Constitutional Law (Main Deck)*

Question 1

WHAT MUST YOU CONSIDER WHEN APPROACHING A CONSTITUTIONAL LAW QUESTION?

Answer 1

STEP 1: JUDICIAL AUTHORITY & REVIEW

A) Authority of the Courts

B) Jurisdiction

C) Judicial Review (Justiciable Case or Controversy)

STEP 2: TYPE OF CONSTITUTIONAL ISSUE

A) Separation of Powers

B) Relationship between Federal & State Powers (Federalism)

C) Constitutional Protections of Individual Rights

Question 2

PRELIMINARY ISSUE:

RATIONAL BASIS REVIEW

(State the Rule)

Answer 2

Rule: Under rational basis review, the Plaintiff carries the burden of persuasion to demonstrate that a law is not rationally related to any legitimate government purpose.

Note: A law reviewed under the rational basis test will be deemed constitutional if there is any conceivable legitimate government purpose for the law and the law is reasonably related to achieving or furthering that objective.

Question 3

PRELIMINARY ISSUE:

INTERMEDIATE SCRUTINY

(State the Rule)

Answer 3

Rule: Under intermediate scrutiny, the government carries the burden of persuasion to demonstrate that a law is substantially related to an important government purpose.

Note:

1) “Substantially related” means the law must be narrowly tailored to achieving the government’s objective.
2) The “Important government purpose” element requires that the government’s actual purpose be significant.

Question 4

PRELIMINARY ISSUE:

STRICT SCRUTINY

(State the Rule)

Answer 4

Rule: Under strict scrutiny, the government carries the burden of persuasion to demonstrate that a law is necessary to achieve a compelling government purpose.

Note:

1) “Necessary” means the law must be the least restrictive means to achieving the government’s objective.
2) The “compelling government purpose” element requires that the government’s actual purpose be vital.

Question 5

PRELIMINARY ISSUE:

WHAT IS THE DIFFERENCE BETWEEN THE NARROWLY TAILORED TEST & THE LEAST RESTRICTIVE MEANS TEST?

Answer 5

Rule: The narrowly tailored test is not as stringent as the least restrictive means test:

1) The narrowly tailored test requires that a law be designed to achieve the stated goal.
2) The least restrictive means test requires that there be no less restrictive way of achieving the stated goal.

Question 6

JUDICIAL AUTHORITY & REVIEW:

FROM WHERE DO FEDERAL COURTS DERIVE THEIR AUTHORITY?

Answer 6

Article III ofthe United States Constitution vests the judicial power of the United States in the United States Supreme Court and provides for the creation of lower federal courts by Congress.

Question 7

EXPLAIN THE JURISDICTION OF FEDERAL COURTS

Answer 7

Rule: Federal courts have jurisdiction over all cases that arise under the Constitution, federal laws, or federal treaties.

Supreme Court: The Supreme Court has original jurisdiction over:

1) Disputes between the United States and a state,
2) Actions by a state against the citizens of another state, AND
3) Cases involving ambassadors, public ministers, or consuls.

Note: The Supreme Court has exclusive jurisdiction only over disputes arising between two states. All other disputes can also be heard by lower federal courts.

Lower Federal Courts: The jurisdiction of the lower federal courts is determined by Congress and may be expanded, restricted, or modified through Congressional action. Lower federal courts have original jurisdiction over:

1) Disputes between citizens of different states,
2) Disputes between a United States citizen and a foreign country or citizen,
3) Issues arising under admiralty or maritime jurisdictions, AND
4) Cases involving the United States government.

Question 8

JURISDICTION:

SUPREME COURT’S APPELLATE JURISDICTION

(State the Rule)

Answer 8

Rule: The Supreme Court has appellate jurisdiction to hear a case after the highest court of a state, a U.S. Court of Appeals, or a three-judge federal District Court panel has issued a final judgment on the case.

Note: Even if the procedural requirements are satisfied, the Supreme Court will have appellate jurisdiction to hear cases only if the U.S. Constitution, a federal law, or federal treaty is implicated.

Question 9

JURISDICTION:

ADEQUATE & INDEPENDENT STATE GROUND DOCTRINE

(State the Rule)

Answer 9

Rule: Under the Adequate and Independent State Ground Doctrine, the U.S. Supreme Court does not have jurisdiction over the judgment of a state court that rests on both federal and state law if the state ground is:

1) Adequate to support the judgment, AND
2) Independent of federal law.

Note: A presumption exists that the Supreme Court has jurisdiction over judgments based on both federal and state law. The presumption will be overcome only if the state court explicitly states in its judgment that its decision rests on an independent state ground.

Question 10

ABSTENTION

(Define & State the Rule)

Answer 10

Definition: Abstention is a federal court’s act of refraining from interfering with pending state court proceedings though the federal court has jurisdiction.

Younger Abstention: A federal court will not interfere with an ongoing state criminal prosecution unless the Defendant was prosecuted in bad faith, or other extraordinary circumstances exist.

Pullman Abstention: A federal court will abstain from hearing a case so that state courts can have the opportunity to settle an underlying state law question, the resolution of which may avoid the need to decide a federal question.

Note: Abstention is based on the principle that federal courts respect the sovereignty of states and the independence of state judicial systems.

Question 11

JUSTICIABILITY:

JUSTICIABLE CASE OR CONTROVERSY REQUIREMENT

(State the Rule)

Answer 11

Rule: The Constitution limits the jurisdiction of federal courts to legitimate cases and controversies. Advisory opinions as to the constitutionality of a proposed law or regulation by the Supreme Court are forbidden.

Note: The four justiciability doctrines have been derived from Article Ill’s case or controversy requirement.

Question 12

LIST THE 4 JUSTICIABILITY DOCTRINES

Answer 12

1) Standing
2) Ripeness
3) Mootness
4) Political Question

Question 13

JUSTICIABILITY:

STANDING

(Define & State the Rule)

Answer 13

Definition: Standing is the issue of whether the Plaintiff is the proper party to bring a matter to the court for adjudication.

Rule: Two requirements generally must be met to establish a Plaintiffs standing:

1) The Plaintiff must have personally suffered an injury or be threatened with future injury, AND
2) The Plaintiff must reasonably allege that prevailing in the suit will redress or prevent the harm.

Note: To obtain injunctive or declaratory relief, the Plaintiff must show a likelihood of future harm.

Question 14

STANDING:

TAXPAYERS & CITIZENS

(State the Rule)

Answer 14

Rule: Federal taxpayers generally do not have standing to challenge federal taxation or spending based solely on their status as taxpayers or U.S. citizens.

Exception: Standing is recognized if a taxpayer can establish a logical nexus between the Plaintiff’s status as a taxpayer and the claim. A logical nexus will be found where the challenged law:

1) Was passed under Congress’ Article I, Section 8 authority, AND
2) Violates constitutional limitations specifically imposed on the taxing and spending power.

Note:

1) This exception has been recognized by the Supreme Court only once, where the Court held a taxpayer had standing to challenge federal education spending by Congress as a violation of the establishment clause.
2) Citizens/taxpayers do not have standing to bring suit challenging discretionary executive branch expenditures.

Question 15

STANDING:

THIRD PARTY

(State the Rule)

Answer 15

Rule: A Plaintiff generally does not have standing to bring suit on behalf of a third party.

Exception: Third-party standing is recognized when:

1) A special relationship exists between the Plaintiff and the injured third party, and the third party is unlikely to assert her own rights (e.g., Physician-Patient),
2) The third party would have difficulty asserting her own rights, OR
3) An organization is suing on behalf of its members and:
a) The members would have standing to sue,
b) The interests the organization seeks to protect are germane to its purpose,
c) Neither the claim asserted nor relief requested require individual participation, AND
d) The organization’s members are at risk of imminent and concrete harm.

Note: An organization must identify a specific harm its members will suffer to establish third-party standing. Generalized threats (e.g., to the environment) are not sufficient.

Question 16

JUSTICIABILITY:

RIPENESS

(Define & State the Rule)

Answer 16

Definition: An issue is ripe when the facts of the case have matured to the point where judicial action is appropriate.

Rule: A claim is ripe for adjudication only if the impact ofthe law or regulation on the Plaintiff is sufficiently direct and immediate to render the issue appropriate for judicial review. To determine a claim’s ripeness for adjudication, courts look to:

1) The fitness of the issues and the record for judicial review, AND
2) The hardship to the parties of withholding court consideration.

Question 17

JUSTICIABILITY:

MOOTNESS

(State the Rule)

Answer 17

Rule: A case will be dismissed as moot if events arising after the filing of a lawsuit terminate the injury or threat of injury to the Plaintiff.

Exception: A case will not be dismissed as moot if:

1) The wrong is capable of repetition, yet evading review, OR
2) The wrongful activity was voluntarily stopped by the Defendant and could be restarted.

Note: If an action becomes moot with regard to the named Plaintiff in a class action suit, the class will not lose standing as long as one member of the class remains injured or threatened with injury.

Question 18

JUSTICIABILITY:

POLITICAL QUESTION

(State the Rule)

Answer 18

Rule: Under the Political Question Doctrine, federal courts will dismiss actions based on a political question as non-justiciable. A political question will be found if:

1) The issue has been committed to another branch of government by the Constitution,
2) Judicially manageable standards to decide the case on the merits do not exist and would be too difficult to create,
3) Judicial intervention would show insufficient respect for other branches of government, OR
4) Deciding the case would be impossible without engaging in policy decision-making.

Note: Common non-justiciable political questions include:

1) The republican form of government clause,
2) Challenges to the duration of war,
3) Challenges to presidential decisions regarding foreign affairs,
4) Challenges to political parties’ actions.

Question 19

FROM WHERE DOES CONGRESS DERIVE ITS AUTHORITY?

Answer 19

Rule: Congress’ authority is derived from the Constitution’s granting of express powers and the courts’ reading of implied powers:

1) Express Powers: Powers specifically enumerated in the Constitution.
2) Implied Powers: Powers implied from the necessary and proper clause.

Question 20

LIST THE MAJOR ENUMERATED & IMPLIED POWERS OF CONGRESS

Answer 20

Enumerated Powers (Art. I, §8):

1) Necessary & Proper Clause
2) Taxing & Spending Power
3) Patent & Copyright Power
4) Commerce Power
5) Establishing Federal Courts
6) War Powers
7) Bankruptcy Power
8) Postal Power
9) Power over Citizenship
10) Power to Coin Money, Fix Weights & Measures

Implied Powers:

1) Investigatory Power
2) Property Power

Question 21

CONGRESSIONAL POWER:

NECESSARY & PROPER CLAUSE

(State the Rule)

Answer 21

Rule: The necessary and proper clause of Article I, Section 8 authorizes Congress to carry out its authority by any means not prohibited by the Constitution.

Question 22

CONGRESSIONAL POWER:

TAXING & SPENDING POWER

(State the Rule)

Answer 22

Rule: Congress has broad power to tax for revenue-raising purposes, subject to the following conditions:

1) All indirect taxes (duties or excise tax) must be imposed uniformly among the states.
2) All direct taxes (those applied to people or property) must be apportioned among the states. AND
3) Export taxes are prohibited.

Note: The general welfare clause is a limitation on Congress’ power to tax and spend.

Question 23

CONGRESSIONAL POWER:

USE OF THE TAXING & SPENDING POWER TO REGULATE

(State the Rule)

Answer 23

Rule: Courts will not question congressional motives or the regulatory effects of a tax if:

1) Congress has the power to impose the tax, AND
2) The tax will in fact raise revenue.

Note: Congress may use its power to tax and spend for regulatory purposes by placing conditions on qualifications for federal funding if:

1) Congress is acting in the public interest (i.e., general welfare of the people),
2) The conditions are expressly stated,
3) The conditions relate to the general welfare purpose of the spending program, AND
4) The spending is notfor an unconstitutional purpose (e.g., the money is not being used to discriminate).

Question 24

CONGRESSIONAL POWER:

COMMERCE POWER

(State the Rule)

Answer 24

Rule: Under the Commerce Power, Congress may:

1) Regulate the channels of interstate commerce,
2) Regulate the instrumentalities of interstate commerce,
3) Regulate persons or things in interstate commerce, AND
4) Regulate activities that have a substantial effect on interstate commerce.
a) If the activity is economic, the substantial effect can be based on cumulative impact,
b) If the activity is non-economic, the substantial effect cannot be based on cumulative impact.

Note: Congress may not use its commerce power to compel a state to enact or enforce a federal regulation.

Question 25

CONGRESSIONAL POWER:

WAR POWER

(State the Rule)

Answer 25

Rule: Congress has the power to declare war, raise and support the armed forces, and make laws governing the armed forces.

Question 26

CONGRESSIONAL POWER:

BANKRUPTCY

(State the Rule)

Answer 26

Rule: Congress has the power to establish uniform laws
regulating bankruptcy throughout the United States.

Question 27

CONGRESSIONAL POWER:

INVESTIGATORY POWER

(State the Rule)

Answer 27

Rule: Under the necessary and proper clause. Congress has an implied power to investigate any matter that falls within the legislative sphere

Note: This power includes the power to summon witnesses. If a witness refuses to appear, the witness may be cited with contempt and the matter forwarded to the Attorney General for prosecution.

Question 28

CONGRESSIONAL POWER:

PROPERTY POWER

(State the Rule)

Answer 28

Rule: Congress has the power to enact laws regulating the territory and property of the United States.

Question 29

WHAT POWER DOES CONGRESS HAVE UNDER THE 13th AMENDMENT?

Answer 29

Rule: Congress may regulate private behavior under the 13th Amendment to prevent racially discriminatory activity.

Note:

1) The 13th Amendment prohibits slavery and indentured servitude.
2) There is no state action requirement under the 13th Amendment.

Question 30

WHAT POWER DOES CONGRESS HAVE UNDER THE 14TH & 15TH AMENDMENTS?

Answer 30

Rule: Congress has broad power to enforce rights recognized by the courts under the 14th and 15th Amendments Laws enacted to enforce these rights must be proportionate and congruent to remedying constitutional violations.

Note: Under the 14th or 15th Amendments, congress may not:

1) Create new rights. OR
2) Expand the scope of rights.

Question 31

LIST 6 FEDERAL EXECUTIVE POWERS

Answer 31

1) Commander-in-Chief
2) Head of State
3) Appointment Power
4) Removal Power
5) Veto Power
6) Pardon Power

Question 32

COMMANDER-IN-CHIEF

(State the Rule)

Answer 32

Rule: The President serves as commander-in-chief of the United State military.

Note: Pursuant to this power, the President may deploy American forces abroad without a declaration of war.

Question 33

HEAD OF STATE

(State the Rule)

Answer 33

Rule: The President has the power to make treaties and enter into executive agreements with foreign nations.

Note: If the President signs a treaty, it must be ratified by two-thirds of the Senate to become law.

Question 34

APPOINTMENT POWER

(State the Rule)

Answer 34

Rule: The President has the power to appoint ambassadors, federal judges, and officers ofthe United States.

Question 35

REMOVAL POWER

(State the Rule)

Answer 35

Rule: The President has the power to remove with or without cause any executive appointee.

Exception: The President may not:

1) Remove federal judges, OR
2) Remove appointees in offices where the term is fixed by statute, unless good cause exists.

Note: Congress may limit removal if the office is one in which independence from the President is desirable. However, Congress can only do so with good cause.

Question 36

VETO POWER

(State the Rule)

Answer 36

Rule: The Constitution requires the President to sign or veto federal legislation within ten days (excluding Sundays) of presentment of a bill by Congress. If the President does not sign the legislation:

1) And Congress is in session: The bill becomes law.
2) And Congress adjourns within ten days: The bill does not become law (i.e.. pocket veto).

Question 37

PARDON POWER

(State the Rule)

Answer 37

Rule: The President may pardon persons accused or convicted of a federal crime. Under the Pardon Power, the President may:

1) Grant a full pardon (i.e., completely overturn a criminal conviction),
2) Commute a federal sentence (e.g., commuting a death sentence to life in prison),
3) Grant a conditional pardon (e.g., vacating a conviction but leaving a fine in place), OR
4) Pardon an entire class of people (e.g., pardoning all Vietnam draft-dodgers).

Note: The President does not have the power to pardon impeachments, civil judgments, findings of civil contempt, or state criminal convictions.

Question 38

INTERBRANCH RELATIONSHIPS:

EXPLAIN CONGRESS’ ABILITY TO DELEGATE POWER

Answer 38

1) Congress can delegate legislative powers to the judicial or executive branches unless the power is exclusive to Congress.
2) Congress may not delegate executive power to itself.

Question 39

INTERBRANCH RELATIONSHIPS:

WHAT ARE THE CONGRESSIONAL POWERS THAT CAN BE USED TO LIMIT OR RESTRICT THE EXECUTIVE?

Answer 39

1) Power to Impeach and Remove
2) Investigatory Power
3) Apportionment Power
a) Note: Under the Apportionment Power, Congress may direct the President to spend appropriated money.

Question 40

INTERBRANCH RELATIONSHIPS:

LEGISLATIVE VETOES

(Define & State the Rule)

Answer 40

Definition: A legislative veto is a resolution by Congress to nullify or overturn an action by an agency ofthe executive branch.

Rule: Legislative vetoes are unconstitutional as an intrusion of executive authority.

Question 41

INTERBRANCH RELATIONSHIPS:

IMPEACHMENT & REMOVAL

(State the Rule)

Answer 41

Rule: The President, federal judges, and officers ofthe Unites States may be impeached and removed for treason, bribery, or high crimes and misdemeanors. Removal ofthe individual from office requires:

1) Impeachment by the House of Representatives (requires a majority vote), AND
2) Conviction by the Senate (requires a two-thirds vote).

Note: Impeachment does not remove a person from office. If impeached by the House, that person must also be convicted by Senate. Only then will the official be removed from office.

Question 42

INTERBRANCH RELATIONSHIPS:

WHAT ARE THE CONGRESSIONAL POWERS THAT CAN BE USED TO LIMIT OR RESTRICT THE JUDICIARY?

Answer 42

1) Congress has the power to establish and determine the jurisdiction of courts inferior to the Supreme Court.
2) Congress regulates the size of the federal courts, including the Supreme Court.
3) Congress may impeach members of the judiciary.

Question 43

INTERBRANCH RELATIONSHIPS:

WHAT IS THE EXECUTIVE POWER THAT CAN BE USED TO LIMIT OR RESTRICT CONGRESS?

Answer 43

The President may veto legislative action.

Question 44

INTERBRANCH RELATIONSHIPS:

EXECUTIVE PRIVILEGE

(State the Rule)

Answer 44

Rule: Under the Executive Privilege:

1) The President and executive officials may refuse to disclose information regarding presidential papers and conversations to Congress and the judiciary,
a) Note: This power is not absolute, but is held subject to other important government interests.
2) The President has absolute immunity to civil suits for any actions carried out while in office.

Note:

1) The Executive Privilege will not protect a President from criminal inquiries into acts carried out while in office.
2) The Executive Privilege extends to presidential aides.

Question 45

INTERBRANCH RELATIONSHIPS:

TREATIES

(Define & State the Rule)

Answer 45

Definition: Treaties are agreements between the United States and a foreign country that are negotiated by the President and become effective when ratified by the Senate.

Rule 1: Treaties take precedence over conflicting state laws or executive agreements.

Rule 2: A conflict between a federal law and a treaty is resolved in favor of the last in time (i.e., the most recent).

Rule 3: The Constitution prevails over treaties.

Question 46

INTERBRANCH RELATIONSHIPS:

EXECUTIVE AGREEMENT

(Define & State the Rule)

Answer 46

Definition: An executive agreement is an agreement between the United States and a foreign country that becomes effective when signed by the President and the head of a foreign nation.

Rule 1: Senate ratification of executive agreements is not required.

Rule 2: Executive agreements prevail over conflicting state laws.

Rule 3: The Constitution, federal statutes and treaties prevail over executive agreements.

Question 47

INTERBRANCH RELATIONSHIPS:

LINE-ITEM VETOES

(Define & State the Rule)

Answer 47

Definition: A line-item veto is a veto that grants the President the power to veto selected provisions of Congressional bills.

Rule: Line-item vetoes are unconstitutional. The President must veto or sign the entire bill as presented by Congress.

Question 48

INTERBRANCH RELATIONSHIPS:

WHAT IS THE EXECUTIVE POWER THAT CAN BE USED TO LIMIT OR RESTRICT THE JUDICIARY?

Answer 48

The President appoints the members of the judiciary with the advice and consent of the Senate.

Question 49

INTERBRANCH RELATIONSHIPS:

WHAT IS THE JUDICIAL POWER THAT CAN BE USED TO LIMIT OR RESTRICT THE LEGISLATIVE AND EXECUTIVE BRANCHES?

Answer 49

The judiciary has the power of judicial review over the acts of the executive and legislative branches and may rule such acts unconstitutional.

Question 50

RELATIONS OF FEDERAL & STATE POWERS:

WHAT SHOULD YOU CONSIDER WHEN THINKING ABOUT FEDERALISM?

Answer 50

1) Preemption
2) Intergovernmental Immunities
3) Dormant Commerce Clause
4) Privileges & Immunities Clause
5) Full Faith & Credit
6) Federal Police Power

Question 51

PREEMPTION

(State the Rule)

Answer 51

Rule: The supremacy clause of Article VI provides that the
Constitution, and laws and treaties made pursuant to it,
are the supreme law of the land. Thus, if federal and state laws conflict, the federal law will preempt the state law.

Question 52

EXPRESS PREEMPTION

(State the Rule)

Answer 52

Rule: Federal law will preempt any state law if Congress
explicitly states its intention that the federal law preclude
state legislation.

Question 53

IMPLIED PREEMPTION

(State the Rule)

Answer 53

Rule: In the absence of express Congressional intent to preempt state law, implied preemption may be found if:

1) The state law impedes a federal objective,
2) Congress has signaled an intent to wholly occupy the field, OR
3) The state law sets a standard below a federal minimum standard.

Note:

1) States are generally free to enact more restrictive regulations than those passed by Congress, provided that doing so does not impede a federal objective.
2) Congressional intent to wholly occupy the field may be inferred from the wording ofthe legislation or from the legislative history of the law.

Question 54

INTERGOVERNMENTAL IMMUNITIES:

FEDERAL IMMUNITY

(State the Rule)

Answer 54

Rule: States may not tax or regulate federal activities.

Exception: States may tax:

1) Independent contractors working for or with the federal government, provided the tax does not discriminate against federal contractors, AND
2) The income of federal employees.

Note: States may regulate federal land or territories only if Congress grants them the power to do so.

Question 55

INTERGOVERNMENTAL IMMUNITIES:

STATE IMMUNITY

(State the Rule)

Answer 55

Rule: The 10th Amendment prohibits the federal government from taxing unique state activities or essential state government functions.

Question 56

SOVEREIGN IMMUNITY

(Define)

Answer 56

Definition: Sovereign immunity is the doctrine that prohibits federal courts from hearing suits against state governments without the state’s consent.

Question 57

WHEN CAN A STATE BE SUED IN FEDERAL COURT?

Answer 57

Rule: A state can be sued in federal court if:

1) A state explicitly waives immunity,
2) The federal government is bringing suit, OR
3) The suit is brought pursuant to federal laws adopted under Section 5 ofthe 14th Amendment.

Question 58

SOVEREIGN IMMUNITY:

SUITS AGAINST STATE OFFICERS

(State the Rule)

Answer 58

Rule: Lawsuits may be brought against state officers for:

1) Injunctive relief, AND
2) Money damages, if the state officers can be held personally liable.

Note: A lawsuit against a state officer will not be allowed if the state treasury will have to pay retroactive damages.

Question 59

10th AMENDMENT LIMITATIONS ON CONGRESS’ POWER

(State the Rule)

Answer 59

Rule: The 10th Amendment prohibits Congress from compelling state regulatory or legislative action.

Exception: Congress may:

1) Induce state governments to act by placing mandates on money grants to the states if the mandates are:
a) Expressly stated, AND
b) Related to the purpose of the spending program.
2) Prohibit harmful commercial activity by state governments.

Note: The 10th Amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’

Question 60

DORMANT COMMERCE CLAUSE

(State the Rule)

Answer 60

Rule: Where Congress has declined to regulate an area of interstate commerce, states may enact laws that regulate interstate commerce if the regulation does
not:

1) Place an excessive burden on interstate commerce, OR

2) Discriminate against interstate
commerce.

Question 61

DORMANT COMMERCE CLAUSE:

STATE LAWS THAT DISCRIMINATE AGAINST INTERSTATE COMMERCE

(State the Rule)

Answer 61

Rule: A state law that discriminates against interstate commerce will violate the dormant commerce clause and will be unconstitutional unless:

1) The law is necessary to achieve an important government purpose, AND
2) There are no less restrictive alternatives.

Note: A state law may be facially discriminatory or discriminatory in its effect.

Question 62

DORMANT COMMERCE CLAUSE:

MARKET PARTICIPANT EXCEPTION

(State the Rule)

Answer 62

Rule: A state may discriminate against out-of-state persons or businesses when a state acts as a market participant.

Note: Under the market participant exception, states may:

1) Choose to do business with in-state companies rather than out-of-state companies,
2) Grant lower tuition to in-state residents, AND
3) Require that private companies performing traditional government activities (e.g., trash hauling) within the state deal exclusively with state-owned and controlled repositories.

Question 63

DORMANT COMMERCE CLAUSE:

STATE LAWS THAT UNDULY BURDEN INTERSTATE COMMERCE

(State the Rule)

Answer 63

Rule: If a state law places an undue burden on interstate commerce, courts will balance the burden on commerce against the legitimate purpose of the state.

Note:

1) The government purpose must not be discriminatory.
2) As part of this determination, courts will inquire into the possibility of less restrictive alternatives to the state regulation.

Question 64

PRIVILEGES & IMMUNITIES:

WHERE IN THE CONSTITUTION WOULD YOU LOOK TO FIND THE THE PRIVILEGES & IMMUNITIES CLAUSES?

Answer 64

1) Article IV, Section 2, AND
2) Section 1 ofthe 14th Amendment.

Note: Aliens and corporations are not citizens and, thus, are not protected under the privileges and immunities clauses.

Question 65

PRIVILEGES & IMMUNITIES:

PRIVILEGES & IMMUNITIES CLAUSE OF SECTION 1 OF THE 14th AMENDMENT

(State the Rule)

Answer 65

Rule: The rights of citizens to the privileges of national citizenship are protected by the 14th Amendment. The privileges of national citizenship include:

1) The right to vote in federal elections,
2) The right to travel from state to state.
3) The right to enter public lands.
4) The right to petition Congress for redress.

Question 66

PRIVILEGES & IMMUNITIES:

PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV, SECTION 2 OF THE CONSTITUTION

(Define & State the Rule)

Answer 66

Definition: The privileges and immunities clause prohibits states from discriminating against nonresidents with respect to fundamental rights related to essential commercial activities (e.g., employment or earning a livelihood).

Rule: The citizens of each state are entitled to the privileges and immunities of the citizens in the several states.

Exception: A state law that discriminates against nonresidents with respect to fundamental economic activities will be valid if the state can show that:

1) Non-residents are the source of a problem the law is designed to remedy, AND
2) The law is narrowly tailored to remedying that harm.

Question 67

RELATIONS BETWEEN STATES:

FULL FAITH & CREDIT CLAUSE

(State the Rule)

Answer 67

Rule: The full faith and credit clause requires that courts in every state enforce the judgments of out-of-state courts if:

1) The out-of-state court had personal and subject matter
jurisdiction,

2) The judgment was on the merits, AND
3) The judgment was final.

Question 68

FEDERAL POLICE POWERS

(State the Rule)

Answer 68

Rule: Generally, policing authority is the states’ domain. Federal police power may only be exercised:

1) In Washington D C..
2) To exclude access to military bases.
3) On Indian reservations.
4) On federal lands and territories. AND/OR
5) To confiscate property from enemy aliens.

Question 69

INDIVIDUAL RIGHTS:

BILL OF RIGHTS

(Define & State the Rule)

Answer 69

Definition: The Bill of Rights is composed of the first ten amendments to the Constitution.

Rule: The Bill of Rights applies to the federal government, and most rights have been extended to the states through the 14th Amendment.

Question 70

WHICH BILL OF RIGHTS PROVISIONS ARE NOT INCORPORATED THROUGH THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT?

Answer 70

1) The 2nd Amendment right to keep and bear arms.
2) The 3rd Amendment right to not have a soldier quartered in one’s home,
3) The 5th Amendment right to grand jury indictment in criminal cases,
4) The 7th Amendment right to jury trial in civil cases,
5) The 8th Amendment right to be free from excessive fines.

Note: The 2nd Amendment right to bear arms was recognized as an individual right by the Supreme Court in 2008. However, the amendment has not been explicitly extended to state and local governments through the Due Process Clause ofthe 14th Amendment.

Question 71

INDIVIDUAL RIGHTS:

STATE ACTION REQUIREMENT

(State the Rule)

Answer 71

Rule: The Constitution protects only against state action. It does not protect against private actors’ conduct.

Note: State action may be found in private conduct where:

1) A private entity is carrying out an activity traditionally and exclusively performed by the state, OR
2) There is significant state involvement in the private discrimination.

Question 72

DUE PROCESS

(State the Rule)

Answer 72

Rule: Neither federal nor state governments can deprive a person of life, liberty, or property without due process of law.

Note: The right to due process derives from the 5th and 14th Amendments.

Question 73

WHAT IS THE DIFFERENCE BETWEEN PROCEDURAL DUE PROCESS & SUBSTANTIVE DUE PROCESS?

Answer 73

Procedural Due Process: Procedural due process ensures the fairness of the procedures government follows when it deprives a person of life, liberty, or property.

Substantive Due Process: Substantive due process ensures that the government is justified in depriving a person’s life, liberty or property interests.

Question 74

PROCEDURAL DUE PROCESS:

WHEN DOES A DEPRIVATION OF LIFE, LIBERTY, OR PROPERTY OCCUR?

Answer 74

Rule: A deprivation of life, liberty, or property occurs when state action negatively affects a person’s liberty or property rights:

1) Deprivation of liberty: The loss or restriction of a significant freedom provided by the Constitution or a statute.
2) Deprivation of property: The loss of property or an unfulfilled entitlement.

Note:

1) The loss of liberty or property as a result of negligent conduct by the government will not violate procedural due process.
2) The loss of liberty or property as a result of government conduct under emergency situations will not violate procedural due process.

Question 75

PROCEDURAL DUE PROCESS:

HOW DO COURTS DETERMINE IF GOVERNMENT PROCEDURES MEET THE REQUIREMENTS OF DUE PROCESS?

Answer 75

Rule: To determine if sufficient procedural safeguards have been provided, courts will look to:

1) The interest ofthe individual and the injury threatened by the official action,
2) Whether the risk of harm can be reduced with the introduction of additional procedural safeguards, AND
3) The government’s burden (fiscal and administrative) of introducing additional safeguards.

Note: Notice and a hearing are almost always required to meet the requirements of procedural due process.

Question 76

PROCEDURAL DUE PROCESS:

LIBERTY INTEREST -

SPECIAL CASES

Answer 76

American citizens held as enemy combatants: Requires notice of charges, representation by an attorney, and a meaningful hearing.

Commitment to a mental institution: Requires notice and a hearing for adults; only a hearing before a neutral fact-finder for children.

Question 77

DOES PROCEDURAL DUE PROCESS PROVIDE FOR AN INNOCENT OWNER DEFENSE AGAINST GOVERNMENT SEIZURE?

Answer 77

Rule: Procedural due process does not provide for an innocent owner defense against government seizure of property. If property is used in an illegal activity, the government may seize the property even if it has an innocent owner.

Question 78

IRREBUTTABLE PRESUMPTIONS

(State the Rule)

Answer 78

Rule: The use of certain irrebuttable presumptions by a court will violate procedural due process.

Question 79

SUBSTANTIVE DUE PROCESS:

ECONOMIC REGULATIONS

(State the Rule)

Answer 79

Rule: Generally, laws that regulate economic activity are subjected only to rational basis review.

Question 80

SUBSTANTIVE DUE PROCESS:

FUNDAMENTAL RIGHTS

(State the Rule)

Answer 80

Rule: To be valid, laws affecting a fundamental right must pass strict scrutiny.

Exception: Abortion employs a unique test, slightly less stringent than strict scrutiny.

Question 81

SUBSTANTIVE DUE PROCESS:

FUNDAMENTAL RIGHTS

(List Them)

Answer 81

1) Right to Vote
2) Right to Travel
3) Right to Privacy
a) Right to Use Contraception
b) Right to Abortion
c) Right to Keep the Family Together
d) Right to Marriage
e) Right to Control the Education of One’s Own Children
f) Right to Procreate
g) Right to Refuse Medical Treatment
4) 1st Amendment Rights

Question 82

FUNDAMENTAL RIGHTS:

THE RIGHT TO VOTE

(State the Rule)

Answer 82

Rule: The right to vote is a personal fundamental right, and laws restricting the right to vote must meet strict scrutiny.

Note:

1) One-person-one-vote requires that districts be roughly equal in population.
2) At-large elections are generally constitutional, unless there is a discriminatory purpose underlying the use of at-large districts.
3) Tallying uncounted votes in a presidential election without preset standards is unconstitutional.
4) Property or education requirements to vote and poll taxes will not meet strict scrutiny.

Question 83

FUNDAMENTAL RIGHTS:

THE RIGHT TO TRAVEL

(State the Rule)

Answer 83

Rule: The right to travel is a personal fundamental right, and laws restricting the right to travel must meet strict scrutiny.

Note:

1) Laws preventing people from moving into a state must meet strict scrutiny.
2) Lengthy residency requirements prior to obtaining state benefits must pass strict scrutiny.
3) A limitation on the right to foreign travel need only pass rational basis review.

Question 84

FUNDAMENTAL RIGHTS:

RIGHT TO ABORTION

(State the Rule)

Answer 84

Rule: The constitutionality of a law regulating abortion depends on the viability of the fetus:

1) Prior to viability: States may not ban abortions during the period before viability, but may regulate abortions if the regulation does not create an undue burden on the ability to obtain an abortion.
2) After viability: States may ban abortions if they provide an exception to protect the health or life of the mother.

Note:

1) It is unconstitutional for states to enact a complete ban on abortions.
2) Spousal consent and notification laws are unconstitutional.
3) Parental notice and consent laws for unmarried minors are constitutional if the minor can obtain the consent of a judge in lieu of parental consent.
4) Partial-birth abortion bans in the second trimester are constitutional if an exception for the life ofthe mother is provided.

Question 85

FUNDAMENTAL RIGHTS:

RIGHT TO MARRY

(State the Rule)

Answer 85

Rule: The right to marry is a personal fundamental right, and laws restricting the right to marry must meet strict scrutiny.

Note:

1) Strict scrutiny will be applied if a law creates a direct barrier to marriage.
2) Rational basis review will be applied if a law creates only an incidental barrier to marriage.

Question 86

FUNDAMENTAL RIGHTS:

RIGHT TO REFUSE MEDICAL TREATMENT

(State the Rule)

Answer 86

Rule: Competent adults have the right to refuse medical treatment, even life-saving medical treatment. However, a state may require clear and convincing evidence that a person wants the treatment terminated.

Note: The right to refuse treatment is an individual right, and the states have an important interest in safeguarding the sanctity of life. Thus, a state may prevent family members from terminating treatment for another.

Question 87

WHAT IS THE RELATIONSHIP BETWEEN SUBSTANTIVE DUE PROCESS & EQUAL PROTECTION?

Answer 87

Substantive Due Process:

1) Assures that a law will be fair and reasonable, AND
2) Applies when a law affects the rights of all persons with respect to a specific activity.

Equal Protection:

1) Assures that laws will not be applied differently to different people, AND
2) Applies where a law affects the rights of only some people with respect to a specific activity.

Question 89

ARE FUNDAMENTAL RIGHTS TREATED DIFFERENTLY UNDER SUBSTANTIVE DUE PROCESS & EQUAL PROTECTION?

Answer 89

No. Laws affecting fundamental rights must meet strict scrutiny under both substantive due process and equal protection.

Question 90

EQUAL PROTECTION

(State the Rule)

Answer 90

Rule: Under the 14th Amendment, no state may deny to any person within its jurisdiction the equal protection of the laws.

Question 91

EQUAL PROTECTION:

APPLICATION TO THE FEDERAL GOVERNMENT

(State the Rule)

Answer 91

Rule: The principles of equal protection have been applied to the federal government through the due process clause of the 5th Amendment (i.e., substantive due process).

Note: Courts will only apply equal protection principles to the federal government when discrimination is so unjustifiable that it violates due process.

Question 92

EQUAL PROTECTION:

DISCRIMINATORY INTENT

(State the Rule)

Answer 92

Rule: To qualify a law for strict scrutiny, a Plaintiff must show the government acted with discriminatory intent. Discriminatory intent will be found if:

1) The law is discriminatory on its face.
2) The law is facially neutral but applied in a discriminatory manner. OR
3) The law is facially neutral, but discriminatory impact and discriminatory intent can be proven.

Question 93

EQUAL PROTECTION CLASSIFICATIONS:

RACE OR NATIONAL ORIGIN

(State the Rule)

Answer 93

Rule: Laws that discriminate on the basis of race or national origin must meet strict scrutiny. Discrimination on the basis of race or national origin will be found if:

1) The law is discriminatory on its face, OR
2) The law is facially neutral, but discriminatory impact and discriminatory intent can be proven.

Note:

1) Laws that benefit racial or ethnic minorities also must pass strict scrutiny.
2) Racial classifications may be used to remedy past intentional discrimination that has not yet been remedied.
3) Higher education institutions can use race as one of multiple factors in admissions decisions for the purpose of maintaining a diverse student body.
4) K-12 school districts cannot use a child’s race as the determining factor when assigning children to K-12 schools.
5) Seniority systems cannot be disrupted for affirmative action.

Question 94

EQUAL PROTECTION CLASSIFICATIONS:

GENDER CLASSIFICATIONS

(State the Rule)

Answer 94

Rule: Laws that discriminate on the basis of gender must meet intermediate scrutiny and have an exceedingly persuasive justification. Discrimination on the basis of gender will be found if:

1) The law is facially discriminatory on the basis of gender, OR
2) The law is facially neutral but there is both a discriminatory impact and a discriminatory intent.

Note: A law that benefits women will be upheld if the law is designed to remedy past discrimination that resulted in ascertainable differences in opportunity.

Question 95

EQUAL PROTECTION CLASSIFICATIONS:

ALIENAGE CLASSIFICATIONS

(State the Rule)

Answer 95

Rule: Generally, laws that discriminate on the basis of citizenship must meet strict scrutiny.

Exception: Laws may prevent non-citizens from:

1) Voting,
2) Serving on a jury,
3) Working as a police officer or probation officer,
4) Working as a teacher.

Note:

1) Federal legislation affecting undocumented aliens need only meet rational basis review due to Congress’ enumerated power to regulate citizenship and immigration.
2) The children of illegally present people have the right to primary and secondary education.
3) Non-citizens held as enemy combatants have the right to habeas corpus review in federal courts.

Question 96

EQUAL PROTECTION CLASSIFICATIONS:

ILLEGITIMATE CHILDREN

(State the Rule)

Answer 96

Rule: Laws that discriminate on the basis of legitimacy must meet intermediate scrutiny.

Question 97

EQUAL PROTECTION CLASSIFICATIONS:

LIST 4 CLASSIFICATIONS THAT MUST MEETONLY RATIONAL BASIS REVIEW

Answer 97

1) Age
2) Disability
3) Wealth
4) Sexual Orientation

Question 98

TAKINGS CLAUSE

(State the Rule)

Answer 98

Rule: Under the 5th Amendment’s takings clause, the government may confiscate private property for public use if the owner is provided just compensation.

Question 99

TAKINGS CLAUSE:

TAKING

(Define)

Answer 99

Definition: A taking may be possessory or regulatory:

1) Possessory Taking: Confiscation of property by the government.
2) Regulatory Taking: Government regulation that is so oppressive as to leave no reasonably economically viable use for the property.

Note:

1) A regulation causing a mere decrease in the value of property does not qualify as a taking.
2) A Plaintiff may challenge as a taking a regulation that was already in place when the Plaintiff purchased the property.
3) A temporary restriction on development is not a taking if the restriction is not in place for an unreasonably long period of time.
4) A regulation on development must be justified by a benefit proportionate to the burden imposed.

Question 100

TAKINGS CLAUSE:

PUBLIC USE

(State the Rule)

Answer 100

Rule: Ataking is for public use if the government acts with a reasonable belief that the use ofthe appropriated property will serve a public purpose.

Note:

1) A government may not take private property to benefit a particular class of identifiable individuals.
2) However, condemned property does not have to be made available to the general public. Taking is allowed as long as the use ofthe condemned property confers a benefit on the community (e.g., creation of jobs, increased tax revenue).

Question 101

TAKINGS CLAUSE:

HOW DO COURTS DETERMINE WHETHER THE COMPENSATION PROVIDED IS JUST?

Answer 101

Rule: Just compensation is based on the loss suffered by the owner, which is measured by the property’s market value at the time of the taking.

Note: The benefit bestowed upon the government or the entity to which the government assigns the property is irrelevant.

Question 102

CONTRACTS CLAUSE

(State the Rule)

Answer 102

Rule: Under Article I. Section 10, states are prohibited from impairing private contract rights.

Exception: A state law may impair private contract rights if:

1) The law is necessary to serve an important government interest, AND
2) The law is a reasonable and narrowly tailored means of promoting the important government interest.

Question 103

EX POST FACTO CLAUSE

(State the Rule)

Answer 103

Rule: Federal and state governments are prohibited from adopting laws that:

1) Criminally punish conduct that was lawful when it was carried out, OR
2) Increase the punishment for a crime after it has been completed

Note: An ex post facto law is a law that retroactively changes the legal consequences of acts already committed.

Question 104

BILL OF ATTAINDER

(Define & State the Rule)

Answer 104

Definition: A bill of attainder is a law that inflicts punishment on a specific person or easily ascertainable group of persons without a trial.

Rule: Federal and state governments are prohibited from passing bills of attainder.

Question 105

FREEDOM OF SPEECH:

STATE ACTION REQUIREMENT

(State the Rule)

Answer 105

Rule: For a restriction on speech to fall within the protection of the 1st Amendment, a governmental body must have affirmatively acted to restrict speech or endorsed or enforced a private actor’s restrictive action.

Note: Government speech is not protected by the 1 st Amendment.

Question 106

CONTENT-BASED RESTRICTION

(State the Rule)

Answer 106

Rule: Content-based restrictions must meet strict scrutiny. Two types of content-based restrictions are possible:

1) Subject-matter restrictions: Application ofthe law depends on the topic of the speech.
2) Viewpoint restrictions: Application of the law depends on the ideology or viewpoint of message

Question 107

CONTENT-NEUTRAL RESTRICTION

(Define & State the Rule)

Answer 107

Definition: Content-neutral restrictions are regulations that apply to all speech in a given context or setting, regardless of the content of the speech (i.e., subject
matter and viewpoint are immaterial).

Rule: Content-neutral restrictions must meet intermediate scrutiny.

Question 108

PRIOR RESTRAINT

(Define)

Answer 108

Definition: A prior restraint is a court order or licensing
scheme that prevents or prohibits speech.

Question 109

PRIOR RESTRAINT:

COURT ORDERS

(State the Rule)

Answer 109

Rule: Court orders suppressing speech must meet strict scrutiny.

Note: Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a procedurally proper court order is barred from later challenging it.

Question 110

PRIOR RESTRAINT:

LICENSING REGULATION

(State the Rule)

Answer 110

Rule: For a licensing regulation to meet strict scrutiny, the government must demonstrate:

1) An important reason for the licensing requirement, AND
2) The existence of clear criteria that give almost no discretion to the licensing authority to determine whether a license will be issued.

Note: Licensing schemes must also contain procedural safeguards such as judicial review and procedures to ensure prompt determination of license requests.

Question 111

VAGUENESS

(State the Rule)

Answer 111

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

Question 112

OVERBREADTH

(State the Rule)

Answer 112

Rule: A law is unconstitutionally overbroad if it regulates substantially more speech than is necessary.

Question 113

SYMBOLIC SPEECH

(Define & State the Rule)

Answer 113

Definition: Symbolic speech is conduct that communicates a message.

Rule: The government can regulate symbolic speech if:

1) An important interest unrelated to suppression of the message is present, AND
2) The impact on speech is no more than necessary to achieve the government’s purpose.

Question 114

ANONYMOUS SPEECH

(State the Rule)

Answer 114

Rule: Anonymous speech is protected under the 1st
Amendment.

Note: The right to speak includes the right not to speak and the right not to disclose one’s identity as the speaker.

Question 115

WHAT TYPES OF SPEECH ARE UNPROTECTED OR LESS PROTECTED BY THE 1ST AMENDMENT?

Answer 115

1) Incitement to Lawlessness
2) Obscenity
3) Profane & Indecent Speech
4) Commercial Speech
5) Defamation
6) Fighting words

Question 116

INCITEMENT TO LAWLESSNESS

(Define & State the Rule)

Answer 116

Definition: Speech that is likely to cause or promote illegal activity.

Rule: The government may punish speech if:

1) The speaker intends to cause imminent illegal activity, AND
2) A substantial likelihood of imminent illegal activity exists.

Question 117

OBSCENITY

(State the Rule)

Answer 117

Rule: Obscene speech is not protected by the 1st Amendment. Material will be deemed obscene if the material:

1) Appeals only to the prurient interest in sex,
2) Depicts sexual conduct in a patently offensive way, AND
3) Lacks any serious redeeming artistic, literary, political or scientific value.

Note:

1) The prurient interest is measured by a local community standard.
2) Whether material is patently offensive is determined by the text of the law restricting the material.
3) The value of the material is measured by a national standard.

Question 118

PROFANE & INDECENT SPEECH

(State the Rule)

Answer 118

Rule: Generally, profane and indecent speech is protected by the 1st Amendment.

Exception:

1) Broadcast media: Because free broadcast media is uniquely intrusive into the home, laws restricting profanity or indecency on broadcast media need only meet rational basis review.
2) Schools: Because schools are responsible for instructing youth to be mindful of social decorum, laws restricting profane or indecent speech in schools need only meet rational basis review.

Note: Schools may also restrict student expression the school regards as promoting illegal drug use on school property or at public school-sponsored events.

Question 119

COMMERCIAL SPEECH

(State the Rule)

Answer 119

Rule: Generally, commercial speech is protected speech. However, commercial speech may be restricted if the speech:

1) Proposes unlawful activity, OR
2) Is misleading or fraudulent.

Note: To uphold a law restricting commercial speech, the law must:

1) Serve a substantial government interest,
2) Directly advance the substantial government interest, AND
3) Be narrowly tailored to serve the substantial government interest.

Question 120

CONSTITUTIONAL ISSUES IN DEFAMATION

(State the Rule)

Answer 120

Rule: The 1st Amendment’s protection of freedom of speech extends to certain defamation actions. A Plaintiff must prove additional elements to establish defamation if the Plaintiff is:

1) A public official,
2) A public figure, OR
3) A private person regarding a matter of public concern.

Note: If the defamatory statement concerns a private person and is a matter of private concern, the Plaintiff need only prove the common law prima facie elements to establish defamation.

Question 121

PUBLIC OFFICIAL

(State the Rule)

Answer 121

Rule: When a defamatory statement concerns a public official, in addition to the common law elements of defamation, a Plaintiff must prove:

1) That the statement was false, AND
2) That the Defendant acted with actual malice.
a) Actual malice may be found where the Defendant:
i) Knew the statement was false, OR
ii) Recklessly disregarded the veracity of the statement.

Note: The Plaintiff bears the burden of proof by clear and convincing evidence.

Question 122

PUBLIC FIGURE

(Define & State the Rule)

Answer 122

Public Figure: A person who is pervasively known.

Limited Public Figure: A person who engages in actions that generate publicity for the purpose of influencing the resolution of a controversy.

Rule: If the defamatory statement concerns a public figure, in addition to the common law elements of defamation, a Plaintiff must prove:

1) That the statement was false, AND
2) That the Defendant had actual malice.
a) Actual malice may be found where the Defendant:
i) Knew the statement was false, OR
ii) Recklessly disregarded the veracity of the statement.

Note: The Plaintiff bears the burden of proof by clear and convincing evidence.

Question 123

PRIVATE PERSON & MATTER OF PUBLIC CONCERN

(Define & State the Rule)

Answer 123

Private Person: A private person is one who does not represent a public institution and has not achieved fame or notoriety or otherwise attracted widespread public interest or scrutiny.

Matter of Public Concern: A matter of public concern is an issue or event that affects the public interest or that the public has a need to know.

Rule: If the defamatory statement regards a matter of public concern about a private person, in addition to the common law elements of defamation, a Plaintiff must prove that:

1) The statement was false,
2) The Defendant acted negligently in making the statement, AND
3) The Plaintiff was actually harmed.

Note: If the Plaintiff can show that the Defendant acted with actual malice, damages will be presumed and the Plaintiff need not show actual harm to recover.

Question 124

FIGHTING WORDS

(Define & State the Rule)

Answer 124

Definition: Fighting words are words that by their very utterance inflict injury or tend to incite an immediate breach ofthe peace.

Rule: Fighting words are not protected speech.

Note: Though fighting words are not protected speech, most laws that prohibit fighting words will be found unconstitutional due to vagueness or overbreadth.

Question 125

REGULATION OF TIME, PLACE & MANNER OF SPEECH

(State the Rule)

Answer 125

Rule: The government may generally place reasonable restrictions on the time, place and manner of speech.

Question 126

IN WHAT LOCATIONS MAY SPEECH BE REGULATED?

Answer 126

1) Public Forums: Government property that the government is constitutionally required to make available for speech (e.g., streets, sidewalks, public parks).
2) Limited Public Forums: Government property that the government could close to speech, but chooses to leave open (e.g., public schools after hours).
3) Non-Public Forums: Government property that the government may, and does, close to speech (e.g., military bases, jails).
4) Private Property: Property held by a non-governmental person or entity.

Question 127

REGULATING SPEECH IN PUBLIC FORUMS

(State the Rule)

Answer 127

Rule: To be constitutional, the regulation must:

1) Be content neutral (i.e., subject-matter and viewpoint neutral),
2) Be narrowly tailored to serve a significant government interest, AND
3) Leave open alternative channels for communication.

Note:

1) The use of designated protest zones or buffer zones is permitted if they provide a viable channel for communication.
2) Governments are not required to place monuments donated by private parties in public spaces (e.g., public parks) because permanent monuments on public land are government speech.

Question 128

REGULATING SPEECH IN LIMITED PUBLIC FORUMS

(State the Rule)

Answer 128

Rule: If the government chooses to open a location for speech, it must meet the constitutional requirements for regulating speech in public forums.

Note:

1) Unlike public forums, the government may choose to close a limited public forum.
2) If the government chooses to close the limited public forum, it must close it to all of the public.

Question 129

REGULATING SPEECH IN LIMITED NON-PUBLIC FORUMS

(State the Rule)

Answer 129

Rule: Government can restrict speech in non-public forums if the regulation is:

1) Viewpoint neutral, AND
2) Reasonably related to a legitimate interest.

Note: Regulation of speech in non-public forums does not have to be subject-matter neutral.

Question 130

REGULATING SPEECH ON PRIVATE PROPERTY

(State the Rule)

Answer 130

Rule: There is no 1st Amendment right of access to private property for speech purposes.

Note: States may interpret their own constitutions to allow for a right of access to certain private property locations for speech purposes.

Question 131

REGULATING SPEECH WITH LICENSING SCHEMES

(State the Rule)

Answer 131

Rule: Governments may require groups to obtain a license or permit before engaging in a demonstration. Licensing schemes are valid if:

1) The regulation is content neutral, AND
2) The officials in charge of licensing do not have unlimited discretion in determining who will be granted a license.

Note:

1) If a licensing scheme is facially invalid, it need not be complied with (i.e., the person wishing to speak (or protest) may do so without requesting a license).
2) If a licensing scheme is facially valid, it must be complied with (i.e., the person wishing to speak must seek a permit, wait until it is denied, then challenge the unconstitutionality of the licensing scheme).

Question 132

FREEDOM OF ASSOCIATION

(State the Rule)

Answer 132

Rule: State action that may curtail the freedom to associate is subject to strict scrutiny.

Exception: The government may punish membership in an illegal and subversive organization if it can be shown that the Plaintiff:

1) Actively affiliated with the group,
2) Had knowledge of its illegal activities, AND
3) Acted with the specific intent of furthering those illegal activities.

Question 133

FREEDOM OF ASSOCIATION:

GOVERNMENT REGULATION PROHIBITING DISCRIMINATION BY PRIVATE GROUPS

(State the Rule)

Answer 133

Rule: The government can prohibit a group from acting in a discriminatory manner unless the law interferes with:

1) Intimate association (e.g., small social gatherings), OR

2) Expressive activity (i.e., Boy Scouts, Daughters ofthe
American Revolution).

Question 134

FREE EXERCISE CLAUSE

(State the Rule)

Answer 134

Rule: The government may not discriminate against people on the basis of their religion.

Exception: The government may pass a law of general consideration and applicability that has a negative effect on a particular religion if the law was not specifically designed to inhibit the religion.

Question 135

ESTABLISHMENT CLAUSE

(State the Rule)

Answer 135

Rule: Congress may make no law respecting an establishment of religion or prohibiting the free exercise of religion.

Note:

1) A law that overtly prefers one religion over another must meet strict scrutiny.
2) A law that does not explicitly demonstrate a religious or sect preference must meet the following test:
a) The law must have a secular purpose,
b) The primary effect or purpose must not be to advance or inhibit religion, AND
c) The law must not foster excessive government entanglement with religion.

Question 136

FREE EXERCISE CLAUSE:

PUBLIC DISPLAYS

(State the Rule)

Answer 136

Rule: Public religious displays on government property are permitted if:

1) The display does not favor one religion over another, AND
2) A reasonable person would not construe the display to be an endorsement of religion in general.

Question 137

JOURNALIST PRIVILEGE

(SHIELD LAWS)

(State the Rule)

Answer 137

Rule: Though federal courts have inferred a qualified
journalist privilege from the 1st Amendment, Congress has not passed a shield law to create a journalist privilege.