Constitutional Law Flashcards

Question

Separation of Powers and Court Decisions

Answer 1

The Constitution separates governmental powers among the branches of government. This separation of powers doctrine prohibits the legislature from interfering with the courts’ **final judgments**. However, Congress may change federal statutes and may **direct federal courts** to apply those changes in all cases in which a final judgment has not been rendered. * **Example**: The Supreme Court inferred a limitations period under an ambiguous federal securities law. Because new Supreme Court rulings generally apply to all pending cases, the limitations period imposed by the Court resulted in the dismissal of many pending cases as time-barred. Congress amended the securities law to provide (i) a different limitations period and (ii) a special motion for reinstating the cases dismissed as time-barred by the Supreme Court’s ruling. Because the dismissed cases were final judgments, the statute providing for the reinstatement violated the separation of powers doctrine under the Constitution. (*Plaut v. Spendthrift Farm, Inc.*)

Answer 2

Federal review of state acts (executive, legislative, or judicial) was established by the Marshall Court in a series of decisions. Clear basis exists here in the **Supremacy Clause of Article VI**, which states that the Constitution, Laws, and Treaties of the United States take precedence over state laws and that the judges of the state courts must follow federal law, anything in the constitution or laws of any state to the contrary notwithstanding.

Answer 3

The federal government is a government of limited powers, which means that for federal action to be legitimate, it must be **authorized**. The Constitution is the instrument that authorizes the federal government to act. Thus, whenever a question involves action by an entity of the federal government, the action will be valid only if it is authorized by the Constitution. The Constitution authorizes a federal court system in **Article III**, which provides that federal courts shall have judicial power over **all “cases and controversies**.” Article III courts are those established by Congress pursuant to the provisions of Article III, Section 1. Congress has power to **delineate the jurisdictional limits**, both **original** and **appellate**, of these courts, although it is bound by the standards of judicial power set forth in Article III as to subject matter, parties, and the requirement of “case or controversy.” Thus, Congress cannot require these courts to render **advisory opinions** or perform **administrative or nonjudicial functions**.

Answer 4

Under Article III, Section 2, the Supreme Court has original jurisdiction “in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.” This provision is self-executing: Congress may **neither restrict nor enlarge** the Supreme Court’s original jurisdiction, but Congress may give concurrent jurisdiction to **lower federal courts** and has done so regarding all cases except those between states.

Answer 5

Congress has provided two methods for invoking Supreme Court appellate jurisdiction: **appeal** (where jurisdiction is mandatory), and **certiorari** (where jurisdiction is within the Court’s discretion). Very few cases fall within the Court’s mandatory appeal jurisdiction; thus, appellate jurisdiction is almost completely discretionary. The Supreme Court has complete discretion to hear cases that come to it by **writ of certiorari**. A case will be heard if four justices agree to hear it. The following cases may be heard by certiorari: * **(1)** Cases from the **highest state courts** where **(i)** the constitutionality of a federal statute, federal treaty, or state statute is called into question; or **(ii)** a state statute allegedly violates federal law; and * **(2)** All cases from **federal courts of appeals**.

Answer 6

*Ex parte McCardle* has been read as giving Congress full power to **regulate and limit** the Supreme Court’s **appellate jurisdiction**. However, possible limitations on such congressional power have been suggested: * **(1)** Congress may **eliminate specific avenues** for Supreme Court review as long as it does not eliminate **all avenues**. * For example, in *McCardle*, two statutes had allowed the Supreme Court to grant habeas corpus to federal prisoners. The Supreme Court upheld the constitutionality of the repeal of one of the statutes because the other statute remained as an avenue for Supreme Court habeas corpus review. * **(2)** Although Congress may **eliminate** Supreme Court review of certain cases within the federal judicial power, it must permit jurisdiction to remain in **some lower federal court**. * **(3)** If Congress were to deny all Supreme Court review of an alleged violation of **constitutional rights**—or go even further and deny a hearing before any federal judge on such a claim—this would violate due process of law.

Answer 7

Even if a federal court has jurisdiction over the subject matter of a case, it still might refuse to hear the case. Whether the court will hear the case (i.e., whether the case is **justiciable**) depends on whether a “**case or controversy**” is involved, and on whether other **limitations on jurisdiction** are present. Justicibility issues include: * **(1)** advisory opinions, * **(2)** ripeness, * **(3)** mootness, * **(4)** standing, * **(5)** political questions, and * **(6)** adequate and independent state grounds.

Answer 8

The Supreme Court’s interpretation of the “case and controversy” requirement in Article III bars rendition of “**advisory**” opinions. Thus, federal courts will not render decisions in **moot** cases, **collusive** suits, or cases involving challenges to governmental legislation or policy whose enforcement is **neither actual nor threatened**.

Answer 9

The Court will not decide **political questions**. Political questions are: * **(a)** those issues **committed by the Constitution** to another branch of government; or * **(b)** those inherently **incapable of resolution and enforcement** by the judicial process.

Answer 10

Although Congress may appoint its own officers to carry on **internal legislative tasks** (i.e., its staff), it may not appoint members of a body with **administrative or enforcement powers**; such persons are “officers of the United States” and must, pursuant to Article II, Section 2, be appointed by the President with senatorial confirmation unless Congress has vested their appointment in the President alone, in federal courts, or in heads of departments. (*Bucky v. Valeo*).

Answer 11

Congress has **broad discretion** to delegate its **legislative power** to executive officers and/or administrative agencies, and even delegation of rulemaking power to the courts has been upheld. (*Mistretta v. U.S.*). * **(a) Power Cannot Be Uniquely Confined to Congress** → To be **delegable**, the power must not be **uniquely confined to Congress**; e.g., the power to declare war cannot be delegated, nor the power to impeach. * **(b) Clear Standard** → It is said that delegation will be upheld only if it includes **intelligible standards** for the delegate to follow. However, as a practical matter almost anything will pass as an “intelligible standard” (e.g., “upholding public interest, convenience, or necessity”). * **(c) Separation of Powers Limitations** → While Congress has broad power to delegate, the **separation of powers doctrine** restricts Congress from keeping certain controls over certain delegates. * **(d) Important Liberty Interests** → If the delegate interferes with the exercise of a **fundamental liberty or right**, the burden falls upon the delegate to show that she has the **power to prevent the exercise of the right** and her decision was in **furtherance of** that particular policy. * **(e) Criminal vs. Civil Punishment** → The legislature may delegate its authority to **enact regulations**, the violation of which are crimes, but prosecution for such violations must be left to the **executive and judicial branches**. However, agencies may enact and impose **civil penalties** (i.e., fines labeled as civil fines) without prosecution in court.

Answer 12

The veto power allows the President only to **approve or reject a bill** in toto; he cannot cancel part (through a line item veto) and approve other parts. Rationale: The President’s veto power does not authorize him to amend or repeal laws passed by Congress. (*Clinton v. City of New York*).

Answer 13

The Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. The Court will refuse jurisdiction if it finds **adequate and independent nonfederal grounds** to support the state decision. * **(a) “Adequate”** → The nonfederal grounds must be “adequate” in that they are **fully dispositive** of the case, so that even if the federal grounds are wrongly decided, it would not affect the outcome of the case. Where that is the case, the Supreme Court’s review of the federal law grounds for the state court’s decision would have no effect on the judgment rendered by the state court, so that the Supreme Court, in effect, would be rendering an advisory opinion. * **(b) “Independent”** → The nonfederal grounds must also be “independent.” If the state court’s interpretation of its state provision was **based on federal case law** interpreting an identical federal provision, the state law grounds for the decision are not independent. * **(c) Where Basis Is Unclear** → If it is unclear whether the state court decision turned on federal or state law, the Supreme Court may dismiss the case or remand it to the state court for clarification. However, the Court will usually assume that there is no adequate state ground unless the state court expressly stated that its decision rests on state law.

Answer 14

The dormant aspect of the commerce clause occurs when two events coalesce: **(1)** a state **regulates interstate commerce** (or foreign or Indian commerce), and **(2)** Congress has **not preempted** the state regulation by federal legislation. In the absence of such congressional action the Court implies some limits upon state regulation of interstate commerce. If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce if the regulation: * **(1)** does **not discriminate** against out-of-state competition to benefit local economic interests; and * **(2)** is not **unduly burdensome** (i.e., the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation). If either test is not met, the regulation will be held **void** for violating the Commerce Clause.

Answer 15

State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always **invalid**. * **Examples**: **(1)** regulations protecting local businesses, **(2)** regulations requiring local operations, **(3)** regulations limiting access to in-state products, and **(4)** regulations prohibiting out-of-state wastes. However, a discriminatory state or local law may be valid if it furthers an important, **noneconomic state interest** (e.g., health or safety) and there are **no reasonable alternatives** available.

Answer 16

The Commerce Clause does not prevent a state from preferring its own citizens when the state is acting as a **market participant** (e.g., buying or selling products, hiring labor, giving subsidies). For example, a state may purchase scrap automobiles from its citizens at a higher-than-market rate and refuse to pay nonresidents the same amount. * **(a) Limitation, Interstate Privileges and Immunities Clause** → While a state or local government does not violate the Commerce Clause by preferring its own citizens while acting as a market participant, there is no market participant exception to the Interstate Privileges and Immunities Clause. Thus, a regulation that interferes with **private sector employment** may violate the Privileges and Immunities Clause unless the regulating entity can show a **substantial justification** for the regulation. * (**b) Limitation, “Downstream” Restrictions** → While a state may choose to sell only to state residents, it may not attach **conditions** to a sale that would **discriminate** against interstate commerce. For example, Alaska violated the Commerce Clause when it imposed a contractual requirement on purchasers of state-owned timber that the timber be processed in Alaska before being shipped out of state.

Answer 17

The Supreme Court applies a more lenient standard when a law favors **government action** involving the performance of a **traditional government function** (such as waste disposal). Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism. * **Example**: A county flow control ordinance that favored a state-created public waste facility by requiring waste haulers to bring the wastes to the state facility rather than to private facilities is valid.

Answer 18

Sometimes a nondiscriminatory state or local law that regulates commerce may impose a **burden on interstate commerce**; e.g., a state law regulating the size of trucks within that state may burden interstate commerce because interstate trucking operations will be subject to the law when their trucks enter the state. A nondiscriminatory law will be invalidated only if the **burden on interstate commerce outweighs the promotion of legitimate (not discriminatory) local interests**. This is a case-by-case balancing test. * **(a) Absence of Conflict with Other States** → State and local laws regulating commerce are more likely to be upheld when there is little chance that states would have **conflicting regulations** of the same subject matter. * **(b) State Control of Corporations** → A different standard may apply to statutes regulating the **internal governance of a corporation** adopted by the state of incorporation. Because of the states’ long history of regulating the internal governance of corporations that they create, and because of their strong interest in doing so, even a statute that **heavily impacts** interstate commerce may be upheld.

Answer 19

Congress has **no general police power** (i.e., power to legislate for the health, welfare, morals, etc., of the citizens). Thus, on the bar exam the validity of a federal statute cannot rely on “the police power.” However, Congress can exercise police power-type powers as to the District of Columbia pursuant to its power to legislate over the capital [Art. I, §8, cl. 17] and over all United States possessions (e.g., territories, military bases, Indian reservations) pursuant to the property power.

Answer 20

Whereas the federal government has only those powers **granted to it** by the Constitution, the state governments are governments of “**unlimited**” powers, having all powers **not prohibited** to them by the Constitution. This is recognized by the **Tenth Amendment**, which provides that all powers not delegated to the federal government by the Constitution are reserved to the states (or to the people). However, given the expansive interpretation of federal powers (e.g., the commerce power; see II.A.4., supra), little state power is exclusive.

Answer 21

The **Tenth Amendment** provides that powers not delegated to the United States by the Constitution, nor prohibited to the states, are **reserved to the states**. This reservation of power is often cited as a restriction on Congress’s power to regulate the states.

Answer 22

The Supreme Court will not likely strike down on Tenth Amendment grounds a tax or regulation that subjects states or local governments to regulations or taxes that apply to **both the public sector and the private sector**. It has held that in such cases, the states’ interests are best protected by the states’ representation in Congress. * **Example**: Congress can require state and local governments to follow the provisions of the Federal Fair Labor and Standards Act requiring minimum wages for all employees. (*Garcia*).

Answer 23

The Tenth Amendment does limit Congress’s power to regulate the **states alone** by requiring the states to act in a **particular way**. Congress may not compel states to enact or enforce a regulatory program. Similarly, if Congress passes a tax that does not apply to private businesses but merely taxes state government entities, there is a possibility that the Court would use the Tenth Amendment to prohibit the tax. * **(a) Exemption, Civil Rights** → Congress **may** use its power under the **Fourteenth** and **Fifteenth Amendments** to restrict state activities that it determines would **violate the civil liberties** of persons within the state. * **(b) Exemption, Spending Power Conditions** → Congress may also “regulate” states through the spending power by imposing **conditions on the grant of money to state or local governments** (sometimes referred to as grants with strings attached). Such conditions will not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program if the conditions: * **(i)** are **clearly stated**; * **(ii)** **relate to the purpose** of the program; and * **(iii)** are **not unduly coercive**.

Answer 24

The Supreme Court has held that the Tenth Amendment prohibits Congress from adopting a statute that “commandeers” state officials **by requiring states to regulate their own citizens**. However, the Court has allowed Congress to **regulate the states by prohibiting them from performing certain acts**.

Answer 25

Congress has the power to **lay and collect taxes**, imposts, and excises, but they must be **uniform** throughout the United States. [Art. I, §8]. Capitation or other direct taxes must be laid in proportion to the census [Art. I, §9, cl. 4], and direct taxes must be apportioned among the states [Art. I, §2, cl. 3]. * **(a) What Is a Tax?** → The determination of whether a legislative enactment imposes a tax does not depend on the label Congress gives it, but rather on its **function**. (*Sebelius*). * **(b) Uniformity** → Requirement of uniformity in the levy of indirect taxes (generally, this means any kind of “privilege” tax, including duties and excises) has been interpreted by the Court to mean **geographical uniformity** only—i.e., identical taxation of the taxed Article in every state where it is found.

Answer 26

Congress may spend to “provide for the common defense and general welfare.” [Art. I, §8] This spending may be for **any public purpose**—not merely the accomplishment of other enumerated powers. However, **non-spending regulations** are not authorized. Remember that the Bill of Rights still applies to this power; i.e., the federal government could not condition welfare payments on an agreement not to criticize government policies. * **Regulation Through Spending** → Note that Congress can use its spending power to “regulate” areas, even where it otherwise has no power to regulate the area, by requiring entities that accept government money to act in a certain manner (i.e., attaching “strings” to government grants).

Answer 27

Article IV, Section 2, the **Interstate Privileges and Immunities Clause**, provides that “[t]he Citizens of each state shall be entitled to all Privileges and Immunities of citizens in the several states.” Thus, it prohibits discrimination by a state against nonresidents. * **(1) Corporations and Aliens Not Protected** → Corporations and aliens are **not citizens** of a state for purposes of the Privileges and Immunities Clause. * **(2) Only “Fundamental Rights” Protected** → The Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents of the state when the discrimination concerns “**fundamental rights**”—i.e., rights relating to important commercial activities (such as pursuit of a livelihood) or **civil liberties**. However, the Clause applies only if the discrimination is **intentionally protectionist** in nature. * **(3) Substantial Justification Exception** → A state law discriminating against nonresidents may be valid if the state has a **substantial justification** for the different treatment. In effect, it must show that nonresidents either cause or are part of the problem it is attempting to solve, and that there are **no less restrictive means** to solve the problem.

Answer 28

At the very least, due process requires that before a person is deprived of **life, liberty, or property** he must be given “**notice** of the case against him and **opportunity** to meet it.” While all intentional governmental deprivations of life, liberty, or property require fair process, what constitutes fair process in terms of the timing and scope of the hearing varies according to the circumstances of the deprivation. The Court will weigh: * **(i)** the importance of the **individual interest** involved; * **(ii)** the value of specific **procedural safeguards** to that interest; and * **(iii)** the **governmental interest** in fiscal and administrative efficiency. In all situations, the Court will probably require **fair procedures** and an **unbiased decisionmaker**. Normally, the person whose interest is being deprived should also receive **notice** of the government’s action and have an **opportunity to respond** before termination of the interest. However, the court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable.

Answer 29

Perhaps the most enduring monument of substantive due process is the incorporation doctrine, by which most of the substantive guarantees of the Bill of Rights have been “**incorporated**” into the **Fourteenth Amendment’s due process clause** and thus made **applicable to the states**. The debate over incorporation was not so much about whether the Fourteenth Amendment’s due process clause made any of the Bill of Rights guarantees applicable to the states, but whether the due process clause incorporated those guarantees **in toto** and all at once or did so selectively. * **Bill of Rights Not Included** → The *Slaughterhouse Cases* held that the fundamental rights protected against federal abuse (first 10 Amendments) are **not privileges or immunities of national citizenship** within the meaning of the Fourteenth Amendment; nor are such other basic rights as the right to live, work, and eat. Thus, the guarantees of the Bill of Rights are protected from state action only by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Answer 30

Even though the Court has repudiated substantive due process as a device to protect **unenumerated economic rights**, it has displayed a willingness to use the due process clauses to strike down laws that impinge on what the Court thinks are fundamental **unwritten noneconomic rights**. The all-purpose rubric to describe these rights is “**privacy**,” but that term is a bit of a misnomer. Rather, the Court uses the due process clauses to protect an ill-defined cluster of **noneconomic personal interests** that the Court thinks are critical to human autonomy.

Answer 31

The Supreme Court has found that certain activities are so traditionally the **exclusive prerogative of the state** that they constitute state action even when undertaken by a **private individual or organization**. To date, only **running a town** and **running an election for public office** have been found to be such exclusive public functions. * **Traditional and Exclusive** → To be state action, the activity must be both a **traditional and exclusive** government function. * **Granting of Monopoly** → State action will not be found merely because the state has **granted a monopoly** to a business or **heavily regulates** it.

Answer 32

The fact that a state entity helps formulate and adopts the rules of a private entity, and chooses to follow the order of the private entity pursuant to those rules, does not convert the private entity’s action into state action. However, a state may be so **entwined with a private organization** that the organization’s actions will be considered state action. * **State as Lessor for Racist Lessee** → In *Burton v. Wilmington Parking Authority*, Delaware was held responsible under the Fourteenth Amendment Equal Protection Clause for the exclusion of blacks from a coffee shop which was located in a public building. The shop was constructed by and **leased from the state**. The **maintenance** of the facility was **paid for with public funds** and Delaware was able to charge a higher rent because it allowed the restaurant owner to cater to the prejudices of its white customers.

Answer 33

Purportedly private action will be given state action status if the action is **encouraged or sanctioned** by the state. * **(a) Judicial Approval** → State court enforcement of **restrictive covenants prohibiting sale or lease of property to blacks** constitutes state action even in civil proceedings between private parties. (Shelley v. Kraemer). * **(b) State Authorization** → In *Reitman v. Mulkey*, the Court invalidated a state constitutional provision that **repealed all existing state laws banning discrimination** in the sale or lease of property and prohibited reenactment of such laws in the future because such laws “authorize” private discrimination.

Answer 34

The Fourteenth Amendment **prohibits states** (not the federal government or private persons) from depriving any person of **life, liberty, or property** without **due process** and **equal protection** of the law. This amendment is a most important source of limitations on the states’ power over individuals, because, through the Due Process Clause, most of the protections of the Bill of Rights are applicable to the states. * **(a) Requirement of State Action** → The Fourteenth Amendment applies only if there is action by a state or local government, government officer, or private individual whose behavior meets the requirements for state action. * **(b) Scope of Congressional Power** → Section 5 of the Fourteenth Amendment is an enabling clause giving Congress the power to adopt **appropriate legislation** to enforce the rights and guarantees provided by the Fourteenth Amendment. Under Section 5, Congress may not expand **existing constitutional rights or create new ones**—it may only enact laws to **prevent or remedy violations of rights** already recognized by the courts. To adopt a valid law, Congress must point to a **history or pattern of state violation** of such rights and adopt legislation that is **congruent and proportional** (i.e., narrowly tailored) to solving the identified violation. Note, however, that when Congress is dealing with a type of discrimination that the Supreme Court reviews using heightened scrutiny, Congress will generally have more power to act.

Answer 35

The Fifteenth Amendment is a limitation on both the **states and the federal government**. It prohibits them from denying any citizen the **right to vote** on account of race or color. The Fifteenth Amendment contains an **enabling clause** that allows Congress to **adopt legislation** protecting the right to vote from discrimination. * **Limitations** → Fifteenth Amendment legislation can be limited by other constitutional principles. For example, the Supreme Court found that the Tenth Amendment and principles of equal sovereignty among the states require Congress to have extraordinary justification to adopt legislation requiring some, but not all, states to obtain federal approval before changing any voting law. (*Shelby County v. Holder*).

Answer 36

At a minimum, a legislative classification must be **rationally related to a legitimate government objective**. This “minimal review” or “rational basis scrutiny” might be thought of as the **default level of equal protection review**. The plaintiff challenging the validity of a legislative classification must prove either **(1)** that the classification does not **rationally advance a legitimate state objective** or **(2)** that, no matter how well the classification serves the objective, the objective is **not legitimate**.

Answer 37

Some classifications are **presumptively void**, either because they employ **suspect criteria** (e.g., race) or because they impinge substantially on a **constitutionally fundamental right**. When such a classification is encountered, the burden is on the government to prove that the classification is **necessary** (or “**narrowly tailored**”) to accomplish a **compelling government objective**. Various **privacy rights**, including **marriage**, **procreation**, **contraception**, and **childrearing**, are **fundamental rights**. Thus, regulations affecting these rights are reviewed under the **strict scrutiny** standard and will be upheld only if they are necessary to a compelling interest.

Answer 38

To complicate matters, the Court has devised an intermediate level of scrutiny to deal with **classifications by sex or illegitimate birth**. In essence, the Court views these classifications as “**quasi-suspect**,” or somewhat suspect, and thus they are **presumptively void**. The government has the burden of proving that these classifications are **substantially related to an important state interest**. The government’s objective need not be compelling, but it must be **more than merely legitimate**. The classification need not be necessary, or narrowly tailored, to the objective, but it must be **more closely related** to the objective than merely rational. This standard requires an explanation of why these classifications, if sufficiently suspicious to merit a presumption of invalidity, are **not subjected to strict scrutiny**.

Answer 39

A law may include a classification **on its face**. This type of law, by its own terms, makes an explicit distinction between classes of persons (perhaps by race or gender; e.g., all white males 21 or older may serve as jurors). In such cases the courts merely have to apply the **appropriate standard of review for that classification**. * **Facial Discrimination Absent Racial Language** → In a few cases, the Supreme Court has held that a law used a racial classification “on its face” even though the language of the law did not include racial language. In these cases, the Supreme Court found that the law could not be explained except in racial terms.

Answer 40

In some instances, a law that appears to be **neutral on its face** will be applied in a different manner to **different classes of persons**. If the persons challenging the governmental action can prove that the **government officials applying the law had a discriminatory purpose** (and used discriminatory standards based on traits such as race or gender), the law will be invalidated.

Answer 41

Sometimes a government action will appear to be **neutral on its face** and in its application, but will have disproportionate impact on a **particular class of persons** (such as a racial minority or women). Such a law will be found to involve a classification (and be subject to the level of scrutiny appropriate to that classification) only if a court finds that the **law-making body** enacted or maintained the law for a **discriminatory purpose**. In such cases, the court should admit into evidence **statistical proof that the law has a disproportionate impact on one class of persons**. However, mere statistical evidence will **rarely be sufficient** in itself to prove that the government had a discriminatory purpose in passing a law. Statistical evidence may be combined with other evidence of legislative or administrative intent to show that a law or regulation is the product of a discriminatory purpose.

Answer 42

Recall that only intentional discrimination will be found to create discriminatory classifications calling for strict scrutiny; thus, only intentional segregation in schools will be invalidated under equal protection. * **Remedying Intentional School Segregation** → If it is proven that a school board has **engaged in the racial districting of schools**, the board **must take steps to eliminate the effects** of that discrimination (e.g., busing students). If the school board refuses to do so, a court may order the school district to take all appropriate steps to eliminate the discrimination. However, a court may not impose a remedy that goes **beyond the purpose** of remedying the vestiges of past segregation. Thus, it is impermissible for a court to impose a remedy whose purpose is to **attract nonminority students from outside the school district** when there is no evidence of past segregation outside the district.

Answer 43

Government action—whether by federal, state, or local governmental bodies—that **favors** racial or ethnic minorities is subject to **strict scrutiny**, as is government action **discriminating** against racial or ethnic minorities. * **(1) Remedying Past Discrimination** → The government has a **compelling interest** in remedying past discrimination against a racial or ethnic minority. Thus, if a court finds that a governmental agency has engaged in racial discrimination, it may employ a race-conscious remedy tailored to **end the discrimination and eliminate its effects**. A remedy of this type is permissible under the Equal Protection Clause because it is **narrowly tailored to further a compelling interest** (the elimination of the illegal or unconstitutional discrimination). * **(2) When There Has Been No Past Discrimination** → Even where a state or local government has not engaged in past discrimination, it may have a **compelling interest** in affirmative action. However, the governmental action must be **narrowly tailored** to that interest.

Answer 44

Race can be considered in drawing up new voting districts, but it **cannot be the predominant factor**. If a plaintiff can show that a redistricting plan was drawn up predominantly on the basis of racial considerations (as opposed to the more traditional factors, such as compactness, contiguity, and community interest), the plan will violate the Equal Protection Clause **unless** the government can show that the plan is **narrowly tailored to serve a compelling state interest**.

Answer 45

Private employers, of course, are **not restricted by the Equal Protection Clause**, since the Clause applies only to the government, and private employers lack state action. Nevertheless, Congress has adopted statutes regulating private discrimination by employers pursuant to its power under the enabling provisions of the Thirteenth and Fourteenth Amendments and the Commerce Clause.

Answer 46

The standard for review of federal government classifications based on alienage is not clear, but they never seem to be subject to strict scrutiny. Because of Congress’s plenary power over aliens, these classifications are valid if they are **not arbitrary and unreasonable**. Thus, federal Medicare regulations could establish a five-year residency requirement for benefits that eliminated many resident aliens.

Answer 47

State/local laws are subject to **strict scrutiny** if based on alienage. A “**compelling state interest**” must be shown to justify disparate treatment. For example, a state law requiring United States citizenship for welfare benefits, civil service jobs, or a license to practice law will be struck down because there is no compelling interest justifying the requirement. * **Exception: Participation in Self-Government Process** → If a law discriminates against alien participation in the functioning of the state government, the **rational basis standard** is applied.

Answer 48

**(a) Intentional Discrimination Against Women** → Gender classifications that intentionally discriminate against women will generally be invalid under the intermediate standard, because the government is unable to show the “**exceedingly persuasive justification**” that is required. * **Government Interest Must Be Genuine** → The “important government interest” advanced to justify categorization on the basis of gender must be **genuine**—not hypothesized for the purpose of litigation defense. Neither may the government’s justification rely on overbroad generalizations about males and females that will create or perpetuate the legal, social, and economic inferiority of women. **(b) Affirmative Action Benefitting Women** → Classifications benefiting women that are designed to **remedy past discrimination** against women will generally be upheld.

Answer 49

The following have been held invalid under the Equal Protection Clause: * **(a)** Denial to admit males to a state university or nursing school (*Mississippi University for Women v. Hogan*); * **(b)** Law that provides that only wives are eligible for alimony (*Orr v. Orr*); * **(c)** Law that permits unwed mother, but not unwed father, to stop adoption of offspring (*Caban v. Mohammed*); and * **(d)** Law providing a higher minimum drinking age for men than for women (*Craig v. Boren*).

Answer 50

The following have been upheld under the Equal Protection Clause despite their discriminatory intent: * **(a)** Law punishing males but not females for statutory rape (sexual intercourse with a minor) (*Michael M. v. Superior Court*); * **(b)** Male-only draft registration (*Rostker v. Goldberg*); and * **(c)** A law granting automatic United States citizenship to nonmarital children born abroad to American mothers, but requiring American fathers of children born abroad to take specific steps to establish paternity in order to make such children United States citizens. (*Nguyen v. Immigration and Naturalization Service*).

Answer 51

Restrictions on the **content of speech** must be **necessary to achieve a compelling government interest**. Very few restrictions on the content of speech are tolerated. The Court allows them only to prevent grave injury. The following is a list of the only reasons for which the Court has allowed content-based restrictions on speech (i.e., the following are categories of unprotected speech): * **(i)** It creates a **clear and present danger** of imminent lawless action. * **(ii)** It constitutes “**fighting words**” as defined by a narrow, precise statute. * **(iii)** The speech, film, etc., is **obscene**. (This category includes “child pornography.”) * **(iv)** The speech constitutes **defamation**, which may be the subject of a civil “penalty” through a tort action brought by the injured party. * **(v)** The speech violates regulations against **false or deceptive advertising—commercial speech** is protected by the First Amendment and it cannot be proscribed simply to help certain private interests. * **(vi)** The government can demonstrate a “**compelling interest**” in limitation of the First Amendment activity. Recall that even if a regulation falls within one of the above categories, it will not necessarily be held valid; it might still be held to be void for vagueness or overbreadth.

Answer 52

A state cannot forbid advocating the use of force or of law violation unless such advocacy **(i)** is **directed to producing or inciting** imminent lawless action, and **(ii)** is **likely to produce or incite** such action. (*Brandenburg v. Ohio*). * **Example**: The “clear and present danger” test has been applied to hold that a state may not punish as contempt out-of-court utterances critical of a judge, absent special circumstances showing an extremely high likelihood of serious interference with the administration of justice. (*Wood v. Georgia*). **(a) Allows for Sanctions Against Speech** → The test allows for sanctions against speech causing **demonstrable danger to important government interests**. Disclosure of United States intelligence operations and personnel is “clearly not protected” speech. (*Haig v. Agee*). **(b) Compelling Justification Test** → A similar test—one of “**compelling justification**”—was employed to hold unconstitutional the Georgia legislature’s refusal to seat Julian Bond, an elected black representative, where Bond’s speeches, critical of United States policy on Vietnam and the draft, led the legislature to doubt his fitness and his ability to take the oath of office in good faith. (*Bond v. Floyd*).

Answer 53

The First Amendment does not protect “**true threats**”—statements meant to **communicate an intent** to place an individual or group in **fear of bodily harm**. (*Virginia v. Black*: a state may ban cross burning done with an intent to intimidate; because of cross burning’s long history as a signal of impending violence, the state may specially regulate this form of threat, which is likely to inspire fear of bodily harm).

Answer 54

States are free to ban the use of “**fighting words**,” i.e., those personally abusive epithets that, when addressed to the ordinary citizen, are **inherently likely to incite immediate physical retaliation**. (*Chaplinsky v. New Hampshire*). *Chaplinsky* has, however, been narrowly read. Thus, in *Cohen v. California*, the Court held that the state may not punish the defendant for wearing a jacket bearing the words “Fuck the Draft,” pointing out that while the four-letter word displayed by Cohen in relation to the draft is commonly employed in a personally provocative fashion, in this instance, it was clearly **not directed to the person of the hearer**.

Answer 55

While this classification of punishable speech continues to exist **in theory**, the Court rarely upholds punishments for the use of such words. Statutes that attempt to punish fighting words will tend to be overbroad or vague; the statute will define the punishable speech as “opprobrious words,” “annoying conduct,” or “abusive language.” Such statutes will fail, as their imprecise terms could be applied to protected (nonfighting words) speech. Such a statute could not be used to punish a person for saying to a police officer, “White son of a bitch, I’ll kill you.” (*Gooding v. Wilson*; *Lewis v. City of New Orleans*).

Answer 56

Although the general class of “**fighting words**” is proscribable under the First Amendment, the Supreme Court generally will not tolerate in fighting words statutes restrictions that are designed to punish **only certain viewpoints** (i.e., proscribing fighting words only if they convey a particular message). (*R.A.V. v. City of St. Paul*: ordinance that applies only to those fighting words that insult or provoke violence on the basis of race, religion, or gender is invalid). The First Amendment does not protect conduct simply because it happens to be **motivated by a person’s views or beliefs**. Thus, a state can increase a convicted defendant’s sentence for aggravated battery based on the fact that the defendant selected the victim of his crime **because of the victim’s race**. (*Wisconsin v. Mitchell*). However, punishment may not be increased merely because of the defendant’s abstract beliefs. (*Dawson v. Delaware*: unconstitutional to increase defendant’s sentence merely because it was proved that he belongs to an organization that advocates racism).

Answer 57

Obscenity is not protected speech. (*Roth v. United States*). The Court has defined “obscenity” as a **description or depiction of sexual conduct** that, taken **as a whole**, by the **average person**, applying **contemporary community standards**: * **(i)** appeals to the **prurient interest** in sex; * **(ii)** portrays sex in a **patently offensive** way; and * **(iii)** does not have **serious literary**, **artistic**, **political**, or **scientific value**—using a national, reasonable person standard, rather than the contemporary community standard. (*Miller v. California*; *Pope v. Illinois*).

Answer 58

The dominant theme of the material considered **as a whole must** appeal to the prurient interest in sex of the **average person**. The Supreme Court has found this to include that which appeals to **shameful or morbid interests** in sex, but not that which **incites lust** (insofar as lust may include a normal interest in sex). (*Brockett v. Spokane Arcades, Inc.*). For exam purposes, it is probably sufficient merely to know the standard (since its application is a fact determination). * **(a) Average Person** → Both sensitive and insensitive adults may be included in determining contemporary community standards, but **children may not be considered** part of the relevant audience. * **(b) Material Designed for Deviant Group** → Where the allegedly obscene material is designed for and primarily disseminated to a clearly defined **deviant sexual group** (e.g., sadists), rather than to the public at large, the prurient appeal requirement is satisfied if the dominant theme of the material, taken as a whole, appeals to the prurient interest of that group. (*Mishkin v. New York*).

Answer 59

**(a) Community Standard** → The material must be patently offensive in affronting contemporary community standards regarding the description or portrayal of sexual matters. **(b) National Standard Not Required** → A statewide standard is **permissible** but not mandatory. A juror may draw on knowledge of the community or vicinity from which he comes, and the court may either direct the jury to apply “community standards” without specifying the “community,” or define the standard in more precise geographic terms. (*Hamling v. United States*; *Jenkins v. Georgia*).

Answer 60

The fact that the material may have some redeeming social value will not necessarily immunize it from a finding of obscenity. It must have **serious** literary, artistic, political, or scientific value, using a **national standard**. (*Pope v. Illinois*).

Answer 61

The state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience. (*Ginsberg v. New York*). However, the government may not prohibit the sale or distribution of material to adults merely because it is inappropriate for children. **Example**: Because of the present lack of “gateway” technology that would permit speakers on the Internet to block their communications, a federal statute’s bar on transmitting “indecent” or “patently offensive” messages to minors effectively amounts to a total ban and thus violates the First Amendment right of adults to receive such materials. (*Reno v. American Civil Liberties Union*).

Answer 62

To protect minors from exploitation, the government may prohibit the sale or distribution of **visual depictions** of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children. (*New York v. Ferber*). The government may also **prohibit offers** to provide (and requests to obtain) material depicting children engaged in sexually explicit conduct when the prohibition requires scienter and does not criminalize a substantial amount of protected speech. Such offers of material that is unlawful to possess have no First Amendment protection. (*United States v. Williams*).

Answer 63

The government may not bar visual material that only appears to depict minors engaged in sexually explicit conduct, but that in fact uses young looking adults or computer-generated images. (*Ashcroft v. Free Speech Coalition*). A holding otherwise would bar speech that is not obscene under the *Miller* test and that does not involve the exploitation of children as in *Ferber*.

Answer 64

**(1) Sweeping Language** → Attempts to define obscenity broadly have encountered difficulties before the Court. **Examples**: * **(i)** A statute banning publication of news or stories of “bloodshed or lust so massed as to become vehicles for inciting crime” is unconstitutionally vague and uncertain. (*Winters v. New York*). * **(ii)** The Court held invalid a statute prohibiting the sale of any book “tending to the corruption of the morals of youth.” (*Butler v. Michigan*). **(2) Construction May Save Vague Statute**→ A state statute will be upheld if it meets the tests as construed by the courts of the state. Thus, a seemingly vague obscenity statute may be saved by a state supreme court opinion that limits it to a proscription of depictions of specific types of sexual conduct. (*Ward v. Illinois*).

Answer 65

A land use (or zoning) regulation may limit the **location or size** of adult entertainment establishments (i.e., businesses that focus on sexual activities) if the regulation is designed to **reduce the secondary effects of such businesses** (e.g., rise in crime rates, drop in property values and neighborhood quality, etc.). However, regulations may not ban such establishments altogether. (*City of Los Angeles v. Alameda Books, Inc.*). **Example**: A city ordinance limiting adult entertainment establishments to one corner of the city occupying less than 5% of the city’s area was deemed constitutional. (*City of Renton v. Playtime Theatres, Inc.*).

Answer 66

The Twenty-First Amendment grants states more than the usual regulatory authority with respect to intoxicating beverages. Therefore, regulations prohibiting explicit live sexual entertainment and films in establishments licensed to sell liquor by the drink, even though proscribing some forms of visual presentation that would not be obscene under *Miller*, do not violate the First Amendment as long as they are not “**irrational**.”

Answer 67

The Court has suggested that the state may regulate the **display of certain material**, to prevent it from being so obtrusive that an unwilling viewer **cannot avoid exposure** to it. (*Redup v. New York*).

Answer 68

Private possession of obscenity at home cannot be made a crime because of the constitutional right of personal privacy. (*Stanley v. Georgia*). However, the protection does not extend beyond the home. Thus, importation, distribution, and exhibition of obscene materials can be prohibited. * **Exception—Child Pornography** → The state may make private possession of child pornography a crime, even private possession for personal viewing in a residence. (*Osborne v. Ohio*).

Answer 69

When a person is sued for making a defamatory statement, the First Amendment places restrictions on the ability of the government (through its tort law and courts) to grant a recovery where the person suing is a **public official or public figure**, or where the defamatory statement involves an issue of **public concern**. In these cases, the plaintiff must prove not only the elements of defamation required by state law, but also that the **statement was false** and that the **person making the statement was at fault** to some degree in not ascertaining the truth of the statement.

Answer 70

At common law, a defamatory statement was presumed to be false; to avoid liability for an otherwise defamatory statement on the ground that it was true, the defendant had to assert truth as an affirmative defense. The Supreme Court has rejected this presumption in all public figure or public concern cases. In these cases, the plaintiff must prove by **clear and convincing evidence that the statement was false**. (*Philadelphia Newspapers, Inc. v. Hepps*). * **(1) Requirement of Factual Statement** → To be defamatory, the false statement must be viewed by a **reasonable person** as a **statement of fact**, rather than as a statement of opinion or a parody. Furthermore, a public figure cannot circumvent the First Amendment restrictions by using a different tort theory to collect damages for a published statement about him that is not a false statement of fact. * **(2) Lies About Oneself** → A statute criminalizing speech merely because it is false is a **content regulation**. And while some categories of false speech are unprotected (e.g., defamation, false advertising, fraud, and perjury), those categorical exceptions are based on the harm caused. Speech is not unprotected **merely for being false**. (*United States v. Alvarez*: Stolen Valor Act making it a crime to falsely claim to have received military decorations is unconstitutional; while the government may have a compelling interest in maintaining the integrity of military honors, nothing indicates that the law here is necessary to that purpose).

Answer 71

At common law, a defendant who had no reason to know that the statement he was making was false and defamatory could still be liable for defamation. Now, however, a plaintiff in a public figure or public concern case must prove **fault on the part of the defendant**. The degree of fault required is higher when the plaintiff is a public official or public figure than when the plaintiff is a private person suing on a matter of public concern.

Answer 72

A public official may not recover for defamatory words relating to his official conduct or a matter of public concern without clear and convincing evidence that the statement was made with “**actual malice**." (*New York Times v. Sullivan*). This rule has since been extended to **public figure plaintiffs**. Note that while the Supreme Court has not specifically held that all statements regarding public officials or public figures necessarily involve matters of public concern, a case to the contrary should be rare. * **Defined** → Actual malice was defined by the Supreme Court in *New York Times v. Sullivan* as: **(a)** **knowledge** that the statement was false, or **(b) reckless disregard** as to its truth or falsity. The plaintiff must show that the defendant was **subjectively aware** that the statement he published was false or that he **subjectively entertained serious doubts** as to its truthfulness.

Answer 73

There are two ways to become a public figure: * **(a) General Fame or Notoriety** → A person may be a public figure for all purposes and all contexts if he achieves “**general fame or notoriety** in the community and pervasive involvement in the affairs of society,” although “a citizen’s participation in community and professional affairs” does not render him a public figure for all purposes. * **(b) Involvement in a Particular Controversy** → A person may “**voluntarily inject** himself or be drawn into a particular controversy to influence the resolution of the issues involved” and thereby become a public figure for a limited range of issues. (*Gertz v. Robert Welch, Inc.*).

Answer 74

False advertising is not protected by the First Amendment, although commercial speech in general does have some First Amendment protection. In determining whether a regulation of commercial speech is valid, the Supreme Court asserts that it uses a four-step process. However, it may be easiest to think about this as an initial question followed by a three-step inquiry. First, determine whether the commercial speech concerns a **lawful activity** and is **not misleading or fraudulent**. Speech proposing an unlawful transaction (e.g., “I will sell you this pound of heroin for X dollars”) and fraudulent speech may be outlawed. If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid only if it: * **(i)** serves a “**substantial**” government interest; * **(ii)** “**directly advances**” the asserted interest; and * **(iii)** is **narrowly tailored** to serve the substantial interest. This part of the test does **not** require that the “least restrictive means” be used. Rather, there must be a **reasonable fit** between the legislation’s end and the means chosen. (*Board of Trustees of State University of New York v. Fox*).

Answer 75

Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to a lack of tailoring. Thus, the Court has struck down total bans against advertising: **(i)** legal abortions; **(ii)** contraceptives; **(iii)** drug prices; **(iv)** attorneys’ services; and **(v)** liquor prices. Note that the Twenty-First Amendment—giving states the power to regulate liquor commerce within their borders—does not give states power to override First Amendment protections. * **Commercial Sign Regulation** → It is unclear whether billboards may be totally banned from a city. However, they can be regulated for purposes of traffic safety and aesthetics. A town could not prohibit the use of outdoor “for sale” signs by owners of private homes as a way of reducing the effect of “blockbusting” real estate agents (i.e., encouraging homeowners to sell at reduced prices because of the threat of a sudden influx of minorities). (*Linmark Associates v. Willingboro Township*).

Answer 76

Speech includes not only verbal communication, but also conduct that is undertaken to **communicate an idea**. Of course, not all regulation of symbolic conduct is prohibited. The Court will uphold a conduct regulation if: * **(i)** the regulation is within the **constitutional power of the government**; * **(ii)** it furthers an **important governmental interest**; * **(iii)** the governmental interest is **unrelated to suppression of speech**; and * **(iv)** the incidental burden on speech is **no greater than necessary**. (*United States v. O’Brien*: upholding a prohibition against burning draft cards to protect the government’s important interest in facilitating the smooth functioning of the draft system). Note, however, that a regulation is not invalid simply because there is **some imaginable alternative** that might be less burdensome on speech. (*Rumsfeld v. Forum for Academic and Institutional Rights*: statute requiring schools of higher education to grant the military access to recruit on campus is not invalid merely because the military could take out ads in newspapers, on television, etc.).

Answer 77

The essence of the “secondary effects” doctrine is that governments may regulate speech by its content if its purpose for doing so is wholly **unrelated to that content**, but is instead designed to ameliorate some phenomenon closely associated with but not produced by the content of the speech. When that occurs, the Court declares that the regulation is content-neutral. The secondary-effects doctrine began with *Young v. American Mini Theatres*, in which the Court upheld a Detroit zoning ordinance designed to force the dispersal of pornographic businesses throughout the city. The Court reasoned that the law was **viewpoint-neutral** and did not **materially restrict** either the creation of or access to pornography. After *American Mini Theatres*, a government could regulate the location of businesses dealing in non-obscene sexually explicit expression in order to address the problem—frequently associated with the areas surrounding such businesses—of public drunkenness, drug dealing, and petty theft, as those problems are not produced by the sexually explicit speech. A government could not regulate those same businesses to address the problem of patrons of those businesses committing sex crimes, because the sex crimes are arguably induced in some part by the sexually explicit speech. In dealing with these issues, ask whether the doctrine is (or should be) limited to government attempts to **control the crime** and **social pathology** associated with businesses purveying pornographic expression.

Answer 78

Public property that has historically been open to speech-related activities (e.g., **streets**, **sidewalks**, and **public parks**) is called a **public forum**. Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or temporary basis, by practice or policy (e.g., school rooms that are open for after-school use by social, civic, or recreation groups), is called a **designated public forum**. The government may regulate speech in public forums and designated public forums with **reasonable time, place, and manner regulations**. **Test** → To be valid, government regulations of speech and assembly in public forums and designated public forums must: * **(i)** be **content neutral** (i.e., subject matter neutral and viewpoint neutral); * **(ii)** be narrowly **tailored to serve an important government interest**; and * **(iii)** leave open **alternative channels of communication**.

Answer 79

Laws and injunctions restricting expression within so-called “**buffer zones**” are often found in the context of cases dealing with demonstrations on streets and sidewalks outside abortion clinics. These laws typically set boundaries of a specified number of feet from clinic entrances within which anti-abortion protestors may not approach women entering the clinics, in order to ensure unobstructed access and maintain public safety and the free flow of vehicular and pedestrian traffic. * **(1) Content-Neutral/Important Interest** → The Supreme Court has for the most part found buffer-zone laws to be reasonable, content-neutral regulations of speech that further the important state interest of preserving access to healthcare facilities and maintaining public order. * **(2) Narrowly Tailored** → Under the second prong of the time, place, and manner test, buffer-zone laws will be upheld only if they burden no more speech than necessary to achieve the purpose of protecting access to healthcare facilities and maintaining order on public rights-of-way. Moreover, the right of access does not amount to a right to be free from all communication in the vicinity of a facility that might be unwelcome. Court decisions in this area tend to be very fact-specific, and the Court has indicated it is more likely to find a buffer-zone law narrowly tailored if the state has first tried less-restrictive measures to address the problems created by anti-abortion protests.

Answer 80

Other than streets, sidewalks, parks, and designated public forums, most public property is considered to be a **limited public forum** (e.g., **government property** opened up for a specific speech activity, such as a school gym opened on a particular night to host a debate on a particular community issue) or a nonpublic forum. The government can regulate speech in such forums to **reserve them for their intended use**. Regulations will be upheld if they are: * **(i)** **viewpoint neutral**; and * **(ii)** **reasonably related** to a **legitimate government purpose**. Significant cases: * **(1) Military Bases** → Military bases are **not public forums**; thus, on-base speech and assembly may be regulated, even during open houses where the public is invited to visit. (*United States v. Albertini*). However, if the military leaves its streets open as thoroughfares, they will be treated as public forums. (*Flower v. United States*). * **(2) Schools** → Generally, schools and school-sponsored activities are **not public forums**. Thus, speech (and association) in schools may be reasonably regulated to serve the school’s educational mission. * **(3) Government Workplace or Charity** → Neither a government workplace (including a court building and its grounds) nor a government controlled charity drive constitutes a public forum. * **(4) Postal Service Property** → Although sidewalks generally are public forums, sidewalks on postal service property are **not public forums**. (*United States v. Kokinda*). * **(5) Signs on Public Property** → The Supreme Court has upheld a city ordinance prohibiting posting signs on public property (including sidewalks, crosswalks, street lamp posts, fire hydrants, and telephone poles), even if the sign is temporary in nature and could be removed without damage to the public property. (*Members of City Council v. Taxpayers for Vincent*). * **(6) Airport Terminals** → Airport terminals operated by a public authority are **not public forums**. Thus, it is reasonable to ban solicitation within airport terminals, since it presents a risk of fraud to hurrying passengers. (*International Society of Krishna Consciousness v. Lee*). However, it is not reasonable to ban leafletting within **multipurpose terminals** having qualities similar to a shopping mall (*Lee v. International Society of Krishna Consciousness*); although such leafletting can still be subject to reasonable time, place, and manner regulations. * **(7) Mailboxes** → A letter/mailbox at a business or residence is **not a public forum**. Thus, the government may prohibit the placing of unstamped items in post boxes to promote efficient mail service. (*United States Postal Service v. Council of Greenburgh Civic Association*).

Answer 81

The Free Speech Clause restricts government **regulation of private speech**; it does not require the government to aid private speech nor restrict the government from expressing its views. The government generally is free to voice its opinions and to fund private speech that furthers its views while refusing to fund other private speech, absent some other constitutional limitation, such as the Establishment Clause or Equal Protection Clause. Because government speech does not implicate the First Amendment, it is not subject to the various levels of scrutiny that apply to government regulation of private speech. (*Pleasant Grove City, Utah v. Summum*). Generally, government speech and government funding of speech will be upheld if it is **rationally related to a legitimate state interest**. * **Example**: The government may fund family planning services but except from funding services that provide abortion information. (*Rust v. Sullivan*). **Limitation** → Spending programs may not impose conditions that **limit First Amendment activities** of fund recipients **outside of the scope of the spending program** itself. For example, while the government could prohibit the use of federal funds to advocate for or support abortion (*Rust v. Sullivan*), it could not require recipients of federal funds given to organizations to combat HIV/AIDS to agree in their funding documents that they oppose prostitution. (*Agency for International Development v. Alliance for Open Society International, Inc.*).

Answer 82

Since the purpose of the freedoms of speech and assembly is to encourage the free flow of ideas, a regulation will not be upheld if it is overbroad (i.e., prohibits **substantially** more speech than is necessary). If a regulation of speech or speech-related conduct punishes a **substantial amount of protected speech**, judged in relation to the regulation’s plainly legitimate sweep, the regulation is **facially invalid** (i.e., it may not be enforced against anyone—not even a person engaging in activity that is not constitutionally protected) unless a court has limited construction of the regulation so as to remove the threat to constitutionally protected expression. (*Virginia v. Hicks*). If a regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected. **Examples**: * **(i)** The Supreme Court struck down as overbroad an ordinance that prohibited speech that “**in any manner**” interrupts a police officer in the performance of her duties. (*Houston v. Hill*). * **(ii)** An airport authority rule that bans “**all** First Amendment activities” within the “central terminal area” is invalid as being substantially overbroad. (*Board of Airport Commissioners v. Jews for Jesus*).

Answer 83

A law is unconstitutionally vague if **persons of common intelligence** must necessarily **guess at its meaning** and **differ as to its application**. If a law does not provide **sufficiently definite warning** as to the proscribed conduct when measured by **common understanding and practices**, it is unconstitutionally vague and its enforcement is a denial of due process. **Example**: In *Smith v. Goguen*, the Court invalidated as vague a Massachusetts law that made it a crime to treat the U.S. flag contemptuously in public. The ban did not “draw reasonably clear lines between the kinds of non-ceremonial treatment that are criminal and those that are not.” Moreover, the Court stated that when statutes impinge upon expression, they will be held to “a greater degree of specificity” in order to avoid their invalidation as vague.

Answer 84

A prior restraint is an **administrative or judicial order** that prohibits speech **before it occurs** on the basis of the speech’s **content**. A content-neutral ban on speech before the fact is permissible if its purpose and effect are not to suppress ideas but to advance legitimate state interests unrelated to the suppression of speech. Punishments after the fact of speech are not prior restraints. There are two principal types of prior restraints: **licensing** and **injunctions**. * **(a) Licensing** → Licensing of speech before its utterance or publication raises the concern that government officials can exercise licensing authority in a manner that discriminates on the basis of content or viewpoint. * **(b) Injunctions** → Injunctions restraining speech from occurring at all raise the question of whether it is better to punish the few who abuse rights of speech after they break the law than to throttle them beforehand. It is always difficult to know in advance what an individual will say.

Answer 85

The Supreme Court has not adopted a bright line standard for determining when a prior restraint is justified, but it has said that the government’s **burden is heavy**. For exam purposes, you should ask whether there is some **special societal harm** that justifies the restraint. * **(1) National Security** → National security is certainly a sufficient harm justifying prior restraint. Thus, a newspaper could be prohibited from publishing troop movements in times of war. (*Near v. Minnesota*). However, the harm must be more than theoretical. Thus, the Court refused to enjoin publication of The Pentagon Papers on the basis that publication might possibly have a detrimental effect on the Vietnam War. (*New York Times v. United States*). * **(2) Preserving Fair Trial** → Preserving a fair trial for an accused might be a sufficient basis for prior restraint. However, the restraint will be upheld only if it is the only sure way of preserving a fair trial. (*Nebraska Press Association v. Stewart*). * **(3) Contractual Agreements** → The Supreme Court has held that prior restraint is permissible where the parties have contractually agreed to the restraint. (*Snepp v. United States*: CIA agent contractually agreed to give agency a prepublication review of any item related to his employment). * **(4) Military Circumstances** → The Supreme Court has held that the interests of maintaining discipline among troops and efficiency of operations on a military base justify a requirement that persons on a military base obtain the commander’s permission before circulating petitions. * **(5) Obscenity** → The Court has held in a number of cases that the government’s interest in preventing the dissemination of obscenity is sufficient to justify a system of prior restraint.

Answer 86

Although the First Amendment does not mention a right of freedom of association, the right to join together with other persons for expressive or political activity is protected by the First Amendment. However, the right to associate for expressive purposes is **not absolute**. It may be infringed to serve a **compelling government interest**, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms, at least when the infringement would not significantly affect an association's right to express its viewpoints. However, in some cases, a more lenient standard will apply.

Answer 87

The freedom of speech includes not only the right to speak, but also the right to refrain from speaking or endorsing beliefs with which one does not agree—the government may not compel an individual personally to express a message with which he disagrees. **Examples**: * **(i)** A state **cannot force school children to salute** or say a pledge to the flag. (*West Virginia State Board of Education v. Barnette*). * **(ii)** A motorist **could not be punished** for blocking out the portion of his automobile license plate bearing the motto “Live Free or Die”; as long as he left the license plate in a condition that served its auto identification purpose, he did not have to display a slogan endorsed by the state. (*Wooley v. Maynard*). * **(iii)** A state may not require private parade organizers to include in their parade groups with messages with which the organizers disagree. (*Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston*).

Answer 88

The **Free Exercise Clause** prohibits the government from punishing (denying benefits to, or imposing burdens on) someone on the basis of the person’s **religious beliefs**. It is sometimes said that the government can engage in such activity only if it is **necessary to achieve a compelling interest**; sometimes the rule is stated as a total prohibition of such government actions. In any case, the Supreme Court has **never found an interest** that was so “compelling” that it would justify punishing a religious belief.

Answer 89

The Supreme Court has not defined what constitutes a religious belief. However, it has made clear that religious belief does not require recognition of a supreme being (*Torcaso v. Watkins*), and need not arise from a traditional, or even an organized, religion. One possible definition is that the “belief must occupy a place in the believer’s life parallel to that occupied by orthodox religious beliefs.” (*United States v. Seeger*: interpreting statutory, rather than constitutional, provision). In any case, the Court has never held an **asserted religious belief** to be not religious for First Amendment purposes. * **Courts May Not Find Religious Beliefs to Be False** → The courts may not declare a religious belief to be “false.” For example, if a person says he talked to God and that God said the person should solicit money, he cannot be found guilty of fraud on the basis that God never made such a statement. However, the court may determine whether the person is sincerely asserting a belief in the divine statement. (*United States v. Ballard*).

Answer 90

The **federal government** may not require any federal office holder or employee to take an oath based on a religious belief as a condition for receiving the federal office or job, because such a requirement is prohibited by Article VI of the Constitution. State and local governments are prohibited from requiring such oaths by the Free Exercise Clause. (*Torcaso v. Watkins*).

Answer 91

A state may not exclude clerics (persons who hold an office or official position in a religious organization) from being elected to the state legislature, or from other governmental positions, because that exclusion would impose a disability on these persons based upon the nature of their religious views and their religious status. (*McDaniel v. Paty*).

Answer 92

The Supreme Court has stated that the Free Exercise Clause prohibits the government from punishing conduct merely because it is **religious** or **displays religious belief** (e.g., the state cannot ban the use of peyote only when used in religious ceremonies). (*Employment Division v. Smith*). A law that is designed to suppress actions only because the actions are religiously motivated is not a neutral law of general applicability. Such a law will be invalid unless it is **necessary to promote a compelling interest**. * **Example**: A city law that prohibited the precise type of animal slaughter used in the ritual of a particular religious sect violated the Free Exercise Clause because the Court found that the law was designed solely to exclude the religious sect from the city. The law was not a neutral law of general applicability; nor was the law necessary to promote a compelling interest. (*Church of the Lukumi Babalu Aye, Inc. v. Hialeah*). * **Compare**: A state law that excluded pursuit of a degree in **devotional theology** from a college scholarship program for all students did not violate the Free Exercise Clause. Although a school **could** provide such scholarships without violating the Establishment Clause, the Free Exercise Clause does not require such scholarships. The exclusion from scholarship eligibility does not show animus toward religion, but rather merely reflects a decision not to fund this activity. Moreover, the burden that the exclusion imposes on religion is modest, and there is substantial historical support against using tax funds to support the ministry. (*Locke v. Davey*).

Answer 93

Of course, states may prohibit or regulate conduct in general, and this is true even if the prohibition or regulation happens to interfere with a person’s religious practices. The Free Exercise Clause cannot be used to challenge a law of general applicability unless it can be shown that the law was **motivated by a desire to interfere with religion**. (*Employment Division v. Smith*). * **(a) Generally No Exemptions Required** → The Free Exercise Clause does not require exemptions from criminal laws or other governmental regulations for a person whose religious beliefs prevent him from conforming his behavior to the requirements of the law. In other words, a law that regulates the conduct of all persons can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him from complying with the law. * **(b) Examples** → The Supreme Court has held that no religious exemption was required from the following religiously neutral regulations, even though certain groups objected because the regulation interfered with conduct inspired by sincerely held religious beliefs: * **(1)** Prohibition against use of peyote (*Employment Division v. Smith*: challenged by person whose religious beliefs require use of peyote during religious ceremony); * **(2)** Denial of tax exempt status to schools that discriminate on the basis of race (*Bob Jones University v. United States*: challenged by religious school whose tenets require certain separations of races); * **(3)** Requirement that employers comply with federal minimum wage laws (*Tony and Susan Alamo Foundation v. Secretary of Labor*: challenged by employer that argued minimum wages interfere with members’ religious desires to work without compensation); * **(4)** Requirement that employers pay Social Security taxes (*United States v. Lee*: challenged by person whose religious beliefs prohibited payment and receipt of Social Security type payments); and * **(5)** Sales and use taxes (*Jimmy Swaggart Ministries v. Board of Equalization of California*: challenged as applied to sales of goods and literature by religious group).

Answer 94

The Supreme Court has held that religious organizations must be granted an exemption from suits alleging employment discrimination by **ministers against their religious organizations**. The government may not interfere with a decision of a religious group to fire one of its ministers. Imposing an **unwanted minister** would infringe on the Free Exercise Clause, which protects a religious group’s right to shape its own faith through appointments. And allowing the government to determine who will minister within a faith also violates the Establishment Clause by interfering with ecclesiastical decisions. Moreover, this ministerial exception is not limited to the head of a religious congregation; it can extend to others in positions considered by the congregation to be ministerial. (*Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission*).

Answer 95

Many state unemployment compensation programs make payments only to persons who are **involuntarily unemployed** (i.e., were fired or laid off rather than resigned), and who are **available for work** (i.e., willing to accept offered employment). Here, however, unlike other areas of regulation, the Supreme Court has held that the **states must grant religious exemptions**. Thus, if a person resigns from a job or refuses to accept a job because it conflicts with her religious beliefs, the state must pay her unemployment compensation if she is otherwise entitled. * **(a) Need Not Belong to Organization** → A person does not have to be a member of a formal religious organization to receive the above exemptions from unemployment compensation requirements. All that is required is that the person **sincerely hold religious beliefs** that prevent him from working on a certain day or on military products. (*Frazee v. Illinois Department of Employment Security*). * **(b) Criminal Prohibitions** → The unemployment compensation cases do not give individuals a right to disregard criminal laws due to their religious beliefs. Thus, unemployment compensation laws may disqualify persons fired for “**misconduct**” (which includes any violation of criminal law).

Answer 96

The Supreme Court has required an exemption for the Amish from a neutral law that required school attendance until age 16, because a fundamental tenet of Amish religion forbids secondary education. The Court found that the Amish are productive and law-abiding, and ruled that the right to educate one’s children and the Free Exercise Clause outweighed the state’s interest here. (*Wisconsin v. Yoder*).

Answer 97

The Establishment Clause, along with the Free Exercise Clause, compels the government to pursue a course of **neutrality toward religion**. Government action challenged under the Establishment Clause will be found invalid unless the action: * **(i)** has a **secular purpose**; * **(ii)** has a **primary effect** that **neither advances nor inhibits** religion; and * **(iii)** does not produce **excessive government entanglement** with religion.

Answer 98

A statute authorizing governmental aid to a **religiously affiliated institution** (hospital, school, etc.) must be tested under the ***Lemon* test** (secular purpose, primary effect, and excessive entanglement). However, the Supreme Court applies these tests with greater strictness when the government aid is going to a religiously affiliated **grade school or high school** than it does when the aid is going to another type of religiously affiliated institution (such as a **college or hospital**).

Answer 99

The government may give aid in the form of financial assistance to a defined class of persons as long as the class is defined **without reference to religion or religious criteria**. Such a program is valid even if persons who receive the financial assistance are thereby enabled to attend a religiously affiliated school. **Tax Deductions Limited to Religious School Tuition** → A state may not use a system of **statutory grants**, **tax credits**, or **tax deductions** to reimburse parents or students for tuition paid only to religiously affiliated schools. However, a tax deduction to all students or parents based on the actual expenditures for attending any public or private school (including religious schools) has been upheld. (*Mueller v. Allen*). It would appear that a valid tax deduction statute must allow a deduction for: * **(i)** expenditures for **public as well as private schools**; and * **(ii)** some expenditures **other than tuition** (such as expenditures for school supplies or books) so that public school students or their parents may benefit from the deduction.

Answer 100

The Court will uphold a government grant of aid to the secular activity of a religiously affiliated hospital or college (such as a grant to build a new hospital ward or a laboratory-classroom building) as long as the government program requires that the aid be used only for **nonreligious purposes**, and the recipient so agrees in good faith. (*Tilton v. Richardson*). * **Example**: The Adolescent Family Life Act—which provides for grants of government funds to a variety of public and private (including religiously affiliated) agencies to provide counseling and educational services to young people regarding sexual activity—has been upheld. The Act has a secular purpose (dealing with problems of teenage pregnancy). The Act does not on its face advance religion because a religiously affiliated organization could contractually be required to use the funds for nonreligious counseling. And the Act does not give rise to excessive entanglement because there is no reason to assume that a significant percentage of the funds would be granted to pervasively sectarian institutions. (*Bowen v. Kendrick*).

Answer 101

Programs of aid to these institutions are subject to the same *Lemon* test as are all other laws under the Establishment Clause. Most of the time, such programs will have a **secular purpose**—to aid in education. However, if **significant aid** is given to the religious school, the program may be deemed to have a **primary effect that advances religion**. If the government program has detailed administrative or legislative regulations that are designed to ensure that the aid does not result in a primary effect of advancing religion, the law may be stricken as giving rise to an excessive entanglement between government and religion. **Aid Upheld** → The Supreme Court has upheld state programs that: * **(a)** Provide state-approved **textbooks to all students** (*Board of Education v. Allen*) (but note that the state may not loan textbooks to students attending schools that discriminate on the basis of race, since this would violate the Fourteenth Amendment [*Norwood v. Harrison*]); * **(b)** Lend religiously neutral instructional materials (e.g., library books, computers) to parochial schools as well as to public and other nonprofit private schools, where the program did not define recipients by reference to religion and the **challenger did not prove** that the neutral aid was used for religious indoctrination. (*Mitchell v. Helms*); * **(c)** Provide **transportation** to and from school to **all students** (*Everson v. Board of Education*); * **(d)** Reimburse private schools for the expenses of **compiling state-required data**, such as student attendance records, or administering and grading **standardized** state educational achievement tests (*Committee for Public Education and Religious Liberty v. Regan*); and * **(e)** Provide “**auxiliary services**” ( e.g., remedial education, guidance, or job counseling) to all disadvantaged children at their school, including children at parochial schools (*Agostini v. Felton*). **Aid Invalidated** → The Supreme Court has struck down the following state programs, either because they had a **primary effect** that advanced religion or because they involved **excessive entanglement** between government and religion: * **(a)** Programs paying a portion of private school teachers’ salaries (for their secular classes), since the primary effect would be to advance religion and a system to ensure that the money/teachers not be used for religious purposes would involve excessive entanglements. (*Lemon v. Kurtzman*); and * **(b)** Programs reimbursing private schools for writing achievement tests (this would have the primary effect of advancing religion since the schools could write tests advancing their religious mission) (*Levitt v. Community for Public Education*).

Answer 102

An exemption from property taxation for “real or personal property used **exclusively for religious, educational, or charitable purposes**” does **not** violate the Establishment Clause. Neither the purpose nor the effect of such an exemption is the advancement or the inhibition of religion, and it constitutes neither sponsorship nor hostility, nor excessive government entanglement with religion. The government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state. (*Walz v. Tax Commission*).

Answer 103

Although religious schools or religious associations may be included in tax exemptions available to a variety of secular and religious organizations, a tax exemption that is available **only for religious organizations or religious activities** violates the Establishment Clause. (*Texas Monthly, Inc. v. Bullock*: an exemption from the sales and use tax for religious magazines or books [but no other publications] violates the Establishment Clause).

Answer 104

The Fifth Amendment prohibits governmental taking of private property “for **public use** without **just compensation**.” The prohibition is applicable to the states through the **Fourteenth Amendment** (*Chicago Burlington & Quincy Railroad v. Chicago*), and taking questions often arise in connection with states’ exercise of their police power (i.e., the power to legislate for the health, welfare, safety, etc., of the people). The Fifth Amendment is not a grant of power, but rather is a **limitation on power** (i.e., a taking must be for a public purpose and compensation must be paid). The power for a taking must arise out of some other source (e.g., the police power).

Answer 105

The Court will not review underlying policy decisions, such as general desirability for a particular public use or the extent to which property must be taken therefor. A use will be held to be “public” as long as it is **rationally related to a legitimate public purpose**, e.g., health, welfare, safety, moral, social, economic, political, or aesthetic ends. The government may even authorize a taking by **private enterprise**, as long as the taking will redound to the **public advantage** (e.g., railroads and public utilities).

Answer 106

A taking will almost always be found if there is an **actual appropriation or destruction** of a person’s property or a permanent physical invasion by the government or by authorization of law. * **(a) Exception: Emergencies** → A taking is less likely to be found in emergency situations, even where there is destruction or actual occupation of private property. * **(b) Damage from Temporary Interference with Use** → Government action that amounts to a temporary appropriation or physical invasion of property may also amount to a taking. For example, temporary flooding caused by government release of dammed up waters can amount to a taking.

Answer 107

**(a) Denial of All Economic Value** → If a government regulation denies a landowner of **all economic use** of his land, the regulation is equivalent to a physical appropriation and is thus a taking unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable. **(b) Decreasing Economic Value** → Generally, regulations that merely decrease the value of property (e.g., prohibit its most beneficial use) do not necessarily result in a taking, **as long as they leave an economically viable use for the property**. The Court considers: * **(i)** the **social goals** sought to be promoted; * **(ii)** the **diminution in value** to the owner; and * **(iii)** whether the regulation **substantially interferes** with distinct, investment-backed expectations of the owner.

Answer 108

The owner is entitled to the **fair market value** of her property **at the time of the taking**—not the value it would have if put to its highest and best use. The measure is based on the **loss to the owner**, not the gain to the taker. Increases in value to the owner’s remaining property as a result of the taking cannot be used to offset damages. Due process guarantees notice and hearing, administrative or judicial, on the amount of compensation, but the hearing need not precede the taking. * **“Worthless” Property** → Because just compensation is measured by the loss to the owner and not by the gain to the taker, property that is “worthless” to the owner can be the subject of a taking, but no compensation need be paid when it is taken.

Answer 109

The Contract Clause prevents only **substantial impairments** of contract (i.e., destruction of most or all of a party’s rights under a contract). However, not all substantial impairments are invalid. In determining whether legislation is valid under the Contract Clause, use a three-part test: * **(i)** Does the legislation **substantially impair a party’s rights** under an **existing contract**? If it does not, the legislation is valid under the Contract Clause. If it does, it will be valid only if it: * **(ii)** serves an **important and legitimate public interest**; and * **(iii)** is a **reasonable and narrowly tailored** means of promoting that interest. **Examples**: * **(1)** A Minnesota statute that imposed a moratorium on mortgage foreclosures during a severe depression did not violate the Contract Clause. * **(2)** A state statute that restricted underground coal mining to protect a variety of public and private uses of surface land (and buildings) and that left the owners of subsurface mining rights with some reasonable value in, or return from, their investment does not violate the Contract Clause.

Answer 110

Public contracts (i.e., those in which the state or political subdivision is a party) will likely receive stricter scrutiny, especially if the legislation reduces the contractual burdens on the state. When applying the three-part test, note the following: * **(i)** There is no **substantial impairment** if the **state has reserved the power** to revoke, alter, or amend either in the contract itself or in a statute or law the terms of which should be considered to be incorporated into the contract; * **(ii)** In determining whether the law serves as a **legitimate public interest**, note that the state cannot be obligated by contract to **refrain from exercising its police powers** necessary to protect the health and safety of its residents; and * **(iii)** To be **narrowly tailored**, the law should not constitute an **unnecessarily broad repudiation** of contract obligations. **Example**: In *Allied Structural Steel Co. v. Spannaus*, the Court invalidated state pension reform legislation which increased the obligation of companies under preexisting pension plans to employees who previously had terminated their work for the company or who previously had retired from employment with the company. Because the legislation constituted a substantial impairment of contract by changing the compensation for work already completed and because it was not necessary to remedy an important social problem in the nature of an emergency, it was held to be a violation of the Contract Clause.