Constitutional Law

Question 1

What do article 1 and article 3 courts have in common?

Answer 1

Congress creates both (other than SCOTUS) and defines the jurisdiction of both within the case or controversy limitation

Question 2

What are the differences in article 1 and article 3 courts?

Answer 2

Congress may not assign art 1 courts jurisdiciton over cases that have traditionally been tried in art 3 courts

Question 3

What are the two indications of an advisory opinion

Answer 3

Any decision that lacks either
1) an actual dispute between adverse parties
OR
2) any legally binding effect on the parties

Question 4

Can federal courts issue adviory opinions?

Can state courts issue advisory opinions?

Answer 4

Federal courts can NOT issue advisory opinions

State courts CAN issue advisory opinions

Question 5

Describe the Ripeness doctrine

Answer 5

Courts wait until the has been formalized can its enforcment be felt in concrete ways before hearing a case (ripeness requirement)
BUT a court will allow pre-enforcement review if:
1) issues are legal and there is no need for further factual development and
2) P would suffer substantial hardship in absence of review

Question 6

Describe the Mootness doctrine?

Answer 6

Courts will only hear cases with live controversys - ie where P is not suffering any ongoing injury or has been made whole by damages

BUT a court will hear a case if one of the following applies:

1) Controversy is capable of repetition but evades review due to inhrently short duration
2) D voluntarily stops but could resume at any time
3) Class actions where the class rep’s claim is moot but the claim of at least one other class member is viable

Question 7

What are the three elements of standing?

Answer 7

1) Injury
2) Causation
3) Redressability (the injury must be redressible by the injunction/order)

Question 8

What are the requirements for the injury element of standing?

What are common types of standing? What is required for statutory standing?

Answer 8

P must have an injury that is particularized and concrete - not general and speculative

Physical, economic, environmental, loss of constitutional/stautory right are all viable injuries
P has standing to enforce a statutory right if they are in the zone of interests Congress sought to protect and Congress intended to crete a private right ot action

Question 9

When is there NOT standing for lack of particular and concrete injury?
What are the implications of this?

Answer 9

injury that is purely because of harm suffered as a citizen or as a taxpayer unless:

• Challenging tax iability
• congressional spending in violation of the establishment clause (applies only to congressional spending, not executive spending under the property power)
• maybe for 10th amd violation of feds infringing on state power as long as the person has redressible injury in fact

The implications are that a citizen cannot sue to enjoin an public official to enforce the law

Question 10

What is required of the injury element for standing when the party is seeking pre-enforcement review?

Answer 10

Need likelihood of future harm

Question 11

What is the rule regarding third party standing?

Answer 11

Generally there is no third party standing BUT someone with standing in their own right can also assert third party standing for a 3rd party IF:
1) P is in a close relationship with the 3rd party OR
2) It is difficult for the 3rd party to assert their interests
A seller of goods may have third party standing to challenge a law that adversely affects the rights of her cutomers

Question 12

When does an organization have standing?

Answer 12

IF ALL OF:

• There is an injury in fact to the members of the org
• The injury is germane to the purpose of the org
• Individual member participation is not required

Question 13

When does a plaintiff have standing to sue the government for overly broad restrictions on speech?

Answer 13

P has standing even if their own speech is not impacted, but this rule does not apply to overly broad restrictions on commercial speech

Question 14

What amendment creates sovereign immunity?

Answer 14

11th amendment bars private party’s suit against state in state or federal court

Question 15

When can a state be sued?

Answer 15

1) If the state waives sovereign immunity
1. 5) if state engages in activities that are not governmental and are for profit (ie “proprietary functions” instead of governmental functions)
2) can sue localities
3) Federl govt can sue states
4) states can sue states
5) can sue state officials to (a) enjoin them from future conduct that violates the constitution or federal law or (b) for damages against the officer personally
6) Congress can remove state sovereign immunity and create a private COA to prevent discrimination under 14A if it is “unmistakably clear” that congress intented to create a private COA

Question 16

What are the two areas for judicial abstention?

Answer 16

1) Fed courts abstain from enjoining ongoing state criminal prosecutions (and state civil proceedings involving an important state interest) except in cases of bad faith or proven harassment
2) Fed courts abstain from resolving a constitutional claim when the disposition rests on an unsettled issue of state law

Question 17

When will SCOTUS deny cert?

Answer 17

If adequate and independent state law grounds

Question 18

What are the two types of political question?

Answer 18

1) Issues constitutionally reserved to other branches of government
2) Issues inherently incapable of judicial resolution

Question 19

What is the scope of the Supreme Court’s original jurisdiction?

Answer 19

SCOTUS has original jurisdiciton over all cases affecting ambassadors, publi ministers, consuls, and those cases in which a state is a party BUT Congress has given concurrent jursdiction over those cases to lower courts EXCEPT for controversies between states

Question 20

What is the scope of the Supreme Court’s appelate jurisdiction? How does SCOTUS exercise this jurisdiction?

Answer 20

SCOTUS has appellate jurisdiction in all cases under Art III and the power to review state laws under the Supremacy Clause.
SCOTUS exercises its appellate jurisdiction in two ways: Granting Cert and MUST take cases on appeal from a three judge district court panel granting or denying an injunction (rare)

Question 21

When can the Supreme Court grant cert?

Answer 21

Cases from the highest state court capable of providing a decision on it and all cases from federal courts of appeal

Question 22

In what areas does the federal government have police power?

Answer 22

1) DC
2) Military bases
3) indian reservations
4) federal lands

Question 23

For what purpose can Congress tax and spend?

Answer 23

For any purpose not prohibited by the Constitution

Question 24

What is required for a Constitutionally valid spending condition?

What is the standard of review for these coditions

Answer 24

1) Condition must be clear
2) Condition must be related to the spending
3) Condition cannot be unduly coercive
4) Condition cannot otherwise violate the Constitution

Rational basis (very weak)

Question 25

What are the three categories of things that Congress can control under its Commerce Power?

Answer 25

1) Channels
2) Instrumentalities
3) Activities that substantially effect interstate commerce in the aggregate

Question 26

Who decides if an activity in the aggregate substantially effects interstate commerce such that Congress can regulate it under its Commerce power?

Answer 26

If the regulated activity is economic in nature, there is any rational basis on which Congress could conclude that the activity in the aggregate substantialy affects interstate commerce
BUT the 10th amd precludes Congress from regulating noneconomic intrastate activity in areas traditionally regulated by state/local govt
BUT cannot compel economic activity

Question 27

When does Congress turn to its Commerce Power to prevent discrimination?

Answer 27

Congress must use its commerce clause power to prevent discrimination by PRIVATE actors

IF trying to prevent discriminaton by PUBLIC actors, Congress can rely on the 14th amd.

Question 28

Is the President constitutionally obligated to enforce the law?

Answer 28

Yes (take care clause), but if he doesn’t then citizens lack standing to sue because the injury is generalized

Question 29

What does it mean that the President does not have the power to “impound” funds?

Answer 29

If Congress appropriates funds to spend and expressly mandates that they be spent, the President has no power to not spend the money

Question 30

What are the tiers of the President’s implied powers?

Answer 30

If Congress has explicitly or impliedly authorized the action -> likely valid
If Congress is silent -> Court considers circumstances and relevant history. Unlikely to be upheld if usurps power of another branch of govt or prevents another branch from doing its job
If President acts against the expres will of Congress and Congress had authority to act -> Action likely invalid

Question 31

What is the extent of the President’s pardon power?

Answer 31

Can only pardon federal offenses (or excuse from federal charges).
The only limit is that if someone has actually been impeached (both houses), then can’t be pardoned, but other than that, can grant blanket pardons regardless if the crime was committed in conjunction with the president’s campaign.

Question 32

What is needed to override a presidental veto?

Answer 32

2/3 of both houses

Question 33

What is a pocket veto

Answer 33

If the president doesn’t sign or veto a bill within 10 days…

• while Congress is in session -> Bill becomes law
• while Congress is not in session -> Pocket veto

Question 34

What is the differnce in a treaty and an executive agreement?

Answer 34

A treaty requires 2/3 of senate approval and may or may not be self executing. An EA only requires President’s signature

Treaties are on par with federal statutes trumps EAs, but EAs trump state law

Question 35

When can Congress subpoena the President’s personal info?

Answer 35

If the subpoena advances a legit legislative purpose

The court balances Congress’ interest in the info against the burdens on the President

Question 36

What is the purpose of executive privilege? What are the exceptions?

Answer 36

Allows the President to receive candid advice and protect national security
National security secrets are given much deference by courts
Exceptions for:
- In criminal proceedings, presidential communications will be available o the prosecution where a need for the info is demonstrated
- President is subject to STATE CRIMINAL subpoenas of the president’s PERSONAL records (personal records don’t fall under he privilege)

Question 37

Who has the power to regulate naturalization?

Answer 37

Congress has EXCLUSIVE PLENARY power over aliens and the rules of naturalization

Question 38

What are the constitutional rights of aliens…

• at the border?
• inside the country?

Answer 38

At the border: aliens have no right to enter the US and can be denied entry for any reason including political beliefs
Inside the country: aliens must get notice and hearing before they can be deported

Question 39

What is required by the Dormant Commerce Clause?

What are the important carveouts to the DCC?

Answer 39

A STATE cannot pass laws that DISCRIMINATE against IC (unless (A) important nonprotectionary govt interest and (B) no reasonable nondiscrminatory alternatives) AND
Cannot pass NONDISCRIMINATORY laws that place an undue burden on interstate commerce (balance of legit state interest weighed against burden on IC)

Carveouts: Congressional approval, market participant (unless Congress affirmatively prohibits), state law favoring the performance of a traditional govt function

Question 40

What is required by the Art IV Privileges and Immunities Clause?

What are the important carveouts to the P&I clause?

Answer 40

A STATE cannot pass a law that discriminates against nonstate residents in a way that infringes on important commercial activities or fundamental rights.
- BUT discrimination is allowed if the law is necessary to achieve an important govt purpose and there are no less restrictive means (nonresidents must be part of the problem the state is trying to solve)

No market participant carveout
Only available to natural persons that are US citizens (not corps or aliens)

Question 41

What is required by 14A Privileges or Immunities Clause?

Answer 41

STATES cannot deprive US citizens of the benefits of NATIONAL citizenship which include the right to interstate travel, right to use ports, and right to petition the government

Question 42

What are fundamental rights and what protects them?

Answer 42

Fundamental rights include:
Right to interstate domestic (not intl) travel and to be treated equally in a new state (but 30 day limits ok)
Privacy (contraceptives, procreation, marriage, parenthood, living with extended family)
Voting (can restrict on basis of age, residence, citizenship)
Abortion (undue burden test)

Protected by P&I, Substantive Due Process, and Equal Protection (but they all have their nuiances)

Question 43

What is included in the fundamental right to vote?

Answer 43

One person one vote principle applies when any level of govt uses voting districts, but fed gov has no tolerance and state has 10% tolerance. Can use the total population rather than # of voters

Race cannot be a predominant factor in drawing boundaries, but political gerrymandering is a nonjusticiable political question

Question 44

How do you parse substantive due process and equal protection claims?

Answer 44

If law limits the liberty of ALL persons, it’s probably a substantie due process question
If a law limits liberty of some CLASS of persons, it’s probably an equal protection question

Question 45

What is the power of states to impose non-property taxes on interstate commerce under the Dormant Commerce Clause?

Answer 45

If the tax is discriminatory -> Invalid unless Congress auhorizes
If tax is not discriminatory -> If Congress has not forbid, then valid if the following are met:
- Substantial nexus (business avails itself of the privilege of doing business in the state - no physical presence necessary)
- Fair Apportionment according to a rational formula
- Fair Relationship between tax imposed and benefits/services provided by the state
OTHERWISE the tax unduly burdens IC and is invalid

Question 46

What is the power of states to impose sales and use taxes on interstate commerce under the Dormant Commerce Clause?

Answer 46

Use taxes on goods sold outside of the state that are used within the state are valid and the tate may force an interstate seller to collect the tax if the seller has substantial nexus

Sales taxes do not discriminate so the only issue is substantial nexus and fair apportionment

Question 47

What is the power of states to impose taxes on property in interstate commerce under the Domant Commerce Clause?

What about instrumentalities?

Answer 47

States cannot tax commodities in the course of interstate commerce (interstate transit begins when the goods start their interstate journey or when the goods are delivered to an interstate carrier and ends at the final destination)

Tax on instrumentalities of interstate commerce depends on:

• Taxable Situs of the property (sufficient contaxts with the state? benefits and protections from the state?)
• Whether the value of the instrumentality has been properly apportioned according to the amount of contacts with each state (must approximate physical presence)

Question 48

What is the power of states to impose “doing business taxes” on property in interstate commerce under the Domant Commerce Clause?
What is a doing business tax?

Answer 48

Privilege, license, franchise, occupational tax (can be flat amount or proportional based on contacts with the taxing state)

4 Requirements must be met otherwise the tax unduly burdens IC:

1) Activity taxed must have a substantial nexus to the taxing state
2) Tax must be fairly apportioned
3) Tax does not discriminate against IC
4) tax must fairly relate to the services provided by the state

Question 49

What is the power of the states to tax/regulate the federal government?

Answer 49

States may not directly tax federal intrumentalities without Congressional approval
BUT nondiscriminatory indirect taxes are permissible if they do not unreasonably burden the federal government

States also cannot regulate federal government employees/military while performing their federal functions

Question 50

What are the types of preemption?

Answer 50

Express Preemption: Express preemption clauses are narrowly construed
Implied Preemption
- Conflict Preemption (state against federal law such that it would be impossible to follow both)
- Frustration of Fed Purose (State law prevents the achievement of a federal objective evne if state law was enacted for a valid purpose independent of furstrating the federal law)
- Field Preemption (look at if Congress INTENDED to occupy the field with a comprehensive scheme)
States ARE allowed to give their citizens greater protection than the federal law provides (unless Congress says no)
There is a presumption against preemption especially in fields of traditional state police power

Question 51

What are the 2 important parts of the 13th Amd?

Answer 51

1) No slavery/indentured servitute
2) 13A enforcement clause allows Congress to prohibit racially discriminatory action by anyone including government and private actors

Notice no state action requirement! Directly regulates private conduct

Question 52

What are the 3 important parts of the 14th Amd?

Answer 52

1) Prevents states from depriving anyone of life, liberty, or property, without due process of law
2) Grants equal protection of the law
3) Enforcement clause allows congress to adope appropriate legislation to enforce the existing rights in the constitution (not to create new rights)

Question 53

What is required for Congress to write a law under 14th amd enforcement clause?

Answer 53

Congress must point to a history or pattern of state violations of constitutional rights and adopt legislation that is congruent and proportional (narrowly tailored) to solving the violation

Question 54

What does the 15th Amd do?

Answer 54

Prevents FEDERAL AND STATE governmets from denying citizens the right to vote on account of race or color

Question 55

What is an important prerequisite to a 14th or 15th amd violation?

Answer 55

State Action. Government has to be significantly involved in the Constitutional deprivation. Usually through either:

• traditonally public functions
• state affirmatively facilitates/encourages/authorizes discrimination (must be “sufficient entwinement”)

Question 56

What amendments safeguard procedural due process?

What is the state of mind required for a procedural due process violation?

Answer 56

5th Amd (Fed) 14th Amd (States)

Must be an INTENTIONAL or RECKLESS deprivation oflife, liberty, or property without due process of law

Question 57

What is protected under “liberty” in PROCEDURAL due process?

Answer 57

Physical freedom, significant loss of freedom of action, denied a freedom provided by the Costitution or statute

Question 58

What is protected under “property” in PROCEDURAL due process?

Answer 58

Real or personal property
Government benefits where there is a reasonable expectation of continued receipt (e.g. tenured but not at will employment)

Question 59

What does procedural due process require?

Answer 59

Notice (reasonably calculated to inform the person of the deprivation)
Hearing (Type and extent determined by balancing 3 factors (a) importance of the interest to the individual (b) effectiveness  of procedural safeguards to that interest which is a function of a reduction of the risk of error (c) government interest in fiscal and admin efficiency)
Neutral decisionmeker (can't have actual bias or serious risk of actual bias)

Question 60

What are the rights protected under substantive due process that have no definite standard of review?

Answer 60

1) Sex (rgulations of private sex probably can’t even pass rational basis review because government has no legit interest)
2) Right to Refuse Medical Treatment (no right to assisted suicide, states can compel vaccinations against contaigous disease)
3) Guns (can keep a handgun in the home for self defense)

Question 61

What is required to prove a discriminatory classification for equal protection purposes?

Answer 61

Must prove discriminatory INTENT. This is done in one of three ways:
1) Discriminatory on its face (can be proven even if not explicit - e.g. bizarrely redrawn electoral map with no explanatio)
2) Discriminatory Application of a facially neutral law (even if neutral on its face - e.g. laundry mat case)
3) Disparate Impact
But regardless, must prove INTENT to discriminate

Question 62

What are the suspect classifications for equal protection purposes?

Answer 62

1) Race
2) National Origin
3) Alienage (at the state and local level)

Question 63

I want to pick an equal protection answer for a federal law. What should I do?

Answer 63

There is no equal protection clause for the federal level. Instead analyze under substantive due process b/c there is an equal protection element implied into the 5th amd due process clause

Question 64

What should you know about race based classifications for equal protection purposes?

Answer 64

Intentional segregation = strict scrutiny
Racial imbalance from housing patterns being mirrored in schools is no probem because no discriminatory intent
Govt has a compelling interest in remedying effects of past discrimination wth race based classifications if that past discrimination is persistent & readily identifable (can’t be general/societal)
- Bussing OK if to remedy past discrimination
- Bussing/redistricting NOT OK if K-12 & only to promote diversity
- In Colleges there is a compelling interest in diversity but can ony use race as one factor in holistic assessment - no quotas or points to achieve narrow tailoring
“Benign” classifications to favor minorites are still subject to strict scrutiny
If redistricting voting districts was predominantly based on race then strict scrutiny (but of based on politics then it’s a political question)

Question 65

What should you know about alienage based cassifications for equal protection purposes?

Answer 65

Federal alienage classifications are not subject to strict scrutiny (rational basis because Congress has plenary power over aliens)
States face strict scrutiny EXCEPT that if a law discriminates against non-citizen (ie on the basis of alienage) in the participation in state government (voting, jury service, public office, police officer, k-12 teachers) then rational basis

Question 66

What are the “quasi suspect” classifications for equal protection? What does it mean that something is a “quasi suspect” classification? Who bears the burden?

Answer 66

Gender classifications
Legitimacy classifications
This means that intermediate scrutiny applies - the burden is on the GOVERNMENT

Question 67

What is the amendment to know for takings?

Answer 67

5th Amd provides that private property can only be taken IF

• for public use AND
• just compensation provided (FMV at time of taking)

Question 68

Is the 5th amd takings clause a source of power or a limitation?

Answer 68

It’s a limitation

Question 69

What are the methods by which the government can make a physical taking of property?

Answer 69

Can be by confiscation or permanent/regular occupation of the property

Question 70

What is the analysis for determining if a temporary occupation is a physical taking subject to the 5th amd?

Answer 70

Temporary Occupation can also be a taking depending on the degree of invasion, duration, govt intention, foreseeability of the result, and interference with use of the property
Ask: Is this the functional equivalent of the government taking the property?

Question 71

What is the “Development Exception” to the takings clause?

Answer 71

Not sure why it’s called an exception, but it says that local govt conditioning building permits on grant of an easement or conveying title is a taking unless:

1) Govt can show “essential nexus” between condition and proposed development
2) Adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer

Question 72

What is the “Emergency Exception” to the takings clause?

Answer 72

There is likely no taking (even if total and permanemtn deprivation) if it’s made pursuant to a public emergency such as war

Question 73

What is the analysis for determining if there is a regulatory taking?

What are the two routes to a regulatory taking?

Answer 73

There is a regulatory taking if a government regulation denies a landower all economically viable use of their land.

There are 2 kinds:

• Temporary regulatory takings
• Descreasing economic value

Question 74

What is the analysis for determining if there is a temporary regulatory taking?

Answer 74

Temporary regulatory takings are evaluated case by case looking at good faith, reasonable expectations of the owners, length of delay, delay’s actual effect on the value of the property

Question 75

What is the analysis for determining if there is a regulatory taking from decreasing economic value?

Answer 75

Decreasing economic value is usually not a taking if economically viable use remains.
Court looks at:
1) Government interests to be promoted
2) Dimunition in value to the owner
3) Whether the reg substantiually interferes with distinct investment backed expectations of the owner

Question 76

When does the contracts clause apply?

Answer 76

Contract clause limits the ability of STATE AND LOCAL government to enact LAWS that RETROACTIVELY impair contracts

• Does not apply to the federal government (but flagrant violations could violate due procss
• Does not apply to contracts not yet made

Question 77

What is the analysis for the impairment of private contracts under the contracts clause?

Answer 77

Intermediate Scrutiny
Legislation that substantially impairs an existing private contract is invalid unless the legislation:
1) serve an important and legit government interest AND
2) Is reasonable and narrowly tailored means of promoting that interest

Question 78

What is the analysis for the impairment of public contracts under the contracts clause?

Answer 78

Heightened scrutiny (Between intermediate and strict)
Legislation that impairs a contract to which the state is a party is tested by the same basic test as private contracts but gets heightened scrutiny espeially if the legislation reduces the contractual burdens on the state

Question 79

What is the prohibition on ex post facto laws?

What is the judicia parallel?

Answer 79

Neither the states nor the federal government can pass a law that retroactively alters CRIMINAL offenses/punishments in a substantially prejudicial manner for the purpose of punishing someone for past activity.
Prohibited ex post facto law IF:
1) criminalizes an act that was innocent when done
2) Increases punishment for an act already done
3) Reduces the evidence required to convict a person of a crime from what was required when the act was committed

Due Process (5th - fed or 14th - state) prohibits courts from retroactively interpreting criminal laws in unexpected and indefinsble ways

Question 80

What is a bill of attainder?

Answer 80

NEITHER STATES NOR FED can pass legislation that imposes a punishment (jaul, exclusion from govt benefit, etc) without a trial

Question 81

What is the standard of review for retroactive laws that don’t violate the contracts clause, ex post facto, or bill of attainder clauses?

Answer 81

The only hurdle left to clear is due process and if the retroactive law doesn’t substantialy burden a fundamental right, it only needs to be rationally related to a legitimate government interest

Question 82

What is speech?

Answer 82

Speech includes words, symbols, and expressive conduct that is EITHER:
A) Inherently expressive (flag burning) OR
B) Intended to convey a message and reasonably likey to be perceived as conveying a message

The bar is very low for seeming something “speech” erotic dancing and laser shows both qualify.

Question 83

What are the categories of unprotected speech

Answer 83

1) Incitement
2) Fighting Words
3) Obscenity

Question 84

What factors are considered in determining if speech falls into the unprotected category of incitement?

Answer 84

1) Intended to produce IMMINENT lawless action

2) LIKELY to produce such action

Question 85

What factors are considered in determining if speech falls into the unprotected category of fighting words?

Answer 85

Personally abusive words likely to incite an immediate physical retaliation in an average person (annoying is not enough - baiting someone weighs in favor of fighting words)
True threats are a special kind of fighting words. True treats are INTENDED as PARTICULARIZED threats of serious bodily harm (must be credible)

Question 86

What factors are considered in determining if speech falls into the unprotected category of obscenity?

Answer 86

Obscenity as a WHOLE must satisfy all three of the below

1) Appeals to the prurient interest in sex using a contemporary community standard
2) Patently offensive under contemporary community standards
3) Lacks serious value (literary/artistic/political/scientific) using a national reasonable person standard

Nudity, curse words, or soft porn is not obscene

Question 87

How does the first amendment treat defamation?

Answer 87

Defamation is not unprotected speech but it is less protected

Question 88

What is harshest level of 1A scrutiny for defamation - when does it apply and what is it?

Answer 88

If P a public figure or official (on pub or private matter) 1A requires P to prove all of the elements of defamation + falsity + ACTUAL MALICE to recover.
If P is a private figure suing on a matter of public concern, need negligence for actual damages and actual malice for punitive damages.

Public official = holding/running for office or public employee in postion of public importance ike police officers or school principals
Public Figures = assumes prominence in society, achieved fame/notoriety, or thrust themselves into particular public controversy to influence the result

Actual Malice = clear and convincing evidence that the statement made with either knowledge that the statement was false or reckless disregard for its truth/falsity

Question 89

What is the level of 1A scrutiny applicable to private plaintiff suing on defamation regarding a matter of public concern?

Answer 89

If P proves negligence -> Actual Damages
If P proves actual malice -> Actual, Punitive, and Presumed (automatic statutory) Damages
No 1A concern for Private P suing on matter of private concern

Question 90

What are the rules for commercial speech?

Answer 90

It is not unprotected speech unless it is false, misleading, or about illegal products/services

Any other regulation of commercial speech will be upheld only IF (basically intermediate scrutiny):

• Serves a substantia government interest (total bans unlikely to be upheld)
• Directly advances the substantial govt interest
• narrowly tailored to serving that interest (requires only reasonable fit - not least restricive means)

Question 91

What is the baseline 1A analysis?

Answer 91

If Content based -> Strict Scrutiny
If Content Neutral -> Intermediate scrutiny. Must be subject matter and viewpoint neutral. Usually time, manner, place restrictions. Must advance an important government interest unrelated to the suppression of the speech and must not burden substantially more speech than necessary
*These are the basic rules, but there are special rules for speech on government property, in public schools, and in public employment

Question 92

Can a tax or tax exemption be considered a content/viewpoint based restriction on speech?

Answer 92

Yes

Question 93

What is “Forum Doctrine” and when does it apply?

Answer 93

Applies to speech on govt property including colleges - level of scrutiny depends on forum category

Question 94

What are some examples of speech restrictions subject to intermediate scrutiny?

Answer 94

1) zoning laws on adult theaters and book stores
2) nude dancing bans
3) symbolic speech
4) content neutral time place manner restrictions

Question 95

What is a public forum?

What 1A analysis applies to public forums?

Answer 95

Public forums = property traditionally open to speech (sidewalks, streets, parks)
If content based -> Strict Scrutiny
If content neutral -> Intermediate scrutiny which in this context means: (1) narrowly tailored to an important govt interest but need not be the least restrictive possible (2) leaves open alternative channels of communication

Question 96

What is a designated public forum?

What 1A analysis applies to designated public forums?

Answer 96

Designated Public Forum = public property not traditionally open to speech but which the government has thrown open to speech by practice or policy
Same analysis as for public forums…
If content based -> Strict Scrutiny
If content neutral -> Intermediate scrutiny which in this context means: (1) narrowly tailored to an important govt interest but need not be the least restrictive possible (2) leaves open alternative channels of communication

Question 97

What is a limited public forum?

What 1A analysis applies to limited public forums?

Answer 97

Limited Public Forum = not historical open for general speech and assembly but open for specific speech activity (e.g. school gym or student publication)
Government can regulate to reserve the forum for its intended use. Regs are valid IF:
1) viewpoint neutrai (but can be content based)
- if viewpoint based, strict scrutiny applies
2) Reasonably related to a legitimate government purpose (Rational basis)

Question 98

What is a non-public forum?

What 1A analysis applies to non-public forums?

Answer 98

Non-public forums = not historically open for speech and not open for specific speech activity either
Same analysis as for limited public forums…
Government can regulate to reserve the forum for its intended use. Regs are valid IF:
1) viewpoint neutrai (but can be content based)
- if viewpoint based, strict scrutiny applies
2) Reasonably related to a legitimate government purpose (Rational basis)

Question 99

What is the 1A analysis for speech in public schools?

Answer 99

Primary and secondary schools are not public forums, so speech and association can be reasonably related to serve the school’s educational mission

• Student’s personal speech on campus: Schools can regulate if evidence of substantial disruption (but speech promoting illegal drug use does not require any disruption)
• Students personal speech off campus: Harder to censor - schools are limited to restricting speech to prevent cheating, bullying, threats, and other speech where pedagogical/safety interests clearly outweigh the dtuend’s speech interests as a private citizen
• Student/teacher speech related to teaching/school activities (“school speech”) - restrictions must be reasonably related to legitimate pedagogical concerns

Question 100

What is the 1A analysis for speech restrictions in public employment?

Answer 100

The background is that subject matter/viewpoint based restrictions are subject to strict scrutiny but special rules apply to government employee speech
Unprotected employee speech includes:
At work and matter of private concern, can punish if disruptive of the work environment
At work and matter of public concern and pursuant to official duties, can punish (No 1A)

Protected Employee Speech
If speech on a matter of public concern (regardless if at work) and NOT pursuant to official duties, a baancing test between the value of the peech vs govt interests in an efficient work place
If speech on a matter of private concern outside of work, balancing test unclear but speech probably protected unless there is a detrimental effect on the workplace

Question 101

What is a 1A “overbreadth” challenge?

Answer 101

Overbreadth = regulation of speech invalidated as overborad if it punishes substantially more speech than is necessary
If substantially overborad -> Facially invalid ->enforcable against no one unless a court can construe it to remove the treat to protected speech
If not substantialy overbroad -> Can be enforced against those engaging in activity not protected by 1A

Question 102

What are prior restraints in the 1A context?

Answer 102

Prior Restraints = Court orders or administrative systems that prevent speech before it occurs rather than punish it afterwards (e.g. licensing, injunctions)
- Rarely allowed and need a “special societa harm” that justfies the restriant
- Content based = strict scrutiny
- Not Content based = intermediate scrutiny
Valid prior restraints must:
1) be narrowly drawn, reasonable, definite (no unfettered discretion. If unfettered discretion then facially invalid - no need to even apply for permit. If definite, must apply for permit and be denied before suing)
2) injunction must promptly be sought
3) must be a prompt and final judicial determination of the prior restraint

Question 103

What is the extent of the freedom of the press?

What is the right to attend trials?

Answer 103

Equal to the freedom of speech of an individual
The press has a right to publish information about a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further a state interest of the highest order (even if the information has been obtained ilegally by someone other than the publisher)
1A gives the right to attend trials absent a finding by the judge that an overriding interest outweighs the press’s interest

Question 104

What is the Fairness Doctrine? (1A context)

Answer 104

1A does not require broadcasters to accept political ads, but a radio station may be required to offer free broadcasting time to certain individuals

Question 105

What is the extent of the right not to speak?

Answer 105

The government cannot compel a person to speak, but can tax people and use the money on things they disagree with (including speech)
Individuals cannot be forced to subsidize private messages they disagree with (e.g. nonunion members don’t have to pay dues) - University activity fees are ok though as long as viewpoint neutral
Spending programs can’t limit the activities of fund recipients outside of the scope of the spending program itself

Question 106

What is the 1A analysis for restrictions on speech around elections?
[not campaign contributions]

Answer 106

SCOTUS uses a balancing test to test validity

• If the restriction on 1A activity is severe, strict scrutiny
• if the retriction is reasonable and nondiscriminatory, generally upheld

Question 107

What is the 1A analysis for restrictions on campaign contributions?

Answer 107

Limits on contributions to campaigns are subject to intermediate scrutiny

• to avoid corruption (important govt purpose), can cap the contributions to individual candidates
• no caps on ballot referendums
• no caps on contributions by a donor, but can limit amounts given to a single candidate

Question 108

What is a religious belief?

Answer 108

Traditional religions as well as beliefs that play a similar role in the life of believers
Courts can question the sincerity but not the truthfulness of a religious belief

Question 109

What is the 1A analysis for laws that restrict religious practice?

Answer 109

Laws that discriminate on the basis of religion are subject to strict scrutiny. Laws discriminate if they either:

1) are not facially neutral with regard to religious belief/conduct/status
2) Not generally applicable but instead targets religion generally or one religion in particular

If neutral law of generally applicability -> No freedom of exercise protection

• Laws with a system of exceptions are not generally applicable (but exceptions are allowed under the establishment clause)
• Exceptions to general laws are not required except for ministers (“Ministerial Exception”)

Question 110

What is the central test for the establishment clause?

Answer 110

Establishment clause requires government to be neutral toward religion. Under the Lemon Test, government action will violate the establishment clause unless the action [PEE]:

1) has a secular PURPOSE
2) has a primary EFFECT that neither advances nor inhibits religion
3) does not excessively ENTANGLE government with religion

Question 111

What are the 4 non-Lemon tests for the establishment clause?

Answer 111

1) Neutrality Test (Govt can noether favor nor disfavor religion)
2) Coercion (Govt may not directly or indirectly coerce individuals to exercise or refrain from exercising their religion)
3) Endorsement of Religion (Govt may not appear to endorse or disapprove of religion from the standpoint of a reasonable informed observer)
4) History and Tradition (Sometimes the court will find that a government religious display or practice is a tolerable acknowledgement of the role religion has played in history/tradition of the nation - if passes this, exempt from others)

Question 112

What are the 4 categories of establishment clause case?

Answer 112

1) Sect preference cases (violates the establishment clause w/o even resorting to the lemon test but would also fail Lemon)
2) Laws favoring or burdening religion or a specific religious group will be invalid but a law favoring or burdening a large segment of society including religious groups are likely upheld
3) Cases involving financial benefits to religious institutions (SCOTUS applies Lemon more rigoously when funds are goign to religious schools than whe aid is going to another type of religious institution)
- recipient based aid defined without regard to religious category ok even if most recipients use it to go to religious schools
- aid to colleges and hospitals ok if used for nonreligious purposes
4) School sponsored religious activity invalid (but school accommodation of religion is valid)

Question 113

From what amendments is equal protection drawn?

From what amendments is substantive due process drawn?

Answer 113

Equal protection (14) only applies to the states, but the 5th amd due process clause has an equal protection component

Substantive due process is 14-states 5-fed

Question 114

State or federal Rapid Fire
13th Amd
Equal Protection
Due Process
Privileges AND Immunities
Privileges OR Immunities
Justiciability
Takings
Contracts Clause
Ex Post Facto
Dormant Commerce Clause

Answer 114

13th Amd = States, fed and private actors
Equal Protection = States (14th)
Due Process = States (14th) Fed (5th)
Privileges AND Immunities = States only
Privileges OR Immunities = States Only
Justiciability = Fed Only
Takings = States (14) and Fed (5)
Contracts Clause = State Only
Ex Post Facto = States & Fed (Laws), States (14) & Fed (5th) (Judicial Interpretation)
Dormant Commerce Clause = States Only

Question 115

If you see an interstate travel issue, how should you decide if it is a privileges AND immunities clause issue or a privileges OR immunities clause issue?

Answer 115

Privileges AND immunities clause prohibits discrimination against out of state residents.

Privileges OR immunities clause prohibits states from limiting the rights of national citizenship. This includes the right of newly arrived residents of a state to be treated equally.