Constitutional Law Flashcards
1
Q
Ripeness: Rule
A
Fed courts may only decide controversies that are ripe for judicial review
2
Q
Ripeness: Application:
A
Pre-enforcement review of laws (declaratory judgment actions) are generally not ripe, unless substantial hardship in the absence of review AND issues and record are fit for review (more legal than factual, the better)
3
Q
Advisory Opinions
A
No advisory opinions.
Fed courts may not render advisory opinions, which lack
an ACTUAL DISPUTE between adverse parties
any LEGALLY BINDING EFFECT on the parties
4
Q
Mootness: Rule
A
Fed courts may only decide live controversies (i.e. plaintiff is suffering an ongoing injury)
5
Q
Mootness: Application
A
In suit for injunctive or declaratory relief, challenged law or conduct continues to injure.
In suit for damages, plaintiff not made whole
6
Q
Mootness: Exceptions
A
Though injury has passed, not moot if:
Injury is capable of repetition yet evades review because of inherently limited duration.
Defendant voluntarily ceases challenged activity but may restart at will.
In class action, one plaintiff suffers ongoing injury.
7
Q
Standing
A
Plaintiff must have standing to sue.
Requires
Injury
Causation
Redressability
8
Q
Injury
A
Almost any harm that is concrete (not hypothetical) and particularized (not general).
Ex: physical, economic, loss of constitutional or statutory rights
NOT ideological objections or generalized grievances as citizen or taxpayer
9
Q
Injury: Exceptions
A
Taxpayer may challenge own tax liability
All citizens may challenge Congressional spending in violation of the establishment clause.
Citizens may NOT challenge executive spending.
10
Q
When Injury Must Occur
A
Injury must have occurred or will imminently occur
Injunctive or declaratory relief: must show likelihood of future harm
11
Q
Who Must Suffer Injury
A
Injury must be suffered personally by plaintiff rather than those not before the court.
No third party standing
12
Q
Third Party Standing: Exceptions
A
(1) Close relationship
(2) Organized (on behalf of members)
(3) Free speech over-breadth (party whose speech can be censored sues on behalf of those whose speech cannot)
13
Q
Third Party Standing Exceptions: Close Relationship
A
Plaintiff and third party injured
Third party unable or unlikely to sue
Plaintiff can adequately represent third party
14
Q
Third Party Standing Exceptions: Organizations
A
Can sue on behalf of its members.
Organization AND members have standing. Members’ injury related to purpose of organization. Members participation not required (e.g. not seeking individualized damages)
15
Q
Third Party Standing Exceptions: Free Speech Overbreadth
A
Party whose speech can be censored sues on behalf of those whose speech cannot
Substantial overbreadth in terms of law’s legitimate to illegitimate sweep.
Not commercial speech.
16
Q
Causation
A
Plaintiff needs to show that the injury is fairly traceable to defendant
17
Q
Redressability
A
Plaintiff must show that a favorable court decision can remedy the harm (e.g. through money damages or an injunction)
18
Q
Sovereign Immunity: States
A
Lawsuits against federal and state courts and agencies barred
19
Q
Sovereign Immunity: States
EXCEPTIONS
A
Waiver (by state or feds)
Plaintiff= state or federal government (they can sue each other)
Bankruptcy proceedings
Clear abrogation by Congress under 14th Amendment powers to prevent discrimination
20
Q
Sovereign Immunity: State Officers
A
Can sue state officials for injunctive relief or money damages from their own pocket
21
Q
Sovereign Immunity: Local Government
A
Can sue local governments, local government departments, government officials
22
Q
Final Judgment Rule
A
SCOTUS only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a fed court of appeals, or (in special statutory situations) a 3- judge district court
23
Q
Independent and Adequate State Grounds
A
SCOTUS will not review a federal question if the state court decision rests on an independent (separate) and adequate (sufficient) state law ground.
IASG exists if the outcome would be the same regardless of how the federal question is decided.
24
Q
Federal Legislative Power: Source
A
Article 1, Section 8
25
Federal Legislative Power: Limit
Enumerated powers. Unlike states, Congress has no general police power to pass laws.
Exceptions: federa land, Indian reservations, D.C.
26
Necessary and Proper Clause
NOT A BASIS OF LEGISLATIVE POWER
Allows Congress to choose any rational means to carry out an ENUMERATED power, as long as means not prohibited by Constitution
27
Taxing and Spending Powers: Rule
Congress may tax and spend to provide for the general welfare.
Includes any public purpose not prohibited by the Constitution, even if not within an enumerated power.
28
Spending Conditions
"Strings" must related to purpose of spending and not violate Constitution.
Strings cannot be "unduly coercive"
29
Commerce Power: Rule
Congress may regulate commerce with
- Foreign nations
- Indian tribes
- Among states
30
Interstate Commerce
CHANNELS of interstate commerce
INSTRUMENTALITIES of interstate commerce
SUBSTANTIAL EFFECT on interstate commerce in aggregate (of even purely local activities)
31
Commerce Power: Limits
Congress cannot regulate:
- Noneconomic activity in area traditionally regulated by states
- Compelling participation in commerce (even if lack of participation substantially affects interstate commerce)
32
14th Amendment Enforcement Power
Commerce power allows Congress to ban PRIVATE discrimination.
Congress may also ban STATE discrimination under its 14th Amendment power to enforce the guarantee of Equal Protection
33
Delegation of Power: Federal Agencies
May broadly delegate legislative power as long as there is some intelligible principle guiding the exercise of delegated power.
34
Delegation of Power: to the President
No line-item vetoes
Rationale: violates bicameralism (passage by both chambers) and presentment (giving bill in entirety to President to sign or veto)
35
Delegation of Power: to Congress
No legislative veto to void duly enacted laws without bicameralism and presentment
36
Federal Executive Power: Source
Article II
37
Federal Executive Power: Domestic Powers
Enforcement: President has power (and duty) to execute the laws
Inherent (Implied) Presidential Powers:
- highest where authorized by Congress
- lowest where prohibited by Congress
- grey area where neither
38
Federal Executive Power: War
Congress alone has power to declare war.
President as Commander in Chief has broad discretion to deploy troops internationally to protect American lives and property.
- Challenges may be non-justiciable (political question)
- Congress checks through power of the purse
39
Federal Executive Power: Treaties
President negotiates
Senate 2/3 to approve
State law: trumps existing and future state law
Federal law: trumps existing (but NOT future) federal law
40
Federal Executive Power: Executive Agreements
President negotiates
Senate not involved
State law: trumps existing and future state law
Federal law: federal law always trumps
41
Tenth Amendment
Powers not granted to US, or prohibited to States, are reserved to the states or the people
42
General Police Powers
Reserved to States
43
Anti-Commandeering Principle
Congress cannot compel states to enact or administer federal programs
44
Supremacy Clause
Supremacy of Art. VI makes federal law preempt inconsistent state and local laws.
Federal laws: Constitution, statutes, regulations, treaties, and executive agreements
45
Express Preemption
Congress expressly says so
46
Implied (Conflict) Preemption
Impossible to follow both federal and state law, state law impedes federal law
47
Implied (Field) Preemption
Extensive federal regulation indicates Congressional intent to "occupy the field"
48
Dormant Commerce Clause
Prohibitive state laws that discriminate against or unduly burden interstate commerce.
Who: all out of staters
What (claims) protected: interstate commerce
How (test): discriminatory laws are invalid unless NECESSARY TO ACHIEVE IMPORTANT GOV'T PURPOSE unrelated to economic protectionism) and no less discriminatory alternatives.
Nondiscriminatory laws valid unless burden on interstate commerce clearly outweighs non-protectionist benefits.
49
Dormant Commerce Clause: 2 Exceptions
Congressional approval
Market participant (where state acts as a buyer or seller in the market)
50
Privileges and Immunities Clause of Article IV
Prohibits state laws that discriminate against out-of-state US citizens regarding important commercial activities (earning livelihood) or fundamental rights.
```
Who: US citizens (NOT aliens or corporations
What protected (claim): important commercial activities, fundamental rights
How protected (test): discriminatory laws (favoring in-state over out-of-state citizens) are invalid unless NECESSARY TO ACHIEVE AN IMPORTANT GOVERNMENT PURPOSE and no less discriminatory alternatives
```
51
Privileges and Immunities Clause 14th Amendment
Fundamental Right to Interstate Travel
Right to enter/leave a state
Equal treatment once become a permanent resident of a state
NO fundamental right to international travel
Right to petition federal government
52
Constitutional Framework for Protection of Individual Liberties: Application and Incorporation
Except for ban on slavery, Constitution applies only to government action, not private action.
Bill of Rights originally applies only to federal government; most protections have been incorporated against states (AND their political subdivisions) through the Due Process Clause of the 14th Amendment.
53
Not Yet Incorporated Provisions of the Bill of Rights
3A (quartering soldiers)
5A (right to GJ indictment)
7A (right to jury in civil cases)
54
State Action
State law
State officials acting officially (even if unlawfully)
Public function
Rule: state action exists when private party performs function done by government traditionally and exclusively
State involvement
Rule: significant state involvement in challenged private conduct (e.g. assistance, encouragement, supervision, entwinement, or approval) may count as state action
Failure to act IS NOT state action
55
Rational Basis
Ends= rational or legitimate interest
Means= rationally or reasonably related
Burden= challenger
Presumption= valid
56
Intermediate Scrutiny
Ends= important or significant state interest
Means= Substantially related/narrowly tailored (not least restrictive)
Burden= state
Presumption= none
57
Strict Scrutiny
Ends= compelling state interest
Means= Narrowly tailored
Burden= state
Presumption=invalid
58
Procedural Due Process Constitutional Provisions
5th Amend: DPC applies to federal government
14th Amend: DPC applies to states (and localities)
59
Procedural Due Process: General Rule
Individual has right to a fair process when government acts to deprive of life, liberty, or property
60
Deprivation
intentional (or perhaps reckless) rather than negligent
61
Liberty
Physical freedom (institutionalization, deportation)
Constitutional rights (parental rights)
NOT mere harm to reputation
62
Property
Real, personal, tangible, intangible
Government entitlement to which an individual has a reasonable expectation of continued receipt (NOT at-will employment)
63
What Process is Due?
Notice
Opportunity to be Heard
Neutral decision-maker
64
Notice
Reasonably calculated to inform person of deprivation
65
Hearing
Pre-deprivation hearing generally preferred unless impracticable
Balancing test determines nature and extent of procedures, considering
- importance of interest to individual
- Risk of error through procedures used
- Accuracy gained through additional procedures
- Burden on government (e.g. inefficiency and costs)
66
Neutral Decisionmaker
No actual or serious risk of bias
67
Unenumerated Rights
Substantive component of liberty protected by 14th Amendment Due Process Clause against state and localities and 5th Amendment Due Process Clause against federal government
68
Fundamental Right if...
- Deeply rooted in this nation's history and tradition
- Implicit in the concept of ordered liberty in a free society
- Identified as fundamental by reasoned judgment and new insight
69
If law denies everyone a fundamental right...
Substantive due process ONLY
70
If law denies only some a fundamental right...
Substantive due process
AND
Procedural due process
71
Level of Scrutiny/Substantive Due Process: Fundamental Right
Strict Scrutiny
```
Marriage
Procreation
Contraception
Custody
Care and upbringing of children
Living with extended family
Interstate travel
Voting
```
72
Level of Scrutiny/Substantive Due Process: Non-Fundamental Rights
Rational Bais
Economic rights
Education
Physician-assisted suicide
73
Fundamental Rights: Marriage (Divorce)
Substantial interference: strict scrutiny
Interracial marriage bans trigger and fail strict scrutiny under DPC and Equal Protection
Same sex marriage strict scrutiny
NOTE: reasonable requirements to protect rather than hinder right to marry are upheld under RATIONAL BASIS (e.g. rxble age of majority, need for ID)
74
Fundmental Rights: Procreation
State may not sterilize repeat offenders of crimes of moral turpitude
75
Fundamental Rights: Contraception
Ban on distribution and use of contraceptives or limiting sale to pharmacist is invalid
76
Fundamental Rights: Parental Rights
Custody, care, and upbringing of children
77
Fundamental Rights: Living with Extended Family
City may not prohibit extended family from living in a single household
78
Fundamental Right: Interstate Travel
14th Amendment Privileges and Immunities Clause
Right to enter and leave a state
Equal treatment once become a resident of a state
No fundamental right to international travel
79
Right to Vote
Rational basis for reasonable requirements that protect rather than hindre the right to vote
- age
- residency (50 days)
- citizenship (US citizens)
Strict scrutiny for onerous or potentially discriminatory restrictions
- poll taxes
- literacy tests
- racial gerrymandering-- if race predominates
80
One Person, One Vote Principle
State and local representatives: below 10% presumptively valid
Fed reps: as close as possible
81
Abortion: Pre-Viability
Scope: state may REGULATE (but not prohibit) abortions to protect women's health or life of the fetus
Test: undue burden (i.e. substantial obstacle) on access to abortion in purpose or effect, weighing benefits of law (backed by evidence) against burdens on women
82
Abortion: Post-Viability
State may prohibit abortions UNLESS necessary to protect woman's life or health
83
Private Consensual Adult Sexual Intimacy
No legitimate state interest in criminal ban on same-sex intimate conduct (Lawrence)
Sounds like rational basis review
84
Refusal of Medical Treatment
Competent adult may refuse lifesaving medical treatment. State may require clear and convincing evidence of individual's wish and may prevent family members from terminating treatment.
No right to physician-assisted suicide. State may compel vaccination against contagious diseases.
85
Bear Arms
2nd Amendment protects right of individuals at least to have handgun in home for self-defense
86
Equal Protection Clause Provisions
14th Amendment Equal Protection Clause applies to states and localities
5th Amendment Due Process Clause has "equal protection component" that applies to the federal government
87
Equal Protection Clause: Trigger + Steps
Trigger: government treating people differently
Analytical Steps:
(1) Classification
(2) Level of review
88
Classifications
Determining classification:
Facial
Disparate impact AND discriminatory intent
```
Rational basis
Intermediate scrutiny (quasi-suspect)
Strict scrutiny (suspect)
```
89
Classifications: Rational Basis
age, disability wealth, alienage, classifications by Congress
90
Classifications: Intermediate Scrutiny (Quasi-Suspect)
Gender, illegitimacy, undocumented alien children
91
Classifications: Strict Scrutiny
Race, national origin, alienage, classifications by states
92
Race and National Origin: Level of Scrutiny
Strict Scrutiny
School integration: valid if NARROWLY TAILORED to remedy past segregation
Affirmative action in schools: if race is NONDISPOSITIVE, its narrowly tailored
Affirmative action in government contracts and hiring: acceptable if remedying past discrimination, but not okay to promote racial diversity
93
Alienage (Non-Citizen Status)
Congressional classification: rational basis
State and local classification: strict scrutiny
Exception: state and local governments may reasonably require citizenship for activities and positions integral to democratic self-governances (voting, holding elected office, being police officers or public school teachers, NOT being a notary public)
94
Gender
Intermediate scrutiny
Interpretation: important interest requires EXCEEDING PERSUASIVE JUSTIFICATION, not role stereotypes
95
"Legitimacy" (Non-marital children)
Intermediate scrutiny
Laws that discriminate against ALL non-marital children are likely prejudicial and invalid
Laws that distinguish among non-marital children are more likely to be upheld
96
Children of Undocumented Aliens
Unclear if RB or SS but clear that discrimination is irrational.
Apply RB with a bit of bite.
97
Fundamental Rights
Strict scrutiny
98
All other classifications
Rational basis.
Examples: age, disability, income, intelligence, health, sexual orientation.
Animus is NOT rational.
99
Takings Rule
Fed government (5th Amend. takings clause) and states (14th Amen. DPC) may not take private property unless
(1) public use
(2) just compensation
100
Takings: Property
Real personal property (incl. rights to possess, use, dispose, etc.)
Some intangible property (interest on attorney trust accounts, trade secrets, NOT welfare benefits)
101
Physical Taking
Confiscation.
Regular or permanent occupation.
Temporary occupation may be takings depending on degree of invasion, duration, government intention, and foreseeability w/r/t result, character, of property, and interference with use.
102
Physical Taking: Development Exception
Traditional conditions on property development (e.g. streets, utilities, easements) are not taking if benefits are roughly proportional to burdens
103
Physical Taking: Emergency Exception
Taking less likely to be found, even for complete and permanent deprivation, if pursuant to public emergency, such as war.
104
Regulatory Taking: Bright-Line Rule
Taking if regulation on use does not merely diminish property value but leaves not economically viable use.
105
Regulatory Taking: Ad Hoc Approach
Maybe (but difficult to claim) a taking considering
- Economic impact of regulation
- Interference with investment-backed expectations, and
- Character of government action
106
Public Purpose
Any legitimate public purpose, ie any purpose that government reasonably believes will benefit public
107
Just Compensation
Fair Market Value at time of taking (benefit to government is irrelevant)
108
Retroactive Legislation: Contract Clause and Applicability
No state shall...pass any...law impairing the obligation of contracts.
Applicability:
-state and local laws only, NOT federal government, judicial decision
109
Retroactive Legislation: Private Contracts
Substantial impairment of existing rights invalid, unless
- legitimate or significant purpose
- rxble or appropriate means
110
Retroactive Legislation: Public Contracts
Heightened scrutiny (intermediate or strict scrutiny)
111
Ex Post Facto Laws
Rule: neither state nor federal government may pass legislation that retroactively alters criminal liability
112
5 Ex Post Facto Categories
(1) Criminalize act that was innocent when done
(2) Make crime greater than when committed
(3) Set greater punishment than when act was done
(4) Reduce evidence required to convict from what was required at time of the act
113
Bills of Attainder: Rule
Neither state nor federal gov't may pass legislation that designates particular individuals (by name or description) for punishment without judicial trial
114
Bills of Attainder: Punishment
traditional sanctions, and punitive measures (e.g. exclusion from employment and benefits)
115
True Threats
Test: words intended to convey to someone a serious threat of bodily harm (perhaps recklessly conveying such a threat suffices)
116
Obscenity
Depiction of sexual conduct defined by state law that taken as a whole, by contemporary community standards:
- appeals to the prurient interest in sex
- is patently offensive, AND
- lacks serious social value by national standards
Mere nudity, soft-core porn, and dirty words are NOT obscene
Right to privacy extends to possession of obscenity AT HOME, which may not be banned
117
Zoning
Sexually explicit or indecent speech that is not obscene may nonetheless be subject to zoning:
- to protect children and unwilling adults from exposure
- or to prevent neighborhood crime and decay
Amply alternative channels must exist for the speech.
118
Child Pornography
Test: depiction of children engaging in sexual conduct by state law, whether or not obscene.
Must be actual children (not virtual, or adult actors)
In-home possession may be banned.
119
Defamation
Rule: to promote robust public debate, 1st Amendment bars recovery under state defamation law for speech made without actual malice about
- public officials
- public figures, or
- matters of public concern
120
Actual Malice
(by clear and convincing evidence)
knowledge of falsity, or
reckless disregard for the truth
121
Public Officials
Holding or running for elective office (at any level)
Public employees in positions of public important (e.g. prosecutor, school principal, police officer)
122
Public Figures
Assumed role of prominence in society
Achieved pervasive fame and notoriety
Thrust themselves into particular public controversies to influence their resolution
123
Public Concern
Matters important to society and democracy
124
Defamation: Analytical Steps
Identify
- Type of plaintiff (public official, public figure, private figure)
- Subject matter of alleged defamation (public or private concern)
These will determine
- Whether the plaintiff must prove actual malice (in addition to proving state defamation elements) and
- What damages plaintiff may recover
125
Public Official/Public Figure, Any Subject
Actual malice.
Any damages allowed.
126
Private Figure, Public Concern
Actual malice.
Presumed and punitive damages allowed.
OR
Negligence
Actual damages
127
Private Figure, Private Concern
NO ACTUAL MALICE
Any damages allowed
128
Intentional Infliction of Emotional Distress
As with libel, Court has required ACTUAL MALICE for recovery under tort of IIED, at least where plaintiff is public figure or public official, and speech is a matter of public concern
129
Commercial Speech Includes
Includes: ads and promotions of products and services, brand marketing (e.g. Nike swoosh). Content matters.
Insufficient: profit motive
130
Commercial Speech: Unprotected
False
Misleading
Illegal Product or Service
131
Commercial Speech: Protected
all other commercial speech
132
Commercial Speech
Test: intermediate scrutiny
Substantial government interest (e.g. consumer protection)
Narrowly tailored (reasonable fit-- least restrictive)
133
General Free Speech Tests
Content based: strict scrutiny
Content neutral: intermediate scrutiny
134
Content-Based
Restrictions facially target certain topics or messages, or are justified by reference to potential harms produced by certain topics or messages
135
Content Neutral
Do not target certain topics or messages, and suppress speech for reasons unrelated to any topics or messages. Often channels speech on basis of time, place, or manner.
136
Intermediate Scrutiny: Ends/Means/Burden/Result
Ends: Important interest
Means: Narrowly tailored (not substantially overbroad, seriously tried less restrictive measures)
Burden: on state
Result: ?
137
Strict Scrutiny: Ends/Means/Burden/Result
Ends: compelling interest
Means: narrowly tailored (least restrictive)
Burden: on state
Result: usually invalid
138
Speech
words, symbols, and expressive conduct
Expressive conduct:
- conduct that is inherently expressive
- conduct that is intended to convey message and reasonably likely to be perceived as conveying message
139
Freedom of Speech Analysis
1. Is it speech?
2. Is the speech protected or unprotected?
3a. General restriction
Content based? SS
Content Neutral? IS
3b. Public Property
Public form? go back to General Restriction analysis
Limited/Nonpublic forum? Rxble, not viewpoint based SS
3c. Public School
Student speech? Substantial disruption (unless pro drug use)
School speech? Reasonably related to legitimate pedagogical concern
3d. Public Employment
Private concern at work place or public concern pursuant to job duties? No protection.
Private concern outside as citizen? balancing
4. Is restriction vague, overbroad, or prior restraint?
140
Unprotected Speech (7 Types)
```
Incitement
Fighting Words
True Threats
Obscenity
Child Pornography
Defamation with actual malice
Commercial speech (false, misleading, or illegal)
```
141
Partly Protected Speech
Defamation about public officials, public figures, or matters of public concern
Commercial speech (not false, misleading, or illegal)
142
Protected Speech
All other speech
143
Incitement
Test: advocacy of lawless action that is INTENDED to produce imminent lawless action and LIKELY to produce imminent lawless action
Mere advocacy of lawlessness if protected speech
144
Fighting Words
Test: words likely to provoke an IMMEDIATE VIOLATE RESPONSE
145
Political Patronage
Public employees may not be hired or fired based on political affiliation or expression
Exception: high-level policy makers and advisers
146
Vagueness
Test: law is void for vagueness if PERSONS OF COMMON INTELLIGENCE cannot tell what speech is prohibited and what is permitted
147
Overbreadth
Test: law is invalid as overbroad if it prohibits a substantial amount of speech that the government may not suppress
Third party standing is allowed (plaintiff whose speech may be censored raises a non-commercial speech claim on behalf of others whose speech may not be censored)
148
Prior Restraints: Definition
Licensing schemes (e.g. permits) or injunctions that prevent speech BEFORE it occurs, rather than punishing speech afterwards
149
Prior Restraints Disfavored
Historically, prior restraints greatly disfavored.
No special tests, but harder for government to win.
150
Prior Restraints: Licensing Systems
Must have sufficiently definite standards to cabin discretion, as well as prompt judicial review of denials
151
Press, Expressive Associations, Corporations, & Unions
generally treated THE SAME as other speakers
152
Government Speech
Generally NOT subject to 1st Amend.
1st Amend. does not constrain government from espousing whatever views and policies it wishes.
1st Amend. does constrain government's ability to compel private parties to convey message
153
Free Exercise Clause: Religion
Traditional religion as well as beliefs that play role in the life of the believer similar to the role that religion plays in the life of traditional adherents.
To decide religion claims, government (including courts) may inquire into SINCERITY of religious beliefs, but not their truth
154
Free Exercise Test: Discriminatory Laws
Strict Scrutiny
Not neutral facially w/r/t religion
Not generally applicable but targeted at religion generally or a religion in particular
155
Free Exercise Test: Neutral Laws of General Applicability
NOT subject to Free Exercise Clause
Exception: religious or organizations that are exempt from employment discrimination suits by their ministers
156
Establishment Clause: Neutrality Test
Gov't must remain neutral w/r/t religion, neither favoring nor disfavoring it
157
Establishment Clause: Coercion Test
Gov't may not DIRECTLY or INDIRECTLY coerce individuals to exercise (or refrain from exercising) religion
158
Establishment Clause: Lemon Test
1. Primary purpose is secular
2. Primary effect is secular
3. No excessive entanglement between government and religion
159
Establishment Clause: Endorsement Test
From standpoint of rxble and informed observer, government must not appear to endorse or disapprove of religion, making it seem relevant to a person's standing in the political community
160
Establishment Clause: History and Tradition
Sometimes, a state religious display or practice is a tolerable acknowledgement of the role religion has played in the history and tradition of the nation.
Note: it helps if the display or practice has been around for a while or is in a historical setting
161
Public Schools: Personal Student Speech
Cannot be censored absent evidence of substantial disruption
EXCEPTION: speech promoting illegal drug use does not require showing any disruption
162
Public Schools: School Speech
(including co-opted student speech)
Can be censored if reasonably related to a legitimate pedagogical concern
163
Public Employment: Public Employee Speech Unprotected
Private concern at work place (e.g. office gossip)
Public concern, but pursuant to official duties (e.g. TPS report, closing argument)
164
Public Employment: Public Employee Speech Protected
Private concern outside workplace (e.g. dinner conversations)
Public concern, as citizen rather than as pursuant to official duties, at or outside workplace (e.g. political chat at lunch)
165
Type of Government Property: Traditional Public Forum
Description: open to public as free speech zone "from time immemorial"
Ex: parks, streets, sidewalks
Note: cannot be undesignated as a public forum
166
Type of Government Property: Designated Public Forum
Description: open by policy or purposeful practice as free speech zone
Ex: college kiosks, college email systems
Note: can be undesignated as public forum
167
Type of Government Property: Limited Public Forum
Description: reserved for particular topics or speakers
Ex: courtroom, university classroom, university student activity fund
Note: sometimes called non-public forum
168
Type of Government Property: Non-public Forum
Description: not opened by tradition or designation as free speech zone.
Ex: post offices, DMVs, airports
Note: catch-all category
169
Type of Government Property: Levels of Scrutiny
Public forums
Content based: SS
Content neutral: IS
Limited/Non-public forums
Rxble given nature of forum
SS if viewpoint based
170
Viewpoint-Based Restrictions
Content based restriction that limits speech to one side of subject
171
Test for Protected Public Employee Speech
Balance speech value v. state interest in efficient and effective operation.
