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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 is the proper party to bring a matter to the court for adjudication (1) Requirements 1. Injury. The must prove that he has been or imminently will be injured a. may only assert injuries that he personally suffered b. Seeking injunctive or declarative relief must show a likelihood of future harm c. 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 must allege and prove that the caused the injury 3. Redressability. a favorable court decision must be capable to remedy the injury (2) Common Standing Issues 1. No 3RD Party Standing Allowed. A 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 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 organizations purpose iii. Neither the claim nor relief requires participation of individual members 2. No Generalized Grievances. Must not be suing solely as a citizen or a taxpayer interested in having the government follow the law (i.e., 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: may not sue on a statute before its enforcement, unless will suffer some immediate threat of harm c. Mootness: If events after the filing of a lawsuit end the 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 voluntarily halts the wrongful conduct 1

(3) Class Action Suits if the Named 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 Presidents 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 case c. The SC has Original and Exclusive Jurisdiction for suits b/w state governments d. 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 DC e. 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 1. Express Waiver of Sovereign Immunity 2. States may be sued pursuant to federal laws adopted under Section 5 of the 14TH Amendment a. A state may be sued for violating Title VII b. Cannot be sued for violating Commerce Clause 3. The Federal Government may sue the State Government 4. 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 Policy a. 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 2

(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 Affairs a. The Appointment and Removal Power (1) The Appointment Power 1. The President appoints ambassadors, federal judges and officers of the US 2. Congress may vest the appointment of inferior officers in the President, the heads of departments or lower fed courts a. Attorney General is an Officer of US, but US Attorneys are inferior officers 3. 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 Cabinet b. 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 senate c. 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

II. FEDERAL LEGISLATIVE POWER 3

A. Congress Authority to Act: There must be express or implied Congressional Power a. 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 power b. 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 regulate 2. 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 Act 1. 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 governments 1. e.g., federal law prohibiting state government from releasing private information about drivers d. 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 Powers a. No Limit exists on Congress ability to delegate legislative power b. 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 4

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 laws 1. 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 law c. Inter-govt 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 Corporations 2. 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 b. Does the State law discriminate against out-of-staters? (1) If NOT: 1. The P and I clause does NOT Apply 5

2. 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-staters b. 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 States Police Power V. THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF INDIVIDUAL LIBERTIES A. Is there Government Action? 6

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 govt leases premises to a restaurant that racially discriminates 3. There is state action when a state provides books to schools that racially discriminate 4. There is NO state action when a private school that is over 99% funded by the govt fires a teacher b/c of her speech a. But Govt 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 govt intentionally takes away an individuals life, liberty, or property (no right to individualized adjudication when govt acts generally) a. Has there been a deprivation of life, liberty, or property? (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 persons 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 individual 2. The ability of additional procedures to increase the accuracy of factfinding 3. The govt interest in efficiency (3) Examples 1. Welfare = notice and a hearing prior to termination 2. Social Security = POST termination hearing 3. Public Employee notice of charges and pre-termination opportunity to respond to the charges, & subsequent evidentiary hearing 4. School: notice of the charges and an opportunity to explain 5. Before a parents rights with respect to a child can be terminated = notice and a hearing 6. Except in exigent circumstances, pre-judgment attachment or govt seizure of Property must be preceded by notice and a hearing a. Exigent: reason to believe that person would get rid of the property if there was a notice b. The G may seize property used in illegal activity, even if it has an innocent owner B. The Takings Clause: The Govt may take private property for public, but it must use just compensation 3 Part Test: a. Is there a Taking? (2 Ways) (1) Possessory Taking G confiscation or physical occupation of property is a taking (it doesnt matter how small the property is) 8

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 govt: title to all/part, granting public access to property 1. Is an uncompensated taking, unless govt can show: (1) condition relates to legitimate govt 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 govt. 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 govt doesnt need to pay. C. The Contracts Clause. NO State shall substantially impair (destruction of most or all the partys rights under the contract) the obligations of Existing Contracts a. Applies only to STATE or LOCAL government interference with existing contracts b. State or local interference w/private contracts must meet intermediate scrutiny c. State or Local interference with Public Contracts (where state or political subdivision is party) must meet Strict Scrutiny d. 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. a. Burdens of Proof: (1) Strict Scrutiny: Law is necessary to achieve a compelling govt purpose. (2) Intermediate: Law is substantially related to important govt purpose. (3) Rational Basis: Law is rationally related to legitimate govt interest. 9

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 Ones children d. Keep the Family Together (includes the extended family) e. Control the upbringing of ones children (it violates DP for the court to order grandparent visitations over the parents objections) f. Contraceptives g. Vote h. Travel i. Obscene reading material j. Intimate sexual conduct (includes same sex) k. The right to abortion (1) Prior to Viability (cant 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 burden 2. a requirement that abortions be performed by licensed physicians is not an undue burden 3. the prohibition of partial birth abortions is not an undue burden 4. Parental consent for minors not undue burden. State may require parental notice and/or consent for minors 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 (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 10

(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 protections a. The equal protection clause of the 14TH amendment applies only to state and local governments b. Equal Protection is applied to the federal government through the due process clause of the 5TH amendment C. Proving Discriminatory Classification a. Law may include a classification on its face. The law makes an explicit distinction b/w classes of persons. b. If Facially Neutral: legislation/govt action must have a discriminatory intent and discriminatory impact to trigger EP.

SUSPECT CLASSIFICATIONS D. Classifications based on race and National Origin a. Strict Scrutiny is Used b. 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 11

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 minority 2. 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 selfgovernment 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 CLASSIFICATIONS F. 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 (2) Gender classifications designed to remedy past discrimination and differences in opportunity will be allowed G. Discrimination against non-marital children a. Intermediate Scrutiny is Used b. Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional 12

H. Rational Basis Review is Used for all other Types of Discrimination a. 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 Methodology a. 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 allowed 1. 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 govt 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 Gs purpose (1) (2) (3) (4) Flag Burning is constitutionally protected speech Draft Card Burning is NOT protected speech Nude Dancing is NOT protected speech 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? 13

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 scrutiny 1. Eg: Ordinance allowing labor picketing, but not other picketing invalid (2) Narrowly tailored to serve significant govt interest (3) Regulation must be a time, place, and manner restriction that serves an important Govt 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 someones 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 cant 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 govt purpose 1. Viewpoint Neutral: Need not be content neutral govt can allow speech regarding some subjects but not others. Viewpoint = if govt 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 (2) True commercial speech that inherently risks deception can be prohibited 1. The G may prevent professionals from advertising or practicing under a trade name 2. The G may prohibit attorney, in-person solicitation of clients for profit (unless L offers free representation) a. Solicitation by letter is OK 14

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 1st amendment: Freedom of the Press (1) The G may not create liability for the truthful reporting of information that was lawfully obtained from the Govt 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) Govt 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 Govt 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 Amendment a. 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 b. Fighting Words True Threats: state may ban cross burning done with intent to intimidate b/c of cross burnings 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 15

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 amendment 1. Exception: Profane speech over the Broadcast Media 2. Exception: In Schools e. Defamation (1) If the is a public official, the 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 is a public figure then can recover for defamation by proving falsity + actual malice (3) If the is a private figure and the matter is of public concern, that state may allow the to recover for the defamation by proving falsity + negligence by the (can only recover punitive or presumed damages by showing malice) (4) If is a private figure and the speech is not of public concern, the can recover presumed or punitive damages w/out showing actual malice f. Speech by G employees if govt 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 employees rights as a citizen to comment on a matter of public concern v. govt interest as employer in efficient performance of public service (2) Not matter of public concern: Give wide degree of deference to govt employers judgment concerning whether speech was disruptive. 1. Eg: Teacher cant 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. (3) Official Duty Exception: Govt employer may punish employees speech when speech is made pursuant to employees official duties, even if speech touches on matter of public concern. E. Freedom of Association a. 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 16

(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 Associations message (Nazis can exclude Jews; Boy Scouts can exclude Homosexuals) F. Freedom of Religion a. The Free Exercise Clause: Prohibits govt from punishing, denying benefits to, or imposing burdens on someone on the basis of the persons 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 doesnt 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: Govt 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 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. Govt cant delegate govt power: law giving church shools power to veto nearby liquor stores.

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(4) The G cannot discriminate against religious speech or among religions unless strict scrutiny is met (5) Govt 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 Govt may give assistance to parochial schools, so long as it is not used for religious instruction used for secular purpose (building hospital). The govt may provide parents vouchers which they use in parochial schools (7) Paying portion of teachers salaries in private school is invalid b/c primary effect would be to advance religion.

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