CONSTITUTIONAL LAW

I. THE FEDERAL JUDICIAL POWER

A. The Requirement for Cases and Controversies – Referred to as Justiciability Doctrines – 4 of them:

a. STANDING (Most Important): This is the issue of whether the Π is the proper party to bring a matter to the court for adjudication

(1) Requirements 1. Injury. The Π must prove that he has been or imminently will be injured

a. Π may only assert injuries that he personally sufferedb. Π Seeking injunctive or declarative relief must show a likelihood

of future harmc. Look for answer where P has initially suffered an injury; then if

there are 2 such choices, chose P who has suffered an economic loss

2. Causation: The Π must allege and prove that the Δ caused the injury3. Redressability. a favorable court decision must be capable to remedy

the injury(2) Common Standing Issues

1. No 3RD Party Standing Allowed. A Π cannot assert claims of others who are not before the court (3 Exceptions)

a. 3RD party standing is allowed if there is a close relationship b/w the Π and the injured party (Dr./Patient Relationship)

b. 3RD party standing is allowed if the injured 3RD party is unlikely to be able to assert his own rights

c. Organization May sue for its members if:i. The members would have standing to sue

ii. The interests are germane to the organization’s purposeiii. Neither the claim nor relief requires participation of

individual members2. No Generalized Grievances. Π Must not be suing solely as a citizen or

a taxpayer interested in having the government follow the law (i.e., Π does not have standing to sue government b/c tax dollars are being spent poorly)

a. Exception : Taxpayers have standing to challenge government expenditures as pursuant to federal statutes as violating the Establishment Cause (Government providing aid to parochial schools); but this does not include money spent from general executive revenue

b. Ripeness : Π may not sue on a statute before its enforcement, unless Π will suffer some immediate threat of harm

c. Mootness : If events after the filing of a lawsuit end the Π injury, the case must be dismissed as moot (3 exceptions)

(1) Wrongs capable of repetition but evading review – some injuries will happen over and over again, but the injury is over before the court proceeding

1. EX: Roe v. Wade – Roe was pregnant when she filed, but was no longer pregnant at time it got to SC. SC said that it would here the case because she (1) could become pregnant again and (2) the harm would always evade review (because litigation always lasts longer than pregnancy

(2) Voluntary Cessation – where Δ voluntarily halts the wrongful conduct

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(3) Class Action Suits – if the Named Π claim becomes moot, the class action will not be dismissed so long as the 1 member of the class has an ongoing injury

d. The Political Question Doctrine . The PQ Doctrine refers to constitutional violations that the federal courts will not adjudicate – 4 Kinds:

(1) Cases under the “Republican form of Government clause”1. EX: state or local action challenged as violating this clause, will always

be dismissed as non-justiciable political Q(2) Challenges to the President’s conduct of Foreign Policy(3) Challenges to the Impeachment and Removal Process(4) Challenges to Partisan gerrymandering

B. Supreme Court Review. Virtually All cases come to the SC by writ of certiorari a. All cases from state courts and federal appellate courts come by writ of certiorari b. Cases that are required to be heard by 3 judge district court, and it is appealed, the SC is

obligated to grant review of the casec. The SC has Original and Exclusive Jurisdiction for suits b/w state governmentsd. Generally, the SC may hear cases only after there has been a final judgment of the

highest state court, a federal court of appeals, or a 3 judge review in DCe. For the SC to review a state court decision, there must NOT be an independent and

adequate State law ground of decision(1) If a state court decision rests on 2 grounds (1 state and 1 federal), and reversal of

the federal law ground will not change the result in the case, the SC can NOT hear the case

C. Lower Federal Court Review (all Justiciability requirements must be met)a. Sovereign Immunity

(1) Federal Courts and State Courts cannot hear suits against state governments(2) 4 Exceptions Where State Government can Be Named as a Δ

1. Express Waiver of Sovereign Immunity2. States may be sued pursuant to federal laws adopted under Section 5 of

the 14TH Amendmenta. A state may be sued for violating Title VIIb. Cannot be sued for violating Commerce Clause

3. The Federal Government may sue the State Government4. Bankruptcy Proceedings

(3) State Officers may be sued for injunctive relief and money damages out of own pocket, But may not be sued if it is the state treasury that will be paying retroactive damages

b. Abstention : Where the Federal Court has jurisdiction, but does not exercise it; rarely tested – R: Federal Courts may not Enjoin Pending State court proceedings

III. THE FEDERAL EXECUTIVE POWER

A. Foreign Policya. Treaties. Negotiated by President and Ratified by the Senate

(1) Treaties Prevail over Conflicting State Laws(2) If a Treaty conflicts with a federal statute, the one adopted last in time controls(3) If a treaty conflicts with the US Constitution, it is invalid

b. Executive Agreements : An agreement b/w the US and a foreign country that is effective when signed by the President and the head of the foreign nation (no ratification required)

(1) Executive agreements may be used for any purpose

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(2) Executive agreements prevail over conflicting state laws, but never over conflicting federal laws

c. The President has broad powers as Commander in Chief to use American Troops in Foreign Countries (Best answer is always dismissal for PQ)

B. Domestic Affairsa. The Appointment and Removal Power

(1) The Appointment Power1. The President appoints ambassadors, federal judges and officers of the

US2. Congress may vest the appointment of inferior officers in the President,

the heads of departments or lower fed courtsa. Attorney General is an Officer of US, but US Attorney’s are

inferior officers3. Congress cannot give appointment power to itself or officers

(2) The Removal Power. Unless the removal is limited by statute, the President may fire any purely executive branch officer

1. For Congress to limit removal, it must be an office where independence from the President is desirable (Special Prosecutor appointed to investigate high level officials)

2. Congress cannot prohibit removal of Presidential Cabinetb. Impeachment and Removal . All officers of the US may be impeached or removed from

office for Treason, Bribery, or For High Crimes(1) Impeachment Does Not remove a person from office (must still be convicted by

the Senate)(2) Impeachment by the House of Representatives requires majority vote, and

conviction requires 2/3 in senatec. The President has Absolute Immunity to civil suits for money damages for any actions

while in office. However, the President does not have immunity for actions that occurred prior to taking office

d. The President has Executive Privilege to keep Presidential papers and conversations secret, but such privilege must yield to other important government interests (prosecutorial necessity in criminal proceeding)

e. The President has the power to pardon those accused or convicted of federal crimes (Exception if there has been an impeachment), but NOT State Crimes

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II. FEDERAL LEGISLATIVE POWER

A. Congress’ Authority to Act: There must be express or implied Congressional Powera. The Necessary and Proper Clause – Congress may take any action not prohibited by

the Constitution to carry out its authority(1) However, the NPC clause standing alone is NEVER sufficient; it must work in

conjunction w/another federal powerb. The Taxing/Spending Power and the Commerce Clause

(1) Congress may Tax and Spend for the General Welfare 1. Tax will be upheld if it bears some reasonable relationship to revenue

production or if Congress has the power to regulate2. However, it Does NOT have power to regulate based on the General

Welfare (except for narrow police power exception)

(2) The Commerce Clause 1. Congress may regulate the channels of interstate commerce (highways,

waterways, internet)2. Congress may regulate the instrumentality of interstate commerce

(trucks, plains, telephones, etc.) and persons or things in interstate commerce (Electricity, Radio waves, Stock, Insurance) so long as they are going across state lines

3. Congress may regulate economic activities that have a substantial effect on interstate commerce (wheat prices)

a. However, if non-economic activities, substantial effect cannot be based on cumulative impact (like was used for control of wheat prices)

c. The 10TH Amendment as a Limit on Congressional Powers – the 10Th amendment states that all powers not granted to the US, nor prohibited to the states, are reserved for the people

(1) Congress cannot force State Governments to Act1. However, Congress can induce state government action by putting

strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program

(2) Congress May prohibit harmful commercial activity by state governments1. e.g., federal law prohibiting state government from releasing private

information about driversd. Congress’ Powers under Section 5 of the 14TH Amendment: Congress may not create

new rights or expand the scope of rights. (1) Congress may only prevent or remedy violations of rights recognized by the

court and such laws must be proportionate and congruent to remedying constitutional violations

B. Delegation of Powersa. No Limit exists on Congress’ ability to delegate legislative powerb. Legislative Vetos and line-item vetos are unconstitutional. For Congress to act, there

always must be bicameralism and presentment (giving the bill to president to sign or veto). Line Item vetos are Not allowed

c. Congress cannot delegate executive power to itself or its officers

IV. FEDERALISM: A challenge to Something a State or local government has Done

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A. Preemption. The Supremacy Clause provides that the Constitution and Fed Laws are the Supreme Law of the Land

a. Express Preemption . If a federal statute explicitly says that federal law is exclusive, then state and local laws are preempted

b. Implied Preemption :(1) If Federal Law and state law are mutually exclusive, then federal law preempts

state law – where it is not possible to comply with both laws1. States may set stricter laws than Federal Law, unless Congress clearly

prohibits it(2) If state law impedes the achievement of a federal objective, federal law preempts

state law(3) If Congress evidences a clear intent to preempt state law, then federal law

preempts state lawc. Inter-gov’t Immunity : States may not tax, regulate, or burden federal government

activity(1) EX: Local store privately owned on federal land – state can tax the store(2) EX: A store on an army base owned by federal government – state cannot tax

the store

B. Dormant Commerce Clause and Privileges and Immunities Clause***DCC and P&I Clause mutually reinforce each other, and both should be considered in analyzing essay question***

a. Definitions (1) Dormant Commerce Clause – state and local laws are unconstitutional if they

place an undue burden on interstate commerce (usually challenged by a Company)

1. State/local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid.

a. Exceptions: Necessary to Important State Interest, Congressional Approval, Market Participant

(2) Privileges and Immunities Clause – No state may deny citizens of other states of the privileges and immunities of its own citizens (Cannot discriminate against people from out of state – challenged by individual

1. Does NOT apply to aliens or Corporations2. Must deal with Important commercial activities (pursuit of livelihood) or

Civil Liberties. a. Eg: Charging nonresidents more for fishing license is ok, since

this is a recreational activity. b. Eg: An income tax on just non residents – not ok. Tax for doing

something in state applied equally to residents & non-residents ok.

3. Exception: Substantial Justification Exception: Law discriminating against nonresidents may be valid if state has a substantial justification for the different treatment. State must show that nonresidents either cause or are part of the problem it is attempting to solve, & there is no less restrictive means

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b. Does the State law discriminate against out-of-staters? (1) If NOT:

1. The P and I clause does NOT Apply2. If the law burdens interstate commerce, it violates the dormant powers

clause if its burdens exceeds its benefits

(2) IF it Does Discriminate:1. If the law puts a burden on interstate commerce , it violates the dormant

commerce clause unless:a. Exception: It is necessary to achieve an important non-economic

purpose (health/safety) and there are no reasonable alternatives.i. Eg: Not allowing certain fish into the state b/c threat of

parasites. Noneconomic purpose of health.

b. Exception : Congressional Approval c. Exception : Market Participant – Local government may prefer its

own citizens in receiving benefits from government programs or in dealing with government-owned business (e.g., Charge less money for tuition for In state students, buying/selling products, hiring labor, giving subsidies) (*Applies only to Commerce Clause)

d. Note that a State is Absolutely prohibited from taxing foreign commerce, unless given Congressional consent

2. If the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose (always means it puts a burden on out-of-staters trying to earn a living)

a. The law must discriminate against out-of-statersb. The discrimination must be with regard to civil liberties or

important economic activities (not hobbies)c. Corporations and aliens can NOT use the privileges and

immunities clause d. The discrimination must be necessary to achieve an important

government purpose

c. State Taxation of Interstate Commerce (1) States may not use their tax systems to help instate businesses(2) A State may only tax activities if there is a substantial nexus to the state(3) State Taxation of interstate companies must be fairly apportioned & not

discriminate against interstate commerce

d. Full Faith and Credit. Courts in one state must give full faith and credit to final judgments on the merits of courts in another state, so long as:

(1) The court that rendered the judgment had jurisdiction over the parties and the subject matter

e. State Licensing Power is generally allowed under the State’s Police Power

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V. THE STRUCTURE OF THE CONSTITUTION’S PROTECTION OF INDIVIDUAL LIBERTIES

A. Is there Government Action?a. The Constitution applies only to government action – Private conduct need not comply

with the Constitution (Also applies to acts of Federal Officers)b. Congress, by statute, may apply constitutional norms to private conduct

(1) E.g., The 13TH Amendment can be used to Prohibit Private Race Discrimination 1. Discrimination never violates the 13th amendment, only slavery violates

the 13th amendment; however, Congress wants to adopt a law prohibiting race discrimination with regard to apartments – the strongest grounds for Congress is the 13th amendment

(2) The commerce power can be used to apply constitutional norms to private conduct

(3) Congress cannot regulate private behavior under section 5 of 14th, only state behavior

c. Exceptions : Situations where private conduct must comply with Constitution(1) The public function exception : the constitution applies if a private entity is

performing a task traditionally + exclusively done by the government (i.e., when a private entity runs a town meeting, etc.)

(2) The Entanglement Exception : The constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity

(Key Examples)1. Courts cannot enforce Racially restrictive covenants (subdivision agrees

not to sell to blacks)2. There is state action when the gov’t leases premises to a restaurant that

racially discriminates3. There is state action when a state provides books to schools that racially

discriminate4. There is NO state action when a private school that is over 99% funded

by the gov’t fires a teacher b/c of her speecha. But Gov’t subsidy is insufficient for state action

5. No state action when the NCAA orders the suspension of a basketball coach at a state university

6. There is state action when a private entity regulates interscholastic sports within a state

7. There is no state action when a private club with a liquor license from the state racially discriminates

VI. DUE PROCESS

A. Procedural Due Process: This refers to the procedures the government must follow when the gov’t intentionally takes away an individuals’ life, liberty, or property (no right to individualized adjudication when gov’t acts generally)

a. Has there been a deprivation of life, liberty, or property?

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(1) Definitions:(2) A deprivation of liberty usually involves a loss of a significant freedom

provided by the Constitution or Statute

1. Before an adult can be institutionalized, there must be notice and a hearing (unless it is an emergency)

2. When a parent institutionalizes a child, there only has to be a screening by a neutral fact finder (parents presumptively are acting in the best interests of child)

3. Harm to reputation by itself is not a loss of liberty, however, if person’s rep injured so he will have lost significant employment or associational opportunities, there is loss of liberty.

4. Prisoners rarely have liberty interests

(3) A Deprivation of Property occurs if there is an entitlement to the benefit under state or federal law.

1. Public Education: Significant suspension (10+ days) requires PDP.2. Welfare Benefits: If previously determined to meet statutory criteria to

benefits, then have property interest. 3. Continued Public Employment: If law that created public employment

contract, or mutual understanding employee can be terminated only for cause, then have property interest.

b. If there HAS BEEN a Deprivation, then What Procedures are Required? (1) Notice, Hearing, Unbiased Decisionmaker (2) The Test: Balance (make sure you apply this)

1. The Importance of the interest to the individual2. The ability of additional procedures to increase the accuracy of fact-

finding3. The gov’t interest in efficiency

(3) Examples – 1. Welfare = notice and a hearing prior to termination2. Social Security = POST termination hearing3. Public Employee notice of charges and pre-termination opportunity to

respond to the charges, & subsequent evidentiary hearing4. School: notice of the charges and an opportunity to explain5. Before a parents’ rights with respect to a child can be terminated = notice

and a hearing6. Except in exigent circumstances, pre-judgment attachment or gov’t

seizure of Property must be preceded by notice and a hearinga. Exigent: reason to believe that person would get rid of the

property if there was a noticeb. The G may seize property used in illegal activity, even if it has an

innocent owner

B. The Takings Clause: The Gov’t may take private property for public, but it must use just compensation – 3 Part Test:

a. Is there a Taking? (2 Ways)

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(1) Possessory Taking – G confiscation or physical occupation of property is a taking (it doesn’t matter how small the property is)

1. E.g., NY ordinance required apartment owners to make 1 cubic foot available for cable boxes; this is a taking because the G confiscated that space

(2) Regulatory Taking – G regulation can be a taking if it leaves NO reasonable economically viable use of the property

1. NOTE: G conditions on the development of the property must be justified by a benefit that is roughly proportionate to the burden on the land owner – if burden on landowner is excessive, it is a regulatory taking

2. NOTE: A property owner may bring a takings challenge to regulations that existed at the time the property was acquired

3. NOTE: Temporarily denying an owner use of property is not a taking so long as the government action is reasonable

(3) Building/Development Permits - When municipalities attempt to condition permits on landowner conveying to gov’t: title to all/part, granting public access to property

1. Is an uncompensated taking, unless gov’t can show: (1) condition relates to legitimate gov’t interest & (2) adverse impact of proposed building on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupation rights to the gov’t.

b. If So, Is it for Public Use(1) If NOT for public use, the government will have to give the property back & pay

damages to owner(2) Virtually every taking is for public use though – it is public use so long as the

government acts out of the reasonable belief that the taking will benefit the public

1. Economic Development is for public use

c. If for Public Use, Is Just Compensation Paid? Fair market value at time of taking. Loss to Owner is standard.

(1) Even taking “worthless” property is taking, but gov’t doesn’t need to pay.

C. The Contracts Clause . NO State shall substantially impair (destruction of most or all the party’s rights under the contract) the obligations of Existing Contracts

a. Applies only to STATE or LOCAL government interference with existing contractsb. State or local interference w/private contracts must meet intermediate scrutinyc. State or Local interference with Public Contracts (where state or political subdivision is

party) must meet Strict Scrutinyd. The Ex Post Facto Clause does NOT apply in civil cases

D. Substantive Due Process. Guarantees that laws will be reasonable and not arbitrary. Ct reviews the substance of the law. Where law limits the liberty of ALL persons to engage in some activity, it is a SDP question.

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a. Burdens of Proof:(1) Strict Scrutiny: Law is necessary to achieve a compelling gov’t purpose.(2) Intermediate: Law is substantially related to important gov’t purpose.(3) Rational Basis: Law is rationally related to legitimate gov’t interest.

b. The Constitution Provides ONLY minimal protection for economic liberties (1) Only a Rational basis test is used for laws affecting economic liberties

1. e.g., government due process challenge to employment regulation, or trade and professions, consumer protection law, then it is only a rationale basis review

c. Rights protected under SDP:(1) Fundamental Rights = Strict Scrutiny

1. Privacy, 1st Amendment Rights (speech, association, religion), Travel, Vote

E. Privacy is a Fundamental Right Protected under Substantive Due Process & Equal Protection

a. Marry b. Procreate c. Custody of One’s children d. Keep the Family Together (includes the extended family)e. Control the upbringing of one’s children (it violates DP for the court to order

grandparent visitations over the parents’ objections)f. Contraceptivesg. Voteh. Traveli. Obscene reading materialj. Intimate sexual conduct (includes same sex)k. The right to abortion

(1) Prior to Viability (can’t live outside womb), the G Cannot prohibit abortion, but it can regulate abortion so long as they do not create an undue burden on the ability to obtain abortions

1. a 24 hour waiting period is NOT an undue burden2. a requirement that abortions be performed by licensed physicians is not

an undue burden3. the prohibition of “partial birth abortions” is not an undue burden4. Parental consent for minors – not undue burden. State may require

parental notice and/or consent for minor’s abortion so long as it creates an alternative procedure where minor can obtain abortion by going before the judge

5. Spousal consent/notification = undue burden.

(2) After, Viability the State may prohibit abortions unless necessary to protect health of W

(3) The G has NO duty to subsidize abortions or provide abortions in public hospitals

l. The right to refuse medical treatment

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(1) A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended

(2) A state may prevent family members from terminating treatment for another(3) There is Not a constitutional right to physician-assisted suicide

m. The Right to Travel (1) Laws that prevent people from moving into a state must meet strict scrutiny(2) Durational residence requirements must meet strict scrutiny – where a person is

required to live in an area for a certain amount of time before he can receive benefits (e.g., welfare benefits)

1. 50 Days is the max allowable for voting requirements(3) Restrictions on Foreign Travel only have to meet Rational Basis

n. The Right to Vote (1) Laws denying some citizens from voting must meet strict scrutiny (poll taxes,

Property Ownership requirements for voting or public office are almost never allowed)

1. Only allowed for water districts(2) One-person – one-vote must be met for all state and local elections(3) The Use of Race in drawing election district lines must meet strict scrutiny, even

if it is for the benefit of minority candidates

o. There is NO Fundamental Right to Education

VII. EQUAL PROTECTION

A. Analysis for Equal Protection. The Equal Protection clause is at issue when a regulation treats a person or class of persons differently than others

a. What is the classification of Person?b. Is the law facially discriminatory or facially neutral?

(1) If facially neutral, does the law have a discriminatory impact + intent? c. What level of scrutiny should be applied?d. Does this law meet the level of scrutiny?

B. Constitutional Provisions concerning equal protectionsa. The equal protection clause of the 14 TH amendment applies only to state and local

governmentsb. Equal Protection is applied to the federal government through the due process clause of

the 5 TH amendment

C. Proving Discriminatory Classificationa. Law may include a classification on its face. The law makes an explicit distinction b/w

classes of persons. b. If Facially Neutral: legislation/gov’t action must have a discriminatory intent and

discriminatory impact to trigger EP.

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SUSPECT CLASSIFICATIONSD. Classifications based on race and National Origin

a. Strict Scrutiny is Usedb. How is the existence of a racial classification proven?

(1) The classification exists on the face of the law(2) If the law is facially neutral, you must prove both discriminatory impact +

discriminatory intent

c. How Should racial classifications benefitting minorities be treated?(1) Strict Scrutiny is applied(2) Numerical set-asides require clear proof of past discrimination

1. this is talking about quotas or money set-asides for minority classes (e.g., for hiring minority employees)

(3) Educational institutions may use race as one factor of many in admissions decisions to help minorities (b/c there is a compelling interest in having diverse body)

1. however, university cannot add points to admissions for being a minority2. universities cannot set-aside a certain number of slots for minority

students(4) Public school systems may not use race as a factor in assigning students to

schools unless strict scrutiny is met

E. Alienage Classifications (Laws that discriminate against Non-Us Citizens)a. Generally, Strict Scrutiny is Used

(1) E.g., state had a law that said that only US citizens could get welfare benefits (strict scrutiny applied and unconstitutional)

b. However, Only Rational Basis is used for Alienage classifications that concern self-government and the democratic process

(1) The G may discriminate against aliens with regard to voting, serving on a jury, being a police officer, a teacher, or a probation officer

c. Only Rational Basis is used for Federal Discrimination against aliens d. It appear that Intermediate Scrutiny is used for discrimination against undocumented

alien children (trying to go to school)

QUASI-SUSPECT CLASSIFICATIONSF. Gender Classifications

a. Intermediate Scrutiny is Used , but Gender discrimination will only be allowed if there is an “exceedingly persuasive justification”

b. How is the existence of a Gender Classification proven?(1) The classification exists on the face of the law(2) Alternatively, if the law is facially neutral, proving a gender classification

requires demonstrating both discriminatory impact + discriminatory intent 1. height and weight requirements for police officers only gets rational

basis review

c. How should gender classifications benefiting women be treated?(1) Gender classifications benefiting women that are based on role stereotypes will

not be allowed

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(2) Gender classifications designed to remedy past discrimination and differences in opportunity will be allowed

G. Discrimination against non-marital childrena. Intermediate Scrutiny is Usedb. Laws that deny a benefit to all non-marital children, but grant it to all marital children

are unconstitutional

H. Rational Basis Review is Used for all other Types of Discriminationa. Age Discrimination**; Disability Discrimination; Wealth (or lack of) Discrimination;

Economic Regulations; Sexual Orientation Discrimination

I. All Fundamental Rights Protected under Equal Protection

VIII THE FIRST AMENDMENT

A. Free Speech Methodologya. Content v. Conduct: Regulation seeking to forbid communication of specific ideas

(content) is less likely to be upheld than regulation of the conduct incidental to speech.

b. Content Based vs. Content Neutral Restrictions (1) Content-Based restrictions on speech generally must meet strict scrutiny (2

Types)1. Subject Matter restrictions (application of the law depends on the topic

of the message – “only labor strikes are allowed”)2. Viewpoint Restrictions (where application of the law depends on the

ideology of the message)

(2) Content Neutral laws burdening speech generally need only meet intermediate scrutiny (e.g., No Parades allowed)

c. Vagueness and Overbreadth (1) Vagueness – A law is unconstitutionally vague if a reasonable person cannot tell

what speech is prohibited and allowed1. e.g., city ordinance prohibited the sale of magazines that tended to

corrupt the morals of youth

(2) Overbreadth – Overbroad if it regulates substantially more speech that the constitution allows

1. e.g., city ordinance prohibiting ALL live entertainment

(3) Fighting Words laws are always unconstitutionally vague and overbroad

d. Symbolic Speech : The gov’t can regulate conduct that communicates if it has an (1) important interest unrelated to suppression of the message & (2) if the impact on communication is no greater than necessary to achieve the G’s purpose

(1) Flag Burning is constitutionally protected speech(2) Draft Card Burning is NOT protected speech(3) Nude Dancing is NOT protected speech

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(4) Burning a Cross is protected speech unless it is done with the intent to threaten

e. Anonymous Speech is Protected : There is a right to speak and not to speak, and to speak w/out disclosing your identity

B. What Places are Available for Speech?a. Public Forums : G properties that the G is constitutionally required to make available for

speech (sidewalk, streets, parks)(1) Regulation be must be content neutral (subject matter & viewpoint neutral) or

if not, then it must meet strict scrutiny; if so, then only intermediate scrutiny1. Eg: Ordinance allowing labor picketing, but not other picketing invalid

(2) Narrowly tailored to serve significant gov’t interest

(3) Regulation must be a time, place, and manner restriction that serves an important Gov’t purpose and leaves open adequate alternative places for communication

1. e.g., “No trucks w/sound amplification may operate in residential neighborhoods at nighttime”; this was an adequate time place and manner restriction

(4) ***City Officials cannot Have discretion to set permit fees for public demonstrations (must be based on pure objective criteria)***

1. Targeted picketing in front of someone’s house can be regulated. Going through the street is ok.

2. School is not public forum, but if it opens up for public use, then can’t deny permission to religious organizations.

b. Non-Public Forums : Other than streets, sidewalks, parks, and designated public forums, most public property is considered to be nonpublic forum. Regulation will be upheld if:

(1) Viewpoint Neutral, and(2) Reasonably related to a legitimate gov’t purpose

1. Viewpoint Neutral: Need not be content neutral – gov’t can allow speech regarding some subjects but not others. Viewpoint = if gov’t allows an issue to be presented in a nonpublic forum, it may not limit the presentation to only one viewpoint (all views allowed on a subject)

(3) Military Basis, Areas outside prisons and jails, advertising space on city buses, Sidewalks on Post Office Property**, Airports (but G cannot prohibit distribution of literature)

c. Private Property : No 1ST amendment right of access to private property for speech purposes (this includes privately owned shopping centers)

C. Other Types of Speech

a. Commercial Speech . Generally Protected, except(1) However, Advertising for illegal activity and false and deceptive ads are NOT

protected by 1st Amendment

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(2) True commercial speech that inherently risks deception can be prohibited1. The G may prevent professionals from advertising or practicing under a

trade name2. The G may prohibit attorney, in-person solicitation of clients for profit

(unless L offers free representation)a. Solicitation by letter is OK

3. The G may not prohibit accountants from in-person solicitation of clients for profit

(3) Other commercial speech can be regulated if intermediate scrutiny is met (e.g., FL law prohibited attorneys from soliciting accident victims for 30 days after accident – upheld by SC)

(4) G regulation of commercial speech does not have to use least restrictive means, but it does have to be narrowly tailored

b. Privacy and the 1 st amendment: Freedom of the Press (1) The G may not create liability for the truthful reporting of information that was

lawfully obtained from the Gov’t and then published.

(2) Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public concern

1. e.g., 2 teachers having conversation that was illegally recorded, which ended up on a talk show host; teachers sued for invasion of privacy – court ruled for radio station

(3) The G may limit its dissemination of information to protect privacy

c. Prior Restraints These are judicial or administrative orders that stop speech before it occurs. Not favored. Court would rather allow speech, then punish.

(1) Gov’t burden heavy. There must be some special societal harm that justifies the restraint.

1. Prohibiting publishing troop movements = justified.

(2) Court orders (TRO, Injunction) suppressing speech are only allowed if they meet strict scrutiny

1. A proper court order must be complied with until overturned, therefore, A person who violates a court order is barred from later challenging it

2. Always unconstitutional to put a gag order on the press during a trial

(3) The Gov’t may require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority

D. What Categories of Speech are Unprotected or Less Protected by 1st Amendmenta. Incitement of Illegal Activity : The G may punish speech if there is a substantial

likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality

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b. Fighting Words – True Threats: state may ban cross burning done with intent to intimidate b/c of cross burning’s long history as a signal of impending violence.

c. Obscenity and Sexually – Oriented Speech **(1) The Test for Obscenity (all 3 must be met)

1. Material must appeal to the prurient interest (refers to a shameful or morbid interest in sex, not normal lust) (Local Standard)

2. Materially must be patently offensive under the law prohibiting obscenity

3. Material must lack serious redeeming serious artistic, literary, political or scientific value (National standard)

(2) The Government may use zoning ordinances to regulate the location of adult bookstores and movie theaters

(3) Child Pornography banned. However, in order to be considered child pornography, children must be used in its production

(4) The G may seize the assets of businesses convicted of violating obscenity laws

d. Profane and indecent language are generally protected by the 1st amendment1. Exception: Profane speech over the Broadcast Media2. Exception: In Schools

e. Defamation (1) If the Π is a public official, the Π can recover for defamation by proving falsity

+ actual malice (knowledge that statement was false, or reckless disregard to its truth or falsity)

(2) If the Π is a public figure then Π can recover for defamation by proving falsity + actual malice

(3) If the Π is a private figure and the matter is of public concern, that state may allow the Π to recover for the defamation by proving falsity + negligence by the Δ (can only recover punitive or presumed damages by showing malice)

(4) If Π is a private figure and the speech is not of public concern, the Π can recover presumed or punitive damages w/out showing actual malice

f. Speech by G employees – if gov’t employer seeks to fire employee for speech-related conduct, will depend on if speech involved matter or public concern or not.

(1) If matter of public concern: Balance employee’s rights as a citizen to comment on a matter of public concern v. gov’t interest as employer in efficient performance of public service

(2) Not matter of public concern: Give wide degree of deference to gov’t employer’s judgment concerning whether speech was disruptive.

1. Eg: Teacher can’t be fired for writing letter to newspaper attacking school board policies.

2. Ct upheld firing of attorney for circulating in the office a petition regarding transfer policies.

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(3) Official Duty Exception: Gov’t employer may punish employee’s speech when speech is made pursuant to employee’s official duties, even if speech touches on matter of public concern.

E. Freedom of Associationa. Laws that prohibit or punish a group membership must meet strict scrutiny, and the

following requirements must be met by G:(1) Individual actively affiliated with the Group(2) Knowing of its illegal activities, and(3) With the specific intent of furthering those illegal activities

b. Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny

c. Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity

(1) E.g., MN prohibited private groups from discriminating based on Gender; JC was an all-male organization; SC upheld law because government interests outweighed freedom of association – Exceptions:

1. Intimate Association (e.g., a small dinner party)2. If Discrimination is integral to the Association’s message (Nazi’s can

exclude Jews; Boy Scouts can exclude Homosexuals)

F. Freedom of Religiona. The Free Exercise Clause: Prohibits gov’t from punishing, denying benefits to, or

imposing burdens on someone on the basis of the person’s religious beliefs.

(1) Cannot be used to challenge a Neutral law of General Applicability that applies to everyone (Peyote Case) & must show law was motivated by a desire to interfere with religion.

(2) If law can be shown to be not neutral or not of general applicability (where it targeted a certain religion) then FE Clause can be used

1. Eg: City prohibiting precise type of animal slaughter used in religious ceremony. Violates FE clause b/c law designed solely to exclude that specific religious sect.

2. Eg: Law excluding pursuit of degree in theology from scholarship program for all students = no violation. Exclusion doesn’t show animosity towards religion, but reflects decision not to fund this activity.

(3) The G Cannot deny unemployment benefits to people to quit there jobs for religious reasons

b. Establishment Clause (1) Sect Preference: If law includes preference for some religious sects over others,

will be invalid unless narrowly tailored to promote compelling interest.

(2) No Sect Preference: Gov’t program will be valid under EC if:1. Law has a secular purpose 2. Primary effect of law does not either advance or inhibit religion, and T

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3. There must not be excessive entanglement with religion

(3) Law favoring or burdening a larger segment of society that happens to include religious groups will be upheld.

1. IRS can deny tax exemptions for religious donations if in exchange for services, since this is general rule for all charities.

2. Gov’t can’t delegate gov’t power: law giving church shools power to veto nearby liquor stores.

(4) The G cannot discriminate against religious speech or among religions unless strict scrutiny is met

(5) Gov’t sponsored religious activity in public schools is unconstitutional. But religious student and community groups must have the same access to school facilities as non-religious groups

(6) The Gov’t may give assistance to parochial schools, so long as it is not used for religious instruction – used for secular purpose (building hospital). The gov’t may provide parents vouchers which they use in parochial schools

(7) Paying portion of teacher’s salaries in private school is invalid b/c primary effect would be to advance religion.

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