Con. Law Flashcards
(263 cards)
1
Q
Article III
A
Federal judicial power extends to cases involving: (1) Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws; and (2) Disputes between states, states and foreign citizens, and citizens of diverse citizenship.
2
Q
Power of Judicial Review
A
The Supreme Court may review the constitutionality of acts of other branches of the federal government. It may also review state acts pursuant to the Supremacy Clause.
3
Q
Federal Courts
A
Only Article III courts (i.e. courts established by Congress pursuant to Article III) are the subject of this outline. Congres has power to delineate the original and appellate jurisdiction of these courts but is bound by the standards set forth in Article III as to subject matter and party jurisdiction and the requirements of a case or controversy. Congress can also create courts under Article I (e.g. tax courts). Judges in those courts do not have life tenure as do Article III judges, and Congress may not assign to Article I courts jurisdiction over cases that have traditionally been tried in Article III courts.
4
Q
Original Jurisdiction
A
The Supreme Court has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party, but Congress has given concurrent jurisdiction to lower federal courts in all cases except those between states.
5
Q
Appellate Jurisdiction
A
The Supreme Court has appellate jurisdiction in all cases to which federal power extends, subject to congressional exceptions and regulation. Cases can come to the court by on of two ways: (1) writ of certiorari, or (2) appeal.
6
Q
Writ of Certiorari
A
In most cases, the Supreme Court has complete discretion to hear cases that come to it by certiorari. The cases that come by certiorari are: (1) Cases from state courts where (i) the constitutionality of a federal statute, federal treaty, or state statute is in issue, or (ii) a state statute allegedly violates federal law. (2) All cases from federal courts of appeals.
7
Q
Appeal
A
In rare cases, the Supreme Court must hear cases that come to it by appeal. These cases are confined to decisions by three-judge federal district court panels that grant or deny injunctive relief.
8
Q
Justiciability
A
Whether is case is justiciable (i.e. a federal court may address it) depends on whether there is a case or controversy. In addition to the case or controversy requirement, there are other limitations on federal court jurisdiction.
9
Q
No Advisory Opinion
A
There must be specific present harm or threat of specific future harm. Federal courts can hear actions for declaratory rlief if there is an actual dispute between parties having adverse legal interests. Complainants must show that they have engaged in (or wish to engage in) specific conduct and that the challenged action poses a real and immediate danger to their interests. However, the federal courts will not determine the constitutionality of a statute if it has never been enforced and there is no real fear that it ever will be.
10
Q
Ripeness
A
A plaintiff is not entitled to review of a statute or regulation before its enforcement (i.e. may not obtain a declaratory judgment) unless the plaintiff will suffer some harm or immediate threat of harm. [Ripeness bars consideration of claims before they have developed; mootness bars their consideration after they have been resolved.]
11
Q
Mootness
A
A real controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot. Exception. Controversies capable of repetition, but evading review, are not moot. Examples: Issues concerning events of short duration or a defendant who voluntarily stop the offending practice but is free to resume. Class Actions. A class representative may continue to pursue a class action after the representative_s controversy has become moot if claims of other class members are still viable.
12
Q
Standing
A
A person must have a concrete stake in the outcome of a case. The components of standing are: (1) Injury. Plaintiff must show that she has been or will be directly and personally injured by the allegedly unlawful government action, which affects her rights under the Constitution or federal law. The injury need not be economic. (2) Causation. There must be a causal connection between the injury and the conduct complained of. (3) Redressability. A decision in the litigant_s favor must be capable of eliminating her grievance.
13
Q
Congressional Conferral of Standing
A
Congress has no power to eliminate the case or controversy requirement and, thus, cannot grant standing to someone not having an injury. However, a federal statute may create new interests, injury to which may be sufficient for standing.
14
Q
Standing to Enforce Government Statutes
A
A plaintiff may have standing to enforce a federal statute if she is within the zone of interests Congress meant to protect.
15
Q
Standing to Assert Rights of Others
A
Generally, one cannot assert the constitutional rights of others to obtain standing, but a claimant with standing in her own right may also assert the rights of a third party if: (a) it is difficult for the third party to assert her own rights; or (b) a special relationship exists between the claimant and the third party.
16
Q
Standing of Organizations
A
An organization has standing if (i) there is an injury in fact to members that gives them a right to sue on their own behalf, (ii) the injury is related to the organization_s purpose, and (iii) individual member participation in the lawsuit is not required.
17
Q
No Citizenship Standing
A
People have no standing merely as citizens to claim the government action violates federal law or the Constitution. The injury is too generalized. Compare: a person may have standing to allege that federal action violates the tenth amendment by interfering with powers reserved to the states, as long as the person has a redressable injury in fact.
18
Q
Taxpayer Standing Requisites
A
A taxpayer has standing to litigate her tax bill, but a taxpayer generally has no standing to challenge government expenditures, because the taxpayer_s interest is too remote. Similarly, a taxpayer as such has no standing to challenge tax credits. Exception: Suits attacking congressional spending measures on First Amendment Establishment Clause grounds. [For a taxpayer to have standing, Congress_s spending power must be involved. Thus, for example, there is no standing to challenge federal government grants of surplus property to religious groups or expenditures of general executive branch funds.]
19
Q
Adequate and Independent State Grounds
A
The Supreme Court will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds _ even if federal issues are involved. State law grounds are adequate if they are fully dispositive of the case. They are independent if the decision is not based on federal case interpretations of identical federal provisions. When the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.
20
Q
Abstention
A
Unsettled Question of State Law. A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of law. Pending State Proceedings. Federal courts will not enjoin pending state criminal proceedings (and in some cases pending state administrative or civil proceedings involving an important state interest), except in cases of proven harassment or prosecutions taken in bad faith.
21
Q
Political Questions
A
Political questions will not be decided. These are issues (i) constitutionally committed to another branch of government or (ii) inherently incapable of judicial resolution. Examples: Challenges based on the Republican Form of Government Clause of Article IV; challenges to congressional procedures for ratifying constitutional amendments; whether a person elected to Congress meets the age, residency, or vote requirements; and the president_s conduct of foreign policy. Non-Examples: Legislative apportionment, arbitrary exclusion of a congressional delegate, and production of presidential papers and communications.
22
Q
Eleventh Amendment Limits on Federal Courts
A
The Eleventh Amendment Prohibits federal courts from hearing a private party_s or foreign government_s claim against a state government. What is Barred? The prohibition extends to actions in which the state is named as a party or in which the state will have to pay retroactive damages. Similarly, the Supreme Court has held that the doctrine of sovereign immunity bars suits against a state government in state court, even on federal claims, unless the defendant state consents. What is Not Barred? The prohibition does not extend to actions against local governments, actions by the United States or other states, or proceedings in federal bankruptcy courts.
23
Q
Exceptions to Eleventh Amendment Limitations
A
(1) Certain Actions Against State Officers. The following actions can be brought against state officer in federal court despite the Eleventh Amendment: (i) actions to enjoin an officer from future conduct that violates the Constitution or federal law, even if this will require prospective payment form the state, and (ii) actions for damage against an officer personally. (2) Congress can remove Eleventh Amendment immunity as to actions created under the Fourteenth Amendment, but it must be unmistakably clear that Congress intended to remove the immunity.
24
Q
Necessary and Proper Power
A
Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government. [The Necessary and Proper Clause standing alone cannot support federal law. It must work in conjunction with another federal power. Thus, an answer choice that states that a law is supported by the Necessary and Proper Clause (or is valid under Congress_s power to enact legislation necessary and proper) will be incorrect unless another federal power is linked to it in the question.
25
Taxing Power
Congress has the power to tax, and most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed. However, neither Congress nor the states may tax exports to foreign countries.
26
Spending Power
Congress may spend to provide for the common defense and general welfare. Spending may be for any public purpose. [The federal government can tax and spend for the general welfare; it cannot directly legislate for it. Thus, nonspending regulations cannot be supported by the General Welfare Clause. Also recall that although the power to spend for the general welfare is broad (any public purpose), it is still limited by the bill of Rights and other constitutional provisions.]
27
Commerce Power
Congress has the exclusive power to regulate all foreign and interstate commerce. To be within Congress_s power under the Commerce Clause, a federal law regulating interstate commerce must either: (i) Regulate the channels of interstate commerce; (ii) Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or (iii) Regulate activities that have a substantial effect on interstate commerce.
28
Intrastate Activity
When Congress attempts to regulate intrastate activity under the third prong, above, the Court will uphold the regulation if it is of economic or commercial activity and the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce. However, if the regulated intrastate activity is noncommercial and noneconomic, it cannot be regulated under the Commerce Clause unless Congress can factually show a substantive economic effect on interstate commerce.
29
War and Related Powers
The constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.
30
Economic Regulation
Economic regulation during war and in the postwar period to remedy wartime disruptions has been upheld.
31
Military Courts and Tribunals
Congress is authorized to make rules for the government and regulation of armed forces. (1) Judicial Review. Regular federal (or state) courts have no general power to review court-martial proceedings. (2) Enemy Civilians and Soldiers. Enemy civilians and soldiers may be tried by military courts. However, Congress has no power to deny habeas corpus review to all aliens detained as enemy combatants absent a meaningful substitute. (3) American Soldiers. Military courts have jurisdiction over all offenses committed by person who are members of the armed services both at the time of the offense and when charged. (4) American Civilians. American civilians may be tried by military courts under martial law only if actual warfare forces the federal courts to shut down.
32
Investigatory Power
The power of Congress to investigate is implied. Investigation must be expressly or impliedly authorized by the appropriate congressional house.
33
Property Power
Congress has the power to dispose of and make rules for territories and other properties of the United States. While there is no express limitation on Congress_s power to dispose of property, federal takings (eminent domain) must be for the purpose of effectuating an enumerated power under some other provision of the constitution.
34
No Federal Police Power
Congress has no general police power. However, Congress has police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations (based on its power over the capital and its property power).
35
Bankruptcy Power
Congress_s power to establish uniform rules for bankruptcy is nonexclusive; state may legislate in the field as long as their laws do not conflict with federal law.
36
Postal Power
The postal power is exclusive. Under the postal power, Congress may validly classify and place reasonable restrictions on use of the mails, but may not deprive any citizen or group of citizens of the general mail _privilege._
37
Power Over Citizenship
Congress may establish uniform rules of naturalization. This gives Congress plenary power over aliens. Exclusion of Aliens. Aliens have no right to enter the United States and can be refused entry summarily because of their political beliefs. However, resident aliens are entitled to notice and a hearing before they can be deported. Naturalization and Denaturalization. Congress has exclusive power over naturalization and denaturalization. However, Congress may not take away the citizenship of any citizen _ native-born or naturalized _ without his consent.
38
Admiralty Power
Congress_s admiralty power is plenary and exclusive unless Congress leaves maritime matters to state jurisdiction.
39
Power to Coin Money and Fix Weights and Measures
Congress has the power to coin money and fix standards for weights and measures.
40
Patent/Copyright Power
Congress has the power to control the issuance of patents and copyrights.
41
Delegation of Legislative Power
Legislative power may generally be delegated to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress. Note: Congress may not appoint members of a body with administrative or enforcement powers. [Although you should know that a valid delegation of legislative power requires intelligible standards for the delegate to follow, in applying that rule almost anything will pass for an intelligible standard, and thus no legislative delegation has been invalidated since 1936.]
42
Speech and Debate Clause _ Immunity for Federal Legislators
Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution. Note: Immunity does not cover bribes, speeches outside Congress, or the republication in a press release or newsletter of a defamatory statement originally made in Congress.
43
Congressional Veto of Executive Actions Invalid
A legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism (i.e. passage by both houses of Congress) or presentment (i.e. giving the bill to the President for his signature or veto). Legislative vetoes of executive actions are invalid.
44
Appointment Powers
The executive appoints all ambassadors, other public ministers and consuls, justices of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for, with advice and consent of the Senate. Congress, however, may vest the appointment of inferior officers in the President alone, the courts, or the heads of departments. Congress itself may not appoint members of a body with administrative or enforcement powers.
45
Removal of Appointees
(1) By President. The President can remove high level, purely executive officers (e.g. Cabinet members) at will, without any interference by Congress. However, Congress may provide statutory limitations (e.g. removal only for good cause) on the President_s power to remove all other executive appointees. (2) By Congress. Congress may remove executive officers only through the impeachment process.
46
Pardons
The president may grant pardons for all federal offenses but not for impeachment or civil contempt. The pardon power cannot be limited by Congress.
47
Veto Power
If the President disapproves (vetoes) an act of Congress, the act may still become law if the veto is overridden by a two-thirds vote of each house. Pocket Veto. The President has 10 days to exercise the veto power. If he fails to act within that time, the bill is automatically vetoed if Congress is not in session. If Congress is in session, the bill become law. Line Item Veto Unconstitutional. The veto power allows the President only to approve or reject a bill in toto; he cannot cancel part and approve other parts.
48
Power as Chief Executive
The President_ powers over internal affairs are unsettled. Clearly the president has some power to direct subordinate executive officers, and there is a long history of Presidents issuing executive orders.
49
Overview of Power as Chief Executive
(i) If the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions are likely valid; (ii) If the President acts where Congress is silent, his action will be upheld unless it usurps the power of another governmental branch or prevents another branch from carrying out its tasks; and (iii) If the President acts against the express will of Congress, he has little authority, and his action is likely invalid.
50
No Power to Impound and the Take Care Clause
It follows that the President has not power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent. Some authorities base this result on Article II, Section 3, Clause 4 _ the Take Care Clause _ which provides that the President shall take care that the laws be faithfully executed.
51
War
The President has no power to declare war but may act militarily in actual hostilities against the United States without a congressional declaration of war. However, Congress, under its power to enact a military appropriation every two years, may limit the President.
52
Foreign Relations
The president has paramount power to represent the United States in day-to-day foreign relations.
53
Treaty Power
The President has the power to enter into treaties with the consent of two-thirds of the Senate.
54
Supreme Law
Like other federal law, treaties are the supreme law of the land if they are self executing (i.e. effective without any implementation by Congress). State laws that conflict with a self-executing treaty are invalid. Note that the President generally does not have any independent power to issue a memorandum ordering compliance with a treaty that is not self-executing.
55
Conflict with Federal Laws
A conflict between a congressional act a valid treaty is resolved by order of adoption: the last in time prevails.
56
Conflict with Constitution
Treaties are not co-equal with the Constitution; a treaty may not be inconsistent with the Constitution.
57
Executive Agreements
Executive agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for. They do not required the consent of the Senate. Conflict with State Laws. If a state law conflicts with an executive agreement, the agreement prevails. Conflict with Federal Laws. If an executive agreement conflicts with a federal law, the federal law prevails over the agreement.
58
Executive Privilege
The President has a privilege to keep certain communications secret. National security secrets are given great deference by the courts. Exception: In criminal proceedings, presidential communiqu_s will be available to the prosecution where a need for such information is demonstrated.
59
Executive Immunity
The President has absolute immunity from civil damages based on any action he took within his official responsibilities, but there is no immunity for acts that allegedly occurred before taking office. If presidential aides have exercised discretionary authority in a sensitive area, they may share in the immunity for suits brought concerning the area.
60
Impeachment
The President, Vice President, and all civil officers of the United States are subject to impeachment (the bringing of charges). Grounds include treason, bribery, high crimes, and misdemeanors. A majority vote in the House is necessary to invoke the charges of impeachment, and a two-thirds vote in the Senate is necessary to convict and remove from office.
61
Power of States Expressly Limited
Some powers are exclusively federal because the Constitution limits or prohibits the use of the power by states.
62
Inherent Federal Powers
Other powers are exclusively federal because the nature of the power itself is such that it can be exercised only by the federal government.
63
Exclusive State Powers
All powers not delegated to the federal government are reserved to the states. Note, however, that federal powers are given an expansive interpretation, and thus little state power is exclusive.
64
Conflict Between State and Federal Laws - Who prevails?
If a state law conflicts with federal law, the state law will be invalidated (Supremacy Clause)
65
If a State Prevents Achievement of Federal Objective, what will happen?
If a state or local law prevents achievement of a federal objective, it will be invalidated. This is true even if the state law was enacted for some valid purpose and not to frustrate federal law (e.g., state law providing for suspension of driver's license of persons who fail to pay off an auto accident case judgment, regardless of the person's discharge in bankruptcy, is invalid).
66
What is Preemption?
A valid federal statute or regulation may expressly or impliedly
"occupy" the entire field, thus precluding any state or local regulation even if the state or local regulation is nonconflicting. Express preemption clauses will be narrowly construed. When a federal law does not expressly preempt state law, the courts will try to deduce Congress's intent, but especially in cases involving a field traditional within the power of the states (e.g. regulations involving health, safety, and welfare), courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.
67
Absence of Federal and State Powers
Some powers are denied to both Congress and the states. For example, the qualifications for serving in Congress are set by the Constitution and cannot be altered by Congress or the states.
68
Interstate Compact Clause
The Interstate Compact Clause concerns agreements between states. If the agreement increases the states' power at the expense of federal power, congressional approval is required.
69
Full Faith and Credit Clause
By virtue of the Full Faith and Credit Clause, if a judgment is entitled to full faith and credit, it must be recognized in its sister states. This Clause applies only if: (i) the court that rendered the judgment had jurisdiction over the parties and the subject matter; (ii) the judgment was on the merits; and (iii) the judgment is final.
70
Suits by the United States Against a State
The United States may sue a state without its consent.
71
Suits by a State Against the United States
Public policy forbids a state from suing the United States without its consent. Congress can pass legislation that permits the United States to be sued by a state in given situations.
72
Federal Officer as Defendant
(1) Limitation. A suit against a federal officer is deemed to be brought against the United States itself if the judgment sought would be satisfied out of the public treasury or would interfere with public administration and therefor is not permitted. (2) Specific Relief Against Officer. Specific relief against an officer as an individual will be granted if the officer acted ultra vires (beyond his authority).
73
Suits by One State Against Another
One state may sue another state without the latter_s consent. The Supreme Court has exclusive original jurisdiction.
74
Tax or Regulation Applying to Both State and Private Entities
Congress may subject state and local government activities to regulation or taxation if the law or tax applies to both the public sector and the private sector.
75
Tax or Regulation Applying Only to States
A federal tax or regulation that is not applicable to private businesses and that merely taxes or regulates a purely state or local government activity may be limited by the Tenth Amendment (e.g. requiring states to either regulate radioactive waste or take title to it is beyond Congress_s power). Exceptions: (i) Civil Rights - Congress may restrict state activities that violate civil liberties. (ii) Spending Power Conditions _ Congress may indirectly regulate states through the spending power by imposing conditions on the grant of money.
76
Commandeering State Officials
While not specifically resting on the Tenth Amendment, the Supreme Court has held that Congress may not require state executive officials to enforce federal laws because such a requirement would upset the Constitution_s dual sovereignty structure.
77
State Taxation and Regulation of Federal Government
A state may not directly tax federal instrumentalities without the consent of Congress. However, nondiscriminatory, indirect taxes are permissible if they do not unreasonably burden the federal government. States may not regulate the federal government or its agents while performing their federal functions.
78
Article IV _ Privileges of State Citizenship
The Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents. Note: Corporations and aliens are not protected by this clause. (In contrast, corporations and aliens are protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as the Dormant Commerce Clause).
79
Only Fundamental Rights Protected
Only fundamental rights _ those involving important commercial activities and civil liberties _ are protected.
80
Substantial Justification Exception
The state law may be valid if the state has a substantial justification for the different treatment. In effect, the state must show that nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the problem.
81
Relationship to Commerce Clause
Although the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause may apply different standards and produce different results, they tend to mutually reinforce each other. Consequently, thy both have to be considered in analyzing bar exam questions.
82
Fourteenth Amendment _ Privileges of National Citizenship
States may not deny their citizens the privileges or immunities of national citizenship. Corporations are not protected by this clause.
83
Regulation of Foreign Commerce
With a few minor exceptions, the power to regulate foreign commerce lies exclusively with Congress.
84
Power of Congress to Supersede or Preempt State Regulation
When Congress regulates interstate commerce, conflicting state laws are superseded and even nonconflicting state or local laws in the same field may be preempted.
85
Power of Congress to Permit or Prohibit State Regulation
Congress may permit state regulations that would otherwise violate the Commerce Clause. Likewise, Congress may prohibit state regulations that could otherwise be upheld under the commerce clause. Congress may not, however, permit states to violate civil liberties.
86
State Regulation of Commerce in the Absence of Congressional Action
If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce. To do so, however, it must not discriminate against or unduly burden interstate commerce. If it does, the state or local regulation will violate the commerce clause. [The examiners sometimes use the terms _Dormant Commerce Clause_ and _Negative Commerce Clause._ These are merely descriptive terms that reflect the idea that even where Congress has not acted, the Commerce Clause restricts state regulation of interstate commerce; states may not favor local economic interests or unduly burden interstate commerce.]
87
Discriminatory Regulations
State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid.
88
Exception _ Important State Interest
A discriminatory state or local law may be valid if it furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.
89
Exception _ State as _Market Participant_
A state may prefer its own citizens when acting as a market participant.
90
Favoring Government Performing Traditional Government Functions
The Supreme Court applies a more lenient standard when a law favors government action that involves the performance of a traditional government function (such as waste disposal). Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism.
91
Nondiscriminatory Laws
If a nondiscriminatory state law burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available.
92
State Control of Corporations
A different standard may apply to statutes adopted by the state of incorporation regulating the internal governance of a corporation. Because of the states_ long history of regulating the internal governance of corporations that they create, and because of their strong interest in doing so, even a statute that heavily impacts interstate commerce may be upheld.
93
Intrastate Regulation
State governments have wide latitude over the importation of liquor and the conditions under which it is sold or used within the state. However, regulations that constitute only an economic preference for local liquor manufacturers may violate the Commerce Clause.
94
Interstate Regulation
Liquor in interstate commerce is subject to the Commerce Clause.
95
Federal Power
Congress may regulate economic transactions involving liquor through the federal commerce power or by conditioning grants of money.
96
Discriminatory Taxes
Unless authorized by Congress, state taxes that discriminate against interstate commerce violate the Commerce Clause. Note that these taxes may also violate other constitutional provisions.
97
Nondiscriminatory Taxes
A nondiscriminatory tax will be valid if the following requirements are met: (1) Substantial Nexus; (2) Fair Apportionment; and (3) Fair Relationship;
98
Substantial Nexus
To be valid, the tax must apply to an activity having a substantial nexus to the taxing state; i.e. there must be significant or substantial activity within the taxing state. (Lack of a substantial nexus might also violate the due process requirement of minimum contacts, but substantial nexus requires more in-state connections.)
99
Fair Apportionment
To be valid, the tax must be fairly apportioned according to a rational formula. However, the taxpayer has the burden of proving unfair apportionment. (An unfairly apportioned tax may also violate equal protection.)
100
Fair Relationship
To be valid, the tax must be fairly related to the services or benefits provided by the state.
101
Use Taxes
(1) Permissible in Buyer_s State. Use taxes are imposed on goods purchased outside the state but used within it. They are valid. (2) State May Force Seller to Collect Use Tax. An interstate seller may be required to collect a use tax if the seller has a sufficient nexus with the taxing state. Merely soliciting orders by mail and shipping orders into the state is not sufficient.
102
Sales Taxes
Sales taxes are taxes imposed on the seller of goods for sales consummated within the state. They generally do not discriminate against interstate commerce; rather, the issue usually involves whether there is a substantial nexus between the taxpayer and the taxing state or whether the tax is properly apportioned.
103
Ad Valorem Property Taxes
Ad valorem property taxes are based on the assessed value of the property in question.
104
No Tax on Commodities in Course of Interstate Commerce
Commodities in interstate transit are entirely exempt from state taxation. When Does Interstate Transportation Begin? Interstate transportation begins when the cargo (i) is delivered to an interstate carrier or (ii) actually starts its interstate journey. Effect of _Break_ in Transit? A break in the continuity of transit does not destroy the interstate character of the shipment unless the break was intended to end or suspend the shipment. When Does Interstate Shipment End? The interstate shipment usually ends when the cargo reaches it destination; thereafter the goods are subject to local tax.
105
Tax on Instrumentalities Used to Transport Goods Interstate
The validity of ad valorem property taxes on instrumentalities of commerce depends on (i) whether the instrumentality has acquired _taxable situs_ in the taxing state (i.e., whether there are sufficient contacts with the taxing state to justify the tax) and (ii) whether the value of the instrumentality has been properly apportioned according to the amount of the contacts with each taxing state.
106
Taxable Situs
An instrumentality has a taxable situs in a state if it receives benefits or protection from the state. (There may be more than one taxable situs.)
107
Apportionment Required
A tax apportioned on the value of the instrumentality will be upheld if it fairly approximates the average physical presence of the instrumentality in the taxing state. The taxpayer_s domiciliary state can tax the full value of instrumentalities used in interstate commerce unless the taxpayer can prove that a defined part thereof has acquired a taxable situs elsewhere.
108
Privilege, License, Franchise, or Occupational Taxes
These _doing business_ taxes are generally permitted. Such taxes may be measured by a flat amount or by a proportional rate based on contact with the taxing state. In either case, the basic requirements must be met: (i) the activity taxed must have a substantial nexus to the taxing state; (ii) the tax must be fairly apportioned; (iii) the tax must not discriminate against interstate commerce; and (iv) the tax must fairly relate to services provided by the state.
109
Limited
The Import-Export Clause and the Commerce Clause greatly limit the states_ power to tax foreign commerce.
110
Bill of Rights
By its terms, the Bill of Rights (the first 10 Amendments to the United States Constitution) limits federal power. However, the Fourteenth Amendment Due Process Clause applies almost all provisions of the Bill of Rights to the states. Exceptions: The most notable exceptions to incorporation are: (i) the Fifth Amendment_s prohibition of criminal trials without a grand jury indictment and (ii) the Seventh Amendment_s right to a jury trial in civil cases.
111
Thirteenth Amendment
The Thirteenth Amendment prohibits slavery and involuntary servitude. Under the Thirteenth Amendment's Enabling Clause, Congress can prohibit racially discriminatory action by anyone (the government or a private citizen).
112
Fourteenth and Fifteenth Amendments
The Fourteenth Amendment prevents states from depriving any person of life, liberty, or property without due process and equal protection of law. The Fifteenth Amendment prevents both the federal and state governments from denying a citizen the right to vote on account of race or color. Generally, private conduct is not prohibited by these amendments _ only where some state action is involved. (Purely private conduct may be prohibited, however, on a separate constitutional basis, such as the Commerce Clause.)
113
Scope of Congressional Power Under the Fourteenth Amendment
Section 5 of the Fourteenth Amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment. Under Section 5, Congress may not expand existing constitutional rights or create new ones _ it may only enact laws to prevent or remedy violations of rights already recognized by the courts. To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional to solving the identified violation.
114
Commerce Clause
Under the broadly construed commerce power, Congress may prohibit private racial discrimination in activities that might have a substantial effect on interstate commerce. [Because almost any activity taken cumulatively might have a substantial effect on interstate commerce, the Commerce Clause is an important basis for civil rights laws.]
115
Rights of National Citizenship
Congress has inherent power to protect rights of citizenship (e.g. rights to interstate travel, assemble, and petition Congress for redress).
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State Action Requirement
Because the Constitution generally applies only to governmental action, to show a constitutional violation _state action_ must be involved. Note: This concept applies to government and governmental officers at all levels _ local, state, or federal. Note, however, that state action can be found in actions of seemingly private individuals who (i) perform exclusive public functions or (ii) have significant sate involvement.
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Exclusive Public Functions
Activities that are so traditionally the exclusive prerogative of the state are state action no matter who performs them.
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Significant State Involvement
State action also exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
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The Contact Clause
The Contract Clause prohibits states from enacting any law that retroactively impairs contract rights. It does not affect contracts not yet entered into.
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Not Applicable to Federal Government
There is no comparable clause applicable to the federal government, but flagrant contract impairment would violate the Fifth Amendment Due Process Clause.
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Basic Impairment Rules
(1) Private Contracts _ Intermediate Scrutiny. State legislation that substantially impairs an existing private contract is invalid unless the legislation (i) serves an important and legitimate public interest and (ii) is a reasonable and narrowly tailored means of promoting that interest. (2) Public Contracts _ Stricter Scrutiny. Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the contract will likely receive stricter scrutiny, especially if the legislation reduces the contractual burdens on the state.
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Ex Post Facto Laws
The state or federal government may not pass an ex post facto law (i.e. a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity). A statute retroactively alters a law in a substantially prejudicial manner if it: (i) makes criminal an act that was innocent when done; (ii) prescribes greater punishment for an act than was prescribed for the act when it was done; or (iii) reduces the evidence required to convict a person of a crime from what was required when the act was committed. Note that the Due Process Clauses of the Fifth and Fourteenth Amendments similarly prohibit courts from retroactively interpreting criminal laws in an unexpected way.
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Bills of Attainder
Bills of attainder are legislative acts that inflict punishment on individuals without a judicial trial. Both federal and state governments are prohibited from passing bills of attainder.
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Due Process Considerations
If a retroactive law does not violate the Contracts, Ex Post Facto, or Bill of Attainder Clauses, it still must pass muster under the due Process Clause. If the retroactive law does not relate to a fundamental right, it need only be rationally related to a legitimate government interest.
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Basic Principle
A fair process (e.g. notice and a hearing) is required for a government agency to individually take a person_s life, liberty, or property. Only intentional _ not negligent _ deprivation of these rights violates the Due Process Clause.
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Liberty
The term liberty is no specifically defined. It includes more than just freedom from bodily restraints. A deprivation of liberty occurs if a person: (a) loses significant freedom of action; or (b) is denied a freedom provided by the Constitution or a statute.
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Property
Property includes more than personal belonging and realty, but an abstract need or desire for (or a unilateral expectation of) a benefit is not enough. There must be a legitimate claim or entitlement to the benefit under state or federal law. Examples of property interests include continued attendance at public school, welfare benefits, and (in some cases) government employment.
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What Type of Process is Required?
The type and extent of required procedures are determined by a three-party balancing test that weighs: (i) the importance of the interest to the individual; and (ii) the value of specific procedural safeguards to that interest; against (iii) the government interest in fiscal and administrative efficiency. Presumably, fair procedures and an unbiased decision maker will always be required. Notice and chance to respond before termination o the liberty or property interest are usually required.
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Due Process Rights are Subject to Waiver
As a general rule, due process rights are, presumably, subject to waiver if the waiver is voluntary and made knowingly.
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Access to Courts _ Indigent Plaintiffs
Government fees must be waived when imposition of a fee would deny a fundamental right to the indigent. Thus, for example, a marriage license or divorce court filing fee (privacy rights) or filing fee for candidates for electoral officer (voting rights) must be waived. However, fees can be imposed when nonfundamental rights are involved (e.g. fees for a bankruptcy discharge or review of welfare termination).
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In General
The Fifth Amendment provides that private property may not be taken for public use without just compensation. This rule is applicable to the states via the Fourteenth Amendment. The Takings Clause is not a source of power for taking, but rather a limitation. Taking includes not only physical appropriations but also some government action that damages property or impairs its use.
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Public Use
If the government_s action is rationally related to a legitimate public purpose (e.g. for health, welfare, safety, economic, or aesthetic reasons), the public use requirement is satisfied. Authorized takings by private enterprises are included if they redound to the public advantage.
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Taking vs. Regulation
The crucial issue is whether governmental action is a taking (requiring payment of just compensation) or merely a regulation (not requiring compensation). There is no clear-cut formula for making this determination.
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Actual Appropriation or Physical Invasion
An actual or physical appropriation of property will almost always amount to a taking. Exception: Emergency situations.
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Denial of All Economic Value of Land _ Taking
If a government regulation denies a landowner of all economic use of his land, the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.
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Temporary Denials of All Economic Use
Temporarily denying an owner of all economic use of property does not constitute a per se taking. Instead, the Court will carefully examine and weigh all the relevant circumstances _ the planners_ good faith, the reasonable expectations of the owners, the length of the delay, the delay_s actual effect on the value of the property, etc. _ in order to determine whether fairness and justice require just compensation.
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Decreasing Economic Value
Regulations that merely decrease the value of property do not amount to a taking if they leave an economically viable use for the property. The Court will consider the economic impact of the regulation on the claimant and whether the regulation substantially interferes with distinct, investment backed expectations of the claimant.
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Remedy _ Just compensation
When the government acts under the power of eminent domain to take property for public use, it will condemn the property and pay the owner just compensation (i.e. fair market value of the property taken). When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation. If the court determines that the government action amounted to a taking, the government will be required to either: (i) pay the property owner just compensation for the property; or (ii) terminate the regulation and pay the owner for damages that occurred while the regulation was in effect (i.e. temporary taking damages).
139
Worthless Property
Just compensation is measured by the loss to the owner, not by the gain to the taker. Thus, while property that is worthless to the owner can be the subject of a taking, no compensation need be paid when it is taken.
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Relationship Between Substantive Due Process and Equal Protection
Both substantive due process and equal protection guarantees require the Court to review the substance of a law rather than the procedures employed.
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Substantive Due Process
If a law limits liberty of all persons to engage in some activity, on the MBE it usually is a due process question.
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Equal Protection
If a law treats a person or class of persons differently from others, on the MBE it usually is an equal protection problem.
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Class of One
The Supreme Court has recognized _ at least in relation to property regulation _ that an equal protection claim may be brought not only for discrimination against a group, but also for arbitrary treatment against an individual _ a class of one. However, the Court has held that an at-will government employee who claims to be a victim of arbitrary discrimination cannot use the class of one theory to make an equal protection claim.
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Strict Scrutiny (Maximum Scrutiny)
Regulations affecting fundamental rights (i.e. interstate travel, privacy, voting, and First Amendments rights) or involving suspect classifications (i.e., race, national origin, and alienage) are reviewed under the strict scrutiny standard: the law is upheld if it is necessary to achieve a compelling government purpose. This is a difficult test to meet, and so a law examined under a strict scrutiny standard will often be invalidated _ especially if there is a less burdensome alternative to achieve the government_s goal. In strict scrutiny cases, the government had the burden of proof.
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Intermediate Scrutiny
Regulations involving quasi-suspect classifications (i.e. gender and legitimacy) are reviewed under the intermediate scrutiny standard: The law is upheld if it is substantially related to an important government purpose. In an intermediate scrutiny case, it is unclear who has the burden of proof, although it is likely the government.
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Rational Basis (Minimal Scrutiny)
Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications (most laws) are reviewed under the rational basis standard: The law is upheld if it is rationally related to a legitimate government purpose. This is a very easy standard to meet; therefore the law is usually valid _ unless it is arbitrary or irrational. The person challenging the law has the burden of proof.
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Constitutional Source
The Due Process Clause of the Fifth Amendment applies to the federal government. The Due Process Clause of the Fourteenth Amendment applies to state and local governments. The same tests are applied under each clause.
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Applicable Standards
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.
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A Few Irrebuttable Presumptions May be Invalid
If facts are presumed against a person so that she cannot demonstrate that she is qualified for some important benefit or right, the irrebuttable presumption may be unconstitutional. [The Supreme Court no longer treats irrebuttable presumptions differently from other regulations or classifications. Thus, if an answer choice says invalid because it is an irrebuttable presumption, it is probably wrong. You must consider whether it concerns a fundamental right or suspect or quasi-suspect class, and judge it accordingly.]
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Constitutional Source
The Equal Protection Clause of the Fourteenth Amendment is limited to state action. However, grossly unreasonable discrimination by the federal government violates the due Process Clause of the Fifth Amendment. The Court applies the same tests under either constitutional provision.
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Applicable Standards
If a fundamental right or suspect classification is involved, the strict scrutiny standard is used to evaluate the regulation. If a quasi-suspect classification is involved, intermediate scrutiny is the applicable standard. If the classification does not affect a fundamental right or involve a suspect or quasi-suspect classification, the rational basis standard applies.
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Proving Discriminatory Classification
For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Intent may be shown by: (i) a law that is discriminatory on its face; (ii) a discriminatory application of a facially neutral law; or (iii) a discriminatory motive behind the law. Note: the third way to show intentional discrimination is the most difficult to prove. A discriminatory effect alone is not enough. The legislature_s discriminatory motive must be shown.
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Race and National Origin
Classifications based on race or national origin are judged by a strict scrutiny standard.
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School Integration
Only intentional segregation violates the Constitution. If school systems and attendance zones are established in a racially neutral manner, there is no violation. Thus, there is no violation if housing patterns result in racial imbalance in schools.
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Benign Government Discrimination _ Affirmative Action
Government action _ whether by federal, state, or local governmental bodies _ that favors racial or ethnic minorities is subject to the same strict scrutiny standard as is government action discriminating against racial or ethnic minorities.
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Remedying Past Discrimination
The government has a compelling interest in remedying past discrimination against a racial or ethnic minority. The past discrimination must have been persistent and readily identifiable. A race-based plan cannot be used to remedy general past _societal discrimination._
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Where There Was No Past Discrimination
Even where the government has not engaged in past discrimination, it may have a compelling interest in affirmative action. However, the governmental action must be narrowly tailored to that interest.
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Diversity in Public Education
The Supreme Court has not found diversity itself to be a sufficiently compelling reason to justify placing students in a particular elementary or secondary school on the basis of race. However, the law is different for colleges and universities. Public colleges and universities have claimed that they have a compelling interest in having a diverse student body, and the Supreme Court has deferred to that claim. Admissions officers may consider an applicant_s race in making admissions decisions, but only as a plus among a range of factors. If race o ethnicity is the defining criterion for admission, the admission policy will not be narrowly tailored to achieving the compelling interest of ensuring a diverse student body.
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Discriminatory Legislative Apportionment
Race can be considered in drawing up new voting districts, but it cannot be the predominant factor. If a plaintiff can show that a redistricting plan was drawn up predominantly on the basis of racial considerations, the plan will violate the Equal Protection Clause unless the government can show that the plan is narrowly tailored to serve a compelling state interest.
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Federal Classifications
Because of Congress_s plenary power over aliens, federal alienage classifications are not subject to strict scrutiny. Such classifications are valid if they are not arbitrary and unreasonable.
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State and Local Classifications
Generally, state/local laws on alienage are suspect classifications subject to strict scrutiny. Examples: It is unconstitutional for United States citizenship to be required for welfare, civil service jobs, or to become a lawyer. Exception _ Participation in Self-Government Process: If a law discriminates against alien participation in state government, the rational basis standard is applied. Also, the rational basis standard is used for state and local laws limiting certain non-elective offices involving important public policy.
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Undocumented Aliens
Undocumented (_illegal_) aliens are not a suspect classification. Thus, state laws regarding them are subject to a rational basis standard. (However, denial of free public education to undocumented alien children is invalid, and more than a simple rational basis standard was used by the court).
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Gender Classifications
Gender classifications are reviewed under the intermediate scrutiny standard: they must be substantially related to an important government purpose. The government bears the burden of showing an _exceedingly persuasive justification_ for the discrimination.
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Women
Intentional discrimination against women generally is invalid. Classifications benefitting women that are designed to remedy past discrimination generally are valid.
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Intentional Discrimination Against Men
Intentional discrimination against men is generally invalid. However, certain laws have been found to be substantially related to an important government interest (e.g., statutory rape laws, all-male draft).
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Legitimacy Classifications
Legitimacy classifications are also reviewed under the intermediate scrutiny standard. They must be substantially related to an important government interest. Discriminatory regulations intended to punish illegitimate children are invalid. Example: A law allowing only legitimate children to recover from their fathers_ estates are invalid. But note: a law allowing illegitimate children to recover from their fathers_ estates only if parenthood is established before the father_s death is valid.
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Other Classifications
All other classifications are evaluated under the rational basis standard. These include age, disability, and wealth classifications.
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Generally
Certain fundamental rights are protected under the Constitution. If they are denied to everyone, it is a substantive due process problem. If they are denied to some individuals but not others, it is an equal protection problem. The applicable standard in either case is strict scrutiny. Thus, government action must be necessary to protect a compelling governmental interest. (Remember that there must be no less restrictive means to achieve this goal).
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Right of Privacy
Various privacy rights include marriage, sexual relations, abortion, and childrearing are fundamental rights. Regulations affecting these rights are reviewed under the strict scrutiny standard.
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Marriage
The right of a male and female to enter into (and, probably, to dissolve) the marriage relationship is a fundamental right. However, a statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests.
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Use of Contraceptives
A state cannot prohibit distribution of nonmedical contraceptives to adults.
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Abortion
The right to privacy includes the right of a woman to have an abortion without interference from the state under certain circumstances. However, normal strict scrutiny analysis cannot be applied because the state has two compelling interests here that often compete: protecting the woman_s health and protecting the fetus that may become a child. In its latest abortion rights approach, the Supreme Court has adopted two basic rules: a pre-viability rule and a post-viability rule.
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Pre-Viability Rule
Before viability (a realistic possibility that the fetus could survive outside the womb), a state may adopt a regulation protecting the mother_s health and the life of the fetus if the regulation does not place an undue burden on or substantial obstacle to the woman_s right to obtain an abortion.
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Post-Viability Rule
Once the fetus is viable, the state_s interest in the fetus_s life can override the woman_s right to obtain an abortion, but the state cannot prohibit the woman from obtaining an abortion if it is necessary to protect the woman_s health or safety.
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Remedy
When a court is faced with a statute restricting access to abortions that may be applied in an unconstitutional manner so as to harm the mother_s health, it should not invalidate the statue in its entirety if the statute has valid applications. Instead, the court should attempt to fashion narrower declaratory and injunctive relief against the unconstitutional application.
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Financing Abortions
The government has no obligation to pay for abortions.
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Obscene Reading Material
The right to privacy includes freedom to read obscene material in one_s home (except for child pornography), but not the right to sell, purchase, or transport such material.
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Keeping Extended Family Together
Zoning regulations that prevent family members _ even extended ones _ from living together are invalid. However, this right does not extend to unrelated people.
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Rights of Parents
Parents have a fundamental right to make decisions concerning the care, custody, and control of their children.
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Intimate Sexual Conduct
The state has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is not commercial in nature.
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Collection and Distribution of Personal Data
The state may reasonably gather and distribute information about its citizens. Thus there is no privacy right to prohibit the accumulation of names and addresses of patients for whom dangerous drugs are prescribed.
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Right to Vote
The right to vote is a fundamental right. Thus, restrictions on that right, other than on the basis of residence, age, and citizenship, are invalid unless they can pas strict scrutiny.
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Restrictions on Right to Vote
(i) Residency Requirements. Reasonable time periods for residency are valid. Note that Congress may override state residency requirements in presidential elections and substitute its own. (ii) Property Ownership. Conditioning the right to vote or hold office on ownership of property is usually invalid. Exception: special purpose elections. (iii) Poll Taxes. Poll taxes are unconstitutional. (iv) Primary Elections. States may require early registration to vote in primaries. However, states cannot prohibit political parties from opening primary elections to anyone, whether or not registered with the party.
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Dilution of Right to Vote
The one person, one vote principle applies whenever any level of government, state or local, decides to select representatives to a governmental body by popular election from individual districts.
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Congressional Elections
States must use almost exact mathematical equality when creating congressional districts within the state. This is not true of Congress, however, when it apportions representatives among the states; Congress_s good faith method for apportioning representatives commands more deference and is not subject to a precise mathematical formula, as are state plans.
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State and Local Elections
For state and local elections, the variance in the number of persons included within districts must not be more than a few percentage points.
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Exception _ Appointed Officials and Officials Elected At Large
The apportionment requirement is inapplicable to officials who are appointed or elected at large.
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Exception _ Special Purpose Election
The one person one vote principle does not apply to elections of officials who do not exercise normal governmental authority but rather deal with matters of special interest in the community.
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Gerrymandering
Race (and presumably other suspect classifications) cannot be the predominant factor in drawing the boundaries of voting districts unless the district plan can pass muster under strict scrutiny.
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Candidate Qualifications
(1) Fee Must Not Preclude Indigents. States may not charge candidates a fee that results in making it impossible for indigents to run for office. (2) Restrictions on Ability to Be a Candidate. A ballot access regulation must be a reasonable, nondiscriminatory means of promoting important states interests. A state may require candidates to show reasonable support to have their names placed on the ballot.
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Campaign Funding
The government may allocate more public funds to the two _major_ parties than to _minor_ parties for political campaigns.
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Interstate Travel
An individual has a fundamental right to migrate from state to state and to be treated equally after moving into a new state. However, not every restriction on the right to cross state lines is an impairment of the right to travel. A problem arises when a state imposes a minimum durational residency requirement for receiving its benefits or otherwise dispenses state benefits based on the length of time a person has resided in the state. It is not clear whether the court always reviews these regulations under the strict scrutiny standard.
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Right to International Travel
International travel is not a fundamental right. It is, however, protected from arbitrary federal interference by the Fifth Amendment Due Process Clause; the rational basis standard applies.
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First Amendment Generally
The First Amendment prohibits Congress from establishing a religion or interfering with the free exercise of religion, abridging the freedoms of speech and press, or interfering with the right of assembly. These prohibitions are applicable to the states through the Fourteenth Amendment.
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General Principles
Whenever the government seeks to regulate the freedoms of speech or assembly, the court will weigh the great importance of speech and assembly rights against the interests or policies sought to be served by the regulation.
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Government Speech
The Free Speech Clause restricts government regulation of private speech; it does not require the government to aid private speech nor restrict the government from expressing its views. The government generally is free to voice its opinions and to fund private speech that furthers its views while refusing to fund other private speech, absent some other constitutional limitation. Because government speech does not implicate the First Amendment, it is not subject to the various levels of scrutiny that apply to government regulation of private speech. Generally, government speech and government funding of speech will be upheld if rationally related to a legitimate state interest.
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Public Monuments
A city_s placement of a permanent monument in a public park is government speech and thus is not subject to Free Speech Clause scrutiny, even if the monument is privately donated.
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Government Funding of Private Speech
When the government chooses to fund private messages, it generally must do so on a viewpoint-neutral basis. Exception: Funding of the Arts _ from a financial standpoint, the government cannot funds all artists, and choosing among those it will fund and those it will not inevitably must be based on the content of the art.
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Content vs. Conduct
Speech and assembly regulations can generally be categorized as either content regulations (regulations forbidding communication of specific ideas) or conduct regulations (regulations of the conduct associated with speaking, such as the time of the speech, sound lever, etc.). Different standards are used to assess the validity of a regulation within each category.
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Content
It is presumptively unconstitutional to place burdens on speech because of its content except for certain categories of speech (obscenity, defamation, etc.). Content-neutral speech regulations generally are subject to intermediate scrutiny; i.e. they must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests.
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Conduct
Conduct related to speech can be regulated by content-neutral time, place, and manner restrictions.
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Overbroad Regulations Invalid
If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid (i.e. it may not be enforced against anyone _ not even a person engaging in activity that is not constitutionally protected) unless a court has limited construction of the regulation so as to remove the threat to constitutionally protected expression. If the regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.
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Void for Vagueness Doctrine
If a criminal law or regulation fails to give persons reasonable notice of that is prohibited, it may violate the Due Process Clause. This principle is applied somewhat strictly when First Amendment Activity is involved.
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Cannot Give Officials Unfettered Discretion
A regulation cannot give officials broad discretion over speech issues; there must be defined standards for applying the law. If a statute gives licensing officials unbridled discretion, it is void on its face and speakers need not even apply for a permit. It the licensing statute includes standards, a speaker may not ignore the statute; he must seek a permit and if it is denied, he can challenge the denial or First Amendment Grounds.
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Scope of Speech
The freedom to speak includes the freedom not to speak. Thus, the government generally cannot require people to salute the flag or display other messages with which they disagree. The freedom can extend to symbolic acts undertaken to communicate an idea, although the government may regulate such conduct if it has an important interest in the regulation independent of the speech aspects of the conduct and the incidental burden on speech is no greater than necessary.
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Mandatory Financial Support
Although the government may not compel a person to express a message, it may tax people and use the revenue to express a message with which they disagree. However, it appears that people cannot be compelled to subsidize private message with which they agree. Exception _ University Activity Fees _ The government can require public university students to pay a student activity fee even if the fee is used to support political and ideological speech by student groups whose believes are offensive to the student, as long as the program is viewpoint neutral.
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Regulation of Conduct
The government has power to regulate the conduct associated with speech and assembly, although the breadth of this power depends on whether the forum involved is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.
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Public Forums and Designated Public Forums
Public property that has historically been open to speech-related activities is called a public forum. Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy, is called a designated public forum. The government may regulate speech in public forums and designated public forums with reasonable time, place, and manner regulations that: (i) are content-neutral; (ii) are narrowly tailored to serve an important government interest; and (iii) leave open alternative channels of communication. Note: Almost every legitimate governmental interest satisfies the significant/important standard.
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Injunctions
Injunctions against speech in public forums are treated differently from generally applicable laws. If the injunction is content-based, it must be necessary to achieve a compelling interest. If the injunction is content-neutral, it must burden no more speech than is necessary to achieve an important government interest.
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Limited Public Forums and Nonpublic Forums
Speech and assembly can be more broadly regulated in limited public forums and nonpublic forums. The government can regulate speech in such a forum to reserve the forum for its intended use. In such locations, regulations are valid if they are (a) viewpoint neutral; and (b) reasonably related to a legitimate government purpose.
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Regulation Based on Content
To be valid, restrictions on the content of speech must be necessary to achieve a compelling government interest. The government has a compelling interest in certain categories of speech, which are deemed unprotected speech under the First Amendment.
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Inciting Imminent Lawless Action
Speech can be burdened if it creates a clear and present danger of imminent lawless action. It must be shown that imminent illegal conduct is likely and that the speaker intended to cause it.
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Fighting Words
True threats are not protected by the First Amendment. Speech also can be burdened if it constitutes fighting words (personally abusive words that are likely to incite immediate physical retaliation in an average person). Words that are merely annoying are not sufficient. Note also that the Supreme Court will not tolerate fighting words statutes that are designed to punish only certain viewpoints. [While this classification of punishable speech exits in theory, as a practical matter, statutes that attempt to punish fighting words are usually vague or overbroad. Thus, on the examination, they generally should be regarded as invalid. ]
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Obscenity
Obscene speech is not protected. Speech is obscene if it describes or depicts sexual conduct that, taken as a while, by the average person: (1) Appeals to the prurient interest in sex, using a community standard; (2) Is patently offensive and an affront to contemporary community standards; and (3) Lacks serious value (literary, artistic, political, or scientific), using a national reasonable person standard.
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Standard May Be Different for Minors
The state can adopt a specific definition of obscenity applying to materials sold to minor, even though the material might not be obscene in terms of an adult audience. However, government may not prohibit the sale or distribution f material to adults merely because it is inappropriate for children.
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Pictures of Minors
To protect minors from exploitation, the government may prohibit the sale or distribution of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children.
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Simulated Pictures of Minors
The government may not bar visual material that only appears to depict minors engaged in sexually explicit conduct, but that in fact uses young-looking adults or computer generated images.
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Land Use Regulations
A land use (or zoning) regulation may limit the location or size of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such business. However, regulations may not ban such establishments altogether.
219
Liquor Regulation
Under the Twenty-First Amendment, states have broad power to regulate intoxicating beverages. Laws relating to this power that affect free speech rights generally will not be set aside unless they are irrational.
220
Private Possession of Obscene Material
Private possession of obscene material in the home cannot be punished (except for possession of child pornography). However, the protection does not extend outside the home.
221
Defamatory Speech
Defamatory statements can be burdened. If the defamatory statement is about a public official or public figure or involves a public concern, the First Amendment requires the plaintiff to prove all the elements of defamation plus falsity and some degree of fault. An action for intentional infliction f emotional distress is similarly limited by the First Amendment when public figures or matters of public concern are in issue.
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Select Commercial Speech
As a general rule, commercial speech is afforded First Amendment protecition if it is truthful. However, commercial speech that proposes unlawful activity or that is misleading or fraudulent may be burdened. Any other regulation of commercial speech will be upheld only if it: (i) serves a substantial government interest; (ii) directly advances that interest; and (iii) is narrowly tailored to serve that interest. [Narrowly tailored does not require the least restrictive means of accomplishing the legislative goal; there just must be a reasonable fit between the goal and the means chosen.]
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Prior Restraints
Prior restraints prevent speech before it occurs, rather than punish it afterwards. They are rarely allowed. The government has a heavy burden in justifying a prior restraint; it must show that some special societal harm will otherwise result.
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Procedural Safeguards
To be valid, a system for prior restraint must provide the following safeguards: (i) the standards must be narrowly drawn, reasonable, and definite; (ii) injunction must promptly be sought; and (iii) there must be prompt and final determination of the validity of the restraint. A number of other cases, especially in the area of movie censorship, require that the government bear the burden of proving that the speech involved is unprotected.
225
Obscenity Cases
Seizures of Books and Films. Seizures of a single book or film may be made with a warrant based on probable cause, although if the item is available for sale to the public, a police officer ay purchase a book or film to use as evidence without a warrant. Large-scale seizures must be preceded by a full scale adversary hearing and a judicial determination of obscenity. Movie Censorship. The court has found that time delays incident to censorship are less burdensome on movies than on other forms of expression. Thus the court allows the government to establish censorship boards to screen movies before they are release, ad long as the procedural safeguards are followed.
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Freedom of the Press Generally
Generally, the press has no greater First Amendment freedom than does a private citizen.
227
Publication of Truthful Information
Generally the press has a right to publish truthful information regarding a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further an interest of the highest order.
228
Access to Trials
The First Amendment guarantees the public and press a right to attend criminal (and probably civil) trials. However, the right may be outweighed by an overriding interest stated in the trial judge_s findings. The right includes the right to be present at voir dire and at other pretrial proceedings, unless the judge makes specific findings that closure was narrowly tailored to preserve a higher value.
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Requiring Press to Testify Before Grand Jury
Members of the press may be required to testify before grand juries.
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Interviewing Prisoners
The First Amendment does not give journalists a right to interview specified prisoners of their choice or to inspect prison grounds.
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Business Regulation or Tax
The press and broadcasting companies can be subjected to general business regulations or taxes but cannot be targeted for special regulation or taxes. A tax or regulation impacting on the press or a subpart of the press cannot be based on the content of a publication absent a compelling justification.
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Broadcasting Regulations
Radio and television broadcasting may be more closely regulated than the press. The paramount right is the right of viewers and listeners to receive information of public concern rather than the right of broadcasters to broadcast what they please. This paramount right allows government to forbid newspaper ownership of radio stations and to prohibit indecent speech over the airwaves.
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Fairness Doctrine
The First Amendment does not require broadcasters to accept political advertisements. However, a radio station may constitutionally be required to offer free broadcasting time to certain individuals.
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Cable Television Regulation
While generally regulations of newspapers are subject to strict scrutiny, and regulations of broadcast media are subject to less critical review, regulations of cable television transmissions generally are subject to review by a standard somewhere between these two. However, content-based restrictions are subject to strict scrutiny.
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Internet Regulation
The strict standard of First Amendment scrutiny, rather than the more relaxed standard applicable to broadcast regulation, applies to regulation of the internet.
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Nature of the Right
Although the freedom of association is not mentioned explicitly in the Constitution, it is clearly implied from the rights that are explicitly noted. Pursuant to this freedom, the government may neither prohibit politically unpopular groups nor unduly burden a person_s right to belong to such groups. But note: this right is not absolute. Infringement of the right would be justified by a compelling government interest, unrelated to the suppression of ideas, it the infringements are the least restrictive means of protecting the government interest involved.
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Electoral Process
Laws regulating elections might impact on the First Amendment freedoms of speech, assembly, and association. The Court uses a balancing test to determine whether a regulation of the electoral process is valid: if the restriction on First Amendment activity is seer, strict scrutiny is applied, but if the restriction is reasonable and nondiscriminatory, it generally will be upheld.
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Limits on Contributions
A statute limiting election campaign contributions is subject to intermediate scrutiny _ it must be closely drawn to match a sufficiently important interest. To prevent corruption or the appearance thereof, laws may limit the amount of money that a person, group, or corporation can contribute to a political candidate. However, the government may not limit the amount of money that may be spent to support or oppose a ballot referendum, and there is an exception for groups of corporations formed specifically to participate in the political debate.
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Limits on Expenditures
Laws may not limit the amount that a candidate spend on a political campaign. Neither may the government limit the amount that a person spends to get a candidate elected, as long as the expenditures are not contributed directly to the candidate nor coordinated with those of the candidate _ i.e. the expenditures must be independent of the candidate and not disguised contributions.
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Compare _ Regulations of Core Political Speech
Regulation of core political speech, rather than regulation of the process surrounding an election, will be upheld only if it passes muster under strict scrutiny. An ad concerning a political issue will be considered protected core political speech unless it is susceptible of no reasonable interpretation other than one as an appeal to vote for or against a particular candidate.
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Restraints on Conduct
If a government employer seeks to fire an employee (or terminate a relationship with an independent contractor) for speech-related conduct, one of two tests will apply depending on whether the speech involved a matter of public concern. If a matter of public concern is involved, courts must carefully balance the employee_s rights as a citizen to comment on a matter of public concern against the government_s interest as an employer in efficient performance of public service. If the speech did not involve a matter of public concern, the courts should give a wide degree of deference to the government employer_s judgment concerning whether the speech was disruptive.
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Official Duty Exception
A government employer may punish a public employee_s speech whenever the speech is made pursuant to the employee_s official duties, even if the speech touches on a matter of public concern.
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Participation in Political Campaigns
The federal government may prohibit federal executive branch employees from taking an active party in political campaigns.
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Bans on Receiving Honoraria
A provision banning government employees from accepting an honorarium for making speeches, writing articles, or making appearances was held to violate the First Amendment when applied to rank and file employees. Such a rule deters speech within a broad category of expression by a massive number of potential speakers and, thus, can be justified only if the government can show that the employees_ and their potential audiences_ rights are outweighed by the necessary impact the speech would have on actual operation of the government.
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Patronage
A public employee may not be hired, fired, promoted, transferred, etc. based on party affiliation except as to policymaking positions, where party affiliation is relevant.
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Loyalty Oaths
The government may require employees to take loyalty oaths, as long as the oaths are not overbroad or vague. Overbreadth. An oath cannot prohibit membership in the Communist Party or require abstention from advocating overthrow of the government as an abstract doctrine. Vagueness. An oath requiring employees to support the Constitution and to oppose the unlawful overthrow of the government is valid; but an oath requiring public employees to support the flag is invalid (because refusal to salute the flag on religious grounds might conflict with the oath).
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Disclosure of Associations
The government may not force disclosure of every organization membership in exchange for a government employment or other benefit; it may only inquire into those activities that are relevant to the employment or benefit sought. Even here, however, a person can exercise his Fifth Amendment right to remain silent if the disclosure would be incriminating.
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School Sponsorship of Extracurricular Clubs
The Supreme Court has held that the compelling interest test does not apply to infringement cases involving public school sponsorship of extracurricular clubs; instead, the test used in limited public-forum-speech cases applies _ sponsorship of associations can be subject to regulation that is viewpoint neutral and reasonably related to a legitimate government interest.
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Constitutional Provision
The First Amendment prohibition on establishment of religion and its protection of the free exercise of religion is applicable to the states through the Fourteenth Amendment.
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Free Exercise Clause
The Free Exercise Clause prohibits government from punishing someone on the basis of her religious beliefs. For example, the clause forbids: (i) state governments from requiring office holders or employees to take a religious oath; (ii) states from excluding clerics from holding public office; and (iii) courts from declaring a religious belief to be false. The Supreme Court has not defined what constitutes religious belief, but it is clear that religious belief need not come from an organized religion or involve a supreme being. The Court has never held an asserted religious belief to be not religious for First Amendment purposes.
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General Conduct Regulation
The Free Exercise Clause cannot be used to challenge government regulation unless the regulation was specifically designed to interfere with religion. Moreover, the Free Exercise Clause does not require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct.
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Exception _ Unemployment Compensation Cases
A state cannot refuse to grant unemployment benefits to persons who quit their jobs for religious reasons. The worker need not even belong to a formal religious organization in such a situation, as long as the belief is sincere.
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Exception _ Right of Amish Not to Educate Children
The Supreme Court has granted the Amish an exemption form a law requiring compulsory school attendance until age 16, based on the Free Exercise Clause and the fundamental right to educate one_s children.
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Free Exercise Clause Summarized
[To summarize, the Free Exercise Clause prohibits government interference with religious beliefs, but it generally does not prohibit regulation of conduct. If the governmental action regulates general conduct _ including religious conduct _ it is valid. The only exceptions to this rule are those pertaining to unemployment compensation and the education of Amish children.
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Establishment Clause
The Establishment Clause prohibits laws respecting the establishment of religion.
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Sect Preference
If government action includes a preference for one religious sect over another, it is invalid unless it is narrowly tailored to promote a compelling interest.
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No Sect Preference _ Lemon Test
If government action does not involve sect preference, it is valid under the Establishment Clause if it: (i) has a secular purpose; (ii) has a primary effect that neither advances nor inhibits religion; and (iii) Does not produce excessive government entanglement with religion.
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Cases Unconnected to Financial Aid or Education
A good rule of thumb here is that a law favoring or burdening religion or a specific religious group will be invalid, but a law favoring or burdening a large segment of society that happens to include religious groups will be upheld.
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Cases Involving Financial Benefits to Religious institutions
The Supreme Court applies the lemon test with greater strictness when government financial aid is going to a religiously affiliated grade or high school than it does when the aid is going to another type of religious institution.
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Recipient-Based Aid
The government may give aid in the form of financial assistance to a defined class of persons as long as the class is defined without reference to religion or religious criteria. Such a program is valid even if most of the people receiving the aid use it to attend a religiously affiliated school
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Aid to College and Hospitals
Aid to colleges or hospitals will be upheld as long as the government program requires the aid to be used for nonreligious purposes and the recipient so agrees.
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Aid to Grade Schools and High Schools
Aid to religious grade schools and high schools is usually found to have a secular purpose, but may fail the other parts of the test. For example, if the program has detailed administrative regulations to prevent the effect of advancement of religion, the law will be stricken for excessive government entanglement.
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Religious Activities in Public Schools
School-sponsored religious activity is invalid, but school accommodation of religion is valid. Moreover, if a public school allows members of the public and private organizations to use school property when classes are not in session, it cannot deny a religious organization permission to use the property for meeting merely because religious topics will be discussed.
