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Flashcards in Constitutional Law Deck (145):

Judicial Power

Source: Article 3
Limit: Actual cases and controversies
Doctrine: Justiciability, whether lawsuit is capable of judicial resolution as a case or controversy, depends on:
- What it requests (no advisory opinions)
- When it is brought (ripe and not moot) and
- Who brings it (someone with standing)
Additional doctrines limit federal court review: political question, sovereign immunity and abstention.
Special Rules govern Supreme Court Review


Advisory Opinions

Federal Courts may not render advisory opinions which lack,
- An actual dispute between adverse parties
- Any legally binding effect between the parties on the parties
Declaratory Judgments are not advisory opinions



too early
Federal courts may only decide controversies that are ripe for judicial review
Application: a request for pre enforcement review of law are not ripe unless:
- Substantial hardship in absence of review (the more the better) and issues on the record are fit for review (the more legal than factual the better



Live if
- For the case of injunctive and declaratory relief challenged law or conduct continues to injure
- For damages plaintiff not made whole from injury
Exceptions: though injury has passed, not moot if:
- Injury is capable of repetition yet evades review because of inherently limited duration
- Defendant voluntarily stops challenged activity but may restart at will or
- In class actions, one plaintiff suffers ongoing Injury



Plaintiff must have standing to sue which consists of:
A. Injury
B. Causation
C. Redressability


Injury/ Standing

What: almost any harm counts
Ex: Physical, economic, environmental, loss of constitutional or statutory rights
Not: Ideological objections or generalized grievances as citizen or taxpayer
- Citizen may not sue to force government to obey laws
- Taxpayer may not sue over how government spends tax reviews
- Taxpayer challenge to his or her own tax liability
- Congressional spending in violation of establishment clause
A. Not executive spending
B. Not tax credits for contributions for private (including parochial) tuition


When must injury occur for standing?

injury must have occurred or will imminently occur
- Injunctive or declaratory relief: must show likelihood of future harm


Who must be injured for standing?

injury must be suffered personally by plaintiff rather than those not before court
- No third party standing


Third Party Standing Exceptions

Close Relationship:
1. Plaintiff Injured
2. Third Party unable or unlikely to sue
3. Plaintiff can adequately represent third party
Organizations (on behalf of members):
1. Members have standing
2. Members injury related to purpose of organization
3. Members participation not required (eg not seeking individualized damages)
Free Speech Overbreadth (party whose speech can be censored on behalf of those whose speech cannot):
1. Substantial overbreadth in terms of laws legitimate to illegitimate sweep
2. Not Commercial Speech


Legislative Standing

legislators may challenge acts that injure them personally, rather than the legislature generally


Causation for Standing

Plaintiff must show that injury is fairly traceable to defendant
Ex: no causation where parents of black public school children challenged IRS failure to deny tax breaks to discriminatory private schools, claiming breaks caused public schools to be less integrated


Redressability for Standing

Plaintiff must show that favorable court decision can remedy the harm (ie through money damages or an injunction)
Ex: No redressability where mother challenged states failure to prosecute for nonpayment of child support, claiming loss of child support from lack or prosecution


Political Question Doctrine

Federal Courts will not decide political questions
- Committed by the constitution to the political branches of government or
- Incapable of or inappropriate for judicial resolution


Examples of Political Questions

1. Guarantee Clause (article IV, Section 4): challenges to a states government as not a “republican form of government”
2. Foreign Affairs: Challenges to President’s conduct of foreign policy and command decisions
3. Impeachment Process: Challenges to procedures used by senate to remove officials
4. Partisan Gerrymandering: Challenges to drawing election districts on a partisan basis
5. Elections and qualifications of members of congress
6. Seating of delegates at national political convention


Sovereign Immunity

11th amendment/ Federalism

State as defendant where lawsuit is federal and state courts (and agencies)

State as defendant and
Lawsuit involves-
1. Waiver (Ex: some have waived under tort claim acts)
2. Plaintiff- other states or feds
3. Bankruptcy proceedings
4. Clear abrogation by congress under 14 amendment powers to prevent discrimination

Not barred:
Where Defendant is State Officials and
Lawsuit involves
1. Injunctive Relief
2. Money damages from own pocket
Defendant- Local government
Lawsuit: Any



1. Federal courts may decline to decide a federal constitutional claim that turns on an unsettled question of state law
Ex: Equal protection claim that depends on meaning of ambiguous new state immigration law
2. Federal courts generally may not enjoin pending state judicial or administrative proceedings
Ex: criminal trial allegedly in violation of Due process


Supreme Court Review

Final Judgment Rule: Supreme Court only hears a case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or (in special statutory situations) a three-judge district court

Independent and Adequate State Grounds: Supreme Court will not review a federal question if the state court decision rests on an independent and adequate state law ground
- Independent and Adequate (separate and sufficient) State Grounds exists if outcome would be the same regardless of how the federal question is decided
- If it would be decided the same as state, there is no reason for supreme court to review


Legislative Power

Source: Article 1 of constitution
Limit: Enumerated Powers
- Unlike states, congress has no general police power to pass laws
Exceptions: federal land, Indian reservations, DC


Necessary and Proper Clause

Not a basis of legislative power
Allows congress to choose any rational means to carry out an enumerated power, as long as means not prohibited by Constitution
Ex: Article I gives Congress power to raise and support armies but not to hold a bake sale. Nonetheless Congress may choose the means of a bake sale to help raise and support armies


Enumerated Powers

Ex: Citizenship, bankruptcy, federal property, patents and copyright, post offices, coning money, territories and DC, declaring war, raising and supporting armies, providing and maintaining navy
1. Taxing and Spending Powers
2. Commerce Power


Enumerated Powers/ Taxing and Spending Powers

Congress may tax and spend for to provide for the general welfare (to promote general welfare, not just for general welfare)
- Includes any public purpose not prohibited by constitution, even if not within an enumerated power
Ex: tax on factory carbon emissions (though no enumerated power to regulate environment)
Ex: spending on schools for states following federal educational standards (though no enumerated power to regulate local education)
- Note “Strings” must relate to purpose of spending and not violate constitution
- Have to be related for strings
- Stings must not be so coercive that the state has no choice but to comply (state would have no real choice “bullet to head of states”)


Enumerated Powers/ Commerce Power

Congress may regulate commerce with:
1. Foreign Nations
2. Indian Tribes
3. Among the states


Interstate Commerce

(among the states)
Broadest and most common basis for regulation
- Channels of interstate commerce: highways, waterways, telephone lines, internet
- Instrumentalities of interstate commerce: planes, trains, automobiles, persons in interstate commerce
- Substantial effect on interstate commerce in aggregate (even purely local activities): growing wheat in backyard for home consumption (effect on national commerce)

Exception: non economic activity in area traditionally regulated by states


Delegation of Power to Agencies

may broadly delegate legislative power as long as some intelligible principle guides exercise of delegated power
Ex: Delegation of authority to EPA to regulate air pollutants that “endanger public health or welfare”


Delegation of Power to President

no line item veto
Rationale: Violates bicameralism (passage by both chambers) and presentment (giving bill in entirety to president to sign or veto)


Delegation of Power to Congress

no legislative veto to void duly enacted laws without bicameralism and presentment
Ex: law providing one chamber of congress may overturn agency regulations


Speech and Debate Clause

Members of congress enjoy immunity from civil and criminal liability for legislative acts
Ex: speeches on floor, voting, committee reports
Not: Bribes, speeches and publications outside of congress


Executive Power

Domestic Powers
Enforcement: President has power (and duty) to execute laws



- Ambassadors, Federal Judges and officers of the United States (ex: cabinet secretaries)
- President appoints
- Senate gives advice and consent by majority vote
- Inferior Officers
- Congress may vest appointment power in president, department heads or judiciary
- Ex: Undersecretary of State, assistant attorney general, independent counsel
- Congress may not appoint executive branch officials



- President may remove high-level executive officers (eg cabinet secretaries) at will (president appoints, he can fire at will)
- Congress may limit presidential removal of other executive officials to good cause
- Congress may not remove executive officials except through the impeachment process



President may pardon anyone accused or convicted of a federal crime
- Accused means he can pardon prospective people
Exception: no power to pardon crimes underlying impeachment by house of representatives
Does not cover civil liability


Foreign Powers

1. War
2. Treaties and Executive Agreements


Foreign Powers/ War

Congress alone has the power to declare war
President as commander in chief has broad discretion to deploy troops internationally to protect American lives and property (eg Vietnam)
- Challenges may be non-justicible as a political question
- Congress checks through power of the purse


Foreign Powers/ Treaties and Executive Agreements

- President negotiates treaties, negotiates executive agreements
- Senate 2/3 vote to approve treaties, not applicable executive agreements
- State law trumps existing and future treaties, trumps existing and future executive agreements
- Federal law trumps existing (not future) treaties, federal law always trumps executive agreements



Congress may impeach the president, vice-president, referral judges, and all officers of the United States for treason, bribery, other high crimes and misdemeanors
- House passes articles of impeachment by majority vote
- Senate convicts by 2/3 vote
- Removal requires both


Presidential Immunity and Executive Privileges

1. Absolute Immunity from civil damages fro any actions arguably within official responsibilities
2. No Immunity from private suits (even while in office for conduct prior to taking office
3. Executive Privilege protects confidentiality of presidential communications
- Privilege may yield if outweighed by other important government interest
Ex: need for evidence in criminal trial



10th amendment: powers not granted to United States or prohibited to the states are reserved to the states or the people
1. General police powers: reserved to states
2. Anti-Commandeering principle: Congress cannot compel states to enact or administer federal programs


Supremacy Clause

1. Supremacy Clause of Article VI makes federal law preempt inconsistent state and local news
- Federal Law: Constitution, statutes, regulations, treaties, executive agreements



Express: Congress expressly says so
Implied conflict: impossible to follow both federal and state law. State law impedes federal law
Implied field: extensive federal regulation indicates congressional intent to occupy the field


Dormant Commerce Clause

Dormant Commerce Clause: Prohibits state laws that discriminate against or unduly burden interstate commerce


Privileges and Immunities of Article IV

prohibits state laws that discriminate against out of state united states citizens re:
- An important commercial activity (livelihood)
- Fundamental Rights


Privileges and Immunities of 14 Amendment

prohibits state laws that interfere with
- Interstate Travel
- Right to petition the government
- Not protect the bill of rights (rights)


Dormant Commerce Clause vs Privileges and Immunities of Article IV

Dormant Commerce Clause:
Who is protected: all out of staters (including aliens and corporations)
What protected: interstate commerce
How protected:
- Discriminatory laws (favoring in state over out of state commerce are invalid unless:
- Necessary to achieve important government purpose (unrelated to economic protectionism and
- No less discriminatory alternatives
- Non-discriminatory laws (evenly applied to in-state and out of state commerce) are valid unless burden on interstate commerce clearly outweighs non-protectionist benefits
Exceptions: Congressional approval and market participant (state acting as buyer as seller)

Privileges and Immunities of Article IV
Who protected: US Citizens (not aliens or corporations)
What protected: important commercial activities and fundamental rights
How Protected:
- Discriminatory laws (favoring in state over out of state citizens) are invalid unless:
- Necessary to achieve important government purpose (unrelated to economic protectionism) and
- No Less discriminatory alternatives
Exceptions: None

Dormant Commerce clause and Privileges and Immunity of Article IV are mutually reinforcing rather than mutually exclusive restrictions on state discrimination against out of stators
- State law can violate both, one or the other, or none


State Taxation of Interstate Commerce

State Taxation of Interstate Commerce
Like state regulation of interstate commerce, subject to commerce clause challenge
Discriminatory Taxes: Generally Invalid
Non-Discriminatory Taxes: Generally ok if
1. Substantial nexis (relationship) between taxpayer and state and
2. Fairly apportioned to business done or benefits received in state


Federal Immunity

States may not tax or regulate the federal government (including agents and activities) without its consent
Ex: state may not required contractor to obtain state license to build facilities on federal air force base, nor assess property tax on base


Fundamental Right to Interstate Travel (Privileges and Immunity of 14th Amendment)

Fundamental right to interstate travel
- State to state travel
- Right enter/leave a state
- Equal treatment once become permanent resident of state
Ex: California could not limit first year residents to welfare benefits they would have received in prior state of residence
- No fundamental right to international travel
Right to Petition federal government


Individual Rights

Application and Incorporation
Except 13th amendment ban on slavery constitution applies only to state action not private conduct
Bill of Rights originally applied only to federal government
Most protections have been incorporated against states (and their political subdivisions) through the 14th amendment
- Not (yet) 3rd amendment right not to have soldiers quartered in home, 5th amendment right to grand jury indictment, 7th amendment right to jury in civil cases, 8th amendment right against excessive fines


State Action

Easy Examples
1. State law
2. State officials acting officially (even if unlawfully)

Harder Cases:
1. Public Function
State action exists when private party performs function done by government
- Traditionally and Exclusively


State Involvement

Significant state involvement in challenged private conduct (eg assistance, encouragement, supervision, entwinement, or approval) may count as state action


Procedural Due Process

1. 5th amendment Due process clause applies to federal government
2. 14th amendment Due process Clause applies to states (and localities)
Individual has right to a fair process when government acts to deprive life, liberty, or property
Was there a deprivation of life, liberty property?
Deprivation: Intentional (or perhaps reckless) rather than negligent


Liberty / Procedural Due Process

- Physical Freedom
- Constitutional and statutory rights
Ex: termination of parental rights, revocation of drivers license
Not: mere harm to reputation


Property/ Procedural Due Process

- Real and Personal, tangible and intangible
- Government entitlement to which an individual has a reasonable expectation of continued receipt
Ex: Welfare benefits, public education, government licenses, tenured employment or term employment for duration of term
Not: At Will employment


If deprived what process was due?

A. Notice
B. Opportunity to be heard
C. Neutral decision maker


Notice/ Procedural Due Process

reasonably calculated to inform person of deprivation
- Predeprevation hearing required unless government shows highly impracticable
Post Deprivation Examples:
- Emergency Institutionalization
- Suspension of drivers license after failed breathalyzer
Balancing Test: determines nature and extent of procedures, considering
- Importance of interest to individual
- Risk of error through procedures used
- Accuracy gain from additional procedures
- Burden on government (eg inefficiency and costs)
Termination of parental rights: requires notice, hearing, proof of neglect or misconduct by clear and convincing evidence
Detention of Citizen as Enemy combatant: requires meaningful opportunity to contest factual basis for detention, considering burden on executive in wartime


Neutral Decisionmaker

no actual or serious risk of bias


Supreme court often employs levels of scrutiny when laws are challenged as violations of:

1. Equal Protection Clause
2. Substantive Due Process
3. Free Speech


Rational Basis

legitimate interest rationally related
- Burden on challenger, presumption that it is valid
- Government almost always wins


Intermediate Scrutiny

Important state interest substantially related
- Burden on state, presumption none


Strict Scrutiny

Compelling state interest narrowly tailored (least restrictive)
- Burden on state, presumption that it is invalid
- Compelling State Interest: remedying past racial discrimination, national security that is threatened, preventing corruption or appearance of corruption in voting process
- Government almost always loses


Equal Protection

14th amendment Equal Protection Clause applies to states (and localities)
5th amendment Due Process Clause has “equal protection component” that applies to federal government
Trigger: government treating people differently (one person is burdened or benefited more)
1. What’s the classification?
2. Level of Review


Equal Protection Classifications for Rational Basis

- Age
- Disability
- Wealth
- Alienage classifications by Congress
- Alienage classifications by state related to democratic governances
- All other classifications


Equal Protection Classifications for Intermediate Scrutiny (quasi-suspect)

- Gender
- Illegitimacy
- Undocumented alien children by state (assumed)


Equal Protection Classifications for Strict Scrutiny (suspect)

- Race
- National Origin
- Alienage classifications by state generally
- Denial of fundamental rights to some


How to determine classification for Equal Protection

-Disparate Impact + Discriminatory Intent
- Impact alone is not enough


Race and National Origin / Equal Protection

Strict Scrutiny


Race and National Origin/ School Integration

Strict Scrutiny Review
- Compelling state interest to want to remedy past racial discrimination by bussing students on racial basis (valid)
- But can’t use the busing to integrate or diversify schools beyond remedying effects of past legalized segregation in district (ex: racial balancing, cant use race alone to diversify would need to use individualized characteristics)


Race and National Origin/ Affirmative Action in Higher Education

Strict Scrutiny Review
Compelling state interest to make student body diverse
- Public Law school uses race as one of several factors in admissions to obtain critical mass of minority students to achieve diversity valid. Race is ok as soft factor among several factors
- Public college assigns fixed points on admissible scale for race to help reach same goal, using race automatically to give leg up (quota, point system) is not narrowly tailored, not valid


Race and National Origin/ Affirmative Action in Government hiring and contracting

Strict Scrutiny Review
- Agency employs affirmative action to remedy own past discrimination, if its government trying to correct it’s own past remedy then its ok and valid
- City gives preference to minority contractors to remedy generally societal discrimination, aim cant be to make society more diverse, not valid


Alienage/ Equal Protection

- Congressional Classification
Test: Rational Basis (congress wins)
Ex: Congress may choose not to extend health care coverage to non-citizens for fiscal reasons
- State Classification
Test: Strict Scrutiny
Ex: state and local governments may not require US citizenship for employment (generally) government benefits, property ownership, or admission to bar
EXCEPTION: State and local governments may reasonably require US citizenship for activities and positions integral to Democratic self governance
Ex: Voting, holding elective office, being police officers or public school teachers
NOT: notary publics


Gender / Equal Protection

Test: Intermediate Scrutiny
Type of State Interest: Important Interest requires an exceedingly persuasive justification not a role stereotype
Ex: State law entitles only women to alimony/ NO
Ex: State nursing school excludes men / NO
Ex: State military school excludes of women on ground they would not be able to satisfy physical requirements or succeed under its “adversative method”/ NO
Ex: Selective service act requires males by tot females to register for draft / YES
- Deferred to congress expertise of raising armys and waging wars
Ex: Social security formula entitles women to greater benefits to remedy long history of pay discrimination/ YES
- Remedying past gender discrimination
Ex: statutory rape law only makes men liable / Yes
- To make males not do it


Legitimacy (non-married children) / Equal Protection

Test: Intermediate Scrutiny
Laws based on prejudice (typically denying benefits to all non-marital children) are invalid
Ex: law permitting parents to sue for wrongful death for martial by not nonmarital children
Laws that distinguish among non-martial children may be upheld
Ex: law allowing non-marital children to inherit from father only if paternity was established during father’s lifetime


Fundamental Rights / Equal Protection

Test: Strict Scrutiny
Ex: Denial of right to marry smokers


All other Classifications / Equal Protection

Test: Rational Basis
Ex: age, disability, income, intelligence, health, sexual orientation
Notes: Prejudice is not rational, so law denying discrimination protection to homosexuals based on animus was invalidated


Substantive Due Process

Unenumerated rights are substantive component of liberty protected by:
- 14th amendment Due Process Clause against states and localities
- 5th amendment Due Process Clauses against federal government


Fundamental Right for Substantive Due Process if:

- Deeply rooted in nations history and tradition
- Implicit in the concept of ordered liberty (essential to free society)


How to tell if it's Due Process or Equal Protection

Denying everyone a fundamental right
- Substantive due process problem only
Denying some people a fundamental right
- Substantive due process and equal protection problem


Levels of Scrutiny for Substantive Due Process Analysis

Fundamental Right: Strict Scrutiny
Non-Fundamental Right: Rational Basis


Substantive Due Process Analysis/ Fundamental- Strict Scrutiny

- Marriage
- Procreation
- Contraception
- Custody, Care, and Upbringing of Children
- Living with Extended Family
- Interstate Travel
- Vote


Substantive Due Process Analysis/ Fundamental- Undue Burden Test

- Abortion


Substantive Due Process Analysis/ NonFundamental- Rational Basis

- Economic Rights
- Physician-assisted suicide
- Education


Substantive Due Process Analysis/ NonFundamental- Unspecified test (treat as rational basis)

- Private consensual adult sexual intimacy
- Refuse medical treatment
- Bear arms


Marriage (Divorce)/ Fundamental Rights

- Substantial Interference with right to marry is necessary to trigger strict scrutiny
Ex: denying marriage to mixed racial couples triggers strict scrutiny under due process as well as equal protection
- Reasonable requirements to protect rather than hinder right to marry are upheld under rational basis
Ex: reasonable majority age, proper identification


Procreation/ Fundamental Rights

Ex: involuntary sterilization of mentally retarded is invalid


Contraception/ Fundamental Rights

Ex: bans on distribution and use of contraceptives, or limiting sale of pharmacists is invalid


Parental Rights / Fundamental Rights

Includes custody, care, and upbringing of children
Ex: state may not require public school education or education in English


Living With Extended Family/ Fundamental Rights

Ex: City may not prohibit extended family (eg cousins) from living in single household


Fundamental right to interstate travel/ Fundamental Rights

Right to enter and leave a state
Equal treatment once become permanent resident of state
Ex: California could not limit first- year residents of state to welfare benefits they would have received in prior state of residence
- No fundamental right to international travel


Right to Vote/ Fundamental Rights

Rational Basis For reasonable requirements that protect rather than hinder right to vote
- Age (ex: 18)
- Residency (ex: 50 days) (probably not more then 2 months)
- Citizenship (US citizens)
Strict Scrutiny For onerous or potentially discriminatory restrictions
- Poll Taxes
- Literacy Test
One Person One Vote Principle
- State and Local representatives
- Equal protection requires population of voting districts be substantially equal (be roughly the same)
- Ex: 16% variance upheld as reasonable in light of state interest in preserving political subdivisions
- Federal representatives
- Article I requires population of congressional districts within a state be almost exactly equal (mathematical precision)
- Ex: .7% variance invalidated
Racial Gerrymandering
- Strict Scrutiny if race was predominate factor -ok if remedying past discrimination
Political Gerrymandering
- Likely non-justiciable political question


Abortion/ Fundamental Right

Scope- State may regulate (but not prohibit) abortions to protect mothers health or life of fetus (regulate but not ban)
Test- Undue Burden (ie substantial obstacle on access to abortion)
Scope- State may prohibit abortions unless necessary to protects mothers life or health
Test- N/A


Examples of not Undue Burden for Abortion

- Requiring licenses physician
- Required informed consent (nature and risk of abortion and childbirth, gestational age)
- Requiring 24 hour waiting period after informed consent
- Required parental consent for minor (with judicial bypass option)
- Banning partial-birth abortions
- Not funding abortions


Examples of Undue Burden for Abortion

- Requiring spousal notification or consent
- Requiring extensive recordkeeping and reporting of abortions not directed at maternal health or not sufficiently protective of privacy


Unspecified Rights / Fundamental Rights

Private Consensual Adult Sexual Intimacy
Ex: no legitimate state interest in criminal bad on same-sex sodomy

Refuse Medical Treatment
- Competent adult may refuse lifesaving medical treatment
- State may require clear and convincing evidence of individuals wish, and may prevent family members from terminating treatment
- No right to physician-assistant suicide (states can pass law to give you right)
- State may compel vaccination against contagious diseases

Bear Arms
Second amendment protects right of individual at least to have handgun in home for self-defense



Federal government (5th amendment clause) and states (14th amendment due process) may not take private property unless:
Taking Requirements
1. For Public Use
2. Just compensation


Taking Requires:

Physical Taking: Occupation or Confiscation ,even tiny or temporary
- Physical Occupation of Land, Temporary Floodings are not takings unless it’s permanent
Development Exception: traditional conditions on property development are not takings if benefits are roughly proportional to burdens

Emergency Exception: Taking less likely to be found, even for complete and permanent deprivation, if pursuant to public emergency such as war

Regulatory taking: Regulations on use that not merely diminish but leave no economically viable use
- Putting time limit on building is ok (even 4 years)
- Ok if you can’t build certain things but can build other


Public Use for Taking

Public Purposes: any legitimate public purpose counts ie any purpose that government reasonably believes will benefit public
- Can confiscate property in blighted area for sale to private company as part of cities economic redevelopment plan
- Breakup of property from oligopoly of landholders for resale to remedy economic and social evils from concentration of land ownership


Just Compensation

Fair market value at the time of the taking (benefit to government is irrelevant


Contract Clause / Retroactive Legislation (article I)

- State and local laws only
- Not
1. Federal government (impairment may implicate procedural due process)
2. Judicial decisions

Tests: Contracts Clause
Private Contracts: Substantial Impairment of existing rights invalid unless
- Important government purpose
- Reasonably related means
Public Contracts: Stricter test (intermediate or strict scrutiny)


Ex Post Facto Laws

Neither state nor federal government may pass legislation that retroactively alters criminal liability to:
- Criminalizing act that was innocent when done
- Makes crime greater than when committed
- Set greater punishment than when act was done
- Reducing the evidence required to convict from what was required at time of act


Bills of Attainder

- Neither state nor federal government may pass legislation that designates particular individuals (by name or description) for punishment without judicial trial
Punishment: Traditional sanctions (eg death, prison, fines, confiscation) and punitive measures (eg exclusion from employment and benefits)
Ex: Federal law denying salary payments to federal employees that House of Representatives determined to be subversive
Ex: Federal law required CEOS of firms that sold more than $10billion in repackaged subprime mortgages in past decade to pay “bail out fee” of $10 million


First Amendment

1. Is it speech?
2. Is the speech protected or unprotected?
General Restriction:
- Content Based = Strict Scrutiny
- Content Neutral = Intermediate Scrutiny
Public Property:
- Public Forum= Third Amendment
- Nonpublic Forum= Reasonable not viewpoint based (strict scrutiny)
Public School:
- Student Speech= substantial disruption (unless pro drug use)
- School Speech= Reasonably related to legit pedagogical concern
Public Employment
- Private Concern or pursuant to job duties= no protection
- Public Concern= balancing test
4. Is the restriction vague, overbroad, or a prior restraint?



Is it speech at all? Words, symbols and expressive conduct are speech
- Message does not have to be clear words (dancing, jibberish)
Expressive Conduct
- Conduct that is inherently expressive
- Conduct that is
- Intended to convey message and
- Reasonably likely to be perceived as conveying message

Arson? No
Flag burning? Yes
Ballet? Yes
Nude Dancing? Yes
Ordinary Clothing? No
Black Arm Band? Yes


Unprotected and Protected Speech

The freedom of speech protected by the first amendment does not induce certain categories of unprotected speech
Two categories receive only partial protection under their own special test:
- Defamation and Commercial Speech
All other expression receives full first amendment protection


Examples of Unprotected Speech:

- Incitement
- Fighting Words
- True Threats
- Obscenity
- Child Pornography
- Defamation with actual malice
- Commercial Speech (false, misleading, or illegal) Pa


Examples of Partly Protected Speech:

- Defamation about public officials, public figures or matters of public concern
- Commercial Speech (not false, misleading or illegal)


Examples of Protected Speech:

All other Speech


Incitement Test

Advocacy of lawless action that is:
1. Intend to produce imminent lawless action and
2. Likely to produce such action
- Mere Advocacy of lawless is protected speech (need imminent) (fully protected)


Fighting Words

Words likely to provoke an immediate violent response


True Threats

Words intend to convey to someone a serious threat of bodily harm



Depiction of sexual conduct that taken as a whole by contemporary community standards
1. Appeals to the prurient in sex,
2. Is patently offensive and
3. Lacks serious social value by national standards
- Mere nudity, soft-core pornography, and dirty words are not obscene
- Right to privacy extends to possession of obscenity at home, which may not be banned
- Sexual explicit or indecent speech that is not obscene may nonetheless be subject to zoning:
a. Protect children and unwilling adults from exposure or
b. To prevent neighborhood crime and decay
c. Ample alternatives must exist for the speech
Ex: Band on adult bookstores and theaters within 1,000 foot of neighborhoods, schools, churches, and parks, leaving less than 5% of city for such speech is valid
Ex: Daytime ban on indecent radio broadcasts such as George Carlin’s seven dirty words monologue is valid


Child Pornography:

Depiction of child engaging in sexual conduct, whether or not obscene
- Must be actual children (not virtual or adult actors)
- In home possession may be banned



To promote robust public debate, 1st amendment bar recovery under state defamation law for speech made without actual malice about
1. Public Official
2. Public Figures or
3. Public Concern


Defamation / Actual Malice

1. Knowledge of falsehood
2. Reckless disregard for the truth


Public Officials/ Defamation

1. Holding or running for elective office (at any level)
2. Public employees in positions of public importance (eg. Prosecutor, police officer)


Public Figures/ Defamation

1. Assumed roles of prominence in society
2. Achieved pervasive fame and notoriety
3. Thrust themselves into particular public controversies to influence their resolution


Public Concerns/ Defamation

Matters important to society and democracy


How to apply Defamation Claims

For defamation claims, identify
- Type of Plaintiff (public official, public figure, or private figure) and
- Subject matter of the alleged defamation (public of private concern)
Those will determine
- Whether the plaintiff must prove actual malice (in addition to proving defamation_ and
- What damages plaintiffs may recover


Public Official, Public Figure, any subject matter:

1st amendment standard- Actual Malice
Damages- Any


Private Figure, Public Concern:

1st amendment standard- actual malice or negligence
Damages (actual malice) presumed and punitive/ (negligence) actual


Private Figure, Private Concern:

1st amendment standard- no actual malice
Damages- any


Commercial Speech

- Advertising, Brand Promotion
1. False Commercial Speech
2. Misleading Commercial Speech
3. Illegal product or service
- Can all be censored or banned
Protected: all other commercial speech


Commercial Speech Test (Intermediate Scrutiny)

1. Substantial government interest (eg consumer protection)
2. Narrowly Tailored reasonable fit rather than least restrictive


General Speech Restrictions

restrictions on protected speech that are generally applicable (not limited to public property, public schools, or public employees) are reviewed as follows
General Free Speech Test
Content based- Strict Scrutiny
Content neutral- Intermediate Scrutiny

Content based restrictions suppress speech because of the message or harm that message may produce (censorship)
Content-neutral restrictions suppress speech for reasons unrelated to the message
- Often Channels speech on basis of time, place, or manner


First Amendment Levels of Scrutiny/ Intermediate Scrutiny

Ends- important interest
Means- narrowly tailored (substantially related)
Burden- State
Result- Usually valid


First Amendment Levels of Scrutiny/ Strict Scrutiny

Ends: Compelling Interest
Means: Narrowly tailored (least restrictive)
Burden: State
Result: Usually invalid


Speech Restrictions on Government Property

Public Forums: Government property open to public for all kinds of expressive activity by:
A. Tradition its open to free speech (can’t be taken away by government) or
B. Purposeful designation (can be taken away by government)
Ex: Parks, streets, sidewalks, college kiosks (traditional: parks, street, sidewalk)
Nonpublic Forums (Limited Public Forums)
Government property not open generally for public speech but limited to speech (if any) related to the purpose of the property
Ex: classes, mailboxes, airports


Public Forums, Content Based get what type of Scrutiny?

Strict Scrutiny


Public Forums, Content Neutral get what type of Scrutiny?

Intermediate Scrutiny


NonPublic Forums, Content Sased and Content Neutral get what type of scrutiny?

reasonable in light of nature of forum (strict scrutiny if viewpoint based)


Viewpoint Based Discrimination

limits speech to one-side of subject (always subject to strict scrutiny)


Public Schools/ Student Speech Test- Personal Student Speech

cannot be censored absent evidence of substantial disruption
Exception: speech promoting illegal drug use does not require showing any disruption


Public Schools/ Student Speech Test- School Speech (including opted student speech):

Can be censored if reasonably related to legitimate teaching concern


Public Employment/ Unprotected Speech

1. Matters of private concern at the workplace
2. Pursuant to official duties


Public Employment/ Protected Speech

Matters of public concern (not made pursuant to official duties)


Public Employee Speech Test

balances speech value v. state interest in efficient operation



Law is void for vagueness if persons of common intelligence cannot tell what is speech is prohibited and what is permitted
Ex: ban on opprobrious and offensive words



Law is invalid as overbroad if it prohibits a substantial amount of speech that the government may not suppress
Ex: Ban on all “first amendment activities” at LAX
- Third party standing is allowed (plaintiff whose speech may be censored raises non-commercial speech claim on behalf of others whose speech may not be censored)


Prior Restraints

Licensing schemes (eg permits) or injunctions that prevents speech before it occurs rather than punishing speech afterwards
Disfavored: historically, prior restraints have been greatly disfavored. No special tests, but harder for government to win
- Content-based prior restraints= very strict scrutiny
1. Injunctive against publication of pentagon papers based on speculative harm to war effort was invalid: Not Valid
2. Injunction against publication of D-Day before attack: Valid
- Licensing systems must have sufficiently definite standards to cabin discretion as well as prompt judicial review of denials
1. Parade Permits given at discretion of city official without any standards: Not Valid
2. Parade Permits given to all who pay reasonable fee for security and sanitation: Valid


Press, expressive associations (eg. Political parties, NAACP), and corporations (engaging in non-commercial speech)

are generally treated the same as other speakers


Free Exercise Clause

Religion: traditional religion as well as beliefs that play role in life of believer similar to the role that religion plays in life of traditional adherents
- To decide religious claims, government (including courts) may inquire into the sincerity of religious beliefs but not their truth

Discriminatory Laws: Strict Scrutiny
Natural laws of general applicability: not subject to free exercise clause

Discriminatory Laws:
- Not Neutral with respect to religion
- Not generally applicable but target at religion generally or a religion in particular


Establishment Clause

Court has not settled on single test, so government may violate under one more test
1. Neutrality Test
2. Coercion test
3. Lemon test
4. Endorsement Test
5. History and Tradition Approach


Neutrality Test/ Establishment Clause

Government must remain neutral with respect to religion, neither favoring nor disfavoring it.
- Neutral: providing police and fire protection to churches on same basis as to secular community
- Favor: Exemption of religious publications but not others from sales tax
- Disfavor: allow all student groups, except religious ones, afterhours access to school meeting rooms


Coercion Test/ Establishment Clause

Government may not directly or indirectly coerce individuals to exercise (or refrain form exercising) religion
- Direct: Fines for not attending church
- Indirect: Providing for clergy invocation and benediction at middle-school graduation


Lemon Test/ Establishment Clause

1. Primary Purpose is sectarian (religious)
2. Primary Effect is sectarian (religious)
3. Excessive entanglement between government and religion
- Purpose: posting copies of ten commandments on walls of public school classrooms has a primarily sectarian purpose, despite legislate statement to contrary
- Effect: reciting Lords prayer at beginning of public school day
- Entanglement: paying salaries of teachers of secular subjects in parochial schools, because of excessive entanglement in constant monitoring to ensure non-sectarian teaching


Endorsement Test/ Establishment Clause

From standpoint of a reasonable and informed observer government must not appear to endorse or disapprove of religion, making it seem relevant to a persons standing in the political community
- Endorsement: lone display of nativity scene on courthouse steps
- Non-Endorsement: Display of crèche surrounded by Santa, reindeer, elephant, clown, candy cane, teddy bear, and other nonsectarian holiday symbols


History and Tradition Approach/ Establishment Clause

Sometimes the court sets aside the above principles and finds that a state religious display or practice is a tolerable acknowledgement of the role religion has played in the history and tradition of the nation
- Helps if the display or practice has been around for awhile or is in historical setting