Constitutional Law Flashcards
1
Q
What types of cases does the federal judicial power extend to?
A
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
2
Q
What are the constitutional and judically created limitations on the exercise of federal jurisdiction?
A
- Ripeness
- Abstention
- Mootness
- Political Question
- Standing
- Eleventh Amendment - Soverign Immunity
3
Q
What is the “case or controversy” requirement of Article III?
A
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
4
Q
What is “ripeness”?
A
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
5
Q
What is “mootness”?
A
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
6
Q
What is “standing”?
A
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
7
Q
What is required for an individual to demonstrate standing?
A
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)
8
Q
What is required for a third party to demonstrate standing?
A
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
9
Q
What is required for an organization to demonstrate standing?
A
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
10
Q
When do taxpayers have standing?
A
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
11
Q
What is sovereign immunity?
A
The doctrine of sovereign immunity reflected in the Eleventh Amendment bars a private party from suing a state in federal and state courts
12
Q
What are the exceptions to sovereign immunity?
A
- Express Waiver: States can be sued where they have expressly waived sovereign immunity
- Local Government: Actions against local governments are not barred by sovereign immunity
- State/Federal Government Suits: Actions brought by other states or the federal government are not barred by sovereign immunity
- 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
- Congress Removes Immunity Under 14th Amendment: Must be unmistakably clear that Congress intended to remove immunity
13
Q
When will a federal court abstain from hearing a case?
A
- 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
- 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
14
Q
What are political questions?
A
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
15
Q
What are “adequate and independent state law grounds”?
A
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
16
Q
What are the President’s primary executive powers?
A
- Chief Executive powers
- Appointment and Removal powers
- Veto power
- Executive privilege
- Pardons
- Absolute Immunity (Executive Immunity)
- Commander-in-Chief powers
- Treaty / foreign relations powers
“CARVE PACT”
17
Q
What is the scope of the President’s power as Chief Executive?
A
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
18
Q
What is the President’s veto power?
A
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
19
Q
What is a “line item” veto?
A
A line item veto – where part of a bill is rejected while the rest is approved – is unconstitutional
20
Q
What is a “pocket” veto?
A
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
21
Q
What is executive privilege?
A
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)
22
Q
What is executive immunity?
A
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
23
Q
What is the nature of federal legislative power?
A
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
24
Q
What are the primary enumerated powers of Congress?
A
- Property Power
- Necessary and Proper Clause
- Spending and Taxing Powers
- Aliens (Citizenship Powers)
- Commerce Clause
- War and Related Powers
“Please, No Spending on Another Crazy War”
25
What is Congress' property power?
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
26
What does the "Necessary and Proper Clause" provide?
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***
27
What are Congress' spending and taxing powers?
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
28
When are federal taxes valid?
Federal taxes are generally valid if they bear some ***reasonable relationship*** to **revenue production** or **promoting the general welfare**
29
When may Congress impose conditions on spending?
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**
30
What does the Commerce Clause give Congress the power to regulate?
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
31
When will Congressional regulation of intrastate COMMERCIAL activity be upheld?
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
32
When will Congressional regulation of intrastate NON-COMMERCIAL activity be upheld?
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**
33
What are Congress' powers over aliens and national citizenship?
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**
34
What are Congress' powers relating to war and the military?
The Constitution gives Congress the power to:
1. **Declare war**;
2. **Raise and support armies**; and
3. **Provide for and maintain a navy**
35
When can Congress delegate legislative powers to another branch?
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**
36
What powers are reserved for the STATES?
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
37
What is the anti-commandeering principle?
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**
38
What does the Supremacy Clause provide?
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
39
What is express preemption?
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
40
What is implied preemption?
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**
41
What is field preemption?
A valid federal law may impliedly **"occupy an entire field,"** thereby **preempting state or local laws in that field**
42
What is the presumption against preemption?
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**
43
What does the Privileges and Immunities Clause of Article IV provide?
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***
44
What does the Fourteenth Amendment Privileges or Immunities Clause provide?
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***
45
What is the "Dormant Commerce Clause"?
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
46
# Dormant Commerce Clause
When will a state law that DISCRIMINATES against interstate commerce be upheld?
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
47
# Dormant Commerce Clause
When will a NON-DISCRIMINATORY state law that BURDENS interstate commerce be upheld?
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***
48
# Dormant Commerce Clause
To what extent do states have the power to tax interstate commerce?
* **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***
49
What is the "state action" requirement for establishing a violation of Constitutional rights?
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
50
What is the incorporation doctrine?
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
51
What does the Thirteenth Amendment provide?
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**
52
What does the Contract Clause provide?
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
53
When does legislation violate the Contract Clause?
* **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**
54
What is the Constitutional prohibition of "ex post facto" laws?
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
55
What is the Constitutional prohibition of "bills of attainder"?
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**
56
What do the Due Process Clauses of the Fifth Amendment and Fourteenth Amendment provide?
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**
57
When is a person deprived of "liberty" for purposes of due process?
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***
58
What constitutes "property" for purposes of due process?
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
59
What does procedural due process require?
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**
60
How is the type and extent of the hearing required for procedural due process determined?
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
61
What does the Takings Clause provide?
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***
62
What is "public use" for purposes of the Takings Clause?
**"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**)
63
What is "just compensation" for purposes of the Takings Clause?
**"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)
64
What is a "physical" taking?
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
65
When will a temporary physical occupation of a person's property constitute a taking?
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
66
When do conditions placed on building or development permits (an "exaction") constitute a taking?
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
67
What is a "per se" taking?
A government **regulation that denies a landowner of all economically viable use** of their land amounts to a "per se" taking
68
What are the *Penn Central* factors considered to determine whether a regulation that merely decreases the value of property constitutes a taking?
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
69
What is substantive due process?
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
70
What rights are considered "fundamental rights" for purposes of due process?
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***
71
What standard of review is applied when a **fundamental** right is limited by law or state action?
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**
72
What standard of review is applied when a **non-fundamental** right is limited by law or state action?
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**
73
What does the Equal Protection Clause provide?
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**
74
# Equal Protection Clause
What is a **suspect** classification?
A **suspect classification** is one based on:
(a) ***race***;
(b) ***national origin***; or
(c) ***alienage*** (at the state and local levels)
75
# Equal Protection Clause
What is a **quasi-suspect** classification?
A **quasi-suspect classification** is one based on:
(a) ***gender***; or
(b) distinctions between ***marital vs. nonmarital children***
76
# Equal Protection Clause
What standard of review applies when a **suspect classification** or **fundamental right** is involved?
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**
77
# Equal Protection Clause
What standard of review applies when a **quasi-suspect classification** is involved?
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
78
# Equal Protection Clause
What standard of review applies when a **non-suspect classification** is involved?
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**
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?
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***
80
What does the First Amendment provide?
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
81
# First Amendment
What does the Free Speech Clause provide?
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
82
# First Amendment
What is "speech" for purposes of the Free Speech Clause?
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
83
# First Amendment
What are the categories of "unprotected" speech?
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***
84
# First Amendment
What is "incitement"?
**Incitement** is speech that is:
1. ***intended*** to produce ***imminent lawless action***; and
2. ***likely*** to produce such action
85
# First Amendment
What are "fighting words"?
**"Fighting words"** are ***personally abusive*** words that are ***likely to incite immediate physical retaliation*** in an ***average person*** (more than merely annoying words)
86
# First Amendment
What are "true threats"?
**"True threats"** are words that are ***intended to convey*** to someone a ***serious threat of bodily harm***
87
# First Amendment
What is "obscenity"?
**"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)
88
# First Amendment
When is a defamatory statement subject to the First Amendment?
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
89
# First Amendment
Who are "public officials"?
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)
90
# First Amendment
Who are "public figures"?
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
91
# First Amendment
What are "matters of public concern"?
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
92
# First Amendment
What degree of "fault" must be proven by a public official or public figure suing for defamation?
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
93
# First Amendment
What degree of "fault" must be proven by a private figure suing for defamation involving a matter of public concern?
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***
94
# First Amendment
What are "content-based" regulations of speech?
A regulation is **content-based** if it restricts speech based on it **subject matter** or **viewpoint**
95
# First Amendment
What are "content-neutral" regulations of speech?
A regulation is **content-neutral** if it is **BOTH** **subject matter-neutral** and **viewpoint-neutral**
96
# First Amendment
What standard of review applies to content-based regulations of speech?
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**
97
# First Amendment
What standard of review applies to content-neutral regulations of speech?
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**
98
# Time, Place and Manner Restrictions
To what extent can the government regulate speech-related conduct on government property?
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**
99
# First Amendment
What is a public forum?
Public property that has **historically been open to speech-related activities** (e.g., streets, sidewalks, public parks and the internet)
100
# First Amendment
What is a designated public forum?
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)
101
# First Amendment
What is a limited public forum?
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)
102
# First Amendment
What is a nonpublic forum?
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)
103
# First Amendment
What standards of review apply to speech regulations in public forums and designated public forums?
* 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
104
# First Amendment
When will a regulation be considered "narrowly tailored"?
If the regulation **does not burden substantially more speech than necessary** to achieve the government interest
105
# First Amendment
When does a regulation "leave open alternative channels of communication"?
If **other reasonable means** for communicating the idea are available
106
# First Amendment
What standards of review apply to speech regulations in limited public forums and nonpublic forums?
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**
107
# First Amendment
When will government regulation of commercial speech that is not fraudulent, misleading or about illegal activity be upheld?
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
108
# First Amendment
When is a statute regulating speech void for vagueness or overbreadth?
* 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
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# First Amendment
What are prior restraints?
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
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# First Amendment
What procedural safeguards are required for a system for prior restraint?
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)
111
# First Amendment
What freedom of associational rights is guaranteed by the First Amendment?
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
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# First Amendment
What does the Free Exercise Clause provide?
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**
113
# First Amendment
What does the Establishment Clause provide?
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
