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94 Cards in this Set
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The Federal Judicial Power/Req for cases and controversies/standing: What is standing?
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The question of whether the P is the proper party to bring a matter to the court of adjudication
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The Federal Judicial Power/Req for cases and controversies/standing: What are the requirements for standing? (4)
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1. Injury
2. Causation and redressability. 3. No third party standing. Exceptions: (i) 3P standing OK if there is a close relationship between P and the injured 3P. (ii) 3P standing OK if injured 3P is unlikely to be able to assert his or her own rights. (iii) An organization may sue for its members, if - the members would have standing to sue, - the interests are germane to the organization's purpose, - neither the claim nor relief requires participation of individual members 4. No generalized grievances - Exception: taxpayers have standing to challenge gov't expenditures as pursuant to federal statutes as violating the Establishment Clause. |
I C N N
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The Federal Judicial Power/Req for cases and controversies/ripeness: What is ripeness?
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The question of whether a federal court may grant pre-enforcement review of a statute or a regulation. Factors:
1. The hardship that will be suffered w/o preenforcement review. 2. The fitness of the issues and the record for judicial review. |
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The Federal Judicial Power/Req for cases and controversies/mootness: What is mootness?
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If events after the filing of a lawsuit end the P's injury, the case must be dismissed as moot.
Exceptions: (i) wrong capable of repetition but evading review - injuries that happen over and over again. Roe v. Wade - P could be pregnant. (ii) Voluntary cessation - D voluntarily halts, but is free to resume at any time (iii) Class action suits - so long as 1 member of class suffers ongoing injury won't matter that P's claim has become moot. |
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Political question doctrine: What does this refer to?
4 Examples? |
Refers to allegations of constitutional violations that the federal courts will not adjudicate:
(i) The republican form of gov't clause - case dismissed as non-justiciable political Q (ii) Challenges to the president's conduct of foreign policy (iii) Challenges to the impeachment and removal process (iv) Challenges to partisan gerrymandering |
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The Federal Judicial Power/Supreme Court Review: How does the Supreme Court get cases
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All cases come to the SC by writ of certiorari - SC has complete discretion to hear, 4 justices must agree
1. All cases from state courts come to SC by W of C 2. All cases from US courts of appeals come to SC by W of C 3. Appeals exist for decisions of 3 judge federal district courts - by statute, only instance where this happens, skips App Circ |
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The Federal Judicial Power/Supreme Court Review: What is the general rule regarding final judgments w/ regard to SC?
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Generally, SC may hear cases only after there has been a final judgment of the highest state court, of a US court of appeals, or of a 3 judge federal district court. AKA final judgment rule. Generally no interlocutory appeals - must be final judgment
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The Federal Judicial Power/Supreme Court Review: What req for the SC to review a state court decision?
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There must not be an independent and adequate state law ground of decision. Test: If a state court decision rests on 2 grounds, one state law and one federal law, and if the SC's reversal of the federal law grount will not change the result in the case, SC cannot hear it.
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The Federal Judicial Power/Lower Federal Court Review: What is the general rule on federal courts hearing suits against state governments?
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Federal courts (and state courts) may not hear suits against state governments:
1. Principle of sovereign immunity (i) 11th Amendment bars suits against states in federal court. (ii) Sovereign immunity bars suits against states in state court or federal agencies 2. Exceptions. States may be sued only under the following circumstances: (i) Waiver is permitted (ii) States may be sued pursuant to federal laws adopted under S5 of the 14th Amendment. Congress can't authorize suits against states under other constitutional provisions. (iii) Federal gov't may sue state gov'ts (iv) Bankruptcy proceedings 3. Suits against state officers are allowed - state officers may be sued for injunctive relief - state officers may be sued for $ damages to be paid out of their own pockets - state officers may not be sued if the state treasurey will be paying retroactive damages |
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The Federal Judicial Power/Lower Federal Court Review: Abstention - may federal courts enjoin pending state court proceedings?
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No.
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The Federal Legislative Power/Congress' Authority to Act: What authority does Congress need for it to act?
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There must be express or implied Congressional Power. Note: There is NO general federal police power. Exception: Congress does have power to legislate MILD:
* Military * Indian reservation * Lands/Territories, Federal * District of Columbia |
M I L D
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The Federal Legislative Power/Congress' Authority to Act: What is the Necessary and Proper Clause?
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N&P clause - SC: Congress may choose any means not prohibited by US Con to carry out its authority. Under Art I - Congress has power to raise Army/Navy - Can do what's N&P to do so.
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The Federal Legislative Power/Congress' Authority to Act: What is the Congress' taxing/spending power?
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Art I S8: Congress may tax and spend for the general welfare - Congress may adopt any tax to raise revenue or spend for GW.
Tip: Even though its power is MILD, Congress MAY be considering to be acting for GW if it is taxing/spending if in one the few areas over which Congress has police power. |
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The Federal Legislative Power/Congress' Authority to Act: What is Congress's Commerce Power (CP)?
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1. Congress may regulate the channels of interstate commerce (IC) (highways, waterways, internet) - Case: SC held unconst gun free school zones act b/c Cong exceed scope of CP
2. Cong may regulate the instrumentalities of IC and persons or things in interstate commerce. 3. Cong may regulate activities that have a substantial effect on IC (In the area of non-economic activity, substantial effect can't be based on cumulative impact) Note: Commerce refers to all forms of intercourse (radio, cattle, ppl), if going across state lines |
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The Federal Legislative Power/Congress' Authority to Act: How does the 10A limit Congressional powers?
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10A says that all powers not granted to US nor prohibited to States are reserved to the States and the ppl respectively.
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The Federal Legislative Power/Congress' Authority to Act: What can't Congress do under 10A? What can it do?
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1. Congress can't compel state regulatory or legislative action.
***BUT: 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 spending program. 2. Congress can prohibit harmful commercial activity by state governments. |
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The Federal Legislative Power/Congress' Authority to Act: What is Congress' power under S5 of 14A?
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Congress may not create new rights or expand the scope of rights under S5 of 14A.
Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be proportionate and congruent to remedying constitutional violations. Such laws must be narrowly tailored. Flores - restoring religious freedom by statute unconstitutional - exceeded Cong's S5 powers by creating new rights |
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The Federal Legislative Power/Delegation of Authority: What power does Congress have to delegate powers?
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1. No limit exists on Congress' ability to delegate legislative power.
2. Legislative vetos (trying to overturn exec action w/o bicameralism and/or presentment) and line-item vetos are unconstitutional. For Congress to act, there must always be bicameralism (passage by both H and S) and presentment (giving bill to P to sign or veto). P must sign or veto the bill in its entirety. 3. Congress may not delegate executive power to itself or its officers. C can't give itself exec power to implement or enforce law. |
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The Federal Executive Power/Foreign Policy: What are treaties, and how do they interact with State and Federal law?
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Treaties are agreements b/t US and a foreign country that are negotiated by P and are effective when ratified by S.
Priority: - If a treaty conflicts w/ US Con, it's invalid - If a treaty conflicts with a federal statute, the one adopted last in time controls. - Treaties prevail over conflicting State law |
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The Federal Executive Power/Foreign Policy: What are executive agreements, and how do they interact with State and Federal law?
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An agreement b/t the US and a foreign country that is effective when signed by P and the head of the foreign nation. No senate approval needed.
- Executive agreements can be used for any purpose. Anything that can be done by a treaty can be done by exec agreements - Executive agreements prevail over conflicting state law, but never over conflicting federal laws or the Constitution. |
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The Federal Executive Power/Foreign Policy: What power does P have as C-i-C to use American troops in foreign countries?
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Broad powers, never has been declared unconstitutional.
Best answer - case dismissed as political Q. If that choice not available, P wins b/c of this. |
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The Federal Executive Power/Domestic Affairs: What is P's appointment power?
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1. P appoints ambassadors, federal judges, and officers of the US. S must confirm, but P appoints.
2. C may vest the appt of inferior officers in P, the heads of depts or the lower fed courts. SC - inferior officers are those who can be fired by US officers, e.g., Sec'y of State can fire under sec'y 3. C may not give itself or its officers the appt power, b/c C can't give itself exec powers. |
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The Federal Executive Power/Domestic Affairs: What is P's removal power?
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Unless removal is limited by statute, P may fire any executive branch office.
- For C to limit removal, it must be an office where independence from P is desirable, like independent counsel, and - C cannot prohibit removal, it can limit removal to where there is good cause. |
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The Federal Executive Power/Domestic Affairs: What is impeachment and who may be impeached?
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P, VP, federal Js and O of the US can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors.
- Impeachment does not remove a person from office. - Impeachment by H requires a majority vote. Conviction in S requires a 2/3 vote. |
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The Federal Executive Power/Domestic Affairs: What immunity does P enjoy?
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P has absolute immunity to civil suits for money damages for any actions while in office. P can't be sued in office for any action taken while P, but not immunity for action b/f becoming P.
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The Federal Executive Power/Domestic Affairs: What privilege does P have?
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P has executive privilege for presidential papers and conversations, but such privilege must yield to other important gov't interests. Need for evidence in a criminal trial outweigh this - Nixon.
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The Federal Executive Power/Domestic Affairs: What power to pardon does P have?
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P has power to pardon those accused or convicted of federal crimes, except for impeachment. P may pardon only for fed crimes, never State crimes P may pardon only as to criminal liability and never as to civil liability
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Federalism: What is federalism?
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Limits on State/local gov't power as against fed gov and States. States can't regulate fed gov if doing so would place a substantial burden on fed gov.
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Federalism/Preemption: What is preemption?
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Supremacy Clause of A III provides that the Con, and laws and treaties made pursuant to it, are the supreme law of the land.
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Federalism/Preemption: What is express preemption?
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If fed statute explicitly says that federal law wholly occupies field, State/local laws are preempted
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Federalism/Preemption: What is implied preemption?
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Even if federal statutes are silent, implied preemption can be found:
- if fed and st law are mutually exclusive, fed law preempts state law. If impossible to comply w/ both fed and st law, st law preempted TIP: States may set environmental standards stricter than federal law unless C explicitly says otherwise. - if state law impedes achievement of fed objective, fed law preempts state law. FL: Anyone who files NLRA grievance can't get unemp $. SC bitch-slapped FL. - if C evidences a clear intent to preempt state law, federal law preempts state law, even if not preempted in other ways. SC - C has indicated clear intent to wholly occupy field of immigration law |
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Federalism/Preemption: What is inter-governmental immunity?
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States may not tax or regulate federal gov't activity. The power to tax is the power to destroy.
R: Unconstitutional to pay a state tax out of the fed treasury. But can tax mom/pop on fed lands - owner pays, not gov't. |
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Federalism/The DCC and the P&I Clause of Article IV: What is the DCC?
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DCC sometimes referred to as negative implications of the Commerce Clause.
- Means that State and local laws are unconst if they place undue burden on interstate commerce. - It's an inferred power. Does not require discrimination against Out-of-Staters in order to apply. - Requires a burden on interstate commerce. Corporations and aliens can sue under it. - Exceptions: Congressional approval and the market participant exception. |
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Federalism/The DCC and the P&I Clause of Article IV: What is the P&I Clause of A IV?
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No State may deprive citizens of other states of the P&I it affords its own citizens.
It applies only if State/local gov't discriminate against other citizens. Requires discrimination: 1) against out-of-staters 2) w/ regard to civil liberties or important economic activities in order to apply. Corporations and aliens can't sue under it. No exceptions. |
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Federalism/The DCC and the P&I Clause of Article IV: What is the PI Clause of 14A?
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It's always the wrong asnwer unless Q involves right to travel. Signs v. Roe - Right to travel is fundamental right under PI of 14A
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Federalism/The DCC and the P&I Clause of Article IV: How do you analyze Qs dealing w/ P&I and or DC?
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See Con Law Chart 2
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(-) Federalism/State Taxation of Interstate Commerce: What requirements does the Constitution place on States in regard to taxing interstate commerce?
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1. States may not use their tax systems to help in-state businesses
2. A state may only tax activities if there is a substantial nexus to the state. Corrollary: So long as state only taxing that which is connected to it, it's OK. 3. State taxation of interstate business must be fairly apportioned. |
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Federalism/FF&C: What are States required to do in regard to judgments of courts in another State?
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Courts in one State must give FF&C to judgments of courts in another State, so long as:
1. The court that rendered the judgment had jurisdiction over the parties and the subject matter. 2. The judgment was on the merits. 3. The judgment is final. |
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The Structure of the Constitution's Protection of Individual Liberties/Is There Gov't Action?: Does private conduct need to comply with the Constitution?
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No. The Constitution applies only to gov't action.
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The Structure of the Constitution's Protection of Individual Liberties/Is There Gov't Action?: What can Congress do regulate private conduct?
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C, by statute, may apply constitutional norms to private conduct.
(i) 13A can be used to prohibit private race discrimination. Discrimination doesn't violate 13A, only slavery does. But discrimination can violate a Fed Stat adopted by C under 13A. (ii) Commerce power can be used to apply constitutional norms to private conduct. Title II prohibits hotel restaurants to discriminate based on race. (iii) Congress can't use S5 of 14A to regulate private behavior - b/c it applies only to state/local gov'ts |
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The Structure of the Constitution's Protection of Individual Liberties/Is There Gov't Action?: What are the exceptions to the above rule (card 40)?
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Exceptions: Situations where private conduct must comply w/ the Constitution
(i) The public function exception: The Con applies if a private entity is performing a task traditionally, exclusively done by the gov't. Jehovah's Witnesses trying to solicit in company town, running town gov't function. BUT: private owned utility can disconnect power w/o DP, unlike gov't owned utility. (ii) The entanglement exception. Con applies if the gov't affirmatively authorizes, encourages, or facilitates unCon activity. Ex: (race i-iii) - Cts can't enforce racially restrictive covenants --> gov't facilitating discrimination. - There is state action when gov't leases premises to restaurant that discriminates racially. Impliedly condoning it. - State action when state provides free books to schools that racially discriminate. Encourages discrimination. BUT: - NO state action when private school 99% funded by gov't fires teacher for her speech. Here, state hadn't done anything to encourage school to fire for speech --> Gov't subsidy insuff to find state action |
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The Structure of the Constitution's Protection of Individual Liberties/The Application of the Bill of Rights: To whom does the BoR directly apply to?
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BoR applies directly only to FedGov
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The Structure of the Constitution's Protection of Individual Liberties/The Application of the Bill of Rights: To whom does the BoR indirectly apply to?
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The applicable As (those provisions that are 'fundamental rights') of the BoR is applied to state and local gov'ts through its incorporation into the DPC of the 14A.
Exceptions: (i) 2A right to bear arms (ii) 3A right to not have soldiers quartered in a person's home (iii) 5A right to grand jury indictment in criminal cases (iv) 7A right to to jury trial in civil cases (v) 8A right against excessive finess |
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The Structure of the Constitution's Protection of Individual Liberties/Levels of Scrutiny: What is the rational basis test?
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RB test - a law is upheld if rationally related to legitimate gov't purpose. Actual purpose doesn't have to be legitimate, just has to be legitimate conceivable purpose. Challenger has the burden to show otherwise
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The Structure of the Constitution's Protection of Individual Liberties/Levels of Scrutiny: What is the intermediate scrutiny test?
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IS test - A law is upheld if it is substantially related to an important gov't purpose. Court will look only to gov't's actual purpose to see if it is important. The means have to be a very good way to achieve the end, but don't have to be the best way. It's uncertain whether a least restrictive analysis is used, but probably not. The gov't has the burden to demonstrate this.
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The Structure of the Constitution's Protection of Individual Liberties/Levels of Scrutiny: What is the strict scrutiny test?
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SS test - a law is upheld if necessary to achieve a compelling gov't purpose. Court must be persuaded that gov't has a compelling actual purpose. Court uses a least restrictive alternative analysis. It is the most exacting analysis of a law's means. The gov't has the burden to demonstrate this, and it usually loses
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Due Process/Procedural Due Process: What is Due Process?
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DP is 5A and 14A – neither Fed or St gov can deprive person of life, liberty, or property w/o DP
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Due Process/Procedural Due Process: What is a deprivation of liberty? Of Property?
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(1) A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute.
(a) It’s the written law, Con and statutes that create liberty interest (b) Bar – D of L involves deprivation of constitutional rights (c) Prisoners have no signigicant liberty interests. (2) A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled. (a) Rights/privileges distinction for DP analysis – it’s a wrong answer no longer used (b) Entitlement – a person has a property interest if there is an entitlement. It exists if Reasonable expectation for continued receipt of a benefit. |
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Due Process/Procedural Due Process: How to analyze whether someone's right to DP has been violated?
Is gov't negligence sufficient to show deprivation of due process? |
See Chart 5 p. 28
1. Gov't negligence not sufficient for deprivation of DP. Generally need intentional gov't action or at least reckless action for liability to exist. BUT: In emergency situations gov't liable under DP only if its conduct shocks the conscience. 2. Generally, though, gov't failure to protect ppl from privately inflicted harms doesn't deny DP. |
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Due Process/Procedural Due Process: What are some examples of process required for a given set of facts?
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Generally only test specific cases on pt with test:
(1) B/f welfare benefits can be terminated, must be notice and a hearing beforehand. (2) When SS disability benefits terminated, only has to be a post-termination hearing. (3) When student disciplined by public school, there must be notice of charges and opportunity to explain, but doesn’t have to be a trial (4) B/f parents’ rights to child can be permanently terminated, must be notice and hearing. (5) Punitive damage awards require jury instructions and judicial review. Jury instructions must be there to guide jury, and review to ensure award is reasonable. Grossly excessive punitives violate DP. BMW v. Gore = 4M in puns for paint job. (6) American apprehended in foreign country, held as enemy combatant must get DP. Need notice of charges, atty, and hearing (7) Except in exigent circumstances, pre-judgment attachment or gov’t seizure of assets must be preceeded by notice and hearing. a) Exigent circs = reason to believe that person would get rid of property if there was notice before hearing. b) 1 qualification that has been tested – gov’t may seize property that has been used in illegal activity even if owner innocent |
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Due Process/Substantive Due Process: What is SDP?
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SDP asks whether gov’t has an adequate reason for taking away a person’s life, liberty, or personal property. Used in 2 areas a. Protect econ liberty b. Protect privacy
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Due Process/Substantive Due Process: What protection does Const provide for economic liberties?
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Constitution provides only minimal protection for economic liberties. Only RB test used for laws affecting econ rights – post Lochner.
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Due Process/Substantive Due Process: What does the takings clause provide?
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The gov't may take provide property for public use if it provides just compensation.
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Due Process/Substantive Due Process: How do you do a takings clause analysis?
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See Chart 6 p. 31
NOTE: Gov’t conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed. If not then taking Prop owner may bring takings challenge to regs that existed at the time property acquired – this is OK by SC. Temporarily denying an owner use of prop is not taking so long as gov’t action reasonable. Tahoe case |
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Due Process/Substantive Due Process: What is the K clause? What scrutiny does state or local interference w/ private Ks receive?
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1. No state shall impair the obligations of Ks. Applies only to state or local interference w/ existing Ks.
2. State or local interference w/ private Ks must meet IS: (i) Does the legislation substantially impair a party's rights under an existing K? (ii) If so is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest? 3. State or local interference w/ gov't Ks must meet strict scrutiny. 4. The ex post facto clause does not apply in civil cases. (i) Ex post facto law is law that criminally punishes conduct that was lawful when it was done or that increases the punishment for a crime after it was committed. Usually appears on MS as a wrong answer – that it’s an ex post facto. (ii) Retroactive civil liability only need meet a rational basis test. (iii) B of A is a law that directs punishment of a specific person or persons w/o trial. |
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Due Process/Substantive Due Process: What is the right to privacy?
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Privacy is a fundamental right protected under SDP clause. It’s an umbrella that describes several specific liberties. Subjected to strict scrutiny (remember, it’s a fundamental right) w/ the exception to right to abortion (undue burden test).
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Due Process/Substantive Due Process: What are some examples of fundamental rights?
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See Chart 7 p. 35
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Due Process/Substantive Due Process: How is the right to abortion analyzed?
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(1) Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. After viability states may prohibit abortions unless necessary to protect the woman’s life/health
Ex: (a) A requirement for 24 hour waiting period for abortions not undue burden. (b) Requirement that abortions be performed by licensed MD not undue burden. (c) Prohibition of ‘partial birth abortions’ not undue burden. (2) No gov't duty to subsidize/provide abortions in public hospitals. (3) Spousal consent and notification laws are unconstitutional. (4) Parental notice/consent laws for unmarried minors - State may req parental notice and/or consent for unmarried minor’s abortion so long as it creates an alt procedure where minor can obtain abortion -go b/f a judge who can approve it by finding it to be in the minor's best interests or that she is mature enough to decide for herself. |
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Equal Protection/An Approach to EP Qs: How to approach them?
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1. What is the classification? Who are the people.
2. What level of scrutiny should be applied? 3. Does this law meet the level of scrutiny? |
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Equal Protection/Constitutional Provisions Concerning Equal Protection: What constitutional provisions apply concerning EP?
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1. EP clause of 14A applies ONLY to state and local gov’ts. It NEVER applies to fed gov’t
2. EP is applied to fedgov through DP clause of 5A. Doesn’t explicitly say it, but DP clause of 5A includes requirement for EP. |
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Equal Protection/Classifications based on race and national origin: What type of scrutiny is used?
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cf. Chart 8 p. 42
SS test - a law is upheld if necessary to achieve a compelling gov't purpose. Court must be persuaded that gov't has a compelling actual purpose. Court uses a least restrictive alternative analysis. It is the most exacting analysis of a law's means. |
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Equal Protection/Classifications based on race and national origin: How is the existence of a racial classification proven?
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cf. Chart 8 p. 42
Either: (i) The classification exists on the face of the law (only serve whites) OR (ii) If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent. Ex: discriminatory use of peremptory challenges based on race denies EP |
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Equal Protection/Classifications based on race and national origin: How should racial classifications benefiting minorities be treated?
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SS is used.
- Numerical set-asides require clear proof of past discrimination - Educational institutions may use race as one factor in admissions - Decisions to help minorities - Public school systems may not use race as a factor in assigning students to schools unless SS is met. |
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Equal Protection/Gender Classifications: What Scrutiny?
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cf. Chart 8 p. 42
IS Test: - A law is upheld if it is substantially related to an important gov't purpose. Court will look only to gov't's actual purpose to see if it is important. The means have to be a very good way to achieve the end, but don't have to be the best way. |
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Equal Protection/Gender Classifications: How is the existence of a gender classification proven?
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a. Classification exists on the face of the law. Women can buy beer at 18, men can’t
b. If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent. Many MS Qs about city ordinances requiring PD/FD applicants be 5’10” and 150lbs – 40% of men are this, but only 2% woman are. This gets RBS only if can show discrim impact and discrim intent |
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Equal Protection/Gender Classifications: How should gender classifications benefiting women be treated?
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1. Gender classifications benefiting women that are based on role stereotypes will not be allowed.
2. Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed. |
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Equal Protection/Alienage Classifications:
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cf. Chart 8 p. 42
Generally, strict scrutiny is used. ST law – only US citizens get welfare. SC: SS – unconstitutional. ST law – only US citizens can be bar members, SC – SS unconst. |
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Equal Protection/Alienage Classifications: When is RB test used?
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cf. Chart 8 p. 42
RB used for alienage classifications that concern self-government and the democratic process. Only RB test is used for Congressional discrimination against aliens. Gov’t may discrim against aliens w/ regard to voting, jury service, being a PO, teacher, or probation officer. Gov’t can preserve some privileges to citizens. Notaries get SS |
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Equal Protection/Alienage Classifications: When is IS used?
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It appears that IS is used for discrimination. Only one case ever on this. If MS Q, about this case:
a. TX law – doc alien kids get free public education, but undoc kids don’t. b. SC – didn’t say which scrutiny, but struck law down as unconstitutional. |
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EP/Discrimination Against Non-marital Children: What type of scrutiny?
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1. Intermediate scrutiny is used.
2. Laws that deny a benefit to all non-marital children but grant it to all marital children are unconstitutional. But when law granted benefit to some non-marital kids, and not others, court applied IS and upheld the law. |
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EP/All other types of Disrimination: What is the level of scrutiny?
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RB for:
1. Age discrimination - Often seen MS, Q usually involves retirement. Gov’t always wins 2. Disability discrimination - City had zoning ordinance that prohibited mental homes. SC –only RB review for disability discrim. SC struck down zoning ordinance. 3. Wealth discrimination - poverty is not a suspect classification. 4. Economic regulations - hot dog cart case Paradise 5. Sexual orientation discrimination - Romer CO voters passed initiative repealing all laws discriminating against gays. Courts expressly used RB, declared initative unconst. |
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EP/Fundamental Rights Protected Under Equal Protection: What fundamental rights protected under equal protection?
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(Need to remember for bar, which rights are deemed fundamental rights)
If have to choose between DP and EP as answers: +EP always about how ppl are treated relative to one another. +DP always about whether gov’t has adequate reason for taking life, liberty, property. 1. The right to travel 2. Right to vote 15A right to vote shall not deny on account of race. 3. There is no fundamental right to education. Rodriguez. |
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The 1st Amendment/Free Speech Methodology: What's the distinction between content-based v. content-neutral restrictions
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1. Content-based restrictions on speech generally must meet SS. 2 types:
(i) subject matter restrictions (application of the law depends on the topic of the message) (ii) viewpoint restrictions (application of the law depends on the ideology of the message) 2. Content-neutral laws burdening speech generally need only meet IS. |
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The 1st Amendment/Free Speech Methodology: What are prior restraints and what level of scrutiny do they get?
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A prior restraint is a judicial order or administrative system that stops speech before it occurs. Court orders suppressing speech must meet strict scrutiny.
(1) MS Ex: Gag orders on press to prevent prejudicial pre-trial publicity are not allowed. Always a fact pattern with hyped up crime. Court, in effort to protect ∆’s right to fair trial, places prior restraint gag order. Unconst. (2) BUT: Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it. (3) Gov’t can require a license or permit for speech only if important reason for licensing and clear criteria leaving almost no discretion to licensing authority. Schemes must also contain procedural safeguards: prompt determination of license requests, judicial review |
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The 1st Amendment/Free Speech Methodology: What is vagueness and overbreadth? Are fighting words laws unconstitutionally vague and overbroad?
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a. Vagueness – a law is unconstitutionally vague if a reasonable person can’t tell what speech is prohibited and what is allowed. City ordinance – no books that corrupt. Void as vague
b. Overbreadth – a law is uncsonstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated. Ordninance banning all live entertainment is overbroad. c. Fighting words laws ALWAYS unconstitutionally vague and overbroad. |
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The 1st Amendment/Free Speech Methodology: To what extent may gov't regulate symoblic speech?
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Symbolic speech – gov’t can regulate conduct that communicates if it has an important interest unrelated to suppression of message and if impact on communication is no greater than necessary to achieve the gov’t’s purpose.
(1) Flag burning is constitutionally protected speech. (2) Draft card burning is not protected speech. (3) Nude dancing is not protected speech. Local gov’ts may prohibit. (4) Burning cross OK unless done to threaten (on vic’s lawn) (5) Contribution limits in election campaigns are constitutional, but (6) Expenditure limits are unconstitutional. |
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The 1st Amendment/Free Speech Methodology: Is anonymous speech protected?
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Anonymous speech is protected – leaflet w/ regard to school bd election.
SC – 1st Amendment right to speak anonymously. |
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The 1st Amendment/What speech is unprotected or less protected by the 1stA?
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1. Incitement of illegal activity
2. Obscenity and sexually oriented speech 3. Commercial speech 4. Defamation 5. Privacy 6. Speech by gov't Ees on the job in performance of their duties not protected by 1A 7. Other gov't restrictions based on speech content must meet SS |
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The 1st Amendment/What speech is unprotected or less protected by the 1stA?: To what extent may gov't punish incitement of illegal activity?
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The gov’t may punish speech if there is a substantial likelihood of imminent illegal activity and if speech is directed to causing imminent illegality.
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The 1st Amendment: What is the analysis for obscenity and sexually-oriented speech?
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The test (All 3 must be met to be deemed obscene) P PO LSV
(1) material must appeal to the PRURIENT interest (2) porn must be PATENTLY OFFENSIVE under the obscenity law in Q. (3) Taken as a whole, the material must LACK SERIOUS VALUE. Social value determined by a national, not local, standard. - Gov't may use zoning ords to regulate location of porn stores - Child porn may be completely banned, even if not obscene - Gov't may not punish private possession of obscene porn, but may punish private possession of child porn. - Gov't may seize assets of biz convicted of violating obscenity law - Profane and indecent speech is generally protected by 1A EXCEPT: - broadcast media - in schools |
P PO LSV
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The 1st Amendment: What are the limits of protection of commercial speech?
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1. False and deceptive ads are not protected by 1st Amendment
2. True commercial speech that inherently risks deception can be prohibited - Gov’t may prevent professionals from advertising or practicing under a trade name. - Gov’t may prohibit atty from in-person solicitation of clients for profit, free/mail OK - Gov’t may not prohibit accountants from in-person solicitation of clients for $. 3. Other commercial speech can be regulated by gov’t if intermediate scrutiny is met. 30 day ban on atty’s soliciting tort victim’s family. 4. Gov’t regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative. |
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The 1st Amendment: To what extent may gov't limit defamation?
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1. If ∏ is public official or running for public office, the ∏ can recover for defamation only by proving with C&CE the falsity of the statement, and actual malice. Actual malice = ∆ knew statement false, or acted w/ reckless disregard for truth.
2. If ∏ is ‘public figure’ ∏ can recover under same rules as public official above. 3. If ∏ = ‘private figure,’ and matter is of ‘public concern,’ state may allow ∏ to recover for defamation by proving falsity of statement and negligence by ∆. However, ∏ may recover presumed (automatic) or punitive damages only by showing actual malice. 4. If ∏ = ‘private figure,’ and matter is not of ‘public concern,’ ∏ can recover presumed or punitives w/o showing actual malice. |
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The 1st Amendment: To what extent may gov't protect privacy?
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1. Gov’t may not create liability for truthful reporting of info that was lawfully obtained from gov’t
2. Liability not allowed if media broadcasts a tape of an illegally intercepted call if media didn’t participate in the illegality and it involves a matter of public importance. 2 union officials in PA having private convo illegally recorded. Ended up in hands of jock who played it. SC – OK. The station and jock couldn’t be held liable, 3. Gov’t may limit its own dissemination of information to protect privacy. Only instance in which there is 1st A right to attend gov’t proceedings – criminal trials and most criminal pre-trial proceedings. |
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The 1st Amendment: Is speech by gov't Ees protected?
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Speech by gov’t Ees on job in performance of their duties not protected by 1st Amendment.
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The 1st Amendment: What about all other government restrictions based on content of speech?
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Other gov’t restrictions based on content of speech must meet strict scrutiny.
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The 1st Amendment: What are public forums?
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Public forums – gov’t properties that gov’t is required to make available for speech. (Sidewalks and parks classic) Must meet following reqs:
a. Regs must be subject matter and viewpoint neutral, or if not, must meet SS. b. Regs must be a time, place, or manner reg that serves an important gov’t purpose and leaves open adequate alternative places for communications. This is IS. EX: No trucks w/ amplified speakers could operate at night. OK. c. Gov’t regulation of public forums need not use the least restrictive alternative. City ordinance – you must use city sound system and engineers. ∏ - just limit decibels. SC – upheld city ordinance. d. City officials cannot have discretion to set permit fees for public demonstrations. Mayor could set Fee up to 1k – unconstitutional. Could set low fee for speech he likes, and high fee for speech he didn’t. |
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The 1st Amendment: What are limited public forums?
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Limited public forums – gov’t properties that the gov’t could close to speech, but chooses to open to speech. Same rules apply as for public forums. MS EX: School facilities.
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The 1st Amendment: What are non-public forums?
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Non-Public Forums – gov’t properties that the gov’t constitutionally can and does close to speech. Gov’t may regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral. Not SM neutral. Requires a legitimate interest.
a. Military bases. b. Areas outside prisons and jails. c. Advertising space on city buses. d. Sidewalks on post office property – tested a few times. It’s a non-public forum. e. Airports – gov’t may prohibit solicitation of money in airports. But may not prohibit distribution of literature |
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The 1st Amendment: Is there a 1A right of access to private property for speech purposes?
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There is no 1st A right of access to private property for speech purposes.
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The 1st Amendment: What scrutiny do laws that prohibit or punish group membership face.
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Laws that prohibit or punish membership in a group must meet SS. To punish membership it must be proven that person:
a. Actively affiliated w/ the group; and b. Knowing of group’s illegal activities; and c. With the SI of furthering the illegal activiteis. |
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The 1st Amendment: What about laws that require disclosure of group membership?
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Laws that req disclosure of group membership, where such disclosure would chill association, must meet SS. NAACP case.
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The 1st Amendment/Freedom of Association: What about laws that prohibit a group from discriminating?
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Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity. Usually laws upheld though.
Roberts v. JayCees. MN law - private groups couldn’t discrim on gender. SC – upheld law. Gov’t has an interest in preventing gender discrimination that outweighs freedom of association. Exceptions. a. Intimate assocations dinner parties. b. Where membership would inhibit expressive activity. Nazis prohibiting Jews. Boy Scouts and gays. |
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The 1st Amendment/Freedom of Religion: What is the free exercise clause?
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Free exercise clause
a. Can’t be used to challenge a neutral law of general applicability. Peyote case SC – OR law prohibiting peyote neutral – applied to everyone. If not neutral SS b. Gov’t may not deny benefits to individuals who quit their jobs for religious reasons |
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The 1st Amendment/Freedom of Religion: What is the establishment clause and what is the test to see if a law violates it?
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Establishment Clause: Gov may make no law respecting the establ of religion.
Law unconstitutional if it fails any prong of test. Mnemonic – SEX – Secular, Effect, Excessive entanglement. (1) There must be a secular purpose for the law. 10 commandments case - religious (2) Primary Effect must be neither to advance nor inhibit religion. Gov’t must not symbolically endorse religion or a particular religion (3) There must not be EXcessive entanglement w/ religion: a. Gov’t can’t directly pay teacher salaries in parochial schools. b. Gov’t can’t discriminate against religious speech or among religions unless SS met. c. Gov’t sponsored religious activity in public schools is unconst. BUT religious student/community grps must have same access to school facilities as non religious grps. d. Gov’t may give assistance to parochial schools, so long as not used for religious instruction. Gov't may provide parents w/ vouchers that they may use in parochial schools. |
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