Con Law Outline Review Flashcards
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
The Constitution grants Congress a number of specific powers, many of which are enumerated in Article I, Section 8. It also grants Congress auxiliary power under the Necessary and Proper Clause.
- Taxing Power
Congress has the power to lay and collect taxes, imposts, and excises, but they must be _____ throughout the United States. [Art. I, §8] Capitation or other _____ must be laid in proportion to the census [Art. I, §9, cl. 4], and direct taxes must be _____ [Art. I, §2, cl. 3].
d. Taxes Are Generally Valid
Absent a specific restriction such as those above, be very hesitant to rule against a tax measure on the exam. A tax measure will be upheld if it bears some reasonable relationship to _____ or if Congress has the _____ the taxed activity.
Example: Special excise tax levied on dealers in illegal narcotics is valid because it raises revenue. [United States v. Doremus, 249 U.S. 86 (1919)]
____________________
X. POWER OF STATES TO TAX INTERSTATE COMMERCE
A. GENERAL CONSIDERATIONS
The same general considerations applicable to state regulation of commerce apply to taxation. Pursuant to the Commerce Clause, Congress has complete power to _____ or_____ state taxation affecting interstate commerce. If Congress has not acted, look to see _____. If it does, it is _____. If it does not, assess _____. Three tests must be met: (i) there must be a _____ between the taxpayer and the state; (ii) the tax must be _____; and (iii) there must be a fair relationship between the tax and _____.
uniform
direct taxes
apportioned among the states
revenue production
power to regulate
authorize
forbid
whether the tax discriminates against interstate commerce
invalid
whether the burden on interstate commerce outweighs the benefit to the state
substantial nexus
fairly apportioned
the services or benefits provided by the state
X. POWER OF STATES TO TAX INTERSTATE COMMERCE
* * *
D. AD VALOREM PROPERTY TAXES
Ad valorem property taxes are taxes based on _____. Such taxes are generally _____. However, a Commerce Clause issue arises when the property taxed _____. Goods in transit are _____ from taxation. Once the goods _____ (i.e., obtain a taxable situs), they may be taxed. Then, the issue usually revolves around whether _____.
- Tax on Instrumentalities Used to Transport Goods Interstate
The validity of ad valorem property taxes on instrumentalities of commerce (airplanes, railroad cars, etc.) depends on (i) whether the instrumentality has acquired a “taxable situs” in the taxing state (i.e., whether there are _____), and (ii) since the physical situs of the instrumentalities may change from state to state during the year, whether the value of the instrumentality _____. (The taxable situs (“_____”) is required by the _____ to establish the state’s power to tax at all, and apportionment is required by the _____ to prevent _____.)
a. Taxable Situs (“Nexus”)
In general, an instrumentality has a taxable situs in a state if it _____ from the state. [Braniff Airways v. Nebraska Board of Equalization and Assessment, 347 U.S. 590 (1954)—airplanes have taxable situs in nondomiciliary state where airline company owned no property but made 18 regularly scheduled flights per day from rented depot space, even though same aircraft did not land every day] Note that an instrumentality may have more than one taxable situs, upon each of which states can impose a tax subject to _____ (infra).
b. Apportionment Requirement
If an instrumentality has only one situs, the domiciliary state can tax _____. If the instrumentality has more than one taxable situs, a tax apportioned on the value of the instrumentality will be upheld if it _____. [
a percentage of the assessed value of the property in question
valid
moves in interstate commerce
totally exempt
come to a halt in a state
the tax imposes an undue cumulative burden (i.e., apportionment).
sufficient “contacts” with the taxing state to justify the tax
has been properly apportioned according to the amount of “contacts” with each taxing state
nexus
Due Process Clause
Commerce Clause
an intolerable burden on interstate commerce
receives benefits or protection
the required apportionment
at full value
fairly approximates the average physical presence of the instrumentality within the taxing state
taxpayer
proportion of miles traveled
average number of instrumentalities (tank cars)
double
the double taxation should be minimal if proper apportionment formulas have been used
X. POWER OF STATES TO TAX INTERSTATE COMMERCE
* * *
E. PRIVILEGE, LICENSE, FRANCHISE, OR OCCUPATION TAXES
Privilege, license, franchise, and occupation taxes are cumulatively known as “doing business” taxes. States generally can impose such taxes—on companies _____, as well as on _____—for the privilege of doing business within the state. Such taxes may be measured by _____ or by a _____ based on _____ derived from the taxing state. In either case, the tax must meet the basic requirements—the activity taxed must have a _____ to the taxing state; and the tax must be _____, must not discriminate against _____, and must _____ to services provided by the state. [Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977)—overruling Spector Motor Service v. O’Connor, 340 U.S. 602 (1951)]
Examples: 1) A privilege tax for doing business, based on the gross income derived from transporting goods within the state, can be applied to a trucking company that delivers goods coming from outside the state. [Complete Auto Transit, Inc. v. Brady, supra]
2) An occupation tax on all businesses, based on gross income derived within the state, can be applied to a stevedoring company operating within the state that loads and unloads ships carrying goods in interstate commerce. [Department of Revenue v. Association of Washington Stevedoring Cos., 435 U.S. 734 (1978)—overruling Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 442 (1947)]
- Taxpayer Has Burden of Proof
The taxpayer has the burden of showing that the state’s apportionment formula is unfair. However, a state tax that discriminates against interstate commerce will be held invalid regardless of whether the taxpayer can show that an _____, unfair multiple burden is imposed on his business.
engaged exclusively in interstate commerce
interstate companies engaged in local commerce
a flat amount
proportional rate
revenue
substantial nexus
fairly apportioned
interstate commerce
fairly relate
actual
X. POWER OF STATES TO TAX INTERSTATE COMMERCE
* * *
B. USE TAX
Use taxes are taxes imposed on the users of goods _____.
- Permissible in Buyer’s State
Use taxes are not considered to discriminate against interstate commerce even though they single out interstate commerce for taxation (i.e., they are imposed only on goods purchased _____), as long as the use tax rate is _____. Rationale: The purpose of such a tax is to equalize the tax on in-state and out-of-state goods rather than to _____. [See Henneford v. Silas Mason Co., 300 U.S. 577 (1937)] - State May Force Seller to Collect Use Tax
Often, states force the user to come forward and pay the state the use tax owed. However, a state may force a nonresident, interstate seller to collect the use tax from the local buyer and remit it to the state if the seller has the _____ required by the Commerce Clause. The substantial nexus requirement can be met if the seller _____, e.g., _____. Merely ______ into the state is not sufficient. [Quill Corp. v. North Dakota, 504 U.S. 298 (1992)]
purchased out of state
outside the state
not higher than the sales tax rate
give in-state goods an advantage
substantial nexus
engages in some significant activity in the buyer’s state
maintains offices there
soliciting orders by mail and shipping orders
IX. REGULATION OF INTERSTATE COMMERCE
* * *
B. STATE REGULATION OF COMMERCE IN THE ABSENCE OF CONGRESSIONAL ACTION
If Congress has not enacted laws regarding the subject, a state or local government may regulate _____ aspects of interstate commerce if the regulation:
(i) Does not discriminate against _____ to benefit local economic interests; and
(ii) Is not _____ (i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation).
If either test is not met, the regulation will be held void for violating the _____.
- Discriminatory Regulations
a. Generally Invalid
State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid.
c. Exceptions
1) Necessary to Important State Interest
A discriminatory state or local law may be valid if it furthers _____ (e.g., health or safety) and _____.
Example: A state could prohibit the importation of live baitfish (such as minnows) into the state because the state could demonstrate that it had no other way of effectively avoiding the possibility that such baitfish might bring certain parasites into the state or, in other ways, have a detrimental effect on the state’s wild fish population. [Maine v. Taylor, 477 U.S. 1138 (1986)] However, a state could not prohibit the export of live baitfish to out-of-state purchasers because the sale of such fish to out-of-state purchasers would not impair any interest of the state, except the interest of protecting local purchasers of baitfish from competition by out-of-state purchasers. [Hughes v. Oklahoma, 441 U.S. 322 (1979)]
2) State as Market Participant
The Commerce Clause does not prevent a state from preferring its own citizens when the state is acting as a market participant (e.g., _____).
Examples: 1) A state may purchase scrap automobiles from its citizens at a higher-than-market rate and refuse to pay nonresidents the same amount. [Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976)]
2) Under the market participant exception to the Commerce Clause, a city may require that all construction projects funded by the city be performed by contractors using a workforce composed of at least 50% bona fide residents of the city. [White v. Massachusetts Council of Construction Employers, 460 U.S. 204 (1983)]
a) Limitation—Interstate Privileges and Immunities Clause
While a state or local government does not violate the Commerce Clause by preferring its own citizens while acting as a market participant, there is no market participant exception to the Interstate Privileges and Immunities Clause. Thus, a regulation that interferes with private sector employment, such as the one in example 2), above, may violate the Privileges and Immunities Clause unless the regulating entity can show a substantial justification for the regulation.
b) Limitation—“Downstream” Restrictions
While a state may choose to sell only to state residents, it may not attach conditions to a sale that would discriminate _____.
Example: Alaska violated the Commerce Clause when it imposed a contractual requirement on purchasers of state-owned timber that the timber be processed in Alaska before being shipped out of state. [South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82 (1984)—plurality opinion]
3) Favoring Government Performing Traditional Government Functions
The Supreme Court applies a more lenient standard when a law favors government action involving the performance of a _____ (such as waste disposal). Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism.
Examples: 1) A county flow control ordinance that favored a state-created public waste facility by requiring waste haulers to bring the wastes to the state facility rather than to private facilities is valid. [United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330 (2007)]
2) A state may exempt from state taxation interest on its own bonds and bonds of its municipalities while taxing bonds of other states and their subdivisions. [Department of Revenue of Kentucky v. Davis, 533 U.S. 328 (2008)—issuing debt securities to pay for public projects is a “quintessentially public function” with a venerable history]
local
out-of-state competition
unduly burdensome
Commerce Clause (sometimes called the “Dormant Commerce Clause” or “Negative Commerce Clause” under such circumstances)
an important, noneconomic state interest
there are no reasonable alternatives available
buying or selling products, hiring labor, giving subsidies
against interstate commerce
traditional government function
XIV. PROCEDURAL DUE PROCESS
A. BASIC PRINCIPLE
The Due Process Clauses of the _____ Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states) provide that the government shall not take a person’s life, liberty, or property without due process of law. Due process contemplates fair process/procedure, which requires at least an _____ to the proposed action to a fair, neutral decisionmaker (not necessarily a judge).
- When Is Individualized Adjudication Required?
There is a right to procedural due process only when the government acts to deprive an individual of life, liberty, or property (see below). There is no right to individualized adjudication _____, even if the _____.
Example: A state legislature need not provide individuals with an opportunity for a hearing when adopting the general requirements for obtaining a driver’s license (e.g., age, residence, ability, etc.), but it must provide individualized process to determine whether a particular person meets the requirements. - Intentional Deprivation vs. Negligent Deprivation
Fair process is required for _____ of the government or its employees. If an injury is caused to a person through the mere _____ of a government employee, there is no violation of the Due Process Clause. [Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986)]
a. “Deprivation”
A “deprivation” of life, liberty, or property requires more than _____. Only when the government _____ may a deprivation of life, liberty, or property result. [Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999)]
- Fair, Neutral Decisionmaker—Judge Bias
The Due Process Clause requires a judge to recuse himself when he has _____ (e.g., he has a direct, personal, substantial, pecuniary interest in a case) or when there is _____. A serious risk of actual bias exists when “under a realistic appraisal of psychological tendencies and human weakness,” the judge’s interest poses such a risk of actual bias or prejudice that it must be forbidden. [Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009)]
Example: The chairman of a company spent over $3 million to support an attorney’s campaign to be elected to the state supreme court after a $50 million verdict was entered against the chairman’s company, knowing that the supreme court would eventually hear the appeal of the verdict. The $3 million was more than the total amount spent by all of the other supporters of the attorney, and the attorney won by fewer than 50,000 votes. When the case was appealed, the winner of the verdict asked the newly elected justice to recuse himself. Under these circumstances, recusal was required. [Caperton v. A. T. Massey Coal Co., supra] - Protection vs. Creation
The due process provisions do not create ; their purpose is to _____. Hence, the Fourteenth Amendment Due Process Clause does not, for example, give out-of-state attorneys the right to appear in state courts without meeting a state’s bar admission requirements. [Leis v. Flynt, 439 U.S. 438 (1979)]
Fifth
opportunity to present objections
when the government acts generally
action will result in burdening individuals’ life, liberty, or property interests
intentional acts
negligence
a mere denial of certain kinds of remedies
affords no remedy or inadequate remedies
actual bias
merely a serious risk of actual bias
provide procedural safeguards against arbitrary deprivation
XII. LIMITATIONS ON POWER AND STATE ACTION REQUIREMENT
A. CONSTITUTIONAL RESTRICTIONS ON POWER OVER INDIVIDUALS
The Constitution provides individuals with a number of rights that restrict the power of the government (e.g., the right to speak freely). Some rights/restrictions are applicable only to the federal government, some are applicable only to state and local governments, and some are applicable to all governmental bodies. A few even apply to private action. Several constitutional provisions also give Congress the power to adopt legislation to protect individual rights.
Note: The Constitution sets the _____ level of protection for individuals. States generally are free to grant _____ than those granted in the United States Constitution.
- Bill of Rights
The Bill of Rights (first 10 Amendments to the Constitution) is the most important source of limitations on the federal government’s power. By its terms, the Bill is not applicable to the states, although most of its safeguards have been held to be applicable to the states through the Fourteenth Amendment Due Process Clause.
a. Rights Applicable to States
The Supreme Court has stated that only those safeguards in the Bill of Rights that are “_____” are applicable to the states through the Fourteenth Amendment. Included in this concept are: _____
b. Rights Not Applicable to States
There are four provisions of the Bill of Rights that have not yet been incorporated into the Due Process Clause: _____.
minimum
broader protections
essential to liberty
1st (all) 2nd (bear arms) 4th (search and seizure) 5th (self incrimination/eminent domain) 6th (see below) 8th (cruel and unusual; bail; fines)
all the First Amendment guarantees (speech, press, assembly, right to petition, free exercise, and nonestablishment of religion); the Second Amendment right to bear arms; the Fourth Amendment (unreasonable search and seizure); some elements of the Fifth Amendment (privilege against self-incrimination; compensation for taking of private property for public use); the Sixth Amendment (speedy and public trial by impartial jury, notice and right of confrontation, compulsory process, and right to legal counsel in all serious criminal proceedings); and the Eighth Amendment (cruel and unusual punishment, excessive bail, and excessive fine provisions are assumed to be incorporated but there is no precise ruling).
3rd (quartering troops)
5th (grand jury indictment)
7th (trial by jury in civil)
8th (excessive fines)
(i) The Third Amendment prohibition against quartering troops in a person’s home;
(ii) The Fifth Amendment right to a grand jury indictment in criminal cases;
(iii) The Seventh Amendment right to a jury trial in civil cases; and
(iv) The Eighth Amendment right against excessive fines.
[See McDonald v. Chicago, 130 S. Ct. 3020 (2010)] The Tenth Amendment, by its terms, limits the federal government’s power over states, and so is inapplicable to the states.
XVI. INTRODUCTION TO SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION
B. WHAT STANDARD OF REVIEW WILL THE COURT APPLY?
The Court employs one of three tests in reviewing laws under these clauses, depending on the circumstances.
- Strict Scrutiny (Maximum Scrutiny)
The Court uses the strict scrutiny standard when a _____ or _____ (these terms will be discussed infra) is involved. Under the strict scrutiny standard, a law will be upheld only if it is _____ to achieve a _____ or _____ government purpose. The Court will always consider whether less burdensome means for accomplishing the legislative goal are available. Most governmental action examined under this test fails.
a. Burden of Proof on Government
When the strict scrutiny standard is applied, the government will have the burden of proving that the law is necessary. The Court will not allow a loose fitting law (i.e., if a law reaches more people or conduct than is necessary (_____) or does not reach all of the people or conduct sought to be regulated (_____), it will likely be struck down).
- Intermediate Scrutiny
The Court uses intermediate scrutiny when a classification based on _____ or _____ is involved. Under the intermediate scrutiny standard, a law will be upheld if it is_____ related to _____ government purpose.
a. Burden of Proof Probably on Government
It is unclear who has the burden of proof when the Court uses the _____, but in most cases, it appears to be the government.
suspect classification
fundamental right
necessary
compelling
overriding
overinclusive
underinclusive
gender
legitimacy
substantially related
an important
intermediate standard
XVIII. EQUAL PROTECTION
D. SUSPECT CLASSIFICATIONS
- Race and National Origin
If governmental action _____ persons based on exercise of a _____ right or involves a suspect classification (ex. _____), _____ is applied. The result is invalidation of almost every case where the classification would burden a person because of her status as a member of a racial or national origin minority. The only explicit race discrimination upheld despite strict scrutiny was the wartime incarceration of United States citizens of Japanese ancestry on the West Coast. [Korematsu v. United States, 323 U.S. 214 (1944)—found to be necessary to achieve compelling interest of national security]
Example: A state could not deny custody of a child from a previous marriage to a white mother merely because her new husband was black, where the mother was otherwise found to be an appropriate parent. Racial prejudice against mixed race couples does not justify taking a child from his mother. [Palmore v. Sidoti, 466 U.S. 429 (1984)]
a. School Integration
Recall that only _____ discrimination will be found to create discriminatory classifications calling for strict scrutiny; thus, only _____ in schools will be invalidated under equal protection.
Example: No equal protection violation was found where a school system established attendance zones in a racially neutral manner, but racial imbalance occurred because of housing patterns. [Keyes v. School District No. 1, 413 U.S. 189 (1973)]
1) Remedying Intentional School Segregation
If it is proven that a school board has engaged in the racial districting of schools, the board must take steps to _____ of that discrimination (e.g., busing students). If the school board refuses to do so, a court may order the school district to take all appropriate steps to eliminate the discrimination.
a) Order Limited
A court may not impose a remedy that goes beyond the purpose of remedying the _____. Thus, it is impermissible for a court to impose a remedy whose purpose is to attract nonminority students from outside the school district when there is no evidence of past segregation outside the district. [Missouri v. Jenkins, 515 U.S. 70 (1995)—state not required to fund salary increases and remedial programs to create magnet schools to attract suburban students to urban schools]
b. “Benign” Government Discrimination—Affirmative Action
Government action—whether by federal, state, or local governmental bodies—that favors racial or ethnic minorities is subject to strict scrutiny, as is government action discriminating against racial or ethnic minorities. [Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)—overruling Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547 (1990), which applied intermediate standard to federal discrimination]
Note: Prior to its ruling in Adarand, supra, the Supreme Court upheld a federal requirement that 10% of federal grants for public works be set aside for minority businesses. [Fullilove v. Klutznick, 448 U.S. 448 (1980)] In Adarand, the Court reserved judgment on whether a Fullilove-type program would survive strict scrutiny. Some commentators have suggested that it might, because the Court might give Congress more deference than the states based on Congress’s power under the Enabling Clause of the Fourteenth Amendment, but the continued validity of Fullilove is, at best, uncertain.
1) Remedying Past Discrimination
The government has a _____ in remedying past discrimination against a racial or ethnic minority. Thus, if a court finds that a governmental agency has engaged in racial discrimination, it may employ a race conscious remedy tailored to end the discrimination and eliminate its effects. A remedy of this type is permissible under the Equal Protection Clause because it is _____ (the elimination of the illegal or unconstitutional discrimination).
Example: When it has been proven that a public employer engaged in persistent racial discrimination, a court may order relief that establishes a goal for the hiring or promotion of minority persons so as to eliminate the effects of the past discrimination. [United States v. Paradise, 480 U.S. 149 (1987)]
2) Where There Has Been No Past Discrimination by Government
Even where a state or local government has not engaged in past discrimination, it may have _____ in affirmative action. However, the governmental action must be narrowly tailored to that interest. [City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)]
a) Remedial Justifications
(1) Local Private Discrimination
Remedying past private discrimination within the governmental agency’s jurisdiction is a compelling interest, but there is no compelling interest in remedying the general effects of societal discrimination. Thus, for a city to give a preference to minority race applicants for city construction contracts, it must identify the past unconstitutional or illegal discrimination against minority-owned construction businesses that it is now attempting to correct. [City of Richmond v. J.A. Croson Co., supra]
Example: In United Jewish Organizations v. Carey, 430 U.S. 144 (1977), the Court upheld New York’s revised voting district plan, based solely on racial statistics, because the revisions were made to insure that minorities that had previously been discriminated against in New York would be represented in the legislature.
(2) Diversity in Public Education
A school board may not assign students to a school on the basis of race unless necessary to achieve a compelling interest, such as remedying past unconstitutional (i.e., intentional) discrimination. A majority of the Court has not found diversity itself to be a _____. [See Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)] However, the law is different for colleges and universities. Colleges and universities have claimed that they have a compelling interest in having a diverse student body—in its own right—because students with diverse backgrounds enhance classroom discussions and the educational experience both in and outside the classroom, promote cross-racial understanding, and break down racial stereotypes for the workforce. The Court has held that it will defer to a state college or university’s good faith judgment that it has such a compelling interest. [Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003)] However, the Court has also held that colleges and universities should consider each applicant as an individual. Although race or ethnicity may be deemed a plus, as one of a range of factors to consider when making an admissions decision, if race or ethnicity is the defining criterion for admission, the admission policy will not be narrowly tailored to achieving the compelling interest of ensuring a diverse student body.
Example: In its admission process, the University of Michigan’s law school required admissions officers to assess an applicant’s academic ability and all other factors about the applicant relevant to whether the student will be an asset to the entering class. The school’s policies specifically allowed officers to consider whether an applicant was from a group that has historically been discriminated against, such as African-Americans, Hispanics, and Native Americans. The officers were not told to prescribe any particular weight to this factor, although they were told to include enough applicants from historically underrepresented groups to ensure a “critical mass” of such students—i.e., enough minority students so that they do not feel isolated or become spokespersons for their race. At trial, admissions officers testified that the extent that race factored into an admissions decision varied from applicant to applicant, and statistics showed that, while race was a strong factor in admissions decisions, it was not the predominant factor. The Court held that such a program does not violate the Equal Protection Clause. [Grutter v. Bollinger, supra]
Compare: To obtain a critical mass of minority students in its undergraduate admissions process, the University of Michigan allowed admissions officers to give students points for being a member of a historically underrepresented minority group and for a variety of other factors (e.g., academic ability, leadership ability, a good admissions essay, etc.). Being a member of an underrepresented minority group was worth 20 points, while high school leadership ability, a good admissions essay, etc., were worth less than five points each. Applicants with 100 points or more were guaranteed admission into the school. Under these admissions policies, virtually every academically qualified applicant who was from a group defined as a historically underrepresented minority group was admitted to the school. Such a program violates the Equal Protection Clause because it makes race the predominant factor in making admissions decisions and so is not sufficiently narrowly tailored. [Gratz v. Bollinger, supra]
Note: The Court has similarly held that while public schools might have a compelling interest in a racially diverse faculty, a school board may not fire or lay off white teachers with greater seniority than minority race teachers for the sole purpose of maintaining racial balance in a faculty during a period when teacher layoffs are necessary. [Wygant v. Jackson Board of Education, 476 U.S. 267 (1989)]
classifies
fundamental
race, national origin, or alienage
strict scrutiny
intentional
intentional segregation
eliminate the effects
vestiges of past segregation
compelling interest
it may have a compelling interest
narrowly tailored to further a compelling interest
sufficiently compelling interest
XX. FREEDOM OF SPEECH AND ASSEMBLY
A. GENERAL PRINCIPLES
The freedoms of speech and assembly protect the free flow of ideas, a most important function in a democratic society. Thus, whenever the government seeks to regulate these freedoms, the Court will weigh the importance of these rights against the interests or policies sought to be served by the regulation. When analyzing regulations of speech and press, keep the following guidelines in mind:
- Content vs. Conduct
A regulation seeking to forbid communication of specific ideas (i.e., a content regulation) is less likely to be upheld than a regulation of the conduct incidental to speech.
a. Content
It is _____for the government to place burdens on speech because of its content. To justify such content-based regulation of speech, the government must show that the regulation (or tax) _____ and is _____ to achieve that end. [Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105 (1991)—striking a law requiring that proceeds to criminals from books and other productions describing their crimes be placed in escrow for five years to pay claims of victims of the crimes]
Example: A state may not prohibit the sale or rental of violent video games to minors. Such a prohibition is content-based, and the Supreme Court found that the prohibition was not narrowly tailored to serve a compelling interest. It found the law both underinclusive, because psychological studies show that such games have only a small effect on youth violence, and overinclusive, because only some parents object to them. The Court also declined to add violence as an additional area of unprotected speech (see below). [Brown v. Entertainment Merchants Association, 131 S. Ct. 2729 (2011)]
1) Exception—Unprotected Categories of Speech
The Supreme Court has previously determined that certain categories of speech (e.g., _____) generally are proscribable despite the First Amendment. Even in these cases, however, the Court is less likely to uphold a _____ (i.e., a regulation prohibiting speech before it occurs) than a punishment for speech that _____.
2) Content-Neutral Speech Regulations
While content-based regulation of speech is subject to strict scrutiny, content-neutral speech regulations generally are subject to _____—they will be upheld if the government can show that: (i) they advance _____ interests unrelated to _____, and (ii) they do not burden _____ more speech than _____ to further those interests. [Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)]
b. Conduct
The Court has allowed the government more leeway in regulating the conduct related to speech, allowing it to adopt content-neutral, time, place, and manner regulations. Regulations involving public forums (i.e., forums historically linked with the exercise of First Amendment freedoms) must be _____ to achieve an important government interest (e.g., a prohibition against holding a demonstration in a hospital zone). Regulations involving nonpublic forums must have a _____ to a _____ regulatory purpose (e.g., a law prohibiting billboards for purposes of traffic safety).
presumptively unconstitutional is necessary to serve a compelling state interest narrowly drawn obscenity, defamation, and “fighting words”prior restraint has already occurred intermediate scrutiny important the suppression of speech substantially necessary narrowly tailored reasonable relationship legitimate
