Tests

Question 1

Ways Supreme Court Restrains itself/Expresses a limitation on what they are going to do

Answer 1

1. Political Question Doctrine
2. Advisory Opinions
3. Standing
4. Mootness
5. Ripeness

Question 2

What is the test for Standing?

Answer 2

1. Concrete personal injury
2. Causation
   a. traceable to government action.
3. Redressability
   a. likely to be fixed by a favorable decision.

Question 3

Defamation Scenarios

Answer 3

1: Public Figure
Public Concern
Then NYT says Value placed on freedom of speech means plaintiff needs to prove more than simply being defamatory. Have to show [at a civil standard or more likely than not]: (1) defamatory [reducing reputation] (2) Malice: false statement + defendant knew it was false or had a reckless disregard

2: Private figure
Public Concern
Plaintiff has to prove: Defamatory + reasonable defendant would realize the statement/thing was defamatory/reduce reputation. Defendant has to prove defense – truth.
If it’s a matter of public concern for punitive damages: Plaintiff has to then also prove malice.
Ex: People are complaining about the coffee at the local food truck. It’s a one-day pop-up café. Defamed as poisoning people and totally not true.

3: Private Figure
Private concern
Plaintiff has to prove: Defamatory & reasonable defendant would realize it was defamatory or would reduce the person’s reputation.
Defendant needs to raise a defense, typically Truth is the defense + the plaintiff can seek punitive damages without proving malice.

4: Public Figure
Private Concern
–> typically standard is the same as if the defendant were merely a private individual.

??? Not sure; murky
Bill Clinton taxes released, not clear how it would be handled. He’s not a public figure anymore, but he was, and it is a private concern.

Question 4

How to prove public figure

Answer 4

Core:
whether the plaintiff voluntarily injected themselves into a public controversy,

whether the defamation occurred after the plaintiff voluntarily entered the controversy but while still embroiled in it

and whether the defamation was related to the controversy.

Other factors include whether the plaintiff had access to channels of effective communication, whether the plaintiff sought to influence the resolution or outcome of the controversy, and whether the controversy existed prior to the publication of the defamatory statement

Question 5

FIRST AMENDMENT

Answer 5

Weigh the importance between: Freedom of Speech on One Side [Fundamental right] vs. The value of government regulation [Interest that underlies it]

Question 6

Strict Scrutiny 1st Amendment
When do we use it?

Answer 6

Least restrictive means
narrowly tailored
to serve
a compelling
government interest

Content Based

Question 7

Intermediate Scrutiny 1st Amendment

Answer 7

narrowly tailored +
substantially related
to an important
government interest

Content Neutral / Commercial Speech

Time place and manner

If TPM –> must leave open adequate alternative places for communication.

Question 8

Rational Basis 1st Amendment

Answer 8

The government must have a
[1] legitimate purpose and
[2] use a means that is rationally related to achieving that purpose

Question 9

Brandenburg Test

Answer 9

Used for advocacy of force or violating the law under the 1st amendment.

Test the court will most likely use.

(1) Directed to inciting imminent lawless action; &

(2) Likely to incite such action [Holmes Test: serious risk of serious evil]

Question 10

Miller Test

Answer 10

For Obscenity [Category of Unprotected Speech]

Trier of Fact must decide

1. Whether an average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient [shameful or morbid interest in sex?? not broad brush erotic] interest.
2. Whether the work depicts in a patently way sexual conduct that’s been defined in the law
3. Whether the work being challenged is obscene, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Sensibilities of time, place, and manner.

Question 11

Miller for Child Porn

Answer 11

+ Minors Element: (4) States also have a compelling interest in preventing the physical/psychological well being of minors Ferber

Question 12

Commercial Speech Test [Central Hudson]

Answer 12

The restriction must: (1) concern speech that constitutes lawful activity that is not misleading or false & deceptive

If no –>
(2) implement a substantial governmental interest;
(3) directly advance that interest; and
(4) reach only as far as necessary to achieve the governmental purpose.

Question 13

O’Brien Test

Answer 13

Content Neutral Law

[1] it furthers an important or substantial government interest,
[2] the government interest is unrelated to the suppression of free expression, and
[3] the restriction on speech is not greater than necessary to further that government interest.
[4] regulation is within the constitutional power of the goverqnment
[5] must be closely tailored to its ends, but the government need not employ the least restrictive alternative.

Intermediate scrutiny if law is content neutral: furthers an important or substantial government interest and incidentally suppresses some ideas.

IF regulation for reasons, not simply to shut down ideas, then that helps the regulation of the behavior survive scrutiny and get intermediate treatment.

Question 14

Strategies with Overbroad

Answer 14

(1) Shut down the law and force the people to write a new law to be less over broad (Crush video case: Stevens ).

(2) Alternative: We the court have the case and for the nation say, this law as writing, only covers a certain category. Giving the law a narrow interpretation can be an alternative way to deal with overbreadth or overbroad.

Question 15

For Establishment Clause Q’s

Answer 15

Two Approaches:
1. Endorsement [is the government endorsing religion?]
2. Coercion [is the government coercing people to be involved in religion?]
a. Justices disagree about whether to think of establishment clause as preventing government endorsement of religion or preventing coercion of religious practice.
b. Endorsement covers more government actions. Much bigger restriction on the government. Stops the government from doing more things.
c. Coercion much narrower
i. Smaller restriction of the government keeps establishment clause down to a little beyond don’t set up a state religion.

Question 16

J. Jackson (Youngstown) Categories of Executive Power

Answer 16

Situation where the president gets to do something all on their own

1. Congress has authorized what the president is doing, reasonably clear. Presidents powers at their Zenith/greatest height. [President + Congress Agree + Congress Authorizes]
2. Congress is silent – twilight zone
3. Congress says no – Some situations where executor may have powers to do things although congress does not want. [Zivotofsky, Commander in Chief: Congress tries to manage tactics]

Question 17

J. Frankfurters (Youngstown, but see Dames&Moore)

Answer 17

You must look to the past practices of Congress to determine where in the scale of categories their silence would fall

Question 18

Takings Clause [Penn Central]

Answer 18

Taking private property for public use requires just compensation.

The test involves an “ad hoc” factual inquiry that considers three primary factors:

(1) the economic impact of the regulation on the property owner,

(2) the extent to which the regulation interferes with reasonable investment-backed expectations, and

(3) the character of the government action

Question 19

Commerce Clause Tests

Answer 19

1. Hammer Majority: Even if your regulation is of interstate commerce you must have the right purpose, wrong purpose not valid
2. Holmes Dissent: Textualist Position. If it is of interstate commerce, then the purpose is irrelevant
3. New Deal [Darby, Wickard]: You can regulate things that are not interstate commerce [maybe not even commerce] because of their effect on interstate commerce.

Question 20

Gorsuch on Commerce Clause [CHECK]

Answer 20

(1) [There is Consensus on this point] No per se rule that a state’s laws can not have a practical affect on commerce outside of the state
(2) California Initiative did not impose a significantly substantial burden on interstate commerce [Some agree with]
(3) We shouldn’t do balancing in this area [Not many agree with. Justice Thomas and Barrett agree.]
a. The nature of the benefit can not be expressed in financial terms and the nature of the burden is expressed in financial terms. We are balancing things that are incommensurable.
b. Instead of balancing incommensurable things, let democracy decide/let the voters decide.

Question 21

Three Areas where SCOTUS has said State government is limited to regulation as an implication of the Commerce Power [CHECK]

Answer 21

1. Overt Discrimination against out of staters.
   a. State makes a law that treats commerce with other states differently than commerce inside the states
   i. Discriminates or treats people from another state worse than if they are local
   ii. Protectionist purpose
2. Court condemned state laws that don’t explicitly discriminate but have a disparate impact and if the court decides have a protectionist purpose, not explicitly targeting interstate vs intrastate commerce, but the criteria has a disparate impact and has more impact on interstate commerce vs the intrastate commerce. The commercial actors outside the state are punished more than the inside state commercial actors
   a. EX: State has government run mineral water bottling plant, supposing that the state wants to view its mineral water an advantage over mineral water from elsewhere. If state says you have to pay extra sales tax on mineral water if it fails to have a particular composition. Use the criteria for favored composition that’s basically a proxy of their instate product that will have adverse impact on any water outside of their brand.
   b. If we can sniff out protectionist purpose it is the same as overtly discriminating
3. Sometimes/More controversial: State has made a rule that is burdensome to interstate commerce and makes it much harder to engage in interstate commerce. Situation of no discrimination. Burdensome to intra state commerce. Not favoring their own producers explicitly but it can be such a big problem that it violates the commerce clause principle.
   a. Court uses balancing test of weighing how much good this regulation is doing vs. how much burden its putting on interstate commerce
   i. Pork Producers Case: Humanitarian reason vs. Expense of following this humanitarian rule.

Question 22

Federal Law Can PreEmpt State Law [CHECK]

Answer 22

1. Explicitly: this law overrides state laws doing x,y,z
2. Requiring things that can’t be done consistent with the state law. Complying with both is impossible
   Fed. Govmt. has regulated in a way that looks like it might be trying to be comprehensive in a particular field, in doing so the federal government means to be the last word on what needs to be done to be active in the field that the fed. Govmt. is regulating.

Question 23

What to look for when looking at federal pre emption [CHECK]

Answer 23

1. What is the scope of the field that congress is trying to regulate?
2. Does the federal law look like it is trying to regulate comprehensively or acting one little rule?
   a. If its comprehensive what is the scope?
   i. Structure, preamble, does it mean to be the only thing you look at
3. Does the challenged state law come into that field?
   a. If it does do you have to follow it?
   i. No?
   b. This act properly construed does not need to be comprehensive on safety it means to be setting baseline/minimum standards for safety. Leaves us open to supplementary standards.
   c. State law that requires more still has to be followed.

Question 24

Limitations on Spending Power from Dole??? [CHECK]

Answer 24

1. Must be for the common defense and general welfare of US.
   a. Could we treat those two inquiries as political questions for Congress to decide
   b. 2:30-2:40 4.15.2024
2. Unambiguous conditions, clear statement rule.
3. Must be related to the federal interest in particular national policies and programs.
4. No conflict with other provisions of the constitution; Other provisions of the constitution might limit the spending power aka Bill of Rights.
   a. Example: Dole is not an example. Whether states have power yes, but that doesn’t answer whether money can be offered to them on the condition they use their power a certain way
   b. Better Example: Provisions that prohibit the fed government from doing things explicitly. Such as taking property for non-public purpose or without just compensation.
5. Condition must not be overly coercive –Coercion [not discrimination]
   a. Why is it not coercion in Sebelius
   i. States aren’t entitled to the funds
   ii. There is no legal right to receive federal Medicaid money
   iii. 7 out of 9 judges say it is coercion in Sebelius
   iv. Is that well-reasoned or not
   v. IS THERE A LEGAL RIGHT?
   vi. If no legal right then no coercion
   vii. We can still notice that in Sebelius SCOTUS still found coercion.
   viii. Sebelius court finds the spending power has been used in an unconstitutional way.
   ix. States really needed the money.

Question 25

Political Question Doctrine Elements [ADD/CHECK]

Answer 25

• Two Types:
  o Ministerial Acts – The executive has a duty to perform and the Court can review.
  o Political Acts – Exclusively within the discretion of the executive.
• Meshing of the principles:
  o Constitutional: The Court will not decide matters which it concludes are committed by the Const to other branches of the gov’t for decisions.
  o Prudential: the court concludes that it is unwise, even if not strictly unconstitutional, for it to decide a case.
• Concerning war or foreign affairs – usually necessitate the speaking of “one voice” as a nation.
• Decisions to some complex matter of policy committed to the political agencies, not the courts.
• No standard ascertainable by judicial experience or process by which the parties should be judged.
• Structure and organization of the political institutions of the US.