Con Law Flashcards
What are the elements of Obscenity?
Miller Test
1. Prurient Interest: (i.e. excessive interest in sex) –
by community standards i.e. jury + expert
AND
2. Patently Offensive:
(i.e. far beyond customary limits of candor)
by community standards: jury + expert
AND
3. No SLAPS taken as whole: NOT by community standards: judge
* If the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. - don’t mix up with SLAPP (strategic lawsuit against public participation)
* therapeutic value, or discusses censorship
* SLAPS is NOT as low a bar as “utterly without redeeming social value” test
What are the elements of IILA?
Brandenburg-Hess Test
1) Directed to inciting, or is producing (intent-ish element?)
2) IMMINENT lawless action (action by others, not the speaker)
*IMMINENT MEANS WHAT?
* TEMPORAL CONNECTION between direction AND incitement- not simply at indefinite time in future
* SCOTUS has not settled on a specific time window between direction and incitement
* immediacy/imminency makes USA different from other countries, which use anti-glorification laws that would fail Brandenberg-Hess
* “Brandenberg-Hess defense” (for lack of imminence) is often used for torts defenses e.g. Tupac case – Davidson
AND
3) Is likely to incite or produce such action (causation-ish element)
Yes it is: Fck the police from concert
Maybe: Jan 6 speech (split scholars)
No: We will take the fucking street again (Hess case itself)
What are the elements of Fighting Words?
General
Words spoken such that listener WOULD respond with violence
Words directed at police have higher bar to cross
Words directed at military do NOT have higher bar to cross
ELEMENTS
Words by their nature that “by their very utterance inflict injury”
Note: case law largely ignores except for racist slurs
OR
Words that “cause breach of peace”
Examples of Fighting Words
* Racial slurs
* Profanity at someone’s family members
* unprotected conduct: Spitting Cases
* Emanual Flashcards: “you goddamn fascist” HAVE BEEN HELD as fighting words but not since 1940s
* Hudson hypo that IS FW:
* Man nearly chest bumps members of Armed forces,
* Man points at his own t-shirt which reads “Fuck the Military”
* Man curses at the two men
* melee ensues, in which all three parties are injured.
* (I thinkt the melee means it is “breach of peace” i.e. second prong violated)
Examples of NOT Fighting Words
* Def burned American flag: “[n]o reasonable onlooker…regard…generalized expression of dissatisfaction with the policies of the Fed Govt as direct personal insult or an invitation to exchange fisticuffs.
* Bumper Stickers
* passing out pamphlets and calling organized religion a “racket”
* Wearing F*ck the draft jacket in corridors of CA courthouse (Cohen) NIETHER OBSCENE nor FIGHTING WORDS
* ordinance prohibited verbal challenging of police action “criminalizes a substantial amount of constitutionally protected speech” City of Houston v. Hill - (1987 Social Justice) –
What is the Central Hudson test to see if a content-based (as opposed to content-neutral) regulation of commercial speech complies with 1A?
QUICK: 3 thresholds, 3 elements, 3 notes
3 thresholds, PC LA T/PM
note: attorney advertising has smaller T/PM window
note: fail PC or fail LA? zero protection, no more 1A analysis, i.e. speech advocating crimes and speech of lies are unprotected categories
3 elements SI NT DMA
note: overbreadth doctrine does not apply
___________________
Yes, the LA and T/PM thresholds are confusing. Pre Central Hudson, govt could regulate commercial speech to its heart’s content.
Post Central Hudson, govt can regulate commercial speech ONLY if
the regulation is directed at (pure commercial + Legal activity + t/pm) speech
and
the regulation satisfies SI NT DMA.
So, some protection.
Note: regulating speech of illegal activity, regulating F/CM speech gets no Central Hudson analysis…so it GETS NO 1A protection i.e. CRIMES AND LIES are an Unprotected Category <–Lucia 4/23/24
Threshold 1: is it regulating speech that is purely commercial speech and no more? If yes, continue.
Non-commercial speech receives strict scrutiny or other categories.
example:
Purely commercial speech = purely advertising, X product for Y price
If “speaker’s underlying “motivation” = pecuniary, probably commercial speech
Threshold 2: is it regulating speech that is promoting legal activity? If yes, continue. If no, no 1A protection at all.
Threshold 3: is it regulating speech that is true/potentially misleading OR regulating speech that is false/clearly misleading?
if true/potentially misleading, continue.
If false/clearly misleading, no 1A protection.
Note that attorney speech has a smaller T/PM window and larger F/CM window than other professions:
- Prof. Hudson: More limited than other professions! B/c established lawyers do not want to give up piece of the pie.
- Atty Advertising: I won million-dollar lawsuits (truth: did not at all): Clearly Misleading (even with disclaimer)
- Atty Advertising: I won million-dollar lawsuits (truth: only initiated and lost such lawsuits): maybe Possibly Misleading (if there is disclaimer)
- Atty Advertising: I am experienced litigator (truth: I have had 1 trial): Clearly Misleading
can be cured by disclaimer = true/potentially misleading, and the court court can actually mandate a disclaimer (rational basis)
3 Elements:
Govt must have substantial interest e.g. CRIME PREVENTION/PRIVACY/CONSUMER PROTECTION
AND
Regulation is NT
Narrowly Tailored (NOT least restrictive)
AND
Regulation is DMA
Directly and Materially Advance the Substantial Interest
CAVEAT: overbreadth doctrine does NOT apply b/c commercial speech is UNLIKELY to be chilled
What are the elements of True Threats?
1) a serious expression of an intent to commit an act of unlawful violence
nuance: expression of intent to commit, not necesssarily actual intent to commit
Level of Intent in that expression?
some states: reckless is sufficient intent
some states general or specific is necessary
Watts Factors for “serious expression”:
a) political debate comments (PDC) comments made during political debate
–PDC disfavors TT
b) conditional (if you do XYZ I will kill you) vs. explicit (I will kill you) nature of threat
–conditional disfavors TT
–explicit favors TT
c) context - listeners to Watts’ speech responded with laughter
–laughter disfavors True TT
defendant Watts spoke about “putting LBJ in his scope” Watts won b/c of rhetorical hyperbole
TO
a particular individual or group of individuals (not necessarily violence to the listener or listeners)
Virginia v. Black (2003)
held unconstitutional:
statute banning cross burning unaccompanied by evidence of intent to intimidate b/c cross burning itself creates prima facie evidence of intent to intimidate
held constitutional:
statute banning cross burning if accompanied with evidence of intent to intimidate
How may the govt regulate speech in special settings where govt. is sovereign and property owner?
Note the traditional content-based v. content neutral approach does NOT apply to special settings (but it’s here!!)
1) Traditional Public Forum
Ex: public (truly public) streets, public parks
Govt can regulate if SS for content based, IS for content neutral + ample channels
2) Limited Public Forum
Ex: school board meeting rooms, public university meeting rooms, municipal owned theater)
Govt can regulate under SS for content based, IS + ample channels for content neutral
No obligation to keep open, but if open to speaker X must be equally open to speaker Y
3) Non-Public Forum
Ex: Sidewalk outside post office, Inside School Building, Inside courthouse, Teacher Mailboxes Almost Everything Else Govt – owned, Airport terminal, street-light posts, prisons, military bases, school gymnasiums, polling places)
Govt can regulate if reasonable viewpoint neutral <–speaks to primacy of viewpoint neutral
Heffron principle: speakers in 1A law often do not get to speak at their desired location IF there are other avenues…but doesn’t apply if the law is so FATALLY FLAWED
How may the govt regulate speech when acting as sovereign and educator (public K-12)?
Note the traditional content-based v. content neutral approach does NOT apply to special settings
Govt as Sovereign + Educator (Public, K-12)
Hazelwood
Can regulate, based on relation to legit pedagogical concerns student speech if such speech
Bears school imprimatur
AND
Is school sponsored (newspaper) <–NOT underground newspaper
Fraser
Can regulate student speech if such speech
“vulgar, lewd, offensive”
AND
is ON campus
Morse
Can regulate student speech if such speech is
at or across streetfrom school
AND
reasonably viewed as promoting illegal drug use
Cf - promoting legalization of drugs <–student wins
**Tinker **(catch all - residue)
** Can regulate student speech if such speech
i) “reasonably forecast to substantially disrupt”
OR
ii) “substantially disrupt”
OR
iii) “impinge on other students’ rights”
Cannot regulate student speech if such speech
i) Causes “undifferentiated fear”**
Mnemomic where school loses CVSBUS
CRT books on bookshelves not vulgar/unsuitable just b/c school dislikes CRT message (Pico)
Vietnam armbands (Tinker)
Sports clothing (Jeglan)
Banner (theoreticall) off campus at student event advocating LEGALIZATION of weed (Alito concurrence – Morse)
Underground newspaper (Hazelwood)
Social media posts off campus (Mahanoy)
Note:
prior restraint IS important in free expression context generallly
prior restraint IS iLESS mportant in free expression context of student speech
How may a govt acting as sovereign + employer regulate employee speech?
Note the traditional content-based v. content neutral approach does NOT apply to special settings
Statements made by public employees
AND
made in scope of their official duties is NOT protected
How does right to marry relate to SDP?
Right to marry is fundamental right e.g. Turner v. Saffley
Some restrictions on R2M are permitted if passing SS: e.g. age, proper ID, prison restriction related to legit penalogical concert
Bans on interracial marriage violate SDP and EPC
Bans on same sex marriage violated SDP and EPC
If govt action is intentional and infringes on fundamental right, strict scrutiny is required
How does right to vote relate to SDP?
Right to vote is fundamental right
Restrictions OTHER than age, residence, citizenship must pass strict scrutiny
Reasonable time periods for residency are ok, but not 1 year- 30 days is ok
Poll taxes are illegal
If govt action is intentional and infringes on fundamental right, strict scrutiny is required
How does the right to access courts relate to SDP?
If govt action is intentional and infringes on fundamental right, strict scrutiny is required
SDP Does extend to right to attorney in criminal prosecution (fundamental)
SDP Does extend to right to attorney in criminal direct appeal (fundamental)
Prisoners have right to decent access to law (cut back by Louis v. Casey)
SDP Does NOT extend to discretionary appeals
Does NOT extend to collateral attack
Right to post-conviction proceedings is statutory
How does right to medical care relate to SDP?
Right to medical care
No clear std
Vaccines can be compelled - jacobson v massachusetts
May refuse life-saving treatment
No right to assisted suicide - Washington v. Bluxberg
Criminal defendant may be forced to take antipsychotic drugs if necessary to make him competent for trial
State may employ a clear and convincing std to take someone off of life support
What are the 5 justiciability doctrines?
No AOs
Constitutional Standing
Ripeness
Mootness
PQD
[and self-imposed prudential limitations]
What are the elements of mootness?
Must have Art III standing at all stages of case, not just Art III standing at outset of case.
Moot = did not have Art III standing at all stages of case
E.g. Art III standing existed at outset of case…but THEN, e.g.
…settlement - judges have lots of flexibility on ADR, settlement, etc. - MOOT
…individual student not admitted to law school did get admitted and graduated - MOOT
…party death - MOOT
…defendant ceased behavior - MOOT
…claimant stopped objecting - MOOT
….material change in facts - MOOT
…law challenged was amended/repealed <–common at municipal level - MOOT
Exceptions when otherwise moot but STILL HAVING STANDING
Capable of Repetition but Evading Review
e.g. Stuff with short duration: pregnancy, elections, divorce - NOT MOOT
e.g. Roe v. Wade - NOT MOOT
e.g. Defendant voluntarily stopped unconstitutional conduct, BUT can restart i.e. cessation is temporary - NOT MOOT
What are the elements of Constitutional Standing?
General:
Required for FEDERAL PLAINTIFF
Based on “Case or Controversy” of Art III
Constitutional Standing overlaps with Ripeness
Constitutional Standing is more likely if claim alleges “real and substantial personal injury”
Constitutional Standing is less likely if claim alleges “tenuous and generalized injury”
**Constitutional Standing Elements - 3 (well 5) Required **
1) Injury in Fact:
1a) Injury is Concrete: i.e. injury to P is not just that D violated a statute or const’n provision, not abstract
+
1b) Injury is Particularized: i.e. injury to P is to P, as opposed to generalized harm to world
+
1c) Injury is Imminent, actual: i.e. injury to P is not just hypothetical
AND
2) Injury in fact is Caused by Defendant’s Conduct aka Causality (overlaps with Redressability)
Plaintiff’s IIF is “fairly traceable” to D’s conduct, and NOT to conduct of party not before court
AND
3) Injury in fact is Redressable by Court (overlaps with Causality)
Plaintiff’s IIF has “probable chance to be redressed” BY victory and requested relief
What are the types of Advisory Opinions?
Federal Courts in Constitutional Cases
No Advisory Opinions
Must be Actual Case or Controversy
Actual dispute AND
Adverse litigants AND
Substantial likelihood a decision in favor of a party will have impact or effect
Must not be Classic Advisory Opinion
Usually another branch asking about stuff BEFORE trying to enact
Hudson: I wish I could just send questions to SCOTUS! Cannot do that.
Must not be Non-Final Opinions
I.e.cannot be Opinions from federal courts that CAN be reversed or modified by EXEC BRANCH or by LEG BRANCH or anyone besides a higher court
Must not be Collusive Suits
Parties acting together trying to STEER court
What is SCOTUS AJ?
Appellate Jurisdiction of SCOTUS
General:
Almost entirely discretionary -
Rule of 4, i.e. 4 of 9 SCOTUS justices must agree to grant cert
Yes, 4 is weird - 1924 origin
TN uses rule of 2
Congress CAN
Expand scope of SCOTUS AJ w/o Const’l Amendment
Reduce scope of SCOTUS AJ w/o Const’l Amendment
Scope:
When SCOTUS is hearing appeal of lower tribunal decision
What is SCOTUS OJ?
Original Jurisdiction of SCOTUS
General:
When SCOTUS is first court to hear a type of case (as opposed to lower tribunal)
Congress CAN
Transform OJ from exclusive (i.e. SCOTUS only) to concurrent (SCOTUS and lower fed)
Exception: [if State v. State – OJ cannot be concurrent]
Congress CANNOT
Expand scope of SCOTUS OJ w/o Const’l Amendment
Reduce scope of SCOTUS OJ w/o Const’l Amendment
Scope of SCOTUS OJ
Involving ambassadors
Involving consuls
Involving public ministers
Involving at least one State as a party
What is ripeness?
Overlaps with Constitutional Standing
Unripe: claimant of risk to harm is highly speculative, premature, may NEVER blossom into actionable wrong
e.g. CT law on sale of contraceptives was NOT enforced as of 1961 (Poe v. Ullman) ∴ unripe
Ripe: claimant likely to suffer harm
e.g. CT law on sale of contraceptive NOT enforced as of 1965 (Griswold) but court felt claimant LIKELY TO SUFFER HARM
What is PQD?
General:
Bar might hit this on FOREIGN POLICY questions
Touches Separation of Power concerns
Elements:
Case that Legislative or Exec branch (i.e. political branches) should hear, not federal courts
Ex.
Baker v. Carr one person one vote 1962 was a PQD
Some ppl say gerrymandering
Whether USA should declare war
How does federal Judicial Power work?
U.S. Constitution
Is supreme law of land (Art VI applied as preemption)
Invalidates the following, if inconsistent with US Constitution
L Federal statutes
L Federal regulations
L Federal executive orders
L State statutes
L State exec orders
L State constitutional amendments
2 reasons to invalidate
Congress did not have power to create the disputed law
OR
Disputed law conflicts with another part of Const’n
US SCOTUS
Interprets US Constitution, final and binding
E.g. Invalidated RFRA statute that tried to reinterpret (end run) Free Exercise Clause for federal laws -
RFRA statute tried to say that any law burdening religious freedom required strict scrutiny (i.e. Congressional interpretation, contradicting previous Smith decision)
Interprets federal law, final and binding
State Constitution
IS NOT interpreted by US SCOTUS
Cannot go BENEATH floor of US Constitution wrt individual rights e.g. search and seizure
What are 3 self-imposedprudential limitations on Constitutional Standing?
Scenario: When Constitutional Standing is satisfied for a case…but still SCOTUS chooses NOT to take the case, to be prudent
Cases not in Zone of Interests
SCOTUS will decline to take claims not in Zone of Interests i.e. scope of the statute/provision underlying the claim
Cases of Generalized Grievances
SCOTUS will generally not take cases of generalized grievances, even though the grievance is shared by many possible plaintiffs…still better addressed by legislation
Cases of Third Parties aka Interventions
SCOTUS will not take cases brought by Party B, rightfully belonging to a Party A not before court
* Exceptions: doctor patient
* Exception: associations and their members (NAACP case – freedom of association (even though freedom of association is not textually based)
How to describe Congress’s War Powers?
Congress’s War Powers
In actual theater of war:
Congress has virtually unlimited power (shared with POTUS)
In homefront during war
Congress has significant power to remedy effects esp. economic effects
In homefront after war
Congress has significant power to remedy effects esp. economic effects
Surpassed by Commerce Clause power
How to describe Congress’s Treaty Power?
Congress’s Treaty Power
Congress has power to pass laws TO enforce treaties
Senate ratifies treaties
Limitation: treaty itself cannot be inconsistent with another constitutional provision
How to describe Congress’s Commerce Clause Power?
Commerce clause gave power hub to uphold CRA 1964 Heart of Atlanta, Ollie’s BBQ
Commerce clause gave power hub to uphold criminal statutes
Congress has power under Art 1 § 8 cl 3 to make law regulating
Instrumentalities: cars, trucks, vehicles, ships
OR
Channels: pathways, routeways, airports, waterways, highways
OR
Substantial Effect on Interstate Commerce <—biggest point of legislation/disagreement
Wickard v. Fillburn: apex of Commerce Clause power - upheld via aggregation principle
Gonzales v. Raich: upheld Controlled Substances Act
U.S. v. Lopez: cutback of Commerce Clause power - struck down gun free school zone act, “federalist five” said this is something state govt should be doing
NFIB v. Sebelius: cutback - upheld majority of law under tax/spend clause, NOT commerce clause b/c commerce clause cannot regulate INACTIVITY
How to describe Congress’s 13th Amendment Power?
Congress’s Power via 13th Amendment
§ 2 of 13th Amendment
Congress has power to prohibit ANY discrimination by private parties
If “badge or incident of slavery”
e.g. refusing to admit child to private school b/c of race
e.g. refusing to employ b/c of race
e.g. refusing to rent or sell property b/c of race
e.g. refusing to contract with b/c of race
*note § 2 of 13th Amendment is SECOND BEST power source for attempted civil rights regulation of private discrimination
*note Commerce Clause is BEST power source for attempted civil rights regulation of private discrimination
*note “ANY” threshold…cf. Commerce Clause granting power to regulate if discrimination has substantial effect on interstate commerce
How to describe Congress’s 14th Amendment Power?
§5 of 14th Amendment
Congress has power to prohibit discrimination by state govts
Congress has power to prohibit discrimination by local govts
*note § 5 of 14th Amendment is often power source for DUE PROCESS PROTECTION e.g. Boerne v. Flores struck down for DPC as “disproportionate response”
note Commerce Clause is BEST power source for attempted civil rights regulation of state/local govt discrimination
How to describe Congress’s Property Clause Power?
Congress’s Power via Property Clause -
General: THERE IS NO FEDERAL POLICE POWER
Exception: THERE IS FEDERAL POLICE POWER on federal property: public parks, military bases, District of Columbia
How?
Via Property Clause - Art IV § 3, and indirectly recognized in 5th Amendment
Congress has power to create laws regarding
Owning…
Acquiring…
Using…
Transferring…
Disposing…
Federal Property
Real Federal Property
Personal Federal Property
Intangible Federal Property
How to describe N&P Congressional Power?
Congress’s Power via N&P Clause
Not its own source of power
More of an add-on for execution - rarely the answer
How to describe limitation on Congress’s power via 10th Amendment?
Limitation on Congress’s Power via 10th Amendment wrt State Power, i.e. “reservation of rights”
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people
SCOTUS has interpreted with vigor at times…live
NY v. US - radioactive material - Congress cannot commandeer state to legislate
Alternative: Congress CAN use spending power to incentivize states to pass law
Printz v. US - brady act - Congress cannot compel state executive officials to enforce federal law
Alternative: Congress CAN use spending power to incentivize state executive officials to enforce federal law
How to describe State Sovereign Immunity via 11th Amendment?
BUT the exceptions are HUGE! e.g. congressional abrogation sec 1983
Federal Claims cannot be brought against State via
Citizens of that state cannot bring FEDERAL CLAIM against State in federal court
Citizens of that state cannot bring FEDERAL CLAIM against State in any state court
Citizens of that state cannot bring FEDERAL CLAIM against State in federal admin proceeding
Citizens of other state cannot bring FEDERAL CLAIM against State in federal court
Citizens of other state cannot bring FEDERAL CLAIM against State in any state court
Citizens of other state cannot bring FEDERAL CLAIM against State in federal admin proceeding
Citizens of other nation cannot bring FEDERAL CLAIM against State in federal court
Citizens of other nation cannot bring FEDERAL CLAIM against State in any state courtCitizens of other nation cannot bring FEDERAL CLAIM against State in federal admin proceeding
How does EXPRESS preemption of state law by federal law work?
Supremacy Clause § Art VI aka Preemption Doctrine as a Check on State Law <–BIG TICKET ITEM
General: Little power is state-ONLY. Most power is CONCURRENT fed and state.
How it works:
Supreme Law of Land: Federal Constitution, Federal Statute, Treaties
Preempt
State laws, State Constitutions, State Statutes, State Court judgments, State Admin Orders, State Exec ActionsSimilarly,
[same for Municipal]
**unless the federal statute itself is unconstitutional
Ask: “does the federal law deal with the same shit?”
TYPES of PREEMPTION x 4
Express Preemption <–first place to analyze in an essay!
An express preemption clause e.g. “xyz shall not be imposed under state law” is literally written into the text of the federal law
Such clauses are to be narrowly construed, esp. in areas “traditionally regulated by States”
Careful before you decide that state law is preempted expressly!
Does the state law you think is expressly preempted **EXACTLY meet **what the express preemption clause is preempting?
How does IMPLICIT- field preemption of state law by federal law work?
Occupy Entire Field
Esp. if Congress has created a federal agency to oversee the field
Congress has impliedly taken whole field with Comprehensive Law
e.g. Immigration
How to describe exceptions to State Sovereign Immunity via 11th Amendment?
FEDERAL CLAIM can be brought against state, despite 11th amendment
ABROGATION
Congress, via “Clear Statement” can legislate, e.g. 42 USC 1983 to Abrogate State Immunity and allow citizens to sue state (rare)
WAIVER - State if State Already Waived Sovereign Immunity
e.g. waiver embedded in ADA
e.g. waiver embedded in Age Discrimination
DISCRIM § 5 of 14th amendment…
Racial discrimination by state
Gender discrimination by state
Disability discrimination by state wrt access to courts
USA United States can bring FEDERAL CLAIM against State
**INTERSTATE **OJ State A can bring FEDERAL CLAIM against State B under SCOTUS Original Jurisdiction for money damages
OFFICIAL FEDERAL CLAIM can be brought against STATE OFFICIAL in OFFICIAL CAPACITY for prospective injunction, including money to pay for injunction
FEDERAL CLAIM can be brought against STATE OFFICIAL for money damages to be paid by state official personally
Exception: Unless such money damages would be paid out of state treasury
BANKRUPTCY Bankruptcy law: trustee sues State to set aside “alleged preferential distribution” made in bankruptcy to State Agency
**Counties **are not protected from fed claims by 11A ∴ BUT counties are OFTEN subject to 42 § 1983
**Cities **are not protected from fed claims by 11A BUT cities are OFTEN subject to 42 § 1983
How does IMPLICIT - obstacle preemption of state law by federal law OBJECTIVE work?
Impeding aka Obstacle to Federal Objective
Often Texas, Arizona
e.g. Federal Objective of federal bankrupcty law is to give bankrupted people a fresh start w/o debts
A state law that punishes bankrupt people by suspending driver license would be preempted by Supremacy Clause
e.g. Employee benefits e.g. say ER misrepresents benefits, can you bring state tort action for negligent misrepresentation?
ERISA federal law likely PREEMPTS which preempts state tort action for negligent misrepresentation
How does IMPLICIT - conflict preemption of state law by federal law work?
Impossible aka Conflict
Impossible to comply with State Law and Federal Law without violating one
e.g. 42 USC § 1983 gives state court jurisdiction over type XYZ claims and federal courts jurisdiction over type XYZ claims
A state law or state policy to DIVEST state court jurisdiction over type XYZ claims would be preempted by 42 USC § 1983 via Supremacy Clause
How do state laws become PER SE INVALID when applying the dormant commerce clause?
summary: state laws have LITTLE ROOM to discriminate against Interstate Commerce but there are Per Se Exceptions and Balancing Test Exceptions
Insulating From Out-of-State
e.g. State A surcharges out-of-state-produced product X sold in State A, making it more expensive in State A than State A-produced product X:
Outcome: State Law is per se INVALID
e.g. State A exempts State A businesses from tax that DOES apply to out-of-state business doing business in State A:
Outcome: State Law is per se INVALID
e.g. State A requires all solid waste produced in State A to be processed in State A waste facilities:
Outcome: State Law is per se INVALID
e.g. State A prohibits or surcharges State A waste companies from accepting out-of-state garbage
Outcome: State Law is per se INVALID unless CONGRESS authorizes (NY v. US)
Hoarding Within In-State
e.g. State A requiring melon producers and purchasers to package melons in-state before exportation:
Outcome: State Law is per se INVALID
e.g. State A prohibiting in-state owners of groundwater from exporting out-of-state
Outcome: State Law is per se INVALID
e.g. State A requiring in-state companies to give lower price to in-state residents
Outcome: State Law is per se INVALID
Exception to per se invalidity
If Necessary to Important State Interest (e.g. ecology)
AND
If No Reasonable Less Discriminatory Alternative
Outcome: otherwise per se invalid state law is actually VALID
How do state laws become INVALID via balancing test when applying the dormant commerce clause?
summary: state laws have LITTLE ROOM to discriminate against Interstate Commerce but there are Per Se Exceptions and Balancing Test Exceptions
When the State Law DOES NOT in purpose or effect discriminate against Interstate Commerce? Balance Test with Exceptions
Balancing Test
If
Local Benefits are MUCH LESS than Undue Burden on Interstate Commerce
AND
Alternatives Exist which Are Less Burdensome to Interstate Commerce Exist
OR
No National Uniformity in Laws (i.e. other states have conflicting laws)
Outcome: state law is INVALID
Exception 1: when…
alternatives to state law DO NOT exist…
AND…
national uniformity in that state law DOES exist…
Exception 2:
when state is Market Participant not Market Regulator (e.g. state-owned cement plant)
AND
Law does not discriminate on private employment, practice of law, civil liberties
AND
State law does not discriminate on market DOWNSTREAMof State Market Participant downstream regulations
e.g. requiring private timber buyers from Alaska state timber to ALSO use Alaska processors
Outcome: state law is VALID
Exception 3: when State is Authorized by Congress and does not violate other constitutional provisiosn e.g. Art IV P&I, 14A EPC
Outcome: state law is VALID
How do state laws become INVALID under Article IV privileges and immunities clause?
Article IV Privileges and Immunities
General: corporations are not citizens for P&I
When State A Law discriminates against out-of-state residents on private employment, practice of law, civil liberties
Outcome: state law is INVALID
e.g. state law requiring in-state residency to license and practice law: held invalid
e.g. state law requiring private in-state employers to give hiring preference to in-state residents: held invalid
e.g. state law charging out-of-state residents substantially more for FISHING LICENSES: held invalid
Interesting, opposite outcome for recreational HUNTING LICENSES: held valid
Exception: Substantial Justification and No Less Discriminatory Means available
Outcome: state law Valid
How do state laws become INVALID under 14A privileges or immunities clause?
14th Amendment Privileges or Immunities
General: corporations are not citizens for P or I
When State A Law discriminates against out-of-state residents on privileges and immunities of national citizenship
Protects people newly arrived in State A
e.g. California state law requiring new California residents to be limited to welfare of PREVIOUS state until 1 year passes: held invlaid
Outcome: state law is invalid
Slaughterhouse Cases held that first 10 amendments are NOT P&I of national citizenship
How do state laws become INVALID under the contract clause?
Contracts Clause as a Check on State Law <–rare
DOES limit ability of States to enact laws RETROACTIVELY affecting contract rights
DOES NOT limit ability of States to enact laws PROSPECTIVELY affecting contract rights
DOES NOT limit ability of federal government to enact laws RETROACTIVELY affecting contract rights, though flagrant limitation may run up against DPC 5A
DOES NOT limit ability of federal government to enact laws PROSPECTIVELY affecting contract rights, though flagrant limitation may run up against DPC 5A
How do state laws become INVALID under the Ex Post Facto Clause?
Ex Post Facto Clause as a Check on State Law
Law imposing criminal punishment for conduct occurring before the law was effective: INVALID
Greater level of criminal punishment for conduct occurring before the greater level was prescribed: INVALID
Lower evidentiary standard for conviction for conduct occurring before the lower standard was adopted: INVALID
Increase of statue of limitations for conduct occurring before the increased statute of limitations was adopted: INVALID
Retroactive reduction of inmate’s “good time” or “early release” credits: INVALID
How do state laws become INVALID due to the bill of attainder principle?
When state law
Imposes punishment
Without judicial machinery
On
Named specific individuals
or
Specific description of past conduct to ensnare particular persons
Outcome: State Law is Invalid
How do state laws become INVALID under the full faith and credit clause?
Final Judgment on Merits in State A must be honored in State B
i.e. cannot retry case from State A in State B if State A reached FJoM on case
i.e. cannot retry issue from State A in State B if State A reached FJoM on case
Federal statute does same for state court-federal court relationship
How are the War Powers divided between POTUS and Congress?
POTUS Power to serve as commander in chief, deploy/move troops but NOT to declare war, NOT to fund war
Congress Power to declare war, to fund war
What are the Treaty Powers of POTUS?
POTUS can sign treaties, Congress must ratify
POTUS can sign executive agreements w/o Congress ratification (ca serve as basis for EOs)
How can POTUS exercise a power to make law?
Can POTUS legislate, i.e. affect legal rights of a private person?
When Congress has implicitly or expressly delegated - Yes then POTUS can, as long as intelligible principle
When Congress has been silent on POTUS lawmaking power on the issue? Maybe, if history and tradition favor
When Congress has rejected POTUS lawmaking power on the issue? No, and POTUS is limited to other power
What are 3 actions that are unconstitutional?
Congress doing a legislative veto is unconstitional under bicameralisma nd presentment?
POTUS doing line item veto is unconstitutional
POTUS doing impoundment of funds after Congress directing POTUS to spend funds is unconstitutional?
How may an employee of congress be appointed?
No Significant Executive Authority
Legislative functions ONLY, i.e. helping, aiding Congress. NOT SEA.
Examples of LFs
Math-y
Giving info only - but a RECOMMENDATION that interprets law COULD top tip toward SEA
flow of necessary info, receipt of info, investigation, dissemination of info, fleshing out the statute: rulemaking and *advisory opinions,
- Congress CAN directly appt
How may an inferior officer be appointed and what is an inferior officer?
Significant Executive Authority
(though we don’t’ have a Significant definition, know that as discretion and size of decision goes up, more likely Significant)
Examples of SEA
* Discretion-y
* Decision-making-y
* Enforcement, discretionary power to seek judicial relief
* Ensure compliance w/ statute and rules
○ informal procedures,
○ admin determinations
○ admin hearings
○ decision to seek civil suits
- Nom by POTUS + A&C by Senate
- Congress vests Heads of Depts to appt
- Congress vests Courts of Law to app
- Congress CANNOT directly appt
How may an principal officer be appointed and what is a principap officer?
Significant Executive Authority
(though we don’t’ have a Significant definition, know that as discretion and size of decision goes up, more likely Significant)
Examples of SEA
* Discretion-y
* Decision-making-y
* Enforcement, discretionary power to seek judicial relief
* Ensure compliance w/ statute and rules
○ informal procedures,
○ admin determinations
○ admin hearings
○ decision to seek civil suits
- Nom by POTUS + A&C by Senate
- Congress vests Heads of Depts to appt
- Congress vests Courts of Law to app
- Congress CANNOT directly appt
How may POTUS removal powers over executive officials be limited?
General Rule: Congress CANNOT impede POTUS at-will power to remove exec official
Exception: Congress CAN require good cause for POTUS to remove independent counsel, quasi-judicial offical who requires independence from POTUS
Who has exclusive power to recognize foreign states?
POTUS
Who are exclusive reps of USA to foreign states?
POTUS subordinates
What is the hierarchy when conflict over foreign affairs arise?
i. U.S. Constitution
DEFEATS
ii. Federal Statutes/Treaties (last in time controls)
DEFEATS
iii. Federal Executive Agreements/Orders
DEFEATS
iv. Federal Regulations
DEFEAT
State Laws
How does presidential immunity work?
POTUS immune from civil suits brought regarding actions DURING time as POTUS
POTUS NOT immune from civil suits brought regarding actions BEFORE time as POTUS
POTUS NOT immune from civil suits brought regarding actions AFTER time as POTUS
How does impeachment work?
Impeachment
POTUS or other fed official impeachable by House for “treason, bribery, or other high crimes and misdemeanor”
Only simply majority of House required
Actual removal after impeachment requires 2/3 Senate
What is the secondary effects doctrine of 1A?
SECONDARY EFFECTS RATIONALE (Young v. American Mini 1976, Renton): allows content-based to be treated as content neutral (lower scrutiny, i.e. easier for govt to win).
Maybe under guise of zoning laws or something NOT targeting speech itself E.g. adult businesses cannot be within 1,000 feet of a residence.
Created b/c govt was losing OBSCENITY cases for adult entertainment.
Since Young:
* Legit Secondary Effects: Adult businesses: crime/poverty supposedly resulting from adult business
* Legit Secondary Effects: Adult businesses: harm to kids supposedly resulting from dress code
* Legit Secondary Effects: Adult Other: harm to kids supposedly resulting from noise
* Legit Secondary Effects: Adult Other: effects of gambling, competition in the video-programming market, sexual arousal of readers, and harm to children
* Renton (1986) does not require a city…produce evidence independent of…that produced by other cities [as long as that other] evidence is reasonably relevant to the problem that the city is trying to address
*
Potter Stewart dissent in Young—Secondary Effects runs roughshod over cardinal principles of 1A law – b/c the govt was targeting non-obscene adult business
**Hudson: Secondary effects are Legal fiction! **
Listener’s Reaction: O’Connor said in Boos v. Barry that listener’s reaction is primary effect. Dissent said that listener’s reaction is NOT a primary effect and she is expanding the secondary effects doctrine. Hudson: listener’s reaction is NOT a valid secondary effect
BUT Reed (2015) seems to kill Secondary Effects AND Commercial Speech doctrines “A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech”
HUDSON 4/24/24 - BOTH Secondary Effects AND Commercial Speech doctrines still apply!
What is the overbreadth doctrine?
Overbreadth exists in a 1A challenge if, in proscribing unprotected speech, the challeged statued also proscribes protected speech. Because an overly broad law may deter constitutionally protected speech, the overbreadth doctrine allows a party to whom the law may constitutionally be applied to challenge the statute on the ground that it violates the First Amendment rights of others
closely related to the vagueness doctrine - e.g. “indecent speech” <–what does that mean?? too vague to apply (J. Stevens)
What is the status of the free exercise and establishment clause jurisprudence?
Freedom of Religion
General Freedom of Religion
Establishment Clause - courts are divided
Purpose test: Lemon v. Kurtzman (1971)
Secular purpose of law is required
Non-entanglement of church and state is required
History and tradition test: (Kennedy v. Bremerton) (2022) from Marsh v. Chambers 1983)
Not fleshed out
Some courts say it overturned Lemon
Some courts still apply Lemon
Not clear if Lemon still applies to public schools – Hudson queried NCBE about it.
Free Exercise Clause
Absolute protection of religious belief
Absolute protection of non-religious belief
How does the Spence speech-conduct dichotomy work?
Speech-Conduct Dichotomy Test: Does the expression intend to convey a particularized message which would be reasonably understood by an onlooker (analysis option starting on plaintiff side) (Spence Johnson)?
* note “particularized message” does NOT not have to be directed at a particular person (contrast to Fighting Words implications).
* Govt will argue it is conduct. Plaintiff will argue it is speech.
* This speech-conduct dichotomy is generally disfavored by 1A scholars
* It is like an unnecessary STEP ZERO
* by combining the two undervalues speech.
* JE: although this test is good to be able to apply from the expressive side if you don’t know what the govt purpose is or can’t find anything to support your content-based argument? Can preclude govt interest?
If pure conduct, you will hit dead end with 1A.
If expressive conduct aka symbolic speech, you will be kicked over to Traditional 1A analysis below to examine GITSS
How does the content-based v. content-neutral analysis work for 1A?
O’Brien:is the government interest in SUPPRESSING speech - look at govt purpose wrt regulation itself! Is it trying to suppress speech? If yes, then it is content-based
Content-Neutral v. Content-Based
General:
catch-all, residue
does NOT apply to Speaker-Based approach
Content-Neutral:
Aka “time place manner”
Govt must overcome intermediate scrutiny AND
leave alternative means - no greater restriction than essential to furtherance of govt interest
note secondary effects can bump content based down to content neutral (e.g. adult business regulation via property values/crime as secondary effects…BUT must leave ample locations for adult business alternatively)…“effects on listener” is NOT a secondary effect
Content-Based
Court will apply strict scrutiny unless falling in Unprotected Category in which case it will do categorical approach
Exceptions to Content-Based
Government Speech Doctrine
Monument in public park = GOVT SPEECH not public forum host - Pleasant Grove. No 1A analysis.
Government Funding of Speech Promoting Its Own Policies
Government MAY, via rational basis, discriminate against specialty plate bearing state name (Walker v. Son of Confed Division)
Exception: Vanity plates
Exception to Exception: Vanity plates in TN
Government MAY, via rational basis, discriminate funding artists whose work it finds offensive (NEA v. Finley)
Government MAY, via rational basis, discriminate against permanently, privately donated monument in public park (Pleasant Grove)
Note: Establishment Clause NOT violated in PG b/c there were 15 other such monuments in the public park
Government Funding of Speech Promoting Private Messages
Government MAY NOT deny derogatory trademarks like “The Sl*nts” band name (Matal v. Tam)
Note: trademarks are private messages merely protected by government
Note: surprisingly Alito wanted to guard against “capacious use” of Government Speech Doctrine
What are elements of defamation?
[Interesting PDFs Don’t Fly] (like paper airplane)
Identification
P must show audience could reasonably identify the plaintiff
Publication
P must show statements were disseminated to a 3P
Shopkeeper yelling “thief” w/ other people in store IS publication
Shopkeeper yelling “thief” w/ no people in store IS NOT publication
Defamatory Meaning - context is critical
P must show statements were capable of defamatory meaning
“lawyer cum fixer” is defamatory in context of accusing judge
Simple epithet is not defamator
Tricky when double meanings
Falsity
P has burden of proving falsity
Statement of Fact
NOT just pure opinion (in many states)
Caveat:
Milkovich v. Lorain: stmt of opinion CAN be stmt of fact if it IMPLIES an assertion of objective facts (i.e. you can’t just slap “I think” in front of assertion of objective fact to make it non-stmt-of-fact
**Damages** Stmt Must cause actual injury or special damages (i.e. easily ascertained) to plaintiff Some states have action of liberl per se or defamtion per se (many state variations) Assertion that plaintiff did Criminal behavior Assertion that plaintiff did Professional misconduct Assertion that plaintiff did Communicable disesasee Assertion that plaintiff did Sexual misconduct **Fault** P is private person? Negligence by defendant: P is private person P is public official? ACTUAL MALICE by defendant by clear and convincing of: P is public official or public figure (above and beyond normal malice and ill will) Prove D Knowing falsity OR Prove D Reckless disregard <---e.g. source told reporter a different important fact that reporter ignored: obvious source of info reporter did not pursue and it would have led to different story
[Interesting PDFs Don’t Fly] (like paper airplane)
What deprivations do NOT require pre-deprivation NOTICE under Procedural Due Process?
Personal property (also doesn’t require pre-deprivation OPPORTUNITY TO RESPOND or pre-deprivation HEARING)
Driver License (but usually requires pre-deprivation hearing)
Detention of US citizen (!)enemy combatants (also doesn’t require pre-deprivation OPPORTUNITY TO RESPOND or pre-deprivation HEARING)
What deprivations can sub an O2R instead of full evidentiary pre-deprivation hearing?
*Public education facing suspension of 10 days or more
Disability benefits
Continued employment/employment benefits for for-cause or tenured public employee
remember personal property and detention of citizen enemy combatants require NO O2R nor full pre-deprivation hearing at all!
*Exception for Suspension 9 days or less:
informal conversation between the student and school admin covering
1) the charges,
2) the evidence, and
3) giving student chance to tell his side of the stort is sufficient. Goss
Tell me about where the court uses categorical methodology and where it uses balancing methodology for free speech cases?
Court uses CATEGORICAL, non-balancing approach to Unprotected Categories (Obscenity, IILA, TT, FW, Defamation, Speech Int to other crime) uses Categorical Approach i.e. court’s apply the category to the facts and says it is ok or not ok…i.e. court does not use a methodology of “balancing” of individual interest v. govt interest
Court uses NONCATEGORICAL, balancing approach to content-neutral, of pure viewpoint discrim, commercial speech, special setting
What is the framework for an Equal Protection Clause analysis?
Factors: classification, type of right targeted, govt interest, govt action, not animosity, not negligence, intentionality —> outcome = standard of review
Standards of review:
SS (compelling interest + least restrictive means) presumed unconst’l:
SS classes: race, NO, religion, ethnicity, alienage non-federal govt, non-heart of govt function
IS (important interest + substantially related action + narrowly tailored means) presumed unconst’l:
IS Classes: gender, illegitimacy
RB (legitimate interest + rationally related action) presumed const’l :
RB classes: alienage w/ federal govt and heart of gov function, sexual orientation, occupation, econ social welfare (including discrim against home for parolees), most else
