Multistate Bar Exam - Constitutional Law

Front 1

Doctrine of Justiciability

Back 1

Whether a lawsuit is capable of judicial resolution as a case or controversy depends on:

1. What it requests (no advisory opinions)

2. When it is brought (ripe, not moot), AND

3. Who brings it (must have standing)

Front 2

Advisory Opinions

Back 2

Federal courts may not render advisory opinions, which lack:

1. An actual dispute between adverse parties, OR

2. Any legally binding effect on the parties.

Front 3

Ripeness

Back 3

Federal courts may only decide controversies that are ripe for judicial review.

Front 4

Declaratory Judgment Actions

(Pre-Enforcement Review of Laws)

Back 4

Declaratory judgment actions are generally not ripe for review, unless:

1. There would be substantial hardship in the absence of review (the more, the better), AND

2. The issues and record are fit for review (the more legal than factual, the better)

Front 5

Mootness

Back 5

Federal courts may only decide "live" controversies, where the plaintiff suffers an ongoing injury.

Exception: though injury has passed, the controversy is not moot if:

1. Injury is capable of repetition yet evades review because of its inherently limited duration

2. Defendant voluntarily stops the challenged activity, but may restart at will, OR

3. In class actions, one plaintiff suffers ongoing injury

Front 6

When is a controversy "live"?

Back 6

The controversy is live if:

1. In a suit for declaratory and injunctive relief, the law or conduct continues to injure.

2. In a suit for damages, plaintiff has not been made whole.

Front 7

Standing

Back 7

A plaintiff must have standing to sue, which consists of:

1. injury

2. causation

3. redressability

Front 8

Injury

Back 8

Nearly any harm counts, but it cannot be ideological objections or generalized grievances as a citizen or taxpayer.

Exception: Taxpayer may challenge their own tax liability. Citizens may challenge congressional spending in violation of the Establishment clause (but not executive spending).

Front 9

When must injury occur for standing?

Back 9

The injury must have already occurred, or will imminently occur.

For injunctive or declaratory relief, the plaintiff must show a likelihood of future harm.

Front 10

Who must have suffered the injury for standing?

Back 10

The injury must be personally suffered by the plaintiff, rather than those not before the court. Third party standing is generally not acceptable, unless it falls into the exception for close relationships, organizations on behalf of members, and free speech overbreadth.

Front 11

Third Party Standing for Free Speech Over-breadth

Back 11

A party whose speech can be censored may sue on behalf of those whose speech cannot be censored if:

1. There is substantial over-breadth in terms of the law's legitimate to illegitimate sweep, and

2. The law does not specifically regulate commercial speech.

Front 12

Third Party Standing for Close Relationships

Back 12

A party may bring suit on behalf of an injured third party if:

1. The plaintiff is also injured

2. The third party is unable or unlikely to sue, AND

3. The plaintiff can adequately represent the interests of the third party.

Front 13

Third Party Standing for Organizations on Behalf of Members

Back 13

An organization may bring suit on behalf of its injured members if:

1. The members individually have standing

2. The members' injury is related to the purpose of the organization (e.g. NAACP challenging law compelling disclosure of group membership)

3. The members' participation in the suit is not required (not seeking individualized damages)

Front 14

Legislative Standing

Back 14

Legislators may challenge acts that injure them personally, rather than the legislature generally.

Example: Legislators may challenge a law permitting the lt. governor to cast the tie-breaking vote, effectively nullifying contrary votes, BUT NOT the line-item veto.

Front 15

Causation

Back 15

The plaintiff must show that his injury is fairly traceable to the defendant.

Example: no causation where parents of blackpublic school children challenged IRS failure to denytax breaks to discriminatory private schools, claiming tax breaks caused public schools to be less integrated.

Front 16

Redressability

Back 16

The plaintiff must show that a favorable court decision can remedy his harm, whether through money damages or an injunction.

Example: no redressability where motherchallenged state's failure to prosecute for nonpaymentof child support, claiming loss of childsupport from lack of prosecution.

Front 17

Political Question Doctrine

Back 17

Federal courts will not decide political questions; i.e., questions:

1. committed by the constitution to the political branches of government, or

2. incapable of, or inappropriate for, judicial resolution.

Front 18

Actions the courts have determined to be political questions, unsuited for decision in federal court

Back 18

1. Challenges under the guarantee clause (Art IV, Sec. 4): challenges to a state’s government as not a “republican form of government.”

2. President’s conduct of foreign policy and command decisions.

3. The impeachment process

4. Partisan gerrymandering

5. Qualifications of members of Congress

6. The seating of delegates at national political conventions.

Front 19

Sovereign Immunity

Back 19

The Eleventh Amendment prohibits federal courts from hearing a private party's or foreign government's claims against a state government.

The SCOTUS has held that sovereign immunity further bars suits against a state government in state court, even on federal claims, unless the defendant state consents to suit.

Front 20

What is not barred by sovereign immunity?

Back 20

Actions against local governments, actions by the federal government or other states, or proceedings in federal bankruptcy court. State officers may be sued for injunctive relief or money damages.

Additionally, if Congress clearly abrogates sovereign immunity under Fourteenth Amendment powers to prevent discrimination.

Front 21

Abstention

Back 21

Federal courts generally decline to decide a federal constitutional claim on an unsettled question of law.

Additionally, federal courts may not enjoin pending state judicial or administrative proceedings.

Front 22

Final Judgment Rule

Back 22

The Supreme Court only hears a case afterthere has been a final judgment by thehighest state court capable of rendering a decision, a federal courtof appeals, or (in special statutory situations) a three-judge districtcourt.

Front 23

Independent and Adequate State Grounds

Back 23

The Supreme Court will not review a federal question if the state court decision rests on an independent and adequate state law ground.

An independent and adequate state law ground exists if the outcome would be the same regardless of how the federal question is decided.

Front 24

Limit to Legislative Power

Back 24

Congress has no general police power to pass laws, and may only legislate under its enumerated or specified powers in the Constitution.

Front 25

Necessary and Proper Clause

Back 25

Allows Congress to choose any rational means (not necessarily the optimal means) to carry out an enumerated power, as long as those means are not prohibited by the constitution.

This is not a basis of legislative power.

Front 26

Taxing and Spending Power

Back 26

Congress may tax and spend to provide for the general welfare. This include any public purpose not prohibited by the constitution, even if it does not fall within an enumerated power.

Front 27

Spending Conditions

Back 27

Congress may condition federal grants on state comportment with a congressional demand, but the "strings" must be:

1. clearly stated,

2. relate to the purpose of the spending, and

3. cannot be unduly coercive.

Front 28

Commerce Power

Back 28

Congress may regulate commerce with:

1. foreign nations

2. Native American tribes

3. among the several states

Front 29

Congressional Power to Regulate Interstate Commerce

Back 29

Congress may regulate:

1. Channels of interstate commerce (internet, highways, waterways)

2. Instrumentalities of interstate commerce (planes, trains, persons)

3. Activities which have a substantial effect on interstate commerce in the aggregate (even through purely local activities)

Front 30

Limits to Congressional Power to Regulate Interstate Commerce

Back 30

1. Congress cannot regulate non-economic activity in areas traditionally regulated by states (e.g. laws prohibiting violence against women)

2. Congress cannot compel participation in commerce, even if the lack of participation would substantially affect interstate commerce.

Front 31

Fourteenth Amendment Enforcement Power

Back 31

In addition to banningprivate discrimination under its commerce power,Congress may also seek to prevent/remedystate discrimination under its 14A powerto enforce the guarantee of equal protection.

Example: Congress may authorize privatesuits against state governments foremployment discrimination on basis of race,gender, and religion.

Front 32

Delegation of Legislative Power to Agencies

Back 32

Congress may broadly delegate legislative power as long as some intelligible principle guides the exercise of delegated power.

Front 33

Legislative Veto

Back 33

Congress cannot void duly enacted laws or executive actions without bicameralism and presentment.

Example: a law providing that one chamber of Congress may overturn agency regulations.

Front 34

Speech or Debate Clause

Back 34

Members of Congress enjoy immunity from civil and criminal liability for legislative acts, such as speeches on the floor, voting, or committee reports.

This clause does not cover bribes, tweets, town hall meetings, or publication outside of Congress

Front 35

Executive Enforcement Power

Back 35

The president has the power and duty to execute and enforce laws.

Front 36

Executive Power of Appointment

Back 36

The president may appoint ambassadors, federal judges, and officers of the United States (e.g., cabinet secretaries) with the advice and consent of the Senate (by majority vote)

Front 37

Recess Appointment

Back 37

The president may use recess appointments for vacancies arising before or during Senate recesses of at least 10 days, and these appointments are valid until the end of the next Senate session.

Front 38

Appointment of Inferior Officers

Back 38

Congress may vest the appointment of inferior officers in the president, courts, or heads of departments, but may not itself appoint members of a body with administrative or enforcement powers.

Front 39

Removal of Executive Officials

Back 39

The president may remove high level executive officers at will. Congress may limit presidential removal of other executive officials to good cause.

Congress may not remove executive officials except through the impeachment process.

Front 40

Presidential Pardon

Back 40

The president may pardon anyone accused or convicted of a federal crime. However, this does not excuse civil liability.

Exception: the president has no power to pardon crimes underlying impeachment by the House of Representatives.

Front 41

Congressional War Power

Back 41

Congress alone has the power to declare war.

Front 42

Presidential War Power

Back 42

The president as commander in chief has broad discretion to deploy troops internationally to protect American lives and property.

Challenges to this power may be non-justiciable as a political question.

Front 43

Treaties

Back 43

The president negotiates treaties with foreign powers, which the Senate may approve by a two-thirds majority. An approved treaty trumps all existing and future state law, and amends or displaces existing federal law.

Front 44

Executive Agreements

Back 44

The president may negotiate executive agreements with foreign powers. These executive agreements trump existing and future state laws, but federal law will always trump the executive agreement.

Front 45

Impeachment

Back 45

Congress may impeach the President, Vice President, federal judges, and all officers of the United States for treason, bribery, or other high crimes and misdemeanors.

The House must pass articles of impeachment by a majority vote, and the Senate must convict by a two-third majority. Removal requires both.

Front 46

Presidential Immunity

Back 46

The president has absolute immunity from civil damages for any actions arguably within his official responsibilities. The president enjoys no immunity from private suit, even while in office, for conduct prior to taking office.

Front 47

Executive Privilege

Back 47

Presidential documents and communications are confidential. However, this privilege may yield if it is outweighed by other important governmental interests (e.g. the need for evidence in a criminal trial).

Front 48

Implied (Inherent) Presidential Powers

Back 48

Implied powers are afforded the highest deference where they are authorized by Congress.

Implied powers are afforded the lowest deference where they are prohibited by Congress.

Where Congress has neither authorized nor prohibited the power is the "twilight zone."

Front 49

Anti-Commandeering Principle

Back 49

Congress cannot compel or force states to enact or administer federal programs.

Front 50

Tenth Amendment

Back 50

Any powers not granted to the United States, or prohibited to the states, are reserved to the states or the people.

General police powers are reserved to the states.

Front 51

Supremacy Clause

Back 51

The Supremacy Clause of Article VI makes federal law preempt inconsistent state and local laws. Federal law includes the Constitution, statutes, regulations, treaties, and executive agreements.

Front 52

Express Preemption

Back 52

A state law is preempted where Congress explicitly says it is preempted, or that states may not regulate a given area.

Front 53

Implied Preemption by Conflict

Back 53

A state law is implicitly preempted where it is:

1. Impossible to follow both federal and state law, OR

2. State law impedes federal law.

Front 54

Implied Preemption by Field

Back 54

A state law is implicitly preempted where extensive federal regulation of an area indicates congressional intent to "occupy the field."

Front 55

Dormant Commerce Clause

Back 55

The Dormant Commerce Clause prohibits state laws that discriminate against or unduly burden interstate commerce.

Front 56

Privileges and Immunities Clause

(Article IV)

Back 56

The Privileges and Immunities Clause of Article IV prohibits state laws that discriminate against out of state US citizens regarding:

1. important commercial activities (i.e., "livelihood")

2. fundamental rights (e.g. free speech)

Exception: Corporations and aliens are not protected by this clause.

Front 57

Function of Dormant Commerce Clause on Discriminatory Laws

Back 57

Discriminatory laws which favor in-state over out-of state commerce are presumptively invalid unless:

1. they are necessary to achieve an important government purpose (unrelated to economic protectionism), and

2. there are no less discriminatory alternatives.

Exception: a state may prefer its own citizens when acting as a market participant.

Front 58

Function of Dormant Commerce Clause on Non-Discriminatory Laws

Back 58

Non-discriminatory laws which are evenly applied to in-state and out-of-state commerce are usually permissible unless the burdens on interstate commerce clearly outweigh the non-protectionist benefits of the law.

Front 59

Function of Privileges & Immunities Clause on Discriminatory Laws

Back 59

Discriminatory laws which favor in-state over out-of state citizens are presumptively invalid unless:

1. they are necessary to achieve an important government purpose, and

2. there are no less discriminatory alternatives.

Front 60

State Taxation of Interstate Commerce

Back 60

Discriminatory taxes are generally invalid.

Non-discriminatory taxes are generally valid if:

1. substantial nexus between the activity taxed and the state, and

2. fairly apportioned to business done or benefits received in state.

Front 61

Intergovernmental Immunity

Back 61

States may not tax or regulate the federal government, including its agents and activities, without its consent.

Example: states cannot assess property taxes on a military base.

Front 62

Privileges or Immunities Clause

(Fourteenth Amendment)

Back 62

States may not deny their citizens the privileges or immunities of national citizenship (e.g.,the right to petition Congress for redress of grievances, the right to vote, and the right to interstate travel).

Exception: Corporations and aliens are not protected by this clause.

Front 63

Application and Incorporation of the Constitution

Back 63

Except the Thirteenth Amendment ban on slavery, the Constitution applies only to government action, not private conduct. Most protections of the Bill of Rights have been incorporated against states and their political subdivisions through the Due Process Clause of the Fourteenth Amendment.

Rights not yet incorporated: 3A right not to have soldiers quartered in home,5A right to grand jury indictment, 7A right to jury in civilcases, 8A right against excessive fines.

Front 64

State Action by Public Function

Back 64

State action exists when a private party performs functions traditionally performed by government.

E.g. Company towns.

Front 65

State Action by State Involvement

Back 65

Significant state involvement inchallenged private conduct (e.g., assistance,encouragement, supervision, entwinement, or approval)may constitute state action.

Example: The state leasing premises to a restaurant which racially discriminates.

Front 66

Procedural Due Process

Back 66

An individual has a right to fair process when the government acts to deprive him of life, liberty, or property. Due Process does not prohibit laws that "summarily take" from a class in general.

The Fifth Amendment Due Process Clause applies to the federal government.

The Fourteenth Amendment Due Process Clause applies to states and localities.

Front 67

Deprivation

(for purposes of procedural due process)

Back 67

In order to constitute a deprivation for purposes of procedural due process, the deprivation must be intentional or reckless, rather than negligent.

Front 68

Liberty

(for purposes of procedural due process)

Back 68

In order to constitute a deprivation of freedom for purposes of procedural due process, there must be either:

1. deprivation of physical freedom, or

2. deprivation of constitutional/statutory rights.

Example: termination of parental rights, revocation of driver's license

Front 69

Property

(for purposes of procedural due process)

Back 69

For purposes of procedural due process, property includes real property, tangible and intangible personal property, and government entitlements to which an individual has a reasonable expectation of continued receipt.

Example: welfare benefits, public education, tenured employment, government licenses

Front 70

If deprived, what process is due?

Back 70

1. Notice (reasonably calculated to inform the person of the deprivation)

2. An opportunity to be heard

3. Before a neutral decisionmaker (no actual or serious risk of bias).

Front 71

Due Process Hearing

Back 71

A pre-deprivation hearing is required unless the government shows that such a hearing would be highly impracticable (as in emergency institutionalization).

Front 72

Due Process Balancing Test

Back 72

The more serious the deprivation, the more process the individual is due. In determining the amount of process owed an individual, courts are to consider:

1. The importance of interest to the individual

2. Risk of error through procedures used

3. Accuracy gain from additional procedures

4. Burden on government (efficiency, cost)

Front 73

Rational Basis Scrutiny

Back 73

The burden is on the challenger to show that the means used were not rationally related to a legitimate government interest.

The challenged conduct is presumptively valid.

Front 74

Intermediate Scrutiny

Back 74

The burden is on the state to show that the means used were substantially related to an important state interest.

Front 75

Strict Scrutiny

Back 75

The burden is on the state to show that the means used were narrowly tailored to achieve a compelling state interest.

The challenged conduct is presumptively invalid.

Front 76

Rational Basis Class

Back 76

• age

• disability

• wealth

• alienageclassifications byCongress

• alienageclassifications bystate related todemocraticgovernance

• all otherclassifications

Front 77

Quasi-Suspect Class

Back 77

• gender

• legitimacy (whether someone was born outside of wedlock)

Front 78

Suspect Class

Back 78

• race

• national origin

• alienage classifications by state generally

• denial of fundamental rights to some

Front 79

Alienage Classifications by State

Back 79

Generally, states cannot discriminate against individuals on the basis of their non-citizen status.

Exception: state and local governments may reasonably require U.S. citizenship for activities and positions integral to democratic self-governance.

Front 80

Intermediate Scrutiny for Gender Discrimination

Back 80

The government must show that the important state interest justifying the discrimination has an exceedingly persuasive justification, not merely a role stereotype.

Front 81

Strict Scrutiny for Denial of Fundamental Rights

Back 81

If the government declines a group of people a fundamental right, but not everyone, the test is strict scrutiny.

Example: denial of right to marry to smokers.

Front 82

Intermediate Scrutiny for Discrimination Based on Legitimacy

Back 82

Laws based on prejudice, typically denying benefits to all non-marital children, are invalid. However, laws which distinguish among non-marital children are more likely to be upheld (e.g. a law allowing non-marital children to inherit from father only if paternity was established during the father's life).

Front 83

Rational Basis Review for Any Other Classification

Back 83

Animus or prejudice is never a legitimate state interest.

Example: Federal law refusing to recognize same-sex couples married under state law as married for purposes offederal benefits is invalid.

Front 84

Fundamental Right

Back 84

A given right is "fundamental" if:

1. that right is deeply rooted in this nation's history or tradition, or

2. it is implicit in the concept of ordered liberty.

Front 85

Due Process, or Equal Protection?

Back 85

When everyone is denied a fundamental right, it is a question of substantive due process.

When only some people or a class of people are denied a fundamental right, both substantive due process and equal protection are implicated.

Front 86

Scrutiny for Deprivation of Fundamental Rights

Back 86

Strict scrutiny

Fundamental rights include: marriage, divorce, procreation, contraception, custody and care of children, living with extended family, interstate travel, and voting

Front 87

Scrutiny for Deprivation of Right to Abortion

Back 87

States may regulate (but not prohibit) pre-viability abortions to protect mother's health or life of fetus. However, states may not unduly burden access to abortion.

States may prohibit post-viability abortions unless necessary to protect mother's life or health.

Front 88

Scrutiny for Deprivation of Non-Fundamental Rights

Back 88

Rational basis

Non-fundamental rights include: economic rights, physician-assisted suicide, and education

Front 89

Right to Marriage (and Divorce)

Back 89

Laws that substantially interfere with the right to marry (or divorce) trigger strict scrutiny.

Reasonable requirements to protect (rather than hinder) the right to marry are scrutinized on a rational basis.

Front 90

Right to Interstate Travel

Back 90

Based on the Fourteenth Amendment Privileges or Immunities Clause. This includes the right to enter and leave a state, and equal treatment once the individual becomes a permanent resident of the state.

There is no fundamental right to international travel.

Front 91

Right to Vote

Back 91

Rational basis review for reasonable requirements that protect (rather than hinder) the right to vote, such as age, residency requirements, and citizenship requirements.

Strict scrutiny for onerous or potentially discriminatory restrictions on the right to vote, such as poll taxes and literacy tests.

Front 92

One Person, One Vote Principle

Back 92

Equal Protection requires the population of state and local voting districts be substantially equal (up to 16% variance).

Article I requires the population of congressional districts within a state to be almost exactly equal (a .7% variance was invalidated).

Front 93

Racial Gerrymandering

Back 93

Gerrymandering triggers strict scrutiny if race was a predominant factor in drawing the districts.

However, racial gerrymandering is more likely to pass strict scrutiny if it's used to correct general societal wrongs (rather than to hurt a minority).

Front 94

Right to Refuse Medical Treatment

Back 94

A competent adult may refuse lifesaving medical treatment, but a state may require clear and convincing evidence of the individual's wish, and may prevent family members from terminating treatment. There is no right to physician-assisted suicide.

The state may compel vaccination and mandatory quarantines for contagious diseases.

Front 95

Governmental Takings

Back 95

The federal government (Fifth Amendment Takings Clause) and states (Fourteenth Amendment incorporation by Due Process) may not take private property unless:

1. The taking is for a public use, and

2. The government pays just compensation for the taking.

Front 96

Property

(for purposes of government takings)

Back 96

Property includes real and personal property, and includes the rights to possess, use, dispose of, and all other rights inherent to property ownership.

Property also includes intangible interests, such as interest on attorney trust accounts and trade secrets. It does NOT include government entitlements.

Front 97

Physical Taking

Back 97

1. Confiscation

2. Regular or permanent occupation

3. Temporary occupation (may be a taking depending on the degree of invasion, duration, government intention and foreseeability with respect to result, character of property, and interference with use)

Front 98

Regulatory Taking

Back 98

Regulations on the use of the property must not merely diminish the value of the property, but leave virtually no economically viable use. Economically viability is measured over the lifetime of the property (so a temporary moratorium is not a taking).

Example: a zoning ordinance which prohibits a landowner from building on a beachfront lot.

Front 99

Development Exception to Regulatory Taking

Back 99

Traditional conditions on property development are not takings if the benefits are roughly proportional to the burdens.

Front 100

Emergency Exception to Physical Taking

Back 100

A taking is less likely to be found, even in the event of complete and permanent deprivation, if the taking was made pursuant to a public emergency such as war.

Example: destroying oil refineries during WWII to prevent the Japanese from taking over their use.

Front 101

Just Compensation

Back 101

Just compensation is the fair market value of the property at the time of the taking.

The benefit to the government is irrelevant.

Front 102

Public Use

Back 102

The taken property may be used for any legitimate public purpose. i.e., any purpose that the government reasonably believes will benefit the public.

Example: Confiscation of blighted property for saleto private company as part of city’s economicredevelopment plan is a legitimate public purpose.

Front 103

Contract Clause

Back 103

No state or locality may pass any law retroactively and substantially impairing the rights and obligation of contracts unless the governmental act is a reasonable and narrowly tailored means of advancing an important and legitimate government interest.

The Contracts Clause is not applicable to the federal government or judicial decisions.

Front 104

Parties Rights Under Contract Clause with Regards to Private Contracts

Back 104

State and local laws which substantially impair the existing rights of parties in contract are invalid unless there is:

1. an important government purpose, and

2. the means are reasonably related to that purpose.

Example: State law banning underground coal mining that damages surface property.

Front 105

Parties Rights Under Contract Clause with Regards to Public Contracts

Back 105

Government action is subject to heightened scrutiny (although it's unclear whether this is intermediate or strict scrutiny). This is to prevent the government from cutting itself better deals at the cost of private parties and citizens.

Front 106

Ex Post Facto Laws

Back 106

Neither the state nor federal government may pass legislation that retroactively alters criminal liability. Categories of ex post facto law:

1. Criminalizes an act that was innocent when done

2. Makes crime more severe than when committed

3. Sets a greater punishment than when the act was done

4. Reduces evidence required to convict from what was required at the time of the act.

Front 107

Bills of Attainder

Back 107

Neither the state nor federal government may pass legislation that designates particular individuals (by name or description) for punishment without judicial trial. Punishment may include traditional sanctions (e.g. death, prison, fines) and punitive measures (e.g. exclusion from employment and benefits).

Front 108

Speech

Back 108

Words (written or verbal), symbols, and expressive conduct.

Expressive conduct is conduct that is inherently expressive, or conduct intended to convey a message and that is reasonably likely to be perceived as conveying a message.

Front 109

Unprotected Speech

Back 109

Incitement

Fighting Words

True Threats

Obscenity

Child Pornography

Defamation with Actual Malice

False, Misleading, or Illegal Commercial Speech

Front 110

Partly Protected Speech

Back 110

Defamation about public official, public figures, or matters of public concern

Commercial speech that isn't false, misleading, or illegal

Front 111

Incitement

("Clear and Present Danger" Test)

Back 111

Speech is incitement when it advocates lawless action that is both:

1. intended to produce imminent lawless action, and

2. reasonably likely to produce imminent lawless action.

Mere advocacy of lawlessness is protected.

Front 112

Fighting Words

Back 112

Speech that is likely to provoke an immediate, violent response.

Example: Calling someone a rude name to their face in an argument at a bar.

Front 113

True Threats

Back 113

Speech intended to convey to someone a serious threat of bodily harm.

Example: Burning a cross in a black neighbor's yard.

Front 114

Obscenity

Back 114

Depiction of sexual conduct that, taken as a whole and by contemporary community standards:

1. appeals to the prurient interest in sex,

2. is patently offensive, AND

3. lacks serious social value by national standards.

Sexually explicit or indecent speech that is not obscene may nonetheless be subject to zoning to protect children and unwilling adults from exposure, or to prevent neighborhood crime and decay. However, ample alternative channels must exist for the speech.

Front 115

Child Pornography

Back 115

Depiction of actual children engaging in sexual conduct, whether or not obscene.

Unlike obscenity, in-home possession of child pornography may be banned.

Front 116

Defamation

Back 116

To promote robust public debate, the First Amendment bars recovery under state defamation law for speech made without actual malice about public officials, public figures, or matters of public concern.

Must show actual malice through clear and convincing evidence by:

1. knowledge of falsity, or

2. reckless disregard for the truth.

Front 117

Public Official

(for First Amendment Purposes)

Back 117

Individuals holding or running for elected office at any level, or public employees in positions of public importance (e.g. prosecutor, school principal, police officer).

Front 118

Public Figure

(for First Amendment Purposes)

Back 118

Individuals who have:

1. Assumed roles of prominence in society (Oprah Winfrey)

2. Achieved pervasive fame and notoriety (Kim Kardashian)

3. Thrust themselves into particular public controversies to influence their resolution.

Front 119

Public Concern

(for First Amendment Purposes)

Back 119

Matters important to society and democracy.

Front 120

Commercial Speech

Back 120

Government regulation of commercial speech is subject to intermediate scrutiny, and any government regulation must be narrowly tailored ("a reasonable fit") to a substantial government interest (e.g. consumer protection).

Front 121

General Speech Restrictions

Back 121

Restrictions on protected speech that are generally applicable (i.e., not limited to a specific group of people or a specific location).

Front 122

Content-Based General Speech Restrictions

Back 122

These restrictions suppress speech because of its message, or the harm that message may produce. This is commonly known as censorship. Content-based speech restrictions must be narrowly tailored (least restrictive means) to support a compelling government interest, are subject to strict scrutiny, and are presumptively invalid.

Front 123

Content-Neutral General Speech Restrictions

Back 123

These restrictions suppress speech for reasons unrelated to the message, often channeling speech based on time, place, or manner. Content-neutral speech restrictions must be narrowly tailored (no substantial overbreadth) to support an important government interest, are subject to intermediate scrutiny, and are usually valid.

Front 124

Speech Restrictions in Public Forums

Back 124

Content-based restrictions in public forums are subject to strict scrutiny, and content-neutral restrictions are subject to intermediate scrutiny.

Front 125

Traditional Public Forums

Back 125

Traditional public forums are those open to the public as free speech zones "from time immemorial."

Front 126

Designated Public Forums

Back 126

Designated public forums are those opened by police or purposeful practice as free speech zones.

Front 127

Speech Restrictions in Non-Public Forums

Back 127

Restrictions may be imposed on speech in a non-public forum as long as the restriction is reasonable given the nature and purpose of the forum.

Speech restrictions are subject to strict scrutiny if they are content-based restrictions that limit speech to one side of a subject.

Front 128

Personal Student Speech Restrictions in Public Schools

Back 128

Personal student speech cannot be censored absent evidence of substantial disruption.

Exception: speech promoting illegal drug use does not require a showing of disruption.

Front 129

Speech Restrictions in Public Schools

Back 129

School speech, including co-opted student speech, may be censored if it is reasonably related to legitimate pedagogical (teaching) concerns. The test here is reasonableness.

Front 130

Public Employment and Political Patronage

Back 130

Public employees may not be hired or fired based on political affiliation or expression.

Exception: the hiring and firing of high-level policy-makers and advisors may be politically motivated (e.g. presidential appointment of cabinet secretary)

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Speech Restrictions on Public Employees

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Matters of private concern (e.g. office gossip) or speech made pursuant to official duties (e.g. TPS report, closing arguments) are not protected by the First Amendment.

Speech regarding matters of public concern that is not made pursuant to official duties is protected.

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Public Employee Speech Test

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Balances the value of the speech against the state's interest in efficient operation. If the value of the speech outweighs the state's interest, then the regulation limiting the speech is invalid.

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Vagueness in Free Speech Limitations

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A law is void for vagueness if persons of common intelligence cannot tell what speech is prohibited and what is permitted.

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Overbreadth in Free Speech Limitations

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A law is invalid as overbroad if it prohibits a substantial amount of speech that the government may not surpress.

Example: a ban on all "First Amendment activities" at LAX.

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Prior Restraints on Free Speech

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Prior restraints are generally licensing schemes or injunctions that prevent speech before it occurs, rather than punishing speech afterwards.

Licensing systems must have sufficiently definite standards to "cabin discretion," and require prompt judicial review of denials.

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What is "religion" for purposes of the First Amendment?

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Traditional religion as well as beliefs that play a role in the life of the believer similar to the role that religion plays in the lives of traditional adherents.

To decide religious claims, government (including courts) may inquire into the sincerity of religious beliefs, but not their truth.

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When is a law discriminatory for the purposes of free exercise?

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When the law is not neutral with respect to religion, or not generally applicable but targeted at religion generally or a religion in particular.

Example: ban on animal sacrifice except for hunting or in kosher facilities (targets Santeria)

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Free Exercise Test

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Laws which target religious beliefs are subject to strict scrutiny.

Neutral laws of general applicability are not subject to the Free Exercise Clause.

Exception: religious organizations are exempt from employment discrimination suits by their ministers.

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Establishment Clause Neutrality Test

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The government must remain neutral with respect to religion, neither favoring nor disfavoring it.

Example: a neutral government provides police protection to churches on the same basis as to the secular community.

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Establishment Clause Coercion Test

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The government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) religion.

Example: clergy invocation and benediction at middle school graduation is psychologically coercive by forcing children to conform with the prayer or risk ostracization of their peers.

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Establishment Clause Lemon Test

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1. The primary government purpose is secular

2. The action has a primary effect that neither advances nor inhibits religion, AND

3. The action does not produce excessive entanglement between government and religion.

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Establishment Clause Endorsement Test

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From the standpoint of a reasonable and informed observer, the government must not appear to endorse or disapprove of religion, making it seem relevant to a person's standing in the political community.

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Establishment Clause History and Tradition Test

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A state religious display or practice may be a tolerable acknowledgment of the role religion has playedin the history and tradition of the nation.

It helps if the display or practice has been around for a while or fits in a historical setting.

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Postal Monopoly

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Article I, Section 8, Clause 7 of the Constitution grants Congress the power to establish post offices and post roads. This power grants Congress a monopoly over the delivery of mail. No other system for delivering mail, public or private, can be established absent Congress's consent.

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Substantive Due Process

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Substantive due process tests the reasonableness of a statute; it prohibits arbitrary government action. When the government action limits a fundamental right, the test is strict scrutiny. When there is no fundamental right involved, the test is merely rational basis.

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The Constitutionality of Oaths

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The Supreme Court has upheld oaths requiring government employees to oppose violent overthrow of the government and to support the Constitution.

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When may a federal court hear a challenge to a state prosecution before the conclusion of the criminal case?

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Federal courts generally will abstain from enjoining pending state criminal proceedings. However, a federal court will hear an action to enjoin a pending state court prosecution if it is being conducted in bad faith (e.g., merely to harass the defendant).

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Congressional Investigations

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Congress's power to investigate is limited to matters on which it can legislate. Whether there is any current or planned legislation is irrelevant.

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Closure of Court Proceedings

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Trials and pretrial proceedings can be closed only if closure is necessary to preserve an overriding interest and the closure order is narrowly tailored to serve the overriding interest.

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Prima Facie Case for Race Discrimination

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The party challenging the law must show:

1. the racial classification appears in the law itself (facial discrimination), OR

2. the law was applied in a purposefully discriminatory manner, OR

3. the law was enacted or maintained for a discriminatory purpose

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Property Clause

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The Property Clause of Article IV, Section 3 of the Constitution gives Congress the power to "make all needful rules and regulations respecting the territory or other property belonging to the United States." This power permits Congress to acquire and dispose of property, and to protect its property through legislation.

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Supreme Court Original Jurisdiction

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The Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.

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Supreme Court Appellate Jurisdiction

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In all cases in which the Supreme Court does not have original jurisdiction, the Court has only appellate jurisdiction.

Congress has extensive powers to regulate and limit the Supreme Court's appellate jurisdiction.

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Taxation of Goods in Transit

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Goods moving in interstate commerce ("goods in transit") are totally exempt from taxation under the Commerce Clause. Interstate shipment usually ends when the goods reach their destination; thereafter, the goods are subject to local tax.

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State Taxes Affecting Interstate Commerce

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In order for a nondiscriminatory state tax which affects interstate commerce to be valid, there must be:

1. a substantial nexus between the activity/property taxed and the taxing state

2. fair apportionment based on the extent of the taxable property/activity in the state, AND

3. a fair relationship between the tax and the services/benefits provided by the state.

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Transaction Taxes

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A transaction tax is essentially a tax on the privilege of doing business in the state. This type of tax is constitutional if:

1. it does 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.

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Regulation of Foreign Commerce

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Regulation of foreign commerce is an exclusively federal power. The existence of state interests underlying state legislation will not justify state regulation of foreign commerce.

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Limited Public Forums

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Places controlled by the government that are not historically linked to speech activities, and places in which free speech might interfere with the intended use of such locations.

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Durational Residency Requirements

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When a state uses a durational residency requirement for dispensing benefits, the government must show that the requirement is tailored to promote a compelling interest because it interferes with an individual's fundamental right to migrate from state to state.

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Badges and Incidents of Slavery

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The Enabling Clause of the Thirteenth Amendment confers on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery.

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Taxing the Press

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Press and broadcasting companies can be subject to general business taxes, but a tax applicable only to the press or based on the content of a publication will not be upheld absent a compelling justification.

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Congress's Power to Investigation

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Congress's power to investigate is limited to those matters on which it can legislate.