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Constitutional Law Outline Bar Review

The Nature of Judicial Review Federal Judicial Power Scope -Constitution, Federal Law, Treaties -Ambassadors, Public Ministers -Admiralty and Maritime -US a Party -Between States -Between State and Citizens of Another State -Diversity 11 Amendment -Prohibits the citizens of the state for suing their own state or another state on Federal claims for Money Damages, in Federal or State Court, without the States Consent. -Exceptions to 11 Amendment 1. Suits against State Officials for abusing their power to enforce an unconstitutional state statute -State Officials can be sued for Injunctive Relief, but injured Ps have no damage remedy against State Governments 2. Federal suits brought by 1 State against another, or suits brought by the Federal Government against a State. 3. Most suits for Injunctions -A state may Consent to suit in Federal Court if it clearly waives its 11 Amendment Immunity and does so expressly and unequivocally --Sidenote: USSC will not give Advisory Opinions --Sidenote: State courts are allowed to give Advisory Opinions Federal Courts -Jurisdiction Case or Controversy -Federal Court Jurisdiction Ripeness Absention and State Grounds Mootness Political Question Standing Mootness: If a controversy or matter has already been resolved then it will be dismissed -An actual case or controversy must exist at all stages of the litigation -Bars cases that have already been resolved -Case will not be dismissed for mootness if the injury is capable of repetition, yet evading review
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Ripeness -Bars consideration of claims before they have fully developed -Controversy must be ripe for decision -Fitness and Hardship considered (needs to be present harm or threats of future harm/danger) Abstention -Federal Court may abstain or refuse to hear a particular case where there are undecided issues of state law presented -Permits the State Court to resolves issues of state law, making a decision of the constitutional law unnecessary -Federal court may abstain if meaning of state law is unclear Standing 1. Injury in Fact -P must show a direct and personal injury 2. Causation -Injury must be caused by the violation of a duty affecting the Ps right arising under the Constitution or Federal Law 3. Redressability -P must show that he will benefit from the remedy sought in the litigation -Traditional View rd -P lacks standing to assert rights of 3 Parties not before the court -Exception: -Where the P has suffered injury and: 1. Special relationship or rd 2. 3 Party unable/difficult to bring suit on own behalf Political Questions -Federal courts cannot hear cases involving Political Questions -Political Question: matter assigned to another branch of the Constitution or incapable of judicial answer. -Principal Factors: 1. Separation of Powers 2. Limitations of courts in resolving certain types of controversies

United States Supreme Court Jurisdiction 1. Original Jurisdiction -Cases affecting ambassadors or public ministers -Cases where state is a party -Congress cannot enlarge or limit USSCs Original Jurisdiction 2. Appellate Jurisdiction -2 Methods for invoking USSC Appellate Jurisdiction: 1. By Appeal 2. By Writ of Certiorari

-If the state court judgment can be supported on Adequate and Independent State Grounds USSC will not take jurisdiction Separation of Powers Powers of Congress 1. Legislative -Make laws -Conduct investigations and hearings -Congress has Enumerated Powers to Collect Taxes, Spend $, Borrow $, Regulate Commerce with Foreign Nations and among the several States, Declare War, Raise and Support the Army, Navy, and Militia 2. Commerce -Regulate channels/ instrumentalities of Interstate Commerce -Regulate any economic activity that has a substantial effect on Interstate Commerce -Cumulative Effect Doctrine -USSC held that the Federal Commerce Power permitted the regulation of the amount of wheat a Farmer could grow on his own land, for his own consumption because his activity had a Substantial Cumulative Effect upon Interstate Commerce -Commerce Power has limits -Substantial Effects Test -Congress must show: 1. That the regulated activity is economic in nature + 2. That the regulated activity has a substantial effect on Interstate Commerce -The Commerce Clause used as a vehicle to uphold law barring Racial Discrimination in activities connected with Interstate Commerce -10 Amendment -Powers not delegated to the Fed. Govt are reserved for the States or People -Serves as a very weak limitation on the Federal Commerce Power, but does prevent Congress from interfering with a States Lawmaking Process. -Prevents Congress from commandeering state officials 3. Taxing -Lay and collect taxes to pay the debts and provide for the common defense and welfare -Revenue-raising -Act to tax upheld if valid exercise of power and raises revenue or intended to raise revenue -16 Amendment -Gives Congress the power to collect taxes on incomes derived from any source -As long as Congress has the Power to Regulate the activity taxed, the tax can then be used as a regulating devise rather than for revenue-raising purposes ***
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-GR: Uphold any tax as valid if its a revenue-raising measure -Even when Congress doesnt have the Power to Regulate the activity taxed the tax will be upheld if it raises revenue 4. Spending -Necessary and Proper Means -Achieve regulatory effect -Congresss power to tax and spend must be exercised for the General Welfare -Congress can require states to comply with specific conditions in order to qualify for federal funds. 5. War and Defense -Congress may: 1. Declare War 2. Raise and Support Armies 3. Provide and Maintain Navy 4. Organize, arm, disciple, and call forth a Militia -War Power Gives Congress a very broad authority to initiate whatever it deems necessary to provide for the National Defense, in Peacetime or in Wartime *** -Congress has power to establish Military Courts and Tribunals -Accused not entitled to same Procedural Safeguards set in Bill of Rights 6. Investigatory -Necessary and Proper Clause permits Congress to conduct investigations incident to its Legislative Power -Congress doesnt have any express power to investigate -Congresss Investigatory Power is broad 7. Property -Power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the US. 8. Eminent Domain -Power to take property is implied -Power is limited -Private property shall not be taken for public use without just compensation 9. Admiralty and Maritime -Fix and determine the maritime laws thought the US 10. Bankruptcy -Power to establish uniform laws on Bankruptcies in the US 11. Postal Power -May establish post offices and post roads 12. Copyright and Patent Power -May promote the progress of science and useful arts, by securing copyrights and patents

13. Speech and Debate Clause -Protects legislators against criminal or civil proceedings for Legislative Acts -Members of Congress can be liable based on Defamation for issuing press releases or newsletters that injure reputation 14. Civil War Amendments th -13 : Banning Slavery th -14 : Prohibiting states from violating protections regarding Due Process, Equal Protection, + Privileges and Immunities th -15 : Prohibiting states from discriminating in voting rights. -Congress can only enforce the 14 and 15 Amendments when State Govts have widely violated them.
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Executive Powers 1. Chief Executive -Power to execute the laws -Appointment Power Limitation on the Congress Appointment Power President has the exclusive power to nominate high level officials -Senate has the power to confirm or reject the Presidents nominees -Senate can delegate the appointment of inferior officers -Removal Power -President may remove any executive appointee -Veto Power -Once Congress has passed legislation, President has 10 days to act on it -If he doesnt veto it, the Legislation will become Law -President can Pocket Veto by not signing the legislation -Congress has the power to override a veto by 2/3 vote of both Senate and House -Line-Item veto (gives President the power to cancel particular provisions) unconstitutional -The President may exercise only those powers expressly or impliedly granted by the Constitution or an act of Congress -If Congress overrides the President CONGRESS WINS -Pardon Power -President can pardon anyone except in cases of Impeachment -Executive Privilege -Absolute privilege to refuse to disclose information related to military, diplomatic, or sensitive national security secrets. -Obligation to Report -President should from time to time give Congress info on the State of the Union 2. Commander-In-Chief -Has power to deploy Military Forces without a formal declaration of war in response to an attack on the US

-Has the power to seize private property during wartime unless Congress denies him that power -NO POWER TO DECLARE WAR 3. International Affairs 1. Treaty Power: President has power to make treaties with foreign nations w/ consent of the Senate -Treaties Supreme Law of the land Win over state law Fed law vs Treaties Last in time will win 2. Executive Agreements: President has the power to enter into Executive Agreements with foreign nations -Win over conflicting state law

Precedence Chart

US Constitution Treaties Executive Agreements Constitution wins Constitution Wins

Federal Law Last in time wins Federal Law wins

State Law Treaties win Executive Agreement wins

Congressional Limits on the Executive -Foreign Affairs -If Congress is acting w/in its constitutional powers, it may block the President from acting. -Legislative Veto -USSC held that this violated bicameralism -Impeachment Power -The House has the sole power to impeach -The Senate has the sole power to try impeachments. A 2/3 vote in the Senate is required for a conviction. -Investigative Power -Congress has the implied power to conduct investigations concerning all matters over which Congress has jurisdiction. -Delegation to the Executive -Congress has delegated to the executive branch the authority to make rules having the power of law (EPA, Department of Health, etc) -Appropriations Power -Where Congress by legislative act explicitly directs the President to spend appropriated money, the President has no power to refuse the authorized funds.

Presidential Limitations on Congress -Every act of Congress must be approved and signed by the President before it can become law, or being disapproved, it must be passed by 2/3 vote of each House. Judicial Limits on Congress and the President -Federal Judiciary is the ultimate arbiter of cases

Pyramid of Power in US Law 1. US Constitution 2. Federal Law and Treaties 3. Executive Orders and Agreements 4. State Constitution 5. State Law and Ordinances

The Relation of the Nation and the States in the Federal System Federalism -The co-existence of the National Govt and the State Govts. -Each state has a General Police Power -Federal Govt NO Police Power Immunity of the Federal Govt 1. Federal Govt and its agencies are immune from suits by Private Individuals, except where they allow themselves to be sued 2. Federal Govt is immune from state taxation and state regulation -State may nevertheless collect a non-discriminatory tax on persons who deal or K with the Federal Govt. 3. GR: Supremacy Clause impliedly prevents the states from regulating the activities of agents or instrumentalities of the Fed Govt if the regulation will interfere with the Govts ability to carry out its functions 4. Federal Lands Subject to the authority of the Fed Govt Immunity of State Governments - Fed Govt may sue a state w/o its consent -State may be sued by a sister state w/o its consent th -GR: 11 Amendment prohibits citizens of 1 state from suing another state in Fed. Court + citizen cant sue its own state. -Exceptions: 1. State may be sued if it consents 2. State officer may be sued for Injunctive Relief when conduct is beyond scope of authority

-State Immunity from Fed Tax if: 1. Unique state activities, or 2. Essential Governmental functions -When a State engages in Proprietary Business taxed to same extent as Private Citizen Authority Reserved for the States 10 Amendment -Powers not delegated to the US by the Constitution nor prohibited by it to the states, are reserved to the states or the people. th -10 Amendment wrong answer unless Fed. Govt commanding the states ***** -Constitution specifically prohibits any state from: -Making treaties with other nations -Coining money -Passing a Bill of Attainder -Enacting an Ex Post Fact Law -Impairing the obligation of contracts -Laying any duty on imports or exports, except where necessary for executing its inspection laws -Engaging in war or -Maintaining a peacetime army 10 Amendment Anti-Commandeering Clause -Prohibits the Govt from using an enumerated power to force a state legislature to pass a law or a state executive official to administer a federal program. Dormant Commerce Clause ******** 1. State law facially discriminates between in-state and out-of state actors, state must show: 1. Compelling State Interest + 2. Regulation Narrowly Tailored 2. State law incidentally burdens Interstate Commerce, state must show: 1. Important Govt Interest + 2. Burden Not Excessive Exceptions to the Dormant Commerce Clause 1. Express Congressional Authorization for states to legislate 2. State acting as Market Participant -It is within a States Police Power to enact legislation for the health, safety, and welfare of its citizens -If State Regulation furthers no benefit + imposes a substantial burden on Interstate Commerce Unconstitutional Reserved State Power in Taxation -GR: State taxation of Interstate Commerce is permissible as long as the tax doesnt discriminate against or unduly burden Interstate Commerce
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-4 Factors 1. Substantial nexus between the activity taxed and the taxing state -Regular operation within a state enough to show substantial nexus 2. Tax must be fairly apportioned 3. Tax must not discriminate against Interstate Commerce + 4. Tax must be fairly related to the services provided by the taxing state The State Tax on Interstate Commerce is Valid If: 1. Not pre-empted by Federal Law 2. It does not discriminate against Interstate Commerce 3. It has a substantial nexus 4. There is a fair apportionment and relationship

Types of Action Governed by the Constitution -P must show State Action in order to show a Constitutional Violation either by State or Federal Govt (cant be violated by Private Actors) 14 Amendment -No state shall deprive any person of life, liberty, or property without Due Process nor deny Equal Protection. 15 Amendment -Prohibits the State and Fed Govts from denying the right to vote based on race 14 and 15 Amendments -Prohibit Governmental Conduct which infringes upon protected Individual Rights -Private Actors cannot violate the Bill of Rights and Constitutional Amendments that constrain the Federal Govt -Exceptions 1. If theres significant state involvement where the Govt + Private Entity are so closely related Action treated as Govt th th 14 and 15 Amendments Apply 2. If a Private Entity is carrying on activities traditionally and exclusively performed by the Govt State Action Found 13 Amendment -Prohibits slavery and involuntary Servitude No need for State Action Supremacy Clause -In General Federal Law will supersede any state law with which it is in direct conflict -Congress can preempt any state law in an area in which the exercise of federal power is constitutional -States are free to enact more stringent standards those mandated by Federal Law
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Due Process and the Incorporation of Portions of the Bill of Rights 14 Amendment Privileges and Immunities Clause -Right to travel freely from State to State -Right to challenge a States denial of Full Unemployment Benefits 14 Amendment Due Process Clause -Applicable to the States: th -6 Amendment Right to a Speedy and Public Trial -Right to Confront and Cross-Ex Witnesses -Jury Trial in Criminal Cases th -8 Amendment Prohibition Against Cruel and Unusual Punishment -Freedom of Speech and Press -Right to Free Exercise of Religion -Right to be Free from Unreasonable Searches and Seizures th -5 Amendment Protection Against Double Jeopardy -Privilege Against Self-Incrimination -Just Compensation when Private Property taken for Public Use -Rights NOT incorporated include: th -5 Amendment Right to a Grand Jury in Criminal Cases th -7 Amendment Right to a Jury Trial in Civil Cases -The Bill of Rights Stops Here! th -The 14 Amendment extends the Bill of Rights EXCEPT: 1. Prevent quartering soldiers in your home 2. Grand Jury Indictment 3. Civil Jury Trial 4. Prevent Excessive Fines -Scope of Due Process Clause -Due Process and Equal Protection protect rights of persons, not just merely citizens. -A Corporation is considered a person (but not entitled to Privilege Against SelfIncrimination) -Aliens considered persons for Due Process and Equal Protection Procedural Due Process th th -Both 5 And 14 Amendments protect against deprivation of life, liberty and property entitled to Procedural Due Process 1. Deprivation of Liberty 1. Bodily Restraints 2. Physical Punishment 3. Mental Institution -Not Invasion of Liberty 1. Injury to Reputation 2. Forced Administration of Medicine
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2. Property Interests 1. Public Education 2. Continued Welfare Benefits 3. Drivers License 4. Public Employment -Under a Tenure 5. Prejudgment Garnishment 6. Forfeiture of Property 7. Business Licensing -Procedural Due Process is not required where there is no state action 3. Life Interests -Capital Punishment Deprivation of a Life Interest

Constitutional Law Analysis Tips

When you see this


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remember this

13 Amendment

-Best answer when Private Individuals, who do not qualify as state actors, discriminate

14 Amendment

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-All the elements of the Constitution incorporated into the amendment are, hence, protected by it -Frequently best answer when 1 Amendment Right of Free Speech or Freedom of Religion is not offered as a choice -Grants Congress the power to enact legislation that affects Interstate Commerce
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Commerce Clause

-Important source of Congressional power over civil rights -Does not empower Congress to push states into acting

Contract Clause

-Can be an issue where a state revokes a contract to which it is a party

Dormant Commerce Clause

-Legal doctrine inferred from Commerce Clause -Prohibits a state from passing legislation that improperly burdens or discriminates against Interstate Commerce

-If Law Facially Discriminates: 1. State must show compelling interest 2. Must be narrowly tailored -If Law Incidentally burdens Interstate Commerce: 1. State must show Important Govt Interest 2. Burden not excessive

Due Process Clause

-Best choice for an Unconstitutional Argument when: 1. State acts, or 2. State does not grant a hearing or invades Privacy rights -Best option when state action interferes w/ a Fundamental Interest (ex: Right to Vote, or Travel, or Classifications by Race, Alienage, or Sex). -Congress power to spend treasure funds, but not to regulate activity -Best answer when voluntary cooperation by party with Fed Govt is the ONLY way to reach result

Equal Protection Clause

General Welfare Power or Spending Power

Police Power

-Can be the answer only when State Action vs. Federal Action

Privileges and Immunities Clause

-Bars states from discriminating against nonresidents on fundamental matters, unless the regulation in question specifically targets a problem arising from such non-residents behavior -The Privileges and Immunities Clause of the 14 Amendment is almost never a right answer
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Supremacy Clause

-Not a Congressional Power -Not a good choice unless there is a Congressional Statute or Provision conflicting with a State Activity

Taxing Power

-Allowed for regulatory purposes if there is a revenue-raising function -Best answer if Commerce Clause isnt available

Substantive Due Process 1. Economic Regulation Rational Basis Scrutiny -Upheld if rationally related to a legitimate Govt interest 2. Fundamental Rights Strict Scrutiny -Necessary to achieve a compelling Govt interest -Fundamental Rights: -Right to Vote -Right to Travel -Right to Privacy -Contraceptives -Marriage -Abortion -Family Relations -Sexual Orientation -Private Education -Obscene Material -Right to Travel -Right to Vote st -1 Amendment Rights -Family Rights -Undue Burden Standard for Abortion 1. Govt may regulate (but not ban) abortion in the interest of the mothers health or st potential life of the fetus (in the 1 2 trimesters) 2. Regulation may not impose an undue burden on the womans right to choose an abortion 3. Parental consent may be required if state establishes a judicial bypass procedure where minor may obtain an abortion with the consent of a judge. 4. No Constitutional right to obtain Govt funding for abortions. -Family Relations -Fundamental right for related persons to live together -Fundamental Right does not apply to unrelated persons -Zoning ordinance prohibiting members of an extended family from living in a single household unconstitutional -Obscene Material -Right to possess obscene material in privacy of own home is protected Govt can severely restrict and criminalize possession of child pornography

-Right to Die -NOT a Fundamental Right -But person has Due Process Liberty Interest in not being forced to undergo unwanted medical procedures like Life Support State: still has a countervailing interest in preserving life -Right to Travel -Freely from state to state -Right to international trial not absolute and may be subject to reasonable restrictions -Right to Vote 1. Strict Scrutiny review on restrictions on right to vote 2. Government regulations of Ballot-Access by Candidates Rational Basis Scrutiny Takings Clause th -5 Amendment provides that Private Property shall not be taken for Public Use without Just Compensation th -Also applies to the states via the Due Process Clause of the 14 Amendment -Property can be taken through: 1. Direct Govt Appropriation -Where the state validly regulates for health, safety, or welfare purposes under its Police Power that is a Regulation payment for just compensation not required -However, a Taking does occur when there is an actual appropriation of ones property 2. Regulatory Taking -Permanent physical invasion Taking -Land-Use Regulation Taking if it denies an owner of all reasonable, economically beneficial uses of his land 3. Temporary Restrictions 4. Conditional Permits -Govt can place a condition on the grant of a permit for land development if: 1. Logical nexus between the condition and the govtal purposes + 2. Proportionality between impact and objectives Equal Protection of the Laws 14th Amendment -No state shall deny to any person the Equal Protection of the laws -Equal Protection triggered when persons similarly situated are treated differently

Standards of Review ******* 1. Strict Scrutiny -Necessary to achieve a compelling government interest -Must be narrowly tailored -Burden on Government -Applies to: Race, National Origin, Alienage -Government usually loses 2. Intermediate Scrutiny -Substantially related to an important government interest -Burden on Government -Applies to: Gender and Illegitimacy 3. Rational Basis -Rationally related to an important government interest -Burden on Plaintiff -Applies to: Age, Poverty, Wealth, Disability, Necessity -P usually wins Discriminatory Intent -Must be shown to trigger Strict Scrutiny and Intermediate Scrutiny -Facial Discrimination -Arises where a law, by its very language, creates distinctions between classes of people (ex: only white, male US citizens may apply for position with state) -Neutral on its Face but its application has a discriminatory effect on particular class of persons Strict or Intermediate Scrutiny will apply only if the court finds Discriminatory Purpose -If a law is facially neutral and has discriminatory purpose law is invalid Strict Scrutiny -Applies to Race, National Origin, and Alienage -Court-ordered busing constitutional where implemented to remedy past discrimination -Where it can be shown that race was the predominant factor in defining new districts Strict Scrutiny -State law prohibiting Aliens from owning land or obtaining fishing license invalid -States may discriminate against Aliens in activities where participation in functioning of Govt is involved -Illegal Aliens NOT SUSPECT CLASS Rational Basis will apply -Federal Laws that discriminate against Aliens are not subject to Strict Scrutiny because Congress has broad plenary power to regulate Immigration Intermediate Scrutiny -Substantially related to an important government interest -Applies to Gender and Illegitimacy

-Intentional Discrimination necessary for Intermediate Scrutiny Affirmative Action -Race may be considered as a plus factor in college admissions -Remedying past discrimination in particular Govt Institution generally viewed as a compelling interest -Attempting to remedy general societal injustice through Affirmative Action not compelling interest -Schools may not use points system for each minority applicant -Discrimination by private employers not subject to Equal Protection 1. Based on Race -Strict Scrutiny -Only upheld to remedy past or present Discrimination in a particular institution + -Upheld to achieve a diverse student body in higher education 2. Based on Gender -Intermediate Scrutiny -Social Security statutes and tax exemptions that entitle women to greater benefits have been upheld Equal Protection Challenges Rational Basis Intermediate Scrutiny Strict Scrutiny

-Age -Alienage (some) -Disability -Sexual Orientation -Wealth -All else

-Gender -Illegitimacy -Undocumented Alien Children

-Alienage -Domestic Travel -National Origin -Race -Voting

14 Amendment Privileges and Immunities Clause -Limited rights: 1. Interstate Travel 2. Petition Congress 3. Vote for National Office 4. Enter Public Lands 5. Be protected while in custody of US Marshals 6. Assemble Peacefully -Corporations and Aliens not protected Article IV Privileges and Immunities Comity Clause -Prohibits states from discriminating against non-residents with respect to rights and activities that are fundamental to the national union. -Corporations and Aliens are not protected

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-Discrimination against citizens or residents for essential rights or liberty triggers Art. IV Privileges and Immunities Clause -General Economic Discrimination against Business or Entity Commerce Clause

Retroactive Legislation Contract Clause -Prevents state Legislatures from passing retroactive laws impairing an existing contractual obligation -Only applies to State Legislation -Does not apply to the Fed. Govt -A Private K may be modified by the Legislature under its Police Power when its necessary to serve an important government interest + its narrowly tailored. Ex-Post Facto Laws -No state shall pass Ex-Post Facto Laws -Makes previously non-criminal act a crime -Increases punishment after commission -Decreases evidence required for conviction -Extends expired SOL Bill of Attainder -No state shall pass any Bill of Attainder -Legislative act that inflicts punishment without a judicial trial

First Amendment Freedoms First Amendment -Freedom of Religion and Separation of Church and State -Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Establishment Clause 1. Where Govt prefers one religion or sect over others Strict Scrutiny applies 2. Where Legislation or Government contains NO Religious Preference Lemon Test Lemon Test 1. Statute must have a secular purpose 2. Primary effect neither inhibits nor advances religion 3. No excessive Government Entanglement -Religious activities at Public School Generally unconstitutional -Public school sponsoring Rabbi or Cleric to conduct even a nondenominational prayer as part of a graduation ceremony invalid

-Prohibition against showing religious films in school violated Free Speech -Teaching Anti-Evolution laws in Public Schools Unconstitutional -Government endorsement of religion reviewed by context -Sunday closing laws upheld as a Govt action with a mere incidental benefit to religion -Tax Exemptions for religious institutions valid -Most Govt aid to religious schools Unconstitutional b/c of Excessive Govt Entanglement -Bus Transportation + necessary municipal services can be provided to all schools -Grants to religious schools for salaries of teachers of secular subjects invalid b/c of risk of Excessive Government Entanglement -Grants to church-related colleges allowed because instructors are restrained and students are mature -Federal Grants to church-affiliated hospitals for maintenance and care of indigent patients valid Free Exercise Clause 1. A persons religious beliefs are absolutely protected 2. Govt may not punish an individual by denying benefits or imposing burdens based on religious belief 3. Where an individuals conduct is motivated by his religious beliefs the state may regulate or prohibit activity if the regulation is neutral in respect to religion and is of general applicability -(Govt may regulate religious conduct, not belief) 4. Where Govt purposely interferes with particular conduct because its dictated by religious beliefs Strict Scrutiny will be applied Freedom of Expression -Govt may neither censor all categories of speech nor engage in content-based discrimination among different categories of speech (with some exceptions) -The regulation of speech is allowable if it passes Strict Scrutiny Conduct Regulation -Law which regulates conduct but creates an incidental burden on Speech is allowable if: 1. Regulation furthers an important or substantial government that is unrelated to the suppression of freedom of expression + 2. The incidental restriction on speech is no greater than necessary to further that interest Govt as Speaker 1. When the Speaker is the Govt rather than a Private Actor the Govt may discriminate based on the content of the speech 2. When Govt speaks it may favor some views and disfavor others 3. If Private Individuals engage in direct communication in a public park (ex: making speeches or distributing leaflets) Govt may not discriminate among the speakers based on the content of their speeches

Unprotected Speech -Regulation which relates to unprotected speech is permissible -Unprotected Speech Includes: 1. Speech that advocates violence or unlawful action 2. Fighting Words -There must be a genuine likelihood of imminent violence by a hostile audience 3. Hostile Audience Speech -Speech which elicits an immediate violent response against the Speaker may be grounds for prosecution. 4. Obscene Speech 1. Average person would find work appeals to the prurient interest 2. Work depicts sexual conduct in an offensive way 3. Work lacks Literary, Artistic, Political, or Scientific value (LAPS) -Child Pornography Unprotected Speech -May be regulated without satisfying Miller Test b/c of states compelling interest in protecting minor children -Sale and distribution of sexual conduct involving children may be prohibited -State may criminalize the private possession of child pornography in ones home -Court upheld a congressional statute that punished those who solicited or distributed pornography while believing it depicted real children, even if it didnt. 5. Defamatory Speech 1. P is Public Official/Figure + Public Concern need malice 2. P is a Private Person + Private Concern P doesnt need to show malice or negligence 3. P is a Private Person + Public Concern must prove negligence -Private P suing Media D for False Light Invasion of Privacy concerning matter of Public Concern must prove actual malice

-Lower Levels of Protection 1. Commercial Speech -State may prohibit commercial advertising of matters that are illegal or untruthful, misleading, or deceptive. st -Commercial Speech is protected by the 1 Amendment if it is not false or deceptive and doesnt relate to unlawful activity -If Commercial Speech satisfies those requirements, Govt Regulation of Speech must satisfy test:

1. Serve substantial govt interest 2. Directly advance the substantial govt interest 3. Not be more extensive than necessary to serve that interest 2. Sexual Speech -Regulation of Sexual Speech must serve a substantial govt interest + leave open reasonable alternative channels of communication Time, Place, and Manner -Reasonable regulation of the time, place, or manner of speech is allowed -Govt may place reasonable restraints in public areas -3 Part Test -Regulation must: 1. Be content-neutral as to both subject matter and viewpoint (the regulation cannot prefer some messages over others) 2. Be narrowly tailored to serve an important govt interest + 3. Leave alternate channels of communication open -Speech-related activities at non-public forums (military bases, jails, mailboxes) can be regulated by reasonable time, place, and manner regulations: 1. Viewpoint neutral + 2. Reasonably related to a legitimate interest -Public school may not deny use of its facilities to religious groups if other groups are allowed similar access Freedom of Association -There is a close nexus between the freedoms of speech and association -Subject to the closest scrutiny -It is unconstitutional for the Govt to order the Boy Scouts to allow homosexuals to participate in the organization st Falls within its 1 Amendment Right of Expressive Association Public Employment -GR: An individual cannot be denied Public Employment based upon membership in a Political Organization unless person is a high-level policy-making position. -An individual may be deprived of public employment for political association if: 1. He is an active member of a subversive organization 2. Such membership is with knowledge of the illegal aims of the organization + 3. He has a specific intent to further those illegal ends (ex: violent overthrow of the Govt) Prior Restraint -GR: Govt cannot suppress or restrain speech in advance of its publication or utterance -Exceptions 1. National Security 2. Classified Military Info th 3. Any case involving a Search + Seizure is governed by the 4 Amendment

Overbreadth -When a state has power to regulate, the wording of a statute must be narrow and specific + not overly broad so as to have a chilling effect upon protected speech. -There must be a realistic danger to be challenged on overbreadth grounds Vagueness -Governmental regulations must be drawn with narrow specificity Press -The Press has no greater freedom to speak than any ordinary person. -Has no special right of access to Govt info -Gag Orders unconstitutional almost always Bar Admission -State is permitted, under Due Process to inquire into the qualifications and fitness of candidates for admission to the bar -Cant be denied admission for past membership with communist party -May deny admission for refusal to answer questions.