Constitutional Law

Question 1

Judicial Review and Federal Jdx –> Article III, Section 2

Answer 1

Limits the jdx of the fed cts to 2 types:

(1) Law-based Jdx:
- —> Cases arising under the USC or fed law;
- —> Cases of admiralty and maritime jdx

(2) Party-based Jurisdiction:
- —> Controversies to which the US shall be a party;
- —> Controversies between two or more states;
- —> Cases between a state and citizens of another state;
- —> Cases between citizens of different states and the amount in controversy is over $75,000 (diversity cases); and
- —> Cases affecting ambassadors and consuls

Question 2

Judicial Review and Federal Jdx –> 11A

Answer 2

11A provides STATE sovereign immunity.
—-> Private individuals cannot sue states for $ damages in any ct (key word : money damages)

Exceptions:

• —> Fed suits brought by one state against another state;
• —> Suits brought by the fed govt against a state;
• —> Subdivisions of a state (e.g., cities, towns, and counties) do NOT have immunity;
• —> A private citizen may sue a state requesting an injunction;
• —> A state may consent to suit in fed ct if it clearly waives its 11A immunity (the state must do so expressly and unequivocally) or
• —> Congress can authorize individual citizen private suits involving $ damages to compensate for state violations of post-Civil War 13A, 14A, 15A pursuant to its enforcement powers.

Question 3

Judicial Review and Federal Jdx –> Justiciability Questions: Generally

Answer 3

Even if law based or party based jdx exists, a fed ct must review other reqs before it can hear a case.
—-> Reqs come from Art III Section 2, which limits jdx of fed cts to “cases” and “controversies” (AKA justiciability questions).

Case or Controversy analysis (RAMPS)

• Ripeness
• Abstention
• Mootness
• Political Questions
• Standing

Question 4

Judicial Review and Federal Jdx –> Justiciability Questions: Case or Controversy - Standing

Answer 4

Article III requires a person to show:

(1) Injury in Fact (to the person bringing the law suit);
—-> P must show a direct and personal injury, actual or imminent, caused by the action that he is challenging. ——–> Where the P has not suffered any personal injury or harm, he does not have standing.
—-> Examples of individuals who lack standing:
o Legislator who doesn’t like legislation passed.
o Private individual who merely believes law is unconstitutional.
o Tax-payer who does not want tax dollars used to enforce a law he believes is unconstitutional.
————–> Exception: A taxpayer can challenge a law believed to violate the Establishment Clause of the 1A.

(2) Causation
- —> Injury was caused by the challenged action; and

(3) Redressability
- —> P must show that he will benefit from the remedy sought in the litigation and that the ct can provide that remedy.

Question 5

Judicial Review and Federal Jdx –> Justiciability Questions: Case or Controversy - Standing Exceptions (Third-Parties)

Answer 5

A litigant lacks standing to assert the rights of 3rd parties not before the ct, except under the following conditions:

1. Special Relationship Exception
   SCOTUS has permitted a P, who is not the party injured, to raise the USC rights of a 3rd party, who is in fact injured, if the following 2 conditions are satisfied:
   (1) A special relationship exists between the P and 3rd party because of the connection between the interests of the P and the USC rights of the 3rd person; and
   (2) The 3rd party is unable or finds it difficult (some incapacity; ex: privacy) to bring suit on his own behalf.
2. Organization/Member Exception
   An organization has standing to assert the claims of its members, even if the association has not suffered any injury itself, if:
   (1) The members would have standing to sue in their own right;
   (2) The interest asserted is germane to the association’s purpose; and
   (3) Neither the claim asserted nor the relief requested would req the individual members to participate in the lawsuit.

Question 6

Judicial Review and Federal Jdx –> Justiciability Questions: Case or Controversy - Ripeness

Answer 6

Bars consideration of claims before the claim’s issue has fully developed.

• —> The controversy must be ripe for decision because otherwise the fed cts will decide USC issues before it is necessary to do so.
• —> Usually cases requesting declaratory judgment on the exam.

Question 7

Judicial Review and Federal Jdx –> Justiciability Questions: Case or Controversy - Mootness

Answer 7

If a controversy or matter has been resolved, then the case will be dismissed as moot.

• —> There is no longer a controversy for the ct to resolve.
• —> Usually cases requesting declaratory judgment on the exam.

Exception (use the mnemonic CRYER)

• —> The case will not be dismissed for mootness if the injury is “Capable of Repetition, Yet Evading Review.”
• —> Meaning that it is a practical impossibility for the case to be fully heard or go up on appellate review before the P’s claims, or the claims of other individuals who are members of a class action become moot.

Question 8

Judicial Review and Federal Jdx –> Justiciability Questions: Case or Controversy - Political Questions

Answer 8

Fed cts cannot hear cases involving political questions.

• —> A political question is a matter that the USC assigned to another branch of govt or that is incapable of a judicial answer.
• —> SCOTUS set forth factors to determine if the political question doctrine applies.
• —> Foreign affairs: freq’ly tested political question topic

2 most important factors:

(1) Something in the USC suggests that ultimate decision-making authority is given to another govt’al actor; and
(2) The req’d decision is political rather than legal in character.

Question 9

Judicial Review and Federal Jdx –> Justiciability Questions: Case or Controversy - Abstention

Answer 9

A fed ct may abstain/refuse to hear a particular case when the case includes undecided issues of state law.

• —> The abstention doctrine permits a fed ct to defer to a state ct to resolve issues of state law.
• —> If resolved via state law, the USC issues disappear.
• —> Thus, proper deference is paid to the state ct system and harmonious fed-state relations are furthered.

Abstention occurs in two ways:

(1) The fed ct may abstain if the meaning of a state law or regulation is unclear.
- —> In this situation, the state ct might interpret the statute so as to avoid the USC issue.
(2) Where a state ct proceeding is going on, the fed ct will abstain from hearing the same matter.

Question 10

Judicial Review and Federal Jdx –> Justiciability Questions: Case or Controversy - Special Case Rule for SCOTUS

Answer 10

Adequate and Independent State Grounds

• —> Although a state ct decision may involve a fed question, if the state ct judgment can be supported on an adequate and independent state ground, SCOTUS will not take jdx.
• —> A state law ground will usually be adequate if it invalidates something—a state law or a K; on the other hand, a state law will usually not be adequate if the law or K is upheld under both state and fed law.
• —> To do so would be tantamount to rendering an “advisory opinion.”
• —> Applies only to SCOTUS.

Exception:
If the state court says, in interpreting the state constitution, it was merely copying the fed USC, then no clear, independent state ground exists; so the doctrine will not apply and SCOTUS will hear the case.

Question 11

Judicial Review and Federal Jdx –> Jdx of SCOTUS

Answer 11

Original jurisdiction over cases involving ambassadors, foreign diplomats, and states.

• —> Congress cannot enlarge or restrict the Supreme Court’s original jurisdiction.
• —> Appellate jurisdiction exists where the Constitution or a federal law is at issue.

Question 12

Judicial Review and Federal Jdx –> Congress Power Over the Courts

Answer 12

Lower courts:
—-> Constitution grants Congress power to create courts inferior to the Supreme Court and prescribe their powers (i.e., change jurisdiction, eliminate, or create courts).

Supreme Court:
—-> unsettled how much power Congress has over the Supreme Court.

Congress cannot take a case from appellate jurisdiction and move it to original jurisdiction (Marbury v. Madison).

Question 13

Separation of Powers –> Powers of Congress: Legislative Power: Generally

Answer 13

For a federal law to be constitutional:

(1) Congress has the powers the Constitution gives it and no others.
(2) Congress must have the power to pass the law, and the law must not violate a constitutional right.

Watch out for an answer that says Congress had the power to enact the law under its federal police power or Congress’ power to promote the general welfare.
—-> These powers do not exist unless discussing the District of Columbia or some other federal territory.

Procedurally, Congress passes a bill with a majority in both houses.

• —> The President then signs the bill or vetoes it.
• —> If the bill is vetoed, Congress can override the veto if it gets a vote of two-thirds majority in each house.

Question 14

Separation of Powers –> Powers of Congress: Legislative Power: Three Sources/Legal Theories For Congressional Power (PEN)

Answer 14

(1) Enumerated powers
- —> To collect taxes and spend money for the general welfare, to borrow money on the credit of the United States, regulate commerce, declare war, and to raise and support the army, navy, and militia. (It’s all about power and money = P)

(2) Enabling clauses of the 13A, 14A, and 15A give Congress the power to enforce those amendments by “appropriate legislation.” (Enabling = E)

(3) Necessary and Proper Clause
- —> Gives Congress the implied power “to make all laws which shall be necessary and proper” to carry out an enumerated power. (What is necessary to get stuff done = N)
- —> The Necessary and Proper Clause as an answer by itself will usually be incorrect; if it’s the Necessary and Proper Clause in conjunction w/ another power, it is more likely to be a right answer.

Question 15

Separation of Powers –> Powers of Congress: Commerce Power

Answer 15

Congress can regulate:

(1) Channels of interstate commerce (i.e., highways, waterways, and air traffic);
(2) Instrumentalities of interstate commerce (i.e., cars, trucks, ships, airplanes); and
(3) Activities that “substantially affect” interstate commerce.
- —-> Substantial Effect: Congress has the power to regulate any economic activity, whether carried on in one state or many, which has a substantial effect upon interstate commerce.
- —-> Cumulative Effect Doctrine: Congress can regulate activities that have a tiny effect on interstate commerce independently, when all such activities are put together, a substantial cumulative effect upon interstate commerce will result.

Limitations:

• —-> Cannot use the power to regulate intrastate non-economic activity.
• —-> Exception: regulating intrastate non-economic activity with a “comprehensive scheme.”

The commerce power cannot overcome state sovereign immunity—i.e. the Commerce Clause does not trump the 11th A.

• —-> For example, Congress cannot use the commerce power to create a private cause of action for money damages against a state.
• —-> However, it can bar racial discrimination by private parties in activities connected with interstate commerce, (Atlanta Hotel case) but it cannot use the Commerce Clause as the basis for barring racial discrimination by a state and allow private parties to sue to enforce that law by seeking money damages.
• —-> But recall, Congress can use the post-Civil War enabling powers of the 13, 14, 15A to achieve such a law.

Question 16

Separation of Powers –> Powers of Congress: Taxing Power

Answer 16

Congress has the power to impose and collect taxes in order to pay debts and spend for the general welfare.

A congressional act purporting to be a “tax” should be upheld as a valid exercise of the taxing power if:

(1) It raises revenue (objective test);
(2) It was intended to raise revenue even if it doesn’t (subjective test); or
(3) Congress has the power to regulate the activity that’s being taxed (regulatory test).

Question 17

Separation of Powers –> Powers of Congress: Spending Power

Answer 17

Congress has the power to spend for the general welfare.
—> Do not say that something is unconstitutional because it is not for the general welfare.

Congress can use its spending power to get around limits on its regulatory power.

• –> It may pass a law offering money to states or individuals in exchange for “x”.
• –> Often, “x” is not something that Congress could order the state or individual to do directly.

Congress may place a condition on the receipt of federal funds by a state if:

(1) The spending serves the general welfare;
(2) The condition is unambiguous;
(3) The condition is related to the fed program (relatedness);
(4) The state is not required to undertake unconstitutional action; and
(5) The amount in question is not so much that the state is “coerced” into accepting the funds.

Question 18

Separation of Powers –> Powers of Congress: War and Defense Powers

Answer 18

Congress may declare war, raise and support armies, provide and maintain a navy, and organize, arm, discipline, and call forth a militia.

During wartime, Congress has the power to:

(1) Activate the military draft and selective service;
(2) Initiate wage, price, and rent control of the civilian economy; and
(3) Exclude civilians from certain restricted areas.

Congress can establish military courts to gain jurisdiction over members of the armed forces, conduct court-martial proceedings, and try enemy combatants.
—-> A question might ask what rights a terrorist has with respect to detention: both US citizens and non-U.S. citizens within the US (or U.S. territories) are entitled to Due Process rights.

Question 19

Separation of Powers –> Powers of Congress: Immigration and Naturalization

Answer 19

…

Question 20

Separation of Powers –> Powers of Congress: Investigatory Power

Answer 20

Congress has broad investigatory powers that may extend to any matter w/in its legitimate lawmaking functions.
—-> Congress can do things necessary to facilitate an investigation (i.e., cite a witness who fails to appear for contempt), but it cannot override any person’s constitutional rights.

Question 21

Separation of Powers –> Powers of Congress: Property Power

Answer 21

Congress has the power to regulate or dispose of fed property.
—-> If dealing with a fed territory (DC/PR) and not a state, Congress has a general legislative power and can pass any law it would like.

Question 22

Separation of Powers –> Powers of Congress: Power of Eminent Domain

Answer 22

Congress has the power to take private property for public use (implied power, not expressly granted in the USC).

Question 23

Separation of Powers –> Powers of Congress: Admiralty and Maritime Power

Answer 23

SCOTUS has determined that the Necessary and Proper Clause gives Congress complete and plenary power to fix and determine the maritime laws throughout the country.

Question 24

Separation of Powers –> Powers of Congress: Bankruptcy Power

Answer 24

Congress has the power to “est uniform Laws on the subject of Bankruptcies throughout the US.”

Question 25

Separation of Powers –> Powers of Congress: Postal Power

Answer 25

May establish Post Offices and Post Roads

Question 26

Separation of Powers –> Powers of Congress: Copyright and Patent Power

Answer 26

Congress may “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.

Question 27

Separation of Powers –> Powers of Congress: Speech and Debate Clause

Answer 27

Members of Congress cannot be punished or prosecuted for anything they say during debate on the floor in either house.

Question 28

Separation of Powers –> Powers of Congress: Civil War Amendments

Answer 28

Congress has the power to enforce:

(1) The 13A, which bans slavery;
(2) The 14A which prohibits states from violating due process, equal protection, and privileges and immunities; and
(3) The 15A, which prohibits states from discriminating with respect to race in voting rights

To enforce these amendments:

(1) 14A and 15A
- —> Congress can only regulate states, not private individuals;
(2) State govts
- —> State govts must have engaged in widespread violations of the Amendment; and
(3) Legislative remedy
- —> Must be “congruent and proportional to” the violations.

If Congress passed valid legislation to enforce the 14/15As legislation, recall that sovereign immunity under the 11A will not apply.

Question 29

Separation of Powers –> Powers of Congress: Delegation of Power

Answer 29

Congress can create an executive agency (i.e., FDA) and give the agency some legislative power (to create regs) that will prevail over inconsistent state law.

Limitation:
—-> Congress can delegate power so long as there is some “intelligible principle” that guides the agency.

Question 30

Separation of Powers –> Executive Power: Chief Executive (Pres) Powers - Enforcement of Laws

Answer 30

Enforcement of Laws

—-> President can enforce but not create laws.

Question 31

Separation of Powers –> Executive Power: Chief Executive (Pres) Powers - Appointment Power

Answer 31

Appointment Power
—-> The President appoints “high-level officials” such as Ambassadors and Cabinet members with the advice and consent of the Senate.
—-> Congress can delegate appointment of “inferior” officers (anyone who has a superior) to:
• the President;
• the judiciary; or
• the head of an executive department.

Question 32

Separation of Powers –> Executive Power: Chief Executive (Pres) Powers - Removal Power

Answer 32

Removal Power

• —> Executive officials: The President may remove any executive appointee without cause (i.e., an ambassador or cabinet member).
• —> Executive officials having fixed terms: The President must have cause to remove executive officers who have fixed terms and officers who perform judicial or quasi-judicial functions (e.g., a member of the Federal Trade Commission).
• —> Federal judges: The President cannot remove judges, even for cause (the only way a federal judge may be removed is by impeachment).
• —> Congressional approval/removal: Congress cannot require the President to get congressional approval before removing someone; Congress cannot remove an official itself.

Question 33

Separation of Powers –> Executive Power: Chief Executive (Pres) Powers - Veto Power

Answer 33

Veto Process

• —> Once Congress has passed legislation by a majority vote in each house, the President must sign the bill for it to become law.
• —> If the President vetoes it, Congress must override the veto.
• —> If the President takes no action within 10 days, it becomes law.

Pocket Veto
—-> If the bill is presented to the President less than 10 days before the end of a legislative session, then the President can “pocket veto” it.

Congressional Override
—-> Congress has the power to override a veto by a two-thirds vote in both the Senate and House.

Line-item Veto

• —> A president cannot cancel particular provisions of new federal legislation.
• —> The President has to either accept a bill or veto it as a whole.

Question 34

Separation of Powers –> Executive Power: Chief Executive (Pres) Powers - Pardon Power

Answer 34

The President may grant pardons.

Limitations:

(1) President can only issue pardons for federal crimes, not state crimes.
- —> For a state crime, the governor can offer clemency.
(2) A pardon cannot undo an impeachment, because it is not a criminal conviction.
- —> It cannot restore someone to office.

Question 35

Separation of Powers –> Executive Power: Chief Executive (Pres) Powers - Executive Privilege

Answer 35

Absolute Privilege:
—-> The President has an absolute privilege to refuse to disclose information related to national security.

Presumptively Privileged:

• —> Other confidential communications between the President and advisors are presumptively privileged.
• —> The purpose of this is to allow the President to seek candid advice.
• —> The presumption is overcome when confidential communications are subpoenaed as evidence in a criminal trial.

Question 36

Separation of Powers –> Executive Power: Commander-in-Chief

Answer 36

The President is Commander in Chief of the military.

Military Powers

• —> Congress has the power to declare war.
• —> If Congress has not done so, the President’s powers are limited to using military force in response to a surprise attack upon the US.
• —> If the President and Congress disagree, the President prevails only with respect to battlefield tactical decisions.

Question 37

Separation of Powers –> Executive Power: International Affairs - Treaty Power

Answer 37

The President has the power to make treaties with the consent of the Senate.
—-> The Senate must ratify by a two-thirds vote before it becomes federal law.

Treaties and Federal law

• –> Treaties have the same status as federal law and will override earlier federal law if ratified by the Senate.
• –> A new federal law enacted after the treaty will override that treaty.

Treaties and State law
—> Treaties take precedence over any conflicting state law (regardless of whether the treaty precedes or follows the enactment of the state law).

Question 38

Separation of Powers –> Executive Power: International Affairs - Executive Agreements

Answer 38

The President has the power to enter into executive agreements with foreign nations.

• –> Executive agreements are the sole responsibility of the President, and do not need to be ratified by the Senate.
• –> Federal statutes: executive agreements do not prevail over federal law.
• –> State law: executive agreements prevail over inconsistent state law.

Question 39

Separation of Powers –> Congressional Limits on the Executive: General Rule

Answer 39

If Congress is acting within its constitutional powers, Congress may block the President from acting.

Question 40

Separation of Powers –> Congressional Limits on the Executive: Impeachment Power

Answer 40

Congress can remove the President, federal judges, and any federal official from office.

• —> The House has the sole power to impeach.
• —> The Senate has the sole power to try impeachments: a 2/3 vote in the Senate is required for conviction.
• —> Impeachment by itself does not carry any penalty beyond removal from office.
• —> Impeachable offenses: treason, bribery, and other high crimes and misdemeanors.

Question 41

Separation of Powers –> Congressional Limits on the Executive: Appropriations Power

Answer 41

Where Congress by legislative act explicitly directs the President to spend appropriated money, the President has no power to impound (i.e., refuse to spend or delay spending) the authorized funds.

Question 42

Separation of Powers –> Presidential Limits on Congress

Answer 42

Veto
—-> Every act of Congress must be approved and signed by the President before it can become law; but if the president vetoes the bill, it can become law if passed by a two-thirds vote of each house.

Pardon powers
—-> Can pardon anyone convicted under federal law.

Question 43

Separation of Powers –> Judicial Limits on Congress

Answer 43

The only thing a court can do is to hold a federal law unconstitutional.

• —> Courts cannot enforce the judgments, so they need cooperation from the official whose conduct they believe is unconstitutional.
• —> Most often the president will comply.

Question 44

Federal-State Relationship –> Nature and Scope of Federal and State Powers

Answer 44

Federal Government
—> Has the powers granted by the Constitution and no others.

The States

• –> Have police power.
• –> They can pass laws without identifying a source of power for doing so.
• –> However, there are constitutional limitations on state police powers:
  (1) Exclusive Federal Power: reserves certain enumerated powers exclusively for the federal government;
  (2) Individual Rights: restricts the state governments from acting in violation of constitutional provisions; and
  (3) Preemption: Under the Supremacy Clause, if Congress enacts legislation with the intention of preempting state law, the congressional regulation will control.

Question 45

Federal-State Relationship –> Immunity of Federal Govt

Answer 45

Sovereign immunity
—-> The federal government cannot be sued without its consent.

Supremacy Clause
—-> Federal law is supreme over state law.

Taxation of Federal Government by a State
—-> The federal government and its agencies and instrumentalities are immune from state taxation and regulation that would interfere with their performance of federal functions.

Question 46

Federal-State Relationship –> Immunity of State Govts

Answer 46

11th Amendment

• —> Recall that Congress cannot create a private cause of action for money damages against a state unless it is using its enforcement powers under the post-Civil War 13th, 14th, and 15th Amendments.
• —> However, individuals may seek injunctive relief.

A state is immune from federal taxation if the tax is applied to unique state activities or essential govt functions.

Anti-Commandeering Doctrine

• —> The fed govt can’t force states to act in their sovereign capacities (i.e., legislate or enforce laws).
• —> The 10th Amendment is frequently a “red herring” wrong answer choice, except when the facts show the federal government “commanding” the states.
• —> It does not matter if a state is happy to obey the fed govt regarding legislation or enforcement of a law; it is still unconstitutional. The Spending Clause can often be used instead to achieve the same result.

Question 47

Federal-State Relationship –> Authority Reserved for the States (Dormant Commerce Clause)

Answer 47

States cannot discriminate against out-of-state economic actors.

• —> If a state law discriminates on its face against out-of-state goods or economic actors, the state must show:
  (1) The regulation serves a compelling interest; and
  (2) The regulation is necessary to achieve the compelling interest.

Rule

• —> State laws that regulate interstate commerce even-handedly to effectuate a legitimate local public interest will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.
• —> The Dormant Commerce Clause applies to state taxes.

Exceptions

• —> Congress may affirmatively authorize states to legislate in areas that would violate the Dormant Commerce Clause.
• —> When states act as market participants, they may discriminate between in-state and out-of-state businesses.

Question 48

Types of Action Governed by Constitution –> State Action v. Private Acton

Answer 48

State-Action Requirement

• —> The P must show that there is govt’al action.
• —> Constitutional rights can be violated only by govt’al actors, not by private actors with the exception of the 13A and the specific situations below.

Two Exceptions

(1) Public-Function Theory
- —> Where a private entity is carrying on activities traditionally performed by the govt.
- —> This theory is AKA entwinement.
(2) Significant State Involvement Theory
- —> Where a private party’s action is closely encouraged and supported by the state, the private party’s action can be treated as action by the govt.
- —> This exception is AKA entanglement.

13A

• –> Does not have a state action req.
• –> Applies to private individuals.

Question 49

Due Process and Incorporation of Portions of the Bill of Rights –> Which Constitutional Provision Should be Relied On?

Answer 49

The Bill of Rights can be invoked against the fed govt (the first 10 amendments).
—-> If the fed govt is discriminating, the DPC of the 5A should be invoked.

The Bill of Rights can be invoked against the states using the 14A DPC.

• —> There are provisions of the Bill of Rights that cannot be asserted via the 14A Due Process Clause:
  (1) 5A – right to indictment by grand jury; and
  (2) 7A – right to a jury trial in civil cases.
• —> For discrimination by state govts, usually the EPC of the 14A will apply unless:
  (1) the state is discriminating against out-of-state business interests or corporations (for that, the DPC/Dormant Commerce Clause) might apply; or
  (2) the state is discriminating against citizens who have moved from another state (for that, the Privileges and Immunities Clause of Article 4 applies).

Question 50

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: General

Answer 50

The 5th and 14th Amendments offer two kinds of protection:

(1) Procedural Due Process
(2) Substantive Due Process

Question 51

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: Procedural Due Process

Answer 51

Protects against govt’l deprivation of “life, liberty, or property” without due process of law.

Who counts as a person? Who can assert rights?
—-> Applies to all people (not just citizens) as well as corporations.

What counts as life, liberty, or property?
—-> “Liberty” = (very broad) Includes freedom from bodily restraint and physical punishment.
—-> “Property” = (narrower) If the state can take something away from a person for no reason at all, there is no property interest. There are generally property interests in the following:
• Public education
• Public employment (if fixed-term employment or can be fired only for cause)
• Welfare benefits
• Driver’s license
—-> “Life” = If the state is trying to execute someone it must provide due process of law (capital punishment).

What process is due?

• —> To deprive someone of life, liberty, or property, the government must give:
  (1) Notice; and
  (2) Hearing.
• —> Factors to determine adequate notice and hearing:
  (1) The importance of the individual interest protected;
  (2) The risk of an erroneous deprivation of this interest through the procedures used; and
  (3) The government’s interest in streamlined procedures.

Question 52

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: Substantive Due Process - Generally

Answer 52

This is a doctrine whereby substantive rights not specifically referenced by the USC’s text are protected.
—-> Such rights are said to be “implicit in the concept of ordered liberty” or are “deeply rooted” in our history and tradition.

Question 53

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: Substantive Due Process - Rational Basis Review v. Strict Scrutiny

Answer 53

At a min, substantive due process req’s that all legislation be rationally related to some legitimate govt purpose.
—-> However, when a ct deems that the substantive right asserted by the P is one that is “fundamental,” then the ct will apply strict scrutiny and req that the legislation be narrowly tailored to achieve a compelling govt interest.

Question 54

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: Substantive Due Process - Economic Regulations

Answer 54

A substantive due process challenge directed at an economic regulation is subject only to rational basis review.

• —> Under such a review, the burden is on the P to show either: (1) that the govt interest being served is not legitimate, or (2) if the govt’s interest is legitimate, that the legislation is nevertheless not rationally related to promoting it.
• —> In either case, the P’s burden is difficult to meet and the govt action will likely survive review.
• —> Both over-inclusive and under-inclusive laws will satisfy rational basis review.

Question 55

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: Substantive Due Process - Fundamental Rights (Generally)

Answer 55

A substantive due process challenge directed at govt action that impinges on a right deemed “fundamental” is subject to the highest level of scrutiny: strict scrutiny.

• —> Under such a review, the burden is on the govt to show both: (1) that the govt interest being served is of a compelling nature, and (2) that its legislation is narrowly tailored to achieve its purpose.
• —> The govt’s burden is difficult to meet and the govt action is not likely to survive review.
• —> Both over-inclusive and under-inclusive laws will likely fail strict scrutiny review.

Fundamental Rights

• Contraceptives
• Marriage
• Abortion
• Family Relations
• Private Education
• Possession of Obscene Material
• Right to Travel
• Right to Vote

Question 56

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: Substantive Due Process - Fundamental Rights (Abortion)

Answer 56

A woman has a protected privacy interest in choosing to have an abortion before the fetus is viable.

• —> Any reg on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman’s right to choose an abortion.
• —> Even subsequent to viability, a state cannot force a woman to continue a pregnancy if it endangers her life or health.

Examples of undue burden:

• —> Total ban on abortion.
• —> Spousal consent or notification req’ment.
• —> Recording the names of patients who seek abortions.
• —> Req’ing minors to get parental consent w/o a judicial bypass option.

Examples of no undue burden:

• —> Req’ing minors to get parental consent w/ a judicial bypass option.
• —> A 24-hour waiting period.
• —> Req’ing drs to give truthful, non-misleading info to women seeking abortions.
• —> Refusing public funds.
• —> A prohibition on certain methods of abortion if they are not the safest.

Question 57

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: Substantive Due Process - Fundamental Rights (Family Relations)

Answer 57

The govt cannot prohibit members of an extended family from living in a single household.
—-> The state can ban unrelated persons from living together in a single-family residence.

Question 58

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: Substantive Due Process - Fundamental Rights (Private Education)

Answer 58

Parents have a right to privately educate their children outside the public school system.

Question 59

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: Substantive Due Process - Fundamental Rights (Possession of Obscene Material)

Answer 59

Right to possess obscene material in the privacy of one’s home.
—-> However, there is not a protected right to buy or sell that same material.

Exception: The state can criminalize even the private possession of child pornography.

Question 60

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: Substantive Due Process - Fundamental Rights (Right to Travel)

Answer 60

14A Privileges or Immunities Clause allows citizens to travel freely from state to state and to set up residency in a new state.
—-> The right to int’l travel is not absolute and may be subject to reasonable restrictions in the name of nat’l security.

Question 61

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: Substantive Due Process - Fundamental Rights (Right to Vote)

Answer 61

Generally, the right to vote comes from the 1A Right of Association and the 14A.

• —> However, there are more specific amendments regarding the right to vote:
  (1) 15A: States cannot discriminate with respect to race and right to vote.
  (2) 19A: States cannot discriminate with respect to sex and right to vote.
  (3) 24A: No poll taxes.
  (4) 26A: Right to vote for all citizens 18 years or older.

Level of Scrutiny
Not every form of govt reg receives strict scrutiny.
—-> Some voting restrictions are constitutional, while others are not.
—-> Restrictions that are constitutional:
(1) Reasonable residency and voter reg reqs.
(2) Reasonable reg of time and manner of casting votes.
(3) Denying felons the right to vote.
—-> Restrictions that are unconstitutional:
(1) Cannot impose poll tax.
(2) Cannot req voters at school board elections to own property.
(3) Cannot count votes using standards that lack uniformity or are too vague.

Presidential Elections

• —> The President is not chosen by the overall popular vote.
• —> Instead, individual voters select electors as state representatives and they actually choose the President.
• —> Who can vote for state electors? Anyone who may vote for state legislature.

Question 62

Due Process and Incorporation of Portions of the Bill of Rights –> Due Process Clause: Substantive Due Process - No Fundamental Right but Ct Created Some Nuance

Answer 62

(1) No right to die via suicide or assisted suicide, but there is a right to refuse medical treatment.

(2) Same-sex intimacy is not considered a fundamental right, but it is unconstitutional to criminalize such behavior.
- —> The Court applied a rational basis review, but because the state lost, which is virtually unheard of, the court seemed to apply rational basis with “teeth.”

Question 63

Due Process and Incorporation of Portions of the Bill of Rights –> 5A Takings Clause

Answer 63

The fed govt cannot take private property for public use without just compensation (this prohibition applies to the states as well through the DPC of the 14A).
—-> “Public use” = “public purpose” (easy standard to meet).

Four kinds of takings

(1) Direct govt appropriation
(2) Regulatory taking
(3) Temporary Restrictions
(4) Conditional Permits

Question 64

Due Process and Incorporation of Portions of the Bill of Rights –> 5A Takings Clause: Direct Govt Appropriation

Answer 64

Where the govt actually takes someone’s property.

Question 65

Due Process and Incorporation of Portions of the Bill of Rights –> 5A Takings Clause: Regulatory Taking

Answer 65

Where the govt doesn’t take property, but imposes a regulatory req’ment that is so onerous as to effectively amount to a taking.

Categories to determine whether a regulatory requirement amounts to a taking:

(1) The reg reqs the property owner to suffer some permanent physical invasion;
(2) The reg deprives the property owner of all economically beneficial use to the property; or
(3) The govt will balance the economic versus physical impact of the reg on the property owner, as well as the duration and character of the govt action.

Question 66

Due Process and Incorporation of Portions of the Bill of Rights –> 5A Takings Clause: Temporary Restrictions

Answer 66

Does not permanently deprive the owner of all economically beneficial uses of his land.
—-> A ct will look at both the dimensions of a property interest and the term of years.

Question 67

Due Process and Incorporation of Portions of the Bill of Rights –> 5A Takings Clause: Conditional Permits

Answer 67

A condition on the grant of a permit for land development.

Permissible if:

(1) there is a logical nexus between the condition and the govt’al purposes; and
(2) there is rough proportionality between the impact on the proposed development and the govt’al objectives served by the condition.

Question 68

Equal Protection of the Laws –> Constitutional Basis

Answer 68

For the states: the 14A Equal Protection Clause.

For the federal government: the 5A Due Process Clause.

Equal protection requires the govy to justify when it discriminates.
—> For an equal protection question, identify: (1) the type of discrimination; (2) against whom; and (3) identify and/or apply the level of scrutiny attached to that discrimination against that particular group.

Question 69

Equal Protection of the Laws –> Standards of Review: Rational Basis

Answer 69

Rational basis will be the level of review in situations of disparate impact.

• —> Disparate impact, by itself, is not discrimination.
• —> Rational basis review applies to all classifications not falling under strict or intermediate scrutiny (such as classifications based on age, disability, and alienage if done by Congress).
• —> The govt generally prevails when rational basis review is applied (exception: recent cases have held classifications based on sexual orientation that appear to discriminate based on that classification are unconstitutional because the legislation lacked a legitimate government purpose; in each case, the legislation failed to even pass the low-level scrutiny of rational basis review- remember, that the court seems to apply rational basis review with teeth to sexual orientation cases).

Standard of Review
—> The burden is on the P to show that the measure being challenged is not rationally related to any legitimate govt’l interest (P will almost always lose).

Two Exceptions:

(1) If the purpose of the measure being challenged was intended to have a racially disproportionate effect, then it is intentional discrimination and will face strict scrutiny.
(2) If a neutral standard is being applied in a discriminatory way, it will face strict scrutiny.

Question 70

Equal Protection of the Laws –> Standards of Review: Intermediate Scrutiny

Answer 70

Rule: The govt must show that the measure being challenged is substantially related to an important governmental interest.
—-> Applies to govt discrimination regarding sex and illegitimacy.

Question 71

Equal Protection of the Laws –> Standards of Review: Strict Scrutiny

Answer 71

Rule: The govt must prove that the measure being challenged serves a compelling govt interest, and it is necessary to further that interest.
—-> The govt usually fails to prove its burden under strict scrutiny.

Question 72

Equal Protection of the Laws –> Suspect Classifications: Strict Scrutiny - Generally

Answer 72

Applies to classifications based on race, alienage, and national origin.
—-> Such laws will be presumptively invalid, absent a showing by the state that the measure is necessary to achieve a compelling state interest.

Question 73

Equal Protection of the Laws –> Suspect Classifications: Strict Scrutiny - Racial Discrimination

Answer 73

State laws prohibiting interracial marriages or interracial cohabitation are unconstitutional.
—-> They facially discriminate on the basis of race.

De jure segregation:

• —> Laws that deliberately segregate on the basis of race.
• —> This will face strict scrutiny and almost always be found unconstitutional.

De facto segregation:

• —> Segregation in fact but not by operation of law.
• —> This isn’t discrimination, as there’s no state action.

School segregation:

• —> Various plans to hinder desegregation have been deemed unconstitutional, including the closing of all public schools.
• —> School boards have an affirmative duty to eliminate intentional racial segregation of schools.
• —> Court-ordered busing is constitutional where it is implemented to remedy past discrimination in a particular school system, some sort of de jure segregation.

Overt classifications may pass strict scrutiny where:

(1) Police are separating a crowd by race in the middle of a riot; or
(2) Affirmative action.
- —> Two compelling interests for affirmative action: (both must be narrowly tailored)
1. Remedying the effects of past discrimination by the state; and
2. Achieving a diverse student body in an institute of higher education.

Question 74

Equal Protection of the Laws –> Suspect Classifications: Strict Scrutiny - Alienage Discrimination by States

Answer 74

Resident Aliens:
When states discriminate against resident aliens, apply strict scrutiny.

Public-Function Exception: 
Some jobs or activities may be withheld from resident aliens, including:
(1) Police officers
(2) Governmental officials
(3) Public school teachers

Undocumented Aliens:
Rational basis review applies to discrimination against undocumented aliens.
—-> However, states cannot enact their own immigration policy.
—-> That is reserved for the federal government.

Question 75

Equal Protection of the Laws –> Suspect Classifications: Intermediate Scrutiny - Illegitimacy

Answer 75

Illegitimacy:
Laws that treat people differently based on whether their parents were married.

If there is a question with discrimination based on illegitimacy on the bar exam, it will probably be unconstitutional.
—-> This sort of discrimination serves no important governmental interest.

Question 76

Equal Protection of the Laws –> Suspect Classifications: Intermediate Scrutiny - Sex Discrimination

Answer 76

Laws that treat men and women differently must meet intermediate scrutiny.
—-> If a question involves discrimination that is motivated or reinforced by traditional stereotypes about appropriate sex roles, it will most likely be unconstitutional.

Examples of unconstitutional laws:

(1) A state law giving preference to men over equally qualified women to be administrators of decedents’ estates.
(2) The military cannot make male servicemen automatically eligible for housing benefits while female service members have to prove that their husbands are financially dependent upon them.
(3) Authorizing alimony payments to women but not to men.
(4) Higher drinking age for men than for women.

Example of constitutional laws:

(1) The Court upheld the registration of males but not females for draft by the military because Congress, pursuant to its military powers, had determined that this was necessary to further important government interests.
(2) State statutory rape laws may set the age of consent higher for females than for males.
- —> This is based on an actual biological basis.
- —> Females can become pregnant and there is a state interest in preventing teen pregnancy.

Question 77

Equal Protection of the Laws –> Suspect Classifications: Intermediate Scrutiny - Affirmative Action

Answer 77

Gender based affirmative action need only pass intermediate scrutiny.

General rule:
Benign discrimination in favor of women gets upheld to make up for past discrimination either by the person who is offering the remedial program or to make up for societal discrimination.

Question 78

Privileges and Immunities –> Privileges OR Immunities (14A)

Answer 78

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Very limited application and primarily includes the right to:

(1) Travel across state lines and establish residence in a new state;
(2) Petition Congress;
(3) Vote for federal offices;
(4) Assemble; and
(5) Enter public lands.

Corporations are not protected.

Question 79

Privileges and Immunities –> Privileges AND Immunities (Art IV, Sec 2)

Answer 79

Sometimes referred to as the Comity Clause, Article IV, Section 2 provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
—-> Prohibits states from discriminating against non-residents (based upon the fact that they do not reside in the state) with respect to rights and activities that are fundamental to the national union.

Invalid forms of non-resident discrimination:

(1) State statutes that require non-residents to pay a higher fee for commercial licenses;
(2) Commuter taxes that apply to non-residents, but not to residents;
(3) State statutes that only allow state residents to get abortions within the state; or
(4) State laws requiring employers to give hiring preference to state residents.

Types of discrimination that have been upheld:

(1) State statute requiring non-residents to pay higher fees for recreational licenses than residents.
(2) When the purpose of discrimination is to preserve natural, state-owned resources.

Test:
The state can discriminate if it is substantially related to a substantial state interest.

Corporations cannot assert these rights, as a corporation is not a citizen.
—-> A corporation can protect itself from such discrimination via the Dormant Commerce Clause.

Question 80

Retroactive Legislation –> The Contract Clause

Answer 80

“No state shall…pass any…Law impairing the Obligation of Contracts” [Article I, Section 10].
—> The Contract Clause applies only to state legislation, and not to state court decisions or to the federal government.

When determining whether a contract may be modified, courts will consider:

(1) The severity of the impairment; and
(2) The importance of the public interest to be served.

Question 81

Retroactive Legislation –> Ex Post Facto Laws

Answer 81

There are two ex post facto clauses in the Constitution that prevent both the state and federal governments from passing retroactive criminal laws.

(1) Article I, Section 9, Clause 3 provides: “No…ex post facto Law shall be passed”; and
(2) Article I, Section 10, Clause 1 provides: “No State shall pass any…ex post facto Law.”

In general, a statute violates the ex post facto clause if it:

(1) Makes criminal an act that was not a crime when committed;
(2) Prescribes greater punishment for a crime after its commission;
(3) Decreases the amount of evidence required for conviction; or
(4) Extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired.

Question 82

Retroactive Legislation –> Bills of Attainder

Answer 82

Two provisions prevent both federal and state legislatures from passing bills of attainder:

(1) Article I, Section 9, Clause 3 states: “No bill of attainder…shall be passed”; and
(2) Article I, Section 10, Clause 1 provides: “No state shall pass any Bill of Attainder.”

A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct.

Ex post facto laws will not single out an individual or a group whereas bills of attainder do.
—-> Bills of attainder also will not involve a trial.

Question 83

First Amendment Freedoms –> Freedom of Religion and Separation of Church and State: Generally

Answer 83

The 1st Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
—-> Applies to both the federal government and the states through the 14th Amendment.

Question 84

First Amendment Freedoms –> Freedom of Religion and Separation of Church and State: Establishment Clause

Answer 84

Rule (discriminatory legislation):
Where a law prefers one religion or religious sect over others, strict scrutiny applies.

Rule (neutral legislation):
Where legislation or government program is neutral on its face, the court will apply a three-part test under Lemon v. Kurtzman (Lemon test):
(1) The statute must have a secular legislative purpose;
(2) The principal or primary effect or purpose must neither advance nor inhibit religion; and
(3) The statute must not foster an excessive government entanglement with religion.

Question 85

First Amendment Freedoms –> Freedom of Religion and Separation of Church and State: Religious Activities Conducted at Public Schools

Answer 85

Rule: Generally, school prayer is per se unconstitutional.

Other invalid activities at public schools:

(1) Period of silence “for meditation or voluntary prayer.”
(2) Posting the Ten Commandments on the walls of classrooms.
(3) Rabbi/other cleric to conduct non-denominational prayer as part of a graduation ceremony.
- —> Exception: A state legislature may employ a chaplain to conduct an opening day prayer.
(4) Prayer before a high school football game.

Valid activity:
(1) Religious club holding its meetings in a public school.

Question 86

First Amendment Freedoms –> Freedom of Religion and Separation of Church and State: Public School Curriculum

Answer 86

The state cannot put religious classes in public schools (i.e., anti-evolution laws).

Question 87

First Amendment Freedoms –> Freedom of Religion and Separation of Church and State: Other Government Endorsement of Religion

Answer 87

A city can include a crèche, along with a Santa Claus and candy canes in a Christmas display in a park if it is for a secular purpose.

A city may grant a license permitting a private group to put up a cross in a city park near a statehouse.

Placement of the Ten Commandments on the walls of courthouses is unconstitutional (no secular purpose).

Posting the Ten Commandments as a monument along with many other monuments surrounding the State Capitol will not violate the Establishment Clause.
—-> Religion can be included as one of many elements, but it cannot be the sole focus.

Sunday closing laws for the purpose of rest have been held constitutional because it is a secular purpose.

Delegation of authority to religious organizations is unconstitutional.

Question 88

First Amendment Freedoms –> Freedom of Religion and Separation of Church and State: Tax Deductions for Religious Institutions

Answer 88

General rule:

• —> The Supreme Court has upheld the validity of a property tax exemption for religious institutions, if treated the same as other non-profits.
• –> A tax exemption from sales and use taxes available only for the sale of religious magazines and books violates the Establishment Clause as an endorsement of religion.

Question 89

First Amendment Freedoms –> Freedom of Religion and Separation of Church and State: Government Aid to Religious Schools

Answer 89

Providing bus fare for both public and private (including some religious) schools has been found to be constitutional.

States can provide money to both public and private schools for:

(1) Secular textbooks;
(2) Standardized secular exams;
(3) School lunches;
(4) Library media materials and computers; and
(5) Interpreters for deaf students.

States cannot give money:

(1) To be used directly for religious instruction; or
(2) To religious secondary schools – even for the salaries of teachers of secular subjects because of the risk of “excessive government entanglement.”
- —> This is not true at the university level.
- —> The states can fund the salaries of secular teachers because it is assumed that their professional norms will prevent them from engaging in religious indoctrination.

If a tax deduction is given to all parents based on actual expenditures for children attending any public, private, or religious school, it will be upheld.

A voucher program that allows parents to send their children to parochial or religious schools with state aid instead of to failed public schools is allowed because aid is neutral with respect to religion to a broad class of citizens, defined without reference to religion, and parents direct aid to religious schools as a result of their own independent and private choice.

Question 90

First Amendment Freedoms –> Freedom of Religion and Separation of Church and State: Providing Public Services through Religious Institutions

Answer 90

If the government has a sex education program where it gives funding to both secular and religious organizations to carry out the program, it is constitutional.

Question 91

First Amendment Freedoms –> Free Exercise Clause

Answer 91

A person’s religious beliefs are absolutely protected.

• —> The government may not punish an individual by denying benefits or imposing burdens based on religious belief.
• —> The government may not determine the truth or falsity of a person’s religious beliefs, but it may determine a person’s sincerity in his or her claim of religious belief.

Rule: Where an individual’s conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if the regulation is “neutral in respect to religion and is of general applicability.”

Applications of the rule:

(1) A state law outlawing polygamy was upheld.
(2) The Court struck down a free exercise challenge by a Jewish Air Force doctor who violated uniform dress requirements by wearing a yarmulke while on duty.
(3) The Social Security tax applied to an Amish employer was held constitutional, even though his religious beliefs prohibited him from making payments and from receiving benefits.

Two Exceptions (cases that haven’t been overruled):

(1) The state can’t deny unemployment compensation benefits to a person whose religious faith commands the observance of Saturday as the Sabbath.
(2) The state can’t require Amish children to attend high school.

Question 92

First Amendment Freedoms –> Freedom of Expression: Generally

Answer 92

The 1st Amendment provides “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
—-> The 1st Amendment was held applicable to the states through the Due Process Clause of the 14th Amendment.

General principle: The government may not interfere with or distort the marketplace of ideas, especially with respect to political speech.

Question 93

First Amendment Freedoms –> Freedom of Expression: Strict Scrutiny

Answer 93

Rule: Strict scrutiny applies when the govt engages in content-based discrimination.
—-> Common pattern: Content-based regulation, strict scrutiny, unconstitutional.

5 Exceptions

(1) If the government passes strict scrutiny.
(2) Unprotected or low-value speech.
(3) Government as speaker.
(4) Content-neutral conduct regulation.
(5) Content-neutral time, place, and manner regulation.

Question 94

First Amendment Freedoms –> Freedom of Expression: Unprotected Speech - Generally

Answer 94

Rule: A regulation that relates to unprotected speech must pass the rational basis test.

“Unprotected speech” includes:

(1) Speech that advocates violence or unlawful action;
(2) Fighting words
(3) Hostile audience speech
(4) Obscene speech
(5) Defamatory speech

Question 95

First Amendment Freedoms –> Freedom of Expression: Unprotected - Speech that Advocates Violence or Unlawful Action

Answer 95

Test: Such advocacy is (1) directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action.

Question 96

First Amendment Freedoms –> Freedom of Expression: Unprotected Speech - Fighting Words

Answer 96

Words likely to incite an ordinary citizen to commit acts of immediate physical retaliation may be punished.

• –> The speech must be more than annoying or offensive; it has to be a direct personal insult.
• –> “Fighting words” statutes are subject to facial invalidity if the conduct proscribed is vague (e.g., a law prohibiting “opprobrious words”) or overbroad.
• –> “Fighting words” statutes designed to punish certain viewpoints are unconstitutional.

Question 97

First Amendment Freedoms –> Freedom of Expression: Unprotected Speech - Hostile Audience Speech

Answer 97

Speech which elicits an immediate violent response against the speaker by an audience may be grounds for prosecution.
—> The police, however, must make reasonable efforts to protect the speaker, to guard against a “heckler’s veto” of unpopular speech.

Question 98

First Amendment Freedoms –> Freedom of Expression: Unprotected Speech - Obscene Speech

Answer 98

Rule—Speech is considered obscene if (3 part test):

(1) The average person, applying local contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest;
(2) The work depicts or describes, in a patently offensive way, sexual conduct that is specifically defined by state law; and
(3) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Question 99

First Amendment Freedoms –> Freedom of Expression: Unprotected Speech - Defamatory Speech

Answer 99

Constitutional restrictions apply to defamatory speech where the P is either a public official or public figure, or where the defamatory statement involves a matter of public concern.

Private person, matter of private concern

• —> P does not need to prove actual malice or negligence.
• —> May recover according to common law defamation principles.

Private person, matter of public concern
—-> The P must prove negligence about the truth or falsity of the statement (no malice required).

Public official/figure, matter of public or private concern

• —> P must prove the state law requirements of defamation and “actual malice”
• —> Actual malice = knowledge of the falsity or reckless disregard of the truth or falsity of the statement

Private person suing media for false-light invasion of privacy concerning matter of public interest

• —> P must prove actual malice.
• —> NOTE: this standard is higher than in cases when a private plaintiff sues for defamation over matters of public interest; in the latter cases, the plaintiff need only prove negligence.
• —> Rule: A newspaper or broadcaster cannot be held liable for publishing truthful information obtained from the public record. Any newsworthy and true information is also protected.

Question 100

First Amendment Freedoms –> Freedom of Expression: Low-Value Speech (Quasi-Protected Speech) - Commercial Speech

Answer 100

Protected by the 1st Amendment if it is not false or deceptive and does not relate to unlawful activity.

• —> If commercial speech satisfies these requirements, government regulation of the speech must satisfy the three-part test:
  (1) Serve a substantial governmental interest;
  (2) Directly advance the substantial governmental interest; and
  (3) Not be more extensive than is necessary to serve that interest.

Examples - A state can:

(1) Discipline lawyers for in-person solicitation of clients for personal gain because of the potential for overreaching.
(2) Prohibit commercial billboards.

Examples - A state cannot:

(1) Ban advertisement of drug prices.
(2) Prohibit attorneys from advertising legal services.
(3) Ban all advertising for legal products.

Question 101

First Amendment Freedoms –> Freedom of Expression: Low-Value Speech (Quasi-Protected Speech) - Sexual or Indecent Speech

Answer 101

Indecent speech is fully protected but can be regulated on the basis of secondary effects.

Rule: Secondary-effects regulations must serve a substantial govt interest and leave open reasonable alternative channels of communication.

Question 102

First Amendment Freedoms –> Freedom of Expression: Low-Value Speech (Quasi-Protected Speech) - Government as Speaker

Answer 102

Rule: Where the government is the speaker (not a private actor), the government may say what it wants.

Question 103

First Amendment Freedoms –> Freedom of Expression: Low-Value Speech (Quasi-Protected Speech) - Conduct Regulation

Answer 103

Rule: Laws that regulate conduct and create an incidental burden on speech are allowable if:

(1) The reg furthers an important or substantial govt interest that is unrelated to the suppression of free expression; and
(2) The incidental restriction on speech is no greater than is necessary to further that interest.

Question 104

First Amendment Freedoms –> Freedom of Expression: Low-Value Speech (Quasi-Protected Speech) - Time, Place, Manner (General)

Answer 104

The govt may place reasonable restraints on the time, place, and manner of speech in public areas (such as streets, sidewalks, and parks)—places historically associated with expressive conduct (e.g., picketing, leafleting, and broadcasting).

Question 105

First Amendment Freedoms –> Freedom of Expression: Low-Value Speech (Quasi-Protected Speech) - Time, Place, Manner (Public Forums)

Answer 105

3 Part Test—The reg must:

(1) Be content neutral, as to both subject matter and viewpoint (i.e., the regulation cannot prefer some messages over others);
(2) Be narrowly tailored to serve an important government interest; and
(3) Leave open alternative channels of communication.

Examples; Government can:

(1) Require large gatherings to get a permit to use public property (the criteria to receive a permit must be defined and content neutral).
(2) Restrict the volume and hours of amplifiers.

Examples; Government cannot:

(1) Req parades or marches to pay for police protection.
(2) Enact a complete ban on door-to-door solicitation.

Question 106

First Amendment Freedoms –> Freedom of Expression: Low-Value Speech (Quasi-Protected Speech) - Time, Place, Manner (Non-Public Forums)

Answer 106

Speech-related activities at non-public forums (such as military bases, jails, government workplaces, and mailboxes) can be regulated by viewpoint-neutral regs.

Test: the regulation must be reasonably related to a legitimate government purpose.

Examples:
o Government can:
(1) Prohibit demonstrations on jailhouse grounds.
(2) Close military bases to political speeches and leaflet distribution.
(3) Regulate speech in government workplaces.
(4) Sell commercial advertising on a city bus but refuse to sell such space for political advertising.
o Government cannot:
(1) Deny use of public school facilities to religious groups if other public and private groups are allowed similar access.

Question 107

First Amendment Freedoms –> Freedom of Expression: Public Employment

Answer 107

General rule: An individual cannot be denied public employment based upon membership in a political organization, unless the position is a high-level policy-making position.

An individual may be denied public employment based on political association if the individual:

(1) is an active member of a subversive organization;
(2) has knowledge of the illegal aims of the organization; and
(3) has a specific intent to further those illegal aims.

Public employees can be required to take an oath to support the Constitution and to oppose the overthrow of the government by illegal means.

• —> Examples - the government cannot require:
  (1) public employees to swear not to aid, advise or influence the Communist Party;
  (2) employees to swear to inspire reverence for the flag; or
  (3) school children to recite the Pledge of Allegiance.

Public employees may be disciplined or fired for speech if:

(1) speech is not a matter of public concern; or
(2) speech is potentially disruptive to the workplace (even if it is a matter of public concern).

Question 108

First Amendment Freedoms –> Freedom of Expression: School Children

Answer 108

Public school children can be disciplined for speech that is potentially disruptive.

Question 109

First Amendment Freedoms –> Freedom of Expression: Prisoners

Answer 109

Prisoners’ speech may be restricted by a reg that is rationally related to a legitimate penological objective.

Question 110

First Amendment Freedoms –> Freedom of Expression: Prior Restraint

Answer 110

General rule: The govt cannot suppress/restrain speech in advance of its publication or utterance.
—-> Strong presumption that prior restraints are illegal.

Exceptions

(1) Classified military information.
(2) A govt agency can req prepublication review of writings related to employment of past or present employees where such a review is necessary to protect nat’l security.

Question 111

First Amendment Freedoms –> Freedom of Expression: Overbreadth

Answer 111

When a state has the power to regulate an area dealing with free speech, it must do so in a way that is narrow and specific, and not overly broad so as to have a “chilling effect” upon protected speech.
—-> Overbreadth is an exception to 3rd-party standing.

Question 112

First Amendment Freedoms –> Freedom of Expression: Vagueness

Answer 112

The “vagueness” doctrine is closely related to the “overbreadth” doctrine.
—–> Governmental regs must be drawn “with narrow specificity” and not vague.

Examples of statutes found to be “void for vagueness”

(1) Statute making it a crime to treat the flag contemptuously.
(2) State law that denies a govt job to people who are subversive.

Question 113

First Amendment Freedoms –> Freedom of Expression: Pretrial Publicity Restraining Order

Answer 113

Factors:

(1) Nature and extent of the pretrial publicity;
(2) Availability of other measures to mitigate the effects of pretrial publicity; and
(3) The likely effectiveness of the restraining order.

Pretrial gag orders are usually unconstitutional if there are alternative means to prevent pollution of the jury pool such as:

(1) Careful voir dire of jury;
(2) A change of venue; or
(3) Postponement of the trial.

Another form of prior restraint is the censorship or licensing of motion pictures prior to their exhibition.

• —-> The Court has held that statutes requiring films to be submitted to a Board of Censors before showing them are constitutional if the following requirements are met:
  (1) the standards for the denial of a license are narrowly drawn and reasonable;
  (2) when a license is denied, the censor promptly seeks an injunction;
  (3) the burden of proving that the material is “obscene” is on the censor; and
  (4) a prompt judicial determination is provided.

A method the govt frequently uses for regulating the time, place, and manner of speech is to require a license or permit for such activities as a parade, demonstration, or rally.

• —> A licensing statute that is valid on its face must be obeyed and a permit denial cannot be ignored, even if the statute is applied unconstitutionally.
• —> Where a statute is facially void (i.e., gives the licensing officials unrestricted discretion), a speaker need not even apply for a permit. In this case, one may exercise his 1st Amendment rights on the public property without a permit.

Injunctions must be obeyed or appealed; they cannot be ignored even if erroneous.

Question 114

First Amendment Freedoms –> Freedom of Expression: Press

Answer 114

The press has no greater freedom to speak than an ordinary member of the public.

A newsperson has no 1st Amendment right to refuse to testify before a grand jury.

In general, radio and television broadcasting can be more closely regulated than the print media or a private individual because they have a license from the government and are exercising a privilege the government gives them.

The Court has held that cable television receives 1st Amendment protection somewhere between that of broadcast TV and newspapers and citizens.

Government can ban offensive sexual content and speech on broadcast television.

Where cable TV operators are subjected to content-neutral regulations, intermediate scrutiny is applied.

On the other hand, where content-specific regulation is imposed, the Court has yet to select a standard of review; however, the Court allows cable TV operators the right to ban “indecent” programming on channels that are leased outright to unaffiliated third parties (but not to public access channels).

Question 115

First Amendment Freedoms –> Freedom of Expression: Bar Admission

Answer 115

States are permitted, under the Due Process Clause, to inquire into the qualifications and fitness of candidates for admission to the bar.

• —> A candidate cannot be denied admission for past membership in the Communist Party.
• —> However, a state can refuse bar membership to applicants who refuse to answer questions about such membership.
• —> A state can require that a lawyer seeking admission take an oath to support the federal and state Constitution.