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Virginia Bar Exam Lecture Based > Constitutional Law > Flashcards

Constitutional Law Flashcards

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1
Q

What is the source of judicial power?

A

Article III

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2
Q

How is judicial power limited?

A

Limits:

  • Actual cases and controversies
  • Political question doctrine
  • Sovereign immunity
  • Abstention
  • SCOTUS special rules
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3
Q

What is the doctrine that determines whether an actual case or controversy exists?

What does it depend on?

A

Doctrine of justiciability depends on:

  • What the lawsuit requests (no advisory opinions)
  • When when the lawsuit is brought (ripe and not moot)
  • Who brings the lawsuit (someone with standing)
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4
Q

What are advisory opinions?

A

Federal court opinions that would lack either:

  • An actual dispute between adverse parties
  • Any legally binding effect on the parties
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5
Q

Would it be an advisory opinion if:

Secretary of State asks SCOTUS for an opinion regarding the meaning of federal treaties and laws?

A

YES

(no actual dispute)

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6
Q

Would it be an advisory opinion if:

Plaintiff sues at the defendant’s request, and the defendant finances and directs the lawsuit?

A

YES

(no adverse parties)

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7
Q

Would it be an advisory opinion if:

Federal law allows veterans to file pension claims in federal court, but gives the Secretary of War the power to ignore court decisions?

A

YES

(no legally binding effect)

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8
Q

Would it be an advisory opinion if:

A firm subject to tax seeks a declaratory judgment on the constitutionality of the tax?

A

NO

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9
Q

When is a controversy not ripe?

A

Pre-enforcement review of laws (i.e., declaratory judgment actions) are generally not ripe, unless both:

  1. Substantial hardship in absence of review
    • The more the better
  2. Issues and record are fit for review
    • The more legal than factual the better
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10
Q

Would a case be ripe if:

Plaintiff seeks declaration on the constitutionality of an anti-contraceptive law not enforced in 80 years?

A

NO

(no substantial hardship, because no threat of enforcement)

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11
Q

Would a case be ripe if:

Drug firms seek declaration that FDA lacked authority to require generic names on all drug labels and ads, where compliance would be extremely expensive and non-compliance would result in serious criminal and civil penalties?

A

YES

(substantial hardship, and more legal than factual)

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12
Q

When is a controversy moot?

A

A case is not moot if:

  1. In a case for declaratory and injunctive relief:
    • The challenged law or conduct continues to injure
  2. In a case for damages:
    • Plaintiff is not made whole

Exceptions:

  • Injury has passed, but:
    1. It is capable of reptition, yet evades review because of inherently limited duration
    2. Defendant may restart challenged activity at will
    3. Some other member of a class action suffers an ongoing injury
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13
Q

Would a case be moot if:

Inmate suing to change prison condition completes sentence?

A

YES

(no more injury)

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14
Q

Would a case be moot if:

Pregant woman challenging abortion restriction delivers?

A

NO

(capable of reptition yet evades review because of inherently limited duration)

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15
Q

Would a case be moot if:

Strip club that city sought to close closes, and owner retires?

A

NO

(defendant may restart at will)

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16
Q

What are the elements of standing?

A
  1. Injury
  2. Causation
  3. Redressability
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17
Q

For purposes of standing, what constitutes injury?

A

Almost any harm, but not:

  • Ideological (i.e., political) objections as citizen or taxpayer
  • General grievances as citizen or taxpayer

Exceptions:

  • Taxpayers have standing to challenge their tax liability
  • Citizens have standing to challenge congressional spending (but not executive) in violation of the Establishment Clause
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18
Q

For purposes of standing, when is the injury required to occur?

A

Injury must either:

  • Have already occurred
  • Will imminently occur
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19
Q

For purposes of standing, who must suffer injury?

A

The plaintiff must personally suffer injury (i.e., no third-party standing)

Exceptions:

  • Close relationship (e.g., parent-child)
    • P injured
    • P unable or unlikely to sue
    • 3P can adequately represent P
  • Organization on behalf of members (e.g., NAACP)
    • Members have standing
    • Members’ injury related to organization
    • Members’ participation not required
  • Free speech overbreadth
    • _​_Substantial overbreadth in sweep of law
    • Not commercial speech
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20
Q

Does the third-party have standing if:

Doctor challenging abortion law raising claim of patient?

A

YES

(close relationship)

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21
Q

Does the third-party have standing if:

Non-custodial parent without decisionmaking authority challenging flag salute on behalf of child?

A

NO

(cannot adequately represent P)

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22
Q

Does the third-party have standing if:

Publisher of obscene website challenging internet indency ban on behalf of those with non-obscene websites?

A

YES, but only if challenging non-commercial free speech

(free speech overbreadth)

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23
Q

Does a legislator have standing if:

Challenging tie-breaking vote that nullified their vote?

A

YES

(sufficiently personal)

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24
Q

Does a legislator have standing if:

Challenging line item veto that gave President power to alter legislation passed by Congress?

A

NO

(not sufficiently personal because injures entire body of Congress)

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25
Q

How do you satisfy the causation requirement for standing?

A

P must show that the injury is fairly traceable to D

(i.e., not too many links in chain between D and injury)

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26
Q

How do you satisfy the redressability requirement for standing?

A

P must show that a favorable decision will remedy the harm

(i.e., through money damages or injunction)

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27
Q

What is the political question doctrine?

What are examples of political questions (6)?

A

Federal courts will not decide political questions - i.e., questions:

  • Committed by Constitution to political brances
  • Incapable of judicial resolution
  • Inappropriate for judicial resolution

Examples

  1. Guarantee clause challenges to state’s government as not republican
  2. Foreign affairs challenges to President’s conduct of foreign policy and command
  3. Impeachment process challenges to procedures used by Senate to remove officials
  4. Partisan gerrymandering challenges to drawing election districts on a partisan basis
  5. Qualifications of members of Congress
  6. Seating of delegates at national political convention
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28
Q

Under the doctrine of soverign immunity:

Who is barred?

Who is not barred?

A

Sovereign immunity bars states from being sued in federal or state courts

It does not bar:

  • State officers from being sued for either:
    • Injunctive relief
    • M__oney damages from their own pocket
  • Local governments from being sued anywhere
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29
Q

Under the doctrine of soverign immunity:

What are the exceptions?

A
  1. Waiver
  2. Suits brought by other states
  3. Suits brought by the federal government
  4. Bankruptcy proceedings
  5. Clear abrogation (repeal) by Congress under 14A powers to prevent discrimination
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30
Q

What is abstention?

A

Federal courts decline to decide a federal constitution claim that turns on an unsettled question of state law

Federal courts decline to enjoin pending state judicial or administrative proceedings

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31
Q

With regard to SCOTUS, what is the final judgment rule?

A

SCOTUS only hears a case if there was a final judgment by either:

  • H__ighest state court capable of rendering a decision
  • Federal court of appeals
  • Three-judge district court
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32
Q

With regard to SCOTUS, what is Independent and Adequate State Grounds (IASG)?

A

SCOTUS will not review a federal question if the state court decision rests on a state law ground that is both:

  • Independent (i.e., separate)
  • Adequate (i.e., sufficient, legitimate)

(in other words, a state law ground is dispositive, regardless of the federal question)

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33
Q

What is the source of legislative power?

A

Article I, Sec. 8

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34
Q

How is legislative power limited?

A

It is limited to the enumerated powers

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35
Q

Does Congress have the general police power to pass laws?

A

No, unless:

  • Federal land
  • Indian reservations
  • District of Columbia
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36
Q

What does the necessary and proper clause do?

A

It is not a basis for legislative power. Rather, it allows Congress to choose any rational means to carry out an enumerated power, so long as that is not prohibited by the Constitution

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37
Q

What are examples of Congress’ enumerated powers?

A
  • Taxing and spending
  • Regulate interstate commerce
  • Citizenship
  • Bankruptcy
  • Federal property
  • Patents and copyright
  • Post offices
  • Coining money
  • Declaring war
  • Raising and supporting armies
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38
Q

What is Congress’ taxing and spending power?

What are the restrictions?

A

Congress can tax/spend to provide for the general welfare

Restrictons:

  • Any strings on spending must:
    • Relate to the purpose of spending
    • Not violate the Constitution

E.g., cannot condition school spending on highway speed limits, or any spending on suppresion of government criticism

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39
Q

What is Congress’ commerce power?

What are the limits?

A

Congress may regulate commerce:

  • With foreign nations
  • With indian tribes
  • Among states

Limits:

  • Cannot regulate non-economic activity in area traditionally regulated by states
  • Cannot compel participation in commerce
    • Even if lack of participation affects interstate commerce
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40
Q

Under the commerce clause, can Congress:

Ban discrimination at hotels and restaurants?

A

YES

(substantial effect on IC in aggregate)

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41
Q

Under the commerce clause, can Congress:

Ban local cultivation and use of marijuana?

A

YES

(substantial effect on IC in aggregate)

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42
Q

Under the commerce clause, can Congress:

Ban domestic violence against women?

A

NO

(non-economic activity traditionally regulated by states)

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43
Q

Under the commerce clause, can Congress:

Ban possessing gun within 1,000 feet of schools?

A

NO

(non-economic activity traditionally regulated by states)

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44
Q

Under the commerce clause, can Congress:

Mandate purchase of health insurance?

A

NO

(can’t compel participation in commerce)

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45
Q

How can Congress prevent and remedy state discrimination?

A
  • Commerce power (if applicable)
  • 14A power to enforce equal protection
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46
Q

Can Congress delegate its power to:

Agencies

President

One chamber of Congress

A

Agencies

  • YES, provided some intelligible principle guides the agency’s exercise of the power

President

  • NO, line item veto is prohibited
    • E.g., President can’t make/overturn laws and avoid bicameralism and presentment

One chamber of Congress

  • NO, legislative veto is prohibited
    • E.g., one house can’t make/overturn laws and avoid bicameralism and presentment
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47
Q

What is the speech or debate clause?

A

Members of Congress are immune from civil or criminal liability for their legislative actions

Legislative actions include:

  • Speeches on floor
  • Voting
  • Committee reports

Legislative actions exclude:

  • Bribes
  • Tweets
  • Town halls
  • Speeches outside Congress
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48
Q

What is the source of executive power?

A

Article II

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49
Q

What are the domestic executive powers?

A
  1. Execute or enforce laws
  2. Appointment
  3. Removal
  4. Pardon
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50
Q

What are the foreign executive powers?

A
  • War
  • Treaties
  • Executive agreements
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51
Q

What is the process for appointment of principal officers (i.e., ambassadors, federal judges, and officers - i.e., cabinet secretaries)?

A
  1. President appoints
  2. Either:
    • Senate gives advice and consent by majority vote
    • Recess appointment if recess of at least 10 days (valid until end of next Senate session)
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52
Q

What is the process for appointment of inferior officers (e.g., undersecretary of state, assistant attorney general, independent counsel)?

A

Congress may vest appointment power in:

  • President
  • Department heads
  • Judiciary
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53
Q

What is the process for removal?

A

High-level executive officers

  • President may remove at will

Other executive officers

  • Congress may limit removal to good cause

Congress cannot remove executive officials except through the impeachment process

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54
Q

Who can the President pardon?

A

Anyone accused or convicted of a federal crime, unless the crime underlies impeachment by the House of Representatives

(Note: no civil pardons)

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55
Q

What are the executive branch’s war powers?

A

Only congress can declare war

But the President, as commander in chief, can deploy troops internationally to protect American lives

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56
Q

What is the executive branch’s power/process with regard to treaties?

A
  1. President negotiates
  2. Senate approves by 2/3 vote
  3. Trumps existing and future state laws
  4. Trumps existing (but not future) federal laws
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57
Q

What are executive agreements?

What is the executive branch’s power/process with regard to executive agreements?

A

Agreements between the President and the head of another country

  1. President negotiates
  2. Trumps existing and future state laws
  3. Trumps existing and future federal laws
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58
Q

What is the impeachment process?

A
  1. House passes articles of impeachment by majority vote
  2. Senate convicts by 2/3 vote
  3. Removal requires both
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59
Q

What are the President’s immunities/privileges?

A

Absolute immunity from any actions within responsibilities

No immunity from actions prior to taking office

Executive privilege protects confidentiality of communications

  • Unless other government interests outweigh privilege
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60
Q

What are the different levels of the President’s inherent (implied) powers?

A
  • Highest
    • Authorized by Congress
  • Lowest
    • Prohibited by Congress
  • Twilight zone
    • Neither authorized nor prohibited
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61
Q

What does the Tenth Amendment say with respect to federalism?

A

Powers that are neither granted to the Federal government, nor prohibited as to the states, are reserved to the states

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62
Q

Who has general police powers?

A

Reserved to the states

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63
Q

What is the anti-comandeering principle?

A

Congress cannot compel states to enact or administer federal programs

E.g., requiring states to enact environmental regulations

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64
Q

Where is the supremacy clause in the Constitution?

What does it do?

A

Article VI

Makes federal law preempt inconsistent state and local laws

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65
Q

Explain the following types of preemption:

  • Express
  • Implied: Conflict
  • Implied: Field
A

Express

  • Congress expressly says that federal law preempts

Implied

  • Conflict
    • It is impossible to follow both federal and state law
  • Field
    • Extensive federal regulation indicates congressional intent to occupy the field
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66
Q

If federal law and state law conflict, but state law is more stringent, is there preemption?

A

No

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67
Q

If federal law and state law conflict, but state law is more lenient, is there preemption?

A

Yes

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68
Q

What is the dormant clause?

A

Prohibits state laws that discriminate or unduly burden interstate commerce

69
Q

What is the privileges and immunities clause?

A

Prohibits state laws that discriminate against out of state US citizens with respect to their:

  • Important commercial activities (i.e., livelihood)
  • Fundamental rights
70
Q

With respect to the dormant commerce clause:

Who is protected (i.e., plaintiff)

What is protected (i.e., claim)

A

Who is protected

  • All out-of-staters

What is protected

  • Interstate commerce
71
Q

With respect to the privileges and immunities clause:

  • Who is protected (i.e., plaintiff)
  • What is protected (i.e., claim)
A

Who is protected

  • US citizens (but not aliens or corporations)

What is protected

  • Important commercial activities
  • Fundamental rights
72
Q

What is the test for the dormant commerce clause?

A

Discriminatory laws favoring in-state over out-of-state commerce are invalid unless:

  1. Necessary to achieve an important government purpose
  2. Narrowly tailored (i.e., no less discriminatory alternative)

Non-discriminatory laws applied both in-state and out-of-state are valid unless:

  • Burden on interstate commerce clearly outweighs non-protectionist benefits
73
Q

What are the exceptions to the dormant commerce clause?

A
  • Congressional approval
  • State is a market participant
74
Q

What is the test for the privileges and immunities clause?

A

Discriminatory laws favoring in-state over out-of-state citizens are invalid unless:

  1. Necessary to achieve an important government purpose
  2. Narrowly tailored (i.e., no less discriminatory alternative)

NO EXCEPTIONS

75
Q

When are state taxes invalid under the commerce clause?

A

When the tax are either:

  • Discriminatory taxes
  • Non-discriminatory taxes if no:
    • Substantial nexus between taxpayer and state
    • Fair apportionment to business done or benefits received in state
76
Q

What does the privileges or immunities clause of the 14th Amendment do?

A

Preserves:

  • Right to interstate travel (but not international travel)
    • E.g., CA cannot limit benefits of new residents
  • Right to petition the federal government
77
Q

With respect to individual rights, what does the constitution apply to?

A

Government action (not private conduct)

78
Q

What amendments are not incorporated?

A
  • 3A - right to not have soldiers quartered in home
  • 5A - right to grand jury indictment
  • 7A - right to jury in civil cases
  • 8A - right against excessive fines
79
Q

When does a private party engage in state action?

A

When the private party performs a function done by the government both:

  • Traditionally
  • Exclusively
80
Q

When does state involvement in private conduct amount to state action?

A
  • Racial restriction enforced by state court
  • State leases premises to business that discriminates
  • State grants license to business that discriminates
  • Voluntary associates of mostly public officials regulates
  • State fails to protect person in custody from harm
81
Q

What provisions govern procedural due process?

A
  • 5A - applies to federal government
  • 14A - applies to state and localities
82
Q

What is the general rule regarding procedural due process?

A

An individual has a right to fair process when the government acts to deprive him of life, liberty, or property

83
Q

For purposes of due process, how do you determine if there was a deprivation?

A

Intentional and reckless, but not negligent conduct

84
Q

What is liberty for purposes of due process?

A

Physical freedom

Constitutional and statutory rights

(not mere harm to reputation)

85
Q

What is property for purposes of due process?

A
  • Real property
  • Personal property, tangible and intangible
  • Government entitlement to which there is a r_easonable expectation of continued receipt_
86
Q

If an individual is deprived, what process is due under procedural due process?

A
  1. Notice
    • Reasonably calculated to inform them of deprivation
  2. Opportunity to be heard
    • Pre-deprivation hearing, unless emergency
  3. Neutral decision-maker
    • No risk of bias
87
Q

What are the different levels of scrutiny that SCOTUS applies?

A
  • Rational basis
  • Intermediate
  • Strict
88
Q

For rational basis scrutiny, what is the:

  • Ends
  • Means
  • Burden
  • Presumption
A

Ends

  • Legitimate interest

Means

  • Rationally related

Burden

  • Challenger

Presumption

  • Valid (i.e., gov’t wins)
89
Q

For intermediate scrutiny, what is the:

  • Ends
  • Means
  • Burden
  • Presumption
A

Ends

  • Important state interest

Means

  • Substantially related

Burden

  • State

Presumption

  • None
90
Q

For strict scrutiny, what is the:

  • Ends
  • Means
  • Burden
  • Presumption
A

Ends

  • Compelling state interest
    • E.g., segregation, corruption, national security

Means

  • Narrowly tailored

Burden

  • State

Presumption

  • Invalid (i.e., gov’t loses)
91
Q

What are the equal protection provisions?

A
  • 5A - applies to federal government
  • 14A - applies to states and localities
92
Q

What are the steps for equal protection analysis?

A
  1. Classification
  2. Scrutiny
93
Q

What are the classifications for strict scrutiny (i.e., suspect classifications)?

A
  • Race
  • National origin
  • Alienage classifications by state generally
  • Denial of fundamental rights to some
94
Q

What are the classifications for intermediate scrutiny (i.e., quasi-suspect)?

A
  • Gender
  • Illegitimacy (i.e., born out of wedlock)
  • Undocumented alien children by state
95
Q

What are the classifications for rational basis scrutiny?

A
  • Age
  • Disability
  • Wealth
  • Alienage classifications by Congress
  • Alienage classifications by state related to democratic governance
  • All other classifications
96
Q

How do you determine what a classification is?

A
  • Facial (i.e., is it facial classification?)
  • Disparate impact and discriminatory intent (i.e., did it create an impact on a class with discriminatory intent?)
97
Q

What level of scrutiny is applies to state classifications based on alienage (i.e., non-citizenship)?

A

Strict scrutiny

Exception:

  • May require US citizenship for activities and positions integral to democratic self governance
    • E.g., voting, holding office, being police, being teacher
    • But not notary public
98
Q

What level of scrutiny applies to gender classifications?

What does it uniquely require?

A

Intermediate scrutiny

Important interest requires exceedingly persuasive justification (not role stereotype)

99
Q

What is substantive due process involved with?

A

Unenumerated fundamental rights

100
Q

What amendments protect substantive due process?

A

14A against states

5A against federal government

101
Q

When is a right deemed fundamental?

A

When the right is either:

  • Deeply rooted in this nation’s history and tradition
  • Implicit in the concept of ordered liberty
    • (i.e., essential to freedom)
102
Q

When is only substantive due process triggered, and when are both substantive due process and equal protection triggered?

A

Substantive due process only:

  • Denying everyone a fundamental right

Substantive due process and equal protection:

  • Denying some a fundamental right
103
Q

Under substantive due process analysis, what level of scrutiny is applied for:

  • Fundamental right
  • Non-fundamental right
A

Fundamental right

  • Strict scrutiny

Non-fundamental right

  • Rational basis
104
Q

Under substantive due process, what are the fundamental rights to which strict scrutiny is applied (7)?

A
  1. Marriage
  2. Procreation
  3. Contraception
  4. Custody, case, and upbringing of children
  5. Living with extended family
  6. Interstate travel
  7. Voting
105
Q

Under substantive due process, what is the one fundamental right to which a test other than strict scrutiny is applied?

What is that test?

A

Fundamental right: abortion

Test: undue burden

106
Q

Under substantive due process, what are the non-fundamental rights to which strict scrutiny is applied (6)?

A

Definitely non-fundamental

  1. Economic rights
  2. Physician-assisted suicide
  3. Education

Unspecified (but non-fundamental for bar purposes)

  1. Private consensual adult sexual intimacy
  2. Refusal of medical treatment
  3. Right to bear arms
107
Q

What is necessary to trigger strict scrutiny based on the fundamental right to marry?

A

Must be a substantial interference (i.e., restrictions on age, proper identification, etc. are okay to protect the right)

108
Q

What is necessary to trigger strict scrutiny based on the fundamental right to vote?

A

Must be a substantial interference (i.e., restrictions on age, residency (but not more than 2 mo.), and citizenship are okay to protect the right)

Examples of substantial interference:

  • Poll taxes
  • Literacy tests
109
Q

How do the population of voting districts have to be in relationship to eachother for:

State and local voting

Federal voting

A

State and local

  • Must be substantially equal

Federal

  • Must be almost exactly equal
110
Q

What is the scope of a state’s ability to regulate abortion at the following stages? What test is applied?

  • Pre-viability
  • Post-viability
A

Pre-viability

  • Scope
    • State can regulate abortions to protect mother’s health or life of fetus
  • Test
    • No undue burden (i.e., substantial obstacle) on access to abortion

Post-viability

  • Scope
    • State can ban abortions unless necessary to protect mother’s life or health
  • Test
    • None
111
Q

What are examples of abortion regulations that are not an undue burden?

A
  • Requiring a licensed physician
  • Requiring informed consent
  • Requiring 24-hour waiting period after informed consent
  • Requiring parental consent for minor
  • Banning partial-birth adoptions
  • Not funding abortions
112
Q

What are examples of abortion regulations that are an undue burden?

A
  • Requiring spousal notification or consent
  • Requiring extensive recordkeeping and reporting
113
Q

What are the limits on takings?

A

The federal government and states may not take private property unless both:

  1. For public use
  2. For just compensation
114
Q

What amendments impose limits on takings?

A

Federal government

  • 5A takings clause

States

  • 14A due process clause
115
Q

What is a regulatory taking?

A

Regulations on use that not merely diminish the property but leave no economically viable use

116
Q

What will satisfy the public use requirement for taking?

A

Any legitimate public use (i.e., rational basis review - very loose)

117
Q

Can taking property from one private party and giving it to another satisfy the public use requirement for taking?

A

Yes, provided that the new user revitalizes the area

118
Q

What satisfies the just compensation requirement for a taking?

A

FMV at the time of the taking

119
Q

What are the three areas that deal with retroactive legislation?

A
  1. Contract clause
  2. Ex post facto laws
  3. Bills of attainder
120
Q

What does the contract clause say?

What’s the applicable test?

A

No state can pass laws impairing the obligation of contracts

Test:

  • Private contract
    • Substantial impairment of existing rights invalid unless:
      1. Important government purpose
      2. Reasonably related means
  • Public contracts
    • Heightened scrutiny (intermediate or strict)
121
Q

What is the rule regarding ex post facto laws?

A

Neither state nor federal government can pass legislation that retroactively alters criminal liability

122
Q

What are the ex post facto categories that are invalid?

A
  1. Criminalizing acts that were innocent when done
  2. Making crimes greater than when committed
  3. Setting punishment greater than when act was done
  4. Reducing evidence required to convict from what was required at the time of the act
123
Q

What is the rule regarding bills of attainder?

A

Neither state nor federal government can pass legislation that designates particular individuals (i.e., by name or description) for punishment without judicial trial

124
Q

What is the freedom of speech analysis?

A
  1. Is it speech?
  2. Is the speech protected or unprotected?
    • General restriction
    • Public property
    • Public school
    • Public employment
  3. Is the restriction vague, overbroad, or a prior restraint?
125
Q

What level of scrutiny applies for the general restriction on freedom of speech?

A

Content-based restriction

  • Strict scrutiny

Content-neutral restriction

  • Intermediate scrutiny
126
Q

What level of scrutiny applies for freedom of speech restrictions on public property?

A
  • Public forum
    • Follow general restriction approach
  • Nonpublic forum
    • Viewpoint based restriction
      • Strict scrutiny
    • Other restriction
      • Reasonableness standard
127
Q

What level of scrutiny applies for freedom of speech restrictions in public school?

A
  • Student speech
    • Pro drug use speech
      • Restriction valid
    • Other speech
      • Must show substantial disruption
  • School speech
    • Reasonably related to legit pedagogical concern
128
Q

What level of scrutiny applies for freedom of speech restrictions in public employment?

A

Private concern or pursuant to job duties

  • No protection

Public concern

  • Balancing test
129
Q

What is speech?

A

Words

Symbols

Expressive conduct

130
Q

What is expressive conduct?

A

Conduct that is:

  • Inherently expressive
  • Both:
    • Intended to convey a message
    • Reasonably likely to be perceived as conveying a message
131
Q

What two categories receive only partial protection under freedom of speech?

A

Defamation about

  • Public officials
  • Public figures
  • Matters of public concern

Commercial speech

  • Not false
  • Not misleading
  • Not illegal
132
Q

What categories receive no protection under freedom of speech?

A
  • Incitement
  • Fighting words
  • True threats
  • Obscenity
  • Child pornography
  • Defamation with actual malice
  • Commercial speech if false, misleading, or illegal
133
Q

What is incitement?

A

Advocacy of lawless action that is:

  • Intended to produce imminent lawless action
  • Likely to produce imminent lawless action
134
Q

What are fighting words?

A

Words likely to provoke an immediate violent response

135
Q

What are true threats?

A

Words intended to convey to someone a serious threat of bodily harm

136
Q

What is obscenity?

A
  • Depiction of sexual conduct
  • That taken as a whole
  • By contemporary standards:
    • Appeals to the purient interest in sex
    • Is patently offensieve
    • Lacks serious social value by national standards
137
Q

Can you have obscenity at home?

A

Yes

138
Q

When can sexually explicit or indecent speech be “zoned”?

A
  1. To protect children and unwilling adults from exposure
  2. To prevent neighborhood crime and decay
  3. Ample alternative must exist for the speech
139
Q

What is child pornography?

A

Definition

  • Depiction of children engaging in sexual conduct whether or not obscene

Note: in-home possession may be banned

140
Q

When is defamation not banned?

A

When made without actual malice about:

  • Public officials
  • Public figures
  • Public concern matters
141
Q

What is actual malice, and how must if be proven?

A

Proven by clear and convincing evidence, either:

  • Knowledge of falsehood
  • Reckless disregard of the truth
142
Q

For purposes of defamation, who is a public figure?

A
  • Someone holding or running for office
  • A public employee in a position of public importance
  • Public official
    • Basically anyone who voluntarily puts themself out there
143
Q

How do you determine whether a defamation claim is valid?

A
  1. Identify the plaintiff (i.e., public official, public figure, or private figure)
  2. Identify the subject matter of the defamation (i.e., public or private concern)

This determines whether you need to prove actual malice and what damages you may recover

144
Q

What is the standard and what damages can be recovered if a defamation claim is against:

  • Public official, public figure
  • Regarding any matter
A

Standard

  • Actual malice

Damages

  • Any
145
Q

What is the standard and what damages can be recovered if a defamation claim is against:

  • Private figure
  • Regarding public concern
A

Standard

  • Actual malice

Damages

  • If actual malice
    • Presumed (i.e., statutory)
    • Punitive
  • If negligence
    • Actual
146
Q

What is the standard and what damages can be recovered if a defamation claim is against:

  • Private figure
  • Private concern
A

Standard

  • No actual malice

Damages

  • Any
147
Q

What does commercial speech include?

What does it exclude?

A

Includes

  • Ads and promotions of products and services
  • Brand marketing (e.g., Nike swoosh)

Excludes

  • Mere profit motive (e.g., NYT, WSJ)
148
Q

What commercial speech is unprotected?

What is protected?

A

Unprotected

  • False
  • Misleading
  • About illegal product or service

Protected

  • All other commercial speech
149
Q

What level of scrutiny applies to commercial speech?

A

Intermediate scrutiny:

  • Substantial government interest (e.g., consumer protection)
  • Narrowly tailored (reasonable fit, or perhaps least restrictive)
150
Q

What are general speech restrictions?

What level of scrutiny applies?

A

Restrictions on protected speech that are generally applicable (i.e., not limited to public property, public schools, or public employees)

Test

  • Content-based
    • Strict scrutiny
  • Content-neutral
    • Intermediate scrutiny
151
Q

What is the difference between content-based and content-neutral speech restrictions?

A

Content-based

  • Suppress speech because of the message or harm that the message may produce (e.g., censorship)

Content-neutral

  • Suppress speech for reasons unrelated to the message
152
Q

With content-based and content-neutral restrictions, what is the different meaning of “narrowly tailored”?

A

Content-based

  • Least restrictive

Content-neutral

  • No substantial overbreadth
153
Q

For purposes of speech restrictions in public forums, what are the different types of government property?

A
  • Traditional public forum
    • Cannot be undesignated as public forum
  • Designated public forum
    • Can be undesignated as public forum
  • Non-public/limited public forum
    • Catch-all category
154
Q

What levels of scrutiny apply to speech restrictions in public forums?

A

Public forums (i.e., traditional or designated)

  • Same as general restrictions:
    • Content-based restriction
      • Strict scrutiny
    • Content-neutral restriction
      • Intermediate scrutiny

Non-public/limited public forums

  • Viewpoint-based
    • Strict scrutiny
  • Other
    • Reasonableness test
155
Q

What is the student speech test?

A
  • Personal student speech
    • Cannot be censored absent evidence of substantial disruption
      • Exception: substantial disruption not needed if promoting illegal drug use
  • School speech
    • Can be censored if reasonably related to legitimate pedagogical concern
156
Q

What is public employee speech is unprotected?

What is protected?

What is the test

A

Unprotected

  • Either:
    • Speech about private concern (e.g., office gossip)
    • Speech pursuant to job duties (e.g., closing argument)

Protected

  • Must be both:
    • Speech about matters of public concern
    • Not made pursuant to job duties

Test

  • Balance speech value against state interest in efficient operation of workplace
157
Q

What is the rule regarding political patronage?

What is the exception?

A

Public employees may not be hired or fired based on political affiliation or expression

Exception: high-level policymakers and advisors

158
Q

When is a speech restriction void for vagueness?

A

If persons of common intelligence cannot tell what speech is prohibited and what speech is permitted

159
Q

When is a speech restriction void for overbreadth?

A

When it prohibits a substantial amount of speech that the government may not suppress

Note: exception for third-party standing under free speech overbreadth doctrine (i.e., third-party can raise non-commercial speech claim on behalf of those whose speech may not be censored even if his can be)

160
Q

When is a speech restriction void for prior restraints?

What test applies?

A

When it prevents speech before the speech occurs, rather than punishing the speech afterwards

If content-based restriction, very strict scrutiny

Prior restraints are historically disfavored

161
Q

What is required for licensing schemes (i.e., speech is conditioned on obtaining a license)?

A

Must have both:

  • Sufficiently definite standards to cabinet discretion
  • Prompt judicial review of denials
162
Q

What is the free exercise clause?

What can the government look at in deciding claims?

A

Claims involving traditional religion as well as beliefs that play a role in the life of a believer similar to that which religion plays a role

Scope of determination:

  • Government can look into the sincerity of beliefs but not the truth of the beliefs
163
Q

What level of scrutiny is applies to free exercise claims?

A
  • Discriminatory laws
    • Strict scrutiny
  • Neutral laws of general applicability
    • Not subject to free exercise clause (i.e., gov’t can impose such restrictions) unless:
      • Restricting a religious organization’s ability to discriminate against a minister (that is allowed)
164
Q

What is the establishment clause?

What are the different tests used to see if it is violated?

A

Congress cannot make laws with respect to religion

Tests:

  1. Neutrality test
  2. Coercion test
  3. Lemon test
  4. Endorsement test
  5. History and tradition test
165
Q

What is the neutrality test under the establishment clause?

A

Government must remain neutral with respect to religion, neither favoring nor disfavoring it

166
Q

What is the coercion test under the establishment clause?

A

Government may not directly or indirectly coerce individuals to exercise or refrain from exercising religion

167
Q

What is the lemon test under the establishment clause?

A

Violation if:

  • Primary purpose of the law is sectarian
  • Primary effect of the law is sectarian
  • Law creates excessive entanglement between government and religion
168
Q

What is the endorsement test under the establishment clause?

A

From standpoint of a reasonable 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

169
Q

What is the history and tradition test under the establishment clause?

A

Sometimes SCOTUS has found that despite failing the other establishment clause tests, a state religous display or practice is a tolerable acknowledgment of the role religion has played in the history and tradition of the nation

Virginia Bar Exam Lecture Based (22 decks)

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