Conlaw MBE Outline
Conlaw MBE Outline
Conlaw MBE Outline
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- Exception: P has standing to enforce a federal statute if she is within the “zone
of interests” congress meant to protect.
2. RIPENESS – (Avoiding Pre-mature litigation) – May the court grant pre-enforcement review
of a statute or regulation: (2-part test)
i. Hardship that will be suffered without pre-enforcement review
ii. Fitness of the issues and the record for judicial review (does federal court have
everything it needs to decide the question)
- MBE Tip: request for declaratory judgment is a ripeness question
- Ex. challenging statute before signed into law, or challenging a law after
enactment but before it is applied to plaintiff
3. MOOTNESS – A live controversy must exist at ALL stages of litigation. If the matter has
already been resolved, the case will be dismissed as moot.
i. Exceptions
- Capable of repetition but evading review (Roe v. Wade-pregnancy)
- Voluntary cessation – D halts offending practice but is free to resume at any
time
- Class action suits – As long as one member of the class has ongoing injury
ii. Ex. Parties die, events occur or lapse, change in law
4. POLITICAL QUESTION DOCTRINE – Fed cts. will NOT adjudicate political questions that have
constitutionally committed to another branch or inherently incapable of judicial resolution.
i. MBE: just know the following 4 categories will be dismissed as nonjusticiable PQs.
- "Republican form of government clause"
- Foreign Policy – Challenges of the President's conduct of foreign policy (i.e. the
war is illegal)
a. Including president’s ability to rescind treaties, even though Senate
must ratify
- Impeachment or Removal – Challenges to impeachment or removal process
a. i.e. w/n persons elected meet age, residency or voting requirements.
- Partisan Gerrymandering – Challenges to Partisan Gerrymandering
a. Drawing Voting district lines to maximize votes for republicans /
democrats
b. Can still bring a case for anything other than partisan purposes (Race)
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ii. Supreme Court MUST hear cases that come to it by appeal from decision of a three-
judge federal district courts (appeals skip appellate review and goes to Sup. Ct.)
3. Final Judgment Rule – Only hears cases after final judgment from the highest state court, a US
Court of Appeals, or a three-judge federal district court. (Must be a “case or controversy.”)
i. In other words, generally NO interlocutory review
4. State Law Grounds – The Supreme Court will hear State Cases regarding the constitutionality
of a federal statute, or whether a State Statute violates a federal law.
i. The Supreme Court will not hear a case that rests on an independent and adequate state law
ground of decision.
ii. The Supreme Court will NOT hear the case if reversal of the federal law ground will
NOT change the result because of a companion state law ground. (Can’t overrule state
law decisions)
iii. MBE: Residents file injunction under state and federal environmental law. The State
Supreme Court holds both violate, the Supreme Court cannot review, because
reversal of fed law would not change the outcome.
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i. The N&P clause standing alone cannot support federal law. It must work in
conjunction with another federal power.
2. Taxing and Spending Power – Congress may tax and spend for the general welfare
i. Taxing – Must raise some revenue
ii. Spending – Spending may be for ANY public purpose.
i. Limited – Although the taxing and spending powers are broad, they are sill limited by
all other constitutional provisions.
ii. MBE: If the answer states general welfare, then must be tax and spending or police
power
3. The Commerce Clause– Congress may regulate the:
i. Channels of interstate commerce (IC); (e.g. highways, waterways, internet)
ii. Instrumentalities of IC and persons or things in IC
- ANYTHING crossing state lines – Trucks, planes, trains, phones, internet,
stocks, insurance, radio signals, cattle, people.
iii. Economic activities that have a substantial effect on IC
- Intrastate Activity: If congress attempts to regulate intrastate activity the court
will uphold the regulation if:
a. It involves economic or commercial activity. (i.e. growing wheat or
medical marijuana), AND
b. Congress can conceive a rational basis that it has a cumulative effect on
interstate commerce.
- Non-Economic Activity – Congress cannot aggregate non-economic activity to
show a substantial effect on interstate commerce. (e.g. possessing a gun in a
school zone, or gender motivated violence)
4. War and Treaty Powers – Congress has the power to declare war, raise and support armies,
and provide for and maintain an army.
i. Remedy the Effects – Economic Regulations during war and in the post war period to
remedy the effects of war have been upheld.
5. Power to Coin Money – Congress has the power to coin money and fix weights and measures.
2. Power Over Citizenship – Congress may establish uniform rules of naturalization. This gives
congress plenary powers over aliens.
3. Congress’s Power under §5 of the 14A
i. Congress may NOT create new rights or expand the scope of rights
ii. May act only to prevent or remedy violations of rights recognized by the courts and
such laws must be proportionate and congruent to remedy the violations
4. 10A Limit on Congress Power – 10A states: all powers NOT granted to the United States, nor
prohibited to the states, are reserved to the states or the people.
i. Congress cannot COMPEL state regulatory or legislative action
1. i.e. ≠ require States to legislate per Fed. standards, or require them to enforce
federal law (against 3Ps)
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1) BUT Congress can induce state action by putting conditions on grants, so long
they are express and relate to the purpose of the spending program
a. Conditions cannot be unduly coercive
i. Sebelius – the only case finding the condition was unduly
coercive – Court said that the condition that said they would
lose all Medicaid $ unless they complied was like putting a gun
to a head since they were so dependent on this $.
ii. Congress MAY prohibit harmful commercial activity by state governments.
1) Ex: Prevent state from releasing or selling private information
B. Delegation of Powers
5. Legislative powers MAY be delegated so long as “intelligible standards” are set.
1) General rule: no limits on Congress’ ability to delegate legislative power
(Congress may Delegate ANY Legislative Power)
2) Exceptions – Powers uniquely confined in Congress (declare war,
impeachment)
3) MBE: always the wrong answer choice Fed law is unconstitutional b/c it is
in excess of delegation of legislative powers
ii. Legislative Vetos and Line-item Vetos = always unconstitutional
1) Congressional action requires:
a. (a) Bicameralism (passage by both the House and Senate)
b. (b) Presentment (presenting the bill to the president for his signature
or veto), and
c. (c) the President must sign or veto it entirely. (line-item veto =
president attempts to veto part of bill while signing the rest into law)
iii. Congress may NOT delegate executive powers to itself or its officers
III. Federal Executive Power
A. Federal EXECUTIVE Power
1. FOREIGN Policy
i. Foreign Relations – President has paramount power to represent the U.S. in day to
day foreign relations.
ii. Treaties – Agreements between the U.S. and foreign country that are negotiated by
President and are effective when ratified by the Senate
1) Power – President has the power to ENTER into treaties with the consent of
two thirds of the Senate.
2) Prevail over conflicting State Laws
3) Conflict between Treaty and Federal Law, the LAST one adopted controls
4) Conflict between Treaty and Constitution, treaty is INVALID
iii. Executive agreements
1) Agreement between U.S. and foreign country that is EFFECTIVE when signed
by President and head of foreign country
a. i.e. NO Senate approval required
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2) Can be used for ANY purpose that treaties can be used for
3) Prevail over conflicting State Laws,
4) NEVER prevail over conflicting Federal law or the Constitution
iv. Commander in Chief
1) President has broad powers as Commander-in-Chief to use American troops
in foreign countries
2) MBE: Lawsuit to challenge use of troops – dismissed as political question,
otherwise, President wins.
B. DOMESTIC Affairs
1. Appointment Power
i. President appoints Ambassadors, Federal Judges, and Official Officers of the U.S.
(Senate approves)
ii. Congress may vest the appointment of inferior officers in the President, heads of
departments, or in the lower federal courts
1) Inferior Officer – those that can be fired by an officer of the U.S. (i.e. U.S.
attorneys can be fired by the Attorney General)
iii. Congress may NOT give itself or its officers the appointment power
1) MBE Tip: Congress created new agency – gives appointment rights to
President for some, to Congress for some, and to others - WRONG! (President
must appoint)
2. Removal Power
i. President – unless limited by statute, the President may fire (remove) any executive
branch officer
1) For congress to limit removal, it must be an office where independence from
the President is desirable AND
2) Congress cannot prohibit removal, it can limit removal to where there is good
cause
3) Congress may provide statutory limitations on the president’s power to
remove
b. Note – ≠ prohibit removal, but may limit removal to good cause.
c. Note – Congress can remove executive officers through impeachment.
iv. Veto Power – President has the power to veto acts of congress.
1) Override – If the president disapproves (vetoes) an act of congress, the act
may still become law if the veto is overridden by a two-thirds vote of EACH
house.
2) Pocket Veto – The president has 10 days to exercise the veto power. If he fails
to act then the bill becomes law if congress is in session, but is automatically
vetoed if Congress is NOT is session
3) Line Item Veto – ALWAYS unconstitutional.
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v. Impeachment and Removal – The president, vice president, federal judges and
officers of the U.S. can be impeached from the office for treason, bribery, or for high
crimes and misdemeanors.
1) Impeachment does NOT remove person from office
2) A majority vote of the House of Representatives is necessary to invoke the
charges of impeachment. (*Impeachment does not remove)
3) 2/3 vote from Senate is necessary to convict and remove
vi. Executive Privilege / Immunity
1) Privilege – President has executive privilege to keep certain communications
secret. (National security secrets are given great deference by the courts)
a. Exception – In criminal proceedings, presidential communication will
be available to the prosecution.
2) Immunity – President has Immunity from Civil Suits for money damages
involving actions that occurred while in office.
a. NO immunity for actions that occurred prior to taking office
vii. Power to Pardon those accused or convicted of FEDERAL crimes
1) Exceptions:
a. Impeachment – cannot be pardoned for the offenses that led to
impeachment
2) Civil Contempt – pardon power doesn’t apply
3) MBE Tip: Federal ONLY! Criminal Liability ONLY!
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3) States may not tax or regulate federal government activity (inter-
governmental immunity)
a. Unconstitutional to pay a state tax to federal treasury (i.e. a store
owned and operated by federal government, state cannot tax)
b. Federal government never has to comply with state pollution controls)
ii. Dormant Commerce Clause – STATE and LOCAL Laws are unconstitutional if they
place Undue Burden on Interstate Commerce, even though Congress has not acted.
1) MBE – The dormant commerce clause is also called Negative implications of
the commerce clause.
2. TEST – Look to whether the law is:
a. Facially Discriminatory – Discriminates against interstate commerce to
protect local economic interests. (i.e. Tax Ohio $15 all other states $40)
i. Invalid unless it:
1. Furthers an Important Noneconomic State interest AND
a. Examples – health, safety, welfare
2. No Reasonable Nondiscriminatory alternative
ii. Market Participant Exception – A state or local government may
prefer its own citizens when acting as a market participant.
1. Ex. Buying and selling, giving state subsidies. hiring
labor or discounted tuition in State universities.
iii. Traditional Governmental Function – The SC is more lenient
when the law favors a traditional governmental function.
(waste disposal)
iv. Congressional approval – If congress acts to allow the burden
then it is no longer dormant.
b. Non-Discriminatory Laws – i.e. Discriminate in purpose or effect
i. Balancing the state's interest against the burden on interstate
commerce, AND
ii. Consider whether other alternatives could be less burdensome
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a. Corporations and aliens cannot use this privilege (MAY use Dormant
Commerce Clause or equal protection clause)
2) Fundamental Rights – Only Civil Liberties or Important Economic Activities are
protected.
a. I.e. ability to earn a living, access to courts, emergency services,
purchase property, medical care
b. NOT Elk hunting or recreational activities.
3) Substantial Justification – If the law discriminates against out-of-state
residents with regard to a fundamental right, it violates the privileges and
immunities clause UNLESS:
a. The State has a Substantial Justification for the discrimination
i. i.e. the non residents either cause or are part of the problem.
b. NO Less Restrictive Means to solve the problem.
8. TAXATION
i. Federal Taxation on State Governments
1) Congress may subject states to a regulation or taxation if the law or tax
applies to both the public and private sector. (i.e. minimum wage laws)
2) Federal taxes applying ONLY to states must comply with the 10th amendment.
a. Note – May indirectly regulate through the spending power.
ii. STATES may NOT tax or regulate federal government activity
1) CANNOT pay state tax out of federal treasury
2) Exception – Nondiscriminatory, indirect taxes are permissible (i.e. States
taxing federal employees)
3) MBE Tip: Federal government NEVER has to comply with state environmental
standards
4) MBE Tip: A mom & pop store on federal land. States can Tax because a
private person is paying the tax, not the federal government. (Can’t tax a gov
owned store)
iii. State Taxation (not usually on Bar)
1) Must Not Discriminate – If States use their tax system to help in-state
businesses it will violate the commerce clause. (Tax credits for in-state
businesses)
2) A Non-Discriminatory tax will be valid if: (i.e. Not unduly burdensome)
a. Substantial Nexus – May only tax activities that have a substantial
nexus to the state
b. Fairly Apportioned – State taxation must be fairly apportioned
(Burden is on taxpayer to prove unfair apportionment)
c. Fair Relationship – Fairly related to the state services or benefits
provided
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9. FULL FAITH and CREDIT
i. Courts in one state must give full faith and credit to judgments in another state if:
1) Court that rendered judgment had jurisdiction over the parties and subject
matter
2) Judgment was on the merits
3) Judgment is final
a. Ex. Judgment in California MUST be enforced in ANY other state so
long as the judgment has jurisdiction, on the merits and is final.
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2) Public Function – If a private entity is performing a task Traditionally and
Exclusively performed by the government.
c. Ex. Election primaries, company town, maybe prisons.
d. NOT a shopping center, education facility or public utility
3. Entanglement – government affirmatively Authorizes, Encourages, or
Facilitates unconstitutional activity. (Mere acquiescence is not enough)
a. State Action When
i. Courts enforce racially restrictive covenants
ii. Administering a private discriminatory trust
iii. State leases premises to a discriminatory lessee and the State
derives a benefit from the discrimination (Symbiotic
Relationship)
iv. State provides textbooks to a school that racially discriminated
v. Discriminating private entity that regulates interscholastic
sports within a state
b. NO State Action When
i. Granting a license and providing services to a private club
ii. Granting a monopoly to a Utility Company
iii. Heavily regulating an industry
iv. Private school that is over 99% funded by government fires a
teacher because of her speech
v. NCAA (private entity that operates all over the country) orders
the suspension of a basketball coach at a state university
vi. Private club with a liquor license from the state racially
discriminates
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2. Increases punishment for a crime AFTER it was committed, OR
3. Reduces the Evidence required to convict after the crime was committed.
ii. Retroactive civil liability only need meet a rational basis test under Due Process
iii. MBE Tip: Usually a wrong answer with respect to the contracts clause.
d. BILL of ATTAINDER – a law that directs the punishment of a specific person(s)without a trial
i. MBE Tip: Usually appears in a wrong answer for a contract clause question
e. TAKINGS CLAUSE (5th Amendment) – The government may take private property for public
use if it provides just compensation (Applicable to the states via 14th Amendment)
i. Taking – Critical issue is whether there has been a taking or merely a regulation
1. Possessory taking: Government confiscation or physical occupation of
property is a taking (Gov placing a cable box on your property) (Exception –
Emergencies)
2. Regulatory taking:
a. Denial of ALL economic Value is a taking
i. i.e. prohibition of any building on the land
ii. Nuisance control regulations are NOT takings
iii. Temporarily denying an owner use of property is NOT a taking
so long as the government action is reasonable
iv. A property owner may bring a takings challenge to regulations
that existed at the time the property was acquired
v. Government conditions on development of property must be
justified by a benefit that is roughly proportionate to the burden
imposed, otherwise it is a taking.
b. Decreasing Economic Value does NOT amount to a taking
i. Investment backed expectations test: (Balance)
1. The social goals of the regulation,
2. The diminution in value of the property, and
3. Owner’s reasonable expectations for the use of the
property
ii. No right to the highest and best use of your property
3. Public Use – Broadly defined by the Supreme Court. Rationally related to a
legitimate public purpose i.e. health, safety, welfare, economic, aesthetic
(reasonable belief that the taking is a benefit for the public)
ii. Just Compensation – Measured in terms of loss to owner based on FM (gain to taker
is irrelevant)
4. Compensate owner or terminate regulation and pay owner for damages that
occurred while it was in effect
f. LEVELS of SCRUTINY
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i. Rational Basis – (1) Rationally related to a (2) Legitimate government purpose
1. Deferential to government
2. BOP – Challenger (plaintiff) must prove the law had NO conceivable legitimate
purpose or law is not rationally related
3. *ALL non-suspect classifications – Age, disability, wealth, etc.
iii. Strict Scrutiny – (1) Necessary to achieve a (2) Compelling government purpose (3)
No less Restrictive Alternative (Means must be necessary)
1. Will look ONLY at the government’s actual objective (must be compelling)
2. BOP = Government
3. *Race, national origin, alienage, interstate travel, privacy, voting, 1st
Amendment
g. DUE PROCESS
i. PROCEDURAL Due Process – Refers to the procedures the government must follow if
deprives a person of life, liberty, or property. (2 Part Test – Deprivation /
Procedures)
1. Has there been a DEPRIVATION of life, liberty or property?
a. Liberty – A deprivation of Liberty occurs if there is the loss of a
significant freedom provided by the Constitution or a statute.
i. Examples:
1. Prisoners rarely have liberty interests
2. Institutionalize of child by parent requires screening by
neutral fact finder
3. Harm to reputation alone is NOT a deprivation of liberty
4. Except in an emergency before an adult can be
institutionalized there must notice and a hearing
b. Property – A deprivation of Property occurs if there is an
Entitlement and that entitlement is NOT fulfilled
i. Entitlement – reasonable expectation to continue to receive a
benefit (This is the new test)
1. Attendance at public school, welfare benefits,
government employment, personal belongings, and
realty.
c. Intentional Deprivation – Government negligence is not sufficient
for a deprivation of due process. Generally there must be
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intentional government action or at least reckless action for liability
to exist.
i. Emergency – However, in emergency situations, the
government is liable under due process only if its conduct
"shocks the conscience." (i.e. high speed chase not)
ii. Waiver – Individuals may expressly waive due process.
3. Procedure Requirements:
a. Prior Notice and Prior Hearing
i. Welfare Benefits terminated
ii. Resident aliens being deported
iii. Before rights to a child are permanently removed
iv. Adult Commitment to Mental Institution
2. Child – Only a screening by a neutral fact finder is
required for a parent to institutionalize a child
v. Termination of a parent’s custody rights
vi. Real property forfeiture (government seizure)
1. Except in emergency circumstances
2. Government can seize property in an illegal activity even
if it has an innocent owner
b. Prior Notice and a Post Hearing
i. Social Security/Disability benefits terminated
ii. Public Employment (Tenure / Termination)
1. Employee entitled to a pre-termination
response/hearing, but only entitled to full
adversarial hearing after termination
c. Subsequent Notice and a Subsequent Hearing
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i. American citizen captured in foreign war and held as enemy
combatant in U.S. (trial, jury, counsel)
ii. Personal Property forfeiture
3. Exception – Government may seize property from an
innocent owner (co-owner) if used in criminal activity
d. Notice and chance to explain
i. Public education discipline / dismissal – notice of charges and
chance to explain
1. corporate punishment schools – NO due process
required
e. Instructions to the jury and judicial review
i. Punitive damage awards – grossly excessive punitive damages
are a violation of due process
h. SUBSTANTIVE Due Process – (5th amendment) – Determines whether the government has a
justified reason for taking away a person’s life, liberty or property. (Applies to the states via
the 14th Amendment)
i. Non-Fundamental Rights – Constitution provides minimal protection for economic
liberties (Non-fundamental rights)
1. Rational basis test is used for laws affecting economic rights
2. Economic Rights – The right to practice a trade or profession
ii. Fundamental Rights – Apply Strict Scrutiny to the following Rights:
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ii. State may require clear and convincing evidence that a person
wanted treatment terminated before it is ended
iii. State MAY prevent family members from terminating treatment
for another
iv. NO constitutional right to physician-assisted suicide
j. Abortion (not Strict Scrutiny)
i. Prior to viability (fetus survival outside womb) – States may
NOT prohibit abortions, but may regulate abortions so long as
they do not create an UNDUE BURDEN on the ability to obtain
an abortion.
ii. NOT and undue burden
2. 24 hr waiting period
3. Performed by licensed physicians
4. Prohibition of "partial birth abortions"
5. Parental notice and consent for unmarried minors
a. Alternative – Minor can obtain an abortion by
going before a judge who can approve the
abortion by finding it would be in the minor’s
best interest or that she is mature enough to
decide for herself
iii. After Viability – States MAY prohibit unless necessary to protect
the woman's life or health
iv. Note – Government has NO duty to subsidize abortions or
provide abortions in public hospitals
v. Note – Spousal consent and notification laws are
unconstitutional
2. 2nd Amendment – Right to bear arms for protection (no level of scrutiny
identified)
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b. The use of race in drawing election district lines
c. Counting uncounted votes without standards in presidential
elections violates equal protection
d. One-person, One-vote must be met for all state and local elections
i. Exception – Appointed officials, officials elected at-large, or
special purpose elections (i.e. water district) do not have to
comply with one person one vote requirement.
c. CLASSIFICATIONS
i. Race and National Origin
1. Strict Scrutiny is applied
a. Necessary to achieve
b. Compelling government purpose
c. No less Restrictive Alternative (Means must be necessary)
2. Proving Racial Classification
a. Classification exists on the face of the law
b. If the law is facially neutral, must show discriminatory impact AND
discriminatory intent
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i. i.e. discriminatory use of peremptory challenges based on race
denies equal protection
3. Racial discrimination Benefiting minorities (Strict scrutiny is still applied)
a. Government has a compelling interest in remedying past discrimination
i. Numerical set-asides require clear proof of past discrimination
ii. Past discrimination must have been persistent and readily
identifiable. (i.e. NOT general societal discrimination)
b. Race can be considered in drawing up new voting districts but cannot
be the predominant factor.
c. Educational institutions may use race as one factor in admissions
decisions to help minorities. (Colleges and Universities)
i. No set asides or points added to admissions applications for
minorities
d. Public school systems may NOT use race as a factor in assigning
students to school unless strict scrutiny is met
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i. i.e. discriminatory use of peremptory challenges based on
gender denies equal protection
3. Racial classifications Benefiting gender
a. Intentional discrimination benefiting Women / Men triggers strict
scrutiny
i. Laws Found to be Invalid
1. Woman can be awarded alimony, but men can not
2. State supported all male / all female school
3. Discriminatory minimum drinking age
4. Classifications benefiting women based on role
stereotypes
ii. Laws Found to be Valid
1. Discriminatory statutory rape laws
2. All male draft
3. Classifications designed to remedy past discrimination
and differences in opportunity
b. Note – Government has a important government interest in remedy
past discrimination and differences in opportunity
vi. Rational basis review is used for all other types of discrimination.
1. Age – (i.e. mandatory retirement age – Rational basis & Government wins)
2. Disability
3. Wealth – (Discrimination against the poor)
4. Economic Regulations (Requiring to work for a certain number of years)
5. Sexual orientation (Only case so far used rational basis)
6. Religion (Strict Scrutiny has been used under religion clauses but has not
been considered under equal protection)
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3. FIRST AMENDMENT
a. FREE SPEECH
i. Content-based v. Content-neutral restrictions
1. Content Based restrictions on speech generally must meet strict scrutiny
a. Necessary to further
b. Compelling Government purpose unrelated to suppression
c. Means Narrowly Tailored
d. Two types:
i. Subject matter (law depends on the topic of the message)
ii. Viewpoint (depends on the ideology of the message)
1. Ex: pro-war v. anti-war; pro-government v. anti-
government
2. Content Neutral laws burdening speech generally must meet intermediate
scrutiny
a. Substantially related to an
b. Important government purpose unrelated to suppression
c. Burden NO more speech than necessary
i. Ex: No parades or demonstrations in the park
ii. Prior Restraints – judicial order or administrative system that stops speech before it
occurs. Prevent speech from ever entering the marketplace of ideas
1. Injunctions – must be special societal harm that will result
a. A valid prior restraint requires:
i. Standards narrowly drawn (reasonable and definite)
1. Includes only prohibitable speech
ii. Promptly sought
iii. Prompt and final determination of validity of restraint
1. Can’t leave inj in place pending an appeal that could take up to a year.
2. Court Orders – Court orders suppressing speech must meet strict scrutiny
a. Procedurally proper orders must be complied with until vacated or
overturned
b. Person who violates is barred from later challenging it
c. MBE Tip: Gag orders on press to prevent prejudicial pretrial press are
always unconstitutional – prior restraints preventing newspaper from
publishing is always unconstitutional
d. Ex. Prohibited from publishing war and troop movement during the
war.
3. Licenses – Government can require a license for speech only if there is an
important reason for licensing and clear criteria that leaves almost NO
discretion to the licensing authority.
a. Must contain procedural safeguards such as prompt determination of
requests for licenses and judicial review
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iii. Vague, Overbroad, Unfettered Discretion (Void on its face)
1. Vague – law is void on its face if a reasonable person cannot tell what speech
is prohibited or allowed (“reasonable”, “annoying”, “lewd”)
2. Overbroad – law is void on its face if it regulates substantially more speech
than the constitution allows to be regulated. (“All”, “Any” speech)
a. Note – Fighting words are not protected by the first amendment but
are always found to be vague and overbroad
3. Unfettered Discretion – law is void on its face if it gives officials unfettered
discretion in applying the law. (Need definite standards)
a. Ex. City officials cannot have discretion to set permit fees
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ii. Expenditure limits are unconstitutional (gov’t cannot limit how
much a person spends on her own campaign or
candidate/party)
vi. Speech by the government CANNOT be challenged as violating the First Amendment
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b. Child Pornography – Child pornography may be completely banned,
even if it is NOT obscene
i. Governments interest is in protecting children, so children must
be used in the material (Not computer generated images)
c. Private Possession – Government may NOT punish private possession
of obscene materials, but MAY punish private possession of child
pornography
d. Seize Assets – Government may seize the assets of business convicted
of violating obscenity laws
e. Profane and Indecent speech – is generally protected. (i.e. Cohen –
Fuck the Draft)
i. Exceptions (May regulate)
1. Over the broadcast media (free media) – Policy – They
accepted the license with the conditions
a. Fairness doctrine – May be required to allow
counter-speech. (i.e. to persons attacked on the
air)
b. Cable Television – intermediate scrutiny
2. Schools – "Schools are responsible for teaching civilized
discourse"
vii. Privacy
1. The government may NOT create liability for the truthful reporting of
information that was lawfully obtained from the government
a. Ex. Reporting rape victims name from a police report
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b. However, the government may limit its OWN dissemination of
information to protect privacy (Ex. Close trials to preserve a higher
value)
2. Media is NOT liable for broadcasting a tape of an illegally intercepted call, if:
a. The media did NOT participate in the illegality and
b. It involves a matter of public concern.
viii. NOTE – Speech by government employees on the job in the performance of their
duties is NOT protected by the First Amendment.
ix. NOTE – ANY other government restrictions based on the content of speech must meet
strict scrutiny
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c. Area around Prisons and Jails
d. Advertising space on City Buses
e. Sidewalks on Post Office Property
f. Airports – can distribute literature, but not ask for money
iv. Injunctions
1. Content Based – Necessary to achieve a compelling Government interest
2. Content Neutral – Challenged provisions burden no more speech than
necessary to serve a significant government interest.
v. Private Property
1. There is no First Amendment right of access to private property for speech
purposes (Includes shopping centers)
4. Freedom of Association
a. Laws that Prohibit or Punish Group Membership must meet Strict Scrutiny.
i. Must be proven that the person:
1. Actively affiliates with the group
2. Knew of its illegal activities, AND
3. Participated with the specific intent of furthering those illegal activities
b. Laws that require disclosure of group membership, Look to see if there is a substantial
burden on the right of association? (chill association) If so, Government must prove Strict
Scrutiny
c. Laws that prohibit a group from discriminating are Constitutional unless they: (Strict
Scrutiny)
i. Substantially interfere with an:
1. Intimate association – Small dinner party – person not invited cannot sue
2. Expressive activity – KKK can exclude blacks; Boy scouts can exclude gays
d. Political Patronage – government has the ability to demand loyalty of a party that is
currently in office. Test – Appropriate requirement for the effective performance
5. Freedom of Religion
a. Free Exercise clause
i. Free exercise clause cannot be used to challenge a Neutral law of General
Applicability
1. Ex: Use of peyote by Native Americans in religious ceremony was prohibited
by state law that was neutral to everyone and did not target that religion. Law
was found to be constitutional
2. Strict Scrutiny is applied if the law was motivated to interfere with the
exercise of religion. (Ex. Law prohibiting the sacrificing of animals)
ii. Government may NOT deny benefits to individuals who quit their jobs for religious
reasons. (Ex: Employee quit over working on Sunday)
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b. Establishment clause – Government may NOT make a law establishing religion.
i. Test (SEX)
1. There must be a Secular purpose for the law
2. The Primary Effect Neither Advance nor Inhibits religion
a. Ex: No government symbolic endorsement of a particular religion
b. However, government may be able to display many religious symbols.
3. There must NOT be EXcessive Government Entanglement with religion
a. Ex: Government cannot directly pay teacher's salaries in religious
schools
ii. Establishment Clause Notes
1. Government cannot discriminate against religious speech or religions unless
strict scrutiny is met.
2. Government sponsored religious activity in public schools is unconstitutional
a. i.e. school prayer, moment of silence
b. But Note – Religious students and groups must have the same access to
school facilities as non-religious groups
3. Government MAY give assistance to religious schools, so long as it is NOT used
for religious instruction. (Ok for school buses)
4. May provide parents vouchers which they MAY use in private or public
schools
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