BAR: CON LAW Flashcards
(132 cards)
1
Q
Standards of Review
A
Strict Scrutiny
Intermediate Scrutiny
Rational Basis
2
Q
Strict Scrutiny
A
Necessary to achieve a compelling government purpose ( Burden on the gov’t)
3
Q
Intermediate Scrutiny
A
Substantially related to an important government purpose (Burden on the gov’t)
4
Q
Rational Basis
A
Rationally related to some legitimate government purpose (Burden on the petitioner)
5
Q
Standing
A
Article 3 requires a plaintiff to have standing before a constitutional challenge can be made.
6
Q
Standing Elements
A
(1) INJURY
The plaintiff must allege or prove that she was injured or imminently will be injured
(2) REDRESSABILITY
To be redressable, a court decision in plaintiff’s favor must be capable of eliminating harm
(3) CAUSATION
Was caused by the act being Challenged. There must be a causal connection between the injury and the state action
7
Q
Organizational Standing
A
An organization has standing when…
(1) there is injury to a member which gives them a right to sue on their own behalf (i.e. member must have actually violated the statute)
(2) the injury is related to the organization’s purpose,
and
(3) participation of individual members of the organization is not required.
8
Q
Third Party Standing
A
A claimant may have standing to assert the rights of a third party if..
(1) it is difficult for the third party to assert his own rights, or
(2) a special relationship exists between the claimant and the third party.
9
Q
Taxpayer standing or citizen standing
A
A person does not have standing merely as a taxpayer or as a citizen of the United States because their interest is too remote.
10
Q
Taxpayer standing exceptions
A
Taxpayers have standing if…
(1) the constitutional challenges relates to a tax bill they paid under protest, or
(2) The constitutional challenge is based on the Establishment Clause of the First Amendment where the government exercised its Spending Power.
11
Q
Standing to Enforce Governmental Statutes
A
A plaintiff may have standing to enforce a governmental statute if she is within the zone of interests the statute’s purpose is to protect.
12
Q
State Action
A
The Constitution does not provide a means of redress for private wrongs. State action must be present in order for an individual to vindicate her constitutional rights. State action can be found in actions of private individuals who:
(1) perform exclusive public functions, or
(2) have significant state involvement.
13
Q
Justiciability
A
Federal courts may address cases and controversies so long as there is standing, state action, and other limitations are not present (ripeness, advisory opinion, abstention, mootness, political question)
14
Q
Ripeness
A
A case is not yet ripe if there is no immediate threat of harm
π is entitled to pre-enforcement review of a statute or regulation if:
(1) P will suffer some harm or immediate threat of harm, and
(2) there are sufficient issues/records for judicial review which is determined by looking at whether a case was even filed.
15
Q
Advisory Opinions
A
A federal court may not render an advisory opinion. The parties must show:
(1) They have engaged in or wish to engage in specific conduct, and
(2) That the challenged action poses a real and immediate danger to their interests.
16
Q
Abstention
A
A federal court will abstain from hearing a constitutional claim if based on an unsettled question of state law.
17
Q
Mootness
A
A case is moot if there is no longer any immediate threat of harm, unless the controversey:
(1) is capable of repetition yet evades review
(2) involves a class action in which at least one member still has a viable claim, or
(3) involves a defendant who voluntarily ceases harm but is free to resume at any time.
18
Q
Political Question
A
Political questions are not justicable if they are either:
(1) Textually demonstrably constitutionally committed to another branch of government, or
(2) inherently incapable of judicial resolution
19
Q
Tenth Amendment
A
All powers not granted to the federal government, nor prohibited by the states, are reserved to the states or the people.
20
Q
Eleventh Amendment
A
Eleventh Amendment provides sovereign immunity to the states so a federal court may not hear a private party’s claims against a state government unless
(1) the state expressly consents and waives immunity
(2) The action is against a state officer but does not involve payment of damages out of state funds, or
**federal courts may not hear claims for damages against a state but they may hear a claim where the remedy being sought is an injunction **
(3) Congress removes immunity to prevent discrimination under the 14th Amendment
21
Q
Legislative Powers
A
Congress can exercise those powers enumerated in Article I, Section 8 of the Constitution, and all auxiliary powers NECESSARY AND PROPER to carry out all powers vested int he federal government, including:
Spending Power
Taxing power
War Power
Property Power
Investigatory Power
Citizenship Power
Bankruptcy Power
Postal Power
Admiralty power
Power to Coin/Money
Patent and Copyright power
Commerce Clause
Congressional Enforcement of Civil Rights
22
Q
Legislative Powers: Spending Power
A
Congress may spend for any public purpose for the common defense and general welfare of the public
23
Q
Legislative Powers: Taxing Power
A
Congress may tax so long as it bears some reasonable relationship to raising revenue and Congress can regulate the activity taxed.
24
Q
Legislative Powers: War Power
A
Congress has the exclusive power to declare war and appropriate money to raise the military
25
Legislative Powers: Property Power
Congress has power over the properties of the U.S. (including Washington D.C.), which includes the right to tax real property. Congress can also take property for public use called eminent domain. Congress can protect federal lands, which includes the right to protect wildlife on that land.
26
Legislative Powers: Investigatory Power
Congress can investigate anything it has power to legislate over
27
Legislative Powers: Citizenship Power
Congress can establish uniform rules of naturalization
28
Legislative Powers: Bankruptcy Power
Congress has the power to establish uniform rules for bankruptcy.
29
Legislative Powers: Postal Power
Congress has the power to validly classify and place reasonable restrictions on the use of the mail system.
30
Legislative Powers: Admiralty Power
Congress' admiralty power is plenary (full and comprehensive) and exclusive
31
Legislative Powers: Power to Coin/Money
Congress has the power to coin money and fix the standards for weights and measures
32
Legislative Powers: Patent and Copyright Power
Congress has the power to control the issuance of patents and copyrights
33
Legislative Powers: Commerce Clause
Congress has the exclusive power to regulate all foreign and interstate commerce, including channels, instrumentalities, and activities that affect interstate commerce.
If Congress attempts to regulate intrastate activity, the law will only be upheld if:
(1) it is an economic or commercial activity that, in the aggregate,
(2) substantially affects interstate commerce.
34
Legislative Powers: Congressional Enforcement of Civil Rights
Congress has special powers to pass "appropriate legislation" to enforce post-Civil War amendments (i.e. 13th, 14th, 15th Amendments).
35
Limits on Congress' Authority to Act
No Federal Police Power
10th Amendment - Commandeering the States
Delegation Power
Speech and Debate Clause
Legislative vetoes of executive actions
36
Limits on Congressional Authority: Federal Police Power
Congress does not have a general police power except in Military bases, Indian reservations, federal Lands, and the District of columbia (MILD)
37
Limits on Congressional Authority: 10th Amendment
Commandeering the States
Congress cannot commandeer the states by compelling state regulatory or legislative action. Even if there is a federal statute on point, states are not required to pass identical legislation to that federal law to be constitutional.
38
Limits on Congressional Authority: Delegation Power
Congress may delegate authority to the executive or judicial branch so long as it provides intelligible standards
39
Limits on Congressional Authority: Speech and Debate Clause
Speech and conduct occurring in the regular course of the legislative process are immune from prosecution
40
Limits on Congressional Authority: Legislative Vetoes of Executive Actions
A legislative veto is an attempt by Congress to overturn an executive agency action without passage by both houses of Congress or without giving the bill to the President for his signature or veto is invalid.
41
Executive Powers: Appointment Power
The president has the power to appoint all ambassadors, USSC justices and consults with Senate approval. Congress may vest appointments of "inferior" officers with the President. Congress may not give itself or its officers the appointment powers.
42
Executive Powers - DOMESTIC
DOMESTIC
Appointment Power
Removal Power
Pardon Power
Veto Power
Executive Order Power
Take Care Clause
43
Executive Powers: Removal Power
Unless removal is limited by statute, the President may remove any executive branch officer without cause.
Congress may not prohibit it but may limit removal if:
(1) Independence from the President is desirable for that particular office, and
(2) the removal is based on good cause.
44
Executive Powers: Pardon Power
The president has the right to grant pardons for those convicted of federal crimes or state offenses but not for impeachment or civil contempt.
45
Executive Powers: Veto Powers
The president can veto acts of Congress but the veto can be overridden by a 2/3 vote of each house. If the President does not veto OR sign the bill within 10 days of receiving it, it becomes law.
46
Pocket Veto
A veto that becomes effective when the president fails to sign a bill after congress had adjourned during the 10 day period (this is an absolute veto and cannot be overridden)
47
Line Item Veto
The president cannot veto parts of a law and approve other parts of the law.
48
Executive Powers: Executive Order Power
The president may make proclamations and executive orders that all courts of the US must recognize. The president's power to enact executive orders depends on whether Congress granted authority, is silent, or has denied authority
If congress express or impliedly granted authority, the presidential powers are at a maximum and her actions are likely valid.
If congress is silent, the President's action will be valid unless it usurps power from another branch.
If Congress denied authority, the President's actions are likely invalid.
49
Executive Powers: Take Care Clause
The president "shall take care that the laws be faithfully executed." The President has no power to refuse to spend appropriated funds when Congress expressly mandates they be spent.
50
Executive Powers - FOREIGN
The president is the Commander in Chief and has the paramount power to represent the US in day to day foreign relations.
FOREIGN EXECUTIVE POWERS
Treaty Power
Executive Agreements
War Power
51
Executive Powers: Treaty Power
The president has the power to enter into treaties with other countries. The treaty becomes effective when it is ratified by 2/3 consent of the Senate.
TREATY CONFLICT OF LAWS
If a treaty conflicts with state law, the state law is invalid
If treaty conflicts with federal law, the last enacted controls.
If treaty conflicts with Constitution, the treaty is invalid.
52
Executive Powers: Executive Agreements
The President may make agreements with foreign heads of state without Senate consent.
EXECUTIVE AGREEMENT CONFLICT OF LAWS
If the executive agreement conflicts with state law, the state law is invalid.
If executive agreement conflicts with federal law, the executive agreement is invalid.
53
Executive Powers: War Power
The president cannot declare war, but can deploy armies.
54
Executive Privilege
The president has the right to keep presidential communications privileged or secret (this includes documents and conversations), EXCEPT for criminal prosecutions when a need for such information is demonstrated.
55
Executive Immunity
The president has absolute immunity from civil suits with regard to any acts performed as part of official presidential responsibilities, EXCEPT for wrongs/actions committed before taking office (Jones v. Clinton)
Immunity is intended only to enable President to perform his "designated functions" without fear of personal liability
56
Executive Impeachment
The president, vice president, and civil officers of the US are subject to impeachment for bribery, treason, and high crimes
Majority Vote in House is necessary for impeachment
Majority Vote in Senate is necessary to convict and remove.
57
Preemption and Supremacy Clause
When state and federal governments pass legislation on the same subject matter, the Constitution provides that the federal law is the supreme law of the land, and any conflicting state law will be deemed invalid by express preemption or implied preemption.
58
Express Preemption
Express Preemption occurs if a federal statute expressly says the federal law is exclusive.
59
Implied Preemption
Implied Preemption occurs either:
(1) If federal and State laws are mutually exclusive
(2) state law impedes the achievement of a federal objective , or
(3) Congress evidences a clear intent to occupy the field, which can be shown by any of the following factors:
- comprehensive federal scheme
- creation of an agency to administer the laws
- historically federally-regulated subject matter, or
- there is a need for uniform national regulation
(famous stars act high uppity)
60
Full and Faith Credit Clause
**only applicable to state governments**
Full faith and credit must be given and recognized by sister states if:
(1) the court had jurisdiction over the subject matter and the parties
(2) the judgement was on the merits, and
(3) the judgement was final
61
Federal Taxation and regulation of state entities
Federal Taxation and regulation of State Entities are valid if:
(1) it applies to both the public and private sector (e.g. minimum wage laws),
and
(2) It applies to both national and state actives
exceptions: civil rights & conditions on federal grants where states have the option to accept or decline the federal grant
62
State Taxation of the Federal Government
State Taxation of the Federal Government is permitted so long as it is:
(1) A non discriminatory and indirect tax
(2) That does not unreasonably burden the federal government's activities or policies (e.g. state tax on federal workers' wages are okay)
63
The Commerce Appraoch
I. Commerce Clause
II. Dormant Commerce Clause
64
Dormant Commerce Clause
Where Congress is silent states are free to regulate interstate commerce so long as they do not:
(1) Directly discriminate against out of state commerce, or
(2) Unduly Burden interstate commerce
65
Direct Discrimination (Commerce Clause Context)
A law that discriminates against out of state interest by preferring local interests is presumed invalid, unless:
(1) it furthers an important non economic interest, and
(2) no reasonable alternative are available,
or
(3) The state prefers its own citizens when acting as a market participant, including buying or selling products, hiring labor or giving subsidies.
66
Undue Burden (Commerce Clause Context)
Even if the law is not discriminatory, the state law may still be invalid if the burden on interstate commerce outweighs the local interest protected.
67
Privileges and Immunities Clause of Article IV
**applicable to state governments only**
(residents v. non residents)
(1) A state cannot discriminate against non-residents (not applicable to aliens or corporations)
(2) based on their fundamental rights involving civil or commercial liberties,
(3) unless it can show:
(i) substantial justification for the differential treatment - The state must show that non residents are the cause of part of the problem to be solved.
(ii) that no less restrictive means are available
68
Privileges or Immunities Clause of the 14th Amendment
**applicable to state governments only**
(residents v. national citizens)
The Fourteenth Amendment provides that states may not deny their citizens the privileges and immunities of national citizenship (e.g. right to interstate travel, vote for national offices, peaceably assemble).
69
Contracts Clause
**applicable to state governments only**
The contracts clause prohibits states from enacting legislation that retroactively interferes with existing contractual relationships. Legislation that impairs a private contract is invalid, unless the law:
(1) serves an important and legitimate interest, and
(2) is a reasonable and narrowly tailored means of promoting that interest.
70
Ex Post Facto Laws
***applicable to state and federal governments***
The government can retroactively change CRIMINAL laws if it:
(1) makes criminal an act that was innocent when done
(2) Prescribes greater punishment that when the act was done, or
(3) Reduces the evidence required to convict a person from when the act was done.
71
Bills of Attainder
***applicable to federal and state governments***
A legislative order to criminally punish someone, without a trial, is prohibited.
72
Taxation
The Commerce Clause grants the federal government the power to authorized or forbid state taxation affecting interstate commerce. If congress has not acted, the state may tax commerce so long as it does not discriminate against interstate commerce.
IF TAX DOESN'T DISCRIMINATE AGAINST INTERSTATE COMMERCE we must assess whether the burden on interstate commerce outweighs the benefit to the state by applying a three part test:
(1) There must be a substantial nexus between the taxpayer and the state,
(2) The tax is fairly apportioned according to a rational formula, and
(3) The tax is fairly related to the services or benefits provided by the state.
Commodities in Interstate transit may not be taxed along the way, except for where they start and where they begin.
Instrumentalities may be taxed if:
(1) they have a taxable situs in the state, and (2) the tax is fairly apportioned (i.e. big users pay more than smaller users)
73
The Thirteenth Amendment
Congress has the power to:
(1) Adopt legislation rationally related to eliminating racial discrimination
(2) Legislate against slavery, involuntary servitude, and remove "the badges and incidences of slaver," and
(3) Regulate government and private action to eliminate racial discrimination
74
The Fourteenth Amendment
Under the 14th Amendment, Section Five's enabling clause, Congress has the power to pass legislation requiring states to provide due process, equal protection, and the privilege and immunities under the law.
75
The Fifteenth Amendment
Under the 15th Amendment, states are barred from denying voting rights on the basis of race, color, or previous condition of servitude.
76
Equal Protection Approach
I. State Action (not federal)
II. Standing (Injury in Fact, Causation, Damages)
III. Rules: Treats CLASSES OF PERSONS differently
IV. Discriminatory Intent (3 ways: facial, application, disproportionate impact)
V. Identify Classification (Fundamental right, Suspect, Quasi or Other)
VI. Apply level of Scrutiny (Strict, Intermediate, or Rational Basis) - write rule for each level break each element into separate headings and discuss burden of proof
77
Equal Protection Clause
The Equal Protection Clause through the 14th Amendment requires state laws to apply equally to everyone; thus it is violated when a state law treats a person or class of persons differently from everyone else.
78
EPC - Discriminatory Intent
The plaintiff must show that there was discriminatory intent in enacting the law by showing either:
(1) The law is discriminatory on its face
(2) It's a facially neutral law but has a discriminatory application, or
(3) It's a facially neutral law that is neutral in application but has a disproportionate impact on a particular class of persons.
*If a law is both facially neutral and neutral in application but has a discriminatory effect, a court must find the law-making body enacted or maintained the law for a discriminatory purpose in order for the law to be valid.
79
EPC - Classification
If a fundamental right or suspect classification is involved, strict scrutiny applies. If a quasi-suspect classification is involved, intermediate scrutiny applies. All other classifications are subject to rational basis review.
Fundamental Rights (Strict Scrutiny Applies)
Suspect Class (Strict Scrutiny Applies)
Quasi-suspect Class (Intermediate Scrutiny Applies)
Other Classes (Rational Basis applies)
80
EP Class - Fundamental Rights
Strict Scrutiny Applies
Right to interstate travel, right to vote, First Amendment rights, Seventh Amendment right to jury trial, Fifth through Fourteenth Amendment right to life, liberty, property, right to privacy (marriage, use of contraceptives, abortion, sexual relations, right to raise one's children in a certain way, right to read obscene material in one's home)
81
EP Class - Suspect Class
Strict Scrutiny Applies
Race, national origin, legal aliens (exception: legal alien's participation in government processes/public policy invokes rational basis), piece of legislation involving national security
82
EP Class - Quasi Suspect Class
Intermediate Scrutiny Applies
Gender (government must show "exceedingly persuasive justification" for the law), legitimacy, education for illegal alien children.
83
EP Class - Other Classes
Rational Basis Applies
Undocumented aliens, age, disability, wealth
84
Strict Scrutiny Test
The government must prove the state action is necessary to achieve a compelling government purpose.
(NGP)
85
Intermediate Scrutiny
The government must prove the state action is substantially related to an important government purpose
(SRI)
86
Rational Basis Review
The challenger must prove the state action is NOT rationally related to a legitimate government purpose.
87
Due Process Clause Approach - Procedural
I. State Action
II. Standing
III. Rule
IV. Deprivation of Life, Liberty, or Property Interest
V. Level of Process Due (balancing test)
88
Due Process Clause
The due process clause of the 5th Amendment provides that the government cannot take away one's life, liberty, or property without due process of law. The Due Process Clause is applicable to the states via the 14th Amendment. A fair process (i.e. notice and hearing) is required for the government to intentionally take away one's life, liberty, or property.
89
Deprivation of Liberty - Due Process
Used for procedural due process
A deprivation of liberty occurs if a person loses significant freedom of action or is denied a freedom provided by the Constitution or statute.
90
Deprivation of Property - Due Process
Used for procedural due process
A deprivation of property occurs if there is a loss of entitlement of property, or the reasonable expectation of continued receipt of a benefit.
91
Three Part Balancing Test - Due Process
Used for procedural due process
In determining whether a notice and hearing are required a court balances:
(1) the importance of the interest to the individual
(2) the value of specific procedural safeguards to that interest; and
(3) the government's interest in fiscal and administrative efficiency.
92
Due Process Clause Approach - Substantive
I. State Action
II. Standing
III. Rule
IV. Fundamental Right/Privacy: Strict Scrutiny
V. Non-Fundamental Right: Rational Basis
93
Substantive Due Process
A violation of substantive due process under the 5th Amendment occurs where the law limits the liberty of all persons to engage in some particular activity. It applies to the states via the 14th Amendment. When a fundamental right is limited, the law or action is evaluated under the strict scrutiny standard. In all other cases, the rational basis standard is applied.
94
Examples of Fundamental Rights
Contraception
Marriage
Parental Rights
Family relations
Right to refuse medical attention
**no longer extends federal protection to abortion b/c Dobbs decision
95
Takings Clause
The Fifth Amendment provides that private property may not be taken for public use without just compensation. The fifth Amendment's Taking Clause is applicable to the states via the 14th Amendment.
Public Use - The public use requirement is satisfied so long as the government acts with reasonable belief that the taking will benefit the public (e.g. health, safety, welfare, economic or aesthetic reasons).
Just compensation - The gov't is required to
(1) pay the property owner just compensation for the property measured by the loss to the owner, not by the gain to the government, or
(2) terminate the regulation and pay the owner for damages incurred while the regulation was in effect.
96
Takings Clause - Actual Taking
An actual taking occurs when there is a government confiscation or physical occupation of the real property that leaves no economically viable use for the property.
97
Takings Clause - Partial Taking
Regulations that merely decrease the value of property may or may not be a taking. A court will determine whether there is an actual or partial taking by considering:
(1) the social goals to be promoted
(2) diminution in value to the owner, and
(3) the owner's reasonable expectations regarding the property
98
Takings Clause - Public Use
The public use requirement is satisfied so long as the government acts with the reasonable belief that the taking will benefit the public (e.g. health, safety, wefare, economic or aesthetic reasons).
99
Takings Clause- Just Compensation
The government is required to:
1) pay the property owner just compensation for the property measured by the loss to the owner, not by the gain to the government, or
2) Terminate the regulation and pay the owner for damages incurred while the regulation was in effect
100
The First Amendment
The first Amendment provides the freedom of religion, assembly, press, and speech (RAPS).
This applies to the states via the Fourteenth Amendment.
101
Freedom of Religion - Establishment Clasuse
The Establishment Clause of the First Amendment provides that the government shall not establish a religion.
To determine whether the Establishment Clause has been violated, courts look first to whether a particular sect was preferred or not by the government.
Sect Preference - Where the government regulation directly prefers one sect over another, the action will be invalid unless it meets the strict scrutiny test.
No Sect Preference -??RB??
102
Free Excercise Clause
The Free Excercise Clause contains both the freedom to believe in any religion and the freedom to conduct one's self in accordance with any religion
Neutral laws of general applicability with no intent to infringe on free exercise but happen to prohibit religious activity are allowed under the first Amendment.
Beliefs - Government Regulations that indirectly impose burdens on people of certain religions will be upheld if the government can show that the regulation is necessary to achieve a compelling state interest. The religious belief must be sincerely held to qualify for protection under the Free Exercise Clause.
Conduct - Government regulations that prohibit certain religious activities will be upheld unless they specifically target religious practices. When specific religious practices are targeted, the government has the burden of proving its actions are necessary to achieve a compelling state interest.
103
Sincerely Held Belief
In testing whether a belief is sincerely held, courts CANNOT consider
1. whether the tenants of the religion are true
2. whether it's a traditional religion, or
3. Whether the tenets of religion are derived from a supreme being
104
Freedom of Association
The First Amendment, applicable to the states via the 14th Amendment, prohibits government from punishing individuals due to membership in a group, UNLESS the government can prove that:
- person actively affiliates with the organization;
- knowing its illegal objectives;
- with the intent to further illegal activities
105
Freedom of Association - Infringements of Rights is oK
Infringement of this right is okay if:
- necessary to achieve compelling government interest (SS); AND
- the state interest is unrelated to suppression of speech.
106
Freedom of Association - Loyalty Oaths
Loyalty Oaths are okay if not overbroad or vague.
"promise not to overthrow the government"
TOO VAGUE
"promise not to advocate unlawful overthrow of the government"
OKAY
107
Freedom of Association - Restrictions on Government Employee Behavior
Restrictions on government employee behavior:
CAN prohibit from taking an active part in political campaigns
CANNOT fire them for belonging to a political party, EXCEPT where relevant ( e.g. working for a political campaign)
108
Freedom of Association - Disclosure of Membership Lists
The government cannot force disclosure of every member in exchange for a government benefit.
109
Free Speech
The first amendment, applicable to states via the 14th Amendment, prohibits government from enacting laws that abridge freedom of speech.
110
Facial Attacks on Free Speech
Courts first look to whether the regulation is a prior restraint, is vague, overbroad, or permits government officials to have unfettered discretion.
Vague - a law will be unconstitutionally vague if a reasonable person could not tell what speech is or is not prohibited
Overbroad - A law is unconstitutionally overbroad if the regulation punishes a substantial amount of protected speech as well as unprotected speech.
Prior Restraint - Prior restraints are regulations that prohibit speech before it occurs. To pass constitutional muster, the government has the burden of showing that the prior restraint is necessary to prevent some special societal harm.
Unfettered Discretion - A regulation that gives government officials unfettered discretion to determine what speech is prohibited and what is not is void on its face. A speaker may challenge the regulation before applying for a permit. However, if there are intelligible standards for the government official, the speaker must apply for and get rejected for a permit before challenging on this ground.
111
Procedural Safeguards for Prior Restraints
Any system in place for a prior restraint must contain certain procedural safeguards, including:
(1) Standards that are narrowly drawn, definite and reasonable
(2) An injunction that must be promptly sought, and
(3) There must be a prompt and final determination of the validity of the restraint.
112
Free Speech: Content-based v. Content Neutral
Whether or not free speech has been violated depends on whether the regulation of speech is content-based on content neutral. If it is content based, courts distinguish between protected and unprotected speech.
113
Free Speech: Content-Based protected speech
A content-based regulation seeks to prohibit the expression of certain subject matter or viewpoint. When such regulations impact protected speech they are subject to strict scrutiny.
114
Unprotected Speech
Courts have determined that the government has a per se compelling interest in prohibiting certain types of speech, now commonly referred to as the "unprotected" categories of speech.
115
Unprotected Speech: Incitement
The government does not protect speech that:
(1) Encourages imminent illegal activity
(2) Where thee is a substantial likelihood of illegal activity
116
Unprotected Speech: Fighting Words
Personally abusive words likely to incite imminent physical retaliation in an average person are not protected
117
Unprotected Speech: Ocscenity
Material is obscene and thus unprotected if:
(1) it appeals to the local prurient interest (local standard)
(2) It is patently offensive under the law (local standard)
(3) Taken as a whole, it lacks serious redeeming scientific, literary, artistic or political value (SLAP)
THE USSC has held that the Constitution protects the private possession of obscene material for private use but it does NOT protect the commercial distribution of obscene material or the use of mail for such distribution
*consider zoning laws that are permissible *
118
Unprotected Speech: Defamation
Constitutional defamation arises when D's statement deals with a matter of public concern, and P must prove two additional elements: (1) falsity, and (2) fault.
Matter of Public Concern: To determine whether a matter is of public concern, the court will look to the content, form, and context of the publication
Falsity: The statement is presumed true so P must show it is false
Fault: The type of fault P must prove depends on whether P is a public or private figure. If P is a private figure, negligence must be shown. If P is a public figure, malice must be shown.
119
Public vs. Private Figure
A public figure is a person who has achieved fame or notoriety or voluntarily assumes a central role in a particular public controversy.
If public figure (malice)
If private figure (negligence)
Malice - Malice is shown when D knew or should have known that the statement was false or acted with reckless disregard as to its falsity
Negligence - P must show that D had a duty to act as a reasonable person under the circumstances, D breached that duty, causing damage to P.
120
Symbolic Speech
The government can regulate conduct that communicates if:
(1) It furthers an important government interest unrelated to suppression of the message, and
(2) If the impact on the communication is no greater than necessary to achieve the government's purpose
121
Commercial Speech
A regulation on commercial speech must:
(1) Directly advance a substantial government interest
(2) In a way that is narrowly tailored to achieve that objective
*Commercial speech that proposes unlawful activity or fraud is not protected*
122
Campaign Contributions
The government regulates campaign contributions as speech and such regulations must be:
(1) closely drawn
(2) to match a sufficiently important governmental interest
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Content Neutral Speech
Content-neutral regulations are those that do not prohibit the subject matter or viewpoint of the speech but prohibit speech or conduct in its entirety based on the time, place, and matter of the expression. Whether the government can regulate the speech or conduct depends on the forum in which it occurs - public forum, limited public forum, or private place.
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Content Neutral Speech: Traditional Public Forum
A traditional public forum is a place where speech is traditionally permitted, such as a public park. The government may regulate speech or conduct in public forums if:
(1) The regulation is content-neutral
(2) Is narrowly tailored
(3) To serve a significant government interest, and
(4) There are alternative channels of communication left open.
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Content Neutral Speech: Designated Public Forum
A designated public forum is one that is not historically open to speech or conduct but has been designated for such a purpose by the government, such as a school. Regulations in these forums must satisfy the same standards as that of a public forum:
(1) The regulation is content-neutral
(2) Is narrowly tailored
(3) To serve a significant government interest, and
(4) There are alternative channels of communication left open.
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Content Neutral Speech: Non Public Forum
Non-public forums are government-owned property that are not open to speech or conduct. Speech and conduct may be regulated if:
(1) The regulations viewpoint neutral
(2) The regulation is reasonably related, and
(3) There is a legitimate government purpose.
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Content Neutral Speech: Private Place
Generally no 1st Amendment right to speech (e.g. a privately owned shopping mall)
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Freedom of the Press: Right to Attend Criminal Trials
The press generally has no greater freedom to speak than the public.
The right to attend criminal trials can be outweighed by overriding government interest and no least restrictive means.
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Freedom of the Press: Testifying at Grand Jury
The press generally has no greater freedom to speak than the public.
Requiring a journalist to appear/testify before the federal or state Grand Jury does NOT abridge freedom of speech or press.
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Freedom of the Press: Broadcast
The press generally has no greater freedom to speak than the public.
Broadcasts may regulate radio/TV because of limited frequencies
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Freedom of the Press: Prior Restraints on Press
The press generally has no greater freedom to speak than the public.
Only exceptionally rare circumstances may government obtain injunction against printing/airing a story
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Freedom of Press: Taxation
The press generally has no greater freedom to speak than the public.
Cannot tax media unfairly
