Con Law (DONE) Flashcards
Federal Judicial Power
• Source: Article III
• Limit: Actual cases and controversies
• Doctrine: Justiciability, whether a lawsuit is capable
of judicial resolution as a case or controversy;
depends on:
• What it requests (no advisory opinions),
• When it is brought (ripe and not moot), and
• Who brings it (someone with standing).
FJP/Advisory Opinions
Rule: Federal courts may not render advisory opinions,
which lack:
• An actual dispute between adverse parties, or
• Any legally binding effect on the parties.
FJP/Ripeness
Ripeness (too early)
• Rule: Federal courts may only decide controversies
that are ripe for judicial review.
• Application: Pre-enforcement review of laws
(declaratory judgment actions) are generally not
ripe, unless,
• Substantial hardship in absence of review (the
more the better), and
• Issues and record are fit for review (the more
legal than factual the better).
FJP/Mootness
Mootness (too late)
• Rule: Federal courts may only decide live controversies, i.e., plaintiff suffers ongoing injury
Application: Live if:
• In suit for injunctive or declaratory relief, challenged
law or conduct continues to injure.
• In suit for damages, plaintiff not made whole.
Exceptions: Though injury has passed, not moot if:
• Injury is capable of repetition yet evades review
because of inherently limited duration.
• Defendant voluntarily ceases challenged activity,
but may restart at will, or
• In class actions, one plaintiff suffers ongoing
injury.
FJP/Standing
Rule: Plaintiff must have standing to sue. • The standing requirements are: • Injury • Causation • Redressability
FJP/Standing/Injury - What Constitutes Injury?
Almost any harm that is concrete (not hypothetical) and particularized (not general).
EXAMPLES: Physical, economic, environmental, loss of constitutional or statutory rights.
NOT: ideological objections or generalized
grievances as citizen or taxpayer.
• Citizen may not sue to force government to
obey laws. (Lujan, 1992)
• Taxpayer may not sue over how government
spends tax revenues.
• Official proponents of ballot initiative may
not defend enacted measure. (Perry, 2013)
EXCEPTIONS:
• Taxpayer challenge to own tax liability.
• Congressional spending in violation of
Establishment Clause. (spending money to support religious institutions)
— Not executive spending.
FJP/Standing/Injury - When Injury Must Occur
Injury must have occurred or will imminently occur.
• Injunctive or declaratory relief: must show likelihood
of future harm.
FJP/Standing/Injury - Who Must Suffer Injury
Injury must be personally suffered by plaintiff rather
than those not before court.
• No third-party standing.
FJP/Standing/Injury - Third Party Standing Exceptions
SEE CHART AND COPY INFO HERE (p. 6)
FJP/Standing - Causation
Plaintiff must show that the injury is fairly traceable to
the defendant’s behavior.
EXAMPLE: No causation where parents of black public schoolchildren challenged IRS failure to deny tax breaks to discriminatory private schools, claiming breaks caused public schools to be less integrated. (Allen, 1984)
FJP/Standing - Redressability
Plaintiff must show that a favorable court decision can
remedy the harm (e.g., through money damages or an
injunction).
EXAMPLE: No redressability where mother challenged state’s failure to prosecute for non-payment of child support, claiming loss of child support from lack of prosecution. Winning would only result in father going to jail, and no child support would be recovered. (Linda R. S., 1972)
FJP/Sovereign Immunity (11th Amendment)
SEE CHART IN NOTES AND COPY (p. 8)
FJP/Supreme Court Review
1) Final judgment rule
2) Independent and Adequate State Grounds
FJP/SCR - Final Judgment Rule
Supreme Court only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or (in special statutory situations) a three-judge district court.
FJP/SCR - Independent and Adequate State Grounds (ISAG)
Supreme Court will not review a federal question if the state court decision rests on an independent (separate) and adequate (sufficient) state law ground.
IASG exists if the outcome would be the same regardless of how the federal question is decided.
Federal Legislative Power
Source: A1, s.8
Limit: Enumerated powers. Unlike states, Congress has no general police power to pass laws.
- Exception: federal land, Indian reservations, D.C.
Necessary and Proper Clause:
• Not a basis of legislative power.
• Allows Congress to choose any rational means to
carry out an enumerated power, as long as means
not prohibited by Constitution.
Example: Article I gives Congress power to raise and support armies, but not to hold a bake sale. Nonetheless, Congress may choose the means of a bake sale to help raise and support armies. (As long as Congress argues that doing so is N&P, then they can do it.)
FLP - Enumerated Powers
1) Taxing and Spending Powers
2) Commerce Power
(MORE IN LONG OUTLINE
FLP/Enumerated Powers - Taxing and Spending Power
Congress may tax and spend to provide for the general welfare.
• Includes any public purpose not prohibited by
Constitution, even if not within an enumerated
power
EXAMPLES:.
• Tax on factory carbon emissions (no enumerated
power to regulate environment).
• Spending on schools for states following federal educational standards (no enumerated power to regulate local education).
• Tax on failure to purchase health insurance (no commerce power to compel purchase). (Sibelius, 2012)
FLP/EP/Taxing and Spending Power - Spending Conditions
• “Strings” must relate to purpose of spending and not violate Constitution. (Example: Cannot condition school spending on highway speed limits; highway spending on educational standards; or any spending on suppression of government criticism.)
• Strings cannot be “unduly coercive.” (Example: Withholding current Medicaid funding (over 10% state
budgets) if state refuses to participate in new Medicaid expansion under health care law. (Sebelius, 2012))
FLP/EP - Commerce Power
Rule: Congress may regulate commerce:
• Foreign nations
• Indian tribes
• Among states
FLP/EP/CP - Interstate Commerce
Broadest and most common basis for regulation. IC
includes:
• Channels of IC: highways, waterways, telephone
lines, Internet
• Instrumentalities of IC: planes, trains, automobiles,
persons in interstate commerce
• Substantial effect on IC in aggregate (even
purely local activities)
— E.g., growing wheat in backyard for home
consumption. (Wickard, 1942)
FLP/EP/CP - Interstate Commerce Limits
• Noneconomic activity in area traditionally
regulated by states.
• Compelling participation in commerce (even
if lack of participation substantially affects IC).
FLP/EP/CP - 14th Amendment Enforcement Power
Commerce power allows Congress to indirectly ban
private discrimination. Congress may directly ban
state discrimination under its 14A power to enforce the guarantee of equal protection.
EXAMPLE: Congress may authorize private suits against state governments for employment discrimination on basis of race, gender, and religion. (Bitzer, 1976, Title VII)
Federal Legislative Power - Delegation of Powers
-
FLP/DOP - To Agencies
May broadly delegate legislative power as long as some intelligible principle guides exercise of delegated power.
EXAMPLE: Delegation of authority to EPA to regulate air pollutants that “endanger public health or welfare.”
FLP/DOP - To President
No line-item veto.
• Rationale: violates bicameralism (passage by both
chambers) and presentment (giving bill in entirety
to President to sign or veto).
FLP/DOP - To Congress
No legislative veto to void duly enacted laws without
bicameralism and presentment. (Chadha, 1983)
EXAMPLE: Law providing one chamber of Congress may overturn agency regulations. (NOT ALLOWED, must pass another law to override an existing law.)
Federal Executive Power
Source: Article II
1) Domestic Powers
2) Foreign Powers
FEP - Domestic Powers
ENFORCEMENT: President has power (and duty) to execute laws.
Inherent (Implied) Presidential Powers
- Highest where authorized by Congress
- Lowest where prohibited by Congress
- Gray area where neither
FEP/DP - Implied Presidential Powers
Highest success where Pres. claims powers that are authorized by Congress (additive)
Lowest success where Pres. claims powers that are prohibited by Congress (subtractive)
Gray area where neither are the case
FEP - Foreign Powers
1) War
2) Treaties and Executive Agreements
FEP/Foreign Powers - War
• Congress alone has power to declare war.
• President as Commander in Chief has broad discretion to deploy troops internationally to protect
American lives and property (e.g., Vietnam).
— Challenges are likely non-justiciable as a political
question.
FEP/Foreign Powers - Treaties and Executive Agreements
SEE CHART ON P.17
Federalism
-
Federalism - 10th Amendment
Powers not granted to United States, or prohibited to
the states, are reserved to the states or the people.
• General Police Powers: reserved to states.
— Local health, safety, and economic regulations
receive rational-basis review unless they burden
a fundamental right or (quasi-)suspect class.
• Anti-Commandeering Principle: Congress cannot
compel states to enact or administer federal programs.
EXAMPLES: Congress CANNOT:
• Requiring states to enact environmental regulations.
(New York, 1992)
• Requiring local law enforcement to conduct background checks for federal handgun law. (Printz, 1997)
• Banning states from legalizing sports gambling (Murphy v. NCAA, 2018)
• EXCEPTION (not commandeering): non-coercive spending conditions.
Federalism - Supremacy Clause
Supremacy Clause of Article VI makes federal law preempt inconsistent state and local laws.
• Federal law: Constitution, statutes, regulations,
treaties, executive agreements.
Federalism - Preemption
• Express: Congress expressly says so.
• Implied
— Conflict: (i) Impossible to follow both federal
and state law; or (ii) state law impedes federal
law.
— Field: Extensive federal regulation indicates
congressional intent to “occupy the field.”
Federalism - Dormant Commerce Clause (Privileges & Immunities of Article IV overlap, Privilege or Immunities of 14A)
(“Negative Commerce Clause”) prohibits state laws
that discriminate against or unduly burden interstate
commerce.
P&I Art. IV: (“The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States”) prohibits state laws that discriminate against out-of-state U.S. citizens re:
• important commercial activities (earning livelihood),
or
• fundamental rights.
SEE CHARTS ON p. 20-21
Federalism - DCC Test
Discriminatory laws (favoring in-state over out-of-state commerce) are invalid unless: • necessary to achieve important gov purpose (unrelated to economic protectionism), and • no less discriminatory alternatives.
Non-discriminatory laws (evenly applied to in-state and out-of-state commerce) are valid unless burden on IC clearly outweighs non-protectionist benefits.
- is there a rational basis?
EXCEPTIONS when Congress can burden IC:
• congressional approval
• market participant (if states are acting directly as buyer or seller of interstate commerce)
Federalism - P&I Test
REQUIRES A U.S. CITIZEN
Discriminatory laws (favoring in-state over out-of-state citizens) are invalid unless: • necessary to achieve important gov purpose, and • no less discriminatory alternatives.
NO EXCEPTIONS
Federalism - Privileges OR Immunities under 14A
• Fundamental right to interstate travel.
— Right to enter/leave a state.
— Equal treatment once become permanent resident
of state.
- No fundamental right to international travel.
- Right to petition federal government.
(Treating residents as a different class based on history of citizenship)
Constitutional Framework for Protection of Individual Liberties
1) Application and Incorporation
2) State Action
3) Levels of Scrutiny
Individual Liberties - Application and Incorporation
• Except for 13A ban on slavery, Constitution applies
only to government action, not private conduct.
• Bill of Rights originally applies only to federal government.
• Most protections have been incorporated against
states (and their political subdivisions) through the
Due Process Clause of the 14A.
• Not (Yet): 3A right not to have soldiers quartered in
home, 5A right to grand jury indictment, 7A right to
jury in civil cases.
Individual Liberties - State Action
Easy Examples
• State law.
• State officials acting officially (even if unlawfully).
Other Examples Public Function: • Rule: state action exists when private party performs function done by government • traditionally and • exclusively.
STATE INVOLVEMENT RULE: Significant state involvement in challenged private conduct (e.g., assistance, encouragement, supervision, entwinement, or approval) may count as state action.
Individual Liberties - Levels of Scrutiny
MEMORIZE CHART ON P. 26
Procedural Due Process - Provisions
• Fifth Amendment Due Process Clause applies to
federal government.
• Fourteenth Amendment Due Process Clause applies
to states (and localities).
GENERAL RULE: Individual has right to a fair process when government acts to deprive of life, liberty, or property.
Procedural Due Process - Was there a deprivation of life, liberty, or property?
DEPRIVATION: Intentional (or perhaps reckless) rather than negligent.
LIBERTY:
• Physical freedom (e.g., from institutionalization,
deportation).
• Constitutional rights (e.g., parental rights).
• Not: mere harm to reputation.
PROPERTY:
• Real and personal, tangible and intangible.
• Government entitlement to which an individual has
a reasonable expectation of continued receipt.
EXAMPLES:
welfare benefits, public education, government licenses, tenured employment or term employment for duration of term.
Not: at-will employment.
Procedural Due Process - If Deprived, What Process is Due?
- Notice
- Opportunity to be heard
- Neutral decision-maker
Notice: Reasonably calculated to inform person of deprivation
Hearing: Pre-deprivation hearing generally preferred unless impracticable.
BALANCING TEST: determine nature and extent of procedures, considering:
• Importance of interest to individual
• Risk of error through procedures used
• Accuracy gain from additional procedures
• Burden on government (e.g., inefficiency and costs)
Substantive Due Process
Enumerated rights are specified in the Constitution or
Amendments (e.g., “the freedom of speech”).
Unenumerated rights are substantive component of
liberty protected by
• 14A DP Clause against states and localities.
• 5A DP Clause against federal government.
An enumerated or unenumerated right is fundamental
if it is
• Deeply rooted in this Nation’s history and tradition,
• Implicit in the concept of ordered liberty, or
• Identified as fundamental by reasoned judgment
and new insight.
Most rights in Bill of Rights have been deemed fundamental.
SDP - Enumerated Rights
Enumerated rights are specified in the Constitution or
Amendments (e.g., “the freedom of speech”).
SDP - Unenumerated Rights
Unenumerated rights are substantive component of
liberty protected by
• 14A DP Clause against states and localities.
• 5A DP Clause against federal government.
SDP - When are E/U rights fundamental?
An enumerated or unenumerated right is fundamental
if it is
• Deeply rooted in this Nation’s history and tradition,
• Implicit in the concept of ordered liberty, or
• Identified as fundamental by reasoned judgment
and new insight.
SDP - Due Process and/or Equal Protection
Denying everyone a fundamental right
• Substantive Due Process only
Denying some a fundamental right
• Substantive Due Process and
• Equal Protection
SDP - Levels of Scrutiny
- Fundamental Right = Strict Scrutiny
- Non-fundamental Right = Rational Basis
SEE CHART ON p. 31
SDP - Unenumerated Fundamental Rights
- Marriage
- Procreation
- Contraception
- Parental Rights
- Living with Extended Family
- Fundamental Right to Interstate Travel (14A Privileges or Immunities)
- Right to Vote
- Abortion
SDP/UFR - Marriage
• Substantial interference with right to marry is necessary to trigger strict scrutiny.
— Interracial marriage: bans on interracial marriage
trigger and fail strict scrutiny under due
process and equal protection analysis. (Loving,
1967)
— Same-sex marriage: fundamental right to marry
extends to same-sex couples, denial of which
violates due process and equal protection.
(Obergefell, 2015)
• Reasonable requirements to protect rather than
hinder right to marry are upheld under rational
basis.
SDP/UFR - Fundamental Right to Interstate Travel
- Right to enter and leave a state.
- Equal treatment once become resident of state.
- No fundamental right to international travel.
SDP/UFR - Right to Vote
Rational basis for reasonable requirements that protect rather than hinder right to vote.
• age (e.g., 18)
• residency (e.g., 50 days)
• citizenship (U.S. citizens)
Strict scrutiny for onerous or potentially discriminatory
restrictions.
• Poll taxes
• Literacy tests
SDP/UFR/Right to Vote - One Person, One Vote Principle
STATE AND LOCAL REPRESENTATIVES(including state senators)
• EP requires population of voting districts be
substantially equal.
EXAMPLE: 16% variance upheld as reasonable in light of state interest in preserving political subdivisions and communities and geographic factors. Below 10% is presumptively valid.
FEDERAL REPRESENTATIVES (not U.S. Senators)
• Art. I requires population of congressional districts
within a state to be as close to mathematical
equality as practicable.
EXAMPLE: 0.7% variance invalidated.
SDP/UFR - Racial Gerrymandering
Strict scrutiny if race was predominant factor.
SDP/UFR - Political Gerrymandering
Non-justiciable as a political question. (Rucho, 2019)
SDP/UFR - Abortion
Fundamental right, but gets its own test (Undue Burden)
SEE CHART ON PAGE 35
SDP - Unspecified Rights
- Private Consensual Adult Sexual Intimacy
- Refuse Medical Treatment
- Bear Arms
SDP/Unspecified Rights - Private Consensual Adult Sexual Intimacy
Rational basis review
SCOTUS has recognized right for adults to engage in sex in their own home, and has deemed irrational laws that ban same sex conduct.
SDP/Unspecified Rights - Refuse Medical Treatment
Nonfundamental, so subject to rational basis review.
• Competent adult may refuse life-saving medical
treatment.
— State may require clear and convincing evidence
of individual’s wish, and may prevent family members from terminating treatment. (Cruzan, 1990)
• No right to physician-assisted suicide. (Quill, 1997)
• State may compel vaccination against contagious
diseases. (Jacobsen, 1905)
SDP/Unspecified Rights - Bear Arms
2A protects right of individual at least to have handgun in home for self-defense. (Heller, 2008; McDonald, 2010)
• Standard of review undecided, but not rational
basis.
(CHOOSE INTERMEDIATE SCRUTINY BY DEFAULT)
Equal Protection Clause (14A and and 5A)
• 14A Equal Protection Clause applies to states (and
localities).
• 5A Due Process Clause has “Equal Protection component” that applies to federal government.
TRIGGER: Government treating people differently.
ANALYSIS:
1) Classification
2) Level of Review
Equal Protection - Classifications
- Facial, OR
- Disparate impact AND discriminatory intent
EXAMPLE:
• Facial gender classification: law expressly taxes income of women at higher rate than men.
• Non-facial gender classification: law taxes income of
shorter individuals at higher rate, AND emails expose
purpose to discriminate against women.
RATIONAL BASIS: age, disability, wealth, alienage classifications by Congress, alienage classifications by state related to democratic governance, all other classifications
INTERMEDIATE SCRUTINY: gender, non-marital children, undocumented alien children (maybe)
STRICT SCRUTINY: race, national origin, alienage classifications by state generally, denial of fundamental rights to some
EP/Classifications - Race and National Origin
TEST: Strict Scrutiny
HYPOS:
1) Busing pupils on racial basis to remedy effects of past legalized segregation in district is VALID because SCOTUS said there is a compelling interest in desegregation, and if the busing is NARROWLY TAILORED to promote desegregation, then it’s valid.
2) Busing pupils to integrate or diversify schools beyond remedying effects of past legalized segregation in district is NOT VALID. No compelling interest in racial balancing, and busing solely on the basis of race is not narrowly tailored.
EP/Classifications - Race/Affirmative Action
Favoring race diversity in school attendance is a valid classification, and race is a non-dispositive factor in a holistic factor of each applicant as a critical mass of minority students in the student body is a narrowly tailored to promote a valid objective.
BUT: Assigning a fixed point quota for race is too broadly tailored.
EP/Classifications - Alienage (Non-Citizen Status)
Congressional Classification
Test: rational basis.
State and Local Classification
Test: strict scrutiny.
EXAMPLE: State and local governments may not require U.S. citizenship for employment (generally), government benefits, property ownership, or admission to bar.
EXCEPTION: State and local governments may reasonably require U.S. citizenship for activities and positions integral to democratic self-governance.
- Ex: Voting, holding elective office, being police officers or public school teachers. NOT: notaries public.
EP/Classifications - Gender Discrimination
Test: Intermediate Scrutiny
Interpretation (RBG): Important interest requires exceedingly persuasive justification, not role stereotype.
HYPO:
1) State law giving only women alimony upon divorce is NOT VALID.
2) Excluding women from state military school on the basis that men make the best soldiers is NOT VALID, and the failure of schools to even try to admit women is a failed classification.
3) Selective Service Act requires only males, not females, to register for the draft is VALID because Congress has plenary power to raise armies.
EP/Classifications - Non-Marital Children (illegitimacy)
Test: Intermediate Scrutiny
- – Laws that discriminate against all non-marital children are likely prejudicial and invalid.
- – Laws that distinguish among non-marital children are more likely to be upheld.
EP/Classifications - Children of Undocumented Aliens
Test: unclear. Maybe intermediate scrutiny, but RATIONAL BASIS is safest bet.
— Law denying children of undocumented aliens free
public education was invalidated. Unclear whether
Court applied rational basis or heightened (intermediate) scrutiny. (Plyler, 1982)
EP/Classifications - Fundamental Rights
Test: Strict Scrutiny
— ex: Denial of right to marry to smokers
EP/Classifications - All Other Classifications
Test: Rational Basis
- – includes every other class, no matter how blatant
- – ex: age, disability, income, intelligence, health, sexual orientation
BUT: Animus is not rational.
• State law denying discrimination protection to gays
and lesbians is invalid. (Romer, 1996)
• Federal law refusing to recognize same-sex couples
married under state law as married for purposes of federal law (e.g., benefits) is invalid. (Windsor, 2013)
Takings Clause
RULE: Federal government (5A Taking Clause) and states (14A DP) may not take private property unless:
1) Take it for public use
2) There is just compensation
PROPERTY:
- real personal property
- some intangible property
- ex: Interest on attorney trust accounts, trade secrets. Not: welfare benefits.
Takings Clause - What is a Taking?
Physical Taking
• Confiscation
• Regular or permanent occupation
— Temporary occupation: may be takings (depending
on degree of invasion, duration,
government intention and foreseeability with
respect to result, character of property and
interference with use, Arkansas Game and Fish
Comm’n, 2013)
EXCEPTIONS:
1) Development Exception: traditional conditions on
property development (e.g., streets, utility easements)
are not taking if benefits are roughly proportional
to burdens.
2) Emergency Exception: taking less likely to be
found, even for complete and permanent deprivation,
if pursuant to public emergency such as war.
Takings Clause - Regulatory Taking
BRIGHT-LINE RULE: Taking if regulation on use does
not merely diminish property value but leaves no
economically viable use. (Lucas, 1992)
AD-HOC ANALYSIS: Maybe (but difficult to claim) a
taking considering:
• economic impact of regulation,
• interference with investment-backed expectations,
and
• character of government action. (Penn Central,
1978)
Takings Clause - Public Use
Public purpose: Any legitimate public purpose, i.e.,
any purpose that government reasonably believes will
benefit public.
Takings Clause - Just Compensation
Fair market value at time of taking (benefit to government is irrelevant).
Retroactive Legislation
-
RL - Contract Clause
“No State shall . . . pass any . . . law impairing the Obligation of Contracts.”
Applicability:
- State and Local Laws ONLY
- NOT:
- – Federal Government
- – Judicial decisions
RL/Contract Clause - Private Contracts
Substantial impairment of existing rights invalid unless:
• legitimate or significant purpose, AND
• reasonable or appropriate means
RL/Contract Clause - Public Contracts
Heightened scrutiny (intermediate or strict scrutiny) because of potential for government self-dealing.
HYPO 11A: State regulatory agency temporarily bans disposal wells for fracking wastewater following epidemic of earthquakes in surrounding area pending study of causation. Valid? (Cf. Keystone, 1987)
— YES, the private contract is temporarily suspended, so Govt needs to show action is limited to an important and legitimate purpose (preventing earthquakes), and is reasonably appropriate (not permanent and turns on what the study shows).
HYPO 11B: City retroactively reducing reimbursement rate for contractors’ travel expenses. Valid?
— No, retroactive reduction is a substantial interference with contract laws, so need to look closely at whether government is getting a better deal from this. Here, Govt is saving money, which isn’t a legitimate purpose.
RL - Ex Post Fact Laws
RULE: Neither state nor federal government may pass
legislation that retroactively alters criminal liability.
CATEGORIES:
• Criminalize act that was innocent when done.
• Make crime greater than when committed.
• Set greater punishment than when act was done.
• Reduce evidence required to convict from what was required at time of act.
RL - Bills of Attainder
RULE: Neither state nor federal government may pass
legislation that designates particular individuals (by
name or description) for punishment without judicial
trial.
PUNISHMENTS PROHIBITED: Traditional sanctions (e.g., death, prison, fines, confiscation) and punitive measures (e.g., exclusion from employment and benefits).
EXAMPLE: Federal budget law denying salary payments to federal employees that Congress determined to be subversive. (Lovett, 1946)
Freedom of Speech
SEE CHART ON P. 52
FOS - What is Speech?
Words, symbols, and expressive conduct
FOS/Speech - Expressive Conduct
• Conduct that is inherently expressive.
• Conduct that is:
— intended to convey message, and
— reasonably likely to be perceived as conveying message.
FOS - Unprotected and Protected Speech
• The “freedom of speech” protected by the 1A does not include certain categories of unprotected speech.
• Two categories receive only partial protection under their own special test: defamation and commercial speech.
• All other expression receives full 1A protection
(column 3A).
FOS - Incitement
TEST: Advocacy of lawless action that is:
• intended to produce imminent lawless action, and • likely to produce imminent lawless action.
Mere advocacy of lawlessness is protected speech.
FOS - Fighting Words
TEST: Words likely to provoke an immediate violent response.
FOS - True Threats
TEST: Words intended to convey to someone a serious threat of bodily harm. (Perhaps recklessly conveying such a threat suffices. Cf. Elonis, 2015.)
FOS - Obscenity
Test: Depiction of sexual conduct defined by state law that taken as a whole, by contemporary community standards,
• appeals to the prurient interest in sex,
• is patently offensive, AND
• lacks serious social value by national standards.
Mere nudity, soft-core pornography, and “dirty words” are not obscene.
Right to privacy extends to possession of obscenity at home, which may not be banned. (Stanley, 1969)
Sexually explicit or indecent speech that is not obscene may nonetheless be subject to zoning:
• to protect children and unwilling adults from exposure, or
• to prevent neighborhood crime and decay.
• Ample alternative channels must exist for the speech.
FOS - Child Pornography
Test: Depiction of children engaging in sexual conduct defined by state law, whether or not obscene.
• Must be actual children (not virtual or adult actors).
• In-home possession may be banned. (Osborne, 1990)
FOS/Partially Protected - Defamation
RULE: To promote robust public debate, 1A bars recovery under state defamation law for speech made without actual malice about
• public officials,
• public figures, or
• matters of public concern.
FOS/PP/Defamation - Actual Malice
- Knowledge of falsity, or
* Reckless disregard of the truth.
FOS/PP/Defamation - Public Officials
• Holding or running for elective office (at any level).
• Public employees in positions of public importance
(e.g., prosecutor, school principal, police officer).
FOS/PP/Defamation - Public Figures
- Assumed roles of prominence in society.
- Achieved pervasive fame and notoriety.
- Thrust themselves into particular public controversies to influence their resolution.
FOS/PP/Defamation - Public Concern
Matters important to society and democracy.
FOS/PP/Defamation - Application
- Type of plaintiff (public official, public figure, or private figure), and
- Subject matter of the alleged defamation (public or private concern).
Those will determine:
• Whether the plaintiff must prove actual malice (in addition to proving state defamation elements), and
• What damages plaintiffs may recover.
FOS/PP/Defamation - IIED (and other torts)
Court has required actual malice for recovery under intentional infliction of emotional distress and other torts, at least where plaintiff is public figure or public official, or speech is on matter of public concern.
EXAMPLE: No IIED or other tort recovery against Westboro Baptist Church for funeral picketing even if political and religious messages (e.g., “Thank God for Dead Soldiers”) were “outrageous.” (Snyder, 2011).
FOS/PP - Commercial Speech
Includes: ads and promotions of products and services, brand marketing (e.g., Nike swish)
Insufficient: profit motive (e.g., Dickens, New York
Times)
UNPROTECTED:
• false,
• misleading, or
• illegal product or service
PROTECTED: all other commercial speech
TEST (Intermediate Scrutiny):
• Substantial government interest (e.g., consumer protection)
• Narrowly tailored (reasonable fit => least restrictive)
FOS - General Speech Restrictions
Restrictions on protected speech that are generally applicable (i.e., not limited to public property, public schools, or public employees).
General Tests:
- Content-based = strict scrutiny
- Content-neutral = intermediate scrutiny
FOS/General Speech Restrictions - Content-Based
STRICT SCRUTINY
Content-based restrictions facially target certain topics or messages, or are justified by reference to potential harms produced by certain topics or messages.
FOS/General Speech Restrictions - Content-Neutral
INTERMEDIATE SCRUTINY
Content-neutral restrictions do not target certain topics or messages, and suppress speech for reasons unrelated to any topics or messages.
• Often channels speech on basis of time, place, or
manner.
FOS - Speech Restrictions on Government Property
-
FOS/Government Property - Traditional Public Forum
Description: Open to public as free speech zone “from time immemorial”.
Ex: Parks, streets, sidewalks
Note: Cannot be undesignated as public forum.
FOS/Government Property - Designated Public Forum
Description: Opened by policy or purposeful practice as free speech zone
Ex: College kiosks, college email systems
Note: Can be undesignated as public forum
FOS/Government Property - Limited Public Forum
Description: Reserved for particular topics or speakers
Ex: Courtroom, university classroom, university student activity fund
Note: Sometimes called non-public forums
FOS/Government Property - Non-Public Forum
Description: Not opened by tradition or designation as free speech zone
Ex: Post offices, DMVs, airports
Note: Catch-all category
FOS/Government Property - Levels of Scrutiny
Public Forums:
- CB = SS
- CN = IS
Limited/non-public Forums
- Reasonable given nature of Forum (SS if viewpoint-based)
(Viewpoint-based = CB restrictions that limits speech to one side of subject (e.g., allowing “pro-choice” but not “pro-life” speech on abortion))
FOS - Public Schools
STUDENT SPEECH TEST:
1) Personal Student Speech
- –CANNOT be censored absent evidence of substantial disruption
- –EXCEPTION: speech promoting illegal drug use does not require showing any disruption
2) School Speech (including curricular student speech)
- – CAN be censored if reasonably related to legitimate pedagogical concern
FOS - Public Employment
Public Employee Speech
UNPROTECTED:
• private concern at workplace (e.g., office gossip), or
• public concern, but pursuant to official duties (e.g., TPS report, closing argument)
PROTECTED:
• private concern outside workplace (e.g., dinner conversations), or
• public concern, as citizen rather than pursuant to official duties, at or outside workplace (e.g., political chat at lunch)
TEST:
Balance speech value v. state interest in efficient and
effective operation.
FOS - Political Patronage
Public employees may not be hired or fired based on political affiliation or expression.
• Exception: high-level policy-makers and advisers.
FOS - Vagueness
Test: Law is void for vagueness if persons of common intelligence cannot tell what speech is prohibited and what is permitted.
FOS - Overbreadth
Test: Law is invalid as overbroad if it prohibits a substantial amount of speech that the government may not suppress.
• Third-party standing is allowed (plaintiff whose
speech may be censored raises non-commercial
speech claim on behalf of others whose speech
may not be censored).
FOS - Prior Restraints
Definition: Licensing schemes (e.g., permits) or injunctions that prevent speech before it occurs, rather than punishing speech afterwards.
Disfavored: Historically, prior restraints have been greatly disfavored. No special tests, but harder for government to win.
- – Content-based restraints = VERY strict scrutiny
- – Licensing systems must have sufficiently definite standards to cabin discretion, as well as prompt judicial review of denials.
FOS - Press, Expressive Associations, and Corporations and Unions
Press, expressive associations (e.g., political parties, NAACP, NRA), and corporations and unions (engaging in non-commercial speech, e.g., political advocacy) are generally treated the same as other speakers.
FOS - Government Speech
Government speech is generally not subject to 1A.
• 1A does not constrain government from espousing whatever views and policies it wishes. (Walker, 2015)
• 1A does constrain government’s ability to compel
private parties to convey message.
Freedom of Religion - Free Exercise Clause
Religion:
Traditional religion as well as beliefs that play role in life of believer similar to the role that religion plays in life of traditional adherents.
• To decide religious claims, government (including courts) may inquire into the sincerity of religious beliefs, but not their truth.
FREE EXERCISE TEST:
• Discriminatory laws = strict scrutiny
• Neutral laws of general applicability = not subject
to Free Exercise Clause
— Exception: Free Exercise Clause exempts religious
organizations from neutral employment
laws in hiring or firing ministers. (Hosanna-Tabor,
2012)
FOR/Free Exercise Clause - Discriminatory Laws
- Not neutral facially with respect to religious belief, conduct, or status.
- Not generally applicable but targeted at religion generally or a religion in particular.
Exception to neutral law of general applicability to accommodate religious practice is not required by Free Exercise Clause, but does not violate Establishment Clause.
FOR - Establishment Clause
Note: Court has not settled on single test, so government may violate under one or more tests.
NEUTRALITY
COERCION
FOR/Establishment Clause - Neutrality Test
Neutrality Test: Government must remain neutral with respect to religion, neither favoring nor disfavoring it.
EXAMPLES:
• Neutral: providing police and fire protection to churches on same basis as to secular community.
• Favor: exemption of religious publications, but not others, from sales tax.
• Disfavor: allow all student groups, except religious ones, after-hours access to school meeting rooms. (Good News Club, 2001)
FOR/Establishment Clause - Coercion Test
Coercion Test: Government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) religion.
EXAMPLES:
• Direct: fines for not attending church.
• Indirect: providing for clergy invocation and benediction at middle-school graduation (But cf. town meeting with opening prayer by open selection process). (Weisman, 1992)
FOR/Establishment Clause - Lemon Test
Note: The violation of these prongs is also a violation of the Establishment Clause.
Unconstitutional if: (P.E.E.)
- primary purpose is sectarian, or
- primary effect is sectarian, or
- excessive entanglement between government and religion
EXAMPLES:
• Purpose: posting copies of Ten Commandments on
walls of public school classrooms has a primarily sectarian purpose, despite legislative statement to contrary. (Stone, 1980)
• Effect: reciting Lord’s Prayer at beginning of public school day.
• Entanglement: micromanagement and constant monitoring by public school officials to ensure that special education teachers sent to parochial schools do not teach religion. (Cf. Lemon, 1971)
FOR/Establishment Clause - Endorsement Test
Endorsement Test: From standpoint of reasonable and informed observer, government must not appear to endorse or disapprove of religion, making it seem relevant to a person’s standing in the political community.
EXAMPLES:
• Endorsement: lone display of nativity scene on courthouse steps. (Allegheny County, 1989)
• Non-endorsement: display of creche surrounded by Santa, reindeer, elephant, clown, candy cane, Teddy bear, and other non-sectarian holiday symbols. (Lynch, 1984)
FOR/Establishment Clause - History and Tradition
History and Tradition Approach: Sometimes the Court sets aside the above principles and finds that a state religious display or practice is a tolerable acknowledgment of the role religion has played in the history and tradition of the nation.
• Note: helps if the display or practice has been
around for a while or is in historical setting.
EXAMPLES:
• Prayer opening legislative session or city council meeting. (Marsh, 1983; Galloway, 2014)
• Four-decade-old Ten Commandments on Texas capitol grounds surrounded by other displays of historical or societal significance. (Van Orden, 2005)
• Large WWI memorial cross on median. (American
Humanist Assoc., 2019)
