Constitutional Law

Legislature (Article 1)

Congress needs permission to act

1. Express and Implied Powers

2. Powers Congress Doesn’t Have

   • No federal police power → Congress doesn’t have the broad power to adopt laws for the health, safety, and welfare of its citizens (general welfare)

     • States have this power.

     • But they can do it through other means.

   • Exception: DC, federal lands and territories, military bases, and Indian reservations

Main Powers

1. Necessary and Proper Clause

2. Spending Power

3. Taxing Power

4. Commerce Clause

Other Powers

1. Tenth Amendment as a Limit on Congressional Powers (see in federalism §)

2. Congressional Power Under the Fourteenth Amendment (see in federalism §)

3. War and related powers

4. Investigatory power

5. Property power

6. Bankruptcy power

7. Postal power

8. Power over citizenship

9. Admiralty power

10. Power to coin money and fix weights and measures

11. Patent / Copyright Power

Delegation of Powers

• Can delegate rulemaking or regulatory power to the executive branch (including administrative agencies) or judicial branch

  1. As long as intelligible standards are set and the power isn’t something that is uniquely confined to Congress

     1. May not delegate executive power to itself or its officers

  2. Major Questions

     1. Absent a clear delegation of power to effect a major change, if an agency adopts a policy or regulation affecting a major change, it will be struck down as being beyond the agency’s delegated authority

• Legislative vetoes and line-item vetoes are unconstitutional

Legislature (Article 1)

Main 4 Powers

Necessary and Proper Clause

• Gives Congress the power to adopt laws that are necessary and proper (that is, appropriate) for executing any power granted to Congress or any other branch of government

  1. So long as the law is rational and isn’t otherwise forbidden

• Action needs to be in furtherance of another enumerated power

  1. Example: Congress does not specifically have the power to  regulate banks, but it does have the power to coin money, regulate commerce, borrow money, and tax

Spending Power

• Congress may spend to provide for the common defense and general welfare

• Money with strings attached

  1. Conditions that must be followed in order to receive the money

  2. Conditions must be constitutional

Taxing Power

• Gives Congress power to impose taxes for the general welfare

  1. Will be upheld if 

     1. They bear some reasonable relationship to revenue production OR

     2. If Congress has the power to regulate the activity taxed

Commerce Clause

• Gives Congress the power to regulate commerce among the states

  1. Channels of interstate commerce;

     1. Ex: highways, waterways, telephone lines

  2. Instrumentalities of interstate commerce;

     1. Ex: planes, trains, cars

  3. Activities with substantial effect on interstate commerce

     1. Economic or commercial activity

        1. look at the aggregate effect of everyone doing the activity everywhere

     2. Non economic or commercial activity

        1. Substantial effect cannot be based on cumulative impact

     3. Congress can’t regulate inactivity

Legislature (Article 1)

Other Powers

1. Tenth Amendment as a Limit on Congressional Powers (see in federalism §)

2. Congressional Power Under the Fourteenth Amendment (see in federalism §)

3. War and related powers

4. Investigatory power

5. Property power

Tenth Amendment as a Limit on Congressional Powers (see in federalism §)

• Anti-commandeering principle

  • Congress can’t compel state legislative or regulatory activity

• Spending power conditions

Congressional Power Under the Fourteenth Amendment (see in federalism §)

• Power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment

  1. May not create new rights or expand the scope of rights under this provision

     • May act only to prevent or remedy violations of rights recognized by the courts

• Must be proportionate and congruent to remedying constitutional violations.

War and related powers

• Power to declare war, raise and support armies, and provide for and maintain a navy

Investigatory power

• Implied power to investigate to secure information as a basis for potential legislation or other official action

Property power

• Power to dispose of and make rules for territories and other properties of the United States

  • Federal takings (eminent domain) must be for the purpose of effectuating an enumerated power

Legislature (Article 1)

Other Powers

6. Bankruptcy power

7. Postal power

8. Power over citizenship

9. Admiralty power

10. Power to coin money and fix weights and measures

11. Patent / Copyright Power

Bankruptcy power

• Power to establish uniform rules for bankruptcy

  • Nonexclusive, so states may legislate in the field as long as their laws do not conflict with federal law.

Postal power

• Exclusive postal power

• May validly classify and place reasonable restrictions on use of the mails, 

  • May not deprive any citizen or group of citizens of the general mail “privilege.”

Power over citizenship

• Power to establish uniform rules of naturalization

  1. Plenary power over aliens

     • Aliens outside → no right to enter, can be refused because of their political beliefs

     • Resident aliens → require notice and a hearing before deportation

  2. Exclusive power over naturalization and denaturalization

     • May not take away the citizenship of any citizen—native-born or naturalized—without his consent

Admiralty power

• Plenary and exclusive power over admiralty issues except to the extent that Congress leaves maritime matters to state jurisdiction

Power to coin money and fix weights and measures

• Power to coin money and fix standards for weights and measures

Patent / Copyright Power

• Power to control the issuance of patents and copyrights

Executive - President (Article II)

Presidential authority can be divided into 2 categories

Foreign Affairs

1. Commander of Chief of US forces

2. Treaties

3. Executive Agreements with Foreign Countries

4. Foreign Relations

Domestic Affairs

1. Appointment and Removal

2. Take Care Clause

3. Veto Power

4. Executive Orders

5. Impeachment (even for a misdemeanor) 

6. Privilege

7. Immunity

8. Pardons

Executive - President (Article II)

Foreign Affairs

Commander of Chief of US forces

• President can deploy troops without a declaration of war

  • Declaring war is Congress’s Power

Treaties

• President can enter into treaties with the advice and consent of ⅔ of the Senate

  • Supreme Law of the Land

    1. Conflict between treat and state law → Treaty wins

    2. Conflict between treaty and federal law → Most recent one prevails

    3. Conflict between treaty and constitution → Constitution wins

Executive Agreements with Foreign Countries

• President can enter without the consent of the senate

• Supreme Law of the Land

  1. Conflict between executive agreement and state law → Executive Agreement wins

  2. Conflict between executive agreement and federal law → Federal Law wins

  3. Conflict between executive agreement and constitution → Constitution wins

Foreign Relations

• President exclusive power to recognize foreign states and what is included in a foreign state

• President has broad discretion in determining whether to admit individuals to the United States

Executive - President (Article II)

Domestic Affairs

1. Appointment and Removal

2. Take Care Clause

3. Veto Power

4. Executive Orders

Appointment and Removal

• Appointment

  1. Gives President the power to appoint ambassadors, Supreme Court justices, and officers of the US

     • Must be confirmed by the Senate for them to take office

  2. Gives Congress the power to allow the President, the court, or the heads of the departments to appoint inferior officers

  3. Congress cannot give the appointment power to itself or to its officers

  4. President may not make recess appointments during intrasession that are less than 10 days

• Removal

  1. President can remove high-level purely executive officers

     • Congress can place some limits on the removal: 

       1. Office where independence from the President is desirable 

       2. Cannot prohibit removal, but it can limit removal to where there is good cause

       3. Cannot be a single person who heads an agency and exercise substantial discretion

Take Care Clause

• Gives the President the power and the duty to execute the laws

• President can’t refuse to spend funds in the manner Congress has expressly mandated.

Veto Power

• President can veto a bill

  1. If he doesn’t veto a bill within 10 days of receiving it, it automatically becomes law if Congress is in session. 

     • If they are not, then it is automatically vetoed. (Pocket Veto)

  2. No line item veto

• If a President vetoes a bill, it can still become law if it’s approved by at least ⅔ of each house of Congress

Executive Orders

• President has some authority to issue executive orders over domestic affairs: 

  1. President acts with the expressed authority or implied consent of Congress → upheld.

     1. e.g., pursuant to a law giving the President permission to act or recognizing with approval that the President has acted in the area in the past

  2. President acts against the will of Congress → invalid

     1. e.g., if a law  prohibits the President from seizing private businesses within the United States in times  of war, even though the President has considerable power during war, the President  cannot seize a steel mill within the United States to keep it running in order to sustain the  war effort

  3. President acts where Congress was silent → likely be upheld as long as it does not take the power of another branch or prevent another branch from carrying out its tasks.

Executive - President (Article II)

Domestic Affairs

5. Impeachment (even for a misdemeanor) 

6. Privilege

7. Immunity

8. Pardons

Impeachment (even for a misdemeanor)

• Who can be impeached?

  1. President, VP, Federal Judges, and Officer of the US

• Impeachment doesn’t remove a person from office (a conviction is required)

  1. House calls for trial

     • Majority vote required to impeach

  2. Senate hears the case

     • ⅔ senators vote to remove

Privilege

• Presidential documents and conversations presumptively privileged 

  1. Can be set aside for reasons such as national security, or to serve the needs of the criminal justice system

  2. Personal papers not protected

Immunity

• Absolute immunity from civil liability for any action taken while President if it falls within his official duties

  • Not actions occurring prior to taking office

• No immunity to keep the President’s financial records from being subpoenaed by a state grand jury

  • Financial records subpoenaed by a congressional committee → court must balance the competing interest

Pardons

• Power to pardon those accused or convicted of federal crimes

Judiciary

Constitution limits the federal courts in 2 ways

1. Can hear only certain types of cases

2. Can hear certain specified cases and certain specified controversies

   1. Cases and Controversies:

      1. Actual dispute between adverse parties AND 

      2. Binding legal effect (no advisory opinions)

Concerns

1. Standing - Is this the right P? P needs Standing.

2. Ripeness & Mootness - Is it the right time? Federal Courts can’t hear cases too early or too late.

3. Political Question Doctrine - Is it a political question? If yes, they can’t hear it.

Judiciary

Concern 1: Standing

Standing - Is this the right P? P needs Standing.

3 Parts

1. Injury

   • P must have been harmed in a personal and particularized way

     1. Personal: not shared by everyone

   • Must be concrete

   • Doesn’t have to be economic 

     1. Injunctive or Declaratory Relief

        1. P must show a likelihood of future harm

     2. Test Cases

        1. P brings a case to test the constitutionality of a particular rule

   • No generalized grievances

     1. Exceptions

        1. Establishment Clause Challenges  → Taxpayers do have standing to challenge government expenditures made pursuant to federal (or state and local) statutes

        2. Challenging Tax Bill

2. Causation

   • D caused the injury 

3. Redressability

   • Court decision is likely to remedy the injury. 

Generally NO Third Party Standing

• Exceptions

  1. Close relationship to third-party 

  2. Third Party unlikely to assert own rights

  3. Organization

     • Requirements

       1. members would have standing to sue;

       2. interests are germane to the organization’s purpose; and 

       3. neither the claim nor the relief requires the participation of individual members

Judiciary

Concern 2: Ripeness & Mootness

Ripeness & Mootness - Is it the right time? Federal Courts can’t hear cases too early or too late.

Ripeness → Matured into a real dispute

1. Exception: Pre-Enforcement Review

   • Case seeking declaratory judgment that the law is unlawful or not applicable to P

   • Courts look at 2 factors:

     1. Substantial hardship → Whether waiting would cause P harm

     2. Fitness for judicial review → Whether a decision would be relying on uncertain or contingent future events

Mootness → Real life controversy at all stages of a federal court case

1. Exception: Wrongs capable of repetition yet evading review 

   • If there is a reasonable expectation that:

     1. The same complaining part 

     2. Is likely to be subject to the same action (again)

     3. And would be unable to resolve the issue because of short duration (again)

   • Then the action is not moot

2. Exception: Voluntary Cessation

   • D halts the offending conduct but is free to resume it an any time

3. Exception: Class Action

   • Okay if named P’s claim becomes moot so long as one member has an ongoing injury

Judiciary

Concern 3: Political Question Doctrine

Political Question Doctrine - Is it a political question? If yes, they can’t hear it.

Political questions doctrine → no

• Involve

  1. Constitutionally committed to another branch of government or

  2. Inherently incapable of judicial resolution

• Examples of political questions include:

  1. Challenges based on the “Republican Form of Government” Clause of Article IV

  2. Challenges to the President’s conduct of foreign policy

  3. Challenges to the impeachment and removal process

  4. Challenges to partisan gerrymandering (that is, where a legislature draws election districts to maximize safe seats for the party in control of the legislature)

• Challenging the validity of a federal statute should not be dismissed as a political question even if the case involves a dispute between branches of the federal government regarding foreign affairs

Advisory opinions → no

Supreme Court Review

Appellate jurisdiction

• Two ways to come to the Court

  1. Writ of Certiorari → Most Cases

     • Discretion to hear

     • Types of cases

       1. Cases from state courts where 

          1. the constitutionality of a federal statute, federal treaty, or state statute is in issue; OR

          2. a state statute allegedly violates federal law

       2. All cases from federal courts of appeals

  2. Appeal → Rare Cases

     • Must hear these cases

     • Confined to decisions by three-judge federal district court panels that grant or deny injunctive relief

Original jurisdiction

• Original and Exclusive Jurisdiction over

  1. Suits between states

  2. Suits where one party is a state

  3. Cases affecting ambassadors, public ministers, and consuls

• Congress has given concurrent jurisdiction to lower federal courts in all these cases

Rules

1. Final Judgment Rule 

   • SC may only hear if there has been a final judgment from the highest state court

2. Will review a state court decision only if the decision is not supported by an independent and adequate state law ground

   • If the state court decision rests on two grounds (one state and one federal) and if the SC’s reversal of the federal one will not change the result in the case, SC will not hear it

   1. Independent → decision is not based on federal case interpretations of identical federal provisions

      • If the state court didn’t clearly indicate whether its decision rests on state law, the Supreme Court may hear the case

   2. Adequate → fully dispositive of the case

3. May review the constitutionality of acts of other branches of the federal government

   1. May also review state acts pursuant to the Supremacy Clause

Lower Federal Court Review

Eleventh Amendment bars suits against states in federal court.

Sovereign immunity bars suits against states in state courts or federal agencies.

Federal court (and state court) cannot hear suits against state governments

• Exceptions to State sovereign immunity

  1. Express waiver

     • Example: torts claims

  2. Congress removes the protection

     • May be sued pursuant to federal laws adopted under Section 5 of the Fourteenth Amendment, but it must be unmistakably clear that Congress intended to remove the protection

  3. Suits by federal government and other states

     • Federal government vs. state government → okay

     • State government vs. state government → okay

  4. Suits based on the “plan of the convention”

     • Allows suits involving

       1. Bankruptcy

       2. Federal laws adopted based on Congress’s power to raise an army and a navy

• Suits against state officers

  1. Can sue:

     • for damages personally or 

     • to enjoin the official from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state

  2. Prohibited if it seeks retroactive damages

• Entities not protected by sovereign immunity

  1. Local governments

  2. Police departments

Absentation

• Federal courts may not enjoin pending state court proceedings.

• If state law is unclear and state court clarification of that law could make a federal constitutional ruling unnecessary, then the federal court will abstain.

Federalism—Federal vs. State Power

Constitution gives some powers exclusively to the federal government

• Some powers exclusively to the states

• Rest of governmental power is shared by both (the states and the federal government are said to have concurrent power).

1. Supremacy Clause

2. Intergovernmental Immunities

3. 10th Amendment

4. Full Faith and Credit Clause

5. Interstate Commerce

Federalism—Federal vs. State Power

Supremacy Clause

Federal Law is Supreme.

• Conflict between federal and state or local law → federal law wins

Preemption (conflict between federal law and state and local law, the federal law will preempt the state law)

1. Expressed Preemption

   • If a federal law says it wins or it's exclusive → federal law wins

2. Implied Preemption

   • 3 Types

     1. Conflict: Can’t comply with both → federal law wins

     2. Object: State law impedes federal objective → federal law wins

     3. Field: Congress intends to occupy the field → federal law wins

        • Example: Immigration

        • Start with the presumption that state law isn’t preempted.

          1. Historic state police powers are not superseded unless that was the clear and manifest purpose of Congress

Federalism—Federal vs. State Power

Intergovernmental Immunities

State’s can’t tax or regulate federal government activity

Tax:

• No direct taxing federal instrumentalities without congressional consent

  • Nondiscriminatory, indirect taxes okay (tax that applies to everyone) as long as doesn’t unreasonable burden the federal government

• Unconstitutional to pay a state tax from the federal treasury

Regulate

• State’s can’t regulate the federal government if they put a substantial burden on federal activity

  • Example: federal government doesn’t have to comply with state pollution control laws

Federalism—Federal vs. State Power

10th Amendment

This provision has been used to prevent the federal government from singling out states for regulation.

Anti-Commandeering Principle: Congress can’t commandeer the states by commanding them to pass state laws or commanding them to enforce federal law.

1. But the Federal Government has a way of persuading the states to act

   • Conditional Spending (Money with Strings)

     • Won’t violate the 10th Amendment if Condition:

       1. Must be expressly stated 

       2. Must relate to the purpose of the program

       3. Must not be unduly coercive

       4. Must not otherwise violate the Constitution

2. Congress may restrict states from discriminating in violation of equal protection or depriving rights protected by due process (14th Amendment)

   • Can create new rights or expand the scope of rights

   • Laws must be narrowly tailored: Proportional and congruent to wrongs

3. Can regulate or tax if the law or tax applies to both the public and private sector

4. Congress may prohibit harmful commercial activities by state governments

Federalism—Federal vs. State Power

Full Faith and Credit Clause

Certain state court judgments must be recognized in other states

Applies if

1. The court that rendered the judgment had jurisdiction over the parties and the subject matter (if the issue of jurisdiction was litigated in one state, that ruling must be recognized in other states too); AND

2. The judgment was on the merits; AND

3. The judgment is final

Federalism—Federal vs. State Power

Interstate Commerce

Dormant Commerce Clause (DCC) (Negative Implications of the Commerce Clause)

• State or local law is unconstitutional if it places an undue burden on interstate commerce.

  • Balancing Test: Nondiscriminatory state law that burdens interstate commerce will be valid unless the burden outweighed the promotion of a legitimate local interest.

Privileges AND Immunities Clause (P&I)

• State may not deprive citizens of other states of the privileges and immunities it accords its own citizens.

  • Protects only individual citizens

• Don’t confuse with the Privileges OR Immunities Clause of the 14the Amendment

  • Protects attributes of national citizenship: right to vote for federal officers, enter public lands or travel among the states

    • Note: Always the wrong answer unless it involves the right to travel

  • Comes into play when Newcomers vs. Oldtimers

Federalism—Federal vs. State Power

Interstate Commerce - Steps

State law that impacts interstate commerce or that discriminates against out of staters when Congress hasn’t spoken on the matter

Does the law discriminate against out of staters?

If no, then no P&I issue.

1. But does the law burden interstate commerce?

   • Then Dormant Commerce Clause issue. 

     • Violates if its burden exceeds its benefits. Court will consider whether less restrictive alternatives are available.

If yes, DCC and P&I issue here.

1. DCC: Law discriminates against out-of-staters invalid unless necessary to achieve important government purposes. State must show that no less discriminatory alternatives are available. 

   • Exceptions: 

     1. Congressional Approval

     2. Market Participant 

        • State itself may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses

     3. Performing Traditional Government Function

        • Likely motivated by legitimate objectives rather than by economic protectionism

2. P&I: Law discriminates against out-of-staters invalid unless necessary to achieve an important government purpose

   • Discrimination must impacts fundamental rights OR important economic activities (right to earn a living)

     • Corporations and aliens cannot sue under P&I

   • No exceptions

Federalism—Federal vs. State Power

Interstate Commerce - Powers of States to Tax Interstate Commerce

Congress has complete power to authorize or forbid state taxation that affects interstate commerce

1. States can’t use tax to help in-state businesses

   1. They can tax if there is a substantial nexus to the state

      1. Substantial Nexus: business avails itself of the privilege of doing business in the state

         1. Physical presence not necessary 

   2. Must be fairly apportioned

Use Taxes

1. Imposed on goods purchased outside the state but used within it

   1. Valid in Buyer’s state 

   2. Interstate Seller may be required to collect a use tax if the seller has substantial nexus with the taxing state

Sales Taxes

1. Imposed on the seller of goods for sales consummated within the state

   • Key issue → whether there is a substantial nexus between the taxpayer and the taxing state or whether the tax is properly apportioned

2. Ad valorem property taxes are based on the assessed value of the property in question

3. Commodities in interstate transit are entirely exempt from state taxation

   • Interstate transportation begins when the cargo is delivered to an interstate carrier or actually starts its interstate journey

     1. 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

     2. Usually ends when the cargo reaches its destination 

        • Thereafter the goods are subject to local tax

4. Taxes on instrumentalities of commerce (for example, trucks or airplanes) depends on 

   • Whether the instrumentality has acquired a “taxable situs” in the taxing state (that is, whether there are sufficient “contacts” with the taxing state to justify the tax) and 

     • Taxable Situs: if it receives benefits or protection from the state

   • Whether the value of the instrumentality has been properly apportioned according to the amount of the “contacts” with each taxing state

     • 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

5. “Doing business” taxes (privilege, license, franchise, or occupational taxes) are generally permitted

   • Basic Requirements: Tax must

     1. Have a substantial nexus with the taxing state

     2. Be fairly apportioned

     3. Not discriminate against interstate commerce

     4. Fairly relate to services provided by the state

   • If the affects interstate commerce, ask

     1. Does the question refer to any federal legislation that might forbid the state tax, preempt the field, or authorize state taxation?

     2. If none of these possibilities is dispositive, does the state tax discriminate against or unduly burden the free flow of interstate commerce? 

        • If the state tax discriminates or is unduly burdensome (no substantial nexus, unfair apportionment, or no fair relationship), it is invalid.

Federalism—Federal vs. State Power

Interstate Commerce - Power of States to Tax Foreign Commerce

Import-Export Clause and the Commerce Clause greatly limit the states’ power to tax foreign commerce

Federalism—Federal vs. State Power

Interstate Commerce - State control over intoxicating liquor

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

  • Regulations that constitute only an economic preference for local liquor manufacturers may violate the Commerce Clause

Interstate regulation

• Liquor in interstate commerce: subject to Commerce Clause

Federal power

• May regulate economic transactions involving liquor through the federal commerce power or by conditioning grants of money

Individual Rights

The Constitution protects individuals by limiting what the government can do.

1. State Action

2. Levels of Scrutiny

3. Due Process

   • Procedural Due Process

   • Substantive Due Process

4. Equal Protection

5. Takings Clause

6. Retroactive Legislation

7. Freedom of Speech

8. Freedom of the Press

9. Freedom of Association

10. Freedom of Religion

Individual Rights - State Action

State Action

Must be governmental conduct

Not private conduct

1. Congress may apply constitutional norms to private conduct

   • 13th Amendment → can be used to prohibit private race discrimination

   • Commerce Clause → can be used to apply constitutional normal to private conduct 

   • 5th Amendment → can’t be used to regulate private behavior

2. Exceptions

   1. Public Function: Activities that are traditionally the exclusive prerogative of the state

      • Example: Company Town

   2. Entanglement: State affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens

      • Examples:

        • Courts cannot enforce racially restrictive covenant

        • State Action

          1. Government leases premises to a restaurant that racially discriminates

          2. State provides books to schools that racially discriminate

          3. Private entity regulates scholastic sports within a state 

        • Not State Action

          1. Private school that is over 99% funded by the government fires a teacher because of her speech

          2. NCAA orders the suspension of a basketball coach at a state university

          3. Private club with a liquor license from the state racially discriminates

          4. Grant of a state license

          5. Grant of a monopoly to utility company

          6. Grant of a state land or funds

Application Bill of Rights

• Applies directly to the federal government

• 14th Amendment Due Process Clause applies most of the Bill of Rights to state and local governments

  • Exception:

    1. 3rd Amendment → Right not to have a soldier quartered in person’s home

    2. 5th Amendment → Right to grand jury indictment in criminal cases

    3. 7th Amendment → Right to jury trial in civil cases

Individual Rights - Levels of Scrutiny

Strict Scrutiny (Government usually loses)

• Applies when:

  1. Discrimination is based on suspect classification OR

     • RAN: Race, Alienage, and National Origin

  2. Fundamental right is implicated

     • Right to vote, travel, privacy

• Test: Government must show

  1. Law is necessary to achieve 

     • I.e. no less restrictive means must exist

  2. Compelling government interest

     • I.e. necessary or crucial for society

• Discrimination against aliens

  1. State discrimination against aliens → apply strict scrutiny

     • Exception: discrimination concerning self-government 

       1. State may discriminate against aliens subject only to minimum rational basis scrutiny

          • Ex. police, teachers, serving on a jury

  2. Federal discrimination against aliens → apply rational basis test

Intermediate Scrutiny

• Applies when:

  1. Discrimination is based on gender OR

  2. Discrimination is based on child being born to unwed parents

• Test: Government must show

  1. Law is substantial related

     • I.e. close “fit” needed - not necessarily least restrictive means

  2. To an important government interest

     • Something less than compelling; something more than legitimate

     • Gender discrimination - requires exceedingly persuasive justification

Rational Basis (P usually loses)

• Applies when:

  1. Neither strict scrutiny nor intermediate scrutiny apply

  2. Discrimination is based on:

     • Age, poverty/wealth, mental incapacity, necessities for life

• Test: Plaintiff must show

  1. Law is not rationally related

  2. To any legitimate government interest

Individual Rights - Due Process

No person would be deprived of life, liberty, or property without due process of law.

• 5th Amendment → federal government.

• 14th Amendment → state and local government.

Fair Notice

• Laws that regulate people or entities must give fair notice of conduct that is forbidden or required

Procedural Due Process

• Procedures the government must follow when it takes away a person’s life, liberty, or property.

  • Has there been a Deprivation of life, liberty, or property?

  • What Procedures are required?

Substantive Due Process

• Government needs an adequate reason for taking away a person’s life, liberty, or property.

  • Rational Basis

  • Strict Scrutiny

  • Other Rights

Individual Rights - Due Process

Procedural Due Process

Has there been a Deprivation of life, liberty, or property?

Procedures the government must follow when it takes away a person’s life, liberty, or property.

Has there been a Deprivation of life, liberty, or property?

1. Liberty → Deprivation of liberty occurs if there is a significant loss of freedom of action or the loss of a significant freedom provided by the Constitution or a statute

   • Example: Institutionalization 

   • Exceptions: 

     1. Harm to reputation by itself is not a lose of liberty

     2. Prisoners rarely have liberty interests

     3. Laws affecting economic liberties → rational basis review

        1. Minimal protection government usually wins

        2. Taking Clause (See Below)

        3. Contract Clause (See Below)

2. Property → Entitlement is not fulfilled 

   • Entitlement: Reasonable expectation of continued receipt of a benefit 

     1. Can include government benefits 

        1. If you have a legitimate claim or entitlement to government benefits = Reasonable expectation of continued receipt (based on law or policy)

        2. Examples: social security payments, attending public schools, government licenses, government jobs

3. Deprivation → Intentional government action (or at least reckless action)

   • Government’s negligence isn’t enough

     1. Emergency Exception: liable only if its conduct “shocks the conscious” 

   • Failure to protect people from privately inflicted harm isn’t a denial of due process

   • Must be made on an individual basis

Individual Rights - Due Process

Procedural Due Process

What Procedures are required?

Procedures the government must follow when it takes away a person’s life, liberty, or property.

What Procedures are required?

1. Generally

   • Fair and unbiased decision maker 

     1. Uses a Balancing Test:

        1. Importance of interest to individual

        2. Ability of addition procedures to increase accuracy of fact-finding

        3. Government’s interest 

           1. Trying to save time and money

   • Notice and a chance to respond usually required before

     1. Sometimes a post-deprivation hearing is okay

2. Specific Instances

   • Institutionalization

     1. Except in emergency before a person can be institutionalized → must be notice and a hearing

   • Children

     1. Parent has institutionalized a child → only needs to be a screening by a neutral fact finder

     2. School discipline a student → must be notice of charges and opportunity to explain

     3. Corporal punishment in schools → no due process required

     4. Parent’s right to custody of child → notice and hearing before can be permanently terminated 

   • Civil Forfeiture

     1. Real Property → Government must provide owner notice and opportunity for some hearing prior to seizure

     2. Personal Property → Government may seize it prior to hearing in exigent circumstance (since it can be hidden or destroyed)

     3. Government may seize property used in illegal activity even if it has an innocent owner

   • Benefits

     1. Welfare Benefits → notice and hearing before termination

     2. Social Security Benefits → only need a post-termination hearing

   • Government Employee

     1. Removable for cause → notice and pretermination opportunity to respond to those charges

   • Other

     1. Punitive Damages Award → instructions to jury and judicial review to ensure reasonableness

     2. American Citizen detained as enemy combatant → due process required

3. Subject to Waiver if voluntary and knowingly

   • Government fees (such as court filing fees) must be waived when the imposition of a fee would deny a fundamental right to the indigent

Individual Rights - Due Process

Substantive Due Process

Rational Basis

Government needs an adequate reason for taking away a person’s life, liberty, or property.

Rational Basis: Law upheld unless it is not rationally related to any legitimate purpose

• Burden on challenger

• Applies for everything else

  1. Abortion (state’s rights)

     1. legitimate state interests → 

        1. respecting and preserving prenatal life at all stages of development

        2. protecting maternal health and safety

        3. eliminating “particularly gruesome or barbaric medical procedures”

        4. preserving the integrity of the medical profession; 

        5. mitigating fetal pain

        6. preventing discrimination based on race, gender, or disability

  2. Regulations that don’t substantially burden the right to marry, such as minimum age requirements

Individual Rights - Due Process

Substantive Due Process

Strict Scrutiny

Government needs an adequate reason for taking away a person’s life, liberty, or property.

Strict Scrutiny: Law necessary to achieve a compelling government purpose

• Burden on government

• Applies for fundamental rights (whether it is deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty - Education not a fundamental right)

  • Privacy-related rights (Abortion used to be here)

    1. Right to marry

       • Interracial and same-sex marriage

       • Restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests

    2. Right to procreate 

    3. Right to purchase and use contraception

    4. Right to custody

       • Cannot permanently terminate parental custody unless it has a compelling reason

       • State may create an irrefutable presumption that a married woman’s husband is the father of the child

    5. Right to keep family together

       • Regulations that prevent family members, including extended family, from living together are invalid

       • Does not extend to unrelated people

    6. Other parental rights

       • Include the companionship, care, custody, and management of children

    7. Obscene reading material

       • Freedom to read obscene material in one’s home (except for child pornography)

       • Not the right to sell, purchase, or transport such material

  • Right to travel among the states

    1. Laws that permit people from moving to a state → Strict scrutiny

       • Example: increased penalties for a father abandoning his children and leaving the state are valid

    2. Durational residency requirements → Strict scrutiny

       • Example: requiring a person to live in a jurisdiction for a specified time in order to be eligible to receive a benefit

    3. Foreign travel → Rational Basis

  • First Amendment rights

  • Right to Vote

    1. Restrictions

       1. Reasonable time periods for residency okay (50 days is the max)

       2. Laws keeping some citizens from voting (Law keeping non-citizens from voting --> rational basis)

          1. Can’t condition on ownership of property (exception: special purpose elections)

          2. Poll Tax

          3. Okay to require government issued voter id

       3. Early registration to vote in primaries okay (but can’t prohibit political parties from opening their primary elections to anyone)

    2. Dilution - One person one vote

       1. Congressional Elections

          • Must use almost exact mathematical equality when creating congressional districts within the state

          • Not true for Congress 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.

       2. State and Local Elections

          • Populations of voting districts must be substantially equal. 

          • A state must show that a deviation from mathematical equality is reasonable and tailored to promote a legitimate state interest (for example, preserving political subdivisions), although a 10% variance is presumptively valid.

       3. Districts can be measured using total population

       4. Exception: Appointed officials and officials elected at large

          • The apportionment requirement is inapplicable to officials who are appointed or elected at large. At large elections (that is, when all of the voters vote for all of the office holders) are constitutional unless there’s proof of a discriminatory purpose.

       5. 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 (for example, water storage districts).

    3. Other Dilution Topics

       1. Race (and presumably other suspect classifications) cannot be the predominant factor in drawing the boundaries → strict scrutiny

       2. States May Use Independent Commissions to Draw Districts

       3. Counting uncounted votes without preset standards → invalid

    4. Candidates and Campaigns 

       1. May not charge candidates a fee that results in making it impossible for indigents to run 

       2. Restrictions on Ability to Be a Candidate okay if reasonable, nondiscriminatory means of promoting important state interests

       3. May allocate more public funds to the two “major” parties than to “minor” parties

Individual Rights - Due Process

Substantive Due Process

Other Rights

Government needs an adequate reason for taking away a person’s life, liberty, or property.

Other Rights

1. Right to refuse medical treatment - unsure what scrutiny

   • Competent adults have right to refuse medical care, even life saving medical care

     • Does not include communicable diseases

   • State may require clear and convincing evidence that a person wanted treatment terminated before it is ended

   • State may prevent family members from terminating treatment for another

2. No right to physician assisted death

3. Right to engage in consensual sexual activity (including with someone of the same sex)

   • However, the government has no business nosing in on what goes on behind closed doors between consenting adults (if the activity isn’t commercial) - Meaning more than rational basis

4. 2nd Amendment (gun ownership)

   • Includes right to have guns in the home for security

   • Regulation burdens an individual’s right to keep and bear arms → 

     • Government must show that the regulation is consistent with the country’s historical tradition of firearm regulation

   • Unconstitutional

     • Law that gives an official discretion in granting permits

     • Require someone who is applying for a concealed carry permit to show they need it for safety

Individual Rights - Equal Protection

No state can deny any person within its jurisdiction the equal protection of the laws.

• 5th Amendment → Federal Government

• 14th Amendment → State and Local Government

Claim arises when the government treats some people differently than others.

1. Identify the classification

2. Determine the level of scrutiny

3. Determine whether the applicable test is met

Individual Rights - Equal Protection

• Identify the classification

Suspect Classifications:

1. Race & National Origin (whether it harms or benefits)

   1. Race & National Origin

      • Shown 2 ways

        1. Classification evident on the face

        2. Law facially neutral 

           • Racial classification requires both discriminatory impact and intent

      • Affirmative Action

        1. Race-based plan cannot be used to remedy past general societal discrimination

        2. Numerical set-asides require clear proof of past discrimination

        3. Diversity in public and higher education 

           • Have a diverse student body → not an interest compelling enough to overcome strict liability

      • In drawing voting districts race cannot be the predominant factor 

      • Discriminatory use of peremptory challenges based on race denies equal protection

   2. Alienage

      • Federal Classification → Rational basis 

        1. Valid if not arbitrary and unreasonable

      • State & Local Classifications → strict scrutiny

        1. Exception: discriminates against alien participation in state government and the democratic process → rational basis standard 

           • Examples: Voting, serving on jury, and being police officer, teacher, or probation officer

      • Undocumented Aliens

        1. State and local laws that differentiate based on whether a person is an undocumented (“illegal”) alien 

           • not applying a suspect classification

        2. Discrimination against undocumented alien children → Intermediate scrutiny 

2. Religion

Quasi-Suspect Classifications:

1. Gender (sex)

   1. Intermediate scrutiny AND exceedingly persuasive justification

      • Intentional discrimination against men or women (or based on stereotypes) → invalid

      • Classifications that are designed to remedy past discrimination and differences in opportunity → Valid

   2. Shown 2 ways

      • Classification evident on the face

      • Law facially neutral 

        • Racial classification requires both discriminatory impact and intent

2. Non-marital children 

   1. Laws benefiting all marital and no non-marital children → invalid

   2. Laws benefiting all marital and some non-marital children → Depends

      • Laws allowing nonmarital children to recover from their fathers’ estates only if parenthood is established before the father’s death → valid

All Other Classifications

1. Age

2. Disability

3. Wealth

4. Economic

5. Sexual Orientation

Individual Rights - Equal Protection

2. Determine the level of scrutiny

Strict Scrutiny: Law necessary to achieve a compelling government purpose

1. Burden on government

2. Must be the least restrictive alternative

3. Applies for suspect classifications

Intermediate Scrutiny: Law substantially related to an important government purpose

1. Burden on government

2. Applies for quasi-suspect classifications

Rational Basis: Law upheld unless it is not rationally related to any legitimate purpose

1. Burden on challenger

2. All other classifications

Individual Rights - Equal Protection

3. Determine whether the applicable test is met

Strict Scrutiny: Most government action will fail

Intermediate Scrutiny: Can go either way

Rational Basis: Most government action will pass

1. Exception: Animus

   • If the government’s only interest in denying a benefit to or imposing a burden on a group of people is a dislike of the group, the classification won’t meet rational basis review.

     • Ill will toward a group just for being different is not a legitimate government interest.

Individual Rights - Takings Clause

5th Amendment → Federal Government

14th Amendment → State and Local Government

Limitation on power: Government can’t take private property for public use without just compensation.

Property

1. Applies to real and personal property

2. Applies to intangible property

Taking

1. Actual / possessory taking (requiring payment of just compensation)

   • Even if the amount of property involved is tiny

   • Even when the government hands the property off to a private party

   • Exception: emergency situations

2. Regulatory Takings (not requiring compensation)

   • Regulations that deny a landowner of all economically viable use of their land

     • Temporary denials of all economic use → Courts examine all factors to determine whether fairness and justice require just compensation (Must be reasonable)

   • Generally, not regulations that merely decrease the value of property if they leave an economically viable use for the property

     • Courts consider:

       1. Government interests

       2. Economic impact on the owner

       3. Whether the regulation substantially interferes with the owner’s distinct, investment-backed expectations

     • Result: usually no taking

   • P can challenge pre existing regulations

3. Exactions

   • Condition building or development permits on a landowner either conveying title to all or part of the property to the government or granting the public an easement to access the property

     • Takings unless:

       1. Government can show there is an essential nexus between the condition and the proposed development AND

       2. Adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer

Public Use

1. If the government acts of a reasonable belief that the taking will benefit the public

   • Requirement liberally construed

   • Taking, whether actual or regulatory, must be rationally related to a legitimate public purpose

2. If not for public use, then the taking is unconstitutional

Just Compensation

1. Typically fair market value at the time of the taking

2. Measured in terms of the loss to the owner, not the gain to the taker

Government won't cite this when it is taking property. The person who's property is being taken would cite this.

• Government would cite to Eminent Domain

  • Common law doctrine that gives the government the power to take your property

Individual Rights - Retroactive Legislation

1. Contract Clause - Impairment of Contract

2. Ex Post Facto Clause

3. Bills of Attainder

4. Due Process Considerations

Individual Rights - Retroactive Legislation

Contract Clause - Impairment of Contract

Limits the ability of states or local governments to enact laws that retroactively impair existing contract rights

• Nothing similar applicable to federal government (rational basis)

1. Private Contracts → Intermediate Scrutiny

   • Showing of substantial impairment of rights under existing contract

   • Government action has to be reasonably and narrowly tailored to legitimate and important government interest

2. Public (Government) Contracts → Strict Scrutiny

Individual Rights - Retroactive Legislation

Ex Post Facto Clause

Can’t criminally punish conduct that was lawful when it was done or that increases punishment for a crime after it was committed

• Only for criminal laws

• Retroactive civil liability gets rational basis review

Statute will be held to retroactively alter a law if it does any of the following:

• Makes criminal an act that was innocent when done

• Prescribes greater punishment for an act than was prescribed for the act when it was done

• Reduces the evidence required to convict a person of a crime from what was required when the act was committed

Individual Rights - Retroactive Legislation

Bills of Attainder

Legislative acts that inflict punishment on specific individuals without a judicial trial

Both federal and state governments are prohibited from passing bills of attainder

Individual Rights - Retroactive Legislation

Due Process Considerations

If a retroactive law doesn’t violate the Contract, Ex Post Facto, or Bill of Attainder Clauses, it still must pass muster under the Due Process Clause.

If the retroactive law doesn’t relate to a fundamental right, it need only be rationally related to a legitimate government interest.

Individual Rights - Freedom of Speech

Can’t make any laws that abridge the freedom of speech

• 1st Amendment → Federal Government

• 14th Amendment → State and Local Government

Speech: Words, symbols, or conduct intended to convey a message and reasonably likely to be perceived as doing so

• Anonymous speech protected

Government can also not compel you to speak

1. May tax and use revenue to express message they disagree with

   • Exception: 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 beliefs are offensive to the student, as long as the program is viewpoint neutral.

2. Public accommodation laws which prohibit certain forms of discrimination when businesses offer goods and services to the public, sweep too broadly when they compel speech

Government speech not covered (can’t be challenged)

1. Government speech and government funding of speech generally will be upheld if it is rationally related to a legitimate state interest

   • Limitations: Not All Speech Activity on Government Property Is Government Speech

     • Factors in determining whether government speech

       1. History of the expression at issue

       2. Public’s likely perception as to who (government or private person) is speaking

       3. Extent to which the government has shaped the message

2. Spending Programs

   • May not impose conditions that limit First Amendment activities of fund recipients outside of the scope of the spending program itself

3. Government Funding of Private Speech

   • Must be viewpoint neutral basis 

   • Exception: Government cannot fun arts

4. Trademark Protection = Private Speech → Strict Scrutiny

Symbolic Speech

Government can regulate conduct that communicates if

• Important interest unrelated to suppressing message

• Impact on communication is no greater than necessary to achieve purpose

Examples

1. Flag burning cannot be banned in all circumstances

   • Ban on burning draft cards can be

2. Nude dancing is (marginally) protected speech

   • Local governments may prohibit public nudity to control the secondary effects that accompany public nudity, such as prostitution and a rise in crime.

3. All cross-burning cannot be banned

   • But when done with the intent to convey an immediate threat is not protected speech

4. Contribution limits in election campaigns are generally constitutional

   • Expenditure limits are unconstitutional.

Trespass not protected

Speech - Prior Restraints

Prevent speech before it occurs → Strict Scrutiny + special societal harm would result absent restraint

Can require a license for speech only if

1. There is an important reason for licensing and 

2. Clear criteria leaving almost no discretion to the licensing authority

3. Procedural safeguards:

   1. The standards must be narrowly drawn, reasonable, and definite

   2. It must be possible for an injunction to be promptly sought

   3. There must be prompt and final determination of the validity of the restraint.

Government Restrictions Attack

Facial Attack: Preliminary matter, speech will not be upheld:

1. Overbreadth: regulates substantially more speech than the Constitution allows

2. Vagueness: reasonable person can’t tell what’s prohibition and what’s allowed

Content-Based Restrictions → strict scrutiny (presumptively unconstitutional)

• Based on subject matter or viewpoint

Conduct Restrictions (Content-Neutral) → intermediate scrutiny

• apply time, place, and manner test

• forums

Statute is regulating conduct (content neutral).

Forums

Government has power to regulate conduct but depends on the forum involved:

Public forums → government owned properties that have historically been open to speech-related activities (ex: streets, parks, and sidewalks)

1. Regulation Must: (intermediate scrutiny)

   1. Further important government interest

   2. Be narrowly tailored

   3. Leave open alternative channels of communication

2. City officials cannot have discretion to set permit fees for public demonstrations

3. Injunction: must burden no more speech than is necessary to achieve an important government interest

Designated public forums → areas where the government allows public property, not historically open to speech related activities, to be used for speech activities at particular times (ex. School rooms)

1. Regulation Must: (intermediate scrutiny)

   1. Further important government interest

   2. Be narrowly tailored

   3. Leave open alternative channels of communication

Nonpublic forums → areas where the property is not historically been open for speech related activities (ex. Military bases, jails, government workplaces, airports)

1. Regulation must:

   1. Be viewpoint neutral

   2. Be reasonably related to legitimate government purpose

2. Public K-12 schools are nonpublic forums.

   1. Means schools can punish students for speech that’s disruptive of school activities

Limited public forums → open for speech activities for a particular purpose (ex. School auditorium open to the public to host a candidate debate)

1. Regulation must:

   1. Be viewpoint neutral

   2. Be reasonably related to legitimate government purpose

Individual Rights - Freedom of Speech

Less protected or unprotected speech

1. Incitement of Illegal Activity → Less Protected

2. Obscenity → Not Protected

3. Defamation → Less Protected

4. Commercial Speech: Protected it it’s truthful, not when it’s unlawful, untruthful, or fraudulent

5. Liquor Regulation

6. Privacy

7. Government Employees

8. Other Content Restrictions → strict scrutiny 

Individual Rights - Freedom of Speech

Less protected or unprotected speech

1. Incitement of Illegal Activity

Incitement of Illegal Activity → Less Protected

1. May punish if 

   • Speech intended to cause imminent illegality and substantially likely to cause imminent illegal activity

2. Fighting Words

   • True Threats: conveys a message that the speaker is going to harm the recipient of the message

     • Speaker must subjectively understand that their message is threatening

   • Fighting words laws - unconstitutionally vague and overbroad

Individual Rights - Freedom of Speech

Less protected or unprotected speech

2. Obscenity

Obscenity → Not Protected

1. Obscene if it describes or depicts sexual conduct that:

   • Appeals to the prurient (excessive) interest in sex

     • Indecent or vulgar

   • Patently offensive (to state or local community) 

   • Lacks serious artistic, literary, political, or scientific value (national standard)

2. Zoning Regulations

   • May limit the location or size of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such businesses 

     • May not ban such establishments altogether.

3. Minors

   • Child Porn - Government may prohibit the sale or distribution

   • Simulated Pictures of Minors - Government cannot bar if it only appears to depict minors

   • Sale to Minors - Government may ban sale even if not obscene to adults

4. Private possession in the home cannot be punished (except Child porn)

5. Seizures of Books and Films

   • Single book or film → warrant based on probable cause

     • If available for sale, officer may purchase

   • Large scale seizure → preceded by full scale adversary hearing and judicial determination of obscenity 

6. Profane and indecent speech generally protected

   • Exceptions for regulation of broadcast media and in schools

     • Out of school speech more limited → must have been disruptive of school activities

7. Movie Censorship

   • Government can establish censorship boards to screen movies before they are released, as long as the procedural safeguards discussed above are followed

Individual Rights - Freedom of Speech

Less protected or unprotected speech

3. Defamation

Defamation → Less Protected

1. Public Officials or Public Figures

   • P prove all elements of defamation + falsity + actual malice

     • Actual malice: statement was made with knowledge that it was false or with reckless disregard as to whether it was false

2. Private Figure and Public Concern

   • P prove all elements of defamation + falsity + (Negligence or actual malice)

     • If actual malice, P can recover presumed or punitive damages

3. Private Figures and Non-Public Concerns

   • P can recover presumed or punitive damages without showing actual damage

Individual Rights - Freedom of Speech

Less protected or unprotected speech

4. Commercial Speech

Commercial Speech: Protected it it’s truthful, not when it’s unlawful, untruthful, or fraudulent

1. False and Deceptive Speech or Illegal Activity → can be prohibited

2. True commercial speech that inherently risks deception → can be prohibited

   • Can prohibit professionals from advertising or advertising under trade names

   • May prohibit attorney, in-person solicitation of clients for profit

   • May not prohibit accountants from in-person solicitation of clients for profit

2. Other commercial speech → intermediate scrutiny

   • Upheld only if 

     1. Serves a substantial government interest;

     2. Directly advances that interest; and

     3. Is narrowly tailored to serve that interest

3. May require commercial advertisers to make disclosures if 

   • the disclosures are not unduly burdensome; and 

   • they are reasonably related to the state’s interest in preventing deception

Individual Rights - Freedom of Speech

Less protected or unprotected speech

5. Liquor Regulation

Liquor Regulation

1. States have broad power to regulate intoxicating beverages

Individual Rights - Freedom of Speech

Less protected or unprotected speech

6. Privacy

Privacy

1. May not punish the truthful reporting of information that was lawfully obtained from the government

2. Punishment not allowed if the media broadcasts a tape of an illegally intercepted call

   • If the media did not participate in the illegality and it involves a matter of public importance

Individual Rights - Freedom of Speech

Less protected or unprotected speech

6. Government Employees

Government Employees

1. Speech by government employers on the job in the performance of their duties is not protected by the First Amendment

Freedom of the Press

No greater First Amendment freedom than a private citizen

1. Right to publish truthful information regarding a matter of public concern

   • Can be restricted by sanction narrowly tailored to further an interest of the highest order

2. Public and press a right to attend criminal (and probably civil) trials

   • Includes the right to be present at voir dire and at other pretrial proceedings unless the judge makes specific findings that closure is narrowly tailored to preserve a higher value

   2. May be outweighed by an overriding interest stated in the trial judge’s findings

3. May be required to testify before grand juries

4. No right to interview specified prisoners of their choice or to inspect prison grounds

Press and broadcasting companies cannot be targeted for special regulation or tax

1. Impacting on the press or a subpart of the press cannot be based on the content of a publication absent a compelling justification

Regulations

1. Radio and television broadcasting may be more closely regulated than the press

   1. Fairness Doctrine

      1. Does not require broadcasters to accept political advertisements

      2. Radio station may constitutionally be required to offer free broadcasting time to certain individuals

2. Cable TV Regulation

   1. Regulations of cable television transmissions generally are subject to intermediate scrutiny

3. Internet Regulation - Strict scrutiny applies

Freedom of Association

1. Government may neither prohibit politically unpopular groups nor unduly burden a person’s right to belong to such groups but not absolute

2. Electoral Process

3. Bar Memberships and Employment

4. School sponsorship of extracurricular clubs

Freedom of Association

• Government may neither prohibit politically unpopular groups nor unduly burden a person’s right to belong to such groups but not absolute

Government may neither prohibit politically unpopular groups nor unduly burden a person’s right to belong to such groups but not absolute

1. Laws that prohibit or punish group membership → strict scrutiny

   • To punish membership in a group it must be proven that the person:

     1. Actively affiliated with the group

     2. Knowing of its illegal activities

     3. With the specific intent to further those illegal activities

2. Laws that require disclosure of group membership → strict scrutiny if that disclosure would chill the right to association

3. Laws that prohibit a group from discriminating are constitutional 

   1. Unless they interfere with intimate association or discrimination integral to activities of group

Freedom of Association

• Electoral Process

Court uses a balancing test to determine whether a regulation of the electoral process is valid:

1. If the restriction on First Amendment activity is severe, it must be narrowly tailored to achieve a compelling interest (that is, strict scrutiny applies)

2. If the restriction is reasonable and nondiscriminatory, it generally will be upheld.

Limiting election campaign contributions → intermediate scrutiny

1. May limit the amount of money that a person, group, or corporation can contribute to a political candidate

2. May not limit the amount of money that may be spent to support or oppose a ballot referendum

3. May not limit the aggregate amount one person or entity contributes to political candidates or committees during an election 

   • It may limit the amount given to a single candidate

Limits on Expenditures

1. May not limit the amount that a candidate spends on a political campaign

2. May not limit the amount that a person spends to get a candidate elected

   • As long as the expenditures are not contributed directly to the candidate or coordinated with those of the candidate

Regulations of Core Political Speech

1. Regulation of “core political speech” (for example, electioneering or distributing campaign literature), rather than regulation of the process surrounding an election→ strict scrutiny

   • May ban personal solicitation of campaign funds by judicial candidates because such a ban advances the state’s compelling interest in preserving public confidence in the integrity of the judiciary. 

2. An ad concerning a political issue will be considered protected core political speech 

   • Unless the only reasonable interpretation is that it is an appeal to vote for or against a particular candidate

Freedom of Association

• Bar Memberships and Employment

Restraints on Speech Activities of Government Employees

1. Speech made on the job and pursuant to the employee’s official duties → government employer may punish

   • Even if the speech touches on a matter of public concern

2. Other Speech

   • Not made pursuant to an employee’s official duties, two tests apply:

     1. Does not involve a matter of public concern

        • Government employer a wide degree of deference and allow the employer to punish the employee if the speech was disruptive of the work environment.

     2. Involved a matter of public concern is involved

        • Courts must balance the employee’s right as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service.

3. Federal government may prohibit federal executive branch employees from taking an active part in political campaigns

4. Provision banning government employees from accepting an honorarium for making speeches, writing articles, or making appearances → invalid when applied to “rank and file” employees

5. Public employees may not be hired, fired, promoted, transferred, or the like, based on party affiliation or political views except as to policymaking positions, where party affiliation and views are relevant.

Loyalty Oaths

1. Can be valid if not overbroad or vague

   • Overbreadth: cannot prohibit membership in the Communist Party or require abstention from advocating overthrow of the government as an abstract doctrine

   • Vagueness: requiring public employees to support the flag is invalid because a refusal to salute the flag on religious grounds might conflict with the oath

Disclosure of Associations

1. May not force disclosure of every organizational membership in exchange for a government employment or other benefit

2. May inquire only into those activities that are relevant to the employment or benefit sought

   • Person can exercise his Fifth Amendment right to remain silent if the disclosure would be incriminating

Freedom of Association

• School sponsorship of extracurricular clubs

Test used in limited-public-forum-speech cases applies

1. Sponsorship of associations can be subject to regulation that is 

   • viewpoint neutral; and

   • reasonably related to a legitimate government interest

Freedom of Religion

No law establishing a religion or prohibiting the free exercise.

• 1st Amendment → Federal Government

• 14th Amendment → State and Local Government

Establishment Clause

• Government can’t sponsor a religion

Free Exercise Clause

• Government can’t punish someone based on their religious beliefs

Freedom of Religion - Establishment Clause

Government can’t sponsor a religion

1. No coercion 

2. Neutrality toward religion

3. No Speech or Sect-based preferences 

   • Unless the government can pass, strict scrutiny 

4. Interpreted by reference to historical practices

   • Founder’s intent

Religious activities in public schools

1. Government-sponsored (or school-organized) religious activity in public schools is unconstitutional

   • School accommodation of religion may be valid

   • Employee praying on own time allowed

Financial benefits to religious institutions

1. Aid to grade schools and high schools

   • May provide aid to religious schools so long as the funds are not actually used in religious instruction

   • Denial of funds for religious schools that are provided to secular private schools → invalid unless strict scrutiny

2. Recipient-based aid

   • May give aid in the form of financial assistance, including vouchers, to a defined class of persons as long as the class is defined without reference to religion or religious criteria

     1. Even if most of the recipients use the vouchers for parochial schools

Cases Unconnected to Financial Aid or Education

1. Law favoring or burdening religion or a specific religious group → invalid

   • Example: exempting only “traditional religions” from state registration requirements

2. Law favoring or burdening a large segment of society that happens to include religious groups → upheld

   • Example: Sunday closing law

Freedom of Religion - Free Exercise Clause

Government can’t punish someone based on their religious beliefs.

1. Religious Belief: 

   1. Traditional Religions OR

   2. Beliefs that play a similar role in the lives of believers

2. Courts won’t ask you to prove your beliefs are true.

   1. Courts can examine whether your beliefs are genuine.

Can’t be used to challenge a neutral law of general applicability

1. Neutral Law → Law not intended to target a religious practice (even if it interferes with one)

2. Law that intentionally discriminates → strict scrutiny

   • Law discriminates if it is either:

     1. Not neutral on its face (that is, the law is motivated by a desire to interfere with religion or the law expressly provides favored or disfavored treatment based on religious belief, conduct, or status) OR

     2. Facially neutral but not generally applicable (that is, the law is silent with regard to religion but, by design, it targets religion generally or a religion in particular)

   • Note: Religion suspect classification

3. If the program allows for some exceptions, then requests for exceptions related to religion must be considered as valid as other requests

   • Government denied such a request → strict scrutiny

No religious exemptions required for government regulations that happen to burden religious conduct

• Exceptions

  1. Ministers/Teachers

     1. Government may not hold a religious institution liable for its choices regarding who will serve as ministers or its teachers. 

     2. Ministers and teachers cannot sue religious organizations for employment discrimination

  2. Right of Amish not to educate children

Government can’t limit general available governmental benefits to non-religious organizations