Donated by Shawn Haque & Melissa Schwartz PMBR Con Law Outline 2006

Constitutional Law Outline

CD 1 Track 1- Introduction

(Topic Overview)
o Federal Judicial Authority Organization of Fed Ct system Fed Judicial Review o Separation of Powers Fed Legislative Power Fed Executive Power Inter branch checks and balances o Federalism Inter gov immunities Dormant Commerce clause State taxation Supremacy clause o Protection of Individual Rights 14th A issues state action bill of rights due process equal protection st 1 A Freedom of Religion Procedural issues Content Specific Regulation Time, place, manner regulation o Essay Issues 1st Issue Standing 1st A 2nd issue 14 th A

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I. Federal Judicial Authority

Track 2 - . Organization of Federal Court System A3 vests judicial power in one Supreme Court and such inferior courts as Congress may establish S. Ct. required via Constitution o Jurisdiction = Cases or Controversies Actual and definite dispute No advisory opinions Except State courts can do advisory opinions Congress has plenary power to establish lower federal courts o Add or subtract jurisdiction of there courts o Diversity of citizenship limitation ok o Federal questions are not because mandated by Constitution Jurisdiction of Supreme Court o Original: (very few cases) Ambassadors, consuls, public minister State is a party Congress may neither enlarge or restrict this original jurisdiction o Appellate Jurisdiction o Congress may broadly regulate this jurisdiction Congress may not preclude review of entire class of cases o Two methods to invoke appellate jurisdiction: (28 USC 1257) 1) Appeal goes as a matter of right three judge federal district courts ex: injunction relief 2) Cert (rule of 4) discretionary all other decisions o cases from highest state courts involving federal issues o all cases from US Courts of Appeals Lower federal courts have concurrent jurisdiction o Can generally hear same types of cases as S.Ct. Exception: S.Ct has original and exclusive jurisdiction between two or more states.

Track 3. Federal Judicial Review

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Doctrine of Judicial Review (Courts may refuse to hear cases) 1) Adequate and independent state grounds 2) Standing 3) Ripeness 4) Mootness 5) Political Questions 6) 11th Amendment 7) Abstention

Track 4. Adequate and independent state grounds (applies ONLY to S.Ct.) Need: Final judgment from state court S.Ct. will not hear cases where highest state court has decided on adequate and independent state grounds. Examples: o Procedural Example: SOL Losers o Substantive Example: violation of equal protection clause Winners o Note: Michigan v. Long State S.Ct. must specifically identify an independent state ground. Can not be vague. Track 5. Standing (most important always do standing analysis first) Must have concrete personal stake in outcome Two tests for standing: o Constitutional Standard Elements: 1) Injury in fact = damages (economic, aesthetic, environmental) 2) Causation Relief sought must eliminate harm alleged (Redressability) Worth v. Seldin

Doctrine of Prudential Limitations 1) Third-party standing General Rule: Plaintiff may only advance his Constitutional Rights. Exception: If 3rd party shows he has: 1) Close relationship exists between 3rd party and plt (nexus); and 2) Special need to adjudicate. 2) Abstract General Grievance

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General Rule: Citizen standing generally denied. Exception: State taxpayers have standing to challenge measurable expenditures

Federal Taxpayers have no standing interests too remote. Exceptions: 1. Establishment Clause Challenge 2. Expenditures enacted under tax and spending power. Track 6: Ripeness (brought too early) Must have genuine immediate threat of harm Track 7: Mootness (brought too late) (Roe v. Wade), abortion, pregnancy Can be brought by Plt or other class member. Track 8: Political Question Doctrine nonjusticable issue committed to another branch of government. Guaranty Clause is included (Baker v. Carr) Amendment Ratification Process Age, residency, citizenship required of legislators (Rowell v. McCommick) Foreign affairs Subject matter Respect for other branches of government 1. Guaranty Clause every state is guaranteed a republican form of government. a. Apportionment of districts not a guaranty clause issue Baker v. Carr) b. Congress how long states can take to ratify laws (nonjusticable political question) c. Residency requirements nonjusticable political question d. Foreign affairs Fed. Crt system will not overturn congressional authorization in foreign affairs Track 9: 11th Amendment States cannot be sued in federal courts unless they consent. Includes:
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Controversy exists at all stages of review; otherwise it is moot. Exception: injury is capable of repetition yet evading review.

Own citizens Citizens of other states

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 o o o o injunctive relief for federal law violations.

Citizens of foreign countries This rule does not include: Municipalities, counties, school boards A state can sue another state Federal government can sue a state State officials can be sued for damages and

Today, State immunity applies to federal question suits and diversity suits.

Track 10: Abstention matter if it is an unsettled issue. CD 2 Federal court will abstain from hearing a state

II. Separation of Powers

Track 1. Federal Legislative Power Doctrine of enumerated powers o Federal government has only that authority that the Constitution gives it (express + implied) o All other powers retained by states through 10th Amendment, which is where state finds its police powers (health, safety, welfare, morals or aesthetics). Rational basis test Reasonable regulation which furthers Legitimate State interest

o Strong basis of power to uphold State laws

o Necessary & Proper clause: Congress can use any reasonable means necessary and proper to execute enumerated powers. Not by itself independent source of power carries into execution other enumerated powers

Track 2. Commerce Power (Art 1 8)(Plenary) Regulation of foreign and domestic commerce. Regulation of any person or thing traveling across state lines. Affectation doctrine o Congress may regulate any activity, which in the aggregate has a substantial economic effect on the stream of economic commerce
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Limit via Lopez (school gun case) Must have jurisdictional hook; link between gun possession and interstate commerce too tenuous.

Cumulative impact doctrine o Even an entirely intra-state activity can have a cumulative impact on interstate commerce. (Filburn wheat grown intrastate for own consumption)

Congress can regulate for clearly non-commercial reasons, such as social welfare, health, civil rights in conjunction with enabling clauses (by appropriate legislation )of 13th, 14th and 15th amendments (i.e. Heart of Atlanta Motel).

Track 3. 10th Amendment Weak limitation on commerce power. Generally applicable law (i.e. minimum wage) cannot be defeated by 10th. But Congress cannot require states to enact and enforce a particular federal program NY v. US. This is where 10th A is a strong argument Congress may not commandeer the States to enact or enforce a Federal law

Track 4. Taxing and Spending Power General Welfare Clause o Limits tax + spending power Taxing o Tax is valid if the dominant intent is fiscal revenue raising. Spending o Congress can attach strings to money, but the strings must be reasonable. Even if the strings wouldnt be proper legislation (Oklahoma v. Civil Service Comm.) o Appropriation o Congress can regulate indirectly where it cant legislate directly Side discussions o Power over federal property (A43): Congress has the power to dispose of and make all rules and regulations regarding the territory or other property of the US. Wild animals on federal land Federal buildings & Enclaves (e.g. military bases, VA hospitals) Military ships and airplanes Indian reservations Declare war Regulate militia
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o War and defense

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Raise and support troops

o Enforcement of 13th, 14th and 15th Amendments Track 5. Delegating of Federal Legislative Power Congress can delegate legislative powers Legislative veto is unconstitutional (INS v. Chanda) Congress may not delegate then subsequently retract

Track 6. Federal Executive Power Domestic Policy Chief executive President has the power and obligation to faithfully execute the laws. Appointment & removal o o Can appoint purely executive officers, ambassadors, supreme court justices, cabinet members etc. with senate consent Can appoint to agencies and commissions with executive powers without senate consent.

Powers of President

o Congress cannot appoint inferior officers (special prosecutor) but can delegate such appointment to judiciary or executive. o President can remove any purely executive official, but not federal judges or fixed-term executive official without good cause. Presidents Legislative Power o Veto legislation within 10 days, subject to override by 2/3rds vote. Pardon power: Extends only to offenses against the U.S. (federal crimes, not state crimes). Executive privilege: (Refusal to disclose information) o Absolute as to military and diplomatic secrets; otherwise merely a qualified privilege. o Absolute immunity from civil suits for actions taken while in office Commander-in-chief Track 7. Foreign Policy Treaty and foreign affairs
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Deploy military troops even before outbreak of war. o May declare end to war (implied power) Broad emergency powers

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o Shared with congress (not plenary) o Sources of power Commander in chief Congressional authorization: Delegation of commerce power to president.

Hierarchy of Laws o Constitution o Treaty / Act of Congress Conflict? Most recent prevails Informal agreements Senate consent not reqd o Executive Agreement/order

o State Law

Track 8. Interbranch Checks and Balances Congressional limits on the excutive Presentment requirement and presidents power to veto or withhold action Delegation doctrine o Congress can delegate legislative power to another branch, but it cannot subsequently retract that power via legislative veto. Executive, legislative and judicial immunities Speech & Debate Clause

II. Federalism
Track 9 - Federal Government Limitation on State Authority Track 10. Intergovernmental Immunities 1) Federal immunity from state law 1. 2. Federal government is immune from state taxation and regulation States may tax federal contractors, as long as the federal government isnt being taxed. States generally not immune from federal regulation. 10th and 11th Amendments do not apply.

2) State immunity from federal law 1. 2.

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3.

Federal government can tax proprietary state businesses (state businesses which could be created just as easily by private businesses; ex. State involved in the sale of bottled water). Cant tax State Gov activities (public schools, parks)

4.

Track 11. Dormant Commerce Clause 1. Where Congress is silent, the states are free to regulate 2. Test: a. Non-discriminatory i. It doesnt discriminate against interstate commerce in favor of local interests. ii. If the law is intended to further a legitimate purpose, but produces discriminatory impact, the law must be achieved by the least burdensome means available. iii. Philadelphia v. NJ (could have licenced/taxed garbage) b. Undue burden i. Doesnt unduly burden interstate commerce. ii. Uses balancing test (State interest v. burden) iii. Usually ok if in the areas of roads & highways, health & safety, prevention of fraud, and conservation of natural resources. 3. Exception State is a Market Participant (Reeves v. Stake) a. State may discriminate w/o violating commerce clause 4. Privileges & immunities clause: Prohibits discrimination by one state of citizens of another state in the areas of basic economic rights and activities a. Example: Different fees for services based on state residency. b. Applies only to people (citizens/residents) not businesses or companies (which would be covered by discrimination against interstate commerce) c. Recreational State likely to discriminate d. Commercial- State unlikely to discriminate 5. Tenth Amendment Track 12. State Taxation of Interstate Commerce 1) 1. Criteria Must be reasonable and nondiscriminatory (satisfies commerce clause) 2. Must have substantial nexus between state interest and activity being taxed. (due process satisfied) 2) 1. Goods while in the stream of interstate commerce may not be taxed may be taxed at beginning and end of transit; also if break in transit

3) Instrumentalities involved in interstate commerce (planes, trains, boats) can be taxed so long as it is fairly apportioned as to the extent of taxpayer use in the state. a. 4) 5) Ex.: Airline can be taxed based on number of days plane is in the states airports. Direct taxes (real property, income) must be apportioned Indirect taxes (sales) must be geographically uniform.
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Track 13. Supremacy Clause (A62) 1) Even most trivial Federal law dominates important State laws 2) Preemption a. If the federal government intends to occupy the area, any conflicting state laws are invalid. (Burbank v. Lockheed) 3) Supercession doctrine a. Federal law supersedes state laws in direct conflict. b. In the area of health and safety regulations, state can enact standards which are more strict than federal. (Oklahoma beef temp)

CD 3 Track 1. Constitutional Law Approach 1) Essay Question approach c. Underline who is passing the law d. Determine subject matter of Q (e.g. Federal appropriation of highway $$) e. Match appropriate POWER of regulation (e.g. Tax + Spending) i. To uphold Fed statute 1. Supremacy clause 2. Enumerated powers of Congress 3. Fed Property power (A4) ii. To uphold State law 1. Police Power (10A) 2. Dormant Commerce clause

IV. Protection of Individual Rights

Track 2. State Action

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General Rule All individual rights in Constitution protect against only gov action. Private conduct need not comply w/ Constitution a. Exceptions i. 13th A ii. Private entity serving public function ( political party running elections/company towns) iii. Entanglement (restaurant leases property from gov is bound by Constitution) 1. Symbiotic relationship iv. Federal Statute (Congress may apply Constitutional norms to private conduct) b. Without state action, private discrimination is not actionable under the 14th or 1st As i. Step 1- Show State Action 1. 13th A does not need State Action ii. Step 2- Discuss Equal Protection, due process, or 1A. 2) Examples of NO STATE ACTION: a. Grant of liquor license b. Private School merely licenced by State

Track 3. Bill of Rights 1) First ten amendments apply to Fed Gov 2) Due Process clause of 14th A acts as conduit to States a. selective incorporation i. Rights which do not apply: 1. Right to carry arms 2. Right to grand jury in criminal cases 3. Right to jury trial in civil cases 4. Right against excessive bail b. Privileges and immunities clause of 14th A i. Slaughter house cases/ now dead law b/c due process selected as conduit ii. Rights of national citizenship is protected 1. right to petition congress for redress of grievances 2. right to peacefully assemble 3. right to interstate travel Track 4. Retroactive Legislation (Contracts Clause)

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A110: States cannot impair obligation of both public and private Ks unless significant public need exists Weak limit on State power Police power defense by State does work well against this argument Track 5. Ex Post Facto Law(unconstitutional) Makes criminal an act that was not a crime when committed Increases the punishment, Decreases amount of evidence needed. No application to civil laws. Track 6 Bill of Attainder(unconstitutional) Legislative punishment of named group or individual without judicial trial. i. Take away someones job Track 7 Procedural Due Process Rule Notice and hearing are available whenever there is a serious deprivation of life, liberty or property interest (regardless if it is a right or privilege). Liberty interest exists: i. Right to K ii. Right to engage in gainful employment iii. Right of natural parents in care and custody of their children iv. Right to refuse unwanted medical procedures b. Property interest exists: (property entitlements) i. Welfare benefits (pre-termination hearing) ii. Disability benefits (post-termination hearing) iii. Public elementary and secondary education iv. Garnishment of wages v. Continued public employment, where cause is required. (e.g. tenured teachers) TEST Balance severity of harm to individual (if notice/hearing not given) v. government interest in administrative efficiency (cost). 2) Takings (5th and 14th) - Power of gov to take property for public use a. Private property taken for public use by i. confiscation or physical occupation ii. regulation denying owner all reasonable economically viable use of land iii. Three ways 1. Eminent domain
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a. Just compensation must be paid. 2. Inverse condemnation: Just compensation must be paid. 3. Police power a. No compensation paid. b. Areas: Land use, zoning, environmental protection legislation, landmark preservation. Track 8 Substantive Due Process (Fundamental Rights) Economic regulation valid if rationally related to legitimate government interest. (Rational basis test) 1) Fundamental rights: Strict scrutiny. Track 9 Right to Privacy 1) Privacy: Not mentioned in Constitution, but found in penumbra. 2) Applies only to CAMPER areas: a. Contraception: Use and purchase, both married and unmarried. b. Abortion i. States can regulate so long as they do not create undue burden on ability to get abortion. (Planned Parenthood v. Casey) 1. NO undue burden if a. Seeking informed consent b. Detailed record keeping c. Consent of one parent (or Judge) if <18 yrs old ii. Spousal notification requirement is unconstitutional. iii. No right to public funding. c. Marriage i. State cannot forbid interracial marriage d. Procreation: Also affected by limits on contraception. e. Education (private only) i. No fundamental right to public school education, but complete deprivation is probably illegal. (Wisconsin v. Yoder) ii. This affects right of parents to privately educate their children which is a fundamental right. f. Relations i. Right of related persons to live together. ii. Does extend protect homosexual sodomy. (Lawrence v. Texas)

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iii. Also covers right to custody of ones natural children, which requires notice and hearing prior to transfer of custody. iv. Does not deal w/ food/shelter Track 10. Right to Travel Right to move freely from state to state 3) Durational residency requirements are unconstitutional for receipt of medical services, welfare benefits, and library services. 4) OK for reduced tuition at state universities, obtaining a divorce, and voting in state elections (50 days). 5) Foreign travel is governed by rational basis test. Track 11 Right to Vote 1 person, 1 vote 1) Restrictions on right to vote, such as land ownership, are unconstitutional. a. Exception: Special limited purpose districts can go outside the 1 person, 1 vote rule. Example: Water storage district voting can be limited to only landowners, and can be in proportion to amount of land owned. 2) Reapportionment: Boundaries cannot be defined to deny numerical equality among voters (i.e. reduce power of an ethnic group or segregate school district). 3) Gerrymandering is unconstitutional: Apportionment scheme deliberately distorting political districts for partisan political purposes. 4) Ballot access can be restricted by requiring petitioner to have reasonable number of signatures, or reasonable filing fee, minimum residency and age for candidates.

CD 4

IV. Protection of Individual Rights (cont.)

1) Track 1- Protection of Individual Rights - Equal Protection/ Standards of Review a) Equal protection: i) Persons similarly situated are treated differently ii) Used where law affects some persons, but not all. If it affects all persons, use substantive due process. Applies to federal gov. via 14th, and states through 5th. b) Track 2- Strict Scrutiny i) Applies to (a) Protected 1st amendment rights (b) Suspect classifications (RAN) (i) Test to determine if you have a suspect class: a. Characteristics which are unalterable
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b. History of purposeful unequal treatment. (ii) Race 1. Purposeful/ intentional discrimination must be shown. Impact alone is insufficient. 2. De jure (intentional) segregation is unconstitutional. 3. Bussing: Can be used to achieve desegregation, and racial quotas can be used to determine who is to be bussed. Temporary measure to remedy past discrimination. Individual schools may not be required to adhere to precise district-wide ratios. 4. De facto (un-intentional) segregation is constitutional. 5. Affirmative action in employment, college admissions, promotion preferences, hiring: a. Relevant pool is the qualified applicant pool not total minority population. b. Virtually all quotas to remedy past discrimination will be held unconstitutional. Numerical goals are more favored. (U of M law school admissions policy OK) (iii)Alienage 1. Federal discrimination against aliens a. Apply rational basis scrutiny. Fed. has plenary power over aliens under A18 (INS).

2. State discrimination against aliens a. subject to strict scrutiny. b. Exception where participation in government is involved (rational basis): Public school teachers, police officers, and jury service. c. Illegal alien children are entitled to free public education (K-12). (iv)National origin (c) Fundamental rights (i) Privacy (CAMPER) (ii) Travel (iii)Vote ii) Burden: State must show that the law is necessary to a compelling interest. No less restrictive alternative means available. c) Track 3- Intermediate Scrutiny i) Purposeful discrimination reqd like Race ii) Applies to (1) Gender: (a) Purposeful/ intentional discrimination must be shown. Impact alone is insufficient.

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(b) Statutory sexual stereotypes usually unconstitutional (i.e. public nursing school which only admits women). Affirm. action ok to remedy past disadvantage, so long as means are substantially related to important government interest. (2) Illegitimacy: Any law which benefits legitimate children and prejudices illegitimate children will likely be invalid. Example: Inheritance under intestacy. Intentional discrimination required: Impact or effect is not enough. (3) Content Neutral (time, place, manner) regulation of Speech (4) Regulation of Cable TV iii) Burden: State must show that the law is substantially (exceedingly persuasive justification) related to an important state interest. d) Track 4-Rational Basis i) Applies to all other areas not already covered. (1) Poverty, age, mental retardation, necessities of life, social and economic welfare measures. ii) Burden on to show that the law is not rationally related to any legitimate interest. iii) usually loses. 2) Track 6-First Amendment (Freedom of Religion, Regulation of Speech Content, Time, Place Manner Regulation of Speech Conduct) (1) Track 7-Freedom of Religion (separation of church and state) (a) Establishment (Clause) (i) Government may not pass a law preferring or aiding one religion over another. (ii) Government involvement must be neutral 1. Government involvement must not lead to excessive entanglement: (iii) Lemon Test (Gov regulation is valid if ): 1. Primary purpose of law must be secular 2. Primary effect of law must neither advance nor inhibit religion. 3. Law must not foster excessive government entanglement with religion. (iv) Other General Principals 1. Government sponsored religious activities in public schools are unconstitutional. a. Examples: Required non-denominational prayer. Daily bible reading, even if excusal allowed. Moment of silent voluntary prayer. Student led prayer at football games. 2. Government aid to religious schools for construction grants and salary supplements is unconstitutional at elementary and secondary levels. a. Indoctrination is the main issue. Small kids are more susceptible. University levels OK. 3. Government aid to parochial schools which cannot be used for religious purposes is constitutional. But also has to be made available to public schools on same terms.
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a. Examples: Bussing (but not for field trips), health tests, loan of textbooks, computers+ software. 4. Opening prayers: Based on long tradition of practice, opening prayer is ok if done by state legislator (caplin), but not judge. 5. Public displays: OK so long as secular purpose (celebrate holiday season) such that benefit to church is incidental, and no excessive entanglement. Examine who erected the display (city good, church bad), and what it contained (no one religion favored). a. Test : i. Reasonable observer would determine the gov. was endorsing a particular religious msg then unconstitutional. ii. Look at the context (totality of circumstances) (b) Track 8- Free exercise (i) Violation where government burdens persons because of their religious beliefs. (ii) Beliefs are absolutely protected. Court may not determine reasonableness of beliefs (whether one religion is right and another is wrong or invalid), but court can determine sincerity). (iii)Conduct in furtherance of those beliefs may be regulated. 1. Test = Purposeful interference (strict scrutiny test applied) v. incidental burden (rational basis applied) 2. Courts balance burden to person vs. government interest in regulation of that conduct. 3. Generally applicable criminal law can be applied regardless of burden because legislature did not intend to burden religion with law. 4. Example: Indians cant smoke peyote. If legislature did intend to burden religion, then the law is invalid. 3) Track 9- Method for attacking 1st A Qs a) Facially invalid: i) Overbroad: Punishes both protected and unprotected speech. (1) Red flags All or Any used in the statute ii) Vagueness: So unclearly defined that persons of ordinary intelligence must guess as to its meaning. iii) Prior restraints: Censorship, licensing, permits, injunctions (gag orders). (1) Rule: Government restrictions of free speech in advance of publications are unconstitutional. (2) Exceptions may be allowed for national security and obscene material iv) Unfettered discretion in licensing official to decide if to give the license

b) Content specific (Track I) or content neutral (Track II- regulation of conduct)?

i) TRACK I -Content specific regulation of protected speech must meet strict scrutiny. (1) Content specific regulation of unprotected speech must be one of these areas: a. Clear and present danger
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b. Defamation c. Obscenity d. Child pornography e. Fraudulent commercial speech f. Fighting words ii) TRACK II - Content neutral regulation (Track II- regulations) (1) Time, place and manner restrictions (2) Test (similar to intermediate scrutiny) (a) Serve significant government interest (b) Narrowly tailored (c) Leave open alternative channels of communication (3) Types of forums (a) Traditional public forum (street, park, sidewalk, airport terminal, government office building) (i) Intermediate scrutiny (b) Limited public forum (library, school, state fairground) (i) Intermediate scrutiny (c) Nonpublic forum (jail, military base, inside of courthouse, private billboard) (i) Gov may prohibit all free speech (ii) Rational basis test applies (d) Private property (privately owned shopping center): No right to free speech.

iii) Regulation of speech content

(1) (Track 10) Clear and present danger: Speech may be punished if (a) it is directed at producing imminent unlawful conduct (b) likely to produce such unlawful conduct. (2) (Track 12) Defamation (written or spoken words which injure anothers reputation) (a) What is the status of the ? (i) Public officials, limited public figures (voluntarily injects himself into public eye for limited time), public figures (celebrities). 1. Actual malice (knowing falsity or reckless disregard for truth) required for recovery (ii) Private person can recover when 1. Public concern - must show mere negligence a. Showing of malice can recover punitive damages 2. Private concern- has to show is that false statement was made (publication). (iii)Generally pure opinion is protected but

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1. Opinions are actionable if sufficiently factual to be suseptable to be proved true/false by other evidence (3) Obscenity (difficult to prove) (a) Test (under Miller) (i) Material appeals to prurient interest (pandering is relevant) in sex, applying contemporary local community standards. (ii) Depict sexual conduct in a patently offensive way, determined by local community standards (iii)Lacks serious literary, artistic, political or scientific (LAPS) value. Reasonable person standard. (b) Merely offensive language not obscene (Cohen v. Calif) (c) May be restricted without passing Miller test in broadcasting b/c children have unsupervised access. (Pacifica) (d) Private possession is protected in privacy of home (Stanley v. Ga) (i) Everything else (purchase, send in mails) can be restricted. (ii) Showing of obcene films in public theaters can be restricted (e) Zoning: Can be used to regulate location and distribution of adult theatres and bookstores. (f) Liquor: State can regulate non-obscenity (i.e. nude dancing) in establishments licensed to serve liquor. (Under 21st A) (g) US S.Ct has recently upheld municipal ban of public nudity (4) Child pornography (a) Can be punished even if not obscene. (b) Private possession can be punished. (Osborn v. Ohio) (5) Fraudulent commercial speech (a) Harmful/ illegal products or (false/deceptive Ads) can be regulated. (i) Test (under Central Hudson) for State regulation (of unprotected speech) to be valid 1. Directly advance substantial gov interest 2. Narrowly tailored to further the interest 3. Alternative means not available (b) Solicitation by lawyer is prohibited (lawyer-initiated), but advertising is protected. (c) Solicitation (i) Balance individuals right to privacy with freedom of commercial speech. (ii) Evaluate prior restraint, overbreadth, alternative means of advertising, narrowly drawn. (d) Non-fraudulent commercial speech (protected speech) - use strict scrutiny test (6) Fighting words (a) Insults likely to provoke ordinary person to commit an act of violence.
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(b) Statute must be viewpoint neutral (not just based on race, religion or gender). (under RAV) iv) Track 11- Association (1) Membership cannot be punished unless: (a) Organization advocates unlawful conduct (b) Individual is a knowing and active member (c) Individual has specific intent to further illegal objectives of organization (2) Membership lists can be forcibly disclosed if government interest outweighs interference to right to freely associate. Communist party, ACLU and NAACP cant be required, but KKK probably can. (a) Generally cant require disclosure of membership list unless membership in group is illegal (3) Loyalty oath as condition to public employment generally invalid except (a) but can require oath to support and uphold constitution (b) oppose violent overthrow of government. v) Track 13- Freedom of press (1) No special 1st Amendment privilege beyond what is afforded to private citizen. (2) Warrant required for search of news room (3) Newsperson has no privilege to refuse to disclose sources of information to grand jury. (a) Many states do have shield laws which do afford such a privilege (remember States can afford greater protection than the Constitution). (4) Criminal trials (a) General Rule: Media does have right to attend but (b) can be closed to the press if (i) compelling or overriding state interest is shown (ii) closure is narrowly tailored so that s right to public trial isnt interfered with. (5) Fairness doctrine (a) Broadcasters may be required to provide equal time to both sides of an issue because of limited airwaves. (intermediate scrutiny) (b) Cable TV operators (intermediate scrutiny) b/c of limited airwaves (i) Operators may ban indecent programming (ii) Operators may not ban as to public access channels (iii) Fed Gov may not require that cable operators who have sexually explicit programming scramble their channels (c) Newspaper / Internet opposite of (a) & (b) above - cannot be so required (strict scrutiny) CD 5
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Track 1,2,3- Obscenity/ Child Pornography, Commercial Speech, Fighting words see above

Track 4- Symbolic Speech (Medium itself is msg) 1) Under OBrien apply strict scrutiny a. Regulation must further significant government interest b. Narrowly tailored c. Leave open alternative channels 2) Example: Draft card burning can be prohibited because of the need for smooth running of draft system. Black armband and flag burning is protected (ban would be content specific and lacks significant government interest). Track 5,6 - Time, Place, Manner Regulation(Content Neutral TRACK II) & Public Forum see above

Track 7- Licensing Statutes 1. For license to be valid (Test) a) Content and viewpoint neutral b) Narrowly drawn c) No unfettered discretion 2. 3. Subject to facial attack (overbroad, vague, prior restraint) Scenarios a) Statute valid, but unconstitutional as applied to speaker (permit wrongfully denied or too restrictive) a. Speaker must apply for permit, be denied, and seek prompt judicial relief BEFORE SPEAKING. Speaker may speak even without having applied for permit, and successfully defend against prosecution.

b) Statute void on face a.

c) Injunction against speaking: a. Speaker must obey injunction even if facially invalid. Appeal the injunction. Invalidity of injunction is not a defense to charge of contempt from disobeying injunction.

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