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
