Constitutional Law Flashcards
1
Q
State Sovereign Immunity (11th Amendment)
High
A
- The Eleventh Amendment prohibits a party from suing a state or a state agency in federal court UNLESS: (a) the state explicitly consents to waive its Eleventh Amendment protections; (b) the suit pertains to federal laws adopted under Section 5 of the Fourteenth Amendment; (c) the** suit seeks only injunctive relief against a state official** for conduct that violates the Constitution or federal law; OR (d) the suit seeks money damages from a state official.
- The Eleventh Amendment DOES NOT apply to: (a) local governments (counties, cities, towns); (b) federal suits brought by one state against another state; and (c) a suit by the federal government against a state.
- The Supreme Court has held that Congress CANNOT abrogate state sovereign immunity EXCEPT for federal laws adopted under Section 5 of the Fourteenth Amendment. To determine whether Congress validly abrogated State immunity, two issues must be resolved: (1) whether Congress unequivocally expressed its intent to abrogate the immunity; AND (2) if it did, whether Congress acted pursuant to a valid grant of constitutional authority.
2
Q
Standing
High
A
- Article III of the Constitution limits federal courts to deciding actual cases or controversies. As such, a plaintiff MUST have standing to sue in federal court.
- Standing exists when the plaintiff: (1) personally suffered an injury in fact (a concrete and particularized injury); (2) the injury was caused by the defendant (a reasonable connection is sufficient); AND (3) the injury is redressable by a court order.
- Standing & Injunctive Relief: When a plaintiff is seeking injunctive or declaratory relief, he must show that there is a** concrete, imminent threat of future injury that is neither conjectural nor speculative**.
3
Q
Third Party & Organizational Standing
Medium
A
- Generally, third-party standing is NOT permitted. However, an exception is made when: (a) there is a close relationship between the plaintiff and the third-party (i.e. doctor/patient); (b) it would be difficult or unlikely for the third-party to assert their rights on their own; OR (c) the third-party is an organization.
- An organization has standing to sue on behalf of its members if: (1) the suit is related to an issue that is germane to the organization’s purpose; (2) the organization’s members would have standing to sue (injury in fact to the members); AND (3) the members’ participation is not necessary.
4
Q
Advisory Opinions, Ripeness, & Mootness
High
A
- Article III of the Constitution limits federal courts to deciding actual cases or controversies. As such, a court CANNOT give advisory opinions or address hypothetical disputes.
- Ripeness refers to whether the case is ready to be litigated. A case is ripe for review by a court when there is actual harm or an immediate threat of harm to the plaintiff.
- Mootness refers to instances when the dispute has ended or was resolved before review. However, a court may hear a case that has ended or was resolved when: (a) the wrong alleged is capable of being repeated and escaping review; (b) the defendant voluntarily stops an offending practice, but can resume it at any time; OR (c) in a class action, where at least one member of the class has an ongoing injury.
5
Q
Legislative Powers: Commerce Clause
Medium
A
- The Commerce Clause of the Constitution grants Congress the authority to regulate commerce between the States (interstate commerce), foreign nations, and Indian tribes. Congress may regulate: (1) the channels of interstate commerce (i.e. highways and phone lines); (2) the people and instrumentalities that work and travel in interstate commerce (i.e. cars, airplanes, airplane pilots, flight attendants); AND (3) economic or commercial activities that have a substantial effect on interstate commerce.
6
Q
Legislative Powers: Commerce Clause & Regulation of Intrastate Activities
Low
A
- Federal regulations regarding intrastate activities will be upheld if (1) there is a rational basis, (2) to conclude that the cumulative national impact of the activities (aggregation), (3) have a substantial effect on interstate commerce.
- However, aggregation CANNOT be used when the activities regulated are NOT commercial or economic in nature, thus making the substantial effect standard difficult to meet. The Supreme Court has held that the following activities DO NOT have a substantial economic effect: possessing a firearm in a school zone; and general acts of violence.
7
Q
Legislative Powers: Taxing Power
Low
A
- Congress has the power to lay and collect taxes, duties, imposts and excises. All duties, imposts, and excises MUST be geographically uniform throughout the United States.
- Under the 16th Amendment, Congress has the power collect taxes on income that are derived from any source. Congress may also prescribe what shall be taxed and the application of a uniform percentage when computing the tax.
8
Q
Legislative Powers: Spending Power
Low
A
- Congress has the power to spend for the common defense and general welfare of the United States. This power is interpreted broadly and allows Congress to attach conditions on States receiving federal funds upon compliance with federal statutory and administrative directives (essentially allowing Congress to regulate areas even when it wouldn’t otherwise have the power to do so).
- However, the spending power is NOT unlimited. Congress must satisfy five restrictions when placing conditions on States receiving federal funds: (1) the spending must be for the general welfare – but courts should defer substantially to the judgment of Congress; (2) the condition must be imposed unambiguously, enabling the States to exercise their choice knowingly; (3) the condition must be related to the federal interest in particular national projects or programs; (4) the condition cannot induce activities that would be unconstitutional for the States to engage in themselves; AND (5) the condition cannot be so coercive as to turn pressure into compulsion – compulsion is when States have no real option but to acquiesce (i.e. where threatened funding was over 10% of State budgets).
9
Q
Executive Powers: Domestic Powers
Low
A
- The President has the power to: (1) faithfully execute the law (under the “take care” clause) as Chief Executive of the United States; (2) appoint ambassadors, public ministers, consuls, Supreme Court judges, federal court judges, and other officers of the United States (with Senate advice and consent); (3) appoint inferior officers when such power is given to the President by Congress (note: while Congress itself cannot exercise the power to make appointments, they may vest this power in other branches); (4) remove cabinet level appointees (without cause) and independent regulatory agency appointees (without cause unless Congress passes a law requiring good cause); (5) pardon federal crimes (except for crimes that lead to impeachment by the House of Representatives); AND (6) act as Commander in Chief of the military (the power to control troops).
- When determining whether the President’s act is within his Constitutional power, a court must consider the three Youngstown circumstances. First, if the President acts pursuant to an express or implied authorization of Congress, he is acting within the highest level of authority, and his actions are likely to be deemed valid. Second, if the President acts when Congress is silent, the President’s acts will be upheld UNLESS he is usurping the power of another branch of the federal government. Third, the President acts within the lowest level of authority when acting against an express or implied will of Congress, making his actions likely to be deemed invalid.
10
Q
Executive Powers: Treaty and Foreign Affairs Powers
Low
A
- The President shares treaty powers with Congress. Treaties may be negotiated by the President, but must be ratified by a two-thirds vote of the Senate. However, the President may enter into Executive Agreements (agreements between the President and a head of a foreign country) without Senate approval.
- The President has broad power to control and deploy U.S. troops in foreign countries.
11
Q
Delegation of Congressional Powers & Non-Delegation Doctrine
Low
A
- Congress has broad authority to delegate legislative powers so long as: (1) the powers are delegable under the Constitution (Congress cannot delegate the power to impeach or declare war); AND (2) Congress provides reasonably intelligible standards to guide the delegation. Congress can delegate its powers to the Executive or Judicial branches of the federal government.
- Under the Non-Delegation Doctrine, Congress CANNOT delegate powers it does not have (i.e. executive or judicial powers) to itself or its officers.
12
Q
State Immunity from Federal Law (10th Amendment)
Medium
A
- Under the 10th Amendment, all powers NOT granted to the Federal government are reserved to the States (unless such powers are expressly prohibited by the Constitution).
- Congress CANNOT compel state governments to implement legislation, BUT Congress may induce state government action by attaching restrictions and conditions on federal funding grants pursuant to its federal taxing and spending powers (Congress has the broad power to tax and spend for the general welfare).
13
Q
Negative Commerce Clause
Medium
A
- A state or local government may regulate intrastate commerce, as long as Congress has not enacted laws on the subject matter. If Congress has enacted laws on a particular matter, any state or local laws would be pre-empted by federal law.
- Notwithstanding the above, state and local governments generally CANNOT pass laws that: (a) discriminate against out-of-state commerce; OR (b) place an undue burden on interstate commerce.
- Discriminatory Regulations: A law is deemed discriminatory when it is either (a) facially discriminatory, OR (b) the law has a discriminatory impact because it favors in-state commerce over out-of-state commerce. State and local laws that discriminate against out-of-state commerce are UNCONSTITUTIONAL, UNLESS: (a) the burden on interstate commerce is narrowly tailored to achieve a legitimate, non-protectionist state objective (there are no less-discriminatory alternatives available); OR (b) the state or local government is a “market participant” rather than a regulator of economic activity (a state may favor its own citizens regarding state programs, state businesses, or when it is the entity buying or selling goods). The Supreme Court has held that states CANNOT use discriminatory means to accomplish even a legitimate environmental purpose (i.e. prohibiting the disposal of out-of-state waste in-state).
- Unduly Burdensome Regulations: State and local laws that are not discriminatory, but still place an undue burden on interstate commerce are UNCONSTITUTIONAL when (1) the burden on interstate commerce, (2) is clearly excessive to the putative benefits to the state/local government. Courts apply this balancing test on a case-by-case basis.
14
Q
Supremacy Clause & Preemption
Medium
A
- Under the Supremacy Clause of the U.S. Constitution, validly enacted federal law will always trump (preempt) conflicting state law. State law may be preempted either expressly or impliedly.
- Express preemption occurs when federal legislation specifically states that the federal law is exclusive. Implied preemption occurs through: (a) direct conflict with state law; (b) field preemption (when it appears from the law itself or its legislative history that the federal government intended to exclusively occupy a given field); OR (c) when the state law substantially interferes with the objective of the federal law.
15
Q
Governmental Action (“State Action”)
High
A
- When alleging a constitutional violation, a plaintiff MUST show that the violation is attributable to government action (also known as “state action”), which applies to ALL levels of local, state, and federal government. Generally, the conduct of private individuals or entities DO NOT constitute state action and is NOT protected by the U.S. Constitution. The Supreme Court has held that running a private school or college is not “state action,” even when said school is funded primarily by government funds.
- Courts will find “state action” for private conduct when the conduct involves either: (a) a traditional public function – powers traditionally and exclusively reserved to the government; OR (b) when significant government involvement exists to authorize, encourage, or facilitate private conduct that is unconstitutional (i.e. government enforcement of certain private contracts, entanglement or joint action between a state and private actor, and encouragement of private discrimination). Examples of a traditional “public function” include holding elections and where a corporation operates a privately owned “company town” that provides typical services of the government.
16
Q
Incorporation Doctrine
Medium
A
- The Bill of Rights (the first 10 Amendments of the U.S. Constitution) was initially applicable only to the federal government. However, under the incorporation doctrine, most of the Amendments are now also applicable to the States. The only amendments that have not been incorporated are the 3rd Amendment (freedom from quartering soldiers), 5th Amendment (right to indictment by a grand jury), and 7th Amendment (right to a jury trial in civil cases).
- The 14th Amendment (equal protection) is incorporated into the Fifth Amendment, making it applicable to the federal government.
17
Q
Prohibition Against Involuntary Servitude
Low
A
- The 13th Amendment prohibits involuntary servitude. It applies both to the government AND private actors.
18
Q
Substantive Due Process
High
A
- Substantive Due Process pertains to the government’s power to regulate certain activities under the Due Process Clause of the 14th Amendment (applicable to the states) and the 5th Amendment (applicable to the federal government).
- Fundamental Rights Test: When the government attempts to regulate fundamental rights, it must satisfy strict scrutiny (the government must show that the law is necessary to serve a compelling government interest). Fundamental rights include: (1) the right to vote; (2) the right to travel; and (3) the right to privacy, which encompasses the right to marry, procreate, use contraceptives, raise one’s children, keep the family together, refuse medical treatment, and possess obscene material.
- Non-Fundamental Rights Test: The government may regulate activities that DO NOT constitute fundamental rights so long as it meets the rational basis test (plaintiff must show that the law is not rationally related to a legitimate government interest).
19
Q
Procedural Due Process
High
A
- The Due Process Clause of the 14th Amendment (applicable to the States) and the 5th Amendment (applicable to the federal government) guarantees that no person shall be denied life, liberty, or property without due process of law. Thus, certain procedures are required when the government deprives an individual of such rights.
- In analyzing a procedural due process claim, the court first determines whether a person’s life, liberty, or property has been taken from her. Then, the court determines what process, if any, was due before or after depriving such right.
- To determine what procedures are required, the court will balance the three Mathews factors: (1) the importance of the private interests being affected; (2) the risk of error under current procedures and the value of additional procedures; AND (3) the importance of state interests and the burdens on the government that would arise from the additional safeguards. Normally, procedural due process requires notice and a hearing.
- Deprivation of liberty occurs when the government deprives an individual of a freedom provided by the Constitution or statute.
- Deprivation of property occurs when an individual has an entitlement that is not fulfilled (i.e. welfare or social security benefits).
20
Q
Equal Protection Analysis
High
A
- The Equal Protection Clause of the 14th Amendment (applicable to the States) and the 5th Amendment (applicable to the federal government) prohibits the government from denying citizens equal protection of the laws.
- To determine if a discriminatory classification against a group of people exists, one of the following must be shown: (a) the law is discriminatory on its face; OR (b) has a discriminatory motive, when the law is facially neutral but creates a disparate impact.
- Strict Scrutiny: The court will apply strict scrutiny when: (a) a classification is based on a suspect class (race, national origin, or alienage - noncitizen residents); OR (b) when the law infringes on a fundamental right for a class of people (i.e. right to vote, exercise of religion, have access to the courts, and travel). Alienage is generally a suspect class only when a State is involved (as Congress has power over aliens under the Constitution). A State may limit a non-citizen’s participation in a function of the government, which is subject to rational basis review. Under strict scrutiny, the government must show that the classification is necessary to serve a compelling government interest and least restrictive means.
- Intermediate Scrutiny: When a classification is based on a quasi-suspect class (gender/sex, non-marital children), the court will apply intermediate scrutiny. Under intermediate scrutiny, the government must show that the classification is substantially related to an important government interest (the interest MUST be the government’s actual interest in passing the law).
- The standard to use for a classification based upon a person’s sexual orientation or gender identity is unresolved. Discrimination based upon sexual orientation or gender identity is subject to strict rational basis review.
- Rational Basis: For all other classes (age, disability, wealth, undocumented aliens), the court will apply the rational basis test. Under rational basis, the plaintiff must show that the classification is NOT rationally related to any legitimate government interest (any conceivable interest is sufficient, even if it is not the government’s actual interest in passing the law).
21
Q
Equal Protection: Inability to Pay Filing Fees
Low
A
- Although indigent individuals may not be denied fundamental rights because of their indigent status, they are NOT considered a suspect class. Therefore, any statute considering indigent individuals need only meet rational basis.
22
Q
Takings
High
A
- Under the Takings Clause of the 5th Amendment, the government may take private property for public use if it provides just compensation. A taking is deemed for public use as long as there is a reasonable belief that it will benefit the public. Just compensation is measured by the fair market value of the property AT THE TIME OF the taking (relocation/moving costs are not included).
- Two types of takings exist:
- Possessory (per se) takings occur when the government physically takes or occupies the property, even if it’s just a small portion of the property. The physical invasion or appropriation must be permanent.
- Regulatory takings occur when the regulation (e.g. zoning ordinance) goes “too far.” The Supreme Court has divided regulatory takings into three categories:
- Depriving Owner of All Economically Viable Use (a per se taking): A regulation that completely deprives an owner of all economically beneficial use of her property is a per se taking. The government MUST pay just compensation for such “total regulatory takings,” UNLESS nuisance and property law independently restrict the owner’s intended use of the property.
- Penn-Central Taking: Courts will determine whether a regulatory taking occurred by balancing private and community interests under the three Penn Central factors: (1) the economic impact of the regulation on the claimant; (2) the extent of interference with distinct investment-backed expectations (the owner’s primary expectation of use for the property); AND (3) the character of the governmental action.
- Conditions on Approval of a Permit (a.k.a. Land-Use Exaction): Conditions placed on the approval of permits DO NOT constitute an uncompensated taking under the 5th Amendment if: (1) there is an essential nexus between the state interest and the permit condition – the exaction (easement demanded) would substantially advance the same government interest that would furnish a valid ground for denial of the permit; AND (2) the government makes an individualized determination that the condition is roughly proportional (in nature and extent) to advancing that state interest.
23
Q
Zoning Ordinances/Spot Zoning
Low
A
- States may restrict the use of land through zoning ordinances OR spot zoning.
-
Use regulations are zoning ordinances that separate land based on use (i.e. residential areas, commercial areas, etc.). Use regulations MAY NOT be applied retroactively to prohibit a nonconforming use; one that was lawful before the enactment of the zoning ordinance. A nonconforming use will lose protection if it is (a) abandoned; (b) substantially changed; OR (c) destroyed. A zoning ordinance may provide for the termination of a nonconforming use through amortization provisions. Amortization provisions require the termination of a nonconforming use after a specified period of time, and are constitutional if the fixed period of time is reasonable (consider the benefits and losses to the private owner and the
public). - Spot zoning occurs when a small area of land is zoned differently than surrounding areas of land for the benefit of the small landowner. Spot zoning will be upheld if supported by a reasonable basis. Factors to consider include: (1) the size of the specific area of land; (2) whether the zoning is arbitrary or compatible with an existing comprehensive zoning plan; AND (3) the benefits and detriments to the specific landowners, surrounding landowners, and the community.
24
Q
Vested Rights Doctrine
Low
A
- The vested rights doctrine protects landowners from subsequent changes in zoning if: (1) substantial construction has begun; AND (2) substantial expenditures have been made in reliance on a valid permit. Generally, if no construction has begun, landowners WILL NOT obtain a vested right to continue development (even despite substantial expenses incurred for planning services).
25
Privileges and Immunities Clause
| Medium
* Under the Privileges and Immunities Clause of Article IV (Section 2) of the Constitution, **States may not intentionally discriminate against non-residents concerning**: (a) **civil liberties** (right to vote, right to travel interstate); OR (b) **important economic activities** (ability to earn a livelihood).
* HOWEVER, **laws that discriminate against non-residents will be upheld if the State is justified for the discrimination** – when: (1) there is a **substantial reason for the difference in treatment**; AND (2) the **discriminatory law has a substantial relationship to that reason**.
* The Privileges and Immunities Clause **DOES NOT protect aliens or corporations from discrimination**.
26
First Amendment - Protections Provided
| High
* The First Amendment of the U.S. Constitution protects the following rights: (1) **freedom of speech and expressive activities that constitute speech**; (2) **freedom to exercise religion**; (3) **freedom of the press**; (4) **freedom to peaceably assemble**; and (5) the **right to petition the government for a redress of grievances**. In addition, the First Amendment provides that Congress shall make **no law concerning the establishment of religion**.
27
Freedom of Religion: Establishment Clause
| High
* The Establishment Clause **prohibits the government from establishing a religion or endorsing/supporting religion**.
* Laws that discriminate against a religion **MUST satisfy strict scrutiny** (the government must show that the law is narrowly tailored to achieve a compelling government interest, and that the least restrictive means was used).
* When a law or policy is **facially neutral** (it does not discriminate against a particular type of religion), then a **1st Amendment violation occurs when “historical practices and understandings” of the Establishment Clause are violated**. The Supreme Court has said that **coercion (to support or participate in religious activity) is one of the historical hallmarks to be prohibited under the 1st Amendment**.
28
Freedom of Religion: Free Exercise Clause
| High
* The Free Exercise Clause **prohibits the government from interfering with the exercise of religion**.
* Laws **designed to interfere with religion must meet strict scrutiny** (the government must show that the law is narrowly tailored to achieve a compelling government interest, and that the least restrictive means was used). Religious beliefs are **protected if they are genuine**, sincere, and hold a place in one’s life similar to a traditional religion.
* HOWEVER, **laws of general applicability that cause unintentional burdens on religion ARE CONSTITUTIONAL** and do not offend the Free Exercise Clause (i.e. prohibiting illegal drug use or human/animal sacrifice).
29
Freedom of Speech: Content-Based vs. Content-Neutral Restrictions
| High
* ***Content-Based Restrictions***: Government regulations regarding the content of protected speech (subject matter or viewpoint) **must satisfy strict scrutiny**. Under strict scrutiny, the government must show: (1) that the regulation is **narrowly tailored to achieve a compelling government interest**; AND (2) it **used the least restrictive means** to accomplish its purpose.
* ***Content-Neutral Restrictions***: Generally, the government **MAY regulate the time, place, and manner of content neutral speech** if the regulation **satisfies intermediate scrutiny**. Under intermediate scrutiny, the government must show that the regulation: (1) is **narrowly tailored to achieve a significant government interest**; AND (2) **leaves open alternative channels of communication**. The regulation DOES NOT need to be the least restrictive means, and the narrowly tailored element is satisfied if the law/regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. Aesthetic preservation and traffic safety have been deemed to be substantial government interests.
30
Freedom of Speech: Prior Restraint
| Medium
* Prior restraints on speech **occur when the government attempts to prohibit speech before it happens** through a court order or licensing requirement. Prior restraints are **generally disfavored and unconstitutional, except in extremely limited circumstances** (i.e. when national security is at stake). Court Orders preventing speech **must satisfy strict scrutiny** (compelling governmental interest, narrowly tailored, and least restrictive means).
* **Procedural Safeguards for Licensing** are permitted if: (1) the **government has an important reason for licensing**; (2) **specific, articulated standards are used to grant the licenses** to remove discretion of the licensing body; AND (3) **procedural safeguards are in place**, including assuring prompt final judicial decision when a license is denied.
31
Freedom of Speech: Public Forum
| Medium
* A public forum is **one that has traditionally been available to the public for free speech** (i.e. public sidewalks, parks, and streets).
* ***Content-Based Restrictions***: The government **CANNOT regulate speech in public forums based on content UNLESS it satisfies strict scrutiny**. Under strict scrutiny, the government must show: (1) that the regulation is narrowly tailored to achieve a compelling government interest; AND (2) it used the least restrictive means to accomplish its purpose.
* ***Content-Neutral Restrictions***: However, the government **MAY regulate the time, place, and manner of contentneutral speech in public forums if the regulation satisfies intermediate scrutiny**. Under intermediate scrutiny, the government must show the regulation: (1) is narrowly tailored to achieve a significant government interest; AND (2) leaves open alternative channels of communication. The regulation DOES NOT need to be the least restrictive means.
32
Freedom of Speech: Designated Public Forum
| Medium
* A designated public forum is **one that has not traditionally been available to the public for free speech, but that the government chooses to make available** (i.e. where a school makes classrooms available for club meetings).
* Designated public forums are **treated the same as public forums**.
* The **government MAY remove the designation**, in which the place would become a non-public forum.
33
Freedom of Speech: Non-Public Forum & Limited Public Forum
| Medium
* Non-public forums are **other public places that have traditionally been limited for free speech** (i.e. schools, military bases, jails, inside of courthouses, and airports). The government may regulate speech in non-public forums if the regulation is: (1) **reasonable**; AND (2) **viewpoint neutral**. However, schools CANNOT force students to participate in a flag salute, and any punishment for failing to participate violates the 1st and 14th Amendments.
* Limited public forums are **non-public forums that have been specifically designated by the government as open to certain groups or topics** (i.e. municipal meeting rooms). Limited public forums are treated the same as non-public forums.
34
Forums of Speech: Licensing Requirements for Speech in Public Forums
| Medium
* Licensing requirements are permitted for speech in public forums if: (1) the **government has an important reason for licensing**; (2) **specific, articulated standards are used to grant the licenses** to remove discretion of the licensing body; AND (3) **procedural safeguards are in place**, including assuring a prompt final judicial decision when a license is denied.
* A **regulation or licensing scheme is UNCONSTITUTIONAL if it gives officials unfettered discretion** to apply the law or scheme.
35
Freedom of Speech: Regulation of Expressive Conduct
| High
* Expressive conduct or symbolic speech (the expression of ideas through actions) may be regulated if: (1) the **government has an important purpose**; (2) the **purpose is independent of the suppression of speech**; AND (3) the **restriction is no greater than necessary** to achieve that purpose.
36
Freedom of Speech: Regulation of Commercial Speech
| Low
* Commercial speech (i.e. advertisements) is given fewer protections under the First Amendment. The government **MAY regulate truthful, non-misleading commercial speech if the regulation**: (1) **directly advances**; (2) a **substantial government interest**; AND (3) it is **no more extensive than necessary** (reasonably tailored) to serve that interest.
* **False or misleading commercial speech is NOT protected**. The government may prohibit professionals from advertising or practicing under a trade name.
37
Freedom of Speech: Public School Students
| Low
* The Supreme Court has held that **public school students DO NOT lose their 1st Amendment rights to freedom of speech when they step onto school property**, **BUT schools are given a greater latitude to regulate speech by a student or teacher**.
* In order to justify the suppression of speech, **school officials MUST prove that the conduct in question would materially and substantially interfere with the operation of the school**. However, in certain instances the Supreme Court has held the above test is not applicable. For instance, a **student’s right to free speech DOES NOT extend to pro-drug messages**.
* Schools **CANNOT force students to participate in a flag salute when it offends religious/political beliefs**, and any punishment for failing to participate violates the 1st and 14th Amendments.
38
Freedom of Speech: Government Employees
| Low
* For a **government employee’s speech to be constitutionally protected** under the First Amendment, an employee **must have spoken**: (1) **as a citizen**; AND (2) **on a matter of public concern**. An employee’s statements made pursuant to their official duties are NOT protected.
* The Supreme Court has set forth a two-step inquiry to determine whether the speech of a government employee is constitutionally protected under the First Amendment:
* Step 1: **Did the employee speak as a citizen on a matter of public concern?** If the answer is no, the employee has no First Amendment claim based on her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises.
* Step 2: If the possibility of a First Amendment claim arises, then the question becomes **whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public based on the government’s interests as an employer**.
* As to the “citizen” requirement, the U.S. Supreme Court has held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. **To fall within the realm of “public concern” an employee’s speech must relate to any matter of political, social, or other concern to the community**.
39
Freedom of Speech: Corporate & Union Political Expenditures
| Low
* Political speech is a fundamental right, to which Corporations and Unions are entitled. The Supreme Court has held that **Corporations and Unions have a right to engage in political expenditures under the 1st Amendment**. As such, the **government CANNOT suppress political speech based on the speaker’s corporate identity**. This applies to unions, for-profit corporations, and non-profit corporations.
* Although the government cannot prohibit corporate political expenditures, the **shareholders MAY regulate such expenditures through the procedures of “corporate democracy”** (such as shareholder rights).
40
Freedom of Speech: Vague & Overbroad Laws
| High
* Laws that are unduly vague or overbroad are **UNCONSTITUTIONAL** because they apply to constitutionally protected speech. A statute is **unduly vague** if it **does not put the public on reasonable notice as to what is prohibited**. A statute is **overbroad** if it **regulates more speech than is constitutionally permitted**.
* A defendant **CANNOT be convicted under a law that is deemed overbroad or vague** (where the law applies to constitutionally protected speech), even if the speech falls within an unprotected category. However, where a court has previously deemed a law applicable to only unprotected speech (i.e. imminent lawless action, fighting words), then any alleged overbreadth/vagueness will NOT bar a conviction.
41
Unprotected Speech
| Low
* ***Obscenity***: Regulation valid only if the work 1) SEXY: **appeals to prurient interests**, 2) SICK: **depiction or description is patently offensive** per local standards, 3) STANDARDS: **defined by proper standards for determining what is obscene**, 4) SERIOUS VALUE: as a whole **lacks serious literary, artistic, political, scientific value** to a reasonable person (determined by the court).
* ***Incitement***: Speech eliciting imminent, violent reaction from hearer.
* ***Fighting words***: Likely to incite ordinary citizen to acts of immediate, violent retaliation to speaker.
4. ***Defamation***
5. ***Commercial Speech***: Most regulations of commercial speech are struck down. So long as the advertising is truthful and informational, it must be allowed. Regulation must **directly advance a substantial government interest and be narrowly tailored to that interest**.
42
Freedom of Association
| Low
* The Supreme Court has held that the freedom of association is a fundamental right under the 1st Amendment (as applied to state/local governments through the 14th Amendment). Thus, the **government may only regulate the right to freely associate in a group** (including the group’s expressive activities or compel disclosure of group membership) **if it satisfies strict scrutiny**: The government must show that the regulation is (1) necessary to achieve a compelling government interest; AND (2) that the least restrictive means was used).
* The government **MAY punish a person’s membership in a group if** it proves that: (1) the **group is actively engaged in illegal activity or incites imminent lawless action**; (2) the **person has knowledge of the group’s illegal activities**; AND (3) the **person has the specific intent of furthering those illegal activities**.
