Con Law

Question 1

Justiciability Doctrines

Answer 1

Standing
Ripeness
Mootness
No political Questions

Question 2

Standing

Answer 2

I. Injury
II. Causation and Redressability
III. No 3P Standing
IV. No generalized grievances

Question 3

Standing: Injury

Answer 3

Only personally suffered
Likelihood of future harm for injunctive or declaratory relief
Note: “best standing” will usually end up personal economic loss on the bar

Question 4

Standing: Causation and Redressability

Answer 4

Likely to remedy injury, favorable ruling would remedy issue suffered

Question 5

Standing: No third party standing

Answer 5

A plaintiff cannot assert claims of others, of third parties, who are not before the court.

i. Exception: third party standing is allowed if there is a close relationship between the plaintiff and the injured third party
ii. Exception: third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights
iii. Exception: an organization may sue for its members, if
the members would have standing to sue;
the interests are germane to the organization’s purpose;
neither the claim nor relief requires participation of individual members

Question 6

Standing: No generalized grievances

Answer 6

The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law.

Exception: taxpayers have standing to challenge government expenditures pursuant to federal (or state and local) statutes as violating the Establishment Clause

Question 7

Ripeness

Answer 7

Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.

Tip: Ripeness always comes up in a request for declaratory judgment
Pre enforcement:

The hardship that will be suffered without pre-enforcement review and
fitness of the record (Court has all it needs to resolve the issue)

Question 8

Mootness

Answer 8

If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed as moot.

Exceptions
Wrong capable of repetition but evading review
Voluntary cessation. If the defendant voluntarily halts the offending conduct, but is free to resume it at any time, the case will not be dismissed as moot.
Class Actions, so long as one member of the class has an ongoing injury

Question 9

No Political Questions

Answer 9

Examples:
Republican form of government clause, always means nonjusticiable political question
Challenges to the President’s conduct of foreign policy
Challenges to the impeachment and removal process
Challenges to partisan gerrymandering

Question 10

Writ of Certiorari

Answer 10

a. All cases from state courts come to the Supreme Court by writ of certiorari

b. All cases from United States courts of appeals come to the Supreme Court by writ of certiorari

c. Appeals exist for decisions of three-judge federal district courts
Note terminology. Supreme Court is obligated to take.
Tip: Three-judge federal district court on federal statute, and appeal requested, then Supreme Court required to hear the case

d. The Supreme Court has original and exclusive jurisdiction for suits between state governments

Question 11

Final Judgment Rule

Answer 11

SCOTUS can hear a case only after a final judgment
Generally no interlocutory review

Question 12

Independent and Adequate State Grounds

Answer 12

No SCOTUS review if decision is supported by independent and adequate state grounds

If a state court decision rests on two grounds, one state law and one federal law, if the Supreme Court’s reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it.

State law gets last word on state law issues

Question 13

The principle of sovereign immunity

Answer 13

i) The Eleventh Amendment bars suits against states in federal court
ii) Sovereign immunity bars suits against states in state courts or federal agencies

Question 14

The principle of sovereign immunity: Exceptions

Answer 14

Explicit Waiver (consent, no implied)

States may be sued pursuant to federal laws adopted under section 5 of the Fourteenth Amendment.

Congress cannot authorize suits against states under other constitutional provisions.
The federal government may sue state governments.

“Plan of the Convention”
Bankruptcy proceedings
power to raise and army and a navy.

Suits against state officers generally allowed (governor, ag)
state officers may be sued for injunctive relief
state officers may be sued for money damages to be paid out of their own pockets
state officers may not be sued if it is the state treasury that will be paying retroactive damages
If officer is personally liable, the suit can go forward even if the state’s going to indemnify
—BUT if treasury legally liable, won’t go forward

Question 15

Abstention

Answer 15

Federal court has jdx but declines
Federal courts cannot enjoin pending state court proceedings

Question 16

Congress’ Authority to Act

Answer 16

1. There must be express or implied Congressional power
2. The necessary and proper clause
3. The taxing/spending power and the commerce power
4. The Tenth Amendment as a limit on Congressional powers.
5. Section 5 of the 14th Amendment

Question 17

Congress’ Authority to Act: There must be express or implied Congressional power

Answer 17

No federal police power
Except:
Military
Indian tribes/lands
Federal lands or territories
D.C.

Question 18

Congress’ Authority to Act: The taxing/spending power and the commerce power

Answer 18

a. Congress may tax and spend for the general welfare
b. The Commerce Power
i) Congress may regulate the channels of interstate commerce
ii) Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
iii) Congress may regulate economic activities that have a substantial effect on interstate commerce.
(In the area of non-economic activity, a substantial effect cannot be based on cumulative impact.)

Also, five justices have said that Congress cannot regulate inactivity.

Question 19

Congress’ Authority to Act: The Tenth Amendment as a limit on Congressional powers

Answer 19

The Tenth Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.

Anti-Commandeering Principle: Congress cannot compel state regulatory or legislative action.

Exception:
Congress can induce state government action by putting strings on grants, so long as
i. the conditions are expressly stated and
ii. relate to the purpose of the spending program
iii. cannot be unduly coercive.

Congress may prohibit harmful commercial activity by state governments.

Question 20

Congress’ Authority to Act: Section 5 of the 14th Amendment

Answer 20

Congress may legislate to enforce 14th amendment
Can’t create new rights or expand the scope of rights
Laws must be narrowly tailored: Proportional and congruent to wrongs

Question 21

Delegation of Powers

Answer 21

No constitutional limit on delegation

Major questions need clear direction from Congress

Violation invalidates agency action (doesn’t invalidate statute)

Legislative vetos and line-item vetos are unconstitutional.

Congress may not delegate executive power to itself or its officers.

Question 22

Legislative Veto

Answer 22

Must be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President to sign or veto). The President must sign or veto the bill in its entirety.

Without these two it’s a Legislative veto = unconstitutional

Question 23

Line-item veto

Answer 23

President attempts to veto part of the bill = unconstitutional

Question 24

Treaties

Answer 24

Treaties are agreements between the United States and a foreign country that President negotiates, Senate ratifies
State laws that conflict with treaties are invalid

Treaty vs Federal Law
Last-in-time rule decides which controls
Cannot violate Constitution

Question 25

Executive Agreements

Answer 25

An executive agreement is an agreement between the United States and a foreign country that is effective when signed by the President and the head of the foreign nation. No Senate ratification required Executive agreements can be used for any purpose. Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution. Recognition power It is unconstitutional for Congress by statute to designate the capital of a foreign country. The President has broad discretion in determining whether to admit individuals to the United States. The President has broad powers as Commander-in-Chief to use American troops in foreign countries.

Question 26

Appointment Power

Answer 26

President appoints ambassadors, federal judges, and officers of the US ---Senate must confirm appointments Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts ---Inferior is one who is not head honcho I think Congress may not give itself or its officers the appointment power ---Look for new federal agency and granted own appt power The President may not make recess appointments during intrasession recesses that are less than 10 days

Question 27

Removal Power

Answer 27

Unless removal is limited by statute, the President may fire any executive branch officer. For Congress to limit removal, i. it must be an office where independence from the President is desirable and ii. Congress cannot prohibit removal, it can limit removal to where there is good cause and iii. it cannot be a single person who heads an agency and exercises substantial discretion Can limit removal for multi-member body

Question 28

Impeachment and removal

Answer 28

The President, the Vice President, federal judges and officers of the United States can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors Impeachment does not remove a person from office Impeachment by the House of Representatives requires a majority vote; conviction in the Senate requires a 2/3 vote

Question 29

Presidential Immunities and privileges: Civil Lawsuits

Answer 29

The President has absolute immunity to civil suits for money damages for any actions while in office. Exception: the President does not have immunity for actions that occurred prior to taking office

Question 30

Presidential Immunities and privileges: Papers and Conversations

Answer 30

The President has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interests

Question 31

Presidential Immunities and privileges: Financial Records

Answer 31

The President has no immunity to keep his financial records from being subpoenaed by a state grand jury, Exception: if the financial records are subpoenaed by a congressional committee, the court must balance the competing interests

Question 32

Pardon Power

Answer 32

The President has the power to pardon those accused or convicted of federal crimes Not state law crimes Criminal liability only not civil liability

Question 33

Express Preemption

Answer 33

Federal statute expressly says federal law is exclusive in a field Anytime Congress has authority, can say it’s preempted

Question 34

Implied Preemption

Answer 34

Even if statute silent on preemption, still can be found if: Laws are mutually exclusive Can go stricter than federal government unless restricted (ie pollution laws on private actors) State law impedes a federal objective If Congress evidences a clear intent to preempt state law, federal law preempts state law Ie. immigration law

Question 35

Preemption: Inter-governmental immunities

Answer 35

States may not tax or regulate federal government activity “Power to tax is the power to destroy” Unconstitutional to pay state tax out of the federal treasury State can’t regulate government if it puts a substantial burden on federal activity Ie. can’t apply pollution control laws to fed gov

Question 36

Dormant Commerce Clause

Answer 36

State or local law is unconstitutional if it places an undue burden on interstate commerce Look to actor to see difference between DCC and CC (congress act = CC) Also known as Negative Implications of the Commerce Clause

Question 37

Privileges and Immunities Clause of Article IV

Answer 37

Limits states’ ability to discriminate against out-of-staters with regard to privilege and immunities of citizenship Only applies to states discriminating against out of staters

Question 38

Privileges and Immunities Clause of the 14th Amendment

Answer 38

Limited to right to travel Ie. welfare reduction to mover law unconstitutional

Question 39

Out-of-Staters Approach: Burdens on commerce

Answer 39

No: P&I doesn’t apply Violates DCC if it burdens interstate commerce and burdens exceed benefits Yes: Violates DCC unless necessary to achieve compelling gov purpose No less discriminatory means would suffice Exceptions: Congressional approval Market participant Ie. university restricts Supports residents who have long been paying taxes to support program Government owned businesses can discriminate

Question 40

Out-of-Staters Approach: Earn a livelihood

Answer 40

Law violates P&I IV unless necessary to achieve an important government purpose P&I IV only applies to discrimination against out of staters Involves fundamental rights or important economic activity Remember, usually to earn a living not a hobby Plaintiffs cannot be corporations or aliens If corporation, only use DCC in answer

Question 41

State Taxation of Interstate Commerce

Answer 41

States can’t use tax systems to favor in-state businesses Need substantial nexus to state to tax it Physical presence not required State taxation of interstate businesses must be fairly apportioned

Question 42

Congress' authority to regulate private action

Answer 42

The Thirteenth Amendment can be used to prohibit private race discrimination ----Congress can eradicate the badges and incidents of slavery ----Note, 13th doesn’t prohibit race discrimination but allows Congress to adopt laws which prohibit private race discrimination The commerce power can be used to apply constitutional norms to private conduct ----Ollie’s BBQ case, most of its supplies came across state lines ----And all restaurants as a whole, discrimination has substantial economic affect Congress cannot use section 5 of the Fourteenth Amendment to regulate private behavior ----Incorporation doctrine ----Applies only to state and local governments, not private conduct

Question 43

The public function exception

Answer 43

situations where private conduct must comply with the Constitution The Constitution applies if a private entity is performing a task traditionally exclusively done by the government. Ex. primaries for elections; company town allowing free speech Narrow exception, ex. Private utilities not applicable

Question 44

The entanglement exception

Answer 44

The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity. Key examples: i) Courts cannot enforce racially restrictive covenants. ii) There is state action when the government leases premises to a restaurant that racially discriminates. iii) There is state action when a state provides books to schools that racially discriminate. iv) There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech. Differentiate from iii with encouragement Government subsidy is not enough by itself for state action v) There is no state action when the NCAA orders the suspension of a basketball coach at a state university. vi) There is state action when a private entity regulates interscholastic sports within a state. vii) There is not state action when a private club with a liquor license from the state racially discriminates

Question 45

Application of the Bill of Rights

Answer 45

1. The Bill of Rights applies directly only to the federal government 2. The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment. Except: a. The Third Amendment right to not have a soldier quartered in a person’s home. b. The Fifth Amendment right to grand jury indictment in criminal cases. c. The Seventh Amendment right to jury trial in civil cases

Question 46

Rational Basis Test

Answer 46

Constitutional if rationally related to a legitimate government purpose Any conceivable legitimate purpose Government usually wins Burden of proof on challenger

Question 47

Intermediate Scrutiny

Answer 47

Substantially related to an important government purpose Looks at actual purpose Means used must be good way but doesn’t have to be best Burden of proof on government

Question 48

Strict Scrutiny

Answer 48

Necessary to achieve a compelling government purpose Looks at actual purpose Must be least restrictive means Burden of proof on government

Question 49

Procedural Due Process Definition

Answer 49

Did the government follow adequate procedures when it took life, liberty or property? What kind of notice, hearing, etc.

Question 50

Substantive Due Process Definition

Answer 50

Did the gov have an adequate reason for taking life, liberty, or property? Depends on level of scrutiny Usually protects economic liberties or privacy

Question 51

Equal Protection Definition

Answer 51

Does gov have adequate reason for differences in treatment of people? Type of discrimination and level of scrutiny

Question 52

Procedural Due Process: Deprivation of life liberty or property: Loss of significant, legally protected freedom

Answer 52

Except in emergency situations, before adult institutionalized must be notice and hearing Parent institutionalizing child only must be screening by neutral fact finder Harm to reputation itself is not a loss of liberty Prisoners rarely have liberty interest

Question 53

Procedural Due Process: Deprivation of life liberty or property: Property

Answer 53

Entitlement not fulfilled Entitlement: reasonable expectation of continued receipt of a benefit Ex. employment for a year but fired early

Question 54

Procedural Due Process: Deprivation of life liberty or property: Negligence insufficient

Answer 54

Must be intentional or reckless In emergency circumstances: conduct shocks the conscience Killed teenage boy, not reckless

Question 55

Procedural Due Process: Deprivation of life liberty or property: Doesn’t include failure to protect from private wrong

Answer 55

Failure to protect from child abuse not enough Only if government creates the danger or in government custody do they have a duty to provide protection

Question 56

Procedural Due Process: If so, what process is needed?: Balancing test

Answer 56

i. Importance of interest to individual ii. Ability of procedures to increase accuracy, reduce erroneous deprivation iii. Government’s interest Examples: Before welfare benefits are terminated there must be notice and a hearing When Social Security disability benefits are terminated, there need be only a post-termination hearing Before a school can discipline a student there must be notice of the charges and an opportunity to explain Corporal punishment requires no due process Before a parent’s right to custody of a child can be permanently terminated there must be notice and a hearing Punitive damage awards require instructions to the jury and judicial review to ensure reasonableness Can’t be grossly excessive (find ratio) An American citizen detained as an enemy combatant must be accorded due process Except in exigent circumstances, prejudgment attachment or government seizure of assets require notice and a hearing Gov may seize property used in illegal activity even if it has an innocent owner

Question 57

Economic Liberties

Answer 57

Only a rational basis test is used for laws affecting economic rights. The Constitution provides only minimal protection for economic liberties

Question 58

The Takings Clause: Is there a taking?: Possessory taking

Answer 58

Government confiscation or physical occupation of property is a taking.

Question 59

The Takings Clause: Is there a taking?: Regulatory taking

Answer 59

Government regulation is a taking if it leaves no reasonable economically viable use of the property. Penn central case, decrease in value wasn’t enough Beach front property, total decrease was enough

Question 60

The Takings Clause: Is there a taking?: Conditions on development

Answer 60

Benefit roughly proportional to burden Can challenge preexisting regulations Temporary denial of development is acceptable but must be reasonable

Question 61

The Takings Clause: Is it for public use?

Answer 61

Reasonable belief it will benefit the public Broadly defined Even selling to private developers if they think it will help the public

Question 62

The Takings Clause: Is just compensation paid?

Answer 62

Measured in terms of loss to owner using reasonable market value

Question 63

Contracts Clause

Answer 63

State/Local law can’t impair existing contracts Possible contracts are fair Federal laws will be under rational basis Private contracts will be intermediate scrutiny: Substantial impairment Reasonably & narrowly tailored to legitimate and important government interest Government contracts are strict scrutiny

Question 64

Ex Post Facto Clause

Answer 64

Can’t punish conduct that was lawful when done or retroactively increase penalty Only for criminal laws Retroactive civil liability gets rational basis review

Question 65

Bill of Attainder

Answer 65

Directs punishment of specific individuals without trial

Question 66

Privacy-Related Rights

Answer 66

Marriage Procreation Custody of children Keeping family together Parental rights Purchase and use of contraceptives Not abortion Private consensual, adult sexual activity Refusal of medical treatment No physician-assisted death

Question 67

Privacy-Related Rights: Refusal of medical treatment

Answer 67

Some limits Competent adults have a right to refuse States can require clear and convincing evidence that they wanted treatment ended A state may prevent family members from terminating treatment for another.

Question 68

Second Amendment

Answer 68

1. The Second Amendment protects the right to have handguns in the home for the sake of security. 2. State laws that condition having a concealed weapon in public on needing to show a safety need for a permit are unconstitutional. Clear criteria + no discretion needed 3. State laws regulating guns are allowed only if they were a type of regulation that historically existed. Levels of scrutiny not used Can regulate in sensitive places and limit who has guns

Question 69

Right to Travel

Answer 69

Laws that prohibit people from moving to a state: Strict scrutiny Durational residency requirements Strict scrutiny For voting, 50 days is the maximum allowable requirement Foreign travel Rational basis

Question 70

Right to Vote

Answer 70

Fundamental right under equal protection clause Laws that keep some citizens from voting Strict scrutiny Can protect integrity of system if desirable Balancing test One person, one vote For all elected bodies with districts, all districts should be about the same in population At large elections allowed absent discriminatory purpose Use of race to draw lines Strict scrutiny Counting uncounted votes without standards in a presidential election violates equal protection

Question 71

Education Rights

Answer 71

Education is Not a Fundamental Right

Question 72

Equal Protection Approach

Answer 72

1. What is the classification? 2. What level of scrutiny should be applied? 3. Does this law meet the level of scrutiny?

Question 73

Source of EP Guarantees

Answer 73

14th amendment ep clause → state and local government 5th amendment due process clause → federal government

Question 74

EP: Race and National Origin

Answer 74

Strict scrutiny Proof of classification: Facial discrimination Law in its terms draws distinction between races Discriminatory impact AND discriminatory intent Effect not enough Note: laws that provide for peremptory challenges based on race violates EP

Question 75

EP: Classifications Benefiting Minorities

Answer 75

Strict scrutiny Numerical set-asides require clear proof of past discrimination Higher education admissions Can be one factor if no other way to achieve diversity Diversity is a compelling interest Cannot add points to admissions for minorities Elementary and secondary school assignments → strict scrutiny Assigning students to schools based on race

Question 76

EP: Gender Classifications

Answer 76

Intermediate scrutiny AND exceedingly persuasive justifications Proof of discrimination Facial discrimination Facially neutral Discriminatory impact AND discriminatory intent

Question 77

EP: Gender Classifications: Classifications Benefiting Women

Answer 77

Intermediate scrutiny usually but Not based on role stereotypes Can remedy past discrimination or limited opportunities

Question 78

EP: Alienage Classifications

Answer 78

State/local: Strict scrutiny Except: Rational basis if related to self government Notary not self-gov Congress: Rational basis Undocumented immigrant children: Probably intermediate scrutiny

Question 79

EP: Non-Marital Children

Answer 79

Intermediate scrutiny Laws benefiting all marital and no non-marital children always fail

Question 80

EP: Other Classifications

Answer 80

All other classifications get rational basis review for equal protection purposes including: Age Disability Wealth Economic regulations Sexual orientation

Question 81

1A: Content Based and Content Neutral Restrictions

Answer 81

Content based restrictions → Strict scrutiny ----Subject matter restrictions ----Viewpoint restrictions Content-neutral restrictions ----Intermediate scrutiny

Question 82

1A: Prior Restraints

Answer 82

Typically restraining order or injunction to prevent speech Subject to strict scrutiny But must be complied with until vacated if procedurally proper Person who violates court order is barred from challenging it

Question 83

1A: Prior Restraints: Licensing and Permits

Answer 83

Licensing and permits can be required if: Important reason for licensing Clear criteria + almost no discretion Procedural safeguards

Question 84

1A: Vagueness

Answer 84

Law is unconstitutionally vague if reasonable person can’t tell what’s prohibited and what’s allowed

Question 85

1A: Overbreadth

Answer 85

Unconstitutional if law regulates substantially more speech than Constitution allows

Question 86

1A: Fighting Words

Answer 86

Words directed at another that are likely to provoke a violent response Unprotected category of speech But laws often unconstitutionally vague and overbroad

Question 87

1A: Symbolic Speech

Answer 87

Government can regulate conduct that communicates if Important interest unrelated to suppressing message Impact on communication no greater than necessary to achieve purpose Examples: Flag burning is protected speech Draft card burning is not Nude dancing not protected speech Cross burning is protected unless with intent to threaten contribution limits in election campaigns are generally constitutional, but expenditure limits are unconstitutional

Question 88

1A: Compelled Speech

Answer 88

Violates first amendment

Question 89

1A: Anonymous Speech

Answer 89

Protected, do not have to reveal identity in speech

Question 90

1A: Government Speech

Answer 90

Not covered by free speech clause Government speaker, then can’t be challenged as violating first am

Question 91

Unprotected Speech: Incitement of Illegal Activity

Answer 91

Unprotected by 1A Substantial likelihood of imminent illegal activity Speech directed at causing imminent illegal activity

Question 92

Unprotected Speech: Obscenity

Answer 92

Test: Material appeals to prurient interest in sex (community/local standard) ----Usually the shameful stuff Patently offensive (state or local law) No serious artistic, literary, political or scientific value (national standard) ----Zoning ordinances allowed for adult bookstores/theaters etc ----Can ban all child pornography ----Can’t punish private possession of obscene material (except CP) ----Can seize assets of businesses convicted of violations ----Profane and indecent language usually protected --------Except: broadcast media ----Schools can punish profane and indecent language ----Ability to regulate out of school speech is limited --------Need substantial likelihood of disrupting school activities

Question 93

Unprotected Speech: Commercial Speech

Answer 93

False and deceptive advertisements not protected by 1A Government can prohibit ads for illegal activities True commercial speech that inherently risks deception can be prohibited: i. The government may prevent professionals from advertising or practicing under a trade name ii. The government may prohibit attorney, in-person solicitation of clients for profit iii. The government may not prohibit accountants from in-person solicitation of clients for profit Other commercial speech can be regulated if intermediate scrutiny is met Government regulation of commercial speech must be narrowly tailored but it does not need to be the least restrictive alternative

Question 94

Unprotected Speech: Defamation of Public Official

Answer 94

Plaintiff must show: Clear and convincing evidence Falsity Actual Malice Know statement was false or acted with reckless disregard for the truth Public figures: Those who thrust themselves into the limelight and who likely have access to media to respond to any attack

Question 95

Unprotected Speech: Defamation of Private Figure on Matter of Public Concern

Answer 95

Compensatory damages if P proves Falsity of statement Negligence of speaker Presumed/punitive damages if plaintiff proves Actual malice

Question 96

Unprotected Speech: Defamation of Private Figure on Matter Not of Public Concern

Answer 96

Presumed/punitive damages without proof of actual malice Compensatory damages → No standard articulated by court

Question 97

Unprotected Speech: IIED

Answer 97

Defamation requirements Not protected speech

Question 98

Unprotected Speech: Privacy

Answer 98

The government may not create liability for the truthful reporting of information that was lawfully obtained from the government Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance The government may limit its dissemination of information to protect privacy Gov can restrict its own dissemination of information

Question 99

Unprotected Speech: Speech by government employees on the job

Answer 99

in the performance of their duties is not protected by the First Amendment.

Question 100

Unprotected Speech: Other government restrictions based on the content of speech

Answer 100

must meet strict scrutiny. (Example: restrictions on violent speech must meet strict scrutiny.)

Question 101

Public Forums

Answer 101

Can regulate speech in public forums Not subject and viewpoint neutral → strict scrutiny Subject and viewpoint neutral → intermediate scrutiny Time place and manner restriction Important government purpose Adequate alternatives Narrowly tailored, not least restrictive Permit fees for parades and demonstrations unconstitutional if within official’s discretion Risks viewpoint discrimination, must be uniform

Question 102

Designated Public Forums

Answer 102

Government chooses to open to speech Use public forum rules Can close forum, but while open subject to restrictions

Question 103

Limited Public Forums

Answer 103

Government opens to certain groups or topics Regulation must be reasonable and viewpoint neutral Subject = fine, viewpoint = not fine

Question 104

Nonpublic Forums

Answer 104

Government closes to speech Regulation must be reasonable and viewpoint neutral Ie. military bases, areas outside prisons and jails, sidewalks on post office property, airports Cant prohibit distribution of literature

Question 105

Freedom of Association

Answer 105

Fundamental right Laws that prohibit or punish membership → strict scrutiny To prohibit or punish must prove: 1. Active affiliation 2. Knowledge of illegal activities 3. Specific intent to further activities

Question 106

Freedom of Association: Requiring Disclosure of Membership

Answer 106

Strict scrutiny if disclosure likely to chill association

Question 107

Freedom of Association: No Right to Discriminate

Answer 107

Right to discriminate not protected unless: Intimate association Discrimination integral to activities of group

Question 108

Free Exercise Clause

Answer 108

Can’t be used to challenge neutral law of general applicability If not neutral → strict scrutiny Discretion for exceptions = not neutral Can’t deny benefits if people quit jobs for religious reasons Can’t hold religious schools liable for choosing teachers Can’t deny religious schools benefits given to secular private schools

Question 109

Establishment Clause

Answer 109

Government cannot coerce religious participation Uncertainty in what coercion is yet Laws discriminating against religious speech or among religions → strict scrutiny

Question 110

Establishment Clause: Schools

Answer 110

No government-sponsored religious activity in public schools Focus = school-initiated, school sponsored, school approved Kennedy distinguished because school didn't approve Employee praying on own time → allowed under Free Exercise Clause Can’t exclude religious groups if school facilities open to other groups Can give parents vouchers that they can use for religious schools The government may give assistance to parochial schools, so long as it is not used for religious instruction. i) The government may provide parents vouchers which they use in parochial schools. ii) The denial of funds for religious schools that are provided to secular private schools violates free exercise of religion unless strict scrutiny is met.

Question 111

Approach to Con Law: Congress is Actor

Answer 111

The issue is either: 1. Does congress have the authority to act? and/or 2. Has congress violated a limit on its power?

Question 112

Approach to Con Law: President or Executive is Actor

Answer 112

Issue is either: 1. Has the president/executive exceeded the scope of executive powers? and/or 2. Has the President/executive violated a limit on government power?

Question 113

Approach to Con Law: Federal Court is Actor

Answer 113

Issue is: Does the federal court have the authority to hear the case?

Question 114

Approach to Con Law: State/Local Gov is Actor

Answer 114

Issue is: Has the state/local government violated a limit on its power?

Question 115

Approach to Con Law: Private Non-Gov is Actor

Answer 115

The issues are: 1. Is there state action? If so, 2. Does it violate the constitution?