Constitutional Law Flashcards
1
Q
Justiciability
A
Justiciability, whether a lawsuit is capable of federal judicial resolution as a case or controversy
2
Q
Advisory Opinions
A
Rule: Federal courts may not render advisory opinions that lack (1) an actual dispute between adverse parties or (2) any legally binding effect on the party
3
Q
Ripeness (Too Early)
A
Rule: Federal courts may only decide controversies that are ripe for judicial review
(1) the fitness of the issues for judicial decision
(2) the hardship to the parties of withholding court consideration
Exceptions: - substantial hardship in absence of review - issues and record are fit for review (more legal than factual issues = better)
4
Q
Mootness (Too Late)
A
Rule: Federal courts may only decide live controversies, i.e. plaintiff suffers ongoing injury Look for: Plaintiff is still suffering or if it has passed Exceptions: - injury is capable of repition but inherently limited duration (pregnancy)- D voluntarily ceases challenged activity, but may restart at will - in class action, P suffers ongoing injury
5
Q
Standing
A
Rule: Plaintiff’s must have standing to sue, and the requirements are (1) injury (2) causation, and (3) redressability
6
Q
Injury
A
Rule: Injury as almost any harm constitutes as injury, as long as it is concrete and particularized (ex. physical, economic, environmental, loss of constitutional or statutory rights)
Exceptions:
- Taxpayer challenge to own tax liability
- Congressional spending in violation of the Establishment Clause (but not executive spending)
7
Q
When Must “Injury” Occur
A
Rule: Injury must have occurred or will imminently occur Injunctive or declaratory relief: must show likelihood of future harm
8
Q
Who Must Suffer Injury
A
Rule: Injury must be personally suffered by P rather than those not before court. No third-party standing
9
Q
Third-Party Standing Exceptions
A
(1) Close Relationship
(2) Organizations (on behalf of members, injury must be related to purpose of organization)
(3) Free Speech Over-breadth (party whose speech can be censored sues on behalf of those whose speech cannot) (non-commercial only)
10
Q
Causation
A
Rule: Plaintiff must show that the injury is fairly traceable to the Defendant
11
Q
Redressability
A
Rule: Plaintiff must show that a favorable court decision can remedy the harm
12
Q
Sovereign Immunity (11th Amendment/ Federalism) - Generally
A
Rule: Individuals are generally barred from suing states.
Exceptions: (1)You can sue a state if a state has waived sovereign immunity (2) states can sue states (3) bankruptcy proceedings (4) clear abrogation by Congress under 14th amendment (5) can sue state officers for injunctive relief and money damages (6) can sue any local government
13
Q
Final Judgment Rule - Supreme Court Review
A
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
14
Q
Independent and Adequate State Grounds(IASG)
A
Rule: Supreme Court will not review a federal question if the state court decision rests on an independent (separate) and adequate (sufficient) state grounds
- Exists if the outcome would be the same regardless of how the federal question is decided
- No IASG if just a sham to bar claims for discriminator
15
Q
Federal Legislative Power (Congressional Power)
A
Rule: Article I of Constitution, Limit is only enumerated power. Unlike states, Congress has no general police power to pass laws
Exceptions: Federal land, Indian reservations, D.C.
16
Q
Necessary and Proper Clause
A
Rule: N & P Clause allows Congress to choose any rational means to carry out an enumerated power, as long as means is not prohibited by Constitution, and it is not a basis of legislative power.
17
Q
Taxing and Spending Powers - Enumerated Powers
A
Rule: Congress may tax and spend to provide for the general welfare, including any public purpose not prohibited by Constitution, even if not within an enumerated power
18
Q
Conditions on Spending - Congressional Spending Power
A
Rule: Conditions (“Strings”) must relate to purpose of spending and do not violate the Constitution. Additionally, strings cannot be “unduly coercive”
19
Q
Commerce Power**
A
Rule: Congress may regulate commerce with (1) foreign nations, (2) Indian tribes, and (3) among states
20
Q
Interstate Commerce
A
Rule: Interstate Commerce includes:
(1) Channels of IC: highways, waterways, telephone lines, Internet
(2) Instrumentalities of IC: planes, trains, automobiles, persons in interstate commerce
(3) Substantial effect on IC in aggregate (even if purely local activities)
21
Q
Limits of Power on Interstate Commerce
A
Rule: Interstate commerce power may not interfere with:
(1) noneconomic activity in an area traditionally regulated by states and
(2) they cannot compel participation in commerce (even if lack of participation substantially affects IC)
22
Q
Enforcement Power (Commerce Power)
A
Rule: Commerce power allows Congress to indirectly ban private discrimination.
Congress may directly ban state discrimination under its 14th Amendment power to enforce the guarantee of equal protection
23
Q
Congressional Delegation of Power - Agencies
A
Rule: Congress may broadly delegate legislative power as long as some intelligible principle guides exercise of delegated power, i.e. Authority to EPA
24
Q
Congressional Delegation of Power - President
A
Rule: Congress may not allow line-item veto because it violates bicameralism (passage by both chambers) and presentment (giving bill in entirety to President to sign or veto)
25
Congressional Delegation of Power - Congress
Rule: Congress may not allow legislative veto to void duly enacted laws without bicameralism and presentment
26
Source of Federal Executive Power
Article II
27
Federal Executive Power - Domestic Powers (Enforcement)
Rule: President has power (and duty) to execute laws
28
Federal Executive Power - Domestic Powers (Inherent (Implied) Presidential Powers)
Rule:
- Highest where authorized by Congress
- Lowest where prohibited by Congress
- Gray area where neither
29
Federal Executive Power - Foreign Powers (War)
Rule: 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
- Challenges are likely non-justiciable as a political question
30
Federal Executive Power - Foreign Powers (Treaties)
Rule: President negotiates, and treaties are as good as, but no better than federal statutes (but not future) and trumps existing and future state law
- 2/3 Senate vote to approve
31
Federal Executive Power - Foreign Powers (Executive Agreements)
Rule: President negotiates, and executive agreements will never trump federal statutes, but trumps existing and future state law
- No senate vote required to approve
32
Federalism - Tenth Amendment
Rule: Powers not granted to U.S. gov, or prohibited to the states, are reserved to the states or the people.
- General Police Powers: reserved to states, i.e. local health, safety, and economic regulations receive rational-basis review unless they burden a fundamental right or involve a suspect or quasi-suspect classification.
- Anti-Commandeering Principle: Congress cannot compel states to enact or administer federal programs
33
Supremacy Clause
Rule: Supremacy Clause of Article VI makes federal law preempt inconsistent state and local laws. Federal law is “the supreme Law of the Land”
- Federal law = Constitution, statutes, regulations, treaties, executive agreements
34
Preemption
Rule: Preemption is the idea that federal law supersedes conflicting state laws.
- Express: Congress expressly says so.
- Implied:
(1) Conflict: (i) Impossible to follow both federal and state law; or (ii) state law impedes federal law
(2) Field: Extensive federal regulation indicates congressional intent to “occupy the field.”
35
Dormant Commerce Clause
General Rule: (“Negative Commerce Clause”) prohibits state laws that discriminate against or unduly burden interstate commerce
36
Privileges and Immunities Clause of Article IV
Rule: (“The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the severalStates”) prohibits state laws that discriminate againstout-of-state U.S. citizens re:• important commercial activities (earning livelihood), or• fundamental rights.Note: Not applied to aliens or corporations
37
Dormant Commerce Clause Test
(1) 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
(2) Non-discriminatory laws (evenly applied to in-state and out-of-state commerce) are valid unless burden on IC clearly outweighs non-protectionist benefits.
Exceptions:
• congressional approval
• states act as a market participant (buyer or seller)
38
Privileges and Immunities Test
```
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
39
Privileges or Immunities of 14th Amendment
* 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
40
Application and Incorporation of Individual Liberties
* 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 theDue Process Clause of the 14th Amendment
• Not (Yet): 3rdA right not to have soldiers quartered in home, 5thA right to grand jury indictment, 7thA right to jury in civil cases
41
State Action Doctrine (local and government) - Individual Liberties
Examples: state law and state officials acting officially (even if unlawfully)Public Function
Rule: state action exists when private party performs function done by government
traditionally and exclusively
42
State Action - Public Function Rule
Rule: State action exists when private party performs function done by government
traditionally and exclusively
43
State Action - State Involvement Rule
Rule: Significant state involvement in challenged private conduct (e.g., assistance, encouragement, supervision, entwinement, or approval) may count as state action
44
Individual Liberties - Levels of Scrutiny
Supreme Court often employs levels of scrutiny when laws are challenged as violations of Equal Protection, Substantive Due Process, and Free Speech
45
Individual Liberties - Rational Basis Scrutiny
Ends: rational or legitimate interest
Means: rationally or reasonably related
Burden: challenger
Presumption: valid
46
Individual Liberties - Intermediate Scrutiny
Ends: important or significant state interest
Means: narrowly tailored (substantially related or close fit, not least restrictive)
Burden: state
Presumption: none
47
Individual Liberties - Strict Scrutiny
Ends: compelling state interest
Means: narrowly tailored(least restrictive)
Burden: state
Presumption: invalid
48
Procedural Due Process Provisions
Rule: Individual has right to a fair process when government acts to deprive of life, liberty, or property
Provisions:
- Fifth Amendment Due Process Clause applies to federal government
- Fourteenth Amendment Due Process Clause applies to states (and localities)
49
Procedural Due Process - Deprivation
Definition: intentional (or perhaps reckless) rather than negligent
50
Procedural Due Process - Liberty
Applies to:
• Physical freedom (e.g., from institutionalization, deportation)
• Constitutional rights (e.g., parental rights)
Not: mere harm to reputation.
51
Procedural Due Process - Property
Applies to:
• Real and personal, tangible and intangible
• Government entitlement to which an individual has a reasonable expectation of continued receipt
52
Procedural Due Process - Requirements if Deprived
- Notice: Reasonably calculated to inform person of deprivation
- Opportunity to be heard: Pre-deprivation hearing generally preferred unless impracticable
• Balancing Test:(Mathews, 1976) determines nature and extent of procedures, considering (1) Importance of interest to individual, (2) Risk of error through procedures used (3) Accuracy gain from additional procedures, and (4) Burden on government (e.g., inefficiency and costs)
- Neutral decision-maker - No actual or serious risk of bias
53
Substantive Due Process (Fundamental Rights)
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
54
Fundamental Right Requirements
- 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
Note: Most rights in Bill of Rights have been deemed fundamental
55
Is it Due Process or Equal Protection?
Denying EVERYONE a fundamental right is Substantive Due Process only
Denying SOME a fundamental right is Substantive Due Process and Equal Protection
56
Levels of Scrutiny - Substantive Due Process
Strict Scrutiny = Fundamental Rights
| Rational Basis = Non-fundamental Rights
57
Substantive Due Process - Fundamental Rights (Strict Scrutiny)
* Marriage
* Procreation
* Contraception
* Custody, care, and upbringing of children
* Living with extended family
* Interstate travel
* Vote
Undue Burden:
• Abortion
58
Substantive Due Process - Non-Fundamental Rights (Rational Basis Scrutiny)
* Economic rights
* Education
* Physician-assisted suicide
Unspecified:
• private consensual adult sexual intimacy
• refuse medical treatment
• bear arms
59
Unenumerated Fundamental Rights - Marriage (Divorce)
Rule: 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)
Note: Reasonable requirements to protect rather than hinder right to marry are upheld under rational basis.
60
Unenumerated Fundamental Rights - Interstate Travel (14A Privileges or Immunities)
Rule: (1) Right to enter and leave a state, (20 Equal treatment once become resident of state, and (3) No fundamental right to international travel
61
Unenumerated Fundamental Rights - Right to Vote
Rule: 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
62
One Person, One Vote Principle
State and local representatives (including state senators)
• EP requires population of voting districts be
substantially equal
```
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
```
63
Unenumerated Fundamental Rights - Racial Gerrymandering
Rule: Strict scrutiny if race was predominant factor
64
Unenumerated Fundamental Rights - Political Gerrymandering
Rule: Non-justiciable as a political question
65
Unspecified Rights - Refuse Medical Treatment
Ex. No legitimate state interest in criminal ban on same-sex intimate conduct
66
Unspecified Rights - Refuse Medical Treatment
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)
67
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.
68
Unenumerated Fundamental Rights - Abortion
Pre-Viability:
Scope - State may regulate (but not prohibit) abortions to protect
woman’s health
or life of fetus
Test - Undue burden,
i.e., substantial obstacle on access to abortion in purpose or effect
Post-Viability:
Scope - State may prohibit abortions unless necessary to protect woman’s life or
health
Test: N/a
69
Equal Protection Clause Provisions
- 14A Equal Protection Clause applies to states (and
localities)
- 5A Due Process Clause has “Equal Protection component” that applies to federal government
70
Equal Protection Analysis (2 Steps)
1. Classification
| 2. Level of Review
71
Equal Protection Analysis Classifications
A law triggers heightened scrutiny (strict or intermediate) if it:
- Facially Discriminates: facially discriminates against a group falling
within a suspect or quasi-suspect classification
- Disparate Impact: there is a disparate impact on a group falling
within a suspect or quasi-suspect classification
AND discriminatory intent against that group
72
EPC - Rational Basis - Classifications
```
• age
• disability
• wealth
• alienage classifications by
Congress
• alienage classifications by
state related to democratic governance
• all other classifications
```
73
EPC - Intermediate Scrutiny (Quasi Suspect) - Classifications
* gender
* non-marital children
* undocumented alien children (maybe)
74
EPC - Strict Scrutiny (Suspect) - Classifications
```
• race
• national origin
• alienage classifications by
state generally
• denial of fundamental rights to some
```
75
School Integration
Strict Scrutiny - government needs a compelling interest, i.e. bussing to remedy the effects of past segregation
Note: NOT a compelling interest to diversify secondary or high schools generally
76
Affirmative Action (Higher Education)
Strict Scrutiny - government needs a compelling interest
Note: GENERALLY a compelling interest to diversify secondary or high schools generally
77
Alienage (Non-Citizen Status) - Congressional Classification Test
Rational Basis
78
Alienage (Non-Citizen Status) - State and Local Classification Test
Strict Scrutiny
Exception: State and local governments may
reasonably require U.S. citizenship for activities
and positions integral to democratic self-governance
79
Gender Classification
Test: Intermediate Scrutiny
Interpretation: Important interest requires exceedingly
persuasive justification, not role stereotype
80
Non-Marital Children (“Illegitimacy”) Classification
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
81
Children of Undocumented Aliens Classification
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
82
Fundamental Rights Classification
Test: Strict Scrutiny
83
All Other Classifications
Test: Rational Basis
Ex. age, disability, income, intelligence, health, sexual orientation.
84
Animus (Hostility or Ill Feeling)
Animus is not rational.
• State law denying discrimination protection to gays
and lesbians is invalid
• Federal law refusing to recognize same-sex couples married under state law as married for purposes of federal law (e.g., benefits) is invalid
85
Takings
Rule: Federal government (5A Taking Clause) and states
(14A DP) may not take private property unless:
1. Public use - used for public
2. Just compensation - fairly compensated for taking
86
Takings - Property Type
* Real personal property (including rights to possess, use, dispose, etc.)
* Some intangible property
87
Physical Takings (Methods)
- Physical confiscation
- Regular or permanent occupation (temporary occupation)
• Development Exception: traditional conditions on
property development (e.g., streets, utility easements) are not taking if benefits are roughly proportional to burdens
• Emergency Exception: taking less likely to be
found, even for complete and permanent deprivation, if pursuant to public emergency such as war
88
Regulatory Taking: Bright-Line Rule
Rule: Taking if regulation on use does not merely diminish property value but leaves no economically viable use
89
Regulatory Taking: Ad-hoc Analysis
Rule: Maybe (but difficult to claim) a taking considering:
• economic impact of regulation,
• interference with investment-backed expectations, and
• character of government action
90
Takings: Public Use Rule
Rule: (Public purpose) Any legitimate public purpose, i.e., any purpose that government reasonably believes will benefit the public (rational basis)
91
Takings: Just Compensation Rule
Rule: Just compensation is the fair market value at time of taking (benefit to government is irrelevant).
92
Retroactive Legislation - Contract Clause
Rule: “No State shall . . . pass any . . . law impairing the Obligation of Contracts.
Applies To: State and local laws only. Not Federal government or judicial decisions
93
Retroactive Legislation - Contract Clause Tests
- Private Contracts: Substantial impairment of existing rights invalid unless:
• legitimate or significant purpose, AND
• reasonable or appropriate means
- Public Contracts: Heightened scrutiny (intermediate or strict scrutiny)
94
Ex Post Facto Laws Rule
Rule: Neither state nor federal government may pass
| legislation that retroactively alters criminal liability
95
Ex Post Facto Law 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
96
Bills of Attainder Rule
Rule: Neither state nor federal government may pass legislation that designates particular individuals (by name or description) for punishment without judicial trial
• Punishment: Traditional sanctions (e.g., death, prison, fines, confiscation) and punitive measures (e.g.,
exclusion from employment and benefits)
97
What is Speech?
Words, symbols, and expressive Conduct
98
Expressive Conduct
- Conduct that is inherently expressive
• Conduct that is:
• intended to convey message, and
• reasonably likely to be perceived as conveying
message
99
Freedom of Speech - General Restrictions
Content-Based = SS
Content-Neutral = IS
100
Freedom of Speech - Public Property
Content Based: Public forum = 3A
Content Neutral: Limited or nonpublic forum = reasonable, not viewpoint-based (SS)
101
Freedom of Speech - Public School
Content Based: Student speech = substantial disruption (unless prodrug use)
Content Neutral: School speech =
reasonably related
to legit pedagogical
concern
102
Freedom of Speech - Public Employment
Content Based: No protection:
• private concern at
workplace, or
• public concern pursuant to job
Content Neutral: Balancing test:
• private concern outside workplace, or
• public concern as
citizen
103
Unprotected and Protected Speech Generally
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).
104
Unprotected Speech Categories
```
• Incitement
• Fighting Words
• True Threats
• Obscenity
• Child Pornography
• Defamation with actual malice
• Commercial Speech (false,
misleading, or illegal)
```
105
Partly Protected Speech Categories
• Defamation about public
officials, public figures, or matters of public concern
• Commercial Speech (not
false, misleading, or illegal)
106
Protected Speech Categories
• All Other Speech
(e.g., Dante's Inferno,
Mortal Kombat)
107
Unprotected Speech - 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
108
Unprotected Speech - Fighting Words
Test: Words likely to provoke an immediate violent response
109
Unprotected Speech - True Threats
Test: Words intended to convey to someone a serious threat of bodily harm
110
Unprotected Speech - 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
Note: Mere nudity, soft-core pornography, and “dirty words” are not obscene
Note: Sexually explicit or indecent speech that is not obscene may nonetheless be subject to zoning
111
Unprotected Speech - 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
112
Unprotected Speech - Defamation
Rule: To promote robust public debate, 1A bars recovery under state defamation law for speech made without
actual malice (knowledge of falsity or reckless disregard of the truth) about
• public officials,
• public figures, or
• matters of public concern
113
Unprotected Speech - 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
114
Unprotected Speech - Commercial Speech
Includes: ads and promotions of products and services, brand marketing
Insufficient: profit motive
```
Protected v. Unprotected
- Unprotected
• false,
• misleading, or
• illegal product or service
```
• Protected: all other commercial speech
Test (Intermediate Scrutiny):
• Substantial government interest
• Narrowly tailored (reasonable fit => least restrictive)
115
General Speech Restrictions
Restrictions on protected speech that are generally
applicable (i.e., not limited to public property, public
schools, or public employees)
116
General Free Speech Tests
Content-based = strict scrutiny (important interest, narrowly tailored, burden on state)
Content-neutral = intermediate scrutiny (compelling interest, narrowly tailored, burden on state)
117
General Free Speech - Content Based
Rule: Content-based restrictions facially target certain topics
or messages, or are justified by reference to potential
harms produced by certain topics or messages
118
General Free Speech - Content Neutral
Rule: 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
119
Protected Public Employee Speech Test
Rule: Balance speech value v. state interest in efficient and effective operation
120
Political Patronage
Rule: Public employees may not be hired or fired based on political affiliation or expression
Exception: high-level policy-makers and advisers
121
Speech - Vagueness Test
Test: Law is void for vagueness if persons of common intelligence cannot tell what speech is prohibited and what is permitted
122
Speech - Overbreadth Test
Test: Law is invalid as overbroad if it prohibits a substantial amount of speech that the government may not suppress
Note: 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)
123
Speech - Prior Restraints
Def: 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 = very strict scrutiny
- Licensing Systems = must have sufficiently
definite content-neutral standards to cabin
discretion, as well as prompt judicial review of denials
124
Speech - Press, Expressive Associations, Corporations and Unions Generally
Rule: Press, expressive associations and corporations and unions (engaging in non-commercial speech) are
generally treated the same as other speakers
125
Government Speech
Government speech is generally not subject to 1A.
• 1A does not constrain government from espousing
whatever views and policies it wishes
• 1A does constrain government’s ability to compel private parties to convey message
126
Freedom of Religion - Free Exercise Clause (Right to freely exercise)
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
127
Free Exercise Test - Discriminatory Laws
Discriminatory laws = strict scrutiny
• Not neutral facially with respect to religious
belief, conduct, or status.
• Not generally applicable but targeted at religion generally or a religion in particular.
128
Free Exercise Test - Neutral Laws of General Applicability
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, including teachers at religious schools
Exception to neutral law of general applicability to accommodate religious practice is not required by Free Exercise Clause, but does not violate Establishment Clause
129
Establishment Clause
Note: Court has not settled on single test, so government may violate under one or more tests
130
Establishment Clause - Neutrality Test
Rule: Government must remain neutral with
| respect to religion, neither favoring nor disfavoring it
131
Establishment Clause - Coercion Test
Rule: Government must remain neutral with
| respect to religion, neither favoring nor disfavoring it
132
Establishment Clause - Lemon Test (LEADING)
Rule: A law does not violate the Establishment Clause if:
1. primary purpose is secular, and
2. primary effect does not advance or inhibit
religion, and
3. avoids excessive entanglement between
government and religion
133
Establishment Clause - Endorsement Test
Rule: 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
134
Establishment Clause - History and Tradition Approach
Rule: 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
135
Privileges or Immunities Clause of the Fourteenth Amendment - Right to Travel (newly arrived citizens)
The Privileges or Immunities Clause of the Fourteenth Amendment prohibits states from denying their citizens the privileges and immunities of national citizenship. This includes the right to travel, and the Court has held that the right to travel includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state. A state law that distinguishes between new residents solely on the length of their residency will serve no legitimate state interest.
136
Right of Political Association - First Amendment / Fourteenth Amendment
Rule: Restrictions on the ability of individuals to be candidates must be examined to determine whether they violate (1) 1st amendment right to association or (2) 14th amendment equal protection clause
Proper Test: Strict Scrutiny
137
Application of Presumptions
Rule: In civil actions, whether a presumption should be applied is determined in accordance with the state law whose substantive law is applied to the case
138
Jurors Permissible Testimony
Rule: Jurors may not testify about (1) anything that occurred during the jury's deliberations (2) the effect of anything on that juror's or another juror's vote and (3) any juror's mental processes concerning the verdict or indictment
Exception: Admissible if juror's testimony is in regards to (1) extraneous prejudicial information or (2) improper outside influences
139
Waiving of Privileges
Rule: Only a privileged party, or a lawyer acting on his behalf, has the right to invoke and waive a privilege.
140
First Amendment - Public Forum
Rule: A public forum is public property that historically has been open to speech-related activity.
Ex. sidewalks and public parks
141
First Amendment - Designated Public Forum
Rule: A designated public forum is public property that usually is not used for speech-related activity, but that the government has opened for such activity at particular times
Ex. public school gym that can be reserved by the public for use when not being used by the school
142
First Amendment - Limited Public Forum
Rule: A limited public forum is public property that usually is not used for speech-related activity, but that the government has opened up for such activity for a particular purpose
Ex. school gym that has been opened up to host a political debate
143
First Amendment - Non-Public Forum
Rule: A non-public forum, which is public property not open for speech-related activity
Ex. county office building
144
Time, Place and Manner Regulation of a Limited or Non-Public Forum
Rule: To be valid, a time, place, and manner regulation of a limited public or non-public forum, must be viewpoint neutral and rationally related to a legitimate government purpose
145
Time, Place and Manner Regulation of a Public and Designated Public Forum
Rule: To be valid, a time, place, and manner regulation of a public or designated public forum, must be content-neutral and narrowly tailored to serve an important government interest, and must leave open alternative methods of communication
146
Clear and Present Danger Test
Rule: Under the current version of the "clear and present danger" test, a state cannot forbid advocating the use of force or violation of law unless such advocacy is (i) directed to producing or inciting imminent lawless action, and
(ii) likely to produce such action
147
Challenges Under the Due Process or Equal Protection Clause - NO Fundamental Right or Suspect or Quasi-Suspect Classification Involved
Rule: If government action is challenged under the Due Process or Equal Protection Clause, and no fundamental right or suspect or quasi-suspect classification is involved, the law will be upheld unless it is arbitrary or irrational. A rational basis standard applies.
BOP: Challenger
148
One Person, One Vote Principle - Congressional Districts
Rule: Regarding congressional districts, almost exact mathematical equality between the congressional districts within a state is required
Note: Regarding state districts, the variance from district to district may not be unjustifiably large (even 16% has been found to be valid
149
One Person, One Vote Principle - Generally
Expresses the principle that individuals should have equal representation in voting
150
Reapportionment
Rule: If the deviation from mathematical equality between districts is reasonable and tailored to promote a legitimate state interest, the law establishing the districts will likely be upheld
General: EPA provision of the 14th Amendment has been interpreted to prohibit state dilution of the right to vote, so that whenever a governmental body establishes voting districts for the election of representatives, the number of persons in each district may NOT vary significantly
Exception: However, for the purpose of electing representatives to a state or local governmental body, the variance in the number of persons included in each district can be greater than that permitted for congressional districts
151
Limiting Voters in Elections
Rule: While voting is a fundamental right and governmental action affecting fundamental rights generally is reviewed under strict scrutiny, that is not the case with laws limiting voting to residents
Note: Limiting the voters in a city's mayoral election to residents of the city serves the interests of efficiency and prevents persons with little personal interest in the city from voting
152
Free Exercise Clause
Rule: The Free Exercise Clause of the First Amendment, applicable to the states through the Fourteenth Amendment, prohibits punishing people for their religious beliefs. If the intent of the law is to interfere with religion, or if the law punishes conduct solely because it is religious, the law is invalid.
- Court may consider whether the person challenging the law sincerely holds those beliefs.
