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171 Cards in this Set

  • Front
  • Back
Requirements for Cases and Controversies
1) Standing

2) Ripeness

3) Not Moot(ness)

5) Not a Political Question
Standing - what's needed?
Determining P is a proper party, must show:

1) Injury - P was injured or imminently WILL BE injured.

2) Causation and Redressibility - P must allege and prove that the D caused the injury so that a favorable court decision is likely to remedy the injury

3) No THIRD PARTY standing - P cannot assert claims of others
What are the exceptions to allowing third party standing?
1) close relationship between P and the injured third party

2) allowed if the injured 3rd party is unlikely to be able to assert his or her own rights

3) Organization may sue IF:
a) members would have standing to sue;
b) the interests are germane to the organization's purpose;
c) neither the claim nor relief requires participation of individual members
when can a tax payer assert a claim for generalized grievance?
Generally not allowed, but taxpayers have standing to challenge gov't expenditures as pursuant to federal statutes as violating the ESTABLISHMENT CLAUSE
Ripeness - what is it?
P is not entitled to review of a statute or regulation unless the P will suffer some harm or immediate threat of harm
If events after the filing of a lawsuit end the P's injury, the case must be dismissed as MOOT - need LIVE CONTROVERSY at ALL stages of the proceeding
Exceptions to Mootness
1) Wrong capable or repetition but evading review

2) voluntary cessation - D stops harm but can voluntarily start again later.

3) Class action suits - so long as ONE member of the class has ongoing injury, can continue
Political Question Doctrine - what are the types
Generally, Courts will NOT adjudicate political question, examples:

1) The republican form of government clause

2) challenges to the President's conduct of foreign policy

3) Challenges to the impeachment and removal process

4) Challenges to partisan gerrymandering
Final Judgment Rule
S/C will 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.
Does the S/C's decision need to affect a State law decision?
SC will not review or have jxn of state court judgment that is based on ADEQUATE and INDEPENDENT state law grounds - meaning, if the federal law being reversed by the SC will not affect the outcome of the case, no review by SC.
11th Amend - what is it?
Bars federal courts from hearing suits brought by foreign and/or private party's against a State Government.
Doctrine of Sovereign Immunity
bars suits against a State government in State court, even on federal claims - States v. State in state courts not allowed.
Exceptions to Sovereign Immunity
1) Waiver by State

2) States sued pursuant to 14th/s.5

3) Federal gov't may sue state governments

4) Bankruptcy proceedings
Are state officers immune?
No - State officers may be sued for:

1) Injunctive relief
2) money damages to be paid out of own pockets - BUT not for suits that will be paid by state treasury to retroactive damages.
Federal courts will temporarily abstain from resolving a consitutional claim when the disposition rests on an unsettled question of state law
Where does Congress' authority stem from?
1) There must be an express or implied Congressional power (NO police power)

2) Necessary and proper clause
Necessary and Proper Clause
Congress has the power to make all laws necessary and proper (appropriate) for executing ANY power granted to ANY branch of the federal gov't.
Leg. tax and spending power
Congress has the power to tax - so long as there is a reasonable relationship to revenue production or power to regulate such activity.
Spending Power
congress has power to spend to proved for the COMMON DEFENSE AND GENERAL WELFARE - for any public purpose
What are the types Commerce Powers that Congress has?
1) Congress may regulate the CHANNELS of interstate commerce

2) Regulate the INSTRUMENTALITIES of interstate commerce and persons or things in interstate commerce

3) Commerce may regulate economic activities that have a SUBSTANTIAL EFFECT on INTERSTATE COMMERCE. *in the area of non-economic activity, no substantial effect can be based on cumulative impact.
10th Amendment - what is it
Limits congressional powers - states that all powers not granted to the US, nor prohibited to the States, are reserved to the states or the people.
Can Congress compel state regulatory or legislative action?
NO - Congress can induce state gov't action by putting strings on grants, so long as the, conditions are expressly stated and related to the purpose of the spending program.

*AND Congress may prohibit harmful commercial activity by state governments.
Is there a limit to Congress' ability to delegate powers?
No limit exists; HOWEVER

1) Legislative vetoes are never allowed, nor

2) are line item vetos

*for Congress to act, there always must be bicameralism (house and senate) and presentment (giving the bill to the Pres and sign or veto) - pres. must sign or veto the bill in its entirety.
Can Congress delegate executive power to itself or its officers?
Absolutely not.
President - Treaties
Treaties are agreements between the US and a foreign country that are negotiated by the President and are effective when ratified by the Senate (2/3 vote)
Treaties - axioms
1) Treaties prevail over conflicting State laws

2) If a treaty conflicts w/ a FEDERAL STATUTE, the one adopted last in time controls - most recent controls

3) If a treaty conflicts w/ the US Constitution, it is invalid
Executive Agreements - Def.
an executive agreement is an agreement between the US and a foreign country that is effective when signed by the Pres. and the head of the foreign nation **senate approval not needed
Executive Agreements - what is it used for??
for any purpose
What does Executive Agreements trump, and are trumped by
Trumps - conflicting State law

Does NOT trump - federal/constitutional laws.
President and troops
The president has broad powers as Commander in Chief to use American troops in foreign countries.
Appointment Power
The executive appoints:

1) All ambassadors, federal judges and officers of the US - w/ advice and consent by the Senate.
Can Congress appoint executive officers?
Congress may only appoint INFERIOR OFFICERS - those that are below the officers appointed by the President.

**Congress may NOT give itself or its officers the appointment power.
Removal of Appointees
1) Can remove any executive officer/branch, w/out any interference by Congress (e.g. purely executive officers)- though Congress may provide statutory limitations on the removal of executive appointees
Congress - limiting removal
1) limit removal of an officer where independence from the President is desirable, and

2) Congress cannot prohibit removal, it can limit removal to where there is good cause
Grounds - treason, bribery, high crimes, and misdemeanors. Process:

1) MAJORITY vote in the House, to invoke the charges, and a

2) trial by Senate, and 2/3 vote to convict and remove from office.
Presidential Immunity
The president has ABSOLUTE immunity to civil suits for money damages from any actions while in office. HOWEVER, the pres does not have immunity for actions that occurred prior to taking office.
Executive Privilege
Has a privilege to keep certain communications secret. National security secrets are given great deference by the courts.

*except for criminal proceedings
Executive Pardons
For Federal crimes - NOT STATE law convictions - for criminal convictions only.

No pardons where there has been an impeachment
Express Preemption
If the federal law, states explicitly that it is exclusive, preempts conflicting state law(s)
Implied Preemption
1) If federal and state law are mutually exclusive, federal law preempts state law

2) If state law impedes the achievement of a federal objective, federal law preempts state law

3)If Congress evidences a clear intent to preempt state law, federal law preempts state law
Can States regulate or tax the federal gov't?
Nope. Federal government has Inter-governmental immunity. States cannot regulate the federal gov't.
What are some factors considered in determining implied preemption?
1) Comprehensiveness of the federal scheme and

2) creation of an agency to administer the law
Full Faith and Credit Clause
if a judgment is entitled to full faith and credit, it must be recognized in sister States. Applies if:

1) the court rendered the judgment had JURISDICTION over the parties and the subject matter;

2) the judgment was ON THE MERITS; and

3) the judgment is FINAL
When can a State, tax federal gov't?
Cannot directly tax, but allowed if:

1) nondiscriminatory

2) indirect taxes

3) doesn't not unreasonably burden the federal gov't (e.g. State income tax on federal employees)
Privileges and Immunities Clause (IV)
The rights afforded to one state is applicable to another - meaning, a State cannot discriminate out of State citizens, with regard to basic civil liberties.

"Citizens of each State shall be entitled to all the immunities and privileges of citizens in the several States"
Who are NOT protected by this clause?
Aliens and Corporations are not protected by this 4th Amend; though protected by the Equal Protection and DPC of the 14th, as well as the Dormant Commerce Clause.
Dormant Commerce Clause
Prevents States from regulating the interstate commerce - cannot improperly burden interstate commerce or discriminate against interstate commerce
What rights does the P/I clause protect?
Fundamental rights are protected - those involving important COMMERCIAL ACTIVITIES (pursuit of livelihood) and CIVIL LIBERTIES.
When does the P/I clause apply?
There must be discrimination by the State's regulation - State citizens v. non-residents; discriminatory treatment
Can the State's regulation be justified, though it violates the P/I clause otherwise?
Yes - need:
1) Substantial justification for the different treatment

2) Where it is NECESSARY to achieve an IMPORTANT GOV'T PURPOSE - there is NO less restrictive alternative available to achieve its' objective

**where interstate commerce involved - and it usually does - use both dormant clause and Article IV analysis
Analyze - where there is no discrimination by State Regulation of interstate commerce
1. Article IV is NOT applicable

2. Use of Dormant clause analysis
Dormant Clause Analysis - Discrimination exists
Discrimination - against interstate commerce, regulation is INVALID, UNLESS:

a.) if furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives ;

b) the state is a Market Participant

c) It involves government action regarding the performance of a traditional government function

d) Necessary to achieve an important government purpose

*burden exceeds its benefits - violates the dormant commerce clause
Dormant Clause Analysis - No Discrimination exists
Determine whether the regulation unduly burdens interstate commerce; in other words, does the burden exceed the benefit.

Generally, invalid UNLESS the state's interest in the regulation outweighs the burden on the interstate commerce.

No burden/or outweighed by state interest - Valid State regulation

*courts will consider whether there was a less restrictive alternative avaialble
Federal Gov't regulation of State taxes - allowed?
Yes - Congress has complete power to authorize or forbid state taxation that affects interstate commerce.
Discriminatory Taxes - by states
are invalid, unless authorized by Congress, violation of Commerce Clause
When is Non-Discriminatory State Taxes valid?
If the following requirements are met:

1) Substantial nexus between the tax and state activity (significant/substantial activity w/in the taxing state)

2) Fair Apportionment - tax must be fairly apportioned according to a rational formula

3) Fair relationship between tax and the services/benefits provided by the state.

**unless above parts are met, the non-discriminatory tax is considered to be UNDULY BURDENING interstate commerce.
When does the Constitution apply?
To government action - also known as State action; private conduct need not comply w/ the Constitution
Can Congress apply constitutional norms to private conduct??

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

2)Commerce power can be used - i.e. Hotel case - civil rights

3) Congress CANNOT use s.5 of the 14th Amend to regulate private behavior
When does private conduct MUST comply w/ the Constitution?
1) Public function exception - private entity is performing a task traditionally, exclusively done by the gov't

2) Entanglement exception - Constitution applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity: (e.g.....

a) racially restrictive covenants
b) gov't lease premises
c) Books to private schools that racially discriminate
d) no state action 99% funded by gov't
e) no state NCAA - suspension of basketball coach
f) private eneity regulates interscholastic sports w/in a state (state action)
g) no state action when a private club w/ a liquor license from the state racially discriminates
Which Bill of Rights are not applicable to states?
1) 2nd - right to bear arms
2) 3rd - right to not have a soldier quartered in a person's home
3) 5th - right to grand jury indictment in criminal cases
4) 7th - right to jury trial in civil cases
5) 8th - right against excessive fines
Rational Basis Test
Law upheld - if it's RATIONALLY RELATED to a LEGITIMATE gov't purpose.

Rationally - means only need to be legit; burden on challenger

*law is usually valid, unless arbitrary or irrational

DP - no fundamental rights violated

EP - no suspect or quasi-suspect class (age, disability, and poverty)
Intermediate Scrutiny
Upheld, if it's SUBSTANTIALLY related to an important gov't purpose

*narrowly tailored - good way, but not the best way
*burden on gov't to proof
*there is ACTUAL purpose

*to quasi-suspect classifications (gender, legitimacy, undocumented alien children)
Strict Scrutiny
Upheld if it's NECESSARY to achieve a COMPELLING gov't purpose

*necessary - least restrictive analysis - no less restrictive means available

*gov't usually loses, burden on gov't
*gov't objective is CRUCIAL, vital, ACTUAL OBJECTIVE

Regulations affecting FUNDAMENTAL RIGHTS (interstate travel, privacy, voting, and 1st Amend rights) OR involving SUSPECT CLASSFICATION (Race, Nat'l Origin, and Alienage)
Contract Clause
prohibits states from acting to SUBSTANTIALLY impair contract rights

*Intermediate Strict scrutiny; would be upheld still if :

1) serves an important and legitimate public interest; and
2) is a reasonable and narrowly tailored means of promoting that interest
State taxes - allowed when....
Congress consented to -
Establishment Clause
Generally, must be NARROWLY TAILORED to a compelling state interest where there is discrimination among religious groups

No law respecting an establishment of religion


1) there must be a SECULAR purpose for the law
2) the effect must be neither to advance nor inhibit religion
3) there must not be excessive entanglement w/ religion

When will a federal court hear a pending state criminal proceeding?
generally, would not, except - an action to enjoin a pending state court prosecution if it is being conducted in bad faith - merely to harass the D.
Substantive Due Process violation
SDP tests the reasonableness of a statute; it prohibits arbitrary governmental action - a fundamental right - gov't must prove that the action is necessary to promote a compelling interest.
Aid to a religious group upheld if:
1) it has a secular purpose;

2) its primary effect neither advances nor inhibits religion; and

3) it does not produce excessive gov't entanglement w/ religion.
Can States regulate local aspects of interstate commerce, where there is already a federal regulation in place??
Yes - so long as the local regulation does not CONFLICT WITH, or is not PREEMPTED by, federal regulation and the regulation meets the following tests:

1) the regulation does NOT discriminate against out-of-state competition in order to benefit the local economic interests, and

2) the incidental burden on interstate commerce does not outweigh the local benefits of the regulation
when can a state regulate interstate commerce?
so long as the regulation of interstate commerce indirectly and the benefits outweigh the burdens imposed by compliance w/ the regulation
When are transactional taxes valid?
1) it odes not discriminate against interstate commerce;

2) the activity taxed has a substantial nexus to the taxing state;

3) the tax is fairly apportioned; and

4) the tax fairly relates to services provided by the taxing state.
Congress' investigative power
Scope of investigation is limited to the purposes w/in the scope of Congress' power.

*if they can legislate it, then can investigate it
Property Clause
Congress has power to "make all needful rules and regulations respecting the territory or other property belonging to the US" Allows congress to acquire and dispose of all kinds of property, and to protect its property
Ex Post Facto Laws
gov't cannot pass ex post facto law - retroactive application of a criminal offense.

1) makes criminal an act that was innocent when done;

2) prescribes greater punishment for an act than was prescribed for the act when it was done; or

3) reduces the evidence required to convict a person of a crime

**applies only to criminal cases
Bills of Attainder
legislative acts that inflict punishment on individuals w/out a judicial trial - prohibited
Procedural Due Process
Right to PDP, required where government agency takes a person's life, liberty or property - INTENTIONALLY
Liberty - deprived where....
there is the loss of a significant freedom provided by the Constitution OR a statute
Property - deprived where
There must be a LEGITIMATE CLAIM or ENTITLEMENT (property interest). and it is not fulfilled.

**not about rights or privileges, these answers are WRONG
Is gov't's negligence sufficient for a deprivation of due process?
NO - there must be INTENTIONAL government action or at least RECKLESS action for liability to exist.

*However - in EMERGENCY situations, the gov't is liable under due process only if it "SHOCKS THE CONSCIENCE".
Is gov't's failure to protect people from privately inflicted harms deny DP?
No - gov't has NO duty, ONLY if the gov't creates the danger or if person is in gov't custody.
What type of Process is required?
Balancing test:

1) Importance of the interest to the individual; and

2) the value of specific procedural safeguards to that interest (ability of additional procedures to increase the accuracy of the fact-finding); against

3) the gov't interest in fiscal and administrative efficiency
List examples when DP is needed (notice/hearing)
1) welfare benefits term - need N/H

2) Disability/ social security - need POST N/H

3) Student Disciplined - notice of charges and opportunity to explain

4) Custody Term - N/H

5) Punitive Damages - instructions to jury and judicial review

6) American citizen detained as enemy combatant - N/H

7) Except in exigent circumstances pre-judgment attachment or gov't seizures of assets must be preceded by D/P
When are punitive damages violative of D/P?
Explain "exigent circumstances"
if person would vacate or run away with the property - no N/H, no violation of DP
Civil Forfeitures - what type of DP?
Prior notice and evidentiary hearing for REAL PROPERTY;

Subsequent notice and hearing for PERSONAL PROPERTY
What is the test for depriving Economic Liberties?
Rational Basis test. The constitution provides only minimal protection for economic liberties. (i.e. employment/labor K, Trade practice, consumer protection law)
Takings Clause
The government may take private property for public use if it provides just compensation.
Takings - Test
gov't's action is RATIONALLY RELATED to a LEGITIMATE public purpose (health, welfare, safety, economic, etc)
List and Explain the two types of taking
Note: must distinguish between takings v. regulation

1) Possessory taking - gov't confiscation or physical occupation of property is a taking (always)

2) Regulatory Taking - gov't regulation is a taking if it leaves NO REASONABLE ECONOMICALLY viable use of the property.
What if the gov't takes all economic value of the land, taking?
Yes - must be ALL economic use of his land, unless the taking was due to nuisance or property law that makes the use prohibitable.

BUT, if there is SOME economic viability, not a taking
Policy behind takings - considerations by courts
Sometimes, it's difficult to determine if the gov't has taken the property and should compensate - courts will weight all the relevant circumstances: good faith, reasonable expectations of the owerns, length of delay, temporary takings and extent, effect on the value of the property, etc.
Devalue of land b/c of regulation, taking?
Balancing test - whether there is some economically viable use for the property.
Some considerations in determining whether there is a takings
1) gov't conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed

2)regulations that existed at time of property acquisition, can still bring suit

3) temporarily denying an owner use of property is not a taking so long as a the gov't's action is reasonable.
For takings - must show:
1) there was a takings (analysis)

2) For public use? so long as gov't had REASONABLE BELIEF that taking will benefit the gov't.

3) Just compensation paid? - measured to the loss to the owner, NOT gain to gov't (irrelevant) FMV.
Privacy - list
Fundamental Right protected under SDP.

1) Right to MARRY
2) Right to PROCREATE
3) Right to CUSTODY of one's children - State may create an irrebuttable presumption, that husband is father of child.
4) Right to keep the FAMILY together
5) Right to control the UPBRINGING of one's children
6) Right to purchase and use CONTRACEPTIVES
7) Right to ABORTION (see later)
8) Right to privacy - protects a right to engage in private consensual homosexual activity
9) Right to REFUSE medical treatment
10) NO RIGHT to physician assisted SUICIDE

Right to abortion - explain
No longer Strict Scrutiny

Prior to viability, states may NOT prohibit abortions, but may regulate abortions so long as they do no create an undue burden on the ability to obtain abortions
What is viability for purposes of abortion?
Where child could survive outside the womb
What is NOT considered an "undue burden" for purposes of invalidating abortion regulations?
1) 24 hour waiting period

2) requiring licensed physicians to perform abortions

3) prohibition of "partial birth abortions"
Abortion - AFTER viability
States may prohibit abortions unless necessary to protect the woman's life/health.
Can gov't provide subsidy's for abortions?
NO, nor provide abortions in public hospitals
Is spousal consent required for abortions?
No - it is unconstitutional
Parental consent for minors
A state may require parental notice and/or consent for an unmarried minor's abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor's best interests or that she is mature enough to decide for herself.
Right to refuse medical treatment - notes
1) competent adults have the right to refuse medical treatment, even life-saving medical treatment

2) A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.

3) a state may prevent family members from terminating treatment for another
Right to Travel (Fundamental Right)
Strict Scrutiny

1) Laws that prevent people from moving into a state must meet strict scrutiny

2) Durational residency requirements must meet strict scrutiny

3) Restrictions on FOREIGN travel need meet only the rational basis test
Right to Vote - Fundamental Right
1) Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of the electoral process to prevent fraud only need be on balance desireable

2) One person one vote must be met for all state and local elections

3) At large elections are constitutional unless there is proof of a discriminatory PURPOSE

4) Use of race in drawing election district lines must meet strict scrutiny

5) Counting uncounted votes w/out standards in a presidential election violates equal protection
Is there a fundamental right to Education?
Use of STRICT SCRUTINY standard
1) Privacy rights

2) Right to travel

3) Vote

4) Speech

5) Freedom of association

6) Free exercise of religion (law burdening religion is not a neutral law of general applicability)
Undue burden test - applies to
Abortion rights
Not a fundamental right (only rational basis review)
1) right to practice a trade/profession

2) right to physician assisted suicide

3) right to education
Level scrutiny unknown
1) Right to engage in private consensual homosexual activity

2) Right to refuse medical treatments

3) Right to possess firearms
Equal protection - general approach questions:
1) What is the classification?

2) what level of scrutiny should be applied?

3) Does this law meet the level of scrutiny?
Equal Protection applies to:
1) State via 14th Amend

2) Federal via 5th Amend
What is the level of scrutiny for classification based on race and national origin?
Strict Scrutiny
How is the existence of a racial classification proven?
1) the classification exists on the face of the law

2) if the law is facially neutral, proving a racial classifciation requires demonstrating BOTH discriminatory IMPACT and discriminatory INTENT
How should racial classifications benefiting minorities be treated?
Strict Scrutiny is applied
Can statistics be considered in determining discrimination
Generally no - UNLESS there is CLEAR PROOF of PAST discrimination, and the regulation's purpose is to remedy this past bullshit
Can race be considered to admissions into educational institutions?
Yes - as one factor in admissions decisions - BUT, cannot set aside slots
Can public schools consider race?
must meet strict scrutiny, if race is a factor in assigning students to schools - so prob not.
EQ/P - What standard is used for GENDER classifications?
Intermediate scrutiny - gov't must prove there is 'exceedingly persuasive justification' for the discrimination. *substantially related to an important gov't purpose
How is the existence of a gender classification proven?
1) The classifcation exists on the face of the law

2)if the law is facially neutral, proving a gender classification requires demonstrating both discriminatory IMPACT and discriminatory INTENT
How should gender classification benefiting women be treated?
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

**benign gov't discrimination and affirmative action

*Remedying past discrimination - past discrimination must've been PERSISTENT and READILY IDENTIFIABLE
When proving discriminatory classification, what is needed for strict or intermediate scrutiny to be applied?
there must be INTENT on the part of the gov't to discriminate - proven:

1) law that is discriminatory on its face

2) A discriminatory application of a facially neutral law; or

3) a discriminatory motive behind the law - need evidence of history of discrimination, effect alone is NOT enough
What is the level of scrutiny for Alienage classifications?
Strict Scrutiny - however - there are exceptions:

1) rational basis - alienage classifications that concern self-gov't and the democratic process - some privileges reserved to citizens

2) rational basis for Congressional discrimination against aliens (immigration)

3) Intermediate scrutiny is used for discrimination against UNDOCUMENTED alien children, who are denied free public education
What are the exceptions to allowing alienage discrimination?
Gov't can discriminate against aliens, by preventing them from participating in gov't functions that are wholly part of the democratic process

i.e. voting, jury service, elective office, probation officers, police officers, teachers
What is the standard for legitimacy discrimination?
Intermediate scrutiny - law is allowed to require proof of paternity prior to right to an decedent's estate.
What are the types of discrimination under the Constitution that only needs a rational basis review?
generally - all others

1) age
2) Disability
3) Wealth
4) Economic regulations
5) Sexual orientation
What distinction should be made where free speech is being challenged?
whether the restrictions are CONTENT BASED v. CONTENT-NEUTRAL
Level of scrutiny for content based?
Strict Scrutiny
what are the two types of content based laws?
1) Subject matter restrictions (application of the law depends on the topic of the message)

2) Viewpoint restrictions (application of the law depends on the IDEOLOGY of the message
Are prior restraints valid?

1) Court orders suppressing speech must meet strict scrutiny. Procedurally proper court orders must be complied w/ until they are vacated or overturned. A person who violates a court order is barred from later challenging it. i.e. gag orders on press, not allowed
a law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated
Fighting words law
unconstitional - for vagueness and overbreadth
Symbolic Speech
gov't can regulate CONDUCT that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the gov't's purpose.
Types of symbolic speech
1) Flag burning - form of speech
2) Draft card burning - not protected speech
3) Nude dancing is NOT protected speech
4) Burning cross - protected unless it is done to intimidate and threaten
5) Contribution limits - not protected
What types of speech are unprotected or LESS protected by the 1st Amend?
1) Incitement of illegal activity
2) Obscenity and sexually-oriented speech
3) Commercial Speech
4) Defamation
5) Privacy
Incitement of illegal activity
the gov't may punish speech if there is a SUBSTANTIAL LIKELIHOOD of imminent illegal activity and if the speech is directed to causing imminent illegality.
What is the TEST to determine whether the speech is obscene and sexually-oriented?
1) material must appeal to the prurient interest (shameful or morbid interest in sex) - local community standard

2) material must be PATENTLY OFFENSIVE under the law prohibiting obscenity

3) Taken as a whole, the material must LACK serious redeeming artistic, literary, political or scientific value (std - social value/ nat'l standard)
Can the gov't use zoning ordinances to regulate location of adult bookstores and movie theatres
they sure can
Child Pornography - ban?
yes - even if not obscene

HOWEVER - children must be used in production of material, computer generated pics/ and childlike features are not banned
Are profane and indecent speech protected?
yes, generally.

Except over the broadcast media and in schools
Are commercial speech protected?
advertising for illegal activity and false and deceptive ads are NOT protected forms of speech

*other commercial activity may be regulated if intermediate scrutiny is met; must be narrowly tailored, but need not show that there is a least restrictive alternative
Not protected
Defamation - P is a public official or running for public office
The P can recover for defamation by proving falsity of the statement and actual malice.

Malice - reckless disregard for the truth
Defamation - P is a "public figure"
recover by proving falsity fo the statement and actual malice
Defamation - P is a private figure and the matter is of public concern
P can recover for defamation by proving falsity and negligence by the D. Punitive damages only by showing actual malice
Defamation - private figure, not a matter of public concern
P can recover presumed or punitive damages w/out showing actual malice
Public forums,when can gov't regulate?
Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met.

1) regulations must be a TPM regulation that serves an important gov't purpose and leaves open adequate alt. places for communication

2) need not use less restrictive alt

*city officials cannot set permit fees for public demonstrations
Limited Public forums
gov't properties that the vgov't cold close to speech, but chooses to open to speech - same rules as public forums
Non-public forums, when can gov't regulate?
So long as the regulation is reasonable and viewpoint neutral
Freedom of association - what type of scrutiny
To punish membership in a group it must be proven that the person:

1) actively affiliated w/ the group,
2) knowing of its illegal activities; and
3) w/ the specific intent of furthering those illegal activities
Can laws require disclosure of members in an association?
must meet strict scrutiny, to prevent chilling effect on association
Can laws prohibit a group from discriminating?
yes, it is constitutional, UNLESS they interfere w/ intimate association or expressive activity.
Freedom of Speech - analysis - involving public forums/ designated public forums
Freedom of speech is not absolute. to avoid chaos and to protect other governmental interests, gov't is allowed to adopt reasonable time/place/manner regulations on speech in public forums and designated public forums. To be valid, such regulations must be content neutral, narrowly tailored to serve a significant gov't interest, and leave open alt. channels of communication
Commercial Speech analysis
First Amend. does protect commercial speech, although the standard for regulation differs from other speech - the gov't may ban false or misleading commercial speech and may regulate (even content regulation) other commercial speech w/ narrowly tailored regulations that directly advance a substantial government interest.
Again (freedom of speech) analysis - public forums
the gov't is allowed to adopt regulations concerning the time, place, and manner of the exercise of speech and assembly in public forums and designated public forums to facilitate order and to protect other important gov't interest. To be valid, such law must:

1) be content neutral
2) be narrowly tailored to serve a significant gov't interest, and
3) leave open alternative channels of communication
Commercial Speech Analysis - again
In determining whether a restriction on commercial speech is valid, a court first asks whether the speech concerns lawful activity and is not misleading or fraudulent.

If not misleading/fraudulent - the court will then determine whether:

1) the gov't interest in the regulation is substantial;

2) the regulation directly advances that interest; and

3)the regulation is narrowly tailored to the substantial interest
President's appointment power analysis
Art. II, s.2 provides that the President shall nominate, and w/ the advice and consent of the Senate shall appoint, ambassadors and other officers of the US. the Section also provides that Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments. Under separation of powers principles, however, Congress may NOT vest in itself any broader appointment powers than what is provided for by the Constitution. *may not restrict the President's appointment powers.
Analysis - regulation of conduct at nonpublic forum
when a nonpublic forum is involved, gov't reulations on time, place , and manner of speech will be upheld if they are VIEWPOINT neutral and REASONABLY related to a legitimate government purpose.
Analysis - public and press access to trials
1st Amend guarantees the public and press a right to attend criminal trials, but this right may be outweighed by an overriding interest articulated in findings by the trial judge.
Prior Restraint - Analysis
Gag order restraining release of information will be upheld if NARROWLY TAILORED to achieve some significant gov't interest

*prior restraints are valid if it is the only sure way of preserving a fair trial.

*some SPECIAL societal harm that justifies the restraint

*need procedural safeguards - narrowly drawn, reasonable and definite
newspaper or broadcast - sued, can they?
No - not if the publishing or airing is a true fact, that was lawfully obtained from the public record or otherwise released to the public, they cannot be sued, but the gov't may limit its dissemination of information to protect privacy rights.
State action (for 14th Amend. purposes)
State action exists where the state is involved in providing a public function or there is significant State involvement.
Analysis - State Regulation of Commerce
Congress' power over interstate commerce is plenary and pervasive, but is nonexclusive. Thus, b/c City's ordinance affects interestate commerce but odes not conflict w/ a provision of federal law, it is valid if it does not discriminate against out-of-state competition to benefit local economic interests and is not unduly burdensome.
Analysis - Discriminatory Regulations
Cannot discriminate, UNLESS - exceptions apply - discriminatory state or local law may be valid if it furthers an important, noneconomic state interest and there are no reasonable alternatives, or where the state is a market participant - OR the State action is one that is functionally/traditionally one that is for the gov't/ State
Analysis - Contract Clause
Prohibits states from enacting any law that retroactively impairs existing contract rights. A private contract can be modified if the law serves an important, legitimate state interest and is reasonably and narrowly tailored to promote that interest
Analysis - Standing of Organizations
Organization has standing if:

1) there is injury in fact to the members of the organization that would give individual members a right to sue on their own behalf,

2) the injury to the members is related to the organization's purpose, and

3) neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit
Analysis - Tax valid under the Commerce Clause
1) the tax does not discriminate against interstate commerce;

2) there is a substantial nexus between the activity taxed and the taxing state;

3) the tax is fairly apportioned; and

4) the tax fairly relates to services or benefits provided by the state.

Fair Apportionment
If the tax is based on the extent of the taxable activity or property in the state.
Analysis - NON-public forums
1) determine public v. non-public forum; traditionally, designated, etc.

2) Non-public forum: can regulate subject matter, so long as rationally related to the purpose served by the property and is

NOT designed merely to suppress a particular point of view.