Con Law Flashcards
1
Q
Justiciability requirement
A
Fed courts can only hear cases & controversies:
1) what the case is requesting?
Advisory opinions - opinions that lack an actual dispute between adverse parties or legally binding effect on the parties.
2) when is it brought?
Ripeness vs. mootness
Ripeness = fit for a judicial decision; and P would suffer hardship in the absence of review
Mootness = P must be suffering from an ongoing injury or case is moot.
*EXAM: look for facts indicating an activity would be hard to restart.
3) who is bringing it? Standing i. injury in fact (particularized [personal] injury + concrete [actual] injury) ii. causation iii. redressability
2
Q
Standing of organizations
A
Orgs may sue on behalf of members if (1) injury in fact to members; (2) injury = related to org’s purpose; AND (3) individual member participation in the suit is not required.
3
Q
Standing for free speech over breadth claims
A
Person has standing to bring a free speech claim alleging govt restricted substantially more speech than necessary even if that person’s own speech would not be protected under 1A.
[does not apply to commercial speech]
4
Q
Sovereign immunity and the 11A
A
SCOTUS held that doctrine of sovereign immunity reflected in 11A bars a private party’s suit against a state in federal and state courts.
Sov Immunity also bars claims against state and fed agencies.
EXCEPTIONS:
- States can be sued if they consent by waiver.
- Can sue local govts and entities
- States can sue other states
- Fed govt can sue states
- Bankruptcy - states lack sov immunity
- Can sue state officials for (1) actions to enjoin an officer from future conduct that violates the Con/fed law; and (2) actions for damages against an officer personally.
NOTE: Congress can remove a state’s immunity for actions created under the 14A power to prevent discrimination, but must be unmistakably clear that Congress intended to remove Sov Immunity.
5
Q
Political Qs will NOT be decided. See examples below.
A
Challenges based on Rep form of Govt clause of Art. IV;
Challenges to congressional procedures for ratifying con amendments;
The president’s conduct of foreign policy;
partisan legislative apportionment (gerrymandering).
6
Q
SCOTUS jx
A
Original - cases involving ambassadors; public ministers; consuls; and those in which a state is a party.
Appellate - will only hear case after there has been a FINAL judgment by the lower court in 1 of 2 ways:
- WRIT OF CERTIORARI (DISCRETIONARY)
–> cases from highest state court where constitutionality of a federal stat/treaty/state law is in issue; OR a state statute allegedly violates fed law;
–> all fed courts of appeals)
- APPEAL (RARE / MUST HEAR THESE!) - confined to grant/denial of injunctions.
NOTE: SCOTUS will not exercise jx if state court judgment is based on adequate and independent state grounds - even if fed issues are involved [if a state court decision rests on two grounds, one state and one federal, and if SCOTUS’ reversal of the fed law ground will not change the result in the case, then SCOTUS cannot hear the case.
7
Q
Congress can exercise any enumerated powers under Art I, Sec 8 of Con + any powers necessary and proper to carry out enumerated powers.
A
8
Q
Congress = no general police power BUT police power over DC, fed lands, military bases & indian reservations
A
9
Q
Necessary and Proper Clause
A
Standing alone, cannot support federal law. Must be in conjunction with another fed power.
10
Q
Tax and Spending Power
A
Tax and spend for gen welfare. May be for ANY PUBLIC PURPOSE not prohibited by the Con.
NOTE: non-spending regulations cannot be supported by the General Welfare clause.
11
Q
Spending Power conditions
A
Congress can impose conditions on money grants to state/local govts. Conditions valid if (1) clearly stated; (2) related to the purpose of the program; (3) not unduly coercive; and (4) don’t violate the Con.
12
Q
Taxes are generally valid
A
Most fed taxes will be upheld if they bear some reasonable relationship to revenue production or to promoting the general welfare.
13
Q
Commerce Power (CIA)
A
Congress has the power to regulate all foreign and interstate commerce, as well as commerce with indian tribes.
Fed law regulating commerce MUST:
- regulate channels of interstate commerce
- regulate instrumentalities of interstate commerce/persons and things in interstate commerce OR;
- regulate activities that have a substantial effect on interstate commerce.
14
Q
INTRAstate activity
A
when congress attempts to regulate intrastate commerce under the third prong, Court will uphold if rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.
15
Q
10A limitation on commerce regulation
A
Court has interpreted 10A to preclude congress from regulating NONECONOMIC intrastate activity in areas traditionally regulated by state or local govts
16
Q
Under the Commerce Clause, Congress may prohibit private discrimination in activities that might have a substantial effect on interstate commerce.
*IMPT civil rights tool
A
17
Q
Congress has exclusive postal power
A
18
Q
Congress has plenary power over aliens
A
Aliens have NO right to enter the US and may be refused entry based on their political beliefs. However, resident aliens must have notice and a hearing before they can be deported.
19
Q
Investigatory power
A
Congress has broad implied power to investigate to secure info for potential legislation or other official action. Investigation must be expressly/impliedly authorized by the appropriate congressional house.
+ subpoena of Presidential info: Congress can subpoena pres’ personal info -must advance a legitimate legislative purpose. Court will balance Congressional interests vs. Pres burdens
20
Q
Delegation of Leg Power
A
Leg power may be delegated as long as there is an intelligible standard and power is not uniquely confined to Congress.
21
Q
Bicameralism & Veto Power
A
To pass a law, Congress must use bicameralism (passage of the bill in both houses) + presentment to the president for signature/veto.
President does NOT have a line item veto - can only approve/reject bill as a whole.
Congress does NOT have a legislative veto (amending/repealing existing law without undergoing bicameralism & presentment).
22
Q
Speech or Debate Clause - Immunity for Fed Legislators
A
Conduct that occurs in the regular course of the fed leg process and the motivation behind that conduct are immune from prosecution.
BUT note: immunity does not cover bribes, speeches outside congress, or the publication in a press release or newsletter of a defamatory statement originally made in Congress.
23
Q
Presidential Domestic Power
A
If Pres acts with express/implied authority of congress, max authority and actions likely valid.
If Pres acts where Congress is silent, constitutionality of action is uncertain and Court will consider circumstances/relevant history. Unlikely to be upheld if usurps other branch’s power.
If Pres acts against express will of Congress and Congress had authority to act, action likely invalid.
24
Q
Pres appointment power
A
Can appoint ambassadors, SCOTUS justices, other US officers whose appointments are not otherwise provided for in the Con with advice/consent of Senate.
25
Congress may NOT appoint members of a body with admin or enforcement powers.
26
Pres pardons
May grant pardons for all FEDERAL offenses, but not for impeachment or civil contempt.
27
Pres veto
If Pres vetos, may still become law if gets 2/3 vote of each house.
Pres must act w/in 10 days if exercising veto power. If fails to timely act, Bill auto vetoed if Congress is not in session. If Congress is in session, bill becomes law.
28
Pres as Comm in Chief
Can act militarily in actual hostilities against US without congressional dec of war to protect Am lives and property. However, Congress may limit pres.
Challenges to Pres' conduct as CIC are likely to be viewed as nonjusticiable political questions.
29
Pres power to make treaties
Pres has power to enter treaties with 2/3 consent of senate.
Treaties are "supreme law of the land" if they are self-executing. State laws that conflict are invalid.
Conflict with Fed Law: last in time prevails.
Conflict with Con: Treaties are INFERIOR to the Con.
30
Exec Agreements
Signed by Pres/head of foreign state. Can be used for any purpose that treaties can be used for. DO NOT REQUIRE SENATE APPROVAL.
Conflict w state law: agreement prevails.
Conflict w fed law: fed law prevails.
31
Executive Privilege
Pres has priv to keep certain presidential communications secret so that the Pres can receive candid advice and protect national security.
EXCEPTION: presidential communiques will be available to the pros where a need for such information is demonstrated. Pres is subject to state criminal subpoena of the President's personal records.
32
Impeachment
Pres, VP and all civil officers subject to impeachment.
| Requires majority of the house and 2/3 senate.
33
Federalism - 10A
Under the 10A, all powers not granted to the fed govt or prohibited to the states are reserved to the states and the people.
States have gen police power to regulate health, safety, welfare of their people. Upheld under rational scrutiny UNLESS burden fund right or suspect/quasi sus class.
34
Federal Taxation and Reg of State/Local govts
Congress can subject state and local govt activities to regulation/taxation if the law or tax applies to BOTH public and private sectors.
However, 10A limits Congress's power to regulate the states alone by requiring the states to act in a particular way (Congress cannot commandeer the states to enact state laws or enforce federal ones).
35
State taxation and regulation of fed govt
state may not directly tax fed instrumentalities without the consent of congress. However, nondiscriminatory indirect taxes are permissible if they do not unreasonably burden the fed govt.
36
Field preemption
a valid fed law may impliedly occupy the entire field, thus barring any state/local law even if the state or local law is nonconflicting.
37
Privs and Immunities Clauses - ART IV - Privs of state citz
Art 4 interstate privs and immunities clause prohibits discrimination by a state against nonresidents when the discrimination concerns either *important commercial activities* or *fundamental rights.* BUT applies only if discrimination is intentionally protectionist.
Invalid unless the law is necessary to achieve an important govt purpose and there are no less restrictive means available.
NOTE: corporations and aliens are NOT protected by this clause (protected by 14A DP and Equal Protection)
38
14A - Privs of National Citizenship
States may not deny their citz the privs or immunities of national citz. Corporations are not protected by this Clause.
39
Regulation of Interstate Commerce
When Congress regs interstate commerce, conflicting state laws are superseded and even nonconflicting state or local laws in the same field may be preempted.
If Congress has not enacted laws re. the subject, a state or local govt may regulate local aspects of interstate commerce. To do so, the state or local govt must NOT discriminate against or unduly burden interstate commerce. If it does, the reg will violate the commerce clause.
- Re. Discriminatory Regulations: almost always invalid, but MAY be valid if it is necessary to achieve an important, non economic state interest and no reasonable nondiscrim. alternatives
- Re. NonDiscrim Regulations: valid UNLESS burden on interstate commerce outweighs the promotion of the legit local interest.
NOTE: diff standards apply for state control of corporations - state interest in governing corps created in their states.
EXCEPTIONS!
- Congressional Approval - Congress may permit/prohibit state regs that otherwise violate/be upheld under the Dormant Commerce Clause.
- State as market participant - state or local govt may prefer its own citz receiving state benefits/dealing with govt owned businesses. HOWEVER, once a state sells state owned resources, it cannot control what happens after that.
40
EXAM! Fact patterns involving state reg affecting interstate commerce:
Does Q refer to fed leg that might: (1) supersede the state reg or preempt the field; OR (2) authorize state reg otherwise impermissible?
If neither is dispositive, does the state reg discriminate against interstate/out of state commerce or place an undue burden on interstate commerce?
If discriminatory, invalid unless:
- it furthers an important, noneconomic state interest AND there are no reasonable nondiscriminatory alternatives OR
- the state is a market participant
If non-discriminatory but burdens interstate commerce, invalid if the burden on commerce outweighs the state's interest.
41
Other than 13A, Con regulates only STATE ACTION + con is the floor. States are free to go beyond.
42
Bill of Rights
First 10 amendments - limit federal power. 14A DP clause applies almost all provisions of the bill of rights to the states.
EXCEPTIONS: 5A prohibition of criminal trials without a grand jury indictment; AND 7A right to a jury trial in civil cases.
43
13A
Prohibits slavery and involuntary servitude (compulsion of labor through the use of threat or legal coercion).
13A Enforcement Clause: Congress can prohibit racially discriminatory action by ANYONE.
44
14A & 15A
14A: prevents states from depriving anyone of life, liberty, property without DP.
15A: prevents both fed/state govts from denying a citz the right to vote based on race/color.
45
14A, Sec. 5
Gives Congress power to adopt "appropriate legislation" to enforce the rights/guarantees of the 14A. Prevents Congress from expanding existing Con rights/creating new ones, but may prevent/remedy violations of law already recognized by courts.
To be valid law, Congress must point to a history or pattern of state violation of such rights/adopt legislation that is congruent and proportional to solving the identified violation.
46
Rights of National Citz protected under 14A privs and immunities clause
47
State Action Requirement
Con generally applies only to govt action, to show a constitutional violation "state action" must be involved.
NOTE: state action can be found in actions of seemingly private individuals who:
- Perform exclusive public functions, or
- Have significant state involvement
48
Exclusive public functions
Activities that are so traditionally the exclusive prerogative of the state are state action no matter who preforms them.
49
Significant state involvement - facilitating private action
State action also exists wherever a state affirmative facilitates, encourages, or authorizes acts of discrimination by its citizens, or where there is sufficient entwinement between the state and private party.
50
Rational Basis Review
Regulations that do not affect fundamental rights or involve suspect or quasi suspect classifications -- rational basis review
Law is upheld if it is rationally related to a legitimate govt purpose
Usually valid - unless it is arbitrary or irrational
Burden of proof: person challenging the law
Applies to non suspect/quasi suspect classes: age, poverty, disability.
51
Intermediate scrutiny
Regs involving quasi-suspect classifications; gender & legitimacy
Law upheld if it is substantially related to an important govt purpose.
Burden of proof: unclear - usually courts place burden on govt.
52
Strict scrutiny
Regulations affecting fund rights (vote, travel, 1A) or sus classifications (race, national origin, and alienage) are reviewed under the strict scrutiny standard:
- Law upheld if it is necessary to achieve a compelling govt purpose
Burden of proof: govt has burden of proof under strict scrutiny.
Choices may not name the standard but merely state it.
53
Procedural Due Process
DP clause of 5A and 14A provide that a person has a right to a fair process when the govt deprives when the govt deprives the person of life/liberty/or property.
Govt negligence is insufficient to state a PDP claim - must be intentional or reckless govt action.
54
Life/Liberty/Property being taken?
Liberty - a deprivation occurs if a person loses significant freedom of action or is denied a freedom provided by the Con of a statute. NOTE: injury to reputation itself is not a deprivation of liberty or property.
Property - includes not only personal or real property, but also govt benefits to which there is an *entitlement* [reasonable expectation of continued receipt]
55
Required PDP Process:
PDP requires:
1) notice
2) an opportunity to be heard; AND
3) a neutral decision maker
Notice - reasonably calculated to inform person of deprivation
Hearing - type and extent of the hearing are determined by a balancing test that weighs: the importance of the interest to the individual and the value of specific procedural safeguards to that interest against the government interest in fiscal/admin efficiencyTypically, claimant should be given a pre-deprivation hearing, unless impracticable.
Neutral decision-maker - cannot have any actual bias or a serious risk of actual bias.
56
DP rights subject to waiver if voluntary and intelligent.
57
Substantive DP guarantees that laws will be reasonable and not arbitrary, both re. enumerated rights (freedom of speech) and unenumerated rights (privacy).
Standards: when a fundamental right is limited, the law or action is evaluated under the strict scrutiny standard. In all other cases, the rational basis standard generally applies.
Fundamental rights include:
- all 1A rights
- the right to interstate travel
- privacy-related rights
- voting
58
Relationship between SDP and Equal protection:
Substantive DP - if a law limits liberty of ALL persons to engage in some activity, usually DP Q on MBE
Equal Protection - if law treats a PERSON OR CLASS OF PERSONS differently from others, usually EPQ.
- NOTE: EPQ claim can be brought not only for discrimination against a group, but also for arbitrary treatment against an individual. [SCOTUS: not for use by at-will govt employees]
59
Privacy related rights
Fund rights: Marriage, procreation, contraception, childrearing [strict scrutiny]
Marriage:
- Ban on interracial marriage
- Same sex marriage
- Special test in prisoners' rights cases: restriction on right of prison inmates to marry will be upheld if reasonably related to legitimate penological interests
Procreation: fund right to reproduce that cannot be limited by the state
Contraception: state cannot prohibit the distribution of nonmusical contraceptives to adults or minors
Rights of parents: includes companionship, care, custody, and upbringing of children
Keeping extended family together: applies to family only. Not to unrelated people.
Obscene reading material: freedom to read obscene material in one's home, but not the right to sell, purchase, or transport such material.
NO Privacy Right: state may reasonably gather and distribute info about its citz (state may collect names/addys of patients to whom dangerous drugs are prescribed).
60
Right to travel
Interstate travel: individual has fund right to travel state to state; and to be treated equally after moving to a new state.
NOTE: not every restriction on the right to cross state lines is an impairment of the right to travel.
61
Right to equal treatment in a new state:
Invalid - 1 year residency to receive full welfare benefits
invalid - 1 year residency to receive state-subsidized medical care
invalid - 1 year residency to vote in state
valid - 30 day residency to vote in state
valid - 1 yr residency to get divorced
62
Right to vote - fund right
Restrictions are invalid unless they can pass strict scrutiny
Residency restrictions: reasonable time periods for residency are valid
ID: state may require voters to show a govt issued ID
Property ownership: usually invalid - except for special purpose elections
Poll taxes: unconstitutional
Dilution of right to vote:
- one person, one vote: applies whenever any level of govt decides to select representatives to govt body by popular election from individual districts
- For state/local elections, populations of voting districts must be substantially equal
- For congressional elections, states must use almost exact mathematical equality when creating congressional districts within the state. This isn't true of Congress, however, when it apportions representatives among the states.
63
Gerrymandering*
Race (and presumably other suspect classifications) cannot be the predominant factor in drawing the boundaries of voting districts unless the district plan can satisfy strict scrutiny.
*Non-justiciable political question
64
Unspecified Rights
- Intimate sexual conduct - no legit state interest in criminalizing sex between consenting adults
- Right to refuse medical treatment - right of a mentally competent adult to refuse medical treatment is a part of an individual's "liberty" under the 5A and 14A DP clause [SCOTUS has not said this is a FUND right]
- Right to assisted suicide (no fund right to assisted suicide)
- States can compel vaccination against contagious diseases
- Right to bear arms - 2A keep bear arms
- Fair notice - laws that regulate people or entities must give fair notice of conduct that is forbidden or required
65
Equal protection
Arises whenever the govt treats people differently from others. Limited to state action.
Two EP guarantees: 14A (states) and DP clause of 5A
Applicable standards:
1) - if a fund right or sus class is involved, strict scrutiny.
2) - if a quasi sus class, intermediate scrutiny.
3) - if neither, rational basis.
For 1 and 2, there must be INTENT on govt to discriminate. Shown by:
Law that is discriminatory on its face;
Discriminatory application of a facially neutral law; or
Facially neutral law with a disparate impact on a protected class of people (minorities)
66
Sus classes
- Race and National Origin
NOTE: diversity in higher edu - colleges may use race as a factor for evaluating applicants; may not do so at the primary/secondary school level.
- Alienage classifications
Federal classifications - subject to rational basis
State/local classifications - subject to strict scrutiny (except for self govt process)
67
quasi sus class
Gender (most gender classifications are struck down)
- invalid: gender based death benefits
- invalid: gender based peremptory strikes
- invalid: alimony for women only
- invalid: discriminatory min. drinking age
- valid: all-male draft
- valid: required American fathers to prove parentage of non marital children born abroad in order to obtain US citz for them
Legitimacy - must be substantially related to important govt purpose
68
ANIMUS is not rational.
69
Taking clause
5A provides that private property may only be taken for public use; and the govt must pay just compensation. Applicable to the states via the 14A.
- Taking found if: confiscation of property; permanent/regular phys occupation of a person's property by the govt.
- Taking less likely if: emergency; development exception
Use restrictions:
- TAKING: Denial of all economic value of land: denies a landowner of all economically viable use of their land; amounts to a taking unless principles of nuisance of property law make the use profitable. [NOTE: temporary takings are not per se takings]
- BALANCING TEST: decreasing economic value: factors (1) govt interests being promoted; (2) diminution in value to the owner; and (3) whether the regulation substantially interferes with district/investment backed expectations of the owner
PUBLIC USE limitation = broad. (rational basis).
JUST COMP - fair market value at the time of taking.
70
Contract Clause
Limits ability of state and local govts to enact laws that retroactively impair K rights.
- Private K = intermediate scrutiny
- Public K = heightened scrutiny
71
Ex post facto laws
Neither states/fed can pass laws that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for a past activity.
72
Bills of attainder
legislative acts that inflict punishment on individuals without a judicial trial.
Prohibited: states/fed
73
Definition of speech
Includes words, symbols and expressive conduct (any kind of conduct that is either inherently expressive or conduct that is intended to convey a message and reasonably likely to be perceived as conveying a message).
74
Unprotected speech: incitement
Can be censored if (1) intended to produce imminent lawless action; and (2) likely to produce such action
75
Unprotected speech: fighting words
Defined as personally abusive words that are likely to incite immediate physical retaliation in an average person. Merely annoying words won't do.
- True threats: words intended to convey to someone a serious threat of bodily harm
- Statutes can't be viewpoint based: SCOTUS won't allow fighting words statutes that are designed to punish only certain viewpoints
76
Unprotected speech: obscenity
Speech is obscene if it describes or depicts sexual conduct, specified by statute that, taken as a whole by the average person:
- Appeals to the prurient interest in sex using a contemporary community standard
- is patently offensive under contemporary community standards AND
- lacks serious value using a national reasonable person standard
Mere nudity, soft-core porn, and dirty words are not obscene.
- Diff standards for minors ok
- Private possession of obscene material in home ok
- Land use regs: may limit the location/size of adult entertainment establishments if designed to reduce secondary effects of such businesses; cannot ban altogether.
77
Some commercial speech
Commercial speech is not protected if it is (1) false, (2) misleading, or (3) about illegal products or services. Any other regulation of commercial speech will be upheld only if it:
- services a substantial government interest
- directly advanced that interest, and
- is narrowly tailored to serve that interest (reasonable fit between the goal and the means chosen)
78
General speech restrictions
Speech and assembly regulations can generally be categorized as either content-based and content-neutral.
Content-based speech restrictions = strict scrutiny/presumptively unconstitutional.
Def: if it restricts speech based on the subject matter or viewpoint of the speech.
Content-neutral speech = intermediate scrutiny.
Def: restrictions that are both subject matter neutral and viewpoint neutral.
Time, place, and manner restrictions (conduct related to speech).
79
1A freedoms: freedom of speech, freedom of the press, freedom of assembly, freedom of religion and the establishment clause
80
Speech restrictions on government property
The extent to which the govt may regulate speech or expressive conduct on govt property depends whether the property involved is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.
81
Traditional public forums
Public property that has historically been open to speech-related activities is called a public forum - e.g., streets, sidewalks, and public parks.
Level of scrutiny: strict scrutiny if content based
Level of scrutiny: intermediate if content neutral (narrowly tailored to serve an important govt interest and leave open alt. channels of communication)
82
Designated public forums
Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy - e.g., a town hall open for use by social, civil, or recreational groups.
Level of scrutiny: strict scrutiny if content based
Level of scrutiny: intermediate if content neutral (narrowly tailored to serve an important govt interest and leave open alt. channels of communication)
83
Limited public forums
Limited public forums are govt forums not historically open generally for speech and assembly but opened for specific speech activity - e.g., school gym opened to host a debate on a particular community issue, or a public university's funding of student publications
84
Nonpublic forums
Govt property not historically open generally for speech and assembly and not held open for specific speech activities - e.g., military bases or govt workplaces. The govt can regulate speech in such forums to reserve the forum for its intended use.
Here, regs are valid if:
- viewpoint neutral and
- reasonably related to a legit govt purpose
If the reg is viewpoint based, it will be subject to strict scrutiny
85
Speech restrictions in public school
Generally, public primary and secondary schools and school-sponsored activities in those schools are not public schools.
Student speech on campus -cannot be censored absent evidence of substantial disruption (except for speech promoting drug use)
Student speech off campus - schools limited to censoring speech re. cheating, bullying, threats, and other speech where pedagogical or safety interests clearly outweigh the speech interests of students as private citz.
School speech - restrictions on speech related to school's teaching must be reasonably related to legit pedagogical concerns.
86
Speech in public employment
Unprotected employee speech - if it involves private concerns at work, employer can punish employee if the speech was disruptive of the work environment; may also punish whenever the speech is made on the job pursuant to employee's official duties, even if it's on a matter of public concern.
Protected employee speech:
- if on a matter of public concern, but is not made pursuant to official duties, the courts will use a balancing test. TEST: Courts must balance the value of the speech vs. the govt's interest in the efficient operation of the workplace.
- If private concern, test is unclear but appears protected absent a detrimental effect on the workplace.
Participation in political campaigns: fed govt may prohibit federal exec branch employees from taking an active party in political campaigns.
Loyalty oaths: govt can require employees to take loyalty oaths, as long as the oaths aren't over broad or vague. An oath requiring public employees to support the Con and to oppose the unlawful overthrow of the govt is valid; but an oath requiring public employees to support the flag is invalid.
Disclosure of associations: it can only inquire into those activities that are relevant to the employment or benefit sought.
87
Overbreadth; vagueness; and prior restraints
Void for vagueness doctrine: if a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the DP clause - i.e., loitering for no purpose
Overbroad regulation invalid: invalidated as over broad if it punishes substantially more speech than is necessary; facially overbroad.
Prior restraints - court orders or admin systems that prevent speech before it occurs, rather than punish it after. Not favored/rarely allowed. Ask whether there is some special societal harm that justifies the restraint.
88
Prior restraint safeguards
- standards must be narrowly drawn, reasonable, and definite;
- injunction must be promptly be sought; and
- there must be prompt and final judicial determination of the validity of the restraint
89
Officials cannot have broad discretion over speech issues; there must be DEFINED STANDARDS for applying the law.
If a statute gives licensing officials unbridled discretion, it is void on its face and speakers don't even need to apply for a permit.
Obscenity cases:
- seizure of books and films
- movie censorship
- burden of govt: govt must prove restriction is narrowly tailored to achieve a compelling interest or that the speech is unprotected
90
Freedom of the press
No greater 1A freedom than does a private citz
- generally, press has a right to publish truthful info re. a matter of public concern
- 1A guarantees public/press a right to attend criminal (and likely civil) trials but the right may be outweighed by an overriding interest stated in judge's findings
91
Govt speech = free speech clause does not apply to govt speech; generally, govt funding of speech upheld if rationally related to a legit state interest.
BUT freedom to speak includes freedom not to speak. The govt generally cannot require people to salute the flag or display other messages with which they disagree.
92
Electoral Process/Speech
Laws regulating elections may impact 1A freedoms of speech, assembly, and association.
Balancing test for valid regulation: if restriction on 1A activity is severe, it must be narrowly tailored to achieve a compelling govt interest, but if reasonable: will generally be upheld.
93
Limits on electoral contributions
Statutes limiting electoral contributions are subject to intermediate scrutiny.
To prevent corruption, laws may limit the amount of money that a person, group, or corporate can contribute to a political candidate. But the govt may NOT limit the amount of money that may be spent to support/oppose a ballot referendum.
NOTE: govt cannot limit the aggregate amount a person/entity contributes to political candidates/committees during an election, even though it can limit the amount given to a single candidate (restricts participation in the democratic process).
94
Free exercise clause
Prohibits govt from punishing someone on the basis of their religious beliefs/related religious status or conduct.
95
What is a religious belief for the purpose of the free exercise clause?
Beliefs of traditional religions + those that play a role in the life of believers similar to the role that religion plays in the life of traditional adherents.
NOTE: courts can question the SINCERITY of one's belief, not the truthfulness of the belief.
96
Free exercise clause: discriminatory laws subject to strict scrutiny
A law or other govt conduct that discriminates on the basis of religion is subject to strict scrutiny. A law is discriminate if it is either:
1) not facially neutral with respect to religious belief, conduct, or status; or
2) not generally applicable but instead targets religion generally or a religion in particular.
NOTE: if it is a neutral law of general applicability, not subject to free exercise clause. Laws that give govt officials discretion to grant exceptions from the law are not generally applicable.
97
Establishment clause
Compels the govt to pursue a course of neutrality toward religion.
98
Establishment Clause - LEMON test
Under the Lemon Test, govt action will violate the establishment clause unless the action:
(PEE)
p - has a secular purpose
e - has a primary effect that neither advances/inhibits religion
e - does not produce excessive entanglement with religion
Alt. approaches: whether govt action is neutral or coercive with respect to religion, whether it endorses religion, or whether the action is justified by history and tradition.
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Establishment Clause - Types of Cases
(1) cases preferring one religious sect over others;
(2) a limited group of cases unconnected to financial aid or education;
(3) cases involving financial aid to religiously affiliated institutions;
(4) cases concerning religious activities in public schools.
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Cases involving financial benefits to religious institutions
SCOTUS applies LEMON test with greater strictness when govt fin aid is going to a religiously affiliated grade/high school than it does when the aid is going to another type of religious institution.
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Religious activities in public schools
school-SPONSORED religious activity is invalid; but school accommodation of religious may be valid.
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Executive Immunity:
Pres has absolute immunity from civil damages based on any action taken while exercising official responsibilities, but no immunity for acts before taking office. If presidential aides exercised discretionary authority in a sensitive area, they share that immunity.
