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Constitutional Law - dbharlan
Bar Prep

Additional Law Flashcards




  • Whether a case is "justiciable" depends or whether there is a "case or controversy".
  • "Case or Controversy" Requirements:
    • Standing
    • Ripeness
    • Mootness
    • Political Question Doctrine
  • Other Limitations on Fed Ct Jxn include: abstention; advisory opinions; 11th Amendment; adequate and independent state grounds


  • Is plaintiff proper party to bring the claim?
  • ∏ must allege and prove the following:
    • Injury-in-fact: ∏ injured (or imminently will be
      • Only injuries that ∏ personally suffered
      • If injunctive/declaratory relief is sought:
        Must show likelihood of future harm
    • Causation: Δ caused the injury
    • Redressability: capable of being remedied
  • EXAM TIP: A successful ruling on the issue of standing only means that ∏ has an opportunity to try the case; it doesn't mean that he wins it.
Types of Standing & Other Standing Issues
  • 3P Standing: generally, no 3P standing.
    • 3P Standing Exceptions (Discretionary):
      • If there is a "sufficiently close relationship" between 3P and ∏ (e.g. MD & patient); or
      • If 3P is unable (or likely unable) to assert
  • Taxpayer Standing: only if challenging gov't expenditures as violating the Establishment Clause
    • No standing if challenging gov't use of property, tax credits, or general executive revenues
  • Associational Standing: can sue for members if:
    • Members would have standing to sue;
    • Interests are germane to organization's purpose; and
    • Neither claim nor relief requires participation of members
  • Standing to Enforce Gov't §s: may have standing to enforce fed §s if within "zone of interests" that Congress meant to protect
  • No Generalized Grievances: can't sue solely as "citizen" or "taxpayer" interested in having gov't follow the law
  • Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.
  • Basically, the court will weigh two factors:
    • The hardship suffered without pre-enforcement review (must suffer harm or imminent harm)
    • The fitness of the issues and the record for judicial review
  • EXAM TIP: if question contains a request for declaratory judgment, check for "case-and-controversy" requirements (especially ripeness).



  • If events after the filing of a lawsuit end the ∏'s injury, the case must be dismissed as moot.
  • Exceptions:
    • Wrong capable of repetition but evading review
      • E.g. Roe v. Wade
    • Voluntary cessation
      • When Δ voluntarily halts the offending conduct, but is free to legally resume it at any time
    • Class action suits
      • Only one member of the class still has to have an ongoing injury
Political Question Doctrine
  • Federal courts will not adjudicate:
    • The "Republican Form of Government Clause" (also called the "Guarantee Clause")
    • Challenges to the President's conduct of foreign policy;
    • Challenges to the impeachment and removal process;
    • Challenges to partisan gerrymandering
  • Nonpolitical questions (these are justiciable):
    • Arbitrary exclusion of a congressional delegate
    • Production of presidential papers and communications
Supreme Court Review
  • Most cases come to SCOTUS by writ of certiorari:
    • All cases from (highest) state courts
    • All cases from U.S. Courts of Appeals
    • Decisions of 3-judge fed district cts
  • Can only hear cases from the above three once there has been a final judgment
  • SCOTUS has OG and exclusive jxn for suits between state governments
  • If reviewing a state court decision, there must not be an independent and adequate state law ground of decision.
    • If state decision rests on state and fed grounds, and SCOTUS's reversal on fed ground won't change the result, then SCOTUS can't hear it.
Lower Federal Court Review
  • Fed & State Cts can't hear suits vs. state gov'ts
  • Principle of Sovereign Immunity:
    • 11th Am: bars suits against states in fed ct
    • Sovereign Immunity: bars suits against states in state courts or federal agencies
  • Exceptions: waiver; bankruptcy proceedings; suits brought pursuant to federal laws adopted (only) under §5 of 14th Am; fed gov't can sue state gov't
  • Suits against state officers are allowed
    • Money damages & injunctive relief OK
    • Can't sue if state treasury will be paying retroactive damages
  • Abstention:fed cts can't enjoin pending state ct proceedings
Congress's Authority to Act
  • Express or implied Congressional power
    • Congress has power of legislating for MILD:
      • Military; Indian reservations; Lands or territories (federal); D.C.
    • There is no general, federal police power
  • Necessary and Proper Clause: Congress may choose any means not prohibited by the C to carry out its authority
  • Taxing/Spending Power: may tax/spend for general welfare
  • Commerce Clause: Congress may regulate:
    • Channels of interstate commerce
    • Instrumentalities of interstate commerce and persons or things in interstate commerce
    • Economic activities that, in the aggregate, have a substantial effect on interstate commerce
      • If non-economic activity, substantial effect can't be based on cumulative impact
    • Congress probably can't regulate inactivity
Limitations on Congressional Authority
  • 10th Am: all powers not granted to US, nor prohibited to the states, are reserved to states
    • Congress can't compel state regulatory or legislative action; can prohibit harmful commercial activity by state gov't
    • Congress can condition grants if condition: expressly stated and relates to purpose of the spending program and not unduly coercive
  • Congress's power under §5 of the 14th Am:
    • Congress can't create/expand rights
    • Congress may act only to prevent or remedy violations recognized by the courts
      • Such laws must be "proportionate" and "congruent" to remedying C violations
Delegation of Powers
  • No limit on Congress' ability to delegate leg. power
  • Legislative and line-item veto = unconstitutional
    • Legis. veto: where Congress tries to overturn an exec. action w/o bicameralism &/or presentment
      • Bicam: passage by both House & Senate
      • Presentment: give bill to Prez to sign or veto
    • Line-item veto: where Prez tries to veto in part
  • Congress may not delegate executive power to itself or its officers (i.e., to enforce/implement law)
  • EXAM TIP: Never pick answer that says "Federal law is unC as an excess of delegation of legislative power"!
Foreign Policy
  • Treaties: agreement b/w US & foreign country; Prez negotiates; effective when ratified by Senate
    • If conflicts w/ fed § -> last in time wins
  • Executive Agreements: agreement b/w US & foreign country that is effective when signed by Prez and head of foreign nation (no Senate approval req'd)
    • Can be used for any purpose (anything that can be done by treaty can be done by Exec/Ag)
    • If conflicts w/ fed § -> fed § wins
  • Both treaties and executive agreements prevail over conflicting state laws, but never over C !!!
  • UnC for Congress by § to designate foreign capitols
  • Prez has broad powers as C-in-Chief to use US troops in foreign countries
    • EXAM TIP: Prez usually wins, even if no Congressional declaration or use is outrageous!

Domestic Affairs: Appointment & Removal Powers


  • Appointment Power
    • Prez appoints ambass, fed judges, & US officers
    • Congress may vest appt of interior officers (i.e., US attys and those under Sec. of State) in Prez or heads of depts or lower fed cts
    • Congress can't give self/its officers appt power
    • Prez can't make recess appts during intrasession recesses that are less than 10 days
  • Removal Power
    • Prez can fire any exec. office (unless lim by §)
    • Congress can limit removal only if office where independence from Prez is desirable
      • Can't prohibit removal though; can only limit to where there is good cause
Domestic Affairs: Impeachment & Immunity
  • Impeachment (and Removal)
    • Who: Prez, VP, fed judges and US officers
    • Why: treason, bribery, high crimes & misdems
      • No definition -> "high crimes & misdems"
    • Procedurally: need both impeach & removal
      • Impeachment: maj. vote by House (>1/2)
      • Conviction (removal): 2/3 vote by Senate
  • Immunity
    • Prez has absolute immunity to civil suits for $ damages for any actions while in office
      • No immunity --> actions before taking office
Domestic Affairs: Executive Privilege & Pardons
  • Executive Privilege
    • Prez has exe/priv for presidential papers and convos, but privilege must yield to other important gov't interests
  • Pardons
    • Prez has power to pardon accused/convicted of federal crimes (not state crimes!)
      • Exception: person who has been impeached by House can never be pardoned for the offenses that led to the impeachment
      • Only pardons criminal liability--not civil!
  • Express: fed § explicitly says fed law is exclusive
  • Implied: Fed law preempts if:
    • Fed and state laws are mutually exclusive
    • State law impedes achievement of fed objective
    • Congress evidences clear intent to preempt:
  • States can set enviro. standards that are stricter than fed law unless Congress explicitly prohibits
  • States can't tax/regulate fed gov't activity
    • Intergovernmental Immunity: fed gov't doesn't have to comply with state laws
  • EXAM TIP: It's unC to pay state tax out of fed treasury--look & ask: who is actually gonna pay tax?



Dormant Commerce Clause

  • Dormant C/C (negative implications of C/C)
  • State/local laws are unC if they place an undue burden on interstate commerc
  • Corps/aliens can sue under it
  • Doesn't require discrim. against O-of-S citizens
  • Exc: (1) Congressional approval and/or
    • (2) Market Participant: state/local gov't may prefer its own citizens in receiving benefits from gov't programs or in dealing w/ gov't-owned bizs
  • TIP: Is Congress doing something? --> C/C        Or state/local gov't? --> Dormant C/C
  • ***See card #19 for Dormant C/C v. P&I analysis
Privileges And Immunities Clause of Article IV
  • P&I of Art. IV: No state may deprive citizens of other states of the P&Is it accords its own citizens
    • TIP: Unless the question involves the right to travel, an answer saying "The P or I Clause of 14th Am." is always going to be wrong!
  • Requires discrim. against O-of-S citizens
  • Requires discrim. w/ regard to fundamental rights or important economic activities
  • Corps and aliens cannot sue under it
  • No exceptions
  • ***See card #19 for Dormant C/C v. P&I Analysis

Dormant Commerce Clause


Privileges and Immunities Clause of Art. IV


Does state law discrim. against O-of-S citizens?

  • If yes:
    • If law burdens interstate commerce, it violates Dormant C/C unless [its necessary to achieve an important (substantial) gov't purpose.]
      • Necessary: no alternative means
      • Protectionist ≠ important gov't purpose
    • If law discrim. against O-of-Sers w/ regard to their ability to earn their livelihood or fundamental rights, it violates the P&I of Art 4 unless (same [test] as above)
  • If no:
    • P&I of Art. IV does not apply
    • If law burdens interstate commerce, it violates Dormant C/C if burden > benefits
  • EXAM TIP: if question involves state/local gov't discrim. against O-of-Sers and challenger is a ©, only use Dormant C/C; if challenger is an individual, use both Dormant C/C and P&I of Art 4.
State Taxation of Interstate Commerce
  • States may not use their tax systems to help in-state businesses
  • States may only tax activities if there is a substantial nexus to the state
  • State taxation of interstate businesses must be fairly apportioned

               ***This topic is rarely tested on***
The Structure of the Constitution's Protection of Individual Liberties
  • First ask: is there gov't action? ("State Action")
    • The C applies only to gov't action--not private
    • Applies to gov't/officers at all levels
  • Congress by § may apply C norms to private conduct:
    • Can use 13th Am (prohibit private race discrim)
    • Can use commerce power
    • Can't use §5 of 14th Am (only used to regulate state/local gov'ts)
  • See card #22 for Exceptions to the State Action Doctrine
Exceptions to the State Action Doctrine
  • Public Function Exception:
  • The C applies (and there is S/A) if a private entity is performing a task traditionally, exclusively done by the gov't; narrowly applies
    • E.g., private utility ©s ≠ S/A
  • Entanglement Exception:
  • The C applies if the gov't affirmatively authorizes, encourages, or facilitates unC activity
    • Examples where S/A found
      • Ct can't enforce racially restrix covenants
      • Gov't leases land to biz that r/discrim
      • State gives books to schools that r/discrim
      • Private entity reg. interscholastic sports w/in the state (must operate nationally)
    • Examples where S/A not found
      • Private school funded 99% by gov't fires teacher over speech (subsidy ≠ S/A)
      • NCAA orders susp. of coach at state univ.
      • Private club w/ state liquor lic. r/discrim
    • TIP: if fact pattern involves r/discrim, Ct will likely apply Entanglement Exc; if it involves DP or 1st Am or other C claim, Ct unlikely to apply
Application of the Bill of Rights
  • BofR applies directly only to fed gov't
  • BofR is applied to state/local gov't through its incorporation into the DP clause of 14th
  • Selective incorporation: only fundamental rights are inc'd; today, almost all are inc'd EXCEPT:
    • 3rd Am right to not have soldier qrtr'd in home
    • 5th Am right to GJ indictment in crim cases
    • 7th Am right to jury trial in civil cases
    • 8th Am right against excessive fines
Levels of Scrutiny
  • Rational Basis Test (Challenger bears burden)
    • Rationally related to legitimate gov't purpose
      • Doesn't have to be actual purpose, just conceivable
  • Intermediate Scrutiny (Gov't bears burden)
    • Substantially related to important gov't purpose
      • Ct only looks to gov'ts actual purpose
      • Means must be narrowly tailored (not least restrictive means though)
  • Strict Scrutiny (Gov't bears burden)
    • Necessary to achieve compelling gov't purpose
      • Ct only looks to gov'ts actual purpose
      • Means must be necessary (meaning least restrictive means)
Individual Rights (Generally)
  • Procedural Due Process: deals with the procedures that a gov't must follow when it takes away a person's life, liberty or property
  • Substantive Due Process: deals with whether there is an adequate justification for the gov't's taking away of a person's life, liberty or property
    • Usually protecting economic liberties or safeguarding privacy
  • Equal Protection Clause: deals with whether the gov'ts differences in the treatment of people are adequately justified

Individual Rights: Procedural Due Process


  • Step 1: Has there been a depriv. of life/liberty/prop?
  • Depriv of liberty: where loss of significant freedom provided by C or §
  • Depriv of property: where entitlement not fulfilled
  • Gov't negl. insufficient for depriv. of DP
    • Need intentional or reckless gov't action
    • If emergency, gov't only liable under DP if its conduct "shocks the conscience"
      • Gov't must act w/ intent to harm
    • Gov't failure to protect person from privately inflicted harms ≠ denial of DP unless:
      • Person in physical custody of gov't or
      • Gov't literally created the danger
  • Step 2: What procedures are required? Balance:
    • Importance of interest to individual
    • Ability of additional procedures to increase fact-finding accuracy (reduce risk of erroneous dep)
    • Gov't interest (cost-efficiency? police power?)
      • *See card #27 for procedural DP reqs
Individual Rights: Procedural Due Process (Required Procedures)
  • Where notice and hearing required:
    • Before welfare benefits are terminated
    • Before school can discipline a child
      • Unless corporal punishment school
    • Before a parent's right to custody of a child can be permanently terminated
    • Prejudgment attachment/gov't seizure of assets
      • Unless exigent circumstances exist (i.e. reasonable to believe person could dispose of property before notice/hearing), then P gets post-seizure notice and hearing
      • Gov't can seize prop used in illegal activity even if innocent owner
  • Where post-termination hearing required:
    • When SS disability benefits are terminated
  • Punitive Damages: requires jury instrux and judicial review to ensure reasonableness
    • Grossly excessive fines violate DP
  • US Cit. Detained as Enemy Combatant must get DP
Economic Rights
  • If law affects economic liberties, apply Rational Basis review
    • E.g., minimum wage, right to practice trade/profession, etc.
Takings Clause
  • Takings Clause: gov't may take private property for public use if it provides just compensation
  • Step One: Is there a taking?
    • Possessory: gov't confiscation or phys. occupation of prop (no matter how small!)
    • Regulatory: gov't reg. leaves no reasonable economically viable use of property
    • Doesn't matter when regulation came about
    • Temp. denial ≠ taking (3y moratorium OK)
    • Gov't conditions on prop dev? benefit must be roughly proportionate to burden imposed
  • Step Two: Is it for public use? (broadly defined)
    • OK so long as gov't has reasonable belief that the taking will benefit the gov't
  • Step Three: Is just compensation paid?
    • Measured by loss to owner (NOT gain of taker)
The Contracts Clause
  • K Clause: No state shall impair obligations of Ks
  • Applies only to state/local interference w/ existing Ks
    • Never applies to fed gov't
      • If fed gov't is abrogating Ks, can be sued under DP (meaning they get R/B review)
  • If interfering w/ private Ks --> intermediate scrutiny
    • Does leg. sub. impair a party's rights under K?
    • If so, is law a reasonably & narrowly tailored means of promoting imp&legit public interest?
  • If interfering with gov't Ks --> strict scrutiny
The Ex Post Facto Clause
  • The ex post facto clause doesn't apply in civil cases.
    • An ex post facto law is a law that criminally punishes conduct that was lawful when done or that increases punishment after crime committed
  • Retroactive civil liability? --> R/B review
  • Compare with Bill of Attainder:
    • A BoA is a law that directs the punishment of a specific person(s) without a trial
  • EXAM TIP: "Ex Post Facto Clause" often appears on the MBE as a wrong answer--its only correct if gov't is criminally punishing retroactively
  • Privacy: fundamental right protected under sub DP; if state imposes law on these apply SS review:
  • Right to marry (includes same-sex)
    • State may impose invol. steriliz. if passes SS
  • Right to procreate
  • Right to custody of one's children
    • State may create irrebuttable presumption that a married woman's husband -> father
  • Right to keep family together
    • Can't limit # of related cohabs (can if unrel.)
  • Right to control upbringing of one's children
    • Can send kid to religious school
    • Vio. DP if Ct orders visitation w/ g-parent over objection of the parent
  • Right to purchase and use contraceptives
  • Right to abortion (see card #32 for Abortion)
    • Does not get SS review--use "undue burden"
  • Right to refuse Mx treatment (even if life-saving)
    • State may prevent family from terminating treatment or require C&C evidence
    • No C right to MD-assisted suicide
  • No fundamental right to education
Privacy (The Right to Abortion)
  • Prior to viability: state may not prohibit abortions, but may regulate them so long as they don't place an undue burden on ability to obtain; replaces SS!
    • OK: 24hr waiting period; if req. licensed MD; prohibition of "partial birth" abortions
    • Not OK: requirement that MD have admitting privileges at nearby hospital and that facility has "ambulatory surgical facilities"; spousal consent and notification laws
      • Parental notice & consent laws for unmarried minors OK only if creates alt. procedure where judge can approve abortion (best interest? mature?)
  • After viability: state may prohibit abortions unless necessary to protect woman's life/health
  • No duty on gov't to subsidize/provide in public hosp.
2nd Amendment
  • 2Am Right to Bear Arms: unknown level of review
  • Right to own guns for private home security
    • § banning handguns --> unC
  • Can prevent some weapons though
  • Can regulate type/who owns/where


The Right to Travel
  • Laws that prevent people from moving into a state must meet SS standard
  • Durational residency reqs must meet SS also
    • For voting, max C duration is 50 days
  • Restrictions on foreign travel get R/B review
    • No fundamental right to int'l travel
The Right to Vote
  • Laws that deny some citizens the right to vote -> SS
    • Poll taxes and prop. ownership reqs -> unC
    • But--regulations of electoral process (to prevent fraud) only need be on balance
  • 1 person, 1 vote must be met for all state/local elections. OK for districting to be based on total population instead of eligible voters
    • If gov't uses race as predominant factor in drawing districts (even to benefit minorities), must apply SS
  • At-large elections OK unless proof of discrim purpose
    • At-large elections: where all voters vote for all officeholders
  • Counting uncounted votes w/o standards in a prez election violates Equal Protection
Fundamental Rights
  • Apply Strict Scrutiny:
    • All privacy rights except abortion
      • Right to: marry; procreate; custody of children; keep family together; control raising of kids purchase/use contraceptives
    • Right to travel
    • Right to vote
    • Freedom of Speech, Association (1st Am)
    • Free exercise of religion (unless "neutral law of general applicability") (1st Am)
  • Apply "undue burden": right to abortion
  • Apply Rational Basis:
    • Economic rights
    • Mx-assisted suicide
    • Right to education
  • Level of scrutiny unknown:
    • Right to engage in private consensual homo act
    • Right to refuse Mx treatment
    • Right to possess firearms
Equal Protection (Generally)
  • EQP of 14th Am. applies only to state/local gov'ts
    • 14th Am. never applies to fed gov't!
  • EQP is applied to fed gov't through 5th Am. D/P
  • How to approach EQP questions:
    • 1. What is the classification?
    • 2. What level of scrutiny should be applied?
    • 3. Does this law meet that level of scrutiny?


Equal Protection: Race and National Origin
  • How is racial classification proven?
    • Classification exists on face of the law (use SS)
    • If law is facially neutral, proving racial class requires demonstrating both discrim impact and discrim intent (if show both, use SS)
  • If racial class. benefits minorities:
    • Use strict scrutiny
    • Quotas req. clear proof of past discrim
      • allowed as remedy for past discrim only
    • Educ. institutions may factor (not solely) race when admitting to help min., but must show:
      • No race neutral alt could achieve diversity
      • Also, can't "add pts" based on race
    • Public schools can't factor race in assigning students to schools unless SS met


Equal Protection: Gender
  • Intermediate scrutiny is used
    • Also needs "exceedingly persuasive justification"
  • How is gender classification proven?
    • Exists on face of law
    • If law is facially neutral, proving gender class req. both discrim impact and discrim intent
  • If gender classification benefits women:
    • Based on role stereotypes? --> unC
    • Designed to remedy past discrim and differences in opportunity? --> C


Equal Protection: Alienage
  • Generally, strict scrutiny is used
  • If alien class. concerns self-gov't and democratic process (functions integral to self-gov't):
    • Use Rational Basis test
    • E.g., voting, jury service, teacher, police officer, probation officer
  • If Congress discrim against alien, use R/B test
  • If discrim. against undocumented alien children, use intermediate scrutiny
Equal Protection: Non-marital Children
  • Also called "legitimacy classifications"
  • Intermediate scrutiny is used
  • If denies benefit to all non-marital kids, but grants benefit to all marital kids --> unC
    • If some non-marital kids receive the benefit, but other non-marital kids don't --> C
Equal Protection: Other Types of Discrimination
  • Use Rational Basis test for all other types of discrimination under the C:
    • Age
    • Disability
    • Wealth
    • Economic (TIP: gets R/B under both EQP and DP)
    • Sexual orientation

Content-Based vs. Content-Neutral


  • Content-based restrix generally get S/S
    • Subject-matter restrix: application of law depends on the topic of the message
    • Viewpoint restrix: application of law depends on the ideology of the message
  • Content-neutral restrix generally get int. scrutiny
Prior Restraints
  • Prior restraint: judicial order or administrative system that stops speech before it occurs
  • Court orders suppressing speech get S/S
    • Procedurally proper court orders must be complied with until vacated or overturned
      • If don't comply, barred from challenging
  • Gov't can require a license for speech only if:
    • Important reason for licensing; and
    • Clear criteria leaving almost no discretion to licensing authority
      • Licensing schemes must contain procedural safeguards such as prompt determination of requests and jud. review
Vagueness & Overbreadth
  • Vagueness: law is unC vague if a reasonable person can't tell what is prohibited and what is not
  • Overbreadth: law is unC overbroad if regulates substantially more speech than C allows
  • EXAM TIP: Fighting Words §s are always unC vague and overbroad ("FW": words directed at another to provoke a violent reaction)
Symbolic Speech
  • Gov't can reg. conduct that communicates if:
    • Important interest unrelated to suppression of the message and
    • Impact on comm. is no greater than neccesary
  • Examples: (if red, gov't can likely reg/prohibit)
    • Flag burning: C-protected speech
    • Draft card burning: not protected speech
    • Cross burning: C-protected speech unless done with the intent to threaten
    • Nude dancing: not protected speech
    • Contribution limits in elections: generally C
    • Expenditure limits in elections: generally unC

Anonymous Speech


Speech by the Gov't

  • Anonymous speech is protected
    • Distribution of anonymous political leaflets -> C
  • Speech by the gov't cannot be challenged as violating the 1st Am.
    • Doesn't apply when gov't only creates forum; gov't must be speaker!
    • E.g., driver's license, passport, license plate, etc.
  • Speech by gov't employees on the job in performance of their duties is not protected
Unprotected/Less-Protected Speech
  • Incitement of illegal activity (see #50)
  • Obscenity/sexually-oriented speech (see #51)
  • Commercial speech (see #52)
  • Defamation and IIED (see #53)
Incitement of Illegal Activity
  • Gov't may punish speech if:
    • Substantial likelihood of imminent illegal activity and
    • Speech is directed at causing imminent illegality
Obscenity & Sexually-Oriented Speech
  • Test for Obscenity:
    • 1. Material must appeal to the prurient interest (use localized standard)
      • Prurient: incites lust/lascivious thoughts
    • 2. Material must be patently offensive under the law prohibiting obscenity; and
    • 3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (national--not local-- standard)
  • Gov't can use zoning ordinances to reg. location of adult bookstores and movie theaters
    • Concentration/dispersement methods OK
  • CP may be completely banned, even if not obscene
    • CP: kids must be used in production
    • Virtual CP --> OK
  • Gov't may not punish private possession of obscene materials (can punish priv. poss. of CP though!)
  • Gov't may seize assets of biz convicted of violating obscenity laws

Commercial Speech


  • False/deceptive ads or ad for illegal act: unprotected
  • True commercial speech that inherently risks deception can be prohibited
    • Can prevent professionals from ad/practicing under trade name
    • Can prohibit atty, in-person, for profit solicitation
    • Can't prohibit accountants from in-person for profit solicitation
  • Other comm speech can be reg if meets int. scrutiny
    • Meaning gov't reg of comm speech must be narrowly tailored, but not least restrictive



Intentional Infliction of Emotional Distress

  • Actual malice: knew false or reckless disregard
  • Public official or running for office:
    • Must prove falsity and actual malice
  • Public figure:
    • Must prove falsity and actual malice
  • Private figure & matter is of public concern:
    • May allow ∏ to recover for defamation by proving falsity and negligence of Δ
    • Can recover presumed or punitive damages only by showing actual malice
  • Private figure & matter is of private concern:
    • Unclear what ∏ needs; likely negligence
    • Can recover presumed or punitive damages w/o showing actual malice
  • For all of the above, ∏ bears the burden of proof except private figure/private concern (unclear)
  • Liability for IIED for defamatory speech must meet the defamation standards and can't exist for speech otherwise protected by 1st Am.
Privacy and the 1st Amendment
  • Gov't may not create liability for truthful reporting of information that was lawfully obtained from gov't
  • No liability if media broadcasts tape of illegally intercepted call if:
    • Media didn't participate in illegality and
    • Involves a matter of public importance
  • Gov't may limit dissemination of info to protect privacy
    • Press and public have right to attend criminal trials and most criminal pre-trail proceedings
Public Forums
  • Public Forums: Gov't prop that gov't is C required to make available for speech (e.g., sidewalks, parks)
    • Reg. must be subject matter and viewpoint neutral or it gets SS review
  • TPM restrix that (1) serve important gov't purpose and (2) leave open adequate alt channels are C
    • "Narrowly tailored", not least restrix means
  • City officials can't have discretion to set permit fees for public demonstrations
Designated Public Forums
  • Designated Public Forums: Gov't prop that the gov't could close to speech, but chooses to open
    • Subjected to same rules as public forums
    • E.g., school facilities on weekends
Limited Public Forums
  • Limited Public Forums: Gov't prop that are limited to certain groups or dedicated to the discussion of only some subjects
    • Gov't can regulate speech in LPFs so long as:
      • Regulation is reasonable and
      • Viewpoint neutral
        • Subject matter neutrality not req'd!
    • E.g., ad space on buses (could allow comm speech and disallow non-comm speech)
Non-Public Forums & Private Forums
  • Non-Public Forums: gov't prop that the gov't constitutionally can and does close to speech
    • Subject to same rules as limited public forums
    • E.g., military bases, airports, sidewalks on USPS property, areas outside prisons, jails
  • Private Forums: no 1st Am. right of access to private property for speech purposes
Freedom of Association
  • Laws that prohibit/punish group membership get SS
    • In order to punish, must be proven that the person:
      • Actively affiliated w/ group;
      • Knowing of its illegal activities; and
      • W/ specific intent of furthering those illegal activities
  • Laws that require disclosure of group membership (where disclosure would chill association) get SS
    • E.g., NAACP didn't have to disclose
  • Laws that prohibit a group from discriminating are C unless they interfere with intimate association or expressive activity
    • Boy Scouts or KKK would win
    • Jaycees or Key Club would lose
Freedom of Religion: Free Exercise Clause
  • Free Exercise cannot be used to challenge a "neutral law of general applicability"
    • E.g. peyote case
  • Gov't may not deny benefits to individuals who quit their jobs for religious reasons
  • Gov't may not hold a religious institution liable for the choices it makes as to who will be its ministers
Freedom of Religion: Establishment Clause
  • The test: (SEX: SecularEffectXcessive)
    • There must be a secular purpose for law;
    • The effect must be neither to advance nor inhibit religion; and
    • There must not be excessive entanglement with religion.
      • Gov't can't pay teacher $ in relig schools
  • If fails any prong of ^ test, then unC
  • Gov't can't discrim against religious speech or among religions unless S/S is met
  • Gov't-sponsored relig. activity in public schools: unC
    • But, religious students and community groups must have same access to school facilities as non-religious groups
  • School prayer (even if vol. or silent): unC
    • "Silent reflection" is OK though
  • Gov't may give assistance to relig schools so long as $ not used for religious instruction
  • Gov't may provide vouchers for use in relig. schools
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