Constitutional Law

Question 1

Requirements for Cases and Controversies (4 Justiciability Doctrines)

Answer 1

The four justiciability doctrines that must be met in order to meet the cases and controversies requirement are 1) Standing 2) Ripeness 3) Mootness and 4) No political questions

Question 2

Standing

Answer 2

Standing issue of whether the plaintiff is the proper party to bring the matter to the court for adjudication. The plaintiff must have 1) an injury in fact, meaning the plaintiff has been personally injured or imminently will be harmed in the future 2) Causation and Redressibility, meaning the plaintiff must prove that the defendant caused the injury and a court decision can remedy the injury, 3) No third party standing is allowed, so plaintiff cannot assert a claim of a third party who is not here before the court unless they have a close relationship, the third party is unable to assert his own rights, or an organization sues on behalf of its members, 4) No generalized grievance solely suing as a citizen or taxpayer, unless the taxpayer challenges based on a violation of the establishment clause (religion).

Question 3

Ripeness

Answer 3

Ripeness is a justiciability doctrine that determines whether a federal court may grant pre-enforcement review of a statute or regulation (usually a declaratory judgment). Two criteria for ripeness: 1) whether the hardship will be suffered without pre-enforcement review, and 2) the fitness of the issues and the record for judicial review

Question 4

Mootness

Answer 4

Mootness is a justiciability requirement that plaintiff must present a live controversy or ongoing injury. If the plaintiff’s injury ends after the lawsuit is filed, the case must be dismissed as moot, unless 1) the plaintiff may be harmed again later but the wrongdoer can evade review 2) the defendant voluntarily halts the offensive conduct, but is allowed to resume it, or 3) it is a class action suit and there is at least one member of the class that still has an ongoing injury

Question 5

No Political Questions Doctrine

Answer 5

Federal courts will not adjudicate certain questions that are left for the elected branches to resolve. The following are “non-justiciable” political questions: 1) Challenges to the clause that the US guarantees each state a republican form of government, 2) Challenges to President’s conduct of foreign policy, 3) Challenges to the impeachment and removal process 4) Challenges to partisan gerrymandering for political parties

Question 6

How does a case get to the Supreme Court?

Answer 6

All cases from state courts come to SCOTUS by writ of cert. SCOTUS can review a decision of the highest court of a state where the state legislation is called into question on the ground that it is unconstitutional or contrary to federal statutes, but only if the state court judgment turned on federal grounds.

All cases from US courts of appeals come to SCOTUS by writ of cert.

Appeals from 3 panel federal district courts go directly to SCOTUS by writ (skip US court of appeals), and MUST be heard by supreme court

SCOTUS has ORIGINAL and EXCLUSIVE jx for suits between STATE govs

Question 7

Final Judgment Rule

Answer 7

SCOTUS may hear cases only after there has been a final judgment of the highest state court, the US court of appeals, or of a three-panel fed district court decision.

Question 8

Independent and Adequate Rule

Answer 8

SCOTUS cannot review state court decision if there is an INDEPENDENT (from federal grounds) and ADEQUATE (fully dispositive of the case) state law ground for the decision. If the state court decision rests on two grounds, one state law and one fed law, SCOTUS cannot hear it if SCOTUS’s reversal of the fed law ground won’t change the result in the case based on state law. If reversal of the federal court ruling would change the outcome, then SCOTUS can review.

Question 9

Sovereign Immunity

Answer 9

A private party generally cannot sue a state government in federal court for damages (without state’s permission). Exceptions: State officers may be sued in federal court as long as the state treasure if not going to pay for money damages on behalf of the officer. Also, States may be sued if 1) States gave waiver/consent to be sued– must be explicit, not implied 2) To enforce the 1A, 5A, 14A under congressional authorization 3) Fed gov sues a state government, or 4) in federal bankruptcy proceedings.

Question 10

Abstention

Answer 10

Abstention is when an action is already going on in state court on unsettled question of state law, so the federal court will abstain so state can settle issue. Exception: fed court will hear an action to enjoin a pending state court case if it is being conducted in bad faith (i.e. merely to harass the D)

Question 11

Executive Powers

Answer 11

Foreign Policy powers: 1) No power to declare ware, but can Act militarily against foreign hostilities 2) Act as commander in chief to deploy military forces 3) represent the US in foreign relations 4) recognition power to recognize capital of a foreign country, 5) power to admit immigrants to the US, 6) power to sign treaties with 2/3 senate approval 5) power to create executive agreements 7) veto power (but no line item vetos)

Domestic Affairs powers: 1) Appointment of ambassadors, federal judges, and officers of the US 2) removal of any high level, purely executive officers at will, without interference by congress. Congress can limit removal to firing for good cause if it is an office where independence from the President is desirable (like special counsel); AND cannot be a single person who heads an agency and exercises substantial discretion, 3) Pardon Power of those accused of convicted of federal crimes, but not for impeachment, civil liability, or state offenses.

Question 12

Impeachment

Answer 12

The president, VP, federal judges, and officers of the US can be impeached and removed from office for treason, bribery, or for high crimes and misdemeanors. Majority vote in the House is necessary to invoke charges of impeachment; AND 2/3’s vote in the Senate is necessary to convict and remove from office.

Question 13

Presidential Immunity

Answer 13

President has Absolute immunity from civil suits for money damages for any actions that happened in office. However, president has NO IMMUNITY for actions that occurred PRIOR to taking office.

Question 14

Executive Privilege

Answer 14

Executive privilege for presidential papers and conversations are presumptively privileged, but such privilege must yield to other important government interests (i.e. legislative proceedings for legitimate legislative purposes). If financial records are being subpoenaed by state grand jury – NO immunity, but if By congressional committee, balance the competing interests

Question 15

Legislative Powers

Answer 15

1) MILD police Power over military, indian reservations, federal land, and DC 2) Necessary and proper clause: Congress has power to make all laws necessary and proper for executing ANY power granted to ANY branch of the fed gov. Congress may choose any means not prohibited by the Constitution to carry out its authority. The N/P Clause must work in conjunction with another fed power. It can’t support federal law standing on its own. 3) Taxing/spending power: o Congress may SPEND for ANY PUBLIC PURPOSE, not merely the accomplishment of other enumerated powers, so long as it doesn’t infringe on another constitutional limitation 4) Commerce Clause power: power to regulate foreign commerce and interstate commerce including CIA Channels, Instrumentalities, and Activities 5) Power over citizenship, 6) Postal Power, 7) Power to declare war 8) Power to take property

Question 16

Commerce Clause Power

Answer 16

Congress has exclusive power to regulate foreign commerce and interstate commerce through channels, instrumentalities, and activities. 1) Congress may regulate the Channels of interstate commerce with foreign nations, Indian nations, and among states. (i.e., highways, roads, bridges, internet) 2) Congress may regulate the Instrumentalities (trucks, planes, phones, internet) and persons or things (people, cattle, stock, insurance) in interstate commerce 3) Congress may regulate economic Activities that have substantial effect on interstate commerce.

If ECONOMIC or COMMERCIAL activity, court will uphold regulation if it can conceive of a rational basis upon which Congress could conclude that the activity IN AGGREGATE substantially affects interstate commerce.

If NON-economic / NON-commercial activity: Regulation CANNOT use cumulative impact to prove substantial effect. Congress must make a factual finding that the activity regulated has a substantial economic effect on interstate commerce, but cannot aggregate the cumulative impact like it can with economic/commercial activity.

Question 17

Limitations on Congressional/Legislative Power

Answer 17

10th Am: All powers not granted to US, nor prohibited to the states, are reserved to the states. Congress can only induce state gov action by putting strings on grants under the Spending Clause authority, so long as the conditions are (1) expressly, clearly stated (2) related to the purpose of the spending program, and (3) not unduly coercive. Congress may also prohibit harmful commercial activity by state govs. However, Congress cannot COMMANDEER state officials by requiring states to regulate their own citizens (i.e. Congress requires the state to take action).

Section 5 of 14A: Congress may not create new rights OR extend the scope of rights. Congress may act only to prevent or remedy violations of rights recognized by the courts; such laws must be proportionate and congruent to remedying constitutional violations.

Question 18

Legislative Delegation of Powers

Answer 18

Congress has broad authority to delegate its power, except powers that are uniquely confined to Congress. Congress may NOT delegate executive power to ITSELF or its OFFICERS.

Question 19

Legislative Vetos and Line Item Vetos

Answer 19

Legislative vetoes (Congress attempts to overturn EXECUTIVE ACTION without bicameralism OR presentment by making a law that give Congress the right to overturn discretionary executive action without passing a new law and presenting it to the President for
approval) and line-item vetoes (When Pres attempts to veto part of a bill and sign rest into law) are ALWAYS unconstitutional.

Question 20

Preemption

Answer 20

Supremacy Clause provides that the Constitution, and laws and treaties made pursuant to it, are the SUPREME LAW of the land. Express Preemption: If the federal statute explicitly provides that fed law is exclusive, state and local laws are preempted (postal power, regulation of foreign commerce). Implied Preemption: If federal and state laws are mutually exclusive, (if not possible to comply with both state and fed law) federal law preempts state law.

Question 21

Dormant Commerce Clause

Answer 21

If law/action does NOT discriminate against out of staters, the law violates commerce clause if the burden of statute on interstate commerce exceeds the benefits.

If law/action DISCRIMINATES against out of staters, it violates commerce clause if it places a burden on interstate commerce UNLESS necessary to achieve an important government purpose. Exceptions: the state law may discriminate against out of staters when (1) Congress approves of the discrimination (2) State is a Market Participant and may prefer its own citizens in receiving benefits from gov programs or in dealing with gov owned businesses (UC charges against out of staters higher tuition than in staters)

Question 22

Privileges and Immunities Clause of Article IV

Answer 22

Prohibits states from DISCRIMINATING/ depriving out-of-state citizens the privileges and immunities it accords its OWN CITIZENS unless it meets Intermediate Scrutiny – statute must be NECESSARY to achieve an IMPORTANT gov purpose with NO LESSER RESTRICTIVE ALTERNATIVE. Corporations and aliens are NOT protected by this clause and cannot sue under P+I clause

Question 23

Privileges and Immunities Clause of the 14A

Answer 23

£ Privileges or Immunities Clause of 14A: no state shall deprive any CITIZENS of the privileges and immunities of NATIONAL CITIZENSHIP (look for state discrimination of its own residents)
• Ex: right to petition Congress for redress of grievances, right to vote for federal officers, and RIGHT TO INTERSTATE TRAVEL which includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state (only instance in which SCOTUS has analyzed).

Question 24

State Taxes on Interstate Commerce

Answer 24

States may not use their tax systems to discriminate between in-state and out-of-state businesses. Otherwise, possible violation of Commerce Clause, EP, or P&I of Art IV.

Non-Discriminatory Taxes: valid if (1) the activity has a substantial nexus to the state (2) State taxation of interstate businesses must be fairly apportioned and (3) tax must be fairly related to the services or benefits provided by the state.

Question 25

Full Faith and Credit

Answer 25

Courts in one state must give full faith and credit to judgments of courts in another state, so long as (1) The court that rendered the judgment had jx over the parties and the subject matter; (2) The judgment was on the merits; AND (3) The judgment is final.

Question 26

Private Actors

Answer 26

Constitution ONLY applies to gov action, at all levels. Private entities don’t need to comply with the Constitution UNLESS (1) performing a public function TRADITIONALLY & EXCLUSIVELY done by the gov (such as running a city. Very narrow exception) OR (2) there is excessive entanglement, or significant state involvement in private activities. gov affirmatively authorizes, encourages, or facilitates unconstitutional private conduct.

Question 27

Bill of Rights applies to

Answer 27

Bill of Rights directly applies ONLY to fed gov. All of the bill of rights applies to state and local gov through its INCORPORATION into the DP Clause of the 14A. EXCEPT: 3A right to not have soldier quartered in person’s home, 5A right to grand jury indictment in crim case, 7A right to jury trial in civil cases

Question 28

Rational Basis level of scrutiny

Answer 28

Plaintiff must prove that the law is not rationally related to a legitimate government purpose in order to show it is unconstiutional

Question 29

Intermediate scrutiny

Answer 29

Government must show that the law is substantially related to an important government purpose, and narrowly tailored to achieve that purpose, in order to be constitutional

Question 30

Strict Scrutiny

Answer 30

Government must show that the law is necessary to achieve a compelling government purpose and uses the least restrictive alternative to achieve the goal in order to be constitutional

Question 31

Takings Clause

Answer 31

5A provides that private property MAY be taken for public use, as long as there is just compensation.

There is a taking if 1) Possessory taking: gov taking physical occupation of property is ALWAYS a taking or 2) Regulatory taking: gov regulation that robs property of ALL economic valuable use is a taking. Decrease in value isn’t enough.

The property is taken for a public use if the government’s action is rationally relate to a legitimate public interest. Just compensation is paid if FMV of property is given, or the regulation is terminated and government pays for damages in occurred when regulation was in effect

Question 32

Contracts Clause

Answer 32

No state shall enact laws that retroactively impair the obligations of contracts. Applies only to STATE or local interference with EXISTING contracts, doesn’t apply to the FED GOV.

PRIVATE CONTRACTS: state legislation that substantially impairs an existing private K is INVALID unless 1) It serves an important and legitimate public interest; and 2) Is reasonable, and narrowly tailored means of promoting that interest.

GOVERNMENT CONTRACTS: State or local interference with gov Ks must meet Strict Scrutiny - necessary to achieve a compelling interest

Question 33

Ex Post Facto Laws

Answer 33

Criminal cases: Federal and state governments are prohibited from enacting laws that criminally punish conduct that was lawful at the time, or that increases punishment for crime after it was committed are. Civil Cases: Retroactive civil liability only needs to meet rational basis, be rationally related to a legitimate government purpose, in order to be constitutional

Question 34

Bills of Attainder

Answer 34

Federal and State governments are prohibited from passing bills of attainder, or legislative acts that inflict punishment on individuals without judicial trial

Question 35

Procedural Due Process

Answer 35

1) A fair process (notice & a hearing) is required for the gov to take a person’s life, liberty, or property. 2) A deprivation of LIBERTY occurs if there is the loss of a significant freedom provided by the Constitution or a statute. A deprivation of PROPERTY occurs when there is an “entitlement” or reasonable expectation to continue receipt of a benefit, and it is not fulfilled. 3) In deciding what procedure is required by the government, the court balances on one hand, (a) the importance of the interest to the individual and the ability of additional procedural safeguards to increase accuracy of fact finding, against (b) the government interest in fiscal and administrative efficiency on the other hand

Question 36

Procedural Due Process Examples

Answer 36

Termination of Property interest in a license requires notice + hearing.

Termination of public employee’s property interest in continued right to employment requires notice + pre-termination opportunity to respond + hearing

Termination of welfare benefits requires notice + hearing.

Termination of social security / disability benefits requires post-termination hearing.

Termination of right to custody of child requires notice + hearing.

US citizen held as enemy combatant requires notice + hearing.

Public school disciplining (suspension or expulsion) student requires notice + chance to explain. NO hearing required.

Punitive damages requires jury instruction + judicial review to ensure reasonableness

Prejudgment attachment / gov seizure of assets requires prior notice + hearing.

Question 37

Substantive Due Process

Answer 37

1) Gov needs adequate JUSTIFICATION for taking a person’s life, liberty, or property. 2) The Due Process clause of 5A binds the fed gov, and due process clause of 14A binds state/local governments. 3) If fundamental right limited, use strict scrutiny. All other rights (like economic liberties) use rational basis test

Question 38

Fundamental Rights (substatnive due process)

Answer 38

Fundamental rights require the government to prove that the statute meets the strict scrutiny test. Fundamental rights include (1) PRIVACY RIGHTS: Right to Marry, Right to Procreate, Right to purchase and use contraceptives, Right to Custody of one’s children, Right to Keep Family Together, Right of Parents to control Upbringing of Children, Right to keep Family Together, (2) RIGHT TO VOTE (poll taxes are unconstitutional) and (3) RIGHT TO TRAVEL (but right to foreign travel only requires rational basis) (4) RIGHT TO FREEDOM OF SPEECH (5) RIGHT TO FREEDOM OF ASSOCIATION (6) RIGHT TO FREEDOM OF RELIGION

Question 39

Rights Triggering Undue Burden Test under Substantive Due Process

Answer 39

The Right to abortion triggers the undue burden test. At the Pre-Viability stage, (time at which fetus can survive outside womb), Gov cannot prohibit abortion. But, gov can REGULATE in order to protect mother’s / fetus’s health so long as the regulation does NOT place an UNDUE BURDEN on right. Post-viability, the government may regulate or even prohibit abortions, unless necessary to protect woman’s life or health. Constitutional regulations include Prohibition of partial-birth abortion, and Parental notice and consent laws for unmarried minors so long as it creates an alternative procedure where minor can obtain abortion by going before a judge. NO DUTY to subsidize abortions or provide abortions in public hospitals. Spousal consent and notification laws are unconstitutional.

Question 40

Non-Fundamental Rights (substantive due process)

Answer 40

Rights that are not fundamental only require the law to be rationally related to a legitimate government interest (rational basis). These include Right to Education, Right to physician assisted suicide, and right to practice a trade/profession.

Question 41

Right under which Level of Scrutiny is unknown (substantive due process)

Answer 41

Right to Privacy to engage in Consensual Homosexual Activity: Court has ruled the state has no legitimate interest in criminalizing this conduct, but level of scrutiny is unknown. Right to Refuse Medical Treatment> Competent adults have right to refuse medical treatment, even life-saving medical treatment, but State may require clear and convincing evidence that a person wanted treatment terminated before it is ended. State may prevent family members from terminating treatment for another. **But NO right to refuse vaccine in order to save from a communicable disease like Covid. Right to Bear Arms: SCOTUS says 2A protects rights of people to have guns in the home for security. But right isn’t absolute… Gov’t can regulate where guns can be used / located nor keep people with felony people or history of mental illness from having guns.

Question 42

Equal Protection Clause of 14A

Answer 42

1) EP clause of 14A provides assurance that STATE/LOCAL action will not deny individuals the EP of the law. EP applied to the FED GOV through DP clause of 5A. 2) A law discriminates using classification if (a) Classification is on the face of the law, or (b) Law is facially neutral, but there is both a discriminatory intent for the law and a discriminatory impact to the law. 3) Suspect classification requires Strict Scrutiny, Quasi-suspect classification requires Intermediate Scrutiny, and All other cases require Rational Basis

Question 43

Suspect Classifications (equal protection)

Answer 43

Government must show that a law that discriminates based on these classes must Strict Scrutiny test, necessary to achieve a compelling interest and narrowly tailored to at interest. Must be the least restrictive alternative.

(1) Race and National Origin. Race can be one factor in drawing up voting districts, but can’t be predominant factor. Affirmative action meets strict scrutiny if there is a compelling interest in remedying past discrimination, so long as it’s persistent and readily identifiable. Not applicable to general, past “societal discrimination.” If no past discrimination: gov may still have compelling interest in affirmative action if statute is narrowly tailored to the interest thought. Numerical set-asides / quotas require clear proof of past discrimination. Race can only be one factor in admissions decisions to help minorities.
(2) Alienage: strict scrutiny is required. However, rational basis is used in exceptions including (a) Congress makes the classification, since congress has plenary power over aliens or (b) classification concerns self government and democratic process such as voting, serving on a jury, being a teacher, or probation officer, Intermediate scrutiny is used in classifications involving alien children.
(3) Religion

Question 44

Quasi-Suspect Classifications (equal protection)

Answer 44

A statute that discriminates based on these classes require the government to prove that the statue substantially related to an important government interest and is narrowly tailored to achieve that purpose.

(1) Gender: Gender classifications that are designed to remedy past discrimination and differences in opportunity are constitutional. FOr example, wage differences are OK, remedying past discrim, long history of wage discrim. But Gender classifications benefitting women that are based on ROLE STEREOTYPES are not allowed. These classifications appear to benefit, but actually perpetuate destructive stereotypes. For example, in case of divorce, women can be awarded alimony, but man can’t. This was based on stereotype that women are always economically dependent on husbands, but not vice versa.
(2) Non-marital Children: Laws that give benefit to ALL marital children, but deny benefit to ALL non-marital children uses Intermediate Scrutiny standard and will usually fail.

Question 45

Rational Basis classifications (equal protection clause)

Answer 45

1) Age discrimination (i.e. mandatory retirement laws)
2) Disability discrimination
3) Wealth discrimination (i.e. discrim against poor)
4) Economic regulations (doesn’t matter if challenged under DP or EP)
5) Sexual orientation discrimination

Question 46

FIRST AMENDMENT

Answer 46

1A prohibits fed gov (and states through 14A) from abridging freedoms of speech and press, interfering with right of assembly, establishing a religion, and interfering with free exercise of religion.

Question 47

Regulation of Symbolic Speech

Answer 47

Gov can regulate symbolic conduct that communicates if 1. Gov has an important interest unrelated to suppression of the message; AND 2. The impact on communication is no greater than necessary to achieve the government’s purpose. Examples: Flag burning is protected conduct, Burning cross is protected conduct, unless done with intent to threaten. Draft card burning is NOT protected conduct (gov interest in facilitating a smooth draft). Nude dancing is NOT protected speech. Contribution limits to candidate in election campaigns are generally constitutional, but expenditure limits by candidate are unconstitutional. Right to speak anonymously is protected. Compelling speech violates the first amendment

Question 48

Content-Based Regulation of Speech

Answer 48

Regulation based on the 1. subject matter and 2. viewpoint of Political speech, commercial speech, profane/indecent speech not rising to the level of obscenity is presumptively unconstitutional and the regulation must meet Strict Scrutiny. Unprotected categories of speech include

1. Incitement of Imminent Illegal Activity: Gov may punish speech (i.e. criminalize) if there is a substantial likelihood of imminent illegal activity and if speech is directed/intended to causing imminent illegality.
2. Obscenity and Sexually-Oriented speech: Can regulate if 1. Appeals to prurient interest in sex. (based on reasonable person in community) 2. is patently offensive under the law (based on reasonable person in community) 3. lacks lack serious literary, artistic, political, or scientific value. (based on reasonable person across the nation)
3. Child pornography: Gov MAY prohibit child pornography, regardless if it’s obscene, if it actually uses children in its production. Gov may MAY punish private possession of child porn
4. Defamatory Speech (libel / slander) is not protected: If P is a public/ figure, P can recover for defamation by proving The statement was false and actual malice – the speaker KNEW it was false or acted with reckless disregard for the truth. If P is private figure, and matter is of “public concern”, need to prove The statement was false and defendant was negligent. To get presumed or punitive damages, must prove actual malice. If P is private figure and matter is NOT of public concern plaintiff can get compensatory damages, presumed or punitive damages if
   The statement was false and defendant was negligent without having to show actual malice
5. Some Commercial Speech: Regulation of commercial speech must be narrowly tailored (but does NOT need to be Least Restrictive Alternative) and directly advance a substantial government interest. Unprotected if proposes unlawful activity, or is false/deceptive. The gov may prevent professionals from advertising under a trade name, or prohibit attorney, in-person solicitation of clients for profit.
6. Speech of Government Employees: Government employee speech can be regulated if within the scope of government employee’s duties
7. Fighting Words or threats: Fighting words or threats that, when addressed to an ordinary citizen, are inherently likely to incite immediate physical retaliation-may also be punished; but statutes are often struck down for overbreadth due to difficulty in precisely describing what is or is not a “fighting word.”

Question 49

TIME PLACE MANNER restrictions of speech

Answer 49

Public Forums and Designated Public Forums: Gov can only regulate speech in these areas if regulation is 1) Content Neutral, 2) narrowly tailored to serve an important gov purpose, But does NOT need to use Least Restrictive Alternative and 3) Leaves open adequate alternative places for communication. Public forums are gov properties that the gov is constitutionally required to make available for speech (i.e. streets, sidewalks, public parks. Designated public forums are gov properties that gov could close to speech, but CHOOSES to open to speech by practice or policy. (i.e. school rooms after class for rec/social groups)

Limited and Non-Public forums: government can regulate in a limited or nonpublic forum if the regulation is Reasonable + Viewpoint neutral (doesn’t need to be subject matter neutral). Limited Forums: gov property not historically open to public, but CAN regulate any speech to reserve the forum for its intended use (i.e. school gym to host a community debate). Non-Public Forums: gov property not historically open to public and not held open for speech activities (i.e. military base, school in session, gov workplace, postal service property/sidewalks, areas outside prisons, airports for solicitation of money, but not literature

Question 50

Content Neutral Regulation of Speech

Answer 50

CONTENT neutral laws (must be subject matter and viewpoint neutral) burdening speech generally only needs to meet Intermediate Scrutiny.
Content Neutral speech regulations must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests.

Question 51

Other Attacks on Freedom of Speech Regulations

Answer 51

Vagueness: law is unconstitutionally vague if reasonable person can’t tell what speech is prohibited and what is allowed.
Overbroad: law that is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allowed to be regulated. Ex: city adopts ordinance prohibiting live performances in order to shut down strip clubs. Implicates all live performances.
Discretion: Regulation CANNOT give officials BROAD, UNFETTERED discretion over speech issues. Usually arises under licensing schemes requiring permits to make a speech, and mayor has discretion to set fee, can set high fee if doesn’t like speech, and low fee if likes speech.

Question 52

Prior Restraints on Speech

Answer 52

gov action that stops speech before it occurs must meet Strict Scrutiny and show that some special societal harm will otherwise result. To be a valid system of a prior restraint, 1) Standards must be narrowly drawn, reasonable, and definite, 2) Injunction must be promptly sought, AND 3) There must be prompt and final determination of the validity of the restraint

By Court Order: Court orders suppressing speech must meet Strict Scrutiny: necessary to achieve compelling gov interest such as National security. Complete gag order on press, preventing pretrial publicity is NEVER allowed.

By Licensing Scheme: The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review

Question 53

Freedom of the Press

Answer 53

Publication of Truthful Information: Press cannot be held liable for TRUTHFUL REPORTING of matters of PUBLIC CONCERN. Even Unlawfully obtained info cannot be regulated if Speech relates to matter of public concern, and the Publisher did not obtain it unlawfully himself, or know who did. For example, Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance

Access to Trials: 1A guarantees PRESS and PUBLIC the right to attend criminal trials unless there is an overriding INTEREST to close the trial as analyzed by the trial judge. The closure to the press order must be narrowly tailored to serve the overriding interest.

Broadcasting Regulations: may be regulated more than the press because of limited frequencies. Paramount right is of viewers/listeners to receive info of public concern, NOT right of broadcasters to say what they please.
Cable TV Regulation: if content neutral, must meet intermediate scrutiny. if content based, must meet strict scrutiny.
Internet Regulation must meet strict scrutiny.

Question 54

Freedom of Association

Answer 54

Regulations that infringe on right to associate for expressive or intimate purposes, or punish a person for being a member of an organization, must meet the Strict Scrutiny test and interest must be unrelated to suppression of ideas.

Exceptions: CAN punish one for joining an illegal group if Government proves that the 1) Person is actively affiliated with the group; 2) Knowing of its illegal activities; AND 3) With the specific intent of furthering those illegal activities. CAN also prohibit a large group from discriminating on who can become members unless it is an intimate association or an expressive activity (KKK)

Question 55

Establishment Clause

Answer 55

Establishment Clause prohibits laws respecting establishment of religion.

If the law has a sect preference, and discriminates among religions, it must meet Strict Scrutiny to be constitutional.

If the law does not have a sect preference and does not discriminate against religions, the regulation is constitutional if it 1) has a secular purpose 2) the effect does not advance or inhibit religion, and 3) there is no excessive entanglement with religion

Question 56

Free Exercise Clause

Answer 56

Free Exercise Clause guarantees right to hold religious beliefs, and government cannot punish conduct just because it is religious. The resulting conduct can be prohibited if there’s a compelling or overriding state interest. Religious beliefs = any religious belief that’s genuine. Court can’t declare beliefs to be false, but can inquire to into whether person actually believed.

If a law is not neutral and prohibits specific part of religion, cannot regulate unless Strict Scrutiny is met.
Examples: Gov may NOT deny benefits to individuals who quit their jobs for religious reasons. Government can’t regulate religious schools for choosing ministers or teachers or hold them liable. The denial of benefits to a religious school that are provided to a secular private school must meet strict scrutiny

If neutral law Regulating general conduct without prohibiting a specific part of religion with generally applicability, then the Government has ability to regulate and law is constitutional. No exemptions. For example, State law that prohibited use of peyote was constitutional, even if Part of Native American religion, because it was a Law of general applicability, not targeting that religion.