Constitutional Law

I. Introduction

Multi-state - 33 questions Breakdown of Subject Areas: 1) Federal Judiciary Authority (5 questions) Organization of the Federal Court System Federal Judiciary Review 2) Separation of Power (6 questions) Powers of Congress (legislative) Powers of President (executive) Inter-branch checks and balances 3) Federalism how fed gov limits states authority (5 questions) Inter-govermental Immunity Dormant Commerce Clause State Taxation Supremacy Clause 4) Protection of Individual Rights (17 questions) 14th Amendment Issues (8) 1st Amendment Issues (9) Essay Purposes Generally 2 main issues 1) Standing (15% of grade) 1st Amendment Issue (45% of grade) Total 60% of points 2) 14th Amendment Issue (state action, equal protection, due process) Total 40% of points Part 1 Federal Judiciary Authority Organization of Federal Court System Article 3 of Constitution vests judicial power in the US Supreme Court and any inferior courts as Congress may establish. **There can only be ONE supreme court (Congress has no power to divide the court into separate panels ie, civil, criminal, etc). They may try to trip you up on the bar with this. Supreme Court is the only federal court required by the Constitution Jurisdiction limited to case and controversy. No advisory opinions. Must be an actual dispute. State court may give advisory opinions

Article 1 Courts vs. Article 3 Courts Article 1 courts legislative courts, state courts, military courts, bankruptcy courts, courts in D.C. Article 3 courts - judges have lifetime tenures, salary protections, all decisions rendered by article 3 courts are reviewable by other fed courts.

Congress has plenary (exclusive/absolute) power to establish lower federal courts. Can confer, remove, or limit jurisdiction of lower fed courts and fed courts of appeal. Question on Bar: Can congress pass law completely barring all suits filed in federal court based on diversity of citizenship as basis of subject matter jurisdiction. Yes! Was constitutional. Diversity of citizenship is not constitutionally mandated. What about federal question jurisdiction can Congress eliminate that? No, bc fed question jurisdiction is constitutionally mandated. Congress could eliminate diversity of citizenship but not federal question. Article 3 Courts Jurisdiction of Supreme Court 1) Original Jurisdiction any case that involved ambassador, public minister, consult, where state is party Congress may neither enlarge or restrict original jurisdiction 2) Appellate Jurisdiction Congress may broadly regulate the appellate jurisdiction of the SC. Caveat Cant preclude a review of an entire class of cases (ex: to say SC cant review any case involving school prayer). Unconstitutional. Violates principles of federalism. 2 Diff Types of Supreme Court Review (Appellate Jurisdiction)- 28US Code, Section 1257 Congress has enacted 2 statutory methods to invoke US SC appellate jurisdiction 1) Appeal goes as a matter of right 2) Certiori review is discretionary (case where 4 or more justices vote to hear a case the rule of 4) Cases that go by appeal (as a matter of right) decisions of 3 judge federal district courts (i.e. injunctive relief (must be heard right away) Practically all other cases are subject to discretionary review by certiori 1) Cases from state courts involving federal law violation 2) All cases from US Courts of appeal Lower federal courts have concurrent jurisdiction to hear most cases that SC itself can hear. Caveat: SC has original an exclusive jurisdiction in any case between 2 or more states. Federal Judicial Review Fed cts can refuse to hear a case based on these doctrines. 1) 2) 3) 4) 5) 6) 7) Adequate and Independent State Grounds Standing Ripeness Mootness Political Question 11th Amendment Abstention

1) Adequate and Independent State Grounds The only one that applies only to the SC. Need a final judgment from highest state ct that the case may reach (usually the state sc). SC wont hear case where state court decision establishes an adequate and independent state ground upon which the case was decided. State ground can be substantive or procedural. Substantive Strand - (ex: independent state ground - the state law must have found the law constitutional/unconstitutional). Independent State Ground. Procedural Strand (i.e. no standing or statue of limitations. Plaintiff will lose in state court b/c of this and will lose again b/c SC can use plaintiffs failure to comply with state procedural grounds as adequate state grounds not to hear the case. Adequate State Ground. Caveat: Michigan vs. Long State ct must make it plain and clear that state ground was independent of the federal constitution. Must be a state reason (must tell you why) for rendering the decision unconstitutional or else SC will conclude that state court found federal law controlling and SC will hear the case. Keys on exam: If adequate state law is the right answer, the fact pattern will say there is that the state sc is holding law unconstitutional because it violated the STATE law, and the US SC will not hear the case. 2) Standing Most highly tested on multi-test and essays. ***For essay purposes, your first issue to discuss is standing (whenever you have a plaintiff in federal court). Standard bar exam essay will not mention standing. They are not going to invite you to talk about it. But if you fail to mention it, you will fail the essay. 1) P must show a concrete, personal stake in the outcome. 2) P must satisfy 1 and sometimes 2 standards: a. Constitution Standard - #1 P must show injury in fact. Usually is economic injury (hurts P in pocket), but can also be aesthetic or environmental. But governmental action must cause injury. #2. Causation Relief sought must eliminate the harm alleged. Ps harm must be redressable. This is a little bit harder to satisfy (ex. Minority, low income Ps said zoning ordinance discriminated against them by denying them affordable housing. Ct ruled in govs favor even if the zoning ordinance was eliminated, the Ps still couldnt afford the house so the harm was no redressable). Most essays you are done here and dont have to go any further. b. Prudential Limitations Limitations imposed by ct in its prudential wisdom. Even where const standard has been satisfied, ct will still deny standing: i. Third Party Standing. P may only advance his or her const rights. Exception #1 where P can show close relationship or nexus exists between Ps rights and 3rd parties rights and #2 special need to adjudicate. (ex: Craig v Bowen: Bartender raises the right of his 18 y.o customers. Gender discrimination bc women could drink at 18. Ct ruled there was a close enough nexus and a special need to adjudicate financial loss of bartender. Ex: Doctor may raise rights of patient (abortion), School raises rights of minor students, Labor union raise rights of workers (layoffs), ii. Abstract or Generalized Grievance. Citizen standing. Generally denied. Ex: Private citizen brought action challenging actions of CIA (not publically releasing financial accounting of public funds) as private citizen. Ct denied he had standing as a private citizen b/c P had alleged any mismanagement or suffered any injury. It was an abstract and generalized grievance. On mulit-state if you see organization bringing suit against gov think of this example. iii. Tax Payer Standing State Tax Payers Have standing to challenge measurable financial expenditures (ex. Busing of children to parochial schools) If other than financial (ie. State tax payer challenges bible reading in school) then no standing. Federal Tax Payers NO standing except Flast v Cohen. Why? There interest is too remote. Exception: Flast v Cohen Fed Tax Payer does have standing #1 to make an establishment clause challenge #2 to an expenditure enacted under the taxing and spending power. Ex: Gift of public property (airplane) to religious group over group

of boys. Who has standing to challenge? State taxpayer, Federal Taxpayer, or group of boys. Answer: Group of boys. Dont overuse Flast v. Cohen Very narrow holding. People got confused and thought it was the federal taxpayer b/c of the establishment clause but they were wrong. 3) Ripeness (Case brought too soon) In order to be ripe there must be a genuine, immediate threat of harm. Essay Issues Competing Considerations which you should balance on an essay. Cts Argument not to hear the case - Future events will sharpen and define legal issues. Plaintiffs argument to hear court Im going to suffer serious hardships if you deny me immediate review 4) Mootness (Case brought too late) Case is moot unless an actual controversy exists at all stages of review. (ex: white law student says he was discriminated against for race. By the time the case heard he was a 3L at another school. Case moot) Exception: Injury capable of repetition but evading review. Ex. Roe v Wade woman pregnant when suit brought to challenge anti-abortion law no longer pregnant when case heard. Ct said she or any member of her class could still challenge constitutionality of abortion law. 5) Political Questions Non-justiciable issue committed to another branch of gov. Exs: a. Guaranty Clause of Article 4 Every state guaranteed a republican form of gov. Holding in Baker v. Carr Apportionment of leg districts was not a guaranty clause issue. b. Amendment ratification process. Ct can not determine the duration of time for state to ratify a const amendment. This is reserved to Congress and a political question. Fed ct wont hear. c. Age, residency, and citizenship of members of Congress (Ex: McCorminck. Congress said congresswoman didnt satisfy residency req and took away her backpay. Fed ct could hear her case as to the issue of backpay but not as to the residency req bc thats reserved for Congress. d. Foreign Affairs (Red Flag) Controlled by congress of president. Fed jud system will not overturn Congressional authorization in the area of foreign affairs. 6) 11th Amendment State cant be sued in fed ct by its own citizens, citizens of another state, or citizens of a foreign country without consent. They are immune from suit in fed ct w/out waiver of consent. Doesnt bar suit against cities, counties, municipalities, school boards, or other local agencies. Nor does it bar other states or the fed govs from suing. State OFFICIALS can be sued for damages or injunctive relief for fed law violations. State immunity applies in fed question suits and diversity suits as well. Ex: Seminole Tribe of Fl vs Fl Congress passed fed law authorizing tribe to sue Fl in fed ct. Unconstitutional. Congress acting under article 1 (commerce power) cant circumvent const limitations embodied by 11th amendment). Ex: State workers cant sue their employer in fed ct bc Congress lacks power to override state immunity based on the 11th amendment. 7) Abstention Fed ct will temp abstain where you have an unsettled issue of state law. State ct resolution of issue might render fed adjudication as unnecessary (Pullman abstention doctrine). After state ct renders its decision, fed ct retains jurisdiction of fed claim if fed claim still exists Pullman doctrine. Younger abstention - Fed ct review prohibited in 1) Pending state criminal proceedings 2) Criminally related criminal proceedings and 3) Civil contempt proceedings. (Harsh doctrine. Lets say you are being threatened with state criminal charges. Younger closes door to fed ct and sent back to state ct for ALL purposes, including fed claim. Fed ct doesnt retain fed jurisdiction) Applies to entire fed judiciary and adequate and independent state grounds only applies to US SC. Part II Separation of Powers Federal Legislative Power (Congress)

Doctrine of Enumerated Powers Fed gov has only that authority which the Const confers upon it. Both express and implied 10th Amendment - Powers not delegated to the fed gov retained by states. 10th Amendment Police power. Protects any healthy, safety, welfare, morals, or aesthetics interest. Multi-state Look in the fact pattern and see if there is a some type of healthy, safety, or welfare issue? If yes, go to answers that say constitutional and look for a police power answer. Catch: The exam wont use the word Police power. Look for rational basis language. Ex: They might say constitutional b/c its a reasonable regulation or furthers a legitimate interest. Police power is one of 2 strong sources to uphold state legislation. Article 1, Section 8 (multi-state) list of enumerated powers of Congress Congress, taxing and spending, war, postal, copyright, patent, bankruptcy, coin money, immigration, regulate district of Columbia. Necessary and Proper Clause If you see it as an answer on multi-state, be aware its a wrong answer. It is not an independent source of power. Used to carry into execution other enumerated powers. I Enumerated Powers 1. Commerce Clause Federal Commerce Power Plenary (absolute/exclusive) power of Congress, applies to foreign and domestic commerce, congress can regulate any person or thing travelling for state to state. Question: Congress appropriated satellite dishes into space to communicate with aliens. Const under commerce power. Applies to just about anything and everything. Just need to know 2 main doctrines: 1) Affectation Doctrine Congress can regulate any activity which has a substantial economic effect on the stream of interstate commerce. Under it, congress can regulate for clearly non-economic reasons as well social welfare reasons, health regulations, legislate in the area of civil rights. Congress can go further than the cts by appropriate legislation. Through the enabling clause congress can even regulate in the area of civil rights (hotel guests b/c hotel guests travel across state lines, can regulate restaurant b/c restaurant serves food that crosses state lines). So, clearly congress can regulate for non-commercial reasons and civil rights is one of those reasons. Limits Affectation Doctrine US v. Lopez Congress passed law that made it a federal crime to knowingly possess a firearm in a school zone. Congress tried to pass law under federal commerce power. Ct said link between gun possession in school and interstate commerce was too tenuous to qualify as a substantial effect. Congresss power would be too broad and it would essentially become a police power. To fall w/in scope of commerce clause regulation the activity must substantially affect interstate commerce. 2) Cumalitive Impact Doctrine La wheat farmer grew for his own consumption and never left the state. Even an entirely intrastate activity has a cumulative impact on inter-state commerce. So, commerce clause applied. 2. 10th Amendment Power Not a strong limitation on the federal commerce power. Powers that are not delegated to the fed gov are reserved to the states. Garcia case Fed statute established min wage and overtime provisions which applied to all businesses of certain size. No exemptions given to state employees. SC held regulation was const and the 10th amendment wouldnt invalidate it. 10th amendment is a weak limitation on the fed power. One area that is highly tested where 10th amendment will be the correct answer NY vs US one of most imp decisions of decade (1992). Fed law that said NY must pass leg for exportation of waste or else take title to waste and be liable for damages. Congress passing law telling state to pass leg. 10th amendment does prevent Congress from interfering with a states lawmaking processes. Congress may not commandeer the states to enact or enforce a fed regulatory program. ***Whenever you see fact pattern where congress is telling the states to pass a law that is commandeering and that is unconstitutional under the 10th Amendment. The 10th Amendment will be the correct answer. 3) Taxing and Spending Power Plenary power of Congress. Congress may tax and spend for the general welfare. General Welfare Clause is not an independent answer. If you see it by itself, its a wrong answer.

GWC limits taxing and spending power. Under spending power Congress can attach strings to grants of money. (ex: grant of money was conditional upon resignation of state highway commissioner. This was const!) Congress can regulate indirectly where it cannot legislative directly (by attaching strings) ****If you see the word appropriation understand that must fed appropriations derive from spending power. Taxing Power - A fed tax is valid if the dominant intent is fiscal. If fed tax raises revenue, then just go look for answer that says constitutional. 4) Delegating of Federal Legislative Power Congress can delegate its legislative power to executive agencies, cabinet members, executive officers, and the judiciary. One area to be aware of legislative veto this is unconst. Congress may not delegate leg authority to another branch of gov and then subsequently retract it. (ex: Congress gives out power and then retains the power to override a decision by a 2/3 votes. This is unconst bc it is a legislative veto). 5) Federal Executive Power Domestic Policy Article 2 Powers of the President 1) Domestic Policy Pres has power and obligation to faithfully execute the law. Multi-state question where congress appropriates money, pres must faithfully execute the law. He can not diminish or cut back one penny of that money. Multi-state question Pres issues executive order that placed 70% ceiling on spending on executive officers under current fiscal budget. Was this const? No. Unconst b/c pres has no power to limit currently enacted federal spending measures. Current fiscal budget means its already been authorized, signed into law, and passed thats why its unconst. Prest cant put 70% ceiling on it. Grand Rudman Act Future Budget. Pres can limit certain areas. But cant for current fiscal budget. Appointment Power Pres can appoint purely executive officers (cabinet members, ambassadors, SC Judges). Must do so w/ senate confirmation. Officers of the United States (agencies or commissions w/ administrative power) also reqs senate confirmation. Ex: Clean air act establishes committee w/ purpose of drafting and enforcing regulations. This is an administrative function. Committee members are officers of the US who must be appointed by the president and only the president. Removal Power Pres may remove purely executive official functions. May not remove fed judges or officials w/ fixed term unless there is a showing of good cause. Congress cannot even appoint inferior officers (ex. Special prosecutor). Congress however can delegate appointment of such officers either to the judiciary or to the executive branch (cabinet members) or to the president. Congress has no power to remove. Pres has no leg power. However he can veto but his veto can be overridden by a 2/3 vote of each house. Pardon Power Pres power under Article 2. Offenses against the United States. Means it applies to federal crimes, not state crimes. Bar question terrorists charged with kidnapping in state court. Whats greatest argument that presidential pardon didnt apply? B/c pres pardon applies to crimes in federal court, not state court. Executive Privelege Priv to refuse to disclose information. Absolute as to military or diplomatic secrets. Otherwise, merely a qualified priv and must yield to imp gov interests. Pres has absolute immunity for civil suits for money damages for any actions while in office. After office, people can bring suit against him. Pres is commander in chief of the armed forces. Pres can deploy military even before outbreak of war. Has broad emergency power. As check and balance Congress has the power to declare war, and raise and support the armed

forces. Bar question: Pres ordered STATE national guard to active federal service. Constitutional. Pres has full authority over state militia. Implied power that pres may declare an end to war. 2) Foreign Policy Foreign Affairs Power shared between the pres and congress. If you see answer saying pres power in foreign affairs is plenary, this is incorrect. Source of Pres power in Foreign affair 1) As commander in chief 2) Treaty Power 3) Congressional Authorization (delegation by Congress of its commerce power to the president). Heirarchy of Laws Multi-state will give you some kind of questions where there is a conflict of laws. This hierarchy will tell you quickly which law will prevail. 1) Constitution (Supreme Law of the Land and will prevail over any conflicting law 2) Tie Treaty and Act of Congress. If there is a conflict between these two, the last in time will prevail 3) Executive agreement/executive order Informal means by which the pres may conduct day to day economic and business transactions w/ foreign countries. Its informal b/c unlike a treaty, senate approval not reqd. Vs. Executive order deals w/ domestic policy 4) State Law Checks and Balances Congress can also limit pres through impeachment power (can remove for treason, bribery, and other high crimes and misdemeanors) House has sole power to impeach and senate has sole power to try the impeachment Investigatory Power (Broad and implied power) Congress can investigate any matter over which it has jurisdiction. Failure to comply can result in contempt against individual Speech and Debate Clause Absolute immunity to members of congress and their aids relating to any communication conducted on the floor of either house. Does not apply to defamatory news letter or press release issued by member of congress. Only applies to what goes on the floor of either house. Part III Federalism 5 multi-state questions here How fed gov can limit state gov Bill of Rights limitation on state authority 4 areas: 1) 2) 3) 4) Intergovermental Immunity Dormant Commerce Clause (Highly Tested) State Taxation Supremacy Clause

Inter-governmental Immunity State regulation of the fed gov. Fed gov and its agency are immune from state taxation and regulation BUT state may tax federal contractor/employee as long as obligation to pay doesnt fall on fed gov. Ex: sell hotdogs in fed park/fed licensee/fed employee state of Wyoming can tax you. Not immune from state tax. Federal Property Power Article 4, section 3 (need to know this number. Highly tested) Congress has the power to dispose of and make all needful rules and regulations respecting the territory and other prop of US. You need to know is which subject matter this rule applies to: 1) Wild animals on fed land 2) Military ships and airplanes 3) Indian reservations

4) Federal buildings and enclaves (group of buildings ie. Military base, veterans hospital, fbi building) If you have question dealing w/ this issue, look for federal property power as the correct answer. Con Law questions are VERY lengthy. 200 mulit-state questions. 50 you know. 50 you have no clue and youll have to take your best shot. 100 you have narrowed it down to 2 answers. 150/200 times youre not sure what the answer is. Thats why you should do 50 questions at a time per day. Devote 90 minutes a day for these questions b/c it builds endurance and you learn to trust your gut. If you are averaging 60-65% this is a good score. Practice the same way you are going to test. That way you will learn to develop and trust gut feeling. How the federal government can regulate the states states not immune. 10th or 11th amendment do not provide immunity. Fed gov can sue state. State can sue state. Fed gov may tax proprietary state businesses (activity that can be carried on by a private citizen for profit). Ex: NY state involved in business of bottling mineral water. Can co be taxed by fed gov? Yes, bc proprietary state activity (carried on by state for profit). BUT cant tax governmental activities (ie. Operation of state capital building, state public school, state public park) ***Dormant Commerce Clause (negative implications doctrine) Commerce power reserved to the state. Congress has plenary power to regulate inter-state commerce. However, where congress is silent, the states are free to regulate. State regulation of inter-state commerce is valid if 2 regulations are met: 1) Must be non-discriminatory 2) No undue burden on interstate commerce 1) Non-discriminatory cant discriminate against inter-state commerce in favor of its own local interests Will likely see state law to further legitimate interest but has a discriminatory effect. In order to be const, must be achieved by the least burdensome object. Ex: Philadelphia v. NJ NJ forbade importation of out of state waste bc # of available dumpsites was a precious natural resource. But produced discriminatory impact and effect. Ct ruled- cant discriminate against out of state rubbish in favor of local trash. Can tax out of state garbage, req license to dump it, can move dumpsites further from city, but cant allow them not to dump. Not the least restrictive means possible. Ex: Hunt v. Washington State Apple Commission. All apples sold in NC to bear grade no longer than US grade. Wash apple growers thought US grade lower than Wash grade and the law was depriving Wash apple growers of a competitive advantage. Ct held unconst as violating commerce clause. Exception Reeves v. Stake (market participant doctrine) where state MAY discriminate w/out violating dormant commerce clause. State used its OWN tax payer funds to build cement plant and hired local people in favor of out of state people. Discriminated but used its own money to create the market. State said that was permissible. 2) Undue Burden Ct uses balancing test (state interest in regulation vs. burden of interstate commerce) Ex: S Carolina v Burnwell width registration on trucks. State interest- safety interests (narrow roads) vs burden (some trucks couldnt travel). Safety interest outweighed burden and law upheld. Ex: Navaho Freight Lines State of Illinois must be equipped with rounded mudguards instead of flat. State interest kicked up less debris. Burden would have to change mud guard to enter state. Ct ruled State interest marginal and burden of interstate commerce won out. Article 4 privileges and immunity clause (comedy clause) prevents 1 state from disc against citizens of another state regarding basic economic rights and activities. S Carolina Case state reqd $25 fee for any resident who wanted to pay commercial shrimp fishing license. Same license cost $2500 for out of state. Violated article 4 clause Montana Case State charged $9 for recreational license. $250 for out of state. Ct upheld law. Diff was this was a recreational license and not a commercial license. For recreational license, ct more likely to hold state can discriminate.

Piper v. New Hampshire Ms. Piper lived in Vermont but wanted to sit for New Hampshire exam. New Hampshire said no, she had to satisfy 6 month residency req. Ct said it discriminated against resident economic right to take a bar exam and violated article 4 privileges and immunity clause. If Article 4 is the correct answer, look for economic discrimination against citizens or residents. 90% of time, article 4 is a wrong answer b/c when you see a fact pattern dealing w/ economic discrimination it is generally a commerce clause issue. Neither corporations or aliens are deemed citizens. State Taxation of Interstate Commerce Only a few rules you need to know: 1) For a state tax to be valid, if a) it is reasonable and non-discriminatory and b) must have a substantial nexus between state interest and activity being taxed. Goods which are in the stream of interstate commerce may not be taxed. But may be taxed at the beginning or end of transit, or if theres a break/stop in the middle of transit. Instrumentality fancy name for cars, planes, trains, boats may be taxed provided tax is fairly apportioned to the extent of taxpayer use. Taxpayer must acquire a taxable situs in the state of taxation. Ex: State can tax Delta Airlines based on the # of planes and # of days Delta is housing its planes in that states airport. Ex: Can be taxed by means of tolls on certain highways. Ex: Railroad by the length of road Direct taxes must be apportioned. I.e. Income tax, real property tax (the more money you earn or more something is worth, the higher you can be taxed. Indirect taxes must be geographically uniform (i.e sales tax, use tax Supremacy Clause Article 6, Section 2. Even the most trivial of fed laws predominates over the most imp of state law 1) Preemption Doctrine Where congress intends to occupy a given field, any conflicting state law is invalid. (ex. Local ordinance shut down Burbank airport at 10 pm. So ensuing increase at LAX interferes with FAA policy. And aviation is where Congress intends to occupy the field so the local ordinance was struck down in favor of fed law. 2) Supersession A fed law will supersede any state law which is in direct conflict. Ex: Fl passed law prohibiting sale of diet drug by prescription. Congress delegated its commerce power to the FDA and FDA issued admin order allowed the sale of this diet drug by prescription. Direct conflict. FDA order supercedes the conflicting state law. Ex where bar may try to trick you Oklahoma law said all beef must be cooked to min temp of 165 degrees. Previously fed law said all beef must be cooked to 150 degrees. Here, Oklahoma law upheld. Why? Bc fed law was only establishing a min standard for health reasons. But state wanted to give citizens greater protection then what was req by fed law. States can give citizens greater protection than what is reqd by fed law. Part IV Individual Rights Approach to Con Law Questions on the Multi-State Out of 33 questions, you should be able to get 24-26 right. You can make up here for difficulty of the other subjects. 3 step approach: 1) Underline who is passing the line (fed gov, congress, state, city/municipality) 2) Determine subject matter of the question (what is this question about?) 3) Match the appropriate power of regulation (what power does this appropriation come from? Ie taxing and spending) Match the subject matter to the power. Con Law is a matching game.

As final review, just sit and think about the 25-30 powers that exist. You have to understand and identify what each power regulates which subject matter each power regulates. To uphold federal law (sources of power from strongest down): 1) Supremacy Clause 2) Any enumerated power of Congress 3) Federal Property Power To uphold a state law (sources of power from strongest down): 1) Police Power 2) Dormant Commerce Clause Use this approach and it will be very helpful in maximizing your scores in Con Law Protection of Individual Rights Very large and important area. 14th and 1st Amendment Issues State Action A threshold relationship of governmental conduct which must be satisfied before private discrimination can be restricted under the 14th and 15th amendment. (Good lead in sentence for con law essay) Before you can discuss equal protection or discrimination on an essay, first you must show that there has been a state action. On essay, must first show state action before you can move on. Also remember that state action applies to both 14th and 1st amendment rights Situation where person discriminating in some way. We must show that there is a nexus between the private individual and the government. 13th Amendment does NOT req state action. Under 13th, purely private action of racial discrimination is prohibited. 13th amendment easier remedy to use bc you dont have to show state action first. Discrimination (for 13th and 14th amendments): 1) Employment 2) Affordable housing 3) Restriction on gov benefits or public services Where ct has found state action: 1) Public function (situation where you have a private entity performing activities traditionally and exclusively carried on by the state. Ex: Company Town. On flip side ct said NO state action where there was a private utility company under heavy state regulation. Ct held utility company didnt have activities that were traditionally and exclusively carried on by the state) 2) Significant state involvement Ct looks at aggregate of contacts between private individual doing the discriminating and the state to see if there is a symbiotic relationship or significant state involvement. Several areas we can look at (where ct ruled there was state involvement) public schools, private individual who leased restaurant in city parking garage who discriminated based on race (symbiotic relationship bc city played sig role in restaurants success), where private school purchases textbooks from state (enough of a nexus that they purchased textbooks to constitute sig state involvement. (where ct ruled there was no state involvement) granting of liquor license (that bar has state liquor license not enough of a nexus to constitute sig state involvement) or mere fact that school has a license from the state 3) Facilitation or encouragement where state encourages or facilitates of private acts of discrimination. Ex: State enforced a racially discriminatory zoning ordinance. Bill of Rights First 10 amendments of Const. Limitations on the fed gov. The due process clause of the 14th amend that acts as a conduit by which these bill of limitations are made applicable to the states (Selective Incorporation) Bill of Rights that do NOT apply to the states under the due process of the 14th:

1) 2) 3) 4)

2nd Amendment rt to bear arms 5th Amendment rt to grand jury in crim cases 7th Amendment rt to jury trial in civil cases 8th amendment rt against excessive bail

14th Amendement Privileges and Immunities Clause Does not make the bill of rights applicable to the states. Every since the 1870s slaughterhouse cases, this clause has been a dead letter in the law. Ct has been using the due process clause instead. So, what does it protect? Rights of national citizenship. The rt to petition congress for redress of grievance, rt to peaceably assemble, rt to interstate travel. It has never yet been a correct answer since 1972 when the bar started. Retroactive legislation (these 3 are almost always wrong answers on the multi-state) 1) Contracts Clause only applies to the states. Not the fed gov. Prevents states from impairing the obligation of both private and public Ks unless there is a significant public need. (when state interferes w? K, the state will always make the police power argument. Will say they didnt impair but modify contract. States argument is almost always upheld. Police power is a strong argument on behalf of the state and is a winner. Contracts Clause argument is a weak limitation on state power. It would only be a winner on obligation of bond holder. Ex: city gonna get new football team. City sells revenue bonds to finance building of stadium. To repay bond debt, min to get into fb game is $20. Lets say new mayor decides seniors can go to game for $10 ticket. This is unconst bc would violate the obligation of the bond holder bc would decrease the bond holder security that their debt would be paid. 2) Ex Post Facto Law Unconst. Must be a criminal law. Examiners will trick you by putting it in a civil context. It 1) makes criminal conduct that was not a crime when committed or 2) increases the punishment for a crime or 3) decreases the amount of evidence needed to convict. 3) Bills of attainder Leg punishment of a named individual or group w/out judicial trial. Ex: taking away license, employment. Ex: leg passed law saying Jane Doe gets her license taken away. Uncosnst. Due Process Procedural The procedural safeguards of notice and a hearing are available whenever there is a serious deprivation of any life, liberty, or property interest. If exam testing on notice or hearing, it is procedural due process. It will always be a wrong answer if answer says something is a privilege, not a right. To determine if there should be a hearing, the ct balances the severity of the deprivation to the individual against the gov interest in administrative efficiency (how much it will cost the gov to give a hearing) Enunciated Due Process Rights: Liberty Interests Rt to Contract Rt to engage in gainful employment Rt of natural parents in care and custody of their kids Rt to refuse unwanted medical procedures Ex: how its come up on exam. Guy set up donut shop. Contracted to purchase equipment to make donuts. Applied for license. Complied w/ all reqs. Got letter back saying denied. He was denied procedural due process and city interfered w/ his rt to contract b/c was he should have been given a hearing. Property Interests Welfare Benefits (if cut off, you deserve a hearing) pre-termination Disability Benefits (if cut off, you deserve a hearing) post-termination Rt to public education (if kid suspended for misconduct, must be given a rt to be heard). Poor academic dismissal doesnt need a hearing b/c there is more statistical evidence to support. Garnishment of Wages Continued Public Employment (If you are terminable for cause these are tenured teachers and civil service employees). Terminable at will employees dont need notice and a hearing. Takings Both 5th and 14th amendments provide private prop will not be taken for public use without just compensation.

Taking involves either 1) a confiscation or physical occupation or 2) a regulation w/ leaves owner no reasonable economically viable use of her land Ex of confiscation public granted easement over persons beachfront land Ex of physical occupation NY city ordinance reqd all owners of rental units to install cable down every hallway. Ct agreed w/ owners. Ex of regulation w/ no reasonable use (lucas) Zoning ordinance prohibits owner from building any permanent habital structure or developing coastal property. Was taking b/c was denied of all reasonable economically viable use. 3 ways to take property: 1) Eminent domain power of gov to take private property for public use. Just compensation must be paid. Title passes immediately then there is litigation as to amount to be paid 2) Inverse condemnation prop taken w/out using eminent domain proceedings (ex: action against airport for excessive noise and interference with use and enjoyment of land). Just compensation must be paid. 3) Police Power where state passes ordinance for health and safety purposes. State argues its not taking but regulation under police power and no compensation paid. Substantive Due Process Two strands: 1) Economic regulation subject only to rational basis scrutiny to be upheld. Need only be reasonably related to a legitimate objective. Just about any regulation could pass this test. 2) Fundamental rights 3 groupings of fundamental rts (rt to privacy, rt to travel, rt to vote). Strict scrutiny applies. Gov regulation must be necessary to a compelling interest. Fundamental Rights Right to Privacy Not mentioned in const. Unmentioned const right. Areas of rt to privacy - CAMPER (mnemonic) Contraception Abortion Marriage Procreation Education (Private Education) Relations (Family Relations) Contraception rt to use and purchase contraceptives among married and unmarried persons. Fundamental rt. Abortion rt to have abortion w/out interference from state b4 viability. Stict scrutiny not used bc competing, compelling interests involved which may be at conflict. These interests are protecting the womans health v protecting the fetus. Ct uses standard of Planned Parenthood v Casey (under Casey, before viability, the states may not prohibit abortion but may adopt regulations to protect the mothers health and life of fetus as long as the protections do not place undue burden on mothers rts to obtain an abortion. After viability a state may prohibit abortion unless abortion necessary to protect the mothers life or protect her health) Casey is the main holding to apply on the exam. Where ct has ruled there is no undue burden 1) req informed consent of woman seeking abortion. 2) detailed record keeping by abortion facility 3) consent of 1 parent b4 an unemancipated minor can receive an abortion. Partial birth abortion is const. And any state law banning partial birth abortion would constitute an undue burden Roe v Wade (casey did not overrule roe v wade, it distinguished it). Gov action to abort a fetus is broken down by trimesters. 1st trimester gov cant prevent , 2nd trimester cant prohibit but can regulate to protect the mothers health, 3rd trimester gov can prohibit abortion unless its necessary to protect the mothers life or health.

Related areas abortion funding. No right to abortion funding for indigents (Medicaid), no duty to provide abortions in public hospitals Consent spousal consent not reqd, consent of both parents not reqd (for minors ) but states must afford a judicial bypass (minor goes before judge and judge can approve abortion based upon minors best interest or a finding of sufficient maturity. Marriage rt to marry is fundamental. Cases Loving v Virginia struck down. Case struck down that said father couldnt remarry unless current on his child support. Ct struck down. No compelling interest. Less restrictive means to achieve objective. Procreation Rt to be free from excessive gov intrusion into decisions related to contraception (deals w sell and use of contraceptives) Education (Private) Amish case parents do have a right to privately educate their children Relations (family) Rt for nuclear family to remain together. Moore vs City of East Cleveland (zoning ordinance limited dwellings to single families. Excluded grandmother from living there. Not necessary to compelling interest. Struck down) Group ordinances will be scrutinized very closely. Applies to nuclear fam. Does not apply to unrelated people living together. Rt to privacy - Doesnt apply to necessities of life (food, shelter, clothing, medical care) not fundamental Formally, no fundamental rt for homosexual men to engage in sodomy even the privacy of home. Bowers v Hardwick has been overruled. As of 2003 the new law is Lawrence v Texas (overruled Bowers) liberty protected by const allows homosexual men to engage in intimate contact with other men in private areas without interference from gov. Boyscouts of America ct held boyscouts cannot be forced as a group to accept a gay scoutmaster. Ct is very slow to act in this area. This is not an area to be creative. Do not enlarge this area beyond CAMPER. Strict scrutiny applies to rt to privacy except in the area of abortion, where you use the undue burden test. Right to Travel Many sources of power here - Commerce Clause, Privileges and Immunities, Substantive Due Process Durational residency reqs unconst for receiving medical services, library services. Its upheld for reduced tuition at state universities, obtain a divorce, to vote in state elections (50 days is const, more than that is unconst) Foreign travel doesnt come under strict scrutiny, governed by rational basis test. Reasonable restrictions on passport use have been upheld based on national security. Right to Vote 1 person, 1 vote applies for all fed, state, and local elections. Exceptions for special limited purpose districts (ex. Water storage district). In limited purpose districts, voting can be limited to land owners and apportioned to the amount of land owned. Prop interest restrictions on rt to vote are unconst. Ordinance saying only land owners and parents of school children can vote. Renter can challenge this as unconst. Renter can make an equal protection challenge. Strict scrutiny would apply. Reapportionment Geographical boundaries of voting districts may not be defined so as to deny numerical equality. Gerrymandering Unconst. Refers to apportionment schemes which are deliberately and arbitrarily distorting political districts for partisan purposes. Violates equal protection. Ballet Access State law said person cant become independent political candidate if registered w/ party and voted in that partys primary. Candidate applied strict scrutiny case and was upheld. Ca Democratic Party v Jones Ca blanket primary law which allowed voters to cast ballots across party lines violated partys rt to choose own leaders. Was struck down using strict scrutiny.

Compare area of rt to be a candidate is not fundamental. Only rational basis applies here. (ex. Min age, max age, payment of filing fee, residency req rational basis applies). CD #3, 11 started skipping at 6:30 w/ 1 min left. Equal Protection Distinction: Applies where a law affects SOME persons. Substantive due process applies where law affects ALL persons. To raise equal protection challenge you need a situation where persons similarly situated are being treated differently. Applies to states through 14th amendement and applies to fed gov under due process clause of 5th amendment. Selective Incorporation (making first 10 amendments applicable to state). Here were doing the opposite making the 14th amendment apply make to the states under the due process clause of the 5th amendement. We call this reverse selective incorporation. Going to be looking at the 3 standards of review under equal protection strict scrutiny, middle tier, rational basis Strict scrutiny Applies to: Protected 1st amendment rts Suspect classes (mnemonic - RAN) race, alienage*, national origin Fundamental rts (privacy, vote, privacy CAMPER) *alienage doesnt always apply A class is suspect if determined by characteristics that are unalterable, and a history of purposefully unequal treatment Burden is on the state to show law is necessary to a compelling state interest. To be necessary, that means there are no alternative means available. If there are alternative means available, that means that the law is not necessary. Middle Tier (Aka: Intermediate Scrutiny or Quasi-Suspect Scrutiny) Areas that come under middle tier scrutiny: 1) Gender Discrimination 2) Illegitmacy 3) Illegal Alien Children (have a very narrow rt to free public education through 12th grade) 4) Content neutral regulation of speech (time, place, manner) 5) Regulation of cable tv Burden on state to show the law is substantially related to an important interest. To be substantially related there must be an exceedingly persuasive justification. Rational Basis Applies to all other classifications not already mentioned. Most common: 1) Poverty

2) 3) 4) 5) 6)

Wealth Age Mental Retardation Necessities of life (food, clothing, shelter, medical care) Social and economic welfare measures

Burden is on the plaintiff to show that the law is not rationally related to any legitimate interest. Equal Protection Most common answer choices on multi-state answer. You will see this as an answer 6-10 times. Need to know when it is the correct answer and when it is the incorrect answer. Hypotheticals: State passes law that discriminates on basis of race. Strict scrutiny. Burden on state to show necessary. State will most likely lose. If subject matter is strict scrutiny pick equal protection. Under strict scrutiny the law is presumptively invalid and state will most likely lose. State passes law that says buses must be equipped w/ seat belts but not other vehicles. Falls under rational basis (social and economic welfare measures). Burden on P to show law doesnt have one single legitimate interest. Youre going to lose. Rational basis plaintiffs lose. Dont pick equal protection as an answer choice. Racial classifications as a general rule, purposeful intentional discrimination triggers strict scrutiny. Discriminatory impact alone is not enough to trigger strict scrutiny. Discriminatory impact w/out purposeful discrimination is not enough to trigger strict scrutiny. Rational basis is ok w/ discriminatory impact. Segregation need de jure (intentional racial segregational) for it to be unconst. Applies to all public areas. De Facto (no intentional segregation) is not unconst. Busing look for a fact that says busing must be a temporary measure to remedy past discrimination or else the busing scheme will be struck down. Benign/Compensatory Discrimination/Reverse Discrimination/Affirmative Action (All the same thing) Deals with employment, college admission, voting rights, quota systems, promotion preferences Clear rule - Race based affirmative action plans are subject to strict scrutiny. Quotas All race based quotas/set asides will be ruled unconst to remedy past discrimination. They are not necessary to further a compelling interest. Regents of University of CA vs Backey Universities cannot establish quotas for members of certain groups or put them on a separate admissions track. Instead, race may be considered as a plus in an applicants file. 2003 Michigan law school case obtaining student body diversity is a compelling state interest and such diversity may be achieved by a narrowly tailored race conscious admissions program (an admissions program that considers race a plus but flexible enough to consider all of every applicants file w/out making race or ethnicity a defining feature). Univ of Michigan US SC struck down admissions policy which automatically awarded 20 of 100 points needed for admission to every member of underrepresented racial or ethnic group b/c it wasnt narrowly tailored and violates equal protection. Alienage Suspect class but depends on who is passing the law. When fed gov discriminating aliens, strict scrutiny doesnt apply b/c congress has plenary power over aliens under its immigration and naturalization law. Subject only to rational basis test. State discrimination against aliens subject to strict scrutiny. Exception: participation or functioning of gov. Aliens can be excluded from becoming: Teachers Policemen Serving on jury

Is US citizen reqd for bar admission? No. Not necessary to compelling interest. Illegitamacy Any law which benefits legitimate children and prejudices illegitimate children most likely to be unconst. Ex: law prevents illegitimate kids from inheriting from father was struck down. Ex: law which allowed children to inherit from father ONLY if ct made finding of paternity in his lifetime was upheld bc ct said it was a scheme that furthered orderly and just distribution at death Ex: State cannot totally bar an illegitimate to have a chance to inherit. Gender Discrimination As a general rule, purposeful, intentional discrimination must happen. Discriminatory impact not enough to trigger middle tier and rational basis will apply. Sexual Stereotypes whenever you see a law that applies archaic sexual stereotypes it will prob be struck down. Ex: law that reqs only women can get into nursing school. Law that says only men are reqd to pay alimony. Both were struck down. First Amendment We will look at 4 different areas: Freedom of religion 1st amendment procedural issues Regulation of speech content Time, place, manner regulation of speech conduct Freedom of Religion Establishment Clause Gov may not pass laws which prefer or aid one religion over another. Test for essay Lennon Test in order not to violate the establishment clause, must satisfy all 3: 1) Primary purpose of the law must be secular 2) Primary effect of the law must neither advance nor inhibit religion 3) Law must not foster excessive gov entanglement. Pocket areas to help you sort it out: General principles: 1) Gov sponsored religious activities in public school are unconst. (ex: reqd non-denominational prayer, daily bible reading, moment of silent voluntary prayer, student led prayer at football games and other school sponsored events (excessive gov entanglement) all unconst 2) Gov aid to religious schools for construction grants and salary supplements are unconst at the elementary and secondary level only. Rationale students at lower level of education are more likely to be indoctrinated. At college level, students are less likely to be indoctrinated to gov aid more likely to be upheld. 3) Gov aid to parochial schools which cannot be used for religious aid is const and it must be made available to public schools on the same terms (ex: health tests, busing, loaning of text books, Local school districts may provide gov funds to religious schools for computers and software) 4) Most likely to come up religious ceremonies and displays. Ex: Lynch v Donnely municipal xmas display w/ manger, reighndeer and santa clause, and seasons greeting banner (ct upheld it). Religious displays which taken as a whole celebrate the holiday season will be upheld. The test today is whether a reasonable observer would believe the gov was endorsing a religious message. The key fact is to look at the context in which the religious symbol is displayed. If there is a presence of other non-religious symbols nearby there is usually enough to show a reasonable observer that no religion is being favored over another. If you have hannakuh madora side by side by xmas tree, no religion favored over another and ct will upheld. If you have a nativity scene by itself, the ct will most likely strike it down.

Free Exercise Clause A persons religious beliefs are absolutely protected. However, conduct in furtherance of those beliefs may be regulated. Gov regulations which burdens free exercise rights may not be religiously motivated. Purposeful interference vs Incidental Burden When you see a question dealing with religious exercise you want to determine if there is purposeful interference. If there is, you want to apply strict scrutiny and the law will be presumptively invalid. If it is a generally applicable law that merely imposes an incidental burden then you simply use a balancing test that is similar to rational basis and the law will generally be upheld. Cases: Hialeah Fl Case ordinance that banned all animal sacrifices hoping that sanitaria sect would leave. Clearly, the motive was purposeful interference of religious rights. Strict scrutiny applied and ordinance struck down. Oregon v. Smith criminal law that banned the use of peyote. As incidental burden, an Indian tribe that smoke peyote couldnt do so. Here, ct didnt apply strict scrutiny and the law was upheld. City of Burney vs Flores Congress decided to pass the religious freedom restoration act which said strict scrutiny applies to free exercise clause. The act was overruled bc ct said congress cannot decide what constitutes a const violation or determine what standard of review to apply. You can expect either an essay or multi-state question dealing w/ free exercise. Additional Case: State leg may allow an opening prayer led by state paid chaplain w/out it constituting excessive entanglement. But a state ct judge wanted an opening prayere and the ct went the other way. 1st Amendment Procedural Issues Ways to write an essay or attacking a statute dealing w/ 1st amendment free speech. What you should be thinking when you see a statute dealing w/ 1st amendment free speech. 1) First, try to make a facial attack. Try to knock the statue on its face: a. Overbreath (overbroad statute punished protected as well as unprotected speech. Be skeptical if you see words like all or any. b. Vagueness (so unclearly defined that persons of ordinary intelligence must guess at its meaning. If you see words like offensive language and approbrious words. Ordinary individual wont know what approbrious means. c. Prior restraint (censorship, licensing, injunctions. Gov restriction on free speech in advance of publication is generally unconst. Ex: Judge issues gag order to enjoin media prior to criminal case from pretrial publicity. Absent any showing of clear and present danger, the ct will strike gag order down as being an invalid prior restraint. Not least restrictive option. Judge has other options could instruct the jury or change venue. Cant restrain media totally by issuing gag order. Exceptions: where national security involved, obscene books, obscene film. d. Unfettered discretion (where licensing statute where a licensing official has unfettered discretion. If you see ex that says only the mayor may issue licenses, you can strike down that type of licensing statute on its face. For speech that is being regulated: Look at ordinance that is given to you in essay and ask yourself if the law is content specific (regulating the message) or content neutral (regulating the conduct)? If content specific, were on track 1. If content neutral, were on track 2. Track 1 (content specific we have to take a look at the actual content in the message) Is the speech protected or unprotected? Protected strict scrutiny applies and the law is presumptively invalid. Unprotected speech 6 areas 1) Clear and present danger

2) 3) 4) 5) 6)

Defamation Obscenity Child pornography Fighting words Fraudulent commercial speech

Track 2 (content neutral regulating time, place, manner) Apply a 3 part test that is very similar to middle tier. 1) Regulation must further significant gov interest 2) Must be narrowly tailored (does not have to be the least restrictive means available, no more restrictive than necessary) 3) Must leave open alternative channels of communication Regulation of Speech Content Unprotected Speech 1) Clear and Present Danger Test a. speech may be punished if it is directed at producing imminent and unlawful conduct AND b. speech is likely to produce such unlawful conduct Freedom of Association one of unmentioned/implied 1st Amendment rights. There is a 1st amendment right NOT to speak (Willy vs Maynard NH license plate says live free or die. person covered up license plate saying live free or die. Faced criminal charges for doing so. Ct said petitioner can refrain from promoting a viewpoint they dont accept. Was upheld based on 1st amendment freedom not to speak. Ex: Whether state university could force student to pay university fees to cover groups that engaged in speech student didnt agree with. SC said yes. State university can do this. Membership in an organization when can an individual be punished based on his group membership? When can state suspend bar membership, deny a license, or deny gov employment? Person cannot be punished unless the state can show 3 factors: 1) The organization advocates unlawful conduct 2) The individual is both a knowing and active member (dues paying) of this active group 3) The individual must have the specific intent to further the groups unlawful obectives. Disclosure of membership list can group be forced by gov to disclose its membership list. Generally no. Ct will balance gov interest in regulation with interference with the rt to association. Disclosure not reqd unless the gov could make membership in that group illegal. Otherwise thered be a chilling effect on freedom of association. Loyalty Oaths a loyalty oath as a precondition to public employment is invalid. Exception: 1) oath to support and uphold the constitution and 2) oppose overthrow of the gov. 2) Defamation (written or spoken utterance of an untruth that injures ones reputation). Look at the status of the P. If the P is either a public official or public figure, P must prove actual malice (knowing falsity or reckless disregard for the truth). Private person P need only show negligence for a matter of public concern or for private concern, they need only show publication (that a false or defamatory statement was made) For private P and matter of public concern, if P can show malice, he is entitled to punitive damages. What is defamatory? A defamation of fact. Pure opinion is generally const protected. However the US SC said opinion is actionable is it is sufficiently factual to be susceptible of being proved true or false by other evidence. Freedom of the Press press enjoys no special 1st amendment priv beyond that enjoyed by an ordinary individual. Ex: Minn Star Tribune newspaper endorsed losing candidate. Winning candidate offended so enforced a print tax to get back at them. Strongest argument on newspapers part? Equal protection (newspapers being treated diff than other media), 1st amendment (print tax designed to restrict free speech). Multi-state offered both equal protection

and 1st amendment as answer choices. Which one should you choose? Equal protection argument is incorporated into the 1st amendment so when you see both, pick the 1st amendment answer choice. If its an essay, obviously you want to talk about both. Ex: Stanford newsroom search. Newspaper claimed it had a 1st amendment priv exempting it const from searches and seizures. Ct said not true, however a warrant is reqd. Disclosure of sources may a newsperson refuse to disclose source before grand jury? US SC said no, individual must disclose sources. However, state shield laws have been passed in certain states protecting newsperson from disclosing source (remember that states can give greater protection than the fed gov). Closure of criminal trials to press as general rule, media does have const protected right to attend trial. However, closure can be upheld if there is a compelling state interest and it is narrowly tailored. (ex:. Rodney King trial was closed to the media) Public access to the media Red Lion Case the gov may req broadcasters to provide coverage of both sides to an issue. Why? Bc airwaves are limited. However newspapers are not obligated to publish articles or ads which they refuse to print. Broadcasters can refuse to accept political ads and political candidates have no right of access to equal space to reply to person attacks by a newspaper. Regulation of newspaper is protected comes under strict scrutiny. Regulation of internet comes under strict scrutiny Regulation of cable tv comes under middle tier scrutiny bc the airwaves are limited. Cable tv operators may ban indecent programming on channels which are leased to unaffiliated 3rd parties. But cant ban indecent programming as to public access channels. Nor can cable operators providing sexually explicit programming scramble their signals (playboy case) Obscenity (Miller v Ca) In order for speech to be obscene there is a 3 part test: 1) Speech must appeal to the prurient interest in sex applying contemporary community standard (dont apply national standard). Dont need expert evidence to prove. Pandering (marketing of obscene material) is relevant to determine appeal to prurient interest. 2) AND Must depict sexual conduct in a patently offensive way. Determined by local, community standards or state law (no national standard) 3) AND material must lack serious literary, artistic, political, or scientific value (LAPS) reasonable person standard under Pope v Illinois Must prove all 3 which is why it is so hard to prove. Obscene speech vs offensive language. Merely offensive language is protected under Miller. Guy wearing jacket that said fuck the draft. Not obscene bc doesnt satisfy Miller. Merely offensive. Profane language on airwaves is not protected. Pacifica case ct held airwaves can be limited. Broadcasting can be restricted without applying Miller. Unprotected speech child pornography. Can be punished and restricted even w/out satisfying the miller test. States can even criminalize private possession of pornography in ones home. Possession of obscene materials (Stanley) Possession of obscene materials in the privacy of ones home is protected.

Public distribution of obscene materials and obscene films in movie theatres may be restricted. Argument said this was the poor mans version of standard since not everyone can afford to own in privately. Ct disagreed. Obscene material can be restricted from being receivied in the mail or purchased in stores. States have been able to regulate obscenity through zoning and land use. Can regulate the location of adult theatres and book stores. Ex: Detroit ordinance said no more than 2 adult theatres can exist in 100 mile radius. Ct upheld as content neutral time, place, and manner regulation. 21st amendment may be used to aggressively regulate adult speech in establishments which are licensed by the state to serve liquor. Public nudity US SC held that municipal ban on public nudity (erotic dancing at adult club) is const bc of harmful effects on community. 4) Commercial speech generally protected. Can be regulated as to false or deceptive advertising as well as harmful or illegal protects (cocaine) Strict scrutiny used for protected commercial speech. Unprotected commercial speech Central Hudson Test in order to be a valid protection the regulation must directly advance a substantial gov interest and must be narrowly tailored to further that interest. Vice advertising - of harmful yet lawful products (cigarettes, liquor, gambling). Apply Hudson. Ex: 44 Liquor Mart vs Rhode Island. Ban prohibited all ad of liquor except for putting the price directly on the product. Purpose was to decrease alcohol assumption by teenagers. Ct said not narrowly tailored. Other less restrictive means were available. Struck down. Solicitation Ct balances homeowners rt to privacy against 1st amendment rt of commercial speech and then determines whether regulation is narrowly tailored. If on exam, law limits all door to door solicitation w/out owners consent, unconst. Blanket solitication, prior restraint, overbroad. If on exam, law limits commercial solicitation w/out homeowners consent. Ct upheld. No more restrictive than necessary and left open other channels of communication. They could still advertise by radios, tv, newspaper, or mail it w/out going door to door. 5) Fighting Words (insults likely to provoke an ordinary person to commit an act of violence). Fascist, commi big is considered fighting word. Minn V Paul fighting words statute which prohibited fighting words which provoked violence on the basis on race, religion, or gender. Ct said not const bc when dealing w/ fighting words statute the statute must be viewpoint neutral. Race, religion, or gender not viewpoint neutral. Symbolic Speech (where the medium is the message). The test is from the obrien case (burning of draft cards during Vietnam war). Ct said was const to further effective functioning of military system. Obrien case test similar to strict scrutiny. Flag burning SC says it is unconst to ban flag burning. Why? Bc Congress trying to preserve flag as symbol of American unity and that is content specific. Was directed at prohibiting the message, strict scrutiny applied, and compelling state interest was not satisfied. Time, Place, and Manner Regulation Regulation of speech conduct. Track 2 approach. 1) Must further significant gov interest 2) Must be narrowly tailored 3) Alternative channels of communication must be left open. Public Forums Diff Types:

1) Traditional Public Forum (streets, parks, sidewalks) areas traditionally associated w/ expressive activity. Apply 3 point test to regulate. 2) Limited Public Forum (library, school, state fairground) Apply 3 point test to regulate. 3) Non-public forum (jail, military base, inside of courthouse, airport terminal, gov office building, privately owned billboard, billboard on public bus). To regulate law need only be viewpoint neutral and rationally related to a legitimate gov interest. Private Property Law is diff. Private prop need not be made available for speech related activities. A privately owned shopping center may prohibit picketing on its property. Licensing Statutes Permit reqs prior to speech related activities (speech, march, protest, parade). Before individual can do any of these generally reqd to obtain a permit to speak. Permit must be const if it is content neutral, narrowly drawn, nondiscriminatory, and no unfettered discretion in licensing official. Comes up most often in state essays. 3 ways you can be tested: 1) Licensing statute that is valid on face but unconst as applied to the speaker. (ex: Permit denied bc of speakers viewpoint). Result speaker must seek prompt judicial relief before speaking. 2) Licensing statute is void on face (ex: mayor has unfettered discretion) Result licensing statute may be ignored, individual need not apply for permit, and individual can defend against any subsequent prosecution. (ex. Martin Luther Kings march on Birmingham) 3) Speaker has been enjoined from speaking. Injunction been issued. Result- injunction must be obeyed even if it is facially invalid. Can appeal. Invalidity of statute must be proven on appeal and invalidity of statute is not a defense to a subsequent prosecution.