Constitutional Law Flashcards
Constitutional approach to MBE
- Identify what level of gov’t is acting (e.g. state, federal, school)
- Determine if question is a “powers” or “rights” issue
- Match the appropriate power/right rules or tests provided by the Constitution
Standing + Elements + Tip
A person has standing if she can demonstrate a concrete stake in the outcome of the controversy shown by an injury in fact-caused by the government-that can be remedied by a ruling in the plaintiff’s favor (i.e., causation and redressability).
Elements: 1) Injury (either personally suffered or if seeking injunctive relief, a likelihood of future harm)
2) Causation
3) Redressability
Tip: On questions that ask “best standing,” look for the answer choice where the plaintiff is PERSONALLY suffering injury (preferably monetary loss)
Standing Exceptions for Third Parties
1) If there is a CLOSE RELATIONSHIP between the plaintiff and the injured third party
2) If the injured third party is unlikely to be able to assert his or her own rights
3) An organization may sue for its members if the members would have good standing, the interest is related to the organizations purpose, and neither the claim nor relief requested requires the individual’s participation
Standing: No Generalized Grievances as a Taxpayer + Exception + Tip for Test Fact Pattern
The plaintiff must not be suing solely as a citizen or as a taxpayer
Exception: taxpayers have standing to challenge gov’t expenditures pursuant to federal statute as violating the Establishment Clause (very narrow)
Tip: Look for fact patterns that generally state the grievance is from a “taxpayer” or “citizen”
Ripeness - Whether Federal Court May Grant Pre-Enforcement Review of a Statute Elements + Tip
The question of whether a federal court may grant pre-enforcement review of a statute or regulation
Elements: 1) The hardship that will be suffered without pre-enforcement review
2) The fitness of the issue and the record of judicial review
Tip: On MBE, questions involving a request for “declaratory judgments” typically involve ripeness
Mootness + Exceptions
If events after the filing of a lawsuit end the plaintiff’s injury, the case MUST be dismissed as moot
Exception: 1) The wrong is capable of repetition but evading review
2) Voluntary cessation, D voluntarily halts the offending conduct but may resume at any time
3) Class action suits, as long as one member has ongoing injury
Political Question Doctrine + Types of Non-judiciable Cases
Refers to constitutional violations that the federal courts will not adjudicate.
Types of Non-Judiciable Cases:
1) The “republican form of gov’t clause”
2) Challenges to the President’s conduct of foreign policy
3) Challenges to the impeachment and removal process
4) Challenges to partisan gerrymandering
SCOTUS Case Review + Remember State Court Decision
Virtually all cases come to the SCOTUS by writ of certiorari, unless appeals exist for decisions of 3-judge federal district courts
Remember: For the SCOTUS to review 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, and the SCOTUS’s federal law ground will not change the outcome of the case, the SCOTUS CANNOT hear it.)
Principal of Sovereign Immunity + Exceptions
Suits against states in federal courts are barred by the 11th Am & Suits against states in state courts or fed. agencies are barred by sovereign immunity.
Exception: 1) Waiver is permitted
2) States may be sued pursuant to fed laws adopted under 14th Amendment
3) Fed gov. may sue state gov.
4) Bankruptcy proceedings
Sovereign Immunity: State Officers + Exception
May be sued for injunctive relief or money damages to be paid out of their own pockets
Exception: May not be sued if it is the state treasury that will be paying retroactive damages
Congressional Power
There MUST be express or implied Congressional power for them to act, there is no general police power for federal gov’t (except for federal lands, native american lands, the military or D.C.)
The Necessary and Proper Clause
Congress may use ANY MEANS, not prohibited by the Constitution, to carry out its powers
Congressional Power: Taxing/Spending Power
Congress may tax and spend for the general welfare
Congressional Power: Commerce Clause Regulations + Exception
1) Congress may regulate the channels of interstate commerce
2) Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
3) Congress may regulate economic activities that have a substantial effect on interstate commerce
Exception: A substantial effect CANNOT be based on cumulative impact based on non-economic activity.
10th Amendment Limits on Congressional Powers + Principles
All powers not granted to the US, nor prohibited to the states, are reserved to the states or the people
Principles: 1) Congress CANNOT COMPEL state regulatory or legislative action (BUT, they may INDUCE action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program so long as they are NOT UNDULY COERCIVE)
2) Congress may prohibit harmful commercial activity by state governments
14th Amendment Limits on Congressional Powers
Congress may not create new rights or expand the scope of rights, they may only act to prevent or remedy violations of already existing rights
Congress’ ability to delegate legislative power + Tip
NO LIMITS on Congress’ ability to delegate legislative power
Tip: Every answer choice that states a federal law is unconstitutional due to Congress delegating legislative power
Legislative Vetos and Line-Item Vetos + Remember
Legislative vetos and line-item vetos are unconstitutional
Remember: For Congress to act, there ALWAYS must be bicameralism (passage by both House and Senate) and presentment (giving bill to the President to sign or veto)
Congress’ ability to delegate executive power
Congress MAY NOT delegate executive power to itself or its officers
Treaties Conflicting with Laws
1) Treaties prevail over conflicting state laws
2) If a treaty conflicts with a federal law, the one adopted LAST in time controls
3) If a treaty conflicts with the US Const., it is INVALID
Executive Agreements v. Treaties
1) Executive agreements do not need Congress’ approval, treaties do.
2) Both may have the same effect
3) Executive agreements ALWAYS prevail of conflicting state laws, but NEVER conflicting federal laws or the Constitution
Limits on the Recognition on Power of Foreign Countries by Congress
It is UNCONSTITUTIONAL for Congress by statute to designate the capital of a foreign country, that is the President’s power alone.
Who has the power to determine whether to admit individuals to the U.S.?
The President has broad discretion, not Congress
Who has the power to use American troops in foreign countries?
The President has broad powers as Commander-in-Chief, not Congress
Appointment of ambassadors, federal judges, and Officers of the U.S.
President appoints, Congress confirms
Appointing inferior officers + definition of inferior officers
Congress may VEST appointment of inferior officers in the President, the heads of departments or the lower federal courts, BUT CONGRESS MAY NOT appoint members of a commission that exercises enforcement powers
Definition: An inferior officer is one who can be fired by an officer of the U.S. (e.g. U.S. Attorneys because they can be fired by the Attorney General)
Removal Power + Exceptions
Unless limited by statute, the President may fire ANY executive branch officer
Exception: 1) For Congress to limit removal, it must be an office where independence from the President is desirable, AND 2) Congress can only limit removal where there is good cause (they CANNOT prohibit removal)
Impeachment and Removal + Remember (2)
The President, Vice President, federal judges and officers of the U.S. can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors
Remember: (1) Impeachment DOES NOT remove a person from office, only conviction from the Senate can do that.
(2) Impeachment requires a majority vote in the H.O.R., and conviction requires 2/3 vote in the Senate.
President as a party in Civil Suits + Remember
The President has ABSOLUTE immunity to civil suits for money damages for any actions WHILE IN OFFICE.
Remember: The President does NOT have immunity for actions that occurred prior to taking office
Executive Privilege For Papers and Conversations + Exception
The President has executive privilege for presidential papers and conversations
Exception: When there is an overriding government interest
Presidential Pardons + Exception
The President has the power to pardon those accused or convicted of FEDERAL crimes (not civil liability)
Exception: The President can never pardon those impeached by the H.O.R.
Implied Preemption Rules
1) If federal law and state law are mutually exclusive (e.g. both cannot function simultaneously), federal law preempts state law
2) If state law impedes the achievement of a federal objective, federal law preempts state law
3) If Congress evidences a clear intent to preempt state law, federal law preempts state law
Inter-governmental Immunity
States may NOT tax or regulate federal government activity
Dormant Commerce Clause Definition + When to Apply
State or local laws are unconstitutional if it places an UNDUE BURDEN on interstate commerce
When to apply Dormant Commerce Clause v. Commerce Clause? Ask WHO IS THE ACTOR in the question. If it’s Congress, then look to Commerce Clause, but if its state or local gov’t, look to Dormant CC
Privileges and Immunities Clause of Article IV + When to Apply
No state may deny citizens of other states of the privileges and immunities it affords its own citizens (anti-discrimination provision)
Apply ONLY when states are discriminating against out-of-staters
Privileges Or Immunities Clause of 14th Amendment + Remember (Travel Includes…) + Tip
Generally always refers to the privileges and immunities of people to travel between states.
Remember: The right to travel includes the RIGHT TO BE TREATED EQUALLY IN A NEW STATE OF RESIDENCE (e.g. limiting welfare benefits to first year residents)
Tip: ALWAYS the wrong answer, unless the question involves RIGHT TO TRAVEL
Analysis: If state law DOES NOT discriminates against out-of-staters (P&I and DCC)…
P&I: The privileges and immunities clause of Article IV does not apply
DCC: If the law burdens interstate commerce, it violates the dormant CC if its burdens exceed its benefits
Analysis: If state law DOES discriminate against out-of-staters… (DCC and P&I) + Exceptions + Tip
DCC: If the law burdens interstate commerce, it violates the dormant CC UNLESS it is necessary to achieve an important government purpose
Exceptions: 1) Congressional approval
2) Market participant exception (where a state or local gov’t prefers its own citizens in receiving benefits from gov’t programs, e.g. in-state tuition)
P&I: If the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates the P&I clause of Article IV, UNLESS it is necessary to achieve an important gov’t purpose
Tip: Corporations and aliens CANNOT use the privileges and immunities clause, therefore, only analyze dormant CC.
State Taxation of Interstate Commerce
States CANNOT use their tax systems to help in-state business, they can only tax activities if there is a substantial nexus to the state
State Action Doctrine + Remember
The Constitution applies ONLY to government action, private conduct need not comply with the Constitution
Remember: Congress, by statute, MAY apply constitutional norms to private conduct (e.g. 13th Amendment can be used to prohibit private race discrimination and commerce power can be used to apply constitutional norms to private conduct)
Exceptions where private conduct MUST comply with the Constitution + Entanglement Exception Examples
1) Public Function Exception (if a private entity is performing a task traditionally exclusively done by the gov’t, the constitution applies)
2) Entanglement Exception (Constitution applies if the gov’t affirmatively authorizes, encourages, or facilitates unconstitutional activity)
Examples of the Entanglement Exception:
1) Courts cannot enforce racially restrictive covenants
2) There is state action when the gov’t leases premises to a restaurant that racially discriminates
3) There is state action when a state provides books to schools that racially discriminate
4) State action when private entity regulates interscholastic sports within a state
5) NO state action when a private school that is over 99% funded by the gov’t fires a teacher because of her speech
6) NO state action when NCAA orders the suspension of a basketball coach at a state university
7) NO state action when a private club with a liquor license from the state racially discriminates
(If the case involves race, court seems likely to apply entanglement exception, but other reasons prob doesn’t – DOES NOT ALWAYS WORK)
Levels of Scrutiny
1) Rational Basis Test (a law is upheld if it is RATIONALLY RELATED to a LEGITIMATE gov’t purpose)
2) Intermediate Scrutiny (a law is upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT gov’t purpose)
3) Strict Scrutiny (a law is upheld if it is NECESSARY to achieve a COMPELLING government purpose)
Procedural Due Process
Asks whether the government has followed ADEQUATE PROCEDURE when it takes away a persons life, liberty, or property
Substantive Due Process
Asks whether the government has ADEQUATE REASON to take away a persons life, liberty or property
Equal Protection
Asks whether there is ADEQUATE JUSTIFICATION for the governments differences in the treatment of people
Procedural Due Process Questions + Remember + Tip
1) Has there been a deprivation in life, liberty, or property?
2) What procedures are required? (apply balancing test)
Remember: Government negligence IS NOT sufficient for a deprivation of due process, UNLESS the government’s conduct “shocks the conscious”
Tip: Look for the government CREATING the danger, recklessness in emergencies or negligence do not deprive people of life, liberty, or property
Procedural Due Process Balancing Test + Examples
1) The importance of the interest to the individual
2) The ability of additional procedures to increase the accuracy of the fact-finding
3) The government’s interest in fiscal and administrative efficiency
Examples:
1) Before WELFARE BENEFITS are terminated there must be a notice and a hearing
2) When SOCIAL SECURITY benefits are terminated there need only be a post-termination hearing
3) Before a school can DISCIPLINE A STUDENT there must be a notice of the charges and an opportunity to explain
4) Before a parent’s right to CUSTODY, there must be notice and a hearing
5) PUNITIVE DAMAGE awards require instructions to the jury and judicial review to ensure reasonableness
6) An American citizen detained as an ENEMY COMBATANT must be accorded due process
7) Except in exigent circumstances, prejudgment attachment or gov’t SEIZURE OF ASSETS require notice and a hearing
What protection does the Constitution provide for economic liberties? + Scrutiny Applied
The Constitution provides only MINIMAL PROTECTION for economic liberties, applying a rational basis test used for laws affecting economic liberties
Takings Clause
The government may take private property for public use if it provides JUST COMPENSATION
Takings Clause Test + Remember (3)
1) Is there a taking? (possessory - physical - or regulatory - no economic viable use)
2) Is it for public use?
3) Is just compensation paid? (measured as loss to owner, not gain to taker)
Remember (1): 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
Remember (2): A property owner may bring a takings challenge to regulations that existed at the time the property was acquired
Remember (3): Temporarily denying an owner use of property is NOT A TAKING so long as the government’s action is reasonable
Contracts Clause + (1) Remember Which Gov’t Level This Applies To + (2)(3) What Level Of Scrutiny (Private K v. Public K)
No state shall impair the obligations of contracts
(1) : Applies ONLY to state or local interference with existing Ks, NOT federal gov’t
(2) : State or local interference with private Ks MUST meet INTERMEDIATE SCRUTINY
Remember (3): State or local interference with gov’t Ks MUST meet STRICT SCRUTINY
Fundamental Rights Protected Under Substantive Due Process
1) Right to marry
2) Right to procreate
3) Right to custody of one’s children
4) Right to keep the family together (including extended)
5) Right to control the upbringing of one’s children
6) Right to purchase and use contraceptives
7) Right to abortion (prior to viability, and may regulate so long as they do not create an undue burden)
8) Right to private consensual homosexual activity
9) Right to REFUSE medical treatment (may require clear and convincing evidence that a person wanted this treatment, and may prevent a family member for terminating treatment for another)
10) NO right to physician-assisted death
The Second Amendment Admissible Regulations
The 2nd Amendment right to bear arms is NOT ABSOLUTE. The government may regulate:
- WHERE to allows guns (e.g. not airports)
- WHO can have guns (e.g. convicts)
- WHAT type of guns (e.g. bazookas)
Substantive Due Process: Right to Travel Scrutiny (Preventing from Moving into a State, Durational Residency, and Restrictions on Foreign Travel)
1) Laws that prevent moving into a state MUST meet strict scrutiny
2) Durational residency requirements MUST meet strict scrutiny
3) Restrictions on foreign travel need meet only RATIONAL BASIS TEST
Substantive Due Process: Right to Vote Points
1) Laws denying citizens the right to vote MUST meet STRICT SCRUTINY, but regulations of the electoral process to prevent fraud only need be on balance desirable (e.g. paying to vote or owning property to vote VIOLATES this)
2) One-person - one-vote MUST be met for all state and local elections
3) At-large elections are constitutional UNLESS there is proof of a discriminatory purpose
4) The use of race in drawing election district lines MUST meet strict scrutiny
5) Counting uncounted votes without standards in a presidential election violates equal protection
Substantive Due Process: Is Right to Education a Fundamental Right Under this Clause?
Education is NOT a fundamental right under the Constitution
Approach to Equal Protection Questions
1) What is the classification?
2) What level of scrutiny should be applied?
3) Does this law meet the level of scrutiny?
Constitutional Provisions Concerning Equal Protection (Which amendment governs state and which amendment governs federal?)
1) Fourteenth Amendment - applies ONLY to state and local governments
2) Fifth Amendment - applies to federal gov’t
Scrutiny for Race and National Origin Discrimination
Strict Scrutiny - both to benefiting minorities or limiting their rights
How is the existence of racial discrimination proven?
1) The classification exists on the face of the law
2) Demonstrate both discriminatory IMPACT and discriminatory INTENT
Equal Protection: When are numerical set-asides regarding race in statutes allowed?
Numerical set-asides require CLEAR PROOF of past discrimination (must remedy a past situation, not just random benefit)
Equal Protection: Educational institutions using race for admissions + Remember Public Schools
Educational institutions MAY use race as ONE FACTOR in admissions decisions to help minorities. However, must show there is NO RACE NEUTRAL ALTERNATIVE and MAY NOT add “points” to applicants’ admissions scores based on race
Remember: Public school systems MAY NOT use race as a factor in assigning students to schools UNLESS strict scrutiny is used
Equal Protection: Gender Classification Scrutiny Test
Intermediate scrutiny is used when gender discrimination is in question
How is the existence of gender classification proven?
1) The classification exists on the face of the law
2) Demonstrate both discriminatory impact and discriminatory intent (same as racial classification)
Equal Protection: Alienage Classification Scrutiny Test + Exceptions
Generally, strict scrutiny is used.
Exceptions: 1) Rational basis test is used for alienage classifications that concern self-gov’t and the democratic process
2) Rational basis test used for Congressional discrimination against aliens
3) Intermediate scrutiny is used for discrimination against undocumented alien children
Equal Protection: Discrimination Against Non-Marital Children Scrutiny Test + Exception
Intermediate scrutiny is used
Exception: Laws that deny a benefit to all non-marital children but grant it to all marital children are unconstitutional
Equal Protection: Rational Basis Review is Used For All Of These Types of Discrimination
1) Age discrimination
2) Disability discrimination
3) Wealth discrimination
4) Economic regulations
5) Sexual orientation discrimination*
Free Speech: Content-based v. Content-neutral restrictions
Content based restrictions: Generally must meet STRICT SCRUTINY (subject matter restrictions - topic of message, and viewpoint restrictions - ideology of message)
Content-Neutral restrictions: Generally must meet INTERMEDIATE SCRUTINY
Free Speech: Prior Restraints Definition + Types
A prior restraint is a judicial order when an administrative system stops speech before it occurs
Types: 1) Court orders suppressing speech (STRICT SCRUTINY)
2) License for speech (only allowed for an important reason and no discretion to the license authority)
Free Speech: Vagueness
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
Free Speech: Overbreadth
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated
Free Speech: Fighting Words
Fighting words are those directed at another likely to provoke a violent response. These are UNCONSTITUTIONALLY VAGUE AND OVERBROAD
Free Speech: Symbolic Speech + List of Protections (Flag Burning, Draft Card Burning, Nude Dancing, Burning a Cross, Campaign Contribution)
The gov’t 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 gov’ts purpose
Examples: 1) Flag burning (protected speech)
2) Draft card burning (NOT protected speech)
3) Nude dancing (not protected)
4) Burning a cross (protected speech, unless used to threaten)
5) Contribution limits in election campaigns (constitutional to limit these, but expenditure limits are UNCONSTITUTIONAL)
Free Speech: Compelled Speech (e.g. Pledge of Allegiance at Schools)
Compelled speech VIOLATES 1st Amendment
Free Speech: Anonymous Speech
Anonymous speech is protected by the First Amendment (e.g. law prohibiting distribution of anonymous literature)
Free Speech: Government Speech
Speech by the gov’t CANNOT be challenged as violating the speech of the 1st Amendment
Speech Unprotected/Less Protected: Incitement of Illegal Activity
The gov’t may punish speech if there is a SUBSTANTIAL LIKELIHOOD of IMMINENT illegal activity and if the speech is DIRECTED to causing imminent illegality
Speech Unprotected/Less Protected: Obscenity and Sexually-Oriented Speech Test
Obscene or sexually oriented speech will be held unconstitutional if:
1) The material must appeal to the PRURIENT INTEREST (lustful thoughts)
2) The material must be PATENTLY OFFENSIVE
3) Taken as a whole, the material must LACK SERIOUS REDEEMING ARTISTIC, LITERARY, POLITICAL, OR SCIENTIFIC VALUE (national standard, not community)
Speech Unprotected/Less Protected: Zoning Ordinances to Regulate Erogenous Entertainment
The gov’t MAY use zoning ordinances to regulate the location of erogenous entertainment (e.g. adult bookstores or movie theaters)
Speech Unprotected/Less Protected: Child Pornography
Child pornography may be COMPLETELY BANNED, even if not obscene (to be child pornography, children MUST be used in production of the material)
Speech Unprotected/Less Protected: Obscene Materials in Private + Remember Seizing Business Assets
The gov’t MAY NOT punish private punishment of obscene materials (except for child pornography)
Remember: The gov’t MAY SEIZE the assets of businesses convicted of violating obscenity laws
Free Speech: Profane and Indecent Language + Exceptions
Generally protected by the First Amendment
Exceptions: 1) Over the broadcast media
2) In Schools
Commercial Speech: Advertising Illegal Activity
Advertising for illegal activity, and false and deceptive ads are NOT PROTECTED by the First Amendment
Commercial Speech: Risks of Deception
True commercial speech that inherently risks deception CAN be prohibited:
- The gov’t MAY prevent professionals from advertising or practicing under a trade name
- The gov’t MAY prohibit attorney, in-person solicitation of clients for profit
- The gov’t MAY NOT prohibit accountants from in-person solicitation of clients for profit
Commercial Speech Scrutiny Test + Remember
Commercial speech can be regulated if INTERMEDIATE SCRUTINY is met
Remember: Government regulation must be NARROWLY TAILORED, but DOES NOT need to be the LEAST RESTRICTIVE alternative
Free Speech: Defamation Rules
1) If the plaintiff is a PUBLIC OFFICIAL, RUNNING FOR PUBLIC OFFICE, or A PUBLIC FIGURE, he can recover for defamation by proving FALSITY OF THE STATEMENT and ACTUAL MALICE
2) If the plaintiff is a PRIVATE FIGURE, and the matter is of PUBLIC CONCERN, the state may allow recovery by proving FALSITY OF THE STATEMENT and NEGLIGENCE by the defendant (may recover punitive damages by showing actual malice)
3) If the plaintiff is a PRIVATE FIGURE and the matter IS NOT OF PUBLIC CONCERN, the plaintiff may recover presumed or punitive damages WITHOUT showing actual malice
Free Speech: Defamatory Speech Intentional Infliction of Emotional Distress Rule
Liability for IIED for defamatory speech MUST meet the defamation standards and CANNOT exist for speech otherwise protected by 1st Amendment
Free Speech: Privacy and Dissemination of Information Rules
1) The gov’t MAY NOT create liability for the TRUTHFUL REPORTING of information that was LAWFULLY OBTAINED from the gov’t
2) The gov’t MAY NOT create liability if the media broadcasts a tape of an ILLEGALLY INTERCEPTED communication, IF the media did not participate in the illegality AND it involves a matter of public importance
3) The gov’t MAY limit its dissemination of information to protect privacy (UNLESS it is a criminal proceeding)
Free Speech: Government Employees
Speech by government employees on the job in the performance of their duties IS NOT protected by the First Amendment
Places Available for Free Speech: Public Forums + Regulations (4)
Public forums are government properties that the gov’t is constitutionally required to make available for speech.
Regulations: (1) must be CONTENT-NEUTRAL, if not, STRICT SCRUTINY must be met
(2) Must be a time, place, and manner regulation that serves an IMPORTANT gov’t purpose AND leaves open adequate ALTERNATIVE places for communication
(3) Regulations NEED NOT use the LEAST RESTRICTIVE alternative, BUT must be NARROWLY TAILORED
(4) City officials CANNOT have DISCRETION to set permit fees for public demonstrations
Places Available for Free Speech: Designated Public Forums + Regulations
Gov’t properties that the gov’t COULD close to speech, but chooses to open (e.g. opening public schools on weekends)
Regulations: Same as Public Forums! -
Regulations: (1) must be CONTENT-NEUTRAL, if not, STRICT SCRUTINY must be met
(2) Must be a time, place, and manner regulation that serves an IMPORTANT gov’t purpose AND leaves open adequate ALTERNATIVE places for communication
(3) Regulations NEED NOT use the LEAST RESTRICTIVE alternative, BUT must be NARROWLY TAILORED
(4) City officials CANNOT have DISCRETION to set permit fees for public demonstrations
Places Available for Free Speech: Limited Public Forums + Regulation
Gov’t properties that are LIMITED to certain groups or dedicated to the discussion for only some subjects
Regulation: The gov’t can regulate so long as the regulation is REASONABLE and VIEWPOINT NEUTRAL
Places Available for Free Speech: Non-Public Forums + Regulation
Gov’t properties that the gov’t constitutionally can and does close to speech (e.g. military bases, areas outside prisons, sidewalks on post office property, airports)
Regulation (same as limited public forums): Gov’t can regulate speech so long as the regulation is REASONABLE and VIEWPOINT NEUTRAL
Freedom of Association + Test to Punish Group Members
Laws that prohibit or punish group members MUST meet strict scrutiny
Test: To punish, it must be proven that the person is:
1) Actively affiliated with the group
2) knowing of its illegal activities, and
3) with the specific intent of furthering those illegal activities
Freedom of Association: Disclosure of Group Member Laws
Laws that require disclosure of group membership, where such disclosure would CHILL ASSOCIATION, must meet STRICT SCRUTINY
Freedom of Association: Discrimination of Group Membership
Laws that prohibit groups from discriminating are CONSTITUTIONAL, UNLESS they interfere with intimate association or expressive activity (e.g. KKK or Nazis)
Freedom of Religion: Free Exercise Clause + Exception
The free exercise clause CANNOT be used to challenge NEUTRAL laws of general applicability (i.e. the peyote case)
Exception: IF the law is motivated to interfere with the exercise of religion, it MUST meet STRICT SCRUTINY
Freedom of Religion: Regulating Benefits to Individuals Who Quit Their Jobs for Religious Reasons
The gov’t MAY NOT deny benefits to individuals who quit their jobs for religious reasons
Freedom of Religion: Ministerial Choices
The government MAY NOT hold religious institutions liable for the choices it makes as to who will be its ministers
Freedom of Religion: Denying Benefits to Religious Schools
The denial of benefits to a religious school that are provided to a secular private school MUST meet STRICT SCRUTINY
The Establishment Clause
The gov’t shall make no law respecting the establishment of a religion
The Establishment Clause Test + Tip
1) There must be a SECULAR purpose for the law
2) the effect must be NEITHER TO ADVANCE NOR PROHIBIT religion
3) There must not be EXCESSIVE ENTANGLEMENT with religion
Tip: SEX (Secular purpose for the law, primary Effect cannot advance nor prohibit religion, no eXcessive entanglement with religion
Freedom of Religion: Discrimination Against Religious Speech/Religious Scrutiny
The gov’t cannot discriminate against religious speech or among religions UNLESS strict scrutiny is met
Freedom of Religion: Religious Activity in Public Schools
Religious activity in public schools is UNCONSTITUTIONAL, BUT religious student and community groups must have the same access to schools as non-religious groups
Freedom of Religion: Assistance to Parochial Schools
The gov’t MAY give assistance to parochial schools, so long as it is NOT used for RELIGIOUS INSTRUCTION (the gov’t may also provide parents with vouchers which they use in parochial schools)
Procedural Due Process for Deprivation of Property
Procedural due process under the Fourteenth Amendment requires NOTICE and an opportunity to be HEARD before the government may deprive a person of property
Procedural Due Process for Termination of at “for-cause” Public Employee
Such an employee generally must be given notice of the charges and a PRETERMINATION OPPORTUNITY to respond to those charges.
