Constitutional Law

Question 1

What types of cases does the federal judicial power extend to?

Answer 1

Federal judicial power (derived from Article III) extends to cases involving:
1. the Constitution
2. Federal laws
3. Treaties
4. Admiralty and maritime laws
5. Disputes between two or more states
6. Disputes between a state (or its citizens) and a foreign country (or its citizens)
7. Disputes between citizens of different states

Question 2

What are the constitutional and judically created limitations on the exercise of federal jurisdiction?

Answer 2

1. Ripeness
2. Abstention
3. Mootness
4. Political Question
5. Standing
6. Eleventh Amendment - Soverign Immunity

Question 3

What is the “case or controversy” requirement of Article III?

Answer 3

The “case or controversy” requirement of Article III bars federal courts from rendering advisory opinions, which are decisions that:
1. lack an actual dispute between adverse parties; OR
2. lack any legally binding effect on the parties

NOTE: Federal courts can still hear actions for declaratory relief if the complainants show:
1. they have engaged (or wish to engage) in specific conduct; AND
2. the challenged action poses a real and immediate threat to their interests

Question 4

What is “ripeness”?

Answer 4

Ripeness requires a case to be ready for judicial review—a case is ripe for review when there is actual harm or an immediate threat of harm to the plaintiff

Question 5

What is “mootness”?

Answer 5

A case is moot when the parties’ dispute has ended or been resolved before judicial review

Mootness does NOT preclude review of:
1. controversies capable of repetition but evading review because of the inherently short duration of the action
2. cases where the defendant voluntarily ceases the offending practice but is free to resume it
3. class actions in which the class representative’s controversy has become moot, but the claim of at least one other class member is still viable

Question 6

What is “standing”?

Answer 6

Federal courts will not hear a case unless the party bringing the suit has standing
* To have standing, a litigant must have a concrete stake in the outcome of the controversy

Question 7

What is required for an individual to demonstrate standing?

Answer 7

Individual standing requires the plaintiff to show:
1. a personal injury in fact that is concrete and particularized;
2. a causal connection between their injury and the conduct complained of; AND
3. redressability (their injury will be remedied by a decision in their favor)

Question 8

What is required for a third party to demonstrate standing?

Answer 8

Standing to assert rights of a third party requires the plaintiff to show:
1. the plaintiff has individual standing in their own right; AND
2. either (i) it is difficult for the third party to assert their own rights, or (ii) a close relationship exists between the plaintiff and the third party

Question 9

What is required for an organization to demonstrate standing?

Answer 9

An organization or association has standing to sue on behalf of its members if:
1. the individual members have standing;
2. the interests asserted are related to the organization’s purpose; AND
3. the individual members’ participation in the lawsuit is not required

Question 10

When do taxpayers have standing?

Answer 10

People generally lack standing merely as “citizens” or “taxpayers” to claim that government action violates federal law or the Constitution because their injury is too generalized

EXCEPTION:
Federal taxpayers have standing to challenge Congressional spending measures on the ground that they violate the First Amendment Establishment Clause
* Congress’s spending power must be involved

Question 11

What is sovereign immunity?

Answer 11

The doctrine of sovereign immunity reflected in the Eleventh Amendment bars a private party from suing a state in federal and state courts

Question 12

What are the exceptions to sovereign immunity?

Answer 12

1. Express Waiver: States can be sued where they have expressly waived sovereign immunity
2. Local Government: Actions against local governments are not barred by sovereign immunity
3. State/Federal Government Suits: Actions brought by other states or the federal government are not barred by sovereign immunity
4. State Officials: A person can sue a state official (i) for damages personally or (ii) to enjoin future conduct that violates the Constitution or federal law
5. Congress Removes Immunity Under 14th Amendment: Must be unmistakably clear that Congress intended to remove immunity

Question 13

When will a federal court abstain from hearing a case?

Answer 13

1. Unsettled Question of State Law: A federal court will temporarily abstain from resolving a Constitutional claim when disposition rests on an unsettled question of state law
2. Pending State Proceedings: Federal courts generally will NOT enjoin (i) pending state criminal proceedings (EXCEPT in cases of proven harassment or prosecutions taken in bad faith) or (ii) pending state civil or administrative proceedings involving an important state interest

Question 14

What are political questions?

Answer 14

Federal courts will NOT decide political questions:
1. issues constitutionally committed to another branch of government; or
2. issues inherently incapable of judicial resolution

EXAMPLES:
* questions relating to conduct of foreign relations or issues as to when hostilities have stopped
* which group of delegates should be seated at Democratic National Convention
* procedures used by Senate to “try” impeachments
* what constitutes a “republican form of government” guaranteed to the states by Article IV, Section 4

Question 15

What are “adequate and independent state law grounds”?

Answer 15

The Supreme Court will NOT exercise jurisdiction over a case decided by a state’s highest court if the state court judgment is based on “adequate and independent state law grounds” (even if federal issues are involved)
* “Adequate” means fully dispositive of the case
* “Independent” means not based on federal case interpretations of identical federal provisions

Question 16

What are the President’s primary executive powers?

Answer 16

1. Chief Executive powers
2. Appointment and Removal powers
3. Veto power
4. Executive privilege
5. Pardons
6. Absolute Immunity (Executive Immunity)
7. Commander-in-Chief powers
8. Treaty / foreign relations powers

“CARVE PACT”

Question 17

What is the scope of the President’s power as Chief Executive?

Answer 17

The President’s power over internal affairs is unclear, but an instructive guide for determining the validity of presidential actions concerning internal affairs can be based on Justice Jackson’s opinion in Youngstown Sheet & Tube:
* where the President acts with the express or implied authority of Congress, presidential authority is at its maximum and the action is likely VALID
* where the President acts where Congress is silent, the action will be UPHELD as long as it does NOT usurp powers of another branch or prevent another branch from carrying out its tasks
* where the President acts against the express will of Congress, the President has little authority and the action is likely INVALID

Question 18

What is the President’s veto power?

Answer 18

The President has the power to veto an act of Congress, but the act may still become law if the veto is overridden by a 2/3 vote of each house

Question 19

What is a “line item” veto?

Answer 19

A line item veto – where part of a bill is rejected while the rest is approved – is unconstitutional

Question 20

What is a “pocket” veto?

Answer 20

The President has 10 days to exercise the veto power; if no action is taken within that time:
* if Congress is NOT in session, the bill is automatically vetoed (“pocket veto”)
* if Congress IS in session, the bill becomes law

Question 21

What is executive privilege?

Answer 21

The President has a privilege to keep certain presidential communications secret so that the President can receive candid advice and protect national security EXCEPT:
1. in criminal proceedings, presidential communiques will be available to the prosecution where a need is demonstrated; and
2. the President is subject to state criminal subpoenas of the President’s personal records (which do NOT fall under the executive privilege)

Question 22

What is executive immunity?

Answer 22

The President has absolute immunity from civil damages based on any action taken while exercising official responsibilities (but NOT for acts before taking office)
* Presidential aides who exercised discretionary authority in a sensitive area can share in immunity for suits brought concerning that area

Question 23

What is the nature of federal legislative power?

Answer 23

Congress has limited powers—every exercise of Congressional power MUST be traced to the Constitution

NOTE: Congress has NO general “police power” to legislate for the health, safety and welfare of the nation, but Congress DOES have police power-type powers over:
1. the District of Columbia
2. federal lands
3. military bases
4. Indian reservations

Question 24

What are the primary enumerated powers of Congress?

Answer 24

1. Property Power
2. Necessary and Proper Clause
3. Spending and Taxing Powers
4. Aliens (Citizenship Powers)
5. Commerce Clause
6. War and Related Powers

“Please, No Spending on Another Crazy War”

Question 25

What is Congress’ property power?

Answer 25

Congress can dispose of federal property and make rules for territories and other properties of the United States

NOTE: Federal takings of private property (eminent domain) must be pursuant to an enumerated power under some OTHER provision of the Constitution

Question 26

What does the “Necessary and Proper Clause” provide?

Answer 26

The Necessary and Proper Clause provides that Congress has the power to make all laws necessary and proper (appropriate or rational) to carry out any of its legislative powers enumerated in Article I

NOTE: The Necessary and Proper Clause is NOT an independent source of Congressional authority, but rather must be tied to another enumerated power

Question 27

What are Congress’ spending and taxing powers?

Answer 27

Congress has the power to tax and spend to provide for the general welfare
* Taxing and spending may be for any public purpose NOT prohibited by the Constitution

Question 28

When are federal taxes valid?

Answer 28

Federal taxes are generally valid if they bear some reasonable relationship to revenue production or promoting the general welfare

Question 29

When may Congress impose conditions on spending?

Answer 29

Congress can impose conditions on the grant of money to state or local governments (“strings”) so long as they:
1. are clearly stated;
2. relate to the purpose of the program;
3. are NOT unduly coercive; and
4. do NOT otherwise violate the Constitution

Question 30

What does the Commerce Clause give Congress the power to regulate?

Answer 30

1. Channels of interstate commerce (e.g., roads, phone lines, the internet)
2. Instrumentalities of interstate commerce (e.g., planes, trains, cars)
3. Activities that have a substantial effect on interstate commerce

Question 31

When will Congressional regulation of intrastate COMMERCIAL activity be upheld?

Answer 31

Congressional regulation of purely intrastate COMMERCIAL activity will be upheld if the court finds there is a rational basis on which Congress could conclude that such activity in the AGGREGATE has a substantial effect on interstate commerce

Question 32

When will Congressional regulation of intrastate NON-COMMERCIAL activity be upheld?

Answer 32

Congressional regulation of purely intrastate NON-COMMERCIAL activity will be upheld ONLY IF Congress can show the activity (NOT aggregated) has a DIRECT substantial effect on interstate commerce
* Congress generally will NOT be able to make this showing

Tenth Amendment Limitation
Additionally, the Tenth Amendment precludes Congress from regulating non-economic intrastate activity in areas traditionally regulated by state or local governments

Question 33

What are Congress’ powers over aliens and national citizenship?

Answer 33

Congress may establish uniform rules of naturalization, which gives Congress plenary power over aliens

NOTE: Aliens have no right to enter the United States and can be refused entry because of their political beliefs; however, resident aliens must get notice and a hearing before they can be deported

Question 34

What are Congress’ powers relating to war and the military?

Answer 34

The Constitution gives Congress the power to:
1. Declare war;
2. Raise and support armies; and
3. Provide for and maintain a navy

Question 35

When can Congress delegate legislative powers to another branch?

Answer 35

Congress can delegate rulemaking or regulatory power to the executive branch (including administrative agencies) or the judicial branch if:
1. intelligible standards are set (a general standard will usually suffice); and
2. the power delegated is NOT uniquely confined to Congress

Question 36

What powers are reserved for the STATES?

Answer 36

The Tenth Amendment provides that all powers not granted to the federal government or prohibited to the states are reserved to the states (or the people)
* Federal powers are given an expansive interpretation and, thus, little state power is exclusive; however, states have general police powers—i.e., they can regulate the health, safety and welfare of their residents

Question 37

What is the anti-commandeering principle?

Answer 37

The Tenth Amendment limits Congress’ power to regulate the states by requiring the states to act in a particular way, and, thus, Congress cannot compel (“commandeer”) the states to enact state laws or enforce federal laws EXCEPT:
1. Congress CAN subject state and local governments to regulation or taxation that applies to BOTH the public sector and the private sector
2. Non-coercive spending conditions (“strings”) on the grant of federal funds to state or local governments do NOT violate the anti-commandeering principle
3. Under its 14th Amendment enforcement powers, Congress CAN restrict discrimination in violation of the Equal Protection Clause or deprivation of rights protected by the Due Process Clause

Question 38

What does the Supremacy Clause provide?

Answer 38

The Supremacy Clause provides that the Constitution and federal laws and treaties are the “supreme law of the land” and, thus, federal law may preempt state or local laws under certain circumstances

Question 39

What is express preemption?

Answer 39

If a federal statute expressly provides that states may not adopt laws concerning the subject matter of the legislation, state and local laws on the subject are preempted

Question 40

What is implied preemption?

Answer 40

State and local laws are impliedly preempted by federal law when they:
1. conflict with federal law such that it would be impossible to adhere to both sets of laws; or
2. impede achievement of a federal objective

Question 41

What is field preemption?

Answer 41

A valid federal law may impliedly “occupy an entire field,” thereby preempting state or local laws in that field

Question 42

What is the presumption against preemption?

Answer 42

In all preemption cases, but especially in cases involving a field traditionally within the power of the states (e.g., regulations involving health, safety or welfare), courts will start with the presumption that the historic state police powers are NOT to be superseded UNLESS that was the CLEAR AND MANIFEST PURPOSE of Congress

Question 43

What does the Privileges and Immunities Clause of Article IV provide?

Answer 43

The Article IV Privileges and Immunities Clause provides that a state law that (1) discriminates against non-residents, (2) concerns an important economic interest (e.g., livelihood) or fundamental right and (3) is intentionally protectionist in nature is INVALID UNLESS:
1. the law is necessary to achieve an important government interest; AND
2. there are no less restrictive means available

NOTE: The Article IV Privileges and Immunities Clause does NOT protect corporations or aliens

Question 44

What does the Fourteenth Amendment Privileges or Immunities Clause provide?

Answer 44

The Fourteenth Amendment Privileges or Immunities Clause prohibits states from denying their OWN CITIZENS the privileges and immunities of NATIONAL CITIZENSHIP, such as:
1. the right to interstate travel
2. the right to vote for federal officers
3. the right to enter public lands
4. the right to petition Congress for redress of grievances

NOTE: The Fourteenth Amendment Privileges or Immunities Clause does NOT protect corporations

Question 45

What is the “Dormant Commerce Clause”?

Answer 45

Congress’ power to regulate interstate commerce is non-exclusive and shared to some extent with the states; however, the power of the states to regulate interstate commerce is restricted by the negative implications of the Commerce Clause (the “Dormant Commerce Clause”), even when Congress has not enacted laws regarding the subject
* In general, state and local governments must NOT DISCRIMINATE AGAINST or UNDULY BURDEN interstate commerce

Question 46

Dormant Commerce Clause

When will a state law that DISCRIMINATES against interstate commerce be upheld?

Answer 46

A state law that discriminates against interstate commerce is invalid UNLESS:
(a) the law is necessary to achieve an important, noneconomic state interest AND there are no reasonable nondiscriminatory alternatives available
- OR -
(b) the state is acting as a market participant (e.g., a state may prefer its own citizens when hiring labor, buying or selling products, or giving subsidies)
- OR -
(c) the law favors government action that involves the performance of a traditional government function (e.g., waste disposal)
- OR -
(d) Congress has permitted the regulation in question

Question 47

Dormant Commerce Clause

When will a NON-DISCRIMINATORY state law that BURDENS interstate commerce be upheld?

Answer 47

A state law that is non-discriminatory but burdens interstate commerce is valid UNLESS the burden outweighs the promotion of a legitimate, non-discriminatory state interest
* The court will consider whether less restrictive alternatives are available

Question 48

Dormant Commerce Clause

To what extent do states have the power to tax interstate commerce?

Answer 48

• Discriminatory Taxes: Unless authorized by Congress, state taxation that discriminates against interstate commerce violates the Commerce Clause (and possibly other Constitutional provisions)
• Non-Discriminatory Taxes: A non-discriminatory state tax is VALID if:
  (1) it applies to an activity having a substantial nexus to the taxing state (satisfied when a business avails itself of the privilege of doing business in the state)
  (2) it is fairly apportioned according to a rational formula; AND
  (3) the tax is fairly related to the services or benefits provided by the state

Question 49

What is the “state action” requirement for establishing a violation of Constitutional rights?

Answer 49

For an action to violate the Constitution, it must be attributable to the federal, state or local government or its officers
* Significantly, action by private individuals or organizations may constitute state action when:
(1) they perform exclusive public functions (e.g., running a town, running an election for public office)
- OR -
(2) the state is significantly involved in facilitating, encouraging or authorizing the action

Question 50

What is the incorporation doctrine?

Answer 50

By its terms, the Bill of Rights (the first 10 Amendments to the Constitution) is applicable only to the federal government, although most of its safeguards (i.e., those “essential to liberty” have been held to be applicable to the states through the Fourteenth Amendment Due Process Clause

The most notable exceptions to incorporation are:
1. the Third Amendment’s prohibition of quartering troops in a person’s home
2. the Fifth Amendment’s prohibition of criminal trials without a grand jury indictment
3. the Seventh Amendment’s right to a jury trial in civil cases

Question 51

What does the Thirteenth Amendment provide?

Answer 51

The Thirteenth Amendment provides that neither slavery nor involuntary servitude – forcing someone to perform work through use or threat of physical injury, restrainment or legal sanction – shall exist within the United States
* This uniquely applies to state AND private action

Question 52

What does the Contract Clause provide?

Answer 52

The Contract Clause limits the ability of states to enact laws that retroactively impair contract rights
* Applies only to PREEXISTING contracts

NOTE: There is no comparable limitation on the federal government, but flagrant impairment of contract rights by the federal government may violate the Due Process Clause

Question 53

When does legislation violate the Contract Clause?

Answer 53

• Private Contracts: If legislation substantially impairs a party’s rights under an existing contract, it is INVALID UNLESS:
  (1) it serves an important and legitimate public interest; AND
  (2) it is a reasonable and narrowly tailored means of promoting that interest
• Public Contracts: Legislation that impairs a party’s rights under an existing contract with the state is tested by the same basic test above, but it will likely receive stricter scrutiny, particularly if the legislation reduces the state’s contractual burdens

Question 54

What is the Constitutional prohibition of “ex post facto” laws?

Answer 54

The Constitution prohibits the federal and state governments from passing “ex post facto” laws – legislation that retroactively alters criminal law in a substantially prejudicial manner, such as by:
1. making criminal an act that was innocent when done
- OR -
2. prescribing greater punishment for an act than was prescribed when the act was committed
- OR -
3. reducing the evidence required to convict a person of a crime from what was required when the act was committed

NOTE: The prohibition of “ex post facto” laws specifically applies only to legislation, but due process prohibits courts from retroactively interpreting criminal law in an unexpected and indefensible way

Question 55

What is the Constitutional prohibition of “bills of attainder”?

Answer 55

The Constitution prohibits the federal and state governments from passing “bills of attainder” – legislation that inflicts punishment without a judicial trial on individuals either by name or past conduct

Question 56

What do the Due Process Clauses of the Fifth Amendment and Fourteenth Amendment provide?

Answer 56

The Due Process Clauses of the Fifth Amendment (applicable to the federal government) and Fourteenth Amendment (applicable to state and local governments) provide that the government shall NOT deprive a person individually of life, liberty or property without due process of law

Question 57

When is a person deprived of “liberty” for purposes of due process?

Answer 57

Deprivation of liberty occurs if a person:
(a) loses significant freedom of action; or
(b) is denied a freedom provided by the Constitution or statute

Question 58

What constitutes “property” for purposes of due process?

Answer 58

For purposes of due process, “property” includes not only real and personal property (tangible or intangible), but also government benefits to which there is an “ENTITLEMENT” – that is, a reasonable expectation of continued receipt – under federal or state law

Question 59

What does procedural due process require?

Answer 59

Procedural due process requires:
1. notice that is reasonably calculated to inform the person of deprivation;
2. an opportunity to be heard; and
3. a neutral decisionmaker, meaning one that does NOT have an actual bias or a serious risk of actual bias

Question 60

How is the type and extent of the hearing required for procedural due process determined?

Answer 60

The type and extent of the hearing are determined by a balancing test that weighs:
1. the importance of the interest to the individual AND
2. the value of specific procedural safeguards to that interest AGAINST
3. the government interest in fiscal and administrative efficiency

Question 61

What does the Takings Clause provide?

Answer 61

The Takings Clause of the Fifth Amendment (applicable to the states through the Fourteenth Amendment) provides that private property may not be taken for public use without just compensation

NOTE: The Takings Clause is NOT a source of power for a taking, but rather is a LIMITATION

Question 62

What is “public use” for purposes of the Takings Clause?

Answer 62

“Public use” is liberally construed and satisfied as long as the government’s use of the property is rationally related to a legitimate public purpose (can include a public benefit)

Question 63

What is “just compensation” for purposes of the Takings Clause?

Answer 63

“Just compensation” is measured by the fair market value of the property at the time of the taking, and based on the LOSS to the OWNER (not the gain to the government)

Question 64

What is a “physical” taking?

Answer 64

A taking will be found if there is:
1. a confiscation of a person’s property by the government; or
2. a permanent or regular physical occupation of a person’s property by the government

Question 65

When will a temporary physical occupation of a person’s property constitute a taking?

Answer 65

Temporary physical occupations of a person’s property by the government may constitute a taking depending on factors such as:
1. the degree of invasion;
2. the duration;
3. the government’s intention;
4. the foreseeability of the result;
5. the character of the property; and
6. the interference with the owner’s use of the property

Question 66

When do conditions placed on building or development permits (an “exaction”) constitute a taking?

Answer 66

When a municipality conditions the issuance of a building or development permit on the landowner (a) conveying title to part of their property to the government (e.g., to be used as streets) or (b) granting the public an easement to access the property (i.e., an “EXACTION”), such conditions constitute a taking UNLESS:
1. the government shows there is an essential nexus between the condition and the proposed development (i.e., the condition relates to a legitimate government interest); AND
2. the adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner by the forced transfer

Question 67

What is a “per se” taking?

Answer 67

A government regulation that denies a landowner of all economically viable use of their land amounts to a “per se” taking

Question 68

What are the Penn Central factors considered to determine whether a regulation that merely decreases the value of property constitutes a taking?

Answer 68

A government regulation that merely decreases the value of property typically does NOT amount to a taking if they leave an economically viable use for the property, but a court will consider:
1. the character of the government action;
2. the regulation’s economic effect on the owner; and
3. the extent to which the regulation interferes with reasonable investment-backed expectations of the owner

Question 69

What is substantive due process?

Answer 69

Substantive due process requires laws that infringe on individual civil liberties to be:
1. reasonable;
2. not arbitrary; and
3. supported by a sufficient substantive justification, depending on the nature of the interests impacted

Question 70

What rights are considered “fundamental rights” for purposes of due process?

Answer 70

The Supreme Court has recognized the following “fundamental rights”:
1. privacy-related rights, including:
(i) the right to marry;
(ii) the right to reproduce;
(iii) the right to use contraceptives;
(iv) parental rights;
(v) the right to read obscene material in one’s home (except for child pornography); and
(vi) the right of family members to live together
2. the right to vote (for all U.S. citizens who are least 18 years old
3. the right to interstate travel (encompasses the right to leave and enter another state, and the right to be treated equally with other state residents upon becoming a permanent resident of a state)
4. all First Amendment rights

NOTE: Other unenumerated rights may constitute “fundamental rights” if they are:
1. deeply rooted in the nation’s history and tradition; and
2. essential to the concept of ordered liberty

Question 71

What standard of review is applied when a fundamental right is limited by law or state action?

Answer 71

When a fundamental right is limited, the law or state action is evaluated under the strict scrutiny standard:
* The law must be necessary to achieve a compelling government interest
* The burden of proof is on the GOVERNMENT

Question 72

What standard of review is applied when a non-fundamental right is limited by law or state action?

Answer 72

When any right that is NOT a fundamental right is limited, the law or state action is evaluated under the rational basis standard:
* The law need only be rationally related to a legitimate government interest
* The burden of proof is on the CHALLENGER

Question 73

What does the Equal Protection Clause provide?

Answer 73

The Equal Protection Clause of the Fourteenth Amendment (made applicable to the federal government through the Fifth Amendment Due Process Clause) prohibits the government from treating similarly situtated people unequally without a sufficient substantive justification

Question 74

Equal Protection Clause

What is a suspect classification?

Answer 74

A suspect classification is one based on:
(a) race;
(b) national origin; or
(c) alienage (at the state and local levels)

Question 75

Equal Protection Clause

What is a quasi-suspect classification?

Answer 75

A quasi-suspect classification is one based on:
(a) gender; or
(b) distinctions between marital vs. nonmarital children

Question 76

Equal Protection Clause

What standard of review applies when a suspect classification or fundamental right is involved?

Answer 76

If a law discriminates on the basis of a suspect classification or fundamental right, the strict scrutiny standard applies:
* The law must be necessary to achieve a compelling government interest
* The burden of proof is on the GOVERNMENT

Question 77

Equal Protection Clause

What standard of review applies when a quasi-suspect classification is involved?

Answer 77

If a law discriminates on the basis of a quasi-suspect classification, the intermediate scrutiny standard applies:
* The law must be substantially related to an important government interest
* The burden of proof is on the GOVERNMENT

NOTE: In gender discrimination cases, the government must show an “exceedingly persuasive justification” for the discrimination

Question 78

Equal Protection Clause

What standard of review applies when a non-suspect classification is involved?

Answer 78

If a law discriminates on the basis of a non-suspect classification (e.g., age, wealth, disability), the rational basis standard applies:
* The law need only be rationally related to a legitimate government interest
* The burden of proof is on the CHALLENGER

Question 79

Equal Protection Clause

In addition to a law discriminating on the basis of a suspect or quasi-suspect classification, what else is required to trigger heightened scrutiny?

Answer 79

For strict or intermediate scrutiny to be applied, the government must have discriminatory intent, which can be shown by:
1. a law that is discriminatory on its face;
2. a discriminatory application of a facially neutral law; or
3. a facially neutral law with a disparate impact on a protected class

NOTE: The second and third ways to show discriminatory intent also require establishing the legislature’s discriminatory intent, e.g., by evidence of a history of discrimination

Question 80

What does the First Amendment provide?

Answer 80

The First Amendment prohibits Congress from:
1. abridging the freedom of speech or the press;
2. interfering with the right of the people to assemble;
3. interfering with the exercise of religion (the “Free Exercise Clause”); and
4. establishing a religion (the “Establishment Clause”)

NOTE: These prohibitions have been made applicable to the states through the Fourteenth Amendment Due Process Clause

Question 81

First Amendment

What does the Free Speech Clause provide?

Answer 81

The Free Speech Clause of the First Amendment restricts government regulation of private speech to protect the free flow of ideas, a most important function in a democratic society
* The Free Speech Clause does NOT (i) require the government to aid private speech or (ii) restrict the government from expressing its views

Question 82

First Amendment

What is “speech” for purposes of the Free Speech Clause?

Answer 82

For purposes of the Free Speech Clause, “speech” includes:
1. words;
2. symbols; and
3. expressive conduct – conduct that is either (i) inherently expressive or (ii) intended to convey a message and reasonably likely to be perceived as conveying a message

Question 83

First Amendment

What are the categories of “unprotected” speech?

Answer 83

The following categories of “unprotected” speech lack First Amendment protection and generally may be censored:
1. incitement
2. fighting words
3. true threats
4. obscenity
5. defamation
6. commercial speech that is (i) false, (ii) misleading or (iii) about illegal products or services

Question 84

First Amendment

What is “incitement”?

Answer 84

Incitement is speech that is:
1. intended to produce imminent lawless action; and
2. likely to produce such action

Question 85

First Amendment

What are “fighting words”?

Answer 85

“Fighting words” are personally abusive words that are likely to incite immediate physical retaliation in an average person (more than merely annoying words)

Question 86

First Amendment

What are “true threats”?

Answer 86

“True threats” are words that are intended to convey to someone a serious threat of bodily harm

Question 87

First Amendment

What is “obscenity”?

Answer 87

“Obscenity” is speech that describes or depicts sexual conduct that, taken as a whole, by the average person:
1. appeals to the prurient interest in sex (using a contemporary community standard);
2. is patently offensive (using a contemporary community standard); and
3. lacks serious literary, artistic, political or scientific value (using a national, reasonable person standard)

Question 88

First Amendment

When is a defamatory statement subject to the First Amendment?

Answer 88

If a defamatory statement is about a public official, a public figure or a matter of public concern, the First Amendment requires the plaintiff to prove all elements of defamation plus FALSITY and some degree of “FAULT” to recover in tort

Question 89

First Amendment

Who are “public officials”?

Answer 89

Public officials include:
1. people holding or running for elective office (at any level); and
2. public employees in positions of public importance (e.g., prosecutor, school principal, police officer)

Question 90

First Amendment

Who are “public figures”?

Answer 90

Public figures are people who have:
1. assumed roles of prominence in society;
2. achieved pervasive fame and notoriety; or
3. thrust themselves into particular public controversies to influence their resolution

Question 91

First Amendment

What are “matters of public concern”?

Answer 91

Matters of public concern are issues important to society or democracy
* Courts decide on a case-by-case basis whether a defamatory statement involves a matter of public concern, looking at the content, form and context of the publication

Question 92

First Amendment

What degree of “fault” must be proven by a public official or public figure suing for defamation?

Answer 92

If the plaintiff suing for defamation is a public official or public figure, they must show “actual malice,” which requires them to prove by clear and convincing evidence that the defamatory statement was made with:
1. knowledge that it was false; or
2. reckless disregard as to its truth or falsity

Question 93

First Amendment

What degree of “fault” must be proven by a private figure suing for defamation involving a matter of public concern?

Answer 93

If the plaintiff suing for defamation is a private figure but the defamatory statement involves a matter of public concern, they must prove:
* actual malice to recover punitive or presumed damages; OR
* negligence to recover only actual damages

NOTE: If the plaintiff is a private figure suing on a matter of private concern, the First Amendment is NOT implicated

Question 94

First Amendment

What are “content-based” regulations of speech?

Answer 94

A regulation is content-based if it restricts speech based on it subject matter or viewpoint

Question 95

First Amendment

What are “content-neutral” regulations of speech?

Answer 95

A regulation is content-neutral if it is BOTH subject matter-neutral and viewpoint-neutral

Question 96

First Amendment

What standard of review applies to content-based regulations of speech?

Answer 96

Content-based regulations are subject to strict scrutiny:
* The regulation must be (1) necessary to serve a compelling government interest and (2) narrowly tailored to achieve that end
* The burden of proof is on the GOVERNMENT

Question 97

First Amendment

What standard of review applies to content-neutral regulations of speech?

Answer 97

Content-neutral regulations are subject to intermediate scrutiny:
* The regulation must (1) advance important interests that are unrelated to the suppression of speech and (2) narrowly tailored to further those interests
* The burden of proof is on the GOVERNMENT

Question 98

Time, Place and Manner Restrictions

To what extent can the government regulate speech-related conduct on government property?

Answer 98

The extent to which the government may regulate speech-related conduct on government property depends on whether the property involved is:
1. a public forum;
2. a designated public forum;
3. a limited public forum; or
4. a nonpublic forum

Question 99

First Amendment

What is a public forum?

Answer 99

Public property that has historically been open to speech-related activities (e.g., streets, sidewalks, public parks and the internet)

Question 100

First Amendment

What is a designated public forum?

Answer 100

Public property that has NOT historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or temporary basis (e.g., school rooms that are open for after-school use by social, civic or recreation groups)

Question 101

First Amendment

What is a limited public forum?

Answer 101

Public property opened for a specific speech-related activity (e.g., a school gym opened on a particular night to host a debate on a particular community issue)

Question 102

First Amendment

What is a nonpublic forum?

Answer 102

Public property not historically open generally for speech and assembly, and not held open for specific speech activities (e.g., military bases or government workplaces)

Question 103

First Amendment

What standards of review apply to speech regulations in public forums and designated public forums?

Answer 103

• If the regulation is content-based, it will be subject to strict scrutiny
• If the regulation is content-neutral, it is subject to intermediate scrutiny, which in this context requires that it (1) be narrowly tailored to serve an important government interest and (2) leave open alternative channels of communication

Question 104

First Amendment

When will a regulation be considered “narrowly tailored”?

Answer 104

If the regulation does not burden substantially more speech than necessary to achieve the government interest

Question 105

First Amendment

When does a regulation “leave open alternative channels of communication”?

Answer 105

If other reasonable means for communicating the idea are available

Question 106

First Amendment

What standards of review apply to speech regulations in limited public forums and nonpublic forums?

Answer 106

In such locations, regulations are VALID if they are:
1. VIEWPOINT-neutral; and
2. reasonably related to a legitimate government interest

NOTE: If the regulation is viewpoint-based, it is subject to strict scrutiny

Question 107

First Amendment

When will government regulation of commercial speech that is not fraudulent, misleading or about illegal activity be upheld?

Answer 107

Government regulation of commercial speech will be upheld ONLY IF it:
1. serves a substantial government interest;
2. directly advances that interest; and
3. is narrowly tailored to serve that interest

Question 108

First Amendment

When is a statute regulating speech void for vagueness or overbreadth?

Answer 108

• A statute regulating speech is void for vagueness if it fails to give persons reasonable notice of what is prohibited
• A statute regulating speech is overbroad if it restricts substantially more speech than is Constitutionally permitted

Question 109

First Amendment

What are prior restraints?

Answer 109

Prior restraints are court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards
* The government’s burden in justifying a prior restraint is heavy – ask whether there is some special societal harm that justifies the restraint

Question 110

First Amendment

What procedural safeguards are required for a system for prior restraint?

Answer 110

To be valid, a system for prior restraint must provide the following safeguards:
1. the standards must be narrowly drawn, reasonable and definite (officials cannot have unbridled discretion);
2. the injunction must promptly be sought (if the restraining body wishes to restrain the dissemination of certain speech); and
3. there must be prompt and final judicial determination of the validity of the restraint (e.g., review of a permit denial)

Question 111

First Amendment

What freedom of associational rights is guaranteed by the First Amendment?

Answer 111

Although there is no explicit mention of associational rights in the Constitution, the Supreme Court has held that the First Amendment guarantees the right to associate with, or not associate with, persons of one’s choosing

Question 112

First Amendment

What does the Free Exercise Clause provide?

Answer 112

The Free Exercise Clause prohibits the government from punishing – denying benefits to, or imposing burdens on – someone on the basis of the person’s religious beliefs UNLESS it is necessary to achieve a compelling government interest (the Supreme Court has never found a sufficiently compelling interest)
* A law is discriminatory for purposes of the Free Exercise Clause if it is (1) not neutral on its face or (2) facially neutral but not generally applicable
* A law that is facially neutral and generally applicable but incidentally burdens religious practice is generally valid

Question 113

First Amendment

What does the Establishment Clause provide?

Answer 113

The Establishment Clause prohibits government sponsorship of religion and compels the government to pursue a course of neutrality toward religion
* The government may NOT directly or indirectly coerce individuals to exercise (or refrain from exercising) their religious beliefs
* The Establishment Clause must be interpreted by reference to historical practices and understandings, and religious practices and displays that have been around for a long time tend to get upheld as a tolerable acknowledgement of the role that religion has played in the history and tradition of this country