Constitutional Law Flashcards
Advisory opinions
Not allowed
Federal courts may only decide actual cases and controversies
They require a real dispute between adverse parties and a judgment that binds
The juridical power is a limited power t/f
True
Ripeness
A plaintiff must allege an actual harm or the immediate threat of a harm
Generally no ripeness where significant events necessary to sharpen the issues have not yet occurred
Need a bleeding plaintiff
Ex. Proposed law, dead letter statute
If looking for a way to dismiss a case against a clearly unconstitutional law, think ripeness
Mootness
A case will be dismissed as moot unless there exists an actual, live, controversy between the parties at all stages of litigation including appeal.
Ask: can the judge change the position of the parties or has the problem solved itself?
A case is not moot if:
- The injury is capable of repetition to that plaintiff yet because of its nature it will evade review because there is an internal time limit ( pregnant woman challenging abortion statute)
- The case is brought as a class action and the issues remain alive at least in one member of the class
- Superficially the case appear moot buy there are collateral consequences or some continuing issues between the parties (challenge to criminal conviction and already served sentence but may still face a loss of civil rights)
- The defendant has ceased the harm but is free to return to his old ways. Voluntary cessation of illegal activity. There must be no reasonable likelihood that the defendant could return to his old ways
Standing
General rules:
1. Plaintiff has actual concrete injury in fact ( almost anything counts) buy cannot be a mere ideological harm
- Causation. Ask: on the facts is the harm fairly traceable to the government’s actions? Did the government cause the harm the plaintiff is complaining about?
- Redressability ask: can the court do something to remedy the injury? Can there be relief? (Award money damages, an injunction)
Standing of organizations and associations
An organization has standing to sue for injury to itself but it may also sue for injuries to its members if:
- A member or members would have standing and
- It’s members injury is related to the purpose of the organization and
- There is no reason that would require participation of individual members in the suit (ex. Award of damages to different people) usually an injunction sought
Standing to raise the right of others
Third party standing
A party has standing to raise her own right and may not raise the rights of others, except a party may raise the rights of someone else if:
- The party has suffered some actual injury himself and
- There is a special relationship between the party and the third person and there is some hindrance to the third party raising his own rights. Ex dr raises parie t rights
Citizen standing
No standing just because “any citizen” is mentioned in the statute. This means any citizen who has been injured. Just because a statute offends you, doesn’t mean it injured you
Taxpayer standing
Taxpayers sue to challenge own tax liability but federal taxpayers have no standing as taxpayers to challenge government spending
Exception: standing if:
- Laws enacted under Congress’s taxing and spending powers, not an executive or administrative action and
- Exceeding a specific constitutional limit on taxing and spending ( generally an establishment clause challenge)
Legislator standing
May challenge acts that cause personal concrete injury but generally no standing to challenge laws which were properly enacted but he beloved they are unconstitutional
Supreme Court review of state court. Judgments: appellate review
Scotus may review the decisions of state courts if and only if
- The case involves a matter of federal law and
- It is a final judgment and
- Is from the highest state court authorized to hear the case and
- There is no independent and adequate ground on which the state court decision is based
Independent and adequate state ground
Independent if: state law does not depend Oman interpretation of federal law or incorporate a federal standard
Ex. State court mixes state and federal ground of decision and it is unclear if the decision rest of state or fed law
Adequate state ground: if not matter how the federal issue in the case is decided the outcome will still be the same under the resolution of the state law issue
Doctrine of abstention
A federal court will decline to hear a case challenging a state law if it involves a constitutional challenge to the state law but the meaning of the state law is unclear, or theater is already pending befor the state judicial or administrative tribunals
Comity or respect for state systems
Political question doctrine
Federal court will not decide political questions, which as constitutionally committed to another branch of government to decide or are beyond the competence or enforcement capability of the judicial branch
Relatively few questions are political questions what are some examples
Republican form of government challenge: the guarantee clause. Fourth amendment
True foreign affairs or military command decisions
Impeachment procedures
Seating of delegates at a national political convention
The election and qualification of members of congress ( age, citizenship, residency)
Procedures to amend the constitution
The eleventh amendment
A private party cannot sue a state in federal court unless the state consents (unmistakeably clear) or congress clearly says so to enforce 14th amendment rights
A private citizen may sue a state officer in their individual capacity for damages anday sue state officers for injunctions against future unconstitutional action be the state
For the 11 th amendment to be a bar
- Plaintiff must be a private party not another government
- The defendant must be a state not a local government or municipality
- The suit must be for money to be paid out of the state treasury or for an injunction or declaratory releof where the state is the Named party
Only bars suits in federal court, can sue a state in state court. States may raise sovereign immunity in their own courts and congress has no power to subject nonconsenting states to private suits for Damages in either federal or state courts
Legislative power
All federal power must relate in someway to an express grant of power in the constitution.
All powers not granted to the federal governing are reserved for the states
Necessary and proper clause
Supplements express powers
Allows Congress to use all means convenient and useful to carry out the enumerated powers
Not an independent power and must be combined with another congressional power
Express/ specific/ or enumerated powers of congress
Admiralty Citizenship Bankruptcy Federal property Patents and copyrights Post offices Coining money The territories and dc War Raising and supporting army
Wrong answers on multistate For Congressional powers
Congress police power
Congress power to act for the general welfare
The separation of powers
The necessary and proper clause standing alone
The commerce power
The chief source of power for Congress to regulate and it may regulate almost anything
Regulation includes setting rules standards and rates and promoting prohibiting and punishing behavior
Can regulate not only obvious interstate commercial activities such as moving goods across state lines it may also regulate purely local and intrastate activities by themselves Or repeated by others (cumulative effect doctrine) and substantially affecting interstate commerce
Limits of the reach of the commerce clause
Congress cannot tell states what laws to enact
Congress cannot commandeer state regulatory agencies and force them to enforce federal law
Congress cannot criminalize behavior which does not in any way relate to commercial or economic activity
The taxing power
Congress may tax-and-spend for the general welfare
Congressman use the taxing power to regulate and prohibit behavior so long as the statute is capable of raising some revenue ex. Prohibitive tax on gambling or goods made by child labor
How can Congress make states do what it wants them to?
- Persuade them with other laws
- Threaten them with preemption
- Bribe with money
The spending power
The spending power is the chief source of power to bribe states to do with the federal government wants them to do
a court will enforce a condition against the state which has accepted federal funds if:
- It is enacted for the general welfare
- Does not violate individual liberties
- Is reasonably related to legitimate federal interests
- Is clear that the money is conditioned on the state taking a certain action but the state does have a legitimate choice
The 13th amendment
Outlawed slavery
Gives Congress the power to enforce the amendment
Congress can pass all laws applicable to anyone whether private or governmental ( no state action requirement) not just to eliminate slavery per se but also to end all badges and incidents of slavery such as racial discrimination
Congress has the power to implement the provisions of the 14th amendment
Due process and equal protection
Laws passed under the 14th amendment apply only to government action not acts of private parties
Congress only has the power to enforce or remedy the rights of the 14th amendment as they have been defined by the courts it does not have the power to redefine or create such rights
The 15th amendment
Protects the right to vote against any federal or state government racial discrimination
Gives Congress the power to enforce the amendment
Congresses power has been expansively interpreted and actions such as providing federal officers to register voters in local elections have been upheld
Delegation of congressional power
Congressay Broadly delegate legislative powers to administrative agencies So long as Congress sets forth some intelligible principle or some standards to guide the exercise of the delegated power
Agency must act within the scope of authority given to it by the federal statute
The legislative veto
Congress may not reserve for itself a one house two house or committee veto over particular acts taken by the executive branch pursuance to the delegation of power
It must pass new legislation by both houses and signed by the president. Full legislative process
Congressional immunities
The speech and debate clause
Members of Congress may not be prosecuted for punished either civilly or criminally for their official or legislative acts
Legislative acts are very narrowly defined to include acts integral to the legislative process such as actions on the floor voting and committee work
Does not include acts such as communicating with constituents redistribution of materials prepared in the legislative process or bribery
The executive power: domestic
1.The president has the duty and power to enforce or carry out the laws Congress
- The president may not make a law only carry out except if there is an emergency and Congress has not said no to the particular act
- The president must carry out congressional directives ie impoundment of funds
- The president may sign or veto legislation but may not Beato some parts but not others or a line-item veto
- The president has exclusive power to pardon for federal offenses
- The president has the power to appoint and remove executive branch officials though Congress must approve
Appointing and removing executive branch officials
Congress may never directly appoint executive branch officials
Congress may appoint persons who work only for Congress and do not take action or make decisions on behalf of the US government
Congress may limit the presidents powers of appointment in two ways:
- As to principal officers such as ambassadors judges and cabinet heads the Pres. appoints only with the advice and consent of the Senate and
- As to inferior officers (those who have to answer to another or have limited duties or jurisdiction). Congress may vest the appointment in the president alone or in department heads or in the judiciary
Congress may never directly remove executive branch officials except through impeachment.
May limit the presidents power to remove for example Congress may provide that the president may remove certain officials only for cause if it does not substantially interfere with the president authority
Congress may not give executive powers to person it may hire and fire
War and foreign affair powers
Congress alone has the power to declare war
Congress also retains purse strings and may refuse to pay for military operations
Pres. in addition to conducting military operations, may repel sudden invasions and unless Congress has specifically said no take emergency action to protect the lives and property of United States citizens
The president may act without any approval of Congress as the chief foreign-policy spokesman of the government. Receive ambassadors or meet with heads of state
Agreements with foreign governments
When presidencies to enter into agreement some form of congressional approval is required
Treaties required two thirds Senate approval
Executive agreements require Congress acquiescence and actual dis approval will knock it out
Conflicts between treaties or executive agreements and later legislation: Later legislation prevails
Presidential immunities
Pres. has a presumptive privilege not to disclose presidential communications. A balancing test is used. generally a president’s claim of confidentiality will yield to a specific need for evidence in a criminal trial
The president is absolutely immune from civil suits for damages for any presidential acts such as wrongful firing of an employee. Injunctions are okay. Prepresidential asked do not count
Impeachment
Majority vote is required for the articles of impeachment by the house
Trial is by the Senate with a two thirds vote for conviction
If convicted removal from office is immediate
Supremacy of federal power over the states
The Constitution operate on states not as a source of power but has a limit on what states can do
Constitution expressly forbids states from taking certain acts such as coining money
The Constitution prohibits states from exercising powers which are inherently federal such as the conduct of foreign relations and immigration.
States have no power to deal with immigration establish requirements for federal citizenship declare war or conduct foreign-policy
Supremacy and preemption
Federal law preempts or prevails over any inconsistent state law
Express preemption: If Congress says that a federal law displaces or ousts state law in an area than the state law is preempted
Implied preemption: If Congress does not specifically preempt a law state law is preempted if it is inconsistent with federal law or it is impossible to comply with both, Or Congress has occupied the field
States may not sue regulate or directly tax the federal government without consent true false
True but not vice versa
Privileges and immunities clause of article four
Article 4 is also the source of the full faith and credit clause
States may not discriminate against out-of-state citizens corporations or aliens with respect to commercial activities or to the enjoyment of civil liberties
States may require in-state residency for their own employees and may charge out of stators for mere recreational activities such as a hunting license or tuition benefits
The negative or dormant commerce power
Where Congress has not acted’s day lame still be invalid if it discriminates against or unreasonably burdens interstate commerce
Make sure there is no issue of preemption only the invalidity of a state law
Discrimination in negative commerce power
The strongest arguments strike down the state law under the negative commerce clause is that it discriminates against interstate commerce in one of two ways:
- Laws that discriminate for the purpose of favoring in-state commerce are always per se invalid
- Laws that discriminate for the purpose of promoting health or safety are in valid unless the state shows that it had no reasonable nondiscriminatory means to achieve its police power objective ( valid regulation on bait fish importation)
Unreasonable burden in negative commerce clause
Even if the state lines nondiscriminatory it may still be invalid if it imposes an unreasonable burden on interstate commerce
This is a balancing test the court will weigh the actual effects of the law on the free flow of commerce against the states interests served by the law
Even though most laws will be upheld laws that produce marginal benefits which materially obstruct the movement of goods across state lines will be invalidated. I.e. train length regulations in Arizona
When the limits of the negative commerce clause do not apply or are modified
Congressional approval
The market participant doctrine and government subsidies
The 21st amendment
Market participant doctrine and government subsidies in the negative commerce clause
Whenever a state is acting not as a regulator but as a buyer or seller of commodities or services the negative commerce clause does not apply to its actions and the state may discriminate or burden interstate commerce. Cannot impose conditions down stream
Example of state owns its own cement plant and sells to its own residents first
Estate does not violate negative commerce clause if it prefers its own citizens or companies with its government subsidies
The 21st amendment in the Negative commerce clause
The 21st amendment gives the states the power to regulate the possession sale and transportation of intoxicating liquors within their borders
States have more power to burden or regulate liquor than any other article of commerce. They cannot still discriminate against out-of-state liquor
Step-by-step analysis of the validity of a state or local law regulating commerce
- Is there a federal law and the picture that may preempt inconsistent law
- If no federal law does the state law discriminate against interstate commerce. Law is invalid unless state pursuing a legitimate health and safety objective and has no alternative means or if the state is granting subsidies or acting as a market participant
- If the law is nondiscriminatory determine if it is unreasonably burdensome. Look for disproportionate cost on the free flow of interstate goods
State taxation on interstate commerce
Discriminatory taxation is invalid
Nondiscriminatory taxation if not unreasonably burdensome is upheld
Congress can preempt or authorize almost any state law regarding tax
Tax must meet three requirements
- It must be nondiscriminatory
- The activity person or thing text must have a substantial or Nexis connection to the state. there must be an actual presence of the state
- The text must not be unreasonably burdensome in particular it must be proportioned to the company’s business done in the state or the benefits received in the state. No flat taxes
Incorporation of the Bill of Rights against the states
The Bill of Rights protections apply Against the national or federal government not the states
Most Bill of Rights protections but not all also apply against state and local governments through the due process clause of the 14th amendment. They have been incorporated into the meaning of due process of law because they are fundamental to the scheme of justice
The requirement for state action and constitutional rights
Except for the 13th amendment all other constitutional rights are protections only against the government or state actors
For example one enjoys free-speech and equal protection rights only against the government not individuals or non-governmental entities
However the behavior of private persons or businesses may be regulated by statutes
Obvious state action
When a state passes a law or permits is officials such as police officers to take action this is state action
This is true even if the government officials are acting in violation of the law so long as they’re closed with the authority or acting under color of the law
Private conduct as state action
The public function doctrine. When a private entity performs a governmental function traditionally and exclusively performed by the government such as conducting elections to fill public offices unaccented deemed a state action and all constitutional guarantees apply. Narrowly applied
Significant state involvement with private conduct. The nature of the relationship between the private actor in the state may lead to a finding of state action.
When the state and private actor are working together as partners or joint ventures such that the derived benefits from the action of the other than state action may be found
The state actively affirmatively and significantly commands encourages or approves the private actors challenge behavior Thursday action
The mere fact that the state licenses regulates funds or confers significant benefits on a person is not enough to establish the action
The contracts clause
State may not by legislation substantially impair pre-existing contracts unless the law serves an overriding public need and is a reasonably and narrowly tailored means of meeting that need
CONGRESS is not bound by this, State only!
ex post facto law
any legislation that:
1. makes the conduct that you committed yesterday a crime today
2. increases the punishment after a crime has been committed
3. reduces the elements of a crime or the evidence required for conviction after the crime is committed
examples: megans laws, 3 strikes rule
neither congress nor the states (or local govs) may pass this type of law.
Only applies to Criminal statutes
Bills of attainder
attainder means taint
prohibits any federal or state legislation that inflicts punishment, civil or criminal, on named individuals or ascertainable members of a group without a judicial trial
procedural due process
concerns how the government acts
if the government deprives you of a life, liberty or property interest, it must follow the procedures to ensure that it is acting fairly and accurately
this requires: notice and a hearing
applies to adjudicative type acts, NOT legislation
notice requirement in procedural due process
reasonably calculated to inform the person of the action against him
procedural due process steps
was there a deprivation of a life, liberty, or property interest?
what process is due?
what is deprivation under the procedural due process?
an intentional, not merely negligent act
what is a liberty interest under procedural due process?
a physical liberty, loss of legal rights, statutory or constitutional
mere injury to one’s reputation is not a liberty interest
what is a property interest in procedural due process?
- conventional real and personal property, tangible and intangible
- governmental benefits such as welfare payments, the right to attend school and government licenses BUT have to actually be receiving the benefits, applicants do not count
- government employment
key concept is Entitlement: ned more than a mere expectancy. entitlement to government employment is there is a state law, policy, contract, or agreement that the employment will not be terminated except for cause
signaling words for mere expectancy
probationary, provisional, temporary, non civil service, non tenured
what process is due under procedural due process?
notice and a hearing, usually the hearing must come before the notice but if there is a significant need to act first, then this can be reversed (immediate removal of a police oficer who committed a felony, removal of children in abusive home)
3 factors are balanced to determine if the procedure is adequate:
1. nature of individual interests at stake
2. likely to lead to a mistake; and
3. government interest in following the procedure
access to court for indigents
waiver of filing fees for indigents will be required if charging the fee would result in the denial of a fundamental/ constitutional right
not waived for bankruptcy
the takings clause
neither the federal governemnt not the states may take property without just compensation
federal government, under 5th amend and states under 14th
any taking of property (eminent domain) must be for a public use, meaning any legitimate governmental goal and just compensation must be paid (fair market value at the time of the taking)
what is a taking?
- physical invasion or occupation: no matter how tiny or temporary
- regulatory taking: regulations that restrict a property owner’s use of property such as zoning laws are not takings as long as the regulation reasonably advances a legitimate state interest and leaved economically viable use for the property
- conditional permits: sometimes the government will require certain conditions to me met in order for a property owner to build upon of alter property. as long as there is a rough proportionality ot connectedness between the impact of the proposed development and the condition it is valid
14th amendment
privileges and immunities of national citizenship, equal protection and due process
priviledges and immunities:most of its protections are protected elsewhere
it has become basically a dead letter law
BUT it does protect the right to become a citizen of any state and once a bonafide resident to enjoy the same rights given to any other resident
strict scrutiny
the government must prove that the law is necessary to achieve a compelling interest. there is no presumption of constitutionality
intermediate or mid level scrutiny
the government must prove that the law substantially serves an important interest, again no presumption of constitutionality
the rational basis test
minimum scrutiny: the plaintiff must prove that the law lacks a rational basis and is unrelated to any legitimate objective. constitutionality is presumed
equal protection:how to know the basis on which a law classifies?
based on race, alienage and national origin. or gender and illegitamacy and the law must intentionally and purposefully dicriminate on one of these basis
how to show intentional or purposeful discrimination under the 14th amendment?
- the law intentionally discriminates on its face
- the law is neutrally written but intentionally discriminates as applied
BUT it is not enough to show that a neutrally written law has a disproportionate impact or effect, there has to be purposeful discrimination. i.e. that discrimination was a motivating factor in the governments action
Race or Ethnic discrimination
strict scrutiny is applied
even laws which purport to treat race equally (banning all inter racial marriage) are struck down
affirmative action-favor racial minorities
court ordered remedies
courts are empowered to use race based remedies to redress pase de jure discrimination but the scope of the remedy is limited to the scope of the violation
ex. when integrating schools, the court ordered assignments of pupils based on race and a bus system to get them there
voluntary affirmative action plans
government agencies can have a compelling interest in specifically correcting their prior discrimination against minorities
has to be a narrowly tailored plan, cannot just make up for past societal discrimination
racial preferences in University admissions
having a diverse student body is a compelling interest but narrow tailoring is required, it can only be a factor when considering admission, cannot be a strict set aside
discrimination based on alienage
non citizens of the US
when applied to congress: rational basis because congress is given broad powers to control immigration and naturalization
when a state or local government: strict scrutiny except states may require US citizenship for government policymaking or policy implementing positions and police officers, teachers and jurors
discrimination based on illegitimacy
intermediate scrutiny except in intestate succession, there is a substantial state interest in the just and orderly disposition of property at death and laws taking illegitimacy into account are valid as long as the illegitimate has reasonable time to establish paternity
discrimination based on gender
intermediate level scrutiny
men and women can claim protection against unequal treatment
most gender discriminatory laws are struck down unless:
1. bona fide affirmative action but the state must actually prove that a specific program that makes up for past discrimination
2. “real differences” between men and women. such as male on draft and statutory rape laws, (only men can go into combat and only women have the natural deterrence of pregnancy)
fundamental rights
some form of strict scrutiny or heightened scrutiny
voting
interstate travel
privacy
NEW: 2nd amendment right: to have a handgun in home for self defense
what does the right of privacy include?
CAMPER contraception: use and buy Abortion Marriage Procreation Education (private education) Relations (familial) and the right to possess obscenity in your home
abortion right
- prior to viability, the government may not impose any undue burden on the woman’s choice to terminate a pregnancy
an undue burden i s a substantial obstacle such as husband consent, publicizing names of persons seeking abortions or banning common or safe procedures
not undue burden to require a 24 hour waiting period or viability tests or to ban partial birth abortions, or for minors to require parental consent or judicial by pass. it is never an undue burden for the government to refuse to finance an abortion - after viability, the government may regulate substantially or prohibit abortion so long as there is an exception to save the life of the mother or preserve her significant health interests
familial relationship right
rights of parents to raise their children, right to maintain a relationship with your child, right to live together as a family
right to refuse medical treatment
a competent adult person has the right to refuse medical treatment but the court tends to apply a balancing test and weight the states reasons for intervening against the individuals liberty so a state can require vaccinations or clear and convincing evidence that an unconscious patient actually wanted her life sustaining treatment to be withdrawn
right to vote and participate in the political process
states can prescribe reasonable residence, age, and citizenship qualifications for voting
one person one vote/ fair apportionment
in all state and local elections voting by districts must be apportioned to guarantee one person one vote but in interest of maintaining political subdivisions and relatively compact districts deviations up to 16% have been permitted if the state proves the need for the deviation
In Federal elections greater precision is demanded and courts have invalidated deviations under even 1%
racial Gerrymandering
strict scrutiny: the objective is to dilute minorities
but if the objective is to enhance the vote, strict scrutiny is still applied but it can be upheld if it is only one factor in the decision
political gerrymandering
to attack: have to show the lines drawn were intended to lock out the opposing party over time AND that they are likely to result in a lock out, this is almost impossible to show
right to interstate travel
right to move from state to state and state laws cannot severely burden such a migration
- durational residency requirements: usually requires newcomers to wait a period of time before receiving certain governmental benefits: if the requirements are necessary, then most laws will be struck down, if not then they can be upheld
- laws that create a fixed or permanent distinction among residents: one you are a resident, you have to get the benefits that every other resident gets
vagueness
if a statute is vague, it is unconstitutional on its face if a person with common intelligence could not know what behavior is prohibited.
1st amendment protection because the danger is self censorship
ex. a crime to operate in gangs
overbreadth
unconstitutional if it prohibits substantially more expression than is necessary
ex. all fist amendment rights banned in airports
a law that bans nudity in drive-in movies
prior restraints
enjoins speech before it is uttered as opposed to punishing it afterwards
only allowed if it is necessary to prevent direct, immediate, and irreparable harm
ex. gag order on press before a court case in a small town
freedom of speech
the government may not restrict a persons opinion, message or ideas unless the speech falls into a special category of unprotected expression or the government shows a compelling need. this exacting scrutiny
content control
content protection includes the freedom not to speak and symbolic expression if the government is aiming at the message of the symbolic act
the government cannot make you carry a message, struck down flag desecration statutes
time, place, and manner restrictions
if the government regulation does not aim at content but affects expression only indirectly as a by product of regulating other conduct such as designating where you can march and whether you may use a bullhorn it will be judged at a more lienient time place and manner standards
three requirements of time place and manner controls
- content neutrality: there should be little to no discretion to pick and choose who the law applies to
- Substantial Alternative Opportunities for the speech to take place. Ex. generalized ban on picketing is too broad and invalid but a ban on picketing at a single residence is ok
- law narrowly serves a significant state interest: ex. prohibiting overnight sleeping in a park across form the white house interest is in maintaining the parks
exceptions to the usual content rules
- speech inciting immediate lawless or violent behaviors:
- fighting words or hate speech; true threats
- obscenity
- libel and defamation and invasion of privacy: tort
- Commercial speech
incitement language
- is intended to incite
- is in fact likely to incite imminent lawlessness
Distinguish: the hostile audience problem: a speaker may not be stopped unless the crowd’s hostility presents an imminent danger of uncontrolled violence
Fighting words or true threats
fighting words are words that by their very utterance inflict injury or tend to incite an immediate breach of the peace BUT they are very narrowly defined
but many laws banning fighting laws are struck down as overbroad or vague
true threats are statements where the speaker intends to communicate a serious expression of intent to committ unlawful act of violence to particular individuals or groups
obscenity
may be criminally proscribed and completely prohibited if it meets all three requirements:
- the average person, applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest (shameful or morbid sexual)
- the work depicts or describes in patently offensive way, sexual conduct specifically defined by the applicable state law and
- the work taken as a whole lacks serious literary, artistic, political, or scientific value
if the material is not obscene and merely sexually explicit. the government may:
- limit the availability to minors and prohibit the use of minors in making of materials
- use zoning powers to prescribe where places of adult entertainment may operate as long as the government has a substantial interest in regulating and ample opportunities remain available for the operation of these businesses
commercial speech
has some but not all first amendment protections
- the government may regulate and prohibit false, misleading or deceitful advertising or proposing an unlawful transaction (like an ad for cocaine)
- if the government attempts to regulate commercial speech beyond these three justifications, it must prove that its regulation advances a substantial governmental interest and is narrowly tailored, not quire strict scrutiny but heightened
freedom of the press
- generally the press has the same rights as everyone else, no more and no less
- press rights are the rights of the owner or publisher not the reafers or persons who are criticized in the press
expression in a non public forum
most government property is a non-public forum. unless the government has specifically dedicated nonpublic forums to be fully opened to all first amendment activites the government may regulate access:
- as to the content, may limit speech to the subject thich the property has been dedicated
- time place and manner controls:as long as regulations are reasonable, upheld
nonpublic property: public schools, military bases, government work places, airports, gov. telephone poles etc
speech of Public employee/ government employee
other than high level policy makers or confidential advisors, public employees cannot be hired or fired based on political party affiliation, political philosophy, or any act of expression
if ees are speaking as citizens about a matter of public concern, they may not be fired or disciplined unless their speech disrupts the operation of the office, undermines authority, or destroys close working relationships but cannot be summarily fired have to be able to prove disruption
the government may also limit the right of public employees to engage in partisan political activities relating to political management and campaigning
speech of student in school
schools may
- prescribe course content including what appears in student newspaper so long as there is a reasonable pedagogical basis for the schools decision
- set standards of decency in discourse and hence, discipline a student who gave a lewd speech
- in a non-curicular setting, may prohibit speech which materially disrupts school activities or which may be reasonably viewed as promoting illegal drug use
free exercise of religion
governments may neither punish people because of their religious beliefs nor require them to profess to any particular belief
in a proper context, such a conscientious objector status, the government may inquire into the sincerity of your beliefs but not the truth of them
laws aimed at religious behavior or conduct
strict scrutiny: it may not single out, prohibit or punish religious behaviors becuase it is religious or performed by a religious group
generally applicable laws that happen to affect religious practices or conduct
valid and the government is not required to exempt religious persons from the law even though the law may seriously interfere with religious practices is. ban on polygamy, criminalization of peyote
court resolutions of church disputes
courts are barred from deciding matters of church doctrine but if the issue is secular the court will rile on it
establishment clause
the government is to remain neutral respecting religion and neither aid one religion, aid all religions, or prefer one religion over the other
basic establishment clause test
are the laws neutral as to the religious and nonreligious and does the law refrain from endorsing religion
three part lemon test:
1. does the law have a secular purpose?
2. does the primary effect advance or prohibit religion?
3. does the law avoid excessive entanglement with religion?
generalized government benefits and the establishment clause
if practices are historically accepted like legislative prayer or provide generally available government benefits which do not primarily advance religion, the law is upheld
tax exemptions and sunday closing laws have been upheld
government aid to religious school
can usually claim the secular purpose of assisting in the educational needs of students,
can give secular textbook aid and school vouchers are okay because all parents had the choice on where to send their kids using the voucher program
governments are also more likely to uphold aid to religiously affiliated institutions of higher educations
government sponsored prayer or religious display
- the establishment clause prohibits governments sponsored religious exercises and prayers in public schools, but you can have a true moment of silence, though no moment of silence for prayer
- government may not sponsor religious displays on public property if a reasonable observer would conclude from the focus on the religious aspects that the government is endorsing religious messages
