Priv & Immunity, Freedom of religion, speech, association

Question 1

Takings

Answer 1

a. : Private property shall not be taken for public use without just compensation
1. Public use—basically anything the gov. wants to do with the property. Need only be rationally related to a conceivable public purpose. Includes taking private property to resell to another private owner for purposes of econ. development.
2. Just compensation: market value at the time of the taking.

Question 2

Taking v. Regulation

Answer 2

i. Taking—this is where the controversy often occurs.
1. Taking versus regulation—If there is a taking of prop. compensation is required; if mere regulation on prop., compensation is not required even if reduces the value of prop.

Question 3

Economic impact

Answer 3

1. Economic impact—The adverse economic impact of the gov.’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.

Question 4

physical occupation

Answer 4

1. Physical occupation—This is the key question. If the gov. physically occupies a private owner’s property, then a taking has occurred and it owes just compensation.
2. If the gov. physically occupies only a tiny portion of your prop= still a taking.
   a. Generally, no physical occupation means that no taking has occurred.

Question 5

Zoning

Answer 5

Zoning—Not a taking and no compensation required, so long as the zoning advances legit interests and does not extinguish a fundamental attribute of ownership

Question 6

regulatory taking

Answer 6

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

Question 7

development permits

Answer 7

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

Question 8

Prohibited leg.

Answer 8

i. Bill of Attainder—A bill of attainder is a legislative punishment imposed w/o judicial trial and is unconstitutional.
ii. Ex Post Facto Laws—Unconstitutional to expand criminal liability retroactively either by creating a new crime that applies retroactively to past conduct or by increasingthe penalty for past conduct.
iii. Contract Clause—Bars states from legislative impairment of existing contracts, unless there is an overriding need (something like an emergency).

Question 9

3 part lemon test

Answer 9

1. Does the law have a secular purpose
2. Does the law have a primary effect that neither advances nor inhibits religion
3. Does the law avoid excessive entanglement with religion

Question 10

Endorsement

Answer 10

i. It is a violation of the Establishment Clause for the gov. to endorse one religion over another and also to endorse religion over non-religion
1. But, many endorsements are upheld, such as “In God We Trust” on currency.
ii. Supreme wants to prevent coercive endorsement of religion (one that might override individual choice).
iii. The Establishment Clause prohibits gov. endorsement of religion in a context that might prove coercive on an individual’s conscience.

Question 11

Examples of endorsement

Answer 11

1. Officially-sponsored school prayer = unconstitutional.
2. Officially-sponsored graduation prayer = unconstitutional.
3. Bible reading is okay, but cannot be inspirational.
4. Display of the Ten Commandments can be displayed for secular purposes (e.g., historical or promoting morals), but not to inspire religious belief.
   a. Can teach Ten Commandments in school as an ex. of an early legal code.
   b. Cannot post Ten Commandments in a classroom and leave it there every day of the school year – designed to inspire religious belief.
   c. Cannot post Ten Commandments in a courthouse if the context makes plain that the purpose is to endorse religious belief.
5. Laws prohibiting teaching evolution have been struck down.
6. Legislative prayer okay for historical practices.
7. Nativity scenes okay on public property if there is something else there to dilute the religious message (e.g., menorah, Rudolph).

Question 12

Protection for religious belief

Answer 12

Protected absolutely (entitled to hold any belief)

Question 13

Protection for Religious conduct

Answer 13

1. Protected qualifiedly
2. Laws regulating religious conduct because of its religious significance are unconstitutional (i.e., laws aimed at religion).
3. Neutral regulation of conduct: neutral, generally applicable laws can be enforced despite religious objections.
4. No right to accommodation
5. No constitutional right to exemption from neutral, generally applicable regulations of conduct (e.g., Peyote case).

Question 14

Ministerial exception

Answer 14

1. in 2012, the Supreme Court held that the 1st Amendment requires a ministerial exception to employment laws.
   a. Non-discrimination employment laws cannot be applied to ministry.

Question 15

Expressive conduct

Answer 15

i. Expressive Conduct (a.k.a. Symbolic Speech)
1. Laws regulating expressive conduct are upheld if:
a. They further an important interest;
b. That interest is unrelated to the suppression of expression; and
c. The burden on expression is no greater than necessary.
a. The key: If the gov. is trying to suppress a message, then the law will be struck down; if the gov. is trying to pursue an interest unrelated to the suppression of expression, then the law will be upheld.

Question 16

Vagueness

Answer 16

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

Question 17

Overbroad

Answer 17

Overbroad laws are ones that go too far in regulating speech. These laws burden substantially more speech than is necessary to protect compelling interest and thus violate the 1st Amendment.

Question 18

Prior restraints on speech

Answer 18

1. Are especially disfavored and will be struck down even when other forms of regulation might be upheld
2. Injunctions against speech are almost impossible to get.

Question 19

Time place and manner of public places

Answer 19

1. Public forum=place traditionally reserved for speech activities. includes a street, park, and public sidewalks around public buildings (but not airports).
   ii. Only time, place, and manner may be regulated in a public forum. There are three requirements:
2. Content neutral: Must be content neutral on its face and as applied Also, must not allow executive discretion
3. 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.
4. Must narrowly serve a sigificant state interest: Under this test, most content-neutral time, place, or manner regulations are upheld
   i. Note: Does not require a compelling interest

Question 20

nonpublic forums

Answer 20

1. This includes all kinds of gov. property that is not a public forum (e.g., gov. offices, jails, power plants, military bases, etc.). Here, gov. has great power. Basically, any reasonable regulation of speech will be upheld.
   a. Viewpoint discrimination is invalid: One clearly unreasonable kind of regulation would be to discriminate based on viewpoint (e.g., between members of different political parties).
   b. Disruption of the functions of gov.

Question 21

limited public forum

Answer 21

1. Describes a place that is not a traditional public forum, but that the gov. chooses to open to all comers (e.g., a municipal theater that anyone can rent)
2. only time, place, or manner regulations are allowed, but is a narrow category.

Question 22

Content-based restrictions

Answer 22

obscenity, incitement, fighting words, defamation, commercial speech, gov. speech

Question 23

Obscenity

Answer 23

i. Sexy: Must be erotic; appeal to the prurient interest. (Gore and violence are not legally obscene.)
ii. Society sick: Must be patently offensive to the average person in the society. society may be the country as a whole, or a particular state, or a major metropolitan area.
iii. Standards: Must be defined by the proper standards for determining what is obscene, not vague and/or overbroad.
iv. Serious value: The material must lack serious value. If material has serious value (artistic, scientific, educational, or political), it cannot be held legally obscene
1. determination is made by the court not the jury, and it must be based on a national standard, not a local one.
2. Footnotes on obscenity:
a. Minors: A lesser legal standard can be applied to minors, but the gov. cannot ban adult speech simply bc it would be inappropriate for minors

Question 24

child porn

Answer 24

Child pornography: Can be prohibited whether or not it is legally obscene, & possession can be punished even if it is in the privacy of home

Question 25

Landuse restrictions with speech

Answer 25

land use restrictions: Narrowly drawn ordinances can regulate the zoning of adult theaters, but cannot ban them entirely.

Question 26

incitement

Answer 26

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

Question 27

Fighting words

Answer 27

i. Words likely to provoke an immediate breach of the peace
ii. Must be aimed/targeted at someone, and that person might hit back.
iii. General vulgarity is not enough.
iv. 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 28

defamation

Answer 28

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

Question 29

Commercial Speech

Answer 29

i. Most regulations of commercial speech are struck-down
ii. So long as the advertising is truthful and informational it must be allowed.
iii. Test: Regulation of commercial speech must directly advance a substantial gov. interest and be narrowly tailored to that interest.
iv. Misleading commercial speech (unlike political speech) may be prohibited.

Question 30

Gov. Speech

Answer 30

i. The 1st Amendment restrictions basically don’t apply to the gov. as a speaker.
ii. Gov. as a speaker is free to express a point of view (e.g., advertising the military).
iii. The gov. does not have to accept all monuments donated by a private person simply because it accepts one – when the gov. is controlling the message, it is entitled to say what it wants.
iv. But specialty license plates bearing messages requested by purchasers are still gov. speech, so the gov. can refuse to issue plates that would be offensive to other citizens.

Question 31

Regulation of media

Answer 31

i. . No Special Privileges
1. The press/media have no special privileges. They have the same rights as everyone else.
2. Exam Tip:When asked about a law on the media, ask whether that law could be
ii. Broadcasters- The only special case is broadcasters.
1. Traditionally, because of early limits on the broadcast spectrum, gov. had greater regulatory authority over broadcasters than over print media or the Internet.

Question 32

Association

Answer 32

i. Freedom of association: cannot be punished bc of political associations.
ii. Loyalty oaths: 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
iii. Bar membership: States can investigate good character, but they cannot deny admission based on political affiliations.
iv. Political parties: States cannot require open primaries.

Question 33

Speech by govt employees

Answer 33

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

Question 34

Campaign finance

Answer 34

i. The use of money to support a political campaign is political speech and the regulation of that money raises 1st Amend. issues.
ii. Contributions versus expenditures:
1. Contributions can be regulated, provided that limits are not unreasonably low
2. Direct expenditures in support of a candidate, a campaign, or a political issue cannot be regulated.
iii. Independent expenditures v. coordinated expenditures:
1. Independent expenditures cannot be regulated.
2. A coordinated expenditure is a disguised contribution (the campaign is in control) and can be regulated as contributions can be regulated.
iv. The constitutional protection of direct independent expenditures applies to corporations, including nonprofits, and unions.
v. Supreme has consistently rejected equalization of campaign resources as a valid rationale for restricting campaign expenditures.