Constitutional Law

Question 1

Constitutional approach to MBE

Answer 1

1. Identify what level of gov’t is acting (e.g. state, federal, school)
2. Determine if question is a “powers” or “rights” issue
3. Match the appropriate power/right rules or tests provided by the Constitution

Question 2

Standing + Elements + Tip

Answer 2

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)

Question 3

Standing Exceptions for Third Parties

Answer 3

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

Question 4

Standing: No Generalized Grievances as a Taxpayer + Exception + Tip for Test Fact Pattern

Answer 4

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”

Question 5

Ripeness - Whether Federal Court May Grant Pre-Enforcement Review of a Statute Elements + Tip

Answer 5

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

Question 6

Mootness + Exceptions

Answer 6

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

Question 7

Political Question Doctrine + Types of Non-judiciable Cases

Answer 7

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

Question 8

SCOTUS Case Review + Remember State Court Decision

Answer 8

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.)

Question 9

Principal of Sovereign Immunity + Exceptions

Answer 9

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

Question 10

Sovereign Immunity: State Officers + Exception

Answer 10

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

Question 11

Congressional Power

Answer 11

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.)

Question 12

The Necessary and Proper Clause

Answer 12

Congress may use ANY MEANS, not prohibited by the Constitution, to carry out its powers

Question 13

Congressional Power: Taxing/Spending Power

Answer 13

Congress may tax and spend for the general welfare

Question 14

Congressional Power: Commerce Clause Regulations + Exception

Answer 14

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.

Question 15

10th Amendment Limits on Congressional Powers + Principles

Answer 15

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

Question 16

14th Amendment Limits on Congressional Powers

Answer 16

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

Question 17

Congress’ ability to delegate legislative power + Tip

Answer 17

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

Question 18

Legislative Vetos and Line-Item Vetos + Remember

Answer 18

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)

Question 19

Congress’ ability to delegate executive power

Answer 19

Congress MAY NOT delegate executive power to itself or its officers

Question 20

Treaties Conflicting with Laws

Answer 20

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

Question 21

Executive Agreements v. Treaties

Answer 21

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

Question 22

Limits on the Recognition on Power of Foreign Countries by Congress

Answer 22

It is UNCONSTITUTIONAL for Congress by statute to designate the capital of a foreign country, that is the President’s power alone.

Question 23

Who has the power to determine whether to admit individuals to the U.S.?

Answer 23

The President has broad discretion, not Congress

Question 24

Who has the power to use American troops in foreign countries?

Answer 24

The President has broad powers as Commander-in-Chief, not Congress

Question 25

Appointment of ambassadors, federal judges, and Officers of the U.S.

Answer 25

President appoints, Congress confirms

Question 26

Appointing inferior officers + definition of inferior officers

Answer 26

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)

Question 27

Removal Power + Exceptions

Answer 27

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)

Question 28

Impeachment and Removal + Remember (2)

Answer 28

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.

Question 29

President as a party in Civil Suits + Remember

Answer 29

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

Question 30

Executive Privilege For Papers and Conversations + Exception

Answer 30

The President has executive privilege for presidential papers and conversations Exception: When there is an overriding government interest

Question 31

Presidential Pardons + Exception

Answer 31

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.

Question 32

Implied Preemption Rules

Answer 32

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

Question 33

Inter-governmental Immunity

Answer 33

States may NOT tax or regulate federal government activity

Question 34

Dormant Commerce Clause Definition + When to Apply

Answer 34

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

Question 35

Privileges and Immunities Clause of Article IV + When to Apply

Answer 35

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

Question 36

Privileges Or Immunities Clause of 14th Amendment + Remember (Travel Includes...) + Tip

Answer 36

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

Question 37

Analysis: If state law DOES NOT discriminates against out-of-staters (P&I and DCC)...

Answer 37

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

Question 38

Analysis: If state law DOES discriminate against out-of-staters... (DCC and P&I) + Exceptions + Tip

Answer 38

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.

Question 39

State Taxation of Interstate Commerce

Answer 39

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

Question 40

State Action Doctrine + Remember

Answer 40

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)

Question 41

Exceptions where private conduct MUST comply with the Constitution + Entanglement Exception Examples

Answer 41

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)

Question 42

Levels of Scrutiny

Answer 42

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)

Question 43

Procedural Due Process

Answer 43

Asks whether the government has followed ADEQUATE PROCEDURE when it takes away a persons life, liberty, or property

Question 44

Substantive Due Process

Answer 44

Asks whether the government has ADEQUATE REASON to take away a persons life, liberty or property

Question 45

Equal Protection

Answer 45

Asks whether there is ADEQUATE JUSTIFICATION for the governments differences in the treatment of people

Question 46

Procedural Due Process Questions + Remember + Tip

Answer 46

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

Question 47

Procedural Due Process Balancing Test + Examples

Answer 47

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

Question 48

What protection does the Constitution provide for economic liberties? + Scrutiny Applied

Answer 48

The Constitution provides only MINIMAL PROTECTION for economic liberties, applying a rational basis test used for laws affecting economic liberties

Question 49

Takings Clause

Answer 49

The government may take private property for public use if it provides JUST COMPENSATION

Question 50

Takings Clause Test + Remember (3)

Answer 50

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

Question 51

Contracts Clause + (1) Remember Which Gov't Level This Applies To + (2)(3) What Level Of Scrutiny (Private K v. Public K)

Answer 51

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

Question 52

Fundamental Rights Protected Under Substantive Due Process

Answer 52

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

Question 53

The Second Amendment Admissible Regulations

Answer 53

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)

Question 54

Substantive Due Process: Right to Travel Scrutiny (Preventing from Moving into a State, Durational Residency, and Restrictions on Foreign Travel)

Answer 54

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

Question 55

Substantive Due Process: Right to Vote Points

Answer 55

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

Question 56

Substantive Due Process: Is Right to Education a Fundamental Right Under this Clause?

Answer 56

Education is NOT a fundamental right under the Constitution

Question 57

Approach to Equal Protection Questions

Answer 57

1) What is the classification? 2) What level of scrutiny should be applied? 3) Does this law meet the level of scrutiny?

Question 58

Constitutional Provisions Concerning Equal Protection (Which amendment governs state and which amendment governs federal?)

Answer 58

1) Fourteenth Amendment - applies ONLY to state and local governments 2) Fifth Amendment - applies to federal gov't

Question 59

Scrutiny for Race and National Origin Discrimination

Answer 59

Strict Scrutiny - both to benefiting minorities or limiting their rights

Question 60

How is the existence of racial discrimination proven?

Answer 60

1) The classification exists on the face of the law | 2) Demonstrate both discriminatory IMPACT and discriminatory INTENT

Question 61

Equal Protection: When are numerical set-asides regarding race in statutes allowed?

Answer 61

Numerical set-asides require CLEAR PROOF of past discrimination (must remedy a past situation, not just random benefit)

Question 62

Equal Protection: Educational institutions using race for admissions + Remember Public Schools

Answer 62

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

Question 63

Equal Protection: Gender Classification Scrutiny Test

Answer 63

Intermediate scrutiny is used when gender discrimination is in question

Question 64

How is the existence of gender classification proven?

Answer 64

1) The classification exists on the face of the law | 2) Demonstrate both discriminatory impact and discriminatory intent (same as racial classification)

Question 65

Equal Protection: Alienage Classification Scrutiny Test + Exceptions

Answer 65

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

Question 66

Equal Protection: Discrimination Against Non-Marital Children Scrutiny Test + Exception

Answer 66

Intermediate scrutiny is used Exception: Laws that deny a benefit to all non-marital children but grant it to all marital children are unconstitutional

Question 67

Equal Protection: Rational Basis Review is Used For All Of These Types of Discrimination

Answer 67

1) Age discrimination 2) Disability discrimination 3) Wealth discrimination 4) Economic regulations 5) Sexual orientation discrimination*

Question 68

Free Speech: Content-based v. Content-neutral restrictions

Answer 68

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

Question 69

Free Speech: Prior Restraints Definition + Types

Answer 69

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)

Question 70

Free Speech: Vagueness

Answer 70

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed

Question 71

Free Speech: Overbreadth

Answer 71

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated

Question 72

Free Speech: Fighting Words

Answer 72

Fighting words are those directed at another likely to provoke a violent response. These are UNCONSTITUTIONALLY VAGUE AND OVERBROAD

Question 73

Free Speech: Symbolic Speech + List of Protections (Flag Burning, Draft Card Burning, Nude Dancing, Burning a Cross, Campaign Contribution)

Answer 73

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)

Question 74

Free Speech: Compelled Speech (e.g. Pledge of Allegiance at Schools)

Answer 74

Compelled speech VIOLATES 1st Amendment

Question 75

Free Speech: Anonymous Speech

Answer 75

Anonymous speech is protected by the First Amendment (e.g. law prohibiting distribution of anonymous literature)

Question 76

Free Speech: Government Speech

Answer 76

Speech by the gov't CANNOT be challenged as violating the speech of the 1st Amendment

Question 77

Speech Unprotected/Less Protected: Incitement of Illegal Activity

Answer 77

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

Question 78

Speech Unprotected/Less Protected: Obscenity and Sexually-Oriented Speech Test

Answer 78

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)

Question 79

Speech Unprotected/Less Protected: Zoning Ordinances to Regulate Erogenous Entertainment

Answer 79

The gov't MAY use zoning ordinances to regulate the location of erogenous entertainment (e.g. adult bookstores or movie theaters)

Question 80

Speech Unprotected/Less Protected: Child Pornography

Answer 80

Child pornography may be COMPLETELY BANNED, even if not obscene (to be child pornography, children MUST be used in production of the material)

Question 81

Speech Unprotected/Less Protected: Obscene Materials in Private + Remember Seizing Business Assets

Answer 81

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

Question 82

Free Speech: Profane and Indecent Language + Exceptions

Answer 82

Generally protected by the First Amendment Exceptions: 1) Over the broadcast media 2) In Schools

Question 83

Commercial Speech: Advertising Illegal Activity

Answer 83

Advertising for illegal activity, and false and deceptive ads are NOT PROTECTED by the First Amendment

Question 84

Commercial Speech: Risks of Deception

Answer 84

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

Question 85

Commercial Speech Scrutiny Test + Remember

Answer 85

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

Question 86

Free Speech: Defamation Rules

Answer 86

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

Question 87

Free Speech: Defamatory Speech Intentional Infliction of Emotional Distress Rule

Answer 87

Liability for IIED for defamatory speech MUST meet the defamation standards and CANNOT exist for speech otherwise protected by 1st Amendment

Question 88

Free Speech: Privacy and Dissemination of Information Rules

Answer 88

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)

Question 89

Free Speech: Government Employees

Answer 89

Speech by government employees on the job in the performance of their duties IS NOT protected by the First Amendment

Question 90

Places Available for Free Speech: Public Forums + Regulations (4)

Answer 90

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

Question 91

Places Available for Free Speech: Designated Public Forums + Regulations

Answer 91

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

Question 92

Places Available for Free Speech: Limited Public Forums + Regulation

Answer 92

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

Question 93

Places Available for Free Speech: Non-Public Forums + Regulation

Answer 93

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

Question 94

Freedom of Association + Test to Punish Group Members

Answer 94

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

Question 95

Freedom of Association: Disclosure of Group Member Laws

Answer 95

Laws that require disclosure of group membership, where such disclosure would CHILL ASSOCIATION, must meet STRICT SCRUTINY

Question 96

Freedom of Association: Discrimination of Group Membership

Answer 96

Laws that prohibit groups from discriminating are CONSTITUTIONAL, UNLESS they interfere with intimate association or expressive activity (e.g. KKK or Nazis)

Question 97

Freedom of Religion: Free Exercise Clause + Exception

Answer 97

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

Question 98

Freedom of Religion: Regulating Benefits to Individuals Who Quit Their Jobs for Religious Reasons

Answer 98

The gov't MAY NOT deny benefits to individuals who quit their jobs for religious reasons

Question 99

Freedom of Religion: Ministerial Choices

Answer 99

The government MAY NOT hold religious institutions liable for the choices it makes as to who will be its ministers

Question 100

Freedom of Religion: Denying Benefits to Religious Schools

Answer 100

The denial of benefits to a religious school that are provided to a secular private school MUST meet STRICT SCRUTINY

Question 101

The Establishment Clause

Answer 101

The gov't shall make no law respecting the establishment of a religion

Question 102

The Establishment Clause Test + Tip

Answer 102

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

Question 103

Freedom of Religion: Discrimination Against Religious Speech/Religious Scrutiny

Answer 103

The gov't cannot discriminate against religious speech or among religions UNLESS strict scrutiny is met

Question 104

Freedom of Religion: Religious Activity in Public Schools

Answer 104

Religious activity in public schools is UNCONSTITUTIONAL, BUT religious student and community groups must have the same access to schools as non-religious groups

Question 105

Freedom of Religion: Assistance to Parochial Schools

Answer 105

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)

Question 106

Procedural Due Process for Deprivation of Property

Answer 106

Procedural due process under the Fourteenth Amendment requires NOTICE and an opportunity to be HEARD before the government may deprive a person of property

Question 107

Procedural Due Process for Termination of at "for-cause" Public Employee

Answer 107

Such an employee generally must be given notice of the charges and a PRETERMINATION OPPORTUNITY to respond to those charges.