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123 Cards in this Set
- Front
- Back
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Art. III, Sec. 1
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Judicial power of the U.S. shall be vested in one Supreme Court and such inferior courts as the Congress may from time to time ordain and establish
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Scope of Federal Judicial Power
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(a) federal questions (arising under the Constitution, federal law, or treaties)
(b) cases affecting ambassadors, public ministers, and consuls (c) cases of admiralty/maritime (d) where U.S. is a party (e) cases between states (f) diversity cases (g) cases between a state and citizen of another state NOTE what is not included here, e.g. suit between a state and its own citizen |
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11th Amendment
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Citizens cannot sue states in federal court for money damages without the states' consent.
Exceptions: (a) suits against officials for abusing power in enforcing an unconstitutional state statute (b) suits between states, or between state and federal gov't (c) suits for injunctions (d) suits against subdivisions of a state (cities, towns, counties) do not have immunity from suit under the 11th Amendment |
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Waiver of 11th Amendment
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State may consent to suit and waive 11th Amend. right but must do so expressly and unequivocally
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Limits on Federal Court Jurisdiction
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(1) case or controversy
(2) mootness (3) ripeness (4) absention (5) standing (6) political questions |
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Case or Controversy Requirement
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a real and substantial dispute that touches the legal relations of parties having adverse interests and that is capable of judicial revolution
Federal courts do NOT issue advisory opinions |
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Mootness
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If controversy has already been resolved, case will not be heard
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Ripeness
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bars consideration of claims before they have fully developed, in light of the potential hardship to the parties that will result from withholding consideration, e.g. where a statute has not yet been enforced and likely will not be enforced
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Abstention
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Federal court may abstain where there are undecided issues of state law or the meaning of state law is unclear
May also abstain where state criminal proceedings are pending and suit is for injunction against them |
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Standing
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3 Requirements:
(1) injury-in-fact - direct and personal injury, actual or imminent (2) causation (3) redressability |
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Taxpayer Standing
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Generally no standing to challenge unconstitutional expenditures in their position as taxpayers
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Standing on Behalf of Third Parties
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Generally, litigants lack standing to assert the rights of third parties, EXCEPT where:
(1) a special relationship exists between the litigant and the third party because of the connection between the interests of the claimant and the constitutional rights of the third person, AND (2) the third party is unable or finds it difficult to bring suit on his own behalf |
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Standing of Associations on Behalf of Members
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Association can bring claims on behalf of its members, IF:
(1) the members would otherwise have standing to sue on their own (2) the interest asserted is germane to the association's purpose, AND (3) neither the claim asserted nor the relief requested would require participation by individual members |
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Political Questions
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A matter assigned to another branch by the constitution or incapable of judicial answer.
Court will look to the following criteria: *(1) Whether the Constitution commits the issue to a coordinate political branch *(2) lack of judicially manageable standards for resolving it (3) impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion (4) impossibility of deciding without expressing lack of respect due coordinate branches of government (5) an unusual need for unquestioning adherence to a political decision already made (6) potential for embarrassment from multifarious pronouncements by various departments on a single question Two principal concerns - separation of powers and the institutional limitations of the judiciary Examples - impeachment, amendment ratification process, president's power to terminate a treaty, foreign affairs generally, redrawing districts for political purposes, and the Guaranty Clause |
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Original Jurisdiction in U.S. Supreme Court
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(1) cases affecting ambassadors, public ministers, consuls
(2) cases in which a state may be a party Congress can neither expand nor contract original jurisdiction |
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Appellate Jurisdiction in U.S. Supreme Court
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all other cases, with such exceptions and under such regulations as Congress shall make
ONLY obligatory by appeal of 3 judge federal district court panel Otherwise, just discretionary based on writ of certiorari |
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Grounds for Writ of Certiorari
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Grounds for certiorari:
(1) Conflicts between federal courts of appeal (2) Conflicts between the highest courts of 2 states (3) Conflict between highest state court and federal court of appeals (4) Important and Unresolved issues |
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Adequate and Independent State Grounds
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If a state decision involves a federal question, but the state judgment can be supported be adequate and independent state grounds, SCOTUS will not take jurisdiction, because doing so would amount to an advisory opinion
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Powers of Congress
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(1) Legislative (make laws, conduct hearings/investigations)
(2) Commerce (3) Taxing (4) Spending (5) War/Defense (6) Investigatory (7) Property (8) Eminent Domain (9) Admiralty (10) bankruptcy (11) postal (12) copyright and patent (13) speech and debate (14) Civil War Amendments |
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Powers of Congress: Legislative Power
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Power to make laws, with incidental power is the right to conduct investigations and hearings, and do all things "necessary and proper" to enactment of legislation
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Powers of Congress: Commerce Power
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Congress can regulate:
(1) Channels of interstate commerce (2) Instrumentalities of interstate commerce (3) Activities that "substantially affect" interstate commerce Cumulative effect doctrine - Wickard |
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Substantial Effects Test (Lopez)
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Congress must show that:
(1) the regulated activity is "economic" in nature, and (2) the regulated activity, when taken cumulatively, has a substantial effect on interstate commerce |
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Powers of Congress: Taxing Power
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Congress has the power to lay and collect taxes, to pay the debts, provide for the common defense, and provide for the general welfare of the U.S.
Generally, if Congress has the power to regulate the activity through other means, it can do so through its taxing power |
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Test for Valid Tax
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Tax must satisfy EITHER:
(1) Objective Test - tax actually raises revenue, OR (2) Subjective Test - tax was intended to raise revenue |
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16th Amendment
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Gives Congress the power to tax incomes from any source
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Powers of Congress: Spending Power
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Generally, must be used to support the "general welfare"
Conditional Spending is permitted under Dole (see next card for test) |
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Conditional Spending to Induce State Compliance
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Congress may place conditions on state receipt of federal funds if:
(1) the spending serves the general welfare (2) the condition is unambiguous (3) the condition relates to a federal program (4) the state is not required to act unconstitutionally AND (5) the amount of funds is not coercive |
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Powers of Congress: War and Defense Powers
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Congress has the power to:
(1) Declare war (2) raise and support armies (3) provide and maintain a navy AND (4) organize, arm, discipline, and call forth a militia (5) Power to establish military courts and tribunals Generally, these powers give broad authority to take action to provide for the national defense Other powers that have been upheld: (1) military draft (2) price and rent controls of civilian economy during wartime (3) Exclusion of civilians from restricted areas (Korematsu) |
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Military courts and tribunals
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Not subject to safeguards in Bill of Rights, because courts are not "Article II" courts; instead, procedural safeguards are found in the Uniform Code of military justice
Limited review by civilian courts |
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Powers of Congress: Investigatory Power
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Broad, may extend to any matter within a legitimate legislative sphere
Failure to appear/answer at a hearing may result in a citation for contempt or referral to US atty for prosecution |
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Powers of Congress: Property
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Power to dispose of and make all needful Rules and Regulations respecting the territory or other property of the U.S.
Includes an implied power of Eminent Domain (must take for public use and give just compensation) |
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Powers of Congress: Admiralty
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Plenary power to make maritime laws throughout the country
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Powers of Congress: Bankruptcy
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Power to establish laws of bankruptcy
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Powers of Congress: Postal
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Power to establish post offices and post roads
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Powers of Congress: Copyright and Patent
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may promote progress of science and useful arts by securing exclusive rights to authors and inventors
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Powers of Congress: Speech and Debate
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Legislators have immunity from liability for defamation for the text of laws and speeches made on the floor of the legislature
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Congressional Powers: Enforcing the Civil War Amendments
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Congress has power to enforce the 13th, 14th, and 15th Amendments
To do so, Congress must show: (1) State governments have engaged in widespread violations of the amendment (unless it is enforcing 13th amendment, which can be applied against private parties as well), AND (2) Legislative remedy is "congruent with and proportional to" the violations |
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Executive Powers
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(1) Chief Executive (appointment, removal, veto, pardon, executive privilege)
(2) Commander-in-Chief (Deploy Military forces, no power to declare war) (3) International Affairs (Treaty power, executive agreements with foreign nations) |
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Executive Powers: Chief Executive
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(1) Appointment
(2) Removal (3) Veto (4) Pardon (5) Executive Privilege |
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Executive Powers: Appointment Power
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President has exclusive authority to appoint executive/administrative officials, and with advice/consent of Senate, to appoint judicial officers, ambassadors, etc.
For "inferior" officers, Congress can delegate appointment authority to president, judiciary, or heads of depts Removal power |
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Executive Powers: Removal Power
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For executive appointees, President can remove without cause
But for executive officers with fixed terms, or quasi-judicial officers the President must have cause |
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Executive Powers: Veto Power
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President has 10 days to veto any legislation
Congress can override a veto by a 2/3 majority of each house |
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Pocket Veto
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If bill passed within 10 days of the end of a congressional term, the President can "veto" a bill by not signing it
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Line-item Veto
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Unconstitutional
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Congressional Legislation and Presidential Action
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President may exercise only those powers explicitly or impliedly granted by the Constitution or Congress
If Congress acts within its power to overrule a Presidential action, Congress will prevail (Youngstown framework) |
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Executive Powers: Pardon
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President may pardon for any offenses against the United States, EXCEPT in cases of impeachment
NO pardons for state crimes |
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Executive Powers: Executive Privilege
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President has absolute privilege to refuse to disclose info related to military, diplomatic, or sensitive national security secrets
All other confidential communications between president and his advisers are PRESUMPTIVELY privileged |
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Executive Powers: Commander-in-Chief
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Military powers - (1) power to deploy military forces without declaration of war, and (2) the power to seize private property during war time UNLESS Congress denies him that power
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Executive Powers: Treaty Power
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President can make treaties with Advice and Consent of 2/3 of Senate
Self-executing treaties take effect immediately; non-self-executing treaties require further action by Congress or the states Supersedes ALL state law, and all PREVIOUSLY enacted federal law; but SUBSEQUENT federal law will supersede any treaty (first in time rule) |
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Executive Powers: Executive Agreements
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No need for approval by Senate
Agreements DO NOT supersede inconsistent federal law regardless of when it was enacted, but ONLY supersede inconsistent state laws |
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Congressional Checks on Executive Power
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(1) Foreign Affairs (Youngstown framework, Congress, if acting within its constitutional powers, can block president from acting)
(2) Impeachment (House of Representatives has sole power to impeach, Senate has sole power to try impeachments, and requires 2/3 vote for conviction) (3) Legislative Veto - unconstitutional (4) Investigative Power (5) Delegation to Executive (6) Appropriations power (spending) |
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Presidential Limits on Congress
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Veto
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Judicial Limits on Congress/President
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Arbiter of Constitution, federal law, and treaties
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Police Power
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States have police power, federal government does NOT
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Federal Government Immunities
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(1) Immunity from suits by private individuals except where the government CONSENTS
(2) Immunity from state taxation (but can apply non-discriminatory taxes against contractors working with government) (3) Immunity from state regulation where the regulation would interfere with the government's ability to carry out its federal functions |
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State Government Immunities
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(1) NOT immune from suits by the federal government
(2) NOT immune from suits by other states (3) Immune from most suits by state citizens, EXCEPT where (1) the state consents, or (2) a state officer is sued for an injunction for unlawful conduct beyond the scope of his authority |
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Executive Powers: Executive Privilege
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President has absolute privilege to refuse to disclose info related to military, diplomatic, or sensitive national security secrets
All other confidential communications between president and his advisers are PRESUMPTIVELY privileged |
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Executive Powers: Commander-in-Chief
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Military powers - (1) power to deploy military forces without declaration of war, and (2) the power to seize private property during war time UNLESS Congress denies him that power
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Executive Powers: Treaty Power
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President can make treaties with Advice and Consent of 2/3 of Senate
Self-executing treaties take effect immediately; non-self-executing treaties require further action by Congress or the states Supersedes ALL state law, and all PREVIOUSLY enacted federal law; but SUBSEQUENT federal law will supersede any treaty (first in time rule) |
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Executive Powers: Executive Agreements
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No need for approval by Senate
Agreements DO NOT supersede inconsistent federal law regardless of when it was enacted, but ONLY supersede inconsistent state laws |
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Congressional Checks on Executive Power
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(1) Foreign Affairs (Youngstown framework, Congress, if acting within its constitutional powers, can block president from acting)
(2) Impeachment (House of Representatives has sole power to impeach, Senate has sole power to try impeachments, and requires 2/3 vote for conviction) (3) Legislative Veto - unconstitutional (4) Investigative Power (5) Delegation to Executive (6) Appropriations power (spending) |
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Presidential Limits on Congress
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Veto
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Judicial Limits on Congress/President
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Arbiter of Constitution, federal law, and treaties
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Police Power
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States have police power, federal government does NOT
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Federal Government Immunities
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(1) Immunity from suits by private individuals except where the government CONSENTS
(2) Immunity from state taxation (but can apply non-discriminatory taxes against contractors working with government) (3) Immunity from state regulation where the regulation would interfere with the government's ability to carry out its federal functions |
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State Government Immunities
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(1) NOT immune from suits by the federal government
(2) NOT immune from suits by other states (3) Immune from most suits by state citizens, EXCEPT where (a) the state consents, or (b) a state officer is sued for an injunction for unlawful conduct beyond the scope of his authority (4) Immune from federal taxation if the tax is applied to EITHER (a) unique state activities, or (b) essential gov't functions |
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11th Amendment
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Prohibits citizens of one state from suing another state in federal court (has been construed to prevent suits by a citizen against his own state as well)
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Constitution Prohibits States from doing the following
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(1) making treaties
(2) coining money (3) passing a bill of attainder (4) enacting ex post facto laws (5) impairing the obligations of contracts (6) laying down duties on imports or exports except where necessary to execute inspection laws (7) engaging in war (8) maintaining a peacetime army |
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Dormant Commerce Clause
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If a state law FACIALLY DISCRIMINATES between in-state and out-of-state economic actors, the state must pass strict scrutiny; i.e., the state MUST show:
(1) the regulation serves a compelling state interest, AND (2) the regulation is narrowly tailored to that interest For state laws that INCIDENTALLY burden commerce, the state must show: (1) regulation serves an important state interest, AND (2) the burden is not excessive in relation to the interest served |
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Exceptions to Dormant Commerce Clause
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(1) Express Congressional Authorization
(2) State acting as a market participant |
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State Taxation of Interstate Commerce
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Generally permissible, as long as it does not discriminate or unduly burden interstate commerce
4 Factors: (1) Substantial Nexus between the activity taxed on the taxing state (more than just minimum contacts under DPC) (2) Tax must be fairly apportioned (burden on taxpayer) (3) Tax must not discriminate against interstate commerce, (4) Tax must be fairly related to the services provided by the taxing state Generally, states are NOT permitted to levy a tax on goods that simply happen to be within the state, but MAY tax instrumentalities of commerce IF: (1) taxable situs or nexus exists in the state, AND (2) tax is fairly apportioned to the amount of time the equipment is in the state |
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Types of State Taxes
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(1) Sales tax (valid if sale occurs in-state; invalid if sold to buyer out-of-state)
(2) Use tax (on use of goods purchased out-of-state - validity depends on nexus) (3) Doing-business tax (permitted, generally must relate to the benefits conferred by the taxing state) (4) Net Income tax (valid if nondiscriminatory, fairly apportioned, and a significant nexus exists) (5) Flat License fee (generally unconstitutional) (6) License tax |
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State vs. Private Action
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Statute action requirement - constitutional violations can generally only be accomplished by state, rather than private, action
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Exceptions to State Action Requirement
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(1) 13th Amendment - applies to private conduct
(2) Public Function Theory - private entity is carrying on activities that are traditionally and exclusively performed by the government ("company town" rationale) (2) Significant state involvement/endorsement/encouragement - where private party is so closely related to gov't so that private action can be attributed to the gov't |
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Supremacy Clause
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(1) Constitution, treaties, and laws of the U.S. are the supreme law of the land - these will supersede any state law with which it is in direct conflict
(2) Congress may intend to "occupy the field" in which case any state laws on the same subject as federal legislation will be superseded; but where Congress does NOT intend to occupy the field, or where it is merely setting minimum standards, the state laws will remain valid to the extent that they are not in direct conflict with any federal law |
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14th Amendment: Privileges and Immunities
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Protects the right to travel freely from state to state
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Unincorporated Rights
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(1) 5th Amendment right to grand jury in criminal cases
(2) 7th Amendment right to jury trial in civil cases (but this IS guaranteed by OH constitution, see OH Civ Pro) (3) 3rd Amendment right to prevent quartering soldiers in home (4) 8th Amendment right to prevent excessive fines |
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Scope of 14th Amendment
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Applies to all "persons", which includes BOTH:
(1) corporations AND (2) aliens |
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Procedural Due Process
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For any deprivation of "life, liberty, or property" an individual is entitled to fundamentally fair procedural safeguards (namely, NOTICE and HEARING within a reasonable time)
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Interests protected by Procedural Due Process
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Deprivations of LIBERTY include: imprisonment (including parole revocation), physical/corporal punishment, commitment to mental institution
Deprivations of PROPERTY include: public education (but no hearing req'd for academic dismissal), continued welfare benefits, retention of driver's license, public employment under contract or tenure system (but not at will), prejudgment garnishments, forfeiture of property, business licensing |
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Irrebuttable Presumptions
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Trend is to find that these violate Procedural Due Process
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Nature of Process Required
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If a sufficient deprivation of life/liberty/property is at stake, courts look at 4 factors to determine the appropriate procedure (i.e., whether notice and hearing is required):
(1) nature of the private interest affected (2) risk of erroneous deprivation AND (3) the nature of the government interest (the particular function and the burden of alternative procedures) |
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Substantive Due Process
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(1) Economic Regulations - rational basis (upheld if rationally related to a legitimate government interest)
(2) Fundamental Rights - government regulations that affect these rights must survive strict scrutiny (or similar) review |
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Fundamental Rights
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(1) Contraception
(2) Marriage (3) Abortion - BEFORE viability, the gov't may regulate but not ban abortion in the interest of the life/health of the mother or fetus, so long as the regulation does not impose an UNDUE BURDEN on the right; AFTER viability, government may regulate and even proscribe abortion except where necessary to protect the life and health of the mother; no spousal notification or consent is permitted (4) Family Relations - fundamental right for related persons to live together (5) Sexual Orientation - sodomy laws struck down under a stringent rational basis review (6) Private education - parental right to educate children outside public school system (7) Obscene Material - protected right to POSSESS obscene material in the home, but NOT a right to purchase/transport (8) Right to travel - Art. IV Privileges and Immunities (strict scrutiny applies to durational residency requirements for gov't benefits) (9) Right to Vote - extends to all federal, state, and local elections as well as primaries (poll taxes unconstitutional, one-person, one-vote) |
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Takings Clause
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5th Amendment provides that private property shall not be taken for public use without just compensation; applies to states via 14th Amendment DPC
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What constitutes a taking?
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(1) Direct government appropriation
(2) Regulatory Taking (3) Temporary restriction (depending on both the nature of the property right restricted and the amount of time) |
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Regulatory Taking
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(1) ANY permanent physical invasion is a taking, no matter how small
(2) A regulation regarding land-use will be a taking IF it deprives the owner of ALL reasonable economically beneficial uses of the land |
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Equal Protection: Levels of Scrutiny
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(1) Strict Scrutiny
(2) Intermediate Scrutiny (3) Rational Basis |
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Strict Scrutiny
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Strict Scrutiny - the GOVERNMENT must prove that the regulation is NARROWLY TAILORED to served a COMPELLING government interest
Applies to: race, alienage, and national origin |
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Intermediate Scrutiny
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Intermediate Scrutiny - the GOVERNMENT must prove that the regulation is SUBSTANTIALLY RELATED to an IMPORTANT government interest
Applies to gender and illegitimacy Applies regardless of whether the measure is invidious or benign |
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Rational Basis
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Rational basis - the PLAINTIFF must prove that the regulation is NOT RATIONALLY RELATED to a LEGITIMATE interest
Applies to age, poverty, wealth, disability, sexual orientation, and all others |
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Showing Discrimination
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Discrimination sufficient to trigger Equal Protection can be shown by:
(1) Facial discrimination (2) Facially neutral law with discriminatory PURPOSE (3) Facially neutral law with discriminatory APPLICATION But a facially neutral law with mere discriminatory EFFECTS will NOT trigger Equal Protection analysis |
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Discrimination based on Alienage
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As a general rule, such discrimination will trigger STRICT SCRUTINY
EXCEPTIONS: (1) discrimination based on alienage is PERMITTED for activities involving participation in the functioning of government (public school teachers, government officials, etc.) (2) ILLEGAL aliens are NOT a suspect class (but a stringent version of rational basis has been applied to CHILDREN of illegal aliens) (3) FEDERAL laws that discriminate against aliens are NOT subject to strict scrutiny, because Congress has broad plenary power to regulate immigration |
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Privileges and Immunities Clause
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2 different P+I Clauses:
(1) 14th Amendment (2) Art. IV |
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14th Amendment Privileges and Immunities Clause
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Protected Rights:
(1) Interestate travel (2) petition Congress (3) vote for national office (4) enter public lands (5) be protected while in custody of U.S. Marshals (6) assemble peaceably |
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Article IV Privileges and Immunities Clause
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"Comity Clause" - citizens of each state shall be entitled to all P+I of the citizens of the several states"
Prevents states from discriminating against non-residents Corporations are NOT citizens, and thus are not protected by the Art. IV Privileges and Immunities Clause |
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The Contract Clause
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Applies ONLY to legislation, not state court decisions, and prevents state from impairing the obligations of any EXISTING contracts (so law may not be retroactive or apply to contracts already in existence)
EXCEPTION - legislature CAN modify existing contracts IF it can show that it is NECESSARY to serve and IMPORTANT and legitimate government interest, the regulation is REASONABLE, and NARROWLY TAILORED to promote that interest Applies ONLY to STATE legislation |
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Ex Post Facto Laws
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BOTH the states AND the federal government are prohibited from passing RETROACTIVE CRIMINAL LAWS
Examples: (1) Makes previously non-criminal act a crime (2) Increases punishment after commission (3) decreases evidence required for conviction OR (4) extends an expired statute of limitations |
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Bills of Attainder
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Elements:
(1) A legislative act (2) that inflicts punishment (3) without judicial trial (4) on named individuals OR an easily ascertainable group (5) for past conduct Applies to BOTH STATE and FEDERAL governments |
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Establishment Clause
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Where law PREFERS one religion to another, STRICT SCRUTINY will apply
Where the law does NOT discriminate between religions/sects, the court will apply the 3 Part Lemon Test Generally, religious activities conducted at schools will be unconstitutional, as will anti-evolution laws, tax exemptions upheld for charities including religious charities, gov't aid to religious schools often unconstitutional due to entanglement issues, etc. etc. |
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Lemon Test
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Test for Establishment Clause violations:
(1) the statute must have a VALID SECULAR PURPOSE, (2) the PRIMARY EFFECT must NOT be to advance or inhibit religion AND (3) the statute must not foster an EXCESSIVE ENTANGLEMENT with religion |
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Endorsement Test
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A part of the Lemon test generally reserved for DISPLAY cases
Government cannot permit displays that would lead a REASONABLE OBSERVER to conclude that the government was an ENDORSEMENT of religion |
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Free Exercise Clause
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Government CAN impose burdens on religious practice SO LONG AS the law is one of general applicability, but may NOT target religious practice for burdens
EXCEPTION - denials of unemployment benefits because of Sabbath observance are unconstitutional |
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Inquiry into Validity/Sincerity of Religious Belief
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Government CAN inquire into the truth or falsity of the religious belief, but may NOT inquire into the sincerity of the belief
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Freedom of Expression
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Government may neither censor all categories of speech nor engage in content-based discrimination among different categories of speech
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Permissible Regulation of Speech
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(1) Strict Scrutiny (trump card, any speech may be regulated)
(2) Conduct regulation with incidental burden on speech (3) Government as speaker (4) Unprotected speech (fighting words, obscenity, etc.) (5) Time, Place, Manner restrictions |
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Freedom of Speech: Conduct Regulations that Burden Speech
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Law which regulates conduct but creates an incidental burden on speech is permitted IF:
(1) the regulation furthers an IMPORTANT or SUBSTANTIAL government interest, and (2) the restriction is NO GREATER THAN NECESSARY to further that interest |
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Freedom of Speech: Government as Speaker
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When the speaker is the government rather than a private actor, the government may discriminate based on the CONTENT of the speech
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Unprotected Speech
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(1) Incitement (Brandenberg)
(2) Fighting Words (3) Hostile audience speech (4) Obscene Speech (5) Defamatory Speech (6) Commercial speech and sexual speech receive lower protection |
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Test for Breach of Peace Language
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government may regulate speech that is "directed to inciting or producting IMMINENT LAWLESS ACTION and is LIKELY TO PRODUCE such action
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Test for Fighting Words
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Words LIKELY to incite an ORDINARY citizen to acts of IMMEDIATE PHYSICAL RETALIATION
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Test for Hostile Audience Speech
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speech which ELICITS and IMMEDIATE VIOLENT RESPONSE against the speaker may be ground for prosecution, but police must make REASONABLE EFFORTS TO PROTECT the speake
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Test for Obscene Speech
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Obscene Speech - regulation must pass the 3 part Miller test: (1) average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct; and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value; EXCEPTION: child pornography is unprotected and NEED NOT satisfy the Miller Test
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Defamation
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(1) Plaintiff is private citizen and speech is on matter of private concern - no special requirements, can recover according to common law defamation
(2) Plaintiff is private citizen and speech is on matter of public concern - MUST show negligence as to truth or falsity, but do NOT need to show actual malice (3) Plaintiff is public figure and speech is on matter of public OR private concern - plaintiff must show ACTUAL MALICE (knowledge of falsity or reckless disregard for truth/falsity) (4) Plaintiff is private citizen suing media defendant for false-light invasion of privacy concerning a matter of public concern - MUST prove actual malice |
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Commercial Speech
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State may prohibit commercial advertising that is FALSE/MISLEADING or on matters that are ILLEGAL
All other commercial speech regulation must satisfy a 3 part test. The regulation MUST: (1) serve a substantial government interest (2) directly advance that interest AND (3) not be more extensive than necessary to further that interest |
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Sexual Speech
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Regulation of sexual speech must serve a substantial government interest and leave open reasonable alternative channels of communication
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Time, Place, and Manner Restrictions
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Three part test for validity. The regulation MUST:
(1) be CONTENT-NEUTRAL as to both subject matter and viewpoint (2) be NARROWLY TAILORED to serve a SIGNIFICANT government interest AND (3) Leave open adequate alternative channels of communication |
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Regulation of Non-Public Forums
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Non public forums include jails, military bases, workplaces, mailboxes
The test for validity is whether the regulation is: (1) VIEWPOINT NEUTRAL, and (2) REASONABLY RELATED to a LEGITIMATE government interest |
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Public Employment and Political Affiliation
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General rule is that individuals cannot be denied public employment based on political affiliation/membership, UNLESS the following are shown:
(1) he is an active member in a subversive organization (2) he has knowledge of the group's illegal aims AND (3) he has specific intent to further those illegal ends (e.g., violent overthrow of gov't) EXCEPTION: high-level policymaking positions can have political affiliation qualifications |
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Loyalty Oaths
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Usually dealt with under vagueness/overbreadth; typically UNCONSTITUTIONAL
EXCEPTION: requiring a public employee to swear to uphold the Constitution and oppose the violent/illegal/unconstitutional overthrow of the government IS CONSTITUTIONAL |
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Prior Restraint
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Restraining speech in advance of its publication or utterance is presumptively invalid
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Licensing Requirements
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Valid so long as it:
(1) is content-neutral as applied AND (2) does not give "unfettered discretion" to public officials to determine who is licensed |
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Vagueness/Overbreadth
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Both will invalidate a statute on its face
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