Handout Con Law

Question 1

EP - Citizenship Status and Exception(s)

Answer 1

Classifications based upon U.S. citizenship are generally suspect classifications that require a compelling interest, but two important exceptions to strict scrutiny for citizenship status apply:

 Federal government
* Federal classifications based on U.S. citizenship do not trigger strict scrutiny.
* Federal classifications are valid unless arbitrary and unreasonable

 State and local participation in government functions
* States and localities may require U.S. citizenship for participation in government functions, including voting, serving on a jury, and working in any kind of government law enforcement position (including probation and parole officers), or as a public school teacher.

Rule: States and localities cannot require US citizenship for access to privacte employment or for government benefits

Question 2

Quasi-Suspect Classifications

Answer 2

Gender and Legitimacy

Trigger intermediate scrutiny - is the law substantially related to an important government interest?

Gender classifications are almost always invalid (e.g., OK had a law permitting women to legally drink alcohol at a younger age than men)
Permissible examples: statutory rape and the draft

Legitimacy (i.e. something depends on whether parents were married at the time of one’s bith) laws are almost always invalid, especially if punitive in nature.

Question 3

Non-Suspect Classifications

Answer 3

Age and Wealth

Age discrimination in employment is barred by statute, but it is not a suspect or quasi-suspect classification under the Equal Protection Clause.

Wealth is not a suspect or quasi-suspect classification, but the gobvernment has to waive filing fees for indigents when charging the fees would deny a fundamental right
- Ex: divorice; transcript for appeal of a criminal conviction; transcript for appeal of the tgermination of parental rights (bankruptcy filing fees do not have to be waived)

sexual orientation
- has never been a fundamental right. However, the court has interpreted the 1964 Civil Rights Act to protect employees from discrimination based on gender identity or sexual orientation, so the issue is mostly dealt with by statute.

Question 4

Fundamental Rights

Answer 4

Right to travel
Right to vote
- Requires districts of approximately equal size, i.e., approximately the same number of voters in each
- applies whenver you elect representatives by district (US House, state legis, local gov when elect rep by district)

Exception: special purpose governments - a highly specialized government (e.g., for distribution of water rights) can have a franchise based on that special purpose (e.g., acreage or water entitlements).

Gerrymandering

Question 5

Gerrymandering

Answer 5

Racial gerrymandering
- if done with a discriminatory purpose, its unconstitutional
- Voting Rights Act - requries racial gerrymandering to ensure minority success by creating majority=minority districts
* Rule: Race may be a factor in drawing distrct lines, but not the predominant or only factor
* Other factors include compactness and observing local, poltiical subdivisions
* a bizarrely shaped district may be evidence of a predominant racial uprpose

Political gerrymandering (drawing districts to hurt one party)
- can, in theory, violate equal protection. In practice, it is never struck down
- The Supreme Court has not found any judicially manageable standards for implementing that guarantee - i.e, it is a non-justiciable political question

Question 6

Privileges and Immunities Clauses Distinguished

Answer 6

Recall that the Privileges and Immunities Clause of state citizenship under Article IV prohibits serious discrimination against out-of-state indiviudals, chiefly regarding employment

Exam Tip - The Privileges or Immunities of national citizenship under the 14th Amendment has no modern content and is never a strong answer that something is unconstitutional on the bar exam.

Question 7

Takings

Answer 7

Private property shall not be taken for pub;ic use without just compensation
- Public use - need only be rationally related to a conceivable public purpose. This includes taking private property to resell to another private owner for purposes of economic development
- Just compensation - fair market value ta the time of the taking

o Taking versus regulation – If there is a taking of property, compensation is required; if there is a mere regulation on property, compensation is not required, even if the regulation reduces the value of the property.

o Economic impact – An adverse economic impact of the government’s action does not necessarily mean there has been a taking (e.g., a new prison built next door to a beautiful, countryside home). Many regulations can dramatically affect the value of property but that does not trigger a right to compensation.

o Physical occupation
 If the government physically occupies a private owner’s property (even just a tiny portion), then a taking has occurred and it owes just compensation.
 No physical occupation generally means that no taking has occurred.

Question 8

Is Zoning a Taking?

Answer 8

Not a taking and no compensation is legitimate interests and does not extinguish a fundamental attribute of ownership.

Question 9

Regulatory Taking

Answer 9

A zoning regulation can be considered a taking when it leaves no economically viable use for the property (rare).

Question 10

Development Permits

Answer 10

Development is often conditioned on “concessions” by the developer, such as building an access road or donating land to a park. Such exactions are valid so long as they can be seen as offsetting the adverse impact of the development

Question 11

Prohibited Legislation

Answer 11

• Bill of Attainder – A bill of attainder is a legislative punishment imposed without judicial trial and is unconstitutional.
• Ex Post Facto Law – Unconstitutional to expand criminal liability retroactively, either by creating a new crime that applies retroactively to past conduct or by increasing the penalty for past conduct.
• Contract Clause – Bars states from legislative impairment of existing contracts, unless there is an overriding need (something like an emergency).

Question 12

Establishment of Religion - Standard of Review

Answer 12

o Standard of review is strict scrutiny. This is true for laws that prefer one religion over another and laws that prefer religion over nonreligion.

o In Kennedy v. Bremerton School District, the Supreme Court “abandoned” the Lemon test (Lemon v. Kurtzman) and endorsement test (i.e., whether a reasonable observer would consider the government’s challenged action as an endorsement of religion), replacing them with a consideration of “historical practices and understandings.”

 Examples: long standing public monuments and symbols with explicit religious content (if validated by history, then likely upheld but not necessarily upheld if built today); and long standing practices such as “In God We Trust” on our coins and “God Save this Honorable Court” when the Supreme Court opens session.

Question 13

Aid to Religious Institutions

Answer 13

The Establishment Clause allows neutral aid to religious primary and secondary schools.
 The government gives a voucher to parents and the parents are allowed to send their children to the schools of their choice.
 The parents are making the decision as to whether a religious school gets the money.
* The government is not picking and choosing recipients.

Question 14

Specially Created School District

Answer 14

The Supreme Court struck down a school district created to serve a particular religious population. Cannot single out a particular religion for favorable treatment.

Question 14

Access to Public Facilities by Religious Groups

Answer 14

If school buildings are open to various groups for club meetings or additional classes, then they must be open to religious groups on the same grounds.

Question 15

Endorsement

Answer 15

o It is a violation of the Establishment Clause for the government to endorse one religion over another and also to endorse religion over nonreligion_.
 But many endorsements are upheld, such as “In God We Trust” on currency.

The Supreme Court wants to prevent coercive endorsement of religion (one that might override individual choice).

Editor’s Note 1: The endorsement test that the Court abandoned in Kennedy was whether a reasonable observer would consider the government’s challenged action as an endorsement of religion. But this did not change the Court’s stance on coercive endorsement of religion as discussed here—such coercive endorsement remains prohibited.

Question 16

Establishment and Individual Conscience

Answer 16

The Establishment Clause prohibits government endorsement of religion in a context that might prove coercive on an individual’s conscience.

Ex:
* Officially sponsored school prayer is Unconstitutional. However, voluntary prayer is constitutional.
* Officially sponsored graduation prayer is unconstitutional.
* Bible reading is permissible, but cannot be inspirational (e.g., as literature or poetry).
* Display of the Ten Commandments is sometimes okay. It can be displayed for secular purpose (e.g., historical or promoting morals), but not to inspire religious belief.
o Can teach the Ten Commandments in school as an example of an early legal code.
o Cannot post the Ten Commandments in a classroom and leave it there every day of the school year—designed to inspire religious belief.
o Cannot post the Ten Commandments in a courthouse if the context makes plain that the purpose is to endorse religious belief.
* Laws prohibiting teaching evolution have been struck down.
* Legislative prayer is okay for historical practices.
* Nativity scenes are okay on public property if there is something else there to dilute the religious message (e.g., Hanukkah symbols, Rudolph the red-nosed reindeer).

Question 17

Religious Belief

Answer 17

Protected absolutely (entitled to hold any belief or none at all)

Question 18

Religious Conduct

Answer 18

Protected qualifiedly

 Laws regulating religious conduct because of its religious significance (i.e., laws aimed at religion) are unconstitutional.
* If the law was enacted or enforced with hostility to religion, it will be struck down (even if a facially neutral law).

 Neutral regulation of conduct: Neutral, generally applicable laws must be obeyed despite religious objections.
* No right to accomodation.

Question 19

Neutral Regulation of Conduct Cases

Answer 19

o In Employment Division v. Smith (peyote case), states were allowed to outlaw hallucinogens, even as to Native Americans who claimed a religious motivation for their use. No constitutional requirement to accommodate their religious beliefs if the conduct was regulated neutrally and across the board.

o But a city could not refuse to deal with a Catholic foster-child placement agency unless it agreed to serve same-sex couples and a tuition assistance program for preschool could not be limited to nonsectarian institutions.

o The case law is uncertain, but the laws that were struck down were unconstitutional because they allowed exceptions on some ground. If a law allows exemptions from generally applicable regulations, it must allow religious exemptions unless there is a compelling reasons not to do so.

Question 20

Ministerial exception

Answer 20

Exception: “ministerial exception”—First Amendment requires a ministerial exception to employment laws.
o Nondiscrimination employment laws cannot be applied to ministers.
o First Amendment precludes claims concerning the employment relationship between a religious institution and its ministers.
o The federal government cannot regulate employment relations between a religious institution and its ministers.
o The term “minister” is construed broadly.

Question 21

Campus access case

Answer 21

A state university that allows student groups to meet on campus must allow student religious groups equal access.

Question 22

Regulation of the Content of Expression

Answer 22

Content-based regulations of speech trigger strict scrutiny.and are usually struck down.
Note 8: Under the struct scrutiny test, a regulation will be upheld only if it is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest.

Question 23

Expressive Conduct

Answer 23

o Laws regulating expressive conduct are upheld if:
 The regulation furthers an important interest;
 That interest is unrelated to the suppression of expression; and
 The burden on expression is no greater than necessary.
Example 33: Laws against flag desecration are unconstitutional because they suppress an expressive type of speech to show disapproval.
Example 34: Laws against public nudity are constitutional because public order must be kept, which is unrelated to speech.

o The key: If the government is trying to suppress a particular message, then the law will be struck down; if the government is trying to pursue an interest unrelated to the suppression of expression, then the law will be upheld.

Question 24

Prior Restraints

Answer 24

Note 9: A prior restraint is a regulation of speech that occurs in advance of its expression.
o Are especially disfavored and will be struck down even when other forms of regulation might be upheld.
o Injunctions against speech are almost impossible to get.

Question 24

Time, Place, or Manner of Expression

Answer 24

Content neutral

• Apply in a public forum
• A traditional public forum is a place historically reserved for speech activities (e.g., streets, parks, and public sidewalks around public buildings (but not airports)).
• A designated public forum is a place the government has opened for free-speech activities (e.g., a civic auditorium that rents to the public).
• Only time, place, and manner may be regulated in a public forum. There are three requirements:
  1) content neutral: Must be content-neutral on its face and as applied. Also, must not allow executive discretion.
  2) alternative channels of communication must be left open: Time, place, or manner law must be a guideline for speech, not a flat prohibition of speech.
  Example 38: Laws against amplified sound trucks during the night-time hours are fine. Laws against amplified sound during all times and all places would be struck down.
  3) Must narrowly serve a significant state interest: Under this test, most content-neutral time, place, or manner regulations are upheld.
• Does not require a compelling interest

Question 25

Vagueness and Overbreadth

Answer 25

o Vagueness: Vague laws are ones that give no clear notice of what is prohibited and thus violate due process.

o Overbreadth: Overbroad laws are ones that go too far in regulating speech. These laws burden substantially more speech than is necessary to protect a compelling interest and thus violate the First Amendment.
Example 35: Laws that prohibit all nudity in drive-in movies are overbroad.
Exam Tip 12: Vagueness and overbreadth are almost always seen together on the bar exam.

Question 26

Nonpublic forum

Answer 26

• Nonpublic forum
  o This includes all kinds of government property that is not a public forum (e.g., government offices, jails, power plants, military bases, etc.). Here, the government has great power. Any reasonable regulation of speech will be upheld.
   viewpoint is invalid (e.g., between members of different political parties).
   disruption of functions of government: One should go outside to the public sidewalk surrounding the building since that is a public forum.

Question 27

Obscenity

Answer 27

o sexy: Must be erotic; appeal to the prurient interest. (Gore and violence are not legally obscene).

o sick: Must be patently offensive to the average person in the society. The society may be the nation as a whole, a particular state, or a major metropolitan area.

o Standards: Must be defined by the proper standards for determining what is obscene, not vague and/or overbroad.
Example 39: Tax on films displaying frontal nudity. Not a valid law because frontal nudity is not a good enough standard.

o Serious value: The material must lack serious value. If material has serious value (artistic, scientific, educational, or political), it cannot be held legally obscene. This determination is made by the court, not the jury, and it is made according to a national standard, not a local one.
o Footnotes on obscenity:
 Minors: A lesser legal standard can be applied to minors, but the government cannot ban adult speech simply because it would be inappropriate for minors.
 Child pornography: Can be prohibited whether or not it is legally obscene, and possession can be punished even if it is in the privacy of your own home.
 Land-use restrictions: Narrowly drawn ordinances can regulate the where of adult theaters but cannot ban them entirely.

Note 10: Courts have recently begun to distinguish legally obscene speech from pornography. Merely establishing that speech constitutes pornography is generally insufficient to establish that the speech is obscene.

Question 28

Incitement

Answer 28

o Speech is not protected if it is an incitement to immediate violence.

Question 29

Fighting Words

Answer 29

o Words likely to provoke an immediate breach.
 General vulgarity is not enough.
 Must be aimed/targeted at someone, and that person might hit back.
 In theory, fighting words are not protected speech.
 In fact, all fighting words statutes on the bar exam are unconstitutionally vague and/or overbroad (e.g., laws against “hate speech”).

Question 30

Defamation

Answer 30

o False statements of fact (not opinion) damaging to a person’s reputation can be prohibited.
o Public officials and public figures can recover for defamation only on proof of knowing or reckless falsity.
o Private plaintiffs can recover on proof of negligent falsity.

Example 40: United States v. Alvarez: The Supreme Court struck down the Stolen Valor Act, which made it a crime to falsely claim receipt of military declaration or medals. The Act was struck down by the Supreme Court as applied to a local politician who lied about receiving the Congressional Medal of Honor. The Justices held that the fact that the statement was a blatant self-serving lie did not exempt it from First Amendment protection. The prohibition was contnt-based and was not supported by one of the five recognized categories of unprotected speech.

Question 31

Commercial Speech

Answer 31

o Most regulations of commercial speech are struckdown. So long as an advertising is truth and information, it must be allowed.
o Test: Regulation of commercial speech must directly advance a substantial government interest and be narrowly tailored to that interest.
o Misleading speech: Misleading commercial speech (unlike political speech) may be prohibited.

Question 32

Government Speech

Answer 32

• The First Amendment restrictions basically do not apply to the government as a speaker.
• Government as a speaker is free to express a point of view (e.g., advertising the military).
• But specialty license plates bearing messages requested by purchasers are still government speech, so the government can refuse to issue plates that would be offensive to other citizens.

Question 33

Corporations Speech

Answer 33

Corporations have the same First Amendment right to speak as individuals.

Question 34

Regulation of the Media - no special privileges

Answer 34

o The press and media have no special privileges. They have the same rights as everyone else.
Exam Tip 13: When asked about a law on the media, ask whether that law could be applied to you.
Example 41: Confidential sources for the media. Does a reporter have a constitutional right to refuse to answer grand jury questions about a confidential source? Think of it in terms of yourself: You will not answer questions because you promised that you would not reveal a confidential source. Can the government force you to talk? Yes, you can be put in jail (held in contempt). The same is true of the media and press.
Example 42: Open trials—The press has the right of access to open trials.

Question 35

Broadcasters

Answer 35

o The only special case is broadcasters.
o Traditionally, because of early limits on the broadcast spectrum, the government had greater regulatory authority over broadcasters than over print media or the Internet.

Question 36

Regulation of Association

Answer 36

• Freedom of association: Cannot be punished or disadvantaged because of political associations.
• Public employees can be required to take a loyalty oath to the Constitution, but most loyalty oaths are struck down as vague and/or overbroad.
• Bar membership: States can investigate good character, but they cannot deny admission based on political affiliations.
• Political parties: States cannot require open primaries (i.e., one in which you do not have to be registered as a member of the particular party to participate in the primary).

Question 37

Speech by Gov Employees

Answer 37

• General rule: Government employees cannot be hired or fired based on political philosophy, political party, or any act of expression.
  o Can be fired for disrupting the workplace or not doing their jobs.
• Exception: This general rule does not apply to confidential advisors or policy-making employees (e.g., the President’s cabinet officers).

Question 38

Campaign Finance

Answer 38

• The use of money to support a political campaign is political speech and the regulation of that money raises First Amendment issues.’
• Contributions versus expenditures:
  o Contributions can be regulated, provided that the limits are not unreasonably low.
  o Direct expenditures in support of a candidate, a campaign, or a political issue cannot be regulated.
   The rationale is to prevent corruption: a candidate could theoretically act in a certain way in exchange for a larger, direct contribution.
• Independent expenditures versus coordinated expenditures:
  o Independent expenditures cannot be regulated.
  o A coordinated expenditure is a disguised contribution (the campaign is in control) and can be regulated as contributions can be regulated.
• The constitutional protection of direct independent expenditures applies not only to individuals, but also to corporations (including nonprofits) and unions.
• The Supreme Court has consistently rejected the equalization of campaign resources as a valid rationale for restricting campaign expenditures.
  Example 43: Congress passed the Millionaires’ Amendment, which basically said that if your opponent spends a lot of his own money, then your contribution limit is automatically raised. The Supreme Court struck it down.