Constitutional Law Flashcards
Federal Judicial Power: Requirement for Case and Controversy
Art. III defines powers of courts
There is a requirement cases and controversies
Federal Judicial Power: Standing - Definition & Requirements
Standing is the issue of whether the plaintiff is the property party to bring a matter to the court for adjudication
Four requirements:
(1) Injury
(2) Causation and redressability
(3) No third party standing
(4) No generalized standing
Federal Judicial Power: Standing - Injury
Injury: P must allege and prove that he (a) has been injured or (b) imminently will be injured.
(i) Plaintiffs only may assert injuries that they personally have suffered
(ii) Plaintiffs seeking injunctive relief or declaratory relief must show likelihood of future harm
Federal Judicial Power: Standing - Causation and Redressability
Plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury
Federal Judicial Power: Standing - Third Party Standing
General rule: no third party standing – plaintiff cannot assert claims of others, of third parties, who are not before the court
Exceptions:
(1) Third party standing is allowed is there is a close relationship between the plaintiff and the third party (e.g., doctor-patient)
(2) Third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights
(3) An organization may sure for its members, if (a) the members would have standing to sue, (b) the interests are germane to the organization’s purpose, and (c) neither the claim nor relief requires participation of individual members
Federal Judicial Power: Standing - Generalized Grievances
No generalized grievances: Plaintiff must not be suing solely “as a citizen” or “as a taxpayer” interested in having the government follow the law
Exception: taxpayers have standing to challenge government expenditures pursuant to federal (or state and local) statutes as violating the Establishment Clause
Federal Judicial Power: Ripeness
Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation
Factors:
(a) Hardship that plaintiff will suffer without pre-enforcement review
(b) Fitness of the issues and the record for judicial review
Federal Judicial Power: Mootness
If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed as moot
Exceptions:
(1) Wrong capable of repetition but evading review (same plaintiff must be able to suffer the harm again)
(2) Voluntary cessation: if defendant voluntarily halts the offending conduct, but is free to resume it at any time, the case will not be dismissed as moot
(3) Class action suits will not be dismissed as moot, so long as some member of the class still has the injury
Federal Judicial Power: Political Question Doctrine
Political question doctrine refers to constitutional violations that the federal courts will not adjudicate
Following four are dismissed as non-justiciable political question:
(1) The republican form of government clause (e.g., initiative process challenged under this clause)
(2) Challenges to President’s conduct of foreign policy
(3) Challenges to impeachment and removal process
(4) Challenges to partisan gerrymandering
Federal Judicial Power: Supreme Court Review
(1) Virtually all cases come to the Supreme Court by writ of certiorari
(a) All cases from state courts
(b) All cases from US courts of appeals
(2) Appeals exist for decisions of three-judge federal district courts (statute will require; SCOTUS obligated to take)
(3) Supreme court has original and exclusive jurisdiction for suits between state governments
(4) Final judgment: generally, S. Ct. may hear cases only after there has been a final judgment of the highest state court, a US Court of Appeals, or a three-judge federal district court
(5) For review of a state court decision, there must not be an independent and adequate state law ground of decision. If a state court decision rests on two grounds, one state and one federal, if S. Ct.’s reversal of the federal law ground will not change the result in the case, the S. Ct. cannot hear it.
Federal Judicial Power: Lower Federal Court Review - Sovereign Immunity
Federal courts (and state courts) cannot hear suits against state governments
(1) Principle of sovereign immunity: (a) 11th A bars suits against states in federal court; (b) Sovereign immunity bars suits against states in state courts or federal agencies
(2) Exceptions to Sovereign Immunity:
(a) Waiver is permitted: waiver must be explicit (no implied or constructive waiver)
(b) Abrogation: States may be sued pursuant to federal laws adopted under Section 5 of the Fourteenth Amendment; Congress cannot authorize suits against states under other constitutional provisions
(c) Federal government may sue state governments
(d) Bankruptcy proceedings
(3) Suits against state officers are allowed
(a) State officers MAY be sued for injunctive relief
(b) State officers MAY be sued for money damages to be paid out of their own pockets
(c) State officers MAY NOT be sued if it is the state treasury that will be paying retroactive damages
(4) Abstention: federal courts may not enjoin pending state court proceedings
Federal Legislative Power: Congress’s Authority to Act
(1) Must be express or implied Congressional power – no general, federal police power, except: DC, military, Indian reservation, federal lands and territories
(2) Necessary and Proper Clause
(3) Taxing/Spending Power: Congress may tax and spend for the general welfare
(4) Commerce Power: with foreign nations, among states, with Indian nations
(a) Congress may regulate the CHANNELS of interstate commerce
(b) Congress may regulate the INSTRUMENTALITIES of interstate commerce and persons or things in interstate commerce
(c) Congress may regulate ECONOMIC activities that have a SUBSTANTIAL effect on interstate commerce (if non-economic activity, substantial effect cannot be based on cumulative impact)
(5) 10th Amendment: limit on Congressional powers – all powers not granted to US nor prohibited to the states are reserved to the states or the people
(a) Congress cannot compel state regulatory or legislative action (but, can induce state govt action by putting string on grants so long as they are expressly stated, related to the purpose of the spending program, and not unduly coercive)
(b) Congress may prohibit harmful commercial activity by state governments
(6) Congress’s power under section 5 of the 15th Amendment: Congress may not create new rights or expand the scope of rights; Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be “proportionate” and “congruent” to remedying constitutional violations
Federal Legislative Power: Delegation of Powers
(1) No limit exists on Congress’s ability to delegate legislative power
(2) Legislative vetoes and line-item vetoes are unconstitutional – for Congress to act, there always must be bicameralism and presentment; President must sign or veto bill in its entirety
(3) Congress may not delegate executive power to itself or its officers
Federal Executive Power: Foreign Powers -Treaties
Treaties are agreements between the US and a foreign country that are negotiated by the President and are effective when ratified by the Senate
(a) Treaties prevail over conflicting state laws
(b) If a treaty conflicts with a federal statute, the one adopted last in time (i.e. most recently) controls
(c) If a treaty conflicts with the US Constitution, it is invalid
Federal Executive Power: Foreign Powers -Executive Agreements
An executive agreement is an agreement between the US and a foreign country that is effective when signed by the President and the head of the foreign nation (no senate approval required)
(a) Executive agreements can be used for any purpose
(b) Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the constitution
Federal Executive Power: Foreign Powers -Limits on Recognition Power
It is unconstitutional for Congress by statute to designate the capitol of a foreign country
Federal Executive Power: Foreign Powers -Commander-in-Chief
The President has has broad powers as Commander-in-Chief to Use American troops in foreign countries
Federal Executive Power: Domestic Powers - Appointment and Removal Power
(1) Appointment Power:
(a) President appoints ambassadors, federal judges, and officers of the US
(b) Congress may vest the appointment of inferior officers (not defined, but satisfied if can be fired by another officer) in the President, the heads of departments, or the lower federal courts
(c) Congress may not give itself or its officers the appointment power
(d) President may not make recess appointments during intrasession recesses that are less than 10 days
(2) Removal Power: Unless removal is limited by statute, the President may fire any executive branch office
(a) For Congress to limit removal, must be an office where independence from the President is desirable, AND (b) Congress cannot prohibit removal, it can only limit removal where there is good case
Federal Executive Power: Domestic Powers - Impeachment and Removal
Present, Vice President, federal judges, and officers of the US can be impeached and removed from office for treason, bribery, or for high crimes and misdemeanors
Impeachment does not remove a person from office
Impeachment by the House of Representatives requires a majority vote; conviction in the Senate requires 2/3 vote
Federal Executive Power: Domestic Powers - Presidential Immunity
President has absolute immunity to civil suits for money damages for actions while in office
President does not have immunity for actions that occurred prior to taking office
Federal Executive Power: Domestic Powers - Executive Privilege
President has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interests
Federal Executive Power: Domestic Powers - Pardon Power
President has the power to pardon those accused or convicted of federal crimes
Cannot pardon state conviction
Can only pardon criminal liability, not civil liability
Federalism: Preemption
The Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.
Express preemption: if federal law is exclusive in an area, state law is preempted
Implied preemption:
(a) If federal and state laws are mutually exclusive, federal law preempts state law
(b) If state law impedes the achievement of a federal objective, federal law preempts state law
(c) If Congress evidences a clear intent to preempt state law, federal law preempts state law
States may not tax or regulate federal government activity (inter-governmental immunity)
Federalism: Dormant Commerce Clause
Negative implications of commerce clause - state/local law is unconstitutional if it places and undue burden on interstate commerce (weigh burdens on interstate commerce and benefits)
If the law discriminates against OUT OF STATERS and burdens interstate commerce, it violates the dormant commerce clause UNLESS it is necessary to achieve an important government purpose and there is no less stringent alternative
Exceptions:
(a) Congressional approval
(b) Market participant: a state or local government may prefer its own citizens in receiving benefits from governmental programs or in dealing with government-owned business
Federalism: Privileges AND Immunities Clause of Art. IV
No state may deny citizens of ANOTHER state the privileges or immunities of its state
Corporations and aliens cannot use the privileges and immunities clause
If the law does NOT discriminate, Privileges and Immunities does NOT apply
If the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates the privileges and immunities clause of Art. IV, unless it is necessary to achieve an important government purpose
Federalism: Privileges OR Immunities Clause of 14th A
Basically means that citizens can travel freely within the US
Federalism: State Taxation of Interstate Commerce
States may not use their tax systems to help in-state businesses
A state may only tax activities if there is a substantial nexus to the state
State taxation of interstate businesses must be fairly appointed
Federalism: Full Faith and Credit
Courts in one state must give full faith and credit to judgments of courts in another state, so long as:
(1) The court that rendered the judgment had jurisdiction over the parties and the subject matter
(2) The judgment was on the merits and
(3) The judgment is final
Individual Liberties: Government Action Requirement & Application to Private Parties
Constitution only applies to government action, but Congress, by statute, may apply constitutional norms to private conduct
13th A CAN be used to prohibit private race discrimination (the one amendment directed at private individuals)
Commerce power can be used to apply constitutional norms to private conduct
Congress cannot use section 5 of the 14th Amendment to regulate private behavior
Individual Liberties: Government Action Requirement - Exceptions
There are situations where private conduct must comply with the Constitution
(1) Public function exception: Constitution applies if a private entity is performing a task traditionally, exclusively done by the government
(2) Entanglement exception: Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activities; examples:
(a) Courts cannot enforce racially restrictive covenants
(b) There is state action when the government leases premises to a restaurant that racially discriminates
(c) There is state action when a state provides books to schools that racially discriminate
(d) There is state when a private entity regulates interscholastic sports within a state
(e) There is NO state action when a a private school that is over 99% funded by the government fires a teacher because of her speech (government subsidy is insufficient; govt not encouraging the speech)
(f) There is NO state action when NCAA orders the suspension of a basketball coach at a state university (NCAA is a private institution)
(g) There is NO state action when a private club with a liquor license from the state racially discriminates
Individual Liberties: Application of Bill of Rights
Bill of Rights applies directly only to the federal government
It is applied to state and local governments through its incorporation into the due process clause of the 14th Amendment, except: (a) 3rd A right to not have a soldier quartered in a person’s home, (b) 5th A right to grand jury indictment in civil cases, (c) 7th A right to jury trial in civil cases, and (d) 8th A right against excessive fines
Individual Liberties: Levels of Scrutiny
(1) RATIONAL Basis Test: A law is upheld if it is RATIONALLY related to a LEGITIMATE government purpose
(a) Challenger has the burden of proof
(2) INTERMEDIATE Scrutiny Test: A law is upheld if it is SUBSTANTIALLY related to an IMPORTANT government interest
(a) Government has burden of proof
(b) Means must be narrowly tailored, but does not need to meet least restrictive test
(c) Court looks at government’s actual purpose
(3) STRICT Scrutiny: A law is upheld if it is NECESSARY to achieve a COMPELLING government interest
(a) Government has burden of proof
(b) Means must be proven necessary, i.e. no alternative, less restrictive means
(c) Court looks at government’s actual purpose
Individual Liberties: Procedural Due Process - Definitions
Definition: has the government provided adequate procedures when taking away life, liberty, or property – notice
If the government deprives a person of life, liberty, or property, government must provide procedural due process; adequate procedures are determined via balancing test
(1) Deprivation of liberty: occurs if there is a loss of a significant freedom provided by the Constitution or a statute
(a) Usually involves violation of Constitutional right
(b) Other examples: need notice and hearing before institutionalizing an adult (except in emergency), only need neutral fact-finder screening when parent institutionalizes kid, harm to reputation insufficient, prisoners rarely have liberty interests
(2) Deprivation of property: occurs if there is an entitlement and that entitlement is not fulfilled
(3) Government action:
(a) Negligence is not sufficient for deprivation of due process
(b) Generally, must be intentional government action or at least reckless action for liability
(c) In emergency situations, government liable under due process only for conduct that “shocks the conscience”
(d) Generally, government failure to protect people from privately inflicted harms does not deny due process
Individual Liberties: Procedural Due Process - Required Process
Test: Balance the following (courts have a lot of discretion)
(1) Importance of the interest to the individual
(2) The ability of additional procedures to increase the accuracy of fact-finding
(3) Government’s interests
Examples:
(a) Before welfare benefits are terminated, there must be notice and a hearing
(b) When Social Security disability benefits are terminated, there need only be a post- termination hearing
(c) Before a school can discipline a student, there must be notice of the charges and an opportunity to explain (but not for corporal punishment)
(d) Before a parent’s right to custody of a child can be permanently terminated, there must be notice and a hearing
(e) Punitive damage awards require instructions to the jury and judicial review to ensure reasonableness
(f) An American citizen detained as an enemy combatant must be accorded due process
(g) Except in exigent circumstances, prejudgment attachment or government seizure of assets require notice and a hearing
(h) A public employee who is subject to removal only for cause under statute, ordinance, or personnel document must be given notice of the charges, a pretermination opportunity to respond to those charges, and a subsequent evidentiary hearing regarding termination (with reinstatement if employee prevails)
Individual Liberties: Substantive Due Process
Definition: whether government has adequate reason for taking life, liberty (economic or privacy), or property
Individual Liberties: Equal Protection
Definition: whether government’s different treatment of people is adequately justified
Individual Liberties: Economic Liberties
Rational basis test is used for laws affecting economic rights (Constitution provides minimal protection for economic liberties)
Covers Takings and Contracts Clauses
Individual Liberties: Economic Liberties - Takings Clause
The government may take private property for public use if it provides just compensation
Test:
(1) Is there a taking?
(a) Possessory taking: government confiscation or physical occupation of property
(b) Regulatory taking: government regulation is a taking if it leaves no reasonable economically viable use of the property
(2) Is the taking for public use? (Public use so long as government acts out of reasonable belief taking will benefit the public)
(a) If not for public use, must return
(b) If for public use, just compensation must be paid
(3) Is just compensation paid? Measure in terms or loss to owner in reasonable market terms
Notes:
(a) Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise, it is a taking
(b) Property owner may being a takings challenge to regulations that existed at the time the property was acquired
(c) Temporarily denying an owner use of a property is not a taking so long as government’s action is reasonable
Individual Liberties: Economic Liberties - Contracts Clause
Contracts Clause: No state shall impair the obligations of contracts
(a) Applies only to state or local interference with existing contracts
(b) State or local interference with PRIVATE contracts must meet INTERMEDIATE scrutiny
- Does the legislation substantially impair a party’s rights under an existing contract?
- If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest
(c) State or local interference with GOVERNMENT contracts must meed STRICT scrutiny
(d) Ex post facto clause does not apply in civil cases. (An ex post facto law is a law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed.) Retroactive civil liability only need meet a rational basis test.
Individual Liberties: Privacy
Privacy is a fundamental right protected under substantive due process
STRICT scrutiny applies (except for abortion)
(1) Right to marry: laws prohibiting same-sex marriage violate the right to marry
(2) Right to procreate
(3) Right to custody of one’s child (need to satisfy strict scrutiny to terminate; but, state may create unrebuttable presumption that married spouse is father)
(4) Right to keep family together (must be related, includes extended family)
(5) Right to control upbringing of one’s child: government can only interfere with upbringing if satisfies strict scrutiny
(6) Right to purchase and use contraceptives
(7) Right to abortion: fundamental right to choose to have an abortion
(8) Right to privacy protects a right to engage in private consensual homosexual activity (level of scrutiny not stated)
(9) Right to refuse medical treatment:
(a) Competent adults have the right to refuse medical treatment, even life-saving medical treatment
(b) A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended
(c) A state may prevent family members from terminating treatment for another
Individual Liberties: Privacy - Abortion
Right to abortion: fundamental right to choose to have an abortion
(a) Prior to viability: undue burden test - states may not prohibit abortions, but may regulate abortions so long as don’t create undue burden on ability to obtain
- Examples: 24 hr waiting period is not undue, requirement that performed by licensed physician is not undue, prohibition of partial birth abortions is not undue
(b) After viability, states may prohibit abortions unless necessary to protect the woman’s health or life
(c) Government has not duty to subsidize abortions or provide abortions in public hospitals
(d) Spousal consent and notification laws are unconstitutional
(e) Parental consent and notice laws for unmarried children: A state may require parental notice and/or consent for an unmarried minor’s abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor’s best interests or that she is mature enough to decide for herself
Individual Liberties: 2nd Amendment Right to Bear Arms
“A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed”
DC v. Heller: protects right to gun in home for safety, but does not establish an absolute right – government can regulate who gets guns, the types of guns, and where guns aren’t allowed
Individual Liberties: Right to Travel (14th A)
Laws that prevent people from moving into a state must meet strict scrutiny
Durational residency requirements must meet strict scrutiny
Restrictions on foreign travel need meet only the rational basis test (not a fundamental right)
Individual Liberties: Right to Vote
Fundamental right
15th A: shall not deny the right to vote on the basis of race
(1) Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of the electoral process to prevent fraud need be on balance desirable (e.g., property requirements almost always unconstitutional but can require things like ID)
(2) One person one vote must be met for all state and local elections
(3) At-large elections (all voters vote for all members) are constitutional unless there is proof of a discriminatory purpose
(4) The use of race in drawing election lines must meet strict scrutiny
(5) Counting uncounted votes without standards in a presidential election violates equal protection (Bush v. Gore)
Individual Liberties: Education
There is no fundamental right to education
Individual Liberties: Rights & Levels of Review
(1) STRICT SCRUTINY
(a) Right to marry
(b) Right to procreate
(c) Right to custody of children
(d) Right to keep family together
(e) Right to control raising of family
(f) Right to purchase and use contraceptives
(g) Right to travel
(h) Right to vote
(i) Freedom of speech
(j) Freedom of association
(k) Free exercise of religion (if law burdening religion is not a neutral law of general applicability)
(2) UNDUE BURDEN TEST
(a) Abortion
(3) RATIONAL BASIS REVIEW (not fundamental rights)
(a) Right to practice a trade or profession
(b) Right to physician-assisted death
(c) Right to education
(4) Level of Scrutiny UNKNOWN
(a) Right to engage in private consensual homosexual activity
(b) Right to refuse medical treatment
(c) Right to possess firearms
Equal Protection: Analytic Approach
(1) What is the classification? (how is the government drawing the line among people)
(2) What level of scrutiny should be applied? (rational basis, intermediate, strict, undue burden, unknown)
(3) Does this law meet the level of scrutiny?
Equal Protection: Constitutional Provisions
The equal protection clause of the 14th A applies only to STATE and LOCAL governments (never applies to federal government)
Equal protection is applied to the FEDERAL government through the due process clause of the 5th A
Equal Protection: Classifications Based on Race and National Origin
(1) Apply STRICT SCRUTINY
(2) How is the existence of a racial classification proven? One of two ways:
(a) Classification exists on the face of the law, or
(b) If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent
(3) Classifications benefitting minorities
(a) Evaluated with strict scrutiny
(b) Numerical set-asides require clear proof of past discrimination
(c) Educational institutions may use race as one factor in admissions decisions to help minorities. They must show that there is no race neutral alternative which could achieve diversity. May not add points to applicants’ admissions scores based on race.
(d) Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met
Equal Protection: Gender Classifications
(1) INTERMEDIATE SCRUTINY
(2) How is the existence of gender classification proven?
(a) Facial classification
(b) If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory purpose
(3) Classifications benefitting women
(a) Classifications benefitting women that are based on role stereotypes will not be allowed
(b) Classifications designed to remedy past discrimination and differences in opportunity will be allowed
Equal Protection: Alienage Classifications
(1) Generally, strict scrutiny
(2) Rational basis test is used for alienage classifications that concern self-government and the democratic process (e.g., voting, jury, probation officer, police officer, teacher – government can discriminate)
(3) Rational basis test used for Congressional discrimination against aliens
(4) Intermediate scrutiny (it appears) for discrimination against undocumented alien children
Equal Protection: Discrimination against Non-Marital Children
(1) Intermediate scrutiny
(2) Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional
(3) Case-by-case analysis where some non-marital children have a benefit and others don’t (e.g., okay if different inheritance based on whether paternity was established)
Equal Protection: Other Discrimination - Rational Basis Review
Rational basis review is used for all other types of discrimination under the Constitution
(1) Age discrimination (e.g., mandatory retirement is okay)
(2) Disability discrimination
(3) Wealth discrimination (poverty is not a suspect class)
(4) Economic regulations: doesn’t matter if challenged as equal protection of 14th A
(5) Sexual orientation discrimination: only one case indicated level of scrutiny (Romer)
First Amendment: Content-Based Restrictions
Content-based restrictions on speech generally must meet STRICT SCRUTINY
Two types of content based laws:
(1) Subject matter restrictions: application of law depends on the topic of the message
(2) Viewpoint restrictions: application of the law depends on the ideology of the message
First Amendment: Content-Neutral Laws
Content neutral laws burdening speech generally need only meet INTERMEDIATE SCRUTINY
First Amendment: Prior Restraints
(1) Court orders suppressing speech
(a) Must meet STRICT scrutiny.
(b) Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it.
(2) Government can require a license for speech ONLY if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority
(a) Licensing schemes must contain procedural safeguards, such as prompt determination of requests for licenses and judicial review of denials
First Amendment: Vagueness
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
First Amendment: Overbreadth
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated
First Amendment: Fighting Words Laws
Fighting words laws are unconstitutionally vague and overbroad
First Amendment: Symbolic Speech
Government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s purpose
Examples:
(a) Flag burning is constitutionally protected speech
(b) Draft card burning is not constitutionally protected speech
(c) Local governments may prohibit nude dancing
(d) Burning a cross is protected speech, unless it is done with the intent to threaten
(e) Contribution limits in election campaigns are generally constitutional, but expenditure limits are unconstitutional
First Amendment: Anonymous Speech
Anonymous speech is protected
First Amendment: Speech by the Government
Speech by the government cannot be challenged as violating the first amendment
First Amendment: Unprotected or Less Protected Speech - Incitement of Illegal Activity
Incitement of illegal activity: government may punish speech if there is a (a) substantial likelihood of imminent illegal activity and (b) if the speech is directed to causing imminent illegality
First Amendment: Unprotected or Less Protected Speech - Obscenity and Sexually-Oriented Speech
Test: must satisfy all 3 parts
(1) The material must appeal to the prurient interest (shameful or morbid interest in sex)
- Use local standard (may use broader)
(2) The material must be patently offensive under the law prohibiting obscenity (look at relevant law)
(3) Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (use national standard)
Other:
(a) Government may use zoning ordinances to regulate the location of adult bookstores and movie theaters (control secondary effects, e.g., property values, increased traffic)
(b) Child pornography (child used in production of material) may be completely banned, even if not obscene
(c) Government may not punish private possession of obscene materials, but may punish private possession of child pornography
(d) Government may seize assets of businesses convicted of violating obscenity laws
(e) Profane and indecent speech is generally protected by the 1st A
- Exceptions: (i) Over (public/free) broadcast media; (ii) In schools
First Amendment: Commercial Speech
(1) Advertising for illegal activity, and false and deceptive ads are not protected by 1st A
(2) True commercial speech that inherently risks deception can be prohibited
(a) Government may prevent professionals from advertising or practicing under a trade name
(b) Government may prohibit attorney, in-person solicitation of clients for profit
(c) Government may not prohibit accountants from in-person solicitation of clients for profit
(3) Other commercial speech can be regulated if intermediate scrutiny is met
(4) Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative
First Amendment: Defamation and Intentional Infliction of Emotional Distress
(1) If the plaintiff is a PUBLIC OFFICIAL or running for public office, plaintiff can recover for defamation by proving falsity of the statement and actual malice
(2) If the plaintiff is a PUBLIC FIGURE, plaintiff can recover for defamation by proving falsity of the statement and actual malice
(3) If the plaintiff is a PRIVATE FIGURE and the matter is of PUBLIC CONCERN, that state may allow plaintiff to recover for defamation by proving falsity and negligence by the defendant
- Plaintiff may recover presumed or punitive damages only by showing actual malice
(4) If the plaintiff is a PRIVATE FIGURE and the matters is NOT of public concern, plaintiff can recover presumed or punitive damages without a showing of actual malice
(5) Liability for IIED for defamatory speech must meet the defamation standards and cannot exist for speech otherwise protected by 1st A
First Amendment: Privacy
(1) Government may not create liability for the truthful reporting of information that was lawfully obtained from the government
(2) Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if (a) the media did not participate in the illegality and (b) it involves a matter of public importance
(3) The government may limits its own dissemination of information to protect privacy
First Amendment: Speech by Government Employees on the Job
Speech by government employees on the job in the performance of their duties is not protected by the 1st A
First Amendment: Speech - Other Government Restrictions
Other government restrictions based on the content of speech must meet strict scrutiny
First Amendment: Speech - Public Forums
Puublic forums are government properties that the government is constitutionally required to make available for speech (e.g., sidewalks and parks)
Can regulate time, place, manner IF regulations are:
(1) CONTENT NEUTRAL (if not, must satisfy strict scrutiny)
(2) Narrowly tailored to serve an IMPORTANT government purpose (but not least restrictive)
(3) Leave open ALTERNATIVE channels of communication
*City officials cannot have discretion to set permit fees for public demonstration
First Amendment: Speech - Designated Public Forums
A designated public forum is a government property that the government could close to speech, but chooses to open to speech (e.g. public schools on weekends and evenings)
Same rules apply as for public forums
First Amendment: Speech - Limited Public Forums
Limited public forums are government properties that are limited to certain groups or dedicated to the discussion of only some subjects (e.g. allow commercial but not political speech)
Regulation is okay so long as:
(1) Reasonably related to a legitimate government purpose and
(2) Viewpoint neutral
First Amendment: Speech - Non-public Forums
Non-public forums are properties that the government constitutionally can and does close to speech (e.g., military bases, areas outside prisons and jails, sidewalks on post office properties, airports (but must allow distribution of literature)
Regulation is okay so long as:
(1) Reasonably related to a legitimate government purpose and
(2) Viewpoint neutral
First Amendment: Speech - Private Property
There is no 1st A right of access to private property for speech purposes
First Amendment: Freedom of Association - Punishment
Laws that prohibit or punish group membership must meed strict scrutiny
To punish membership in a group, it must be proven that the person:
(1) Actively affiliated with the group
(2) Knowing of its illegal activities, and
(3) With the specific intent of furthering those illegal activities
First Amendment: Freedom of Association - Membership Disclosure
Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny
e.g. NAACP affiliation in 1950s south
First Amendment: Freedom of Association - Prohibition of Discrimination
Laws that prohibit a group from discriminating are constitutional, unless there interfere with intimate association (e.g., small dinner party) or expressive activity (e.g., KKK)
First Amendment: Freedom of Religion - Free Exercise Clause
(1) Free exercise clause CANNOT be used to challenge a neutral law of general applicability
(2) Government MAY NOT deny benefits to individuals who quit their jobs for religious reasons
(3) Government MAY NOT hold a religious institution liable for the choices it makes as to who will be its ministers
First Amendment: Freedom of Religion - Establishment Clause
Government will make no law respecting establishment of religion
Test: must satisfy all
(1) There must be a secular purpose for the law
(2) The effect must be neither to advance nor inhibit religion (cannot symbolically endorse religion)
(3) There must not be excessive entanglement with religion
Other:
(a) Government cannot discriminate against religious speech or among religions, unless strict scrutiny is met
(b) Government sponsored religious activity in public schools is unconstitutional, BUT religious student and community groups must have the same access to school facilities as non-religious groups
(c) Government may give assistance to parochial schools, so long as it is not used for religious instruction; government may provide parents vouchers which they use in parochial schools
Court Hearings Open to Public
In the context of criminal cases, trials and proceedings can be closed only if closure is necessary to preserve an overriding interest and the closure order is narrowly tailored to serve the overriding interest
Standard not yet established for civil cases
Congressional Power to Investigate
Congress’s power to investigate is limited to matters on which it can legislate
Freedom of Speech: Tax & Press/Broadcasting
Press and broadcasting companies can be subject to general business taxes, but a tax applicable only to to the press or based on the content of a publication will not be upheld, absent a compelling justification
Unprotected Speech: Categories
Unprotected = government has compelling interest in, so not subject to same standard of review
(1) Inciting imminent lawless action: creates clear and present danger of imminent lawless action (likely, intended)
(2) Fighting words: true threats (but usually vague and overbroad)
(3) Obscenity: appeals to prurient interest in sex (community), patently offensive (community) and lacks serious value (artistic, literary, political, scientific) (national reasonable person)
(4) Defamatory speech: statement about public figure, public official, or public concern, plaintiff must prove falsity and some degree of fault
(5) Some commercial speech: if it proposes unlawful activity or that is misleading or fraudulent may be burdened
