Constitutional Law Flashcards
Justiciability
A case must be justiciable to be heard in fed. court. which means there must be a CASE OR CONTROVERSY presented.
Satisfy these Requirements:
(1) Standing
(2) Ripeness
(3) Mootness
(4) Political question doctrine
Standing
A party must have a concrete interest in the outcome of the claim to have a claim.
Requirements:
(1) Injury - P must have suffered some injury or show a likelihood of imminent injury
(2) Causation - P must allege that D caused the injury
(3) Redressability - P must show that the Court can grant a proper remedy
No Generalized Grievances (STANDING)
P cannot sue solely as a U.S. Citizen or taxpayer to compel govt. action. (EXCEPT: certain govt. expenditures under Establishment Clause)
Congress cannot automatically confer standing, but can create new rights by statute that give rise to standing when violated.
Third-Party Standing
a P with standing may asser the rights of a third party where P has suffered injury AND EITHER:
(1) P’s injury adversely affects his relationship with third party (e.g. bar owner could assert underage males’ rights in challenging ban on beer sales to underage males)
(2) Injured party is unlikely or unable to assert his own rights (e.g. association could challenge law requiring disclosure of member identifies b/c members could not challenge directly w/o revealing their identities)
Organizational Standing
organizations always have standing if the injury is to the organization itself
organizations may sue on member’s behalf if:
(1) Injury to the members that give members individual standing
(2) Injury is related to the orgs purpose; and
(3) neither claim nor relief requires the participation of individual members
Ripeness
The claim must be ripe meaning the dispute needs to be matured sufficiently to warrant a decision
For example, P is not entitled to review a law or government. action before it has been effectuated.
Mootness
There must be a live controversy at all stages of review. Meaning if circumstances causing P’s harm cease to exist after P files suit, the case must be dismissed as moot.
Exceptions:
(1) Wrongs capable of repetition but evading review - where the wrong ceases but P can reasonable expect to be subject to same harm in the future
(2) Voluntary cessation by D that can be resumed
(3) Class action lawsuits - only one member need to have ongoing injury
Political Question Doctrine
Fed. Courts will not adjudicate certain constitutional issues that constitute political questions
(1) Const. commits to another branch, or
(2) Are inherently incapable of judicial resolution or enforcement
Non-justiciable examples: foreign policy, impeachment/removal proceedings
Justiciable examples: production of presidential papers, validity of a fed. statute
Supreme Court Original Jurisdiction
Article III gives SCOTUS original jx over suits between states and cases involving foreign ambassadors and ministers.
Congress cannot expand Court’s original jx.
Methods of SCOTUS review
Discretionary Review - most cases get to SCOTUS by writ of certiorari; the Court then decides whether to review
Mandatory Review - SCOTUS must take appeals from three-judge discount court panels regarding injunctive relief (bypasses appeal)
Final Judgment Requirement
SCOTUS only hears cases on review if there has been a final judgment in a lower fed. court or a state’s highest court.
Congress may limit Court’s appellate jx to certain cases under Art. III.
SCOTUS and State Court Decisions
SCOTUS cannot review a state court decision that rested on an independent, adequate state law ground.
i.e. if the state decision is based on both fed/state law, SCOTUS will not grant review unless the decision cannot stand on the state grounds alone.
11th Amendment - Sovereign Immunity
Fed. Courts. cannot hear claims from a private party or foreign govt. against a state govt.
Sov immunity bars suits against states in state court.
Exceptions to Sovereign Immunity
Suits against state govt. are allowed in fed. court where:
(1) The state waives of consents;
(2) The suit involves the enforcement of laws under Section 5 of the 14th and Congress has removed immunity
(3) The fed. govt. brings the suit, or
(4) Bankruptcy proceedings
Suits against State Officers
can be brought in fed. court. if involves either:
(1) Injunctive relief claim for violation of the Const. or Fed. Law, or
(2) Claim for money damages to be paid by the state officer personally
Legislative Powers
Article I.
(1) Taxing and Spending
(2) Regulating Commerce
(3) Establishing uniform naturalization rules and bankruptcy laws
(4) Raising and supporting military
Speech or Debate Clause
members of Congress have criminal and civil immunity for “legislative acts” including activities and documents essential to duties
Necessary & Proper Clause
enables Congress to take any action not constitutionally prohibited to carry out its express powers.
Conferring implied powers but must be rooted in conjunction with another federal power.
Taxing & Spending Power
Congress max tax and spend in any way deemed necessary for the “general welfare” (broad).
The taxes must reasonably relate to revenue production
Regulations and Regulatory Spending
Congress can tax to achieve a regulatory effect if:
(1) The tax’s dominant intent is to raise revenue; and
(2) There is some reasonable relationship between the tax and the regulation
Congress can also create a regulatory effect by placing conditions on its spending as long as it’s not overly coercive.
Congress’ Police Power
Congress has no general police power.
EXCEPT, concerning:
(1) Military
(2) Indian Reservations
(3) Federal Land
(4) D.C.
Power to Regulate Commerce
Commerce Clause - Authority to regulate interstate commerce.
Activity to be regulated must be economic.
Congress may regulate channels, instrumentalities, or economic activities that substantially affect interstate commerce. (BROAD).
Intrastate Commerce Regulation Power
Economic Activities - if there is a rational basis to conclude that the activity, in aggregate, substantially affects interstate commerce
Non-Economic Activities - only if it has a direct, substantial economic effect on interstate commerce (harder burden to satisfy relative)
Dormant Commerce Clause (brief)
limits state laws burdening interstate commerce (i.e. interfering with Congress’s Commerce power)
10th Amendment
All powers not granted to the federal government or prohibited from the states are reserved for the states.
Limits Congress’s ability to regulate and/or tax states alone (anti-commandeering principle) except for activities that violate civil rights.
Dual Application - regulation applying to both public and private sector are usually valid (e.g. fed. minimum wage laws are applicable to state govt as well as private sector)
Conditional Grants
Congress can induce (but not compel) state regulatory or legislative action through the use of conditional grants
e.g. fed. highway funds conditioned on maintaining a minimum drinking age of 21.
The condition must be:
(1) Expressly stated
(2) Related to the purpose of the law at issue; and
(3) cannot be unduly coercive.
Congressional Delegation of Power
Broad authority to delegate legislative powers to executive officers and administrative agencies (note: NOT executive or judicial powers to itself)
Administrative Agencies established by statute can create rules that have status of law (subject to intelligible principles to define scope)
Major Questions Doctrine
When an agency adopts regulations with extraordinary economic and political significance, needs clear congressional authorization
Legislative Veto
Congress cannot veto a decision by an agency acting under a delegated power
(Remedy: overturn by enacting a superseding law).
Line-item Veto
President cannot veto part of a bill; would be an impermissible delegation of power to the President (presentment power must be exercised in its entirety)
Appointment Powers
President - ambassadors, fed. judges, and other high-level officers with advice and consent of Senate
Congress - cannot give itself appointment powders, but can vest the power to appoint inferior officers in President, courts, Heads of Agencies, etc.
Inferior Officers
Usually those working under presidentially-appointed officers (i.e. can be fired by appointed officer)
Removal Powers
President - can remove at will, high-level, purely executive officers and some heads of independent agencies (if sole director & exercises executive power)
Congress - can only remove executive officers through impeachment power. However, can statutorily limit President’s power to remove all other executive appointees (i.e. require good cause).
Impeachment
House of Representatives can impeach the President, VP, fed. judges, and fed. officers for treason, bribery, or high crimes and misdemeanors by majority vote.
Upon impeachment there will be a trial in the Senate requiring 2/3 vote for removal.
Executive Privilege
protects against disclosure of presidential papers and conversations
An important govt. interest in criminal cases can override the privilege (e.g. Watergate - presidential documents and phone logs were disclosed for evidentiary purposes)
Presidential Immunity
President has absolute immunity from civil suits arising from official actions taken while in office (not prior)
Presidential Pardon Power
The President has the power to pardon those accused or convicted of fed. crimes (not state crimes), to commute sentences.
EXCEPT: The President cannot pardon someone for convictions leading to impeachment.
This power cannot be limited by Congress.
Treaties
Article II power granted to the President to make treaties, appoint ambassadors, and act as the Commander in Chief of the Military.
The president negotiates all treaties that become effective upon ratification by 2/3 of the Senate.
Congress has right to declare war but President has authority to represent U.S.
Treaty Conflicts
State Law - Treaty prevails
Federal Law - most recent prevails
Constitution - Const. prevails
Executive Agreements
President agreement w/ Foreign Head of State. Only prevails over conflicting state law.
No congressional approval is required, and it can be used for any purpose.
Express Preemption
Under the Supremacy Clause fed. law trump conflicting state and local laws.
Express - if a fed. law provides that it is the exclusive authority in a given area, it preempts state and local law (narrowly construed)
Implied Preemption
if a fed. law is silent on preemption; it implicitly preempts state law in three situations:
(1) Mutual exclusivity - complying with both is impossible (state can set stricter if compliance with both is possible)
(2) State law impedes a fed. objective
(3) Congress evidences a clear intent to legislate exclusively and/or preempt state law (immigration and bankruptcy)
Dormant Commerce Clause Test
Congress has broad commerce power; where Congress has not acted, state and local laws may regulate local aspects of interstate commerce if the regulation is neither discriminatory nor unduly burdensome/
A state / local law regulating interstate commerce IF:
(1) Discriminates against out-of-state competition,
(2) Unduly burdens interstate commerce, or
(3) Regulates wholly out-of-state activity
Examples:
(1) Regulations protecting local business or requiring local operations
(2) Regulations limiting access to in-state products
Dormant Commerce Clause Exception
A state law burdening interstate commerce is valid if either:
(1) It is necessary to an important state interest (i.e. furthers an important, non-economic state interest and no reasonable alternatives exist)
(2) The state is a market participant (can favor its own citizens when the state is the one buying/selling, hiring, giving subsidies, etc)
(3) In the performance of Traditional Govt Function
(4) Congress Unmistakenly Approves
Article IV Privileges & Immunities Clause
States may not discriminate against non-state residents. State law is intentionally protectionist and concerns rights relating to important commercial activities
Note: only protects CITIZENS.
Test: Discriminatory state law will be invalid if it:
(1) Relates to civil liberties or commercial activities; and
(2) Is not necessary to achieve an important govt. interest
Examples:
Valid: law requiring higher fees for non-state residents at public golf courses, hunting licenses, etc
Invalid: income tax on non-residents only; limiting bar admission to state residents, different fees for commercial licenses, etc.
State Taxation of Interstate Commerce
State taxes must have a substantial connection to the state and may not tax in a way that discriminates against interstate commerce (i.e. taxing an instate businesses differently than out of state to help instate)
Analysis: Does the tax discriminate against interstate commerce?
Yes? - invalid; violates Dormant Commerce Clause
No? - does the burden placed on interstate commerce outweigh its benefits to the state? Three Requirements:
(1) Substantial Nexus - tax must have a substantial nexus to the taxing state (i.e. item taxed is based on a significant in-state activity)
(2) Fair apportionment - tax must be fairly apportioned (i.e. state can only tax the portion of the activity connected to the state)
(3) Fair relationship - tax must be fairly related to services or benefits provided by the state (i.e. tax must be fairly related to some govt. service or benefit)
Intergovernmental Immunity
States may not directly tax or regulate fed. govt. property or activities without the consent of Congress.
EXCEPTION: indirect, non-discriminatory taxes are valid if they do not reasonably burden fed. govt (e.g. state income tax on fed. employee working in the state is OK)
Full Faith and Credit Clause
Certain state court judgments must be recognized and enforced in other states as a matter of right. (e.g. a party who loses a case in NY generally can’t relitigate in NJ)
Three Requirements for full faith and credit to apply:
(1) Court that rendered the judgment had jx over the parties and subject matter
(2) Judgment was on the merits
(3) Judgment was final
Government Action Requirement
Const. applies only to govt. action (private conduct does not have to comply w/ const.)
Exceptions where Const. will apply to private conduct:
(1) Exclusive public function - private entity performs a task traditionally performed by govt. (narrow - arises only if private entity exclusively operates a govt function e.g. prisons)
(2) Significant State Involvement (entanglement) - govt. authorizes or facilitates private conduct. State affirmatively approves or validates the conduct (permitting alone insufficient)
Examples of state action - court enforces a racially restrictive covenant, state provides books to private schools that racially discriminate
Examples of no state action - govt grants liquor license to racially discriminatory private club; private school receiving govt. funds fire a teacher over speech.
Bill of Rights Applied to Federal and State Govts
BoR only applies directly to the fed. govt.
However, certain provisions are applied to the state and local govt. through the incorporation doctrine (14th Amendment due process clause)
Exceptions:
- 3rd Amendment right not to have soldiers quarter in homes
- 5th Amendment right to grand jury indictment in criminal cases
- 7th Amendment right to jury trial in civil cases
Reverse Incorporation
14th Amendment EPC does not apply directly to the fed. govt. but has been held to apply to the fed. through the 5th amendment due process clause
13th Amendment
prohibition on slavery and involuntary servitude
Congress can adopt legislation prohibiting almost any private racial discrimination that constitutes a badge or incident of slavery. (e..g Congress can pass a law prohibiting employers from discriminating in hiring on basis of race)
Applies to private action
14th Amendment
prohibits states from depriving any person of life, liberty, or property without due process and equal protection
Congress can adopt legislation to enforce rights and guarantees, but may not expand existing, or create new constitutional rights
Laws passed under the 14th must:
(1) Point to a history and pattern of state violation of rights; and
(2) Be proportional and congruent to solving the violation
15th Amendment
prohibits state and fed. govts. from denying any citizen the right to vote on the basis of race or color
(1) can be limited by other Const. principles
(2) Much less likely to appear on the bar exam
Rational Basis Scrutiny
A law will be upheld if it is rationally related to a legitimate govt. purpose
- any conceivable legitimate purpose suffices, regardless of the actual purpose of the law
- a law will almost always be upheld under rational basis review unless it is completely irrational or arbitrary
Burden of Proof: Challenger bears the burden of proof
Intermediate Scrutiny
a law will be upheld if it is substantially related to an important govt. purpose
- govt. goal must be important; courts look at the actual reason the law was enacted
Burden of proof: Govt. bears the burden of proof.
Strict Scrutiny
A law will be upheld if it is necessary to achieve a compelling govt. interest
- govt. must show that there are no less restrictive or burdensome means of achieving its goal (NARROWLY TAILORED)
- Courts look at the actual reason the law was enacted
Burden of proof - govt. bears the burden of proof
Procedural Due Process
a fair process (e.g. notice, hearings) is required for govt. to take or deprive a person (i.e. individual) of life, liberty or property.
Examples
(1) Terminating welfare/social security benefits
(2) Separating child from parents
(3) Punitive Damages Awards
(4) Enemy combatant status for citizens in foreign countries
Procedural Due Process Analysis (Step 1)
Has there been a deprivation of life, liberty, or property?
Liberty - loss of significant freedom of action, or freedom provided by Const. or statute
Property - a legitimate claim or entitlement to a benefit under law which goes unfulfilled
Procedural Due Process Analysis (Step 2)
What procedures are required?
Determined by balance:
(1) importance of the individual interest involved, AND
(2) Value of procedural safeguards to that interest AGAINST
(3) Govt. Interest (i.e. fiscal or administrative efficiency)
Note: usually fair procedures, an unbiased decision-maker, and notice of the govt’s action will be required.
Substantive Due Process
Involves the determination of whether the govt. has adequate reason for depriving life, liberty or property encompassing both fundamental and non-fundamental rights
Non-Fundamental Rights = Rational Basis
Fundamental Rights = Strict Scrutiny
Substantive Due Process v. Equal Protection Clause
Similarities - under both SDP and EP, a court reviews the substance of the law, not procedures
Differences
(1) SDP - usually involves laws affecting rights of all person to engage in some conduct or activity
(2) EP - usually involves laws treating certain people or classes of people differently than others, often based on some trait
Economic Rights
Rational Basis Test
(1) Const. provides only minimal protection for economic liberties (i.e. laws affecting or amounting to taking of ones economic rights)
(2) Rational basis applies unless the infringement falls under the Contract Clause or Takings Clause
Contract Clause
states cannot impair existing contractual duties
- Applies only to state/local interference with existing contractual obligations including govt. obligations
- Levels of Scrutiny (differ depending on private / public contracts)
(1) Private Contracts - Intermediate Scrutiny
- if a law substantially impairs a party’s rights under an existing contract, it violates the Contracts Clause unless the law:
- serves an important, legitimate public interest; and
-is reasonable and narrowly tailored in promoting that interest
(2) Govt. Contracts - Strict Scrutiny
- local laws substantially impairing or interfering with existing govt. contracts must be reasonable and necessary to serve an important public purpose
Ex Post Facto Clause
The Const. prohibits fed. govts from passing retroactive laws
Test for Ex Post Facto Laws if either:
(1) Criminally punishes conduct that was lawful when done
(2) Increases punishment for a crime after it has been committed, or
(3) Reduces the burden required to convict a person for a crime after it has been committed
Does not apply to civil liberty, where retroactive legislation must only meet rational basis
Bill of Attainder
The Const. Prohibits state and fed. govts. from passing retroactive laws
Bills of Attainder are legislative acts that punish specific individuals or group members without a judicial trial
e.g. an order to imprison a person without judicial process
Takings Clause & Eminent Domain
The 5th Amendment prohibits govt. from taking private property without providing just compensation to the owner and/or occupant
Govt may take private property for public use; taking can be possessory or regulatory
Applies to govt. action that significantly damages property or its use-
Taking Clause Analysis (PART 1) - Has there been a Taking?
Two types of Takings:
(1) Possessory Taking - govt takes or occupies physical property
(2) Regulatory Taking - govt action that adversely affects property value; whether taking occurs depends on extent of economic interference
- a denial of all economic value = taking
- a denial of nearly all value = depends on social goals promoted v. diminution in value to owner v. interference with investment expectations
Taking Clause Analysis (PART 2) - Is the taking for public use?
Taking is for public use if govt. has a reasonable belief the taking will benefit the public (low standard)
- use will be viewed as benefitting the public as long as it is rationally related to some legitimate public purpose
Taking Clause Analysis (PART 3) - Is just compensation paid?
Measured in terms of loss to the owner (i.e. fair market value of the property at the time of taking)
Fundamental Rights
5th Amendment Substantive Due Process and 14th Amendment Equal Protection
SDP - applies if a right is denied to all
EP - applies if a right is denied to some but not others
Govt. acts that do not implicate fundamental right receive rational basis review
Right to Privacy
an inferred right that encompasses several rights with varying levels of scrutiny:
(1) Strict Scrutiny:
- Right to Marry
- Right to Procreate
- Rights concerning Family/children (custody, keep together, control upbringing)
- Right to Contraceptives
(2) Separate / unknown levels of review:
- Right to engage in private, consensual homosexual activity (unknown)
- Right to refuse medical treatment (unknown)
Abortion
No longer recognized as a SDP right under the right to privacy (Dobbs).
State democracies decide.
Equal Protection Application
14th Amendment EPC applies directly to state/local govt.
EP applies to fed govt. by incorporation through the 5th Amendment DP.
The same analysis and levels of scrutiny apply for EP analysis whether it applies through 5th or 14th.
Equal Protection Analysis
(1) Is there a discriminatory classification?
- to receive heightened scrutiny a discriminatory classification must be proved
(2) What level of scrutiny applies given the classification?
- Suspect Classification = SS
- Quais-Suspect = IS
- All other = RB
(3) Does the classification satisfy the appropriate level of scrutiny?
Proving Discriminatory Classification
3 ways
(1) Law discriminates on its face (by its terms, the law treats people differently)
(2) Facially-neutral law applied in a discriminatory manner (does not create by its terms, but does so applied)
(3) Discriminatory motive/purpose behind law or application
- P must show: (1) Disparate impact; and (2) Discriminatory Purpose (must have both)
Challenger bears the burden
Equal Protection Rational Basis Standard
Alienage, but only if the classification (1) relates to self govt. and the democratic process, or (2) is a congressional action concerning immigration
All other classifications. not qualifying for SS or IS (e.g. age, disability, wealth, economics)
Equal Protection Intermediate Scrutiny Standard
Quasi-Suspect Classification
Gender
Non-Martial Children
Equal Protection Strict Scrutiny Standard
Suspect Classifications
(1) Race
(2) National Origin
(3) Alienage**
(4) Right to Travel
(5) Right to Vote
** see alienage card
Race Classifications Benefitting Minorities
Affirmative Action
Numerical Set Asides (i.e. Quotas) - to be valid, requires clear proof of persistent and readily identifiable discrimination, which cannot be based on general past wrongs
- unlikely to be upheld under SS
Public Education & Higher Education - diversity is not a compelling interest sufficient to overcome strict scrutiny at any level of education
- most programs that directly consider race will. not be upheld
Alienage Classifications
Citizenship Status is subject to SS. (note that illegal immigrants are not a suspect class)
EXCEPT - RB applies if:
(1) Related to self-govt. and the democratic process
- job applicants are denied govt employment based on citizenship status
- areas where alienage classifications have been upheld under RB review:
(a) voting
(b) serve on jury
(c) work as police
(d) work as teacher
(e) work as probation officer
(2) A congressional law regulating immigration
- Congress has plenary powers to regulate immigration
Gender Classification
IS + “exceedingly persuasive jusifiticaion” (“heightened intermediate scrutiny i.e. substantially related to important govt. interest)
Discriminate against men = generally invalid sans statutory rape laws and the all-male draft.
Classifications benefitting women:
(1) If based on a stereotype its impermissible
(2) If designed to remedy past discrimination or differences in opportunity will likely be upheld
Non-marital children (legitimacy classifications)
Usually arises w/ intestacy statutes
IS applies if the law grants benefits to all marital children but denies benefits to some non-marital children
Laws that deny benefits to all non-marital and grant to all marital are unconstitutional on their face.
Right to Travel
Can be analyzed under SDP too.
Strict Scrutiny. Usually arises when laws impede movement between states.
Durational residency requirements
(1) Invalid - 1 yr residency to receive welfare; 1 yr to receive subsidized medical care; 1 yr to vote;
(2) Valid - 30 day residency to vote, 1 yr to get a divorce
Right to Vote
Strict Scrutiny.
Arises with laws that deny some citizens a right to vote.
“One person, One vote” requirement must be met for all state/local elections.
Districts must be similar in population.
At large, elections are const.
1st Amendment
Freedom of expression including speech, of the press, of assembly, and of association.
1st Amendment Protected Speech
level of scrutiny depends on whether the speech restriction is content-based.
A content-based restriction receives strict scrutiny (where govt. seeks to restrict speech b/c of its subject matter or viewpoint)
A content-neutral restriction receives intermediate scrutiny (where the restriction applies to all expression regardless of the content or viewpoint)
1st Amendment Unprotected or Lesser-Protected Speech
Some categories of speech receive lesser or no 1st Amendment protection.
e.g. Obscenity, Commercial Speech; analyze lesser-protected speech restrictions under the appropriate test given
1st Amendment Speech on Govt Property
public forum doctrine - special rules apply depending on whether the govt. property is a public forum, designated public forum or non-public forum
Freedom of the Press
press has a right to public matters of public concern; any restriction or punishment must be narrowly tailored to further a state interest of the highest order (SS)
Speech in Public Forums
The govt. is constitutionally required to make available for speech. Any regulations must be content neutral.
Test:
To be upheld, the restriction must be:
(1) Content Neutral (time, place, manner)
(2) Be narrowly tailored to serve an important govt. purpose
(3) Leave open adequate, alternative channels of communication (does not need to be the least restrictive)
Permit fees that vary are content-based.
Speech in Designated Public Forums
govt. properties that govt. opens for speech on limited basis (practice or policy)
e.g. public school facilities open after school for use by social/civic groups
Test - Same rules as public forums but only when open for speech.
Speech in Limited Public Forums
Govt. properties opened only for specific speech activity
e.g. School gym used for a debate
Test - Can reserve for intended use. Same rules as non-public forums.
e.g. must be viewpoint neutral and reasonably related to legitimate govt. purpose
Speech in Non-Public forums
govt. Property can be closed to speech (e.g. military bases, airports)
Test - govt. can regulate speech if the regulation is:
(1) reasonably related to some legitimate purpose; and
(2) viewpoint neutral
Content-neutrality is not required - can allow on some subjects but not others yet if it opens speech to a subject it cannot limit the speech to only one view.
Prior Restraints
involve a court order or other to ban on speech or publication before it occurs
SS - Often arises as court order/injunction preventing speech.
Requirements:
(1) Significant Govt. Interest (national security - must be more than theoretical)
(2) Procedural Safeguards (ensures restraint is narrow, reasonable, and definite; and provides for prompt, final determination)
Preliminary Injunction and Speech
to prevent pretrial discussion in order to preserve a fair trial; only valid if its the only way of preserving a fair trial
P must comply with valid injunction until it is vacated or overturned - cannot be challenged.
Permits / Licensing and Speech
govt. may require licenses or permits for speech only if it has a reasonable justification for doing so
(1) Requirements for permit/license must be similar to a “rubber stamp” process and must provide review for denied permits/licenses
(2) P can challenge a denial on constitutional grounds, even if violated
Vagueness
A law is vague and will be overturned if a reasonable person cannot tell whether speech is prohibited or permitted
e.g. law prohibiting people from assembling and conducting themselves “in a manner annoying to passerby” is unconstitutionally vague b/c a reasonable person must guess as to what behavior is punishable
Overbreadth
a law is overbroad if it regulates substantially more speech than the Const. allows to be regulated
Restricts unprotected speech but in doing so also restricts protected speech (e.g. law prohibiting all live entertainment may validly restrict obscenity but also invalidly prohibits protected speech in concerts)
Overbroad law cannot be enforced against anyone even those whose speech is not protected
Note: “fighting words” statutes are almost always unconstitutionally vague and overbroad
Symbolic Speech
expressive or communicative conduct intended to convey a message
Test: govt can regulate symbolic speech if:
(1) Furthers an important govt. interest
(2) the govt interest is unrelated to suppression of the message; and
(3) the impact on speech is no greater than necessary to further the important govt interest
If the restriction is aimed at speech more than conduct likely unconst.
Examples: Burning US Flag - protected symbolic speech; Public Nudity - not protected.
Government Speech & Compelled Speech
Govt. Speech cannot be challenged as violating Free Speech Clause.
Freedom to speak includes freedom not to speak (i.e. cannot require you salute the flag)
Govt may use tax revenue to express a govt. message.
Public accommodation laws sweep too broadly when they compel speech.
Incitement
Incitement speech can be punished if:
(1) there is substantial likelihood the speech will bring about imminent illegal activity; and
(2) the speech is aimed at causing imminent illegality
“Clear and Present Danger Test”
Must be narrowly tailored.
Fighting Words
Govt. may punish speech if it is likely to cause an immediate violent response against the speaker
statutes tend to be overbroad, vague or deemed content-based and fall under SS.
True Threats
a threat communicated with the intent to place the recipient in fear of bodily harm is not protected speech
Obscenity
Expression is obscene if:
(1) It appeals to the prurient interests (sexually stimulating)
- avg person standard
(2) It is patently offensive in its sexual portrayal
- must offend community standards regarding the portrayal
- any law prohibiting obscene material must specify what is deemed patently offensive
(3) Taken as a whole, the material lacks serious literary, artistic, political, or scientific value
- national standard
Zoning and Obscenity
Govt. may use zoning to regulate lewd speech of conduct if regulation is designed to combat secondary effects
e.g. ordinance limiting strip clubs to a small city section can be valid if designed to combat a drop in property values/rise in crime
Pornography and Obscenity
private possession is not punishable unless it involves CP
CP = actual children are depicted (i.e. adults portraying children is ok)
Profanity and Obscenity
generally protected
except:
(1) Speech is aired over broadcast media (not cable), or
(2) occurs in public schools
Unprotected Commercial Speech
Govt. may regulate some commercial speech subject to a test similar to intermediate scrutiny
Test: not protected if either:
(1) false, misleading, or deceptive; or
(2) illegal or concerns illegal activity
Protected Commercial Speech
Speech concerning lawful activity and is not misleading
Test for regulating protected commercial speech:
(1) there is substantial govt. interest in regulating the speech
(2) the regulation directly advances the govt interest; and
(3) the regulation is not more extensive than necessary to serve the govt interest
Narrowly tailored but not necessarily to the least restrictive
Defamation
When defamation involves public officials or matters of public concern
- Public Figure - pervasive fame or notoriety or voluntarily assumes central role
- Public official - public office holder
- Matter of Public Concern - community interest or concern
If the defamation includes a public figure, official, concern P must prove:
(1) Falsity
(2) Fault
- Public Figure / Official = Actual Malice Standard (reckless disregard or actual)
- Private Figure = negligence of veracity
Public Figures can collect compensatory and possibly punitive
Private Figures can collect for actual injury and must prove actual malice for compensatory or punitive.
Freedom of Religion
Religion is protected under the Free Exercise Clause and the Establishment Clause both under the 1st
Free Exercise Clause
prohibits govt. from punishing someone solely on the basis of that person’s religious beliefs or conduct
Govt. action must be necessary to achieve a compelling interest, but Court has never upheld religious punishment under this standard
Limitation - only applies if the purpose of a govt. act is to limit or interfere with religious practice or beliefs
Acts of general applicability are valid
Establishment Clause
prohibits govt. acts that estbalish/sponsor/coerce religion or give preference to one religion over another
- Govt Generally must remain neutral toward religion and may not coerce individuals to exercise (or refrain from exercising) religion
- Generally, govt. powers may not be delegated to or shared with religious institutions
- Govt. action that is not neutral may still be permissible if support by history and the Founding Fathers’ intent
Freedom of Association
protects the right to participate in a gathering, club, or other organization to pursue 1st Amendment goals (e.g. political advocacy) - strict scrutiny applies usually
analysis
govt interference with associate is only valid if:
(1) govt act is in pursuance of a compelling govt. interest; and
(2) that interest can’t be achieved with any less restrictive means
Freedom of Association Restrictions on Group Discrimination
a govt law or regulation may be invalid if it interferes with a groups expressive activities
Usually involves NAACP, KKK types groups, etc
e.g. KKK is not required to accept non-white members b/c this exclusion is integral to is organizational message
Laws Criminalizing Membership
govt. must prove that D
(1) Actively affiliated with a group involved with illegal activities;
(2) Had knowledge of the groups illegal activities; and
(3) Acted with the specific intent of furthering those activities
Group Membership Disclosure Requiremensts
SS if the law has a chilling effect.
If the law requiring disclosure of group membership has a chilling effect on association it must meet strict scrutiny.
