Vote (Integrity of Elections)

Back 84

Strict Scrutiny

BUT: regulations of electoral process to prevent fraud need only be balance desirable

Front 85

Legislative apportionment

Back 85

One person one vote must be met for all state and local elections (for any legislative districts - all must be the same population)

Front 86

At-Large Elections

Back 86

Constitutional unless there is proof of discriminatory purpose (e.g. three votes in Mobile Alabama to dissipate black vote)

Front 87

Race in Drawing election districts

Back 87

Must meet strict scrutiny

Front 88

Fundamental right to education?

Back 88

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

Front 89

Equal Protection Question Approach

Back 89

(1) What's the Classification the government made?
(2) What level of scrutiny should be applied?
(3) Does this law meet the level of scrutiny?

Front 90

14th Amendment applies to...

Back 90

State and local governments (equal protection applied to feds through due process clause of Fifth Amendment)

Front 91

Level of Scrutiny for Race and Natural Origin

Back 91

STRICT

Front 92

How to prove racial classification?

Back 92

(1) Facially
(2) If Facially neutral, must show both:
(a) discriminatory impact; and
(b) discriminatory intent

Front 93

Racial classifications?

Back 93

Strict scrutiny

Specific Issues:

(1) Numerical set-asides require clear proof of past discrimination (No Quotas)
(2) Educational institutions may use it as one factor - but may not add points based on race
(3) Public schools may not use it as a factor in assigning students to schools unless meet strict scrutiny.

Front 94

Level of Classification for Gender

Back 94

Intermediate Scrutiny

Front 95

How to prove gender classification

Back 95

(1) Facially (on law)
(2) If facially neutral:
(a) discriminatory impact
(b) discriminatory intent

Front 96

How do you treat gender classifications benefiting women?

Back 96

Intermediate Scrutiny
If designed to remedy past discrimination and differences in opportunity --> allowed (No Quotas)

Front 97

Level of classification for Alienage

Back 97

Strict Scrutiny

Front 98

When do you use Rational Basis for Alienage?

Back 98

(1) 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) Congressional discrimination against aliens

But:
Intermediate Scrutiny against undocumented alien children

Front 99

Legitimacy classification

Back 99

Intermediate scrutiny

Front 100

Rational Basis Review

Back 100

(1) Age discrimination
(2) Disability Discrimination
(3) Wealth Discrimination
(4) Economic regs *under RBR and DP)
(5) Sexual orientation discrimination

Front 101

Content-Based Restrictions (Speech)

Back 101

Strict scrutiny

Types
(1) Subject matter restrictions
(2) Viewpoint Restrictions

Front 102

Subject Matter Restrictions

Back 102

Application of the law depends on the topic of the message

Front 103

Viewpoint Restrictions

Back 103

Application of the law depends on the ideology of the message

Front 104

Content-Netural Laws

Back 104

Intermediate Scrutiny (Generally)

Apply to all speech, whatever topic.

Front 105

Prior Restraint (Definition)

Back 105

Judicial order or administrative system that stops the speech before it occurs

Front 106

Prior restraint (Mechanics)

Back 106

(1) Must meet Strict Scrutiny;
(2) Procedurally proper court orders must be complied with until they are vacated or overturned.
(3) Person who violates a court order is barred from later challenging it.

Front 107

Licensing

Back 107

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

Front 108

Vagueness

Back 108

The law must be clear. Will be unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

Front 109

Overbreadth

Back 109

Law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

Front 110

Fighting Words

Back 110

"Likely to provoke a violent response"

Generally unconstitutionally overbroad - on the MBE they will always be unconstitutionally vague.

Front 111

Symbolic Speech

Back 111

Government can regulate conduct that communicates if it has:
(1) important interest unrelated to suppression of the message
(2) IF the impact on communications is no greater than necessary to achieve the government's purpose
(E.g. beating up on the bar examiners)
(3) alternative avenues remain open

Front 112

Symbolic Speech (Specific examples)

Back 112

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

Front 113

Anonymous Speech

Back 113

Protected

Front 114

Speech by Government

Back 114

First amendment DOES NOT apply - can't be challenged as violating first amendment (e.g. park monuments erected by government

Front 115

Incitement of illegal activity

Back 115

Not protected.

Government may punish speech if there is substantial likelihood of imminent illegal activity and the speech is directed to causing imminent illegality.

Front 116

Obscenity and Sexually oriented speech

Back 116

(1) Material must appeal to the prurient interest (not just lewd and lascivious, has to be shameful or morbid interest in sex)
(2) Material must be patently offensive under the law prohibiting obscenity (laws must delineate specific types)
(3) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value.

NATIONAL standard

Front 117

Zoning Ordinances and Adult Bookstores and Movie Theaters

Back 117

May be used to regulate location.

Front 118

Private possession of obscene materials

Back 118

MAY OT BE PUNISHED but the government may punish private possession of child porn.

Front 119

Child Porn

Back 119

Completely banned - even if not obscene. To be child porn, children must be used in production of material.

Front 120

Assets of Businesses Convicted of Violating Obscenity Laws

Back 120

May be seized in their entirety even if some of what was seized wasn't obscene

Front 121

Profane and Indecent Speech

Back 121

Generally not protected by first amendment. Two exceptions: Broadcast media and schools

Front 122

Commercial Speech

Back 122

Advertising for illegal activity and false and deceptive ads are not protected by the first amendment

Front 123

When can commercial speech be regulated?

Back 123

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)

Front 124

Commercial Speech Intermediate Scrutiny test

Back 124

Must be narrowly tailored but does not need to be least restrictive alternative

Front 125

Defamation: Plaintiff is Public Official Running for Public Office

Back 125

Plaintiff can recover for defamation by proving:
1. Falsity of the statement
2. Actual malice

Front 126

Defamation: Plaintiff is a Public Figure

Back 126

P can recover for defamation by proving
1. falsity of the statement and
2. actual malice

Front 127

Defamation: plaintiff is private figure and matter is of public concern

Back 127

P can recover by proving
1. Falsity of the statement
2. Negligence by the D
3. Punitive damages only by showing actual malice

Front 128

If the P is a private figure and the matter is not of public concern

Back 128

P can recover presumed or punitive damages by showing actual malice (Supreme Court has never established BOP)

Front 129

IIED for Defamatory speech

Back 129

Must meet defamations standards and cannot exist for speech otherwise protected by first amendment (Snyder, Falwell)

Front 130

Privacy

Back 130

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

Front 131

How may the government limit its dissemination of information?

Back 131

Nothing 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

Front 132

Speech by government employees in performance of their duties

Back 132

Not protected by first amendment

Front 133

All other government restrictions based on content of speech

Back 133

Must meet strict scrutiny (e.g. violent speech)

Front 134

Public Forum (DEFINED)

Back 134

Government properties that the government is constitutionally required to make available for speech

Front 135

Public Forum (qualifications)

Back 135

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

Front 136

Designated public forums (DEFINED)

Back 136

Government properties that the government could close to speech but chose to open to speech (public school facilities on nights and weekends)

Front 137

Designated public forum (qualifications)

Back 137

Same as public forum

Front 138

Limited Public Forums (DEFINED)

Back 138

Gov't properties that are limited to certain groups or dedicated to discussion of only some subjects

Front 139

Limited Public Forums (qualifications)

Back 139

Gov't can regulate speech as long as regulation is reasonable and viewpoint neutral (commercial ads v. political ads on the bus)

Front 140

Non-public forums (DEFINED)

Back 140

Government properties that the government constitutional can and does close to speech

Front 141

Non-public forums (QUALIFICATIONS)

Back 141

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

Front 142

Private forums

Back 142

You have no first amendment rights

Front 143

Laws that prohibit or punish group members

Back 143

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

Front 144

Laws that require disclosure of group membership

Back 144

Must meet strict scrutiny where such disclosure would chill association

Front 145

Laws that prohibit a group from discriminating

Back 145

Constitutional unless they interfere with intimate association (say a small dinner party) or expressive activity (KKK, Nazi Groups)

Front 146

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)