QUICKSHEET – CONSTITUTIONAL LAW
JUDICIAL REVIEW AND FEDERAL JURISDICTION
1)
Article III, Section 2 limits the jurisdiction of the federal courts to:
a) Law-based jurisdiction:
i)
Cases arising under the Constitution of federal law; cases of admiralty and maritime jurisdiction
b) Party-based jurisdiction:
i)
Controversies to which the US is a party;
ii) Controversies between two or more states;
iii) Cases between a state and citizens of another state;
iv) Cases between citizens of different states and the amount in controversy is over $75,000 (diversity cases); and
v) Cases affecting ambassadors and consuls
2)
11th Amendment prohibits private individuals from suing states for money damages in any court, except:
a) Federal suits brought by one state against another state, or suits brought by the federal government
against a state;
b) Lawsuits against subdivisions of a state (i.e., cities, towns, counties);
c) Most lawsuits for injunctions;
d) The state consents;
e) Congress authorizes money damages against states for violations of 13th, 14th, and 15th
Amendments
3)
Case or Controversy
a) Standing
i)
Article III requires a person to show:
(1) Injury in fact;
(a) An actual or imminent injury that is direct and personal
ii)
(2)
Causation; and
(a) Injury was caused by the challenged action
(3)
Redressability
(a) Plaintiff will benefit from the remedy sought in the litigation
Third-Party Standing
(1) Rule—A party may have standing to enforce the rights of a third party if:
(a) A special relationship exists between the claimant and the third party because of the
connection between the interests of the claimant and the constitutional rights of the
third person; or
(b)
(2)
b)
c)
The third party is unable or finds it difficult to bring suit on his own behalf
Rule—An organization has standing to assert claims of its members if:
(a) The members would have standing to sue in their own right;
(b)
The interest asserted is germane to the organization’s purpose; and
(c)
Neither the claim asserted nor the relief requested requires participation by the individual members in the lawsuit
Ripeness
i)
Ripeness bars consideration of claims before they have fully developed; the controversy must be
ripe for decision
Mootness
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i)
d)
e)
f)
If a controversy or matter has been resolved, then the case will be dismissed as moot
(1) Exception: Case will not be dismissed if the injury is “capable of repetition, yet evading
review”
Political Questions
i)
Federal courts cannot hear cases involving political questions. A political question is a matter
assigned to another branch by the Constitution or incapable of a judicial answer
ii) Factors:
(1) Something in the Constitution suggests that ultimate decision-making authority is given to
another governmental actor;
(2) The required decision is political rather than legal in character
Abstention
i)
Federal courts may abstain or refuse to hear a particular case when there are undecided issues
of state law presented
Adequate and Independent State Grounds (applies to Supreme Court only)
i)
If the state court judgment can be supported on an adequate and independent state ground, the
Supreme Court will not take jurisdiction
4)
Jurisdiction of the Supreme Court
a) Original jurisdiction over cases involving foreign diplomats and states
i)
Congress cannot change the Supreme Court’s original jurisdiction
5)
Congress’s power over courts
a) Lower courts: Congress can do whatever they want (i.e., change jurisdiction, eliminate or create
courts)
b) Supreme Court: unsettled
i)
Congress cannot take case from appellate jurisdiction and move it to original jurisdiction
SEPARATION OF POWERS
1)
Powers of Congress
a) Legislative Power
i)
Congress must have the power to pass the law, and the law must not violate a constitutional right
ii) Three sources of legislative power:
(1) Enumerated powers = powers stated in the Constitution (i.e., Article I, section 8)
(2) Enabling clauses = may enforce the 13th, 14th, and 15th Amendments by “appropriate
legislation”
(3) Necessary and Proper Clause = implied power to make laws that are “necessary and
proper” to carry out an enumerated power
b) Commerce Power
i)
Rule—Congress can regulate:
(1) Channels of interstate commerce (i.e., highways, waterways, and air traffic);
(2) Instrumentalities of interstate commerce (i.e., cars, trucks, ships, airplanes); and
(3) Activities that “substantially affect” interstate commerce
(a) Substantial effect = inter- or intrastate economic activity that has a substantial effect
upon interstate commerce
ii)
c)
2
Limitation:
(1) Cannot regulate intrastate non-economic activity (i.e., possession of a handgun)
(a) Exception: regulating intrastate non-economic activity with a “comprehensive scheme”
Taxing Power
i)
Congress can impose and collect taxes in order to pay debts and spend for the general welfare
ii) Rule—An act purporting to be a “tax” should be upheld as a valid exercise of the taxing power if:
(1) It raises revenue (objective test);
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d)
e)
f)
g)
2)
(2) It was intended to raise revenue even if it doesn’t (subjective test); or
(3) Congress has the power to regulate the activity that’s being taxed (regulatory test)
Spending Power
i)
Congress can spend for the general welfare (almost anything meets the definition of “general
welfare”)
ii) Rule—Congress may place a condition on the receipt of federal funds by a state if:
(1) The spending serves the general welfare;
(2) The condition is unambiguous;
(3) The condition is related to the federal program (relatedness);
(4) The state is not required to undertake unconstitutional action; and
(5) The amount in question can’t be so much that the state is “coerced” into accepting the
funds
War and Defense Powers
i)
Congress declares war
ii) During wartime, Congress may institute a draft and initiate wage, price, and rent control of the
civilian economy
Civil War Amendments (13th, 14th, and 15th)
i)
Rule—To enforce these amendments:
(1) With respect to the 14th and 15th Amendments, Congress can only regulate states, not
private individuals;
(a) Under these Amendments, Congress can overcome state sovereign immunity (i.e.,
authorize money damages)
(2) State governments must have engaged in widespread violations of the Amendment; and
(3) The legislative remedy must be “congruent and proportional to” the violation
Delegation of Power
i)
Rule: Congress can create an executive agency (i.e., FDA) and give the agency some legislative
power
(1) Actions of an agency will prevail over inconsistent state law
ii) Limitation: must be some “intelligible principle” that guides the agency
Executive Power
a) Chief Executive
i)
Enforcement of Laws
(1) President can enforce but not create laws
ii) Appointment Power
(1) Appoints “high-level officials” with the advice and consent of the Senate
(a) Congress can delegate appointment of “inferior” officers to: the President; the judiciary; or the head of the agency
(i)
iii)
iv)
v)
“Inferior officer” = anyone who has a superior
Removal Power
(1) President may remove any executive appointee (i.e., a cabinet member) without cause
(2) President must have cause to remove executive officers who have fixed terms and officers who perform judicial or quasi-judicial functions (e.g., a member of the Federal Trade
Commission)
Veto Power
(1) President may veto an entire bill but cannot issue a line-item veto (only canceling certain
provisions of a bill)
(a) Congressional override: can override a veto by a two-thirds vote in both the Senate
and House
Pardon Power
(1) Limitations to the power to grant pardons:
(a) Can issue pardons for federal crimes only
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(b)
b)
c)
3)
A pardon cannot undo an impeachment (since it is not a criminal conviction)
Commander-in-Chief
i)
Military Powers
(1) If Congress has not declared war, President’s powers are limited to: using military force in
response to a surprise attack upon the US
(2) If President and Congress disagree, President prevails with respect to battlefield tactical
decisions
International Affairs
i)
Treaty Power
(1) President may enter treaties, but requires 2/3 vote of the Senate to become effective
(2) Treaties and federal law: treaties have the same status as federal law and will override
earlier federal law
(3) Treaties and state law: treaties take precedence over any conflicting state law
ii) Executive Agreements
(1) President may enter into executive agreements with foreign nations (does not require
Senate approval)
(2) Federal law: executive agreements do not prevail over federal law
(3) State law: executive agreements prevail over inconsistent state law
Congressional Limits on the Executive
a) Impeachment Power
i)
The House has the sole power to impeach, and the Senate tries the impeachment (need 2/3 vote
to convict)
ii) Impeachable offenses: treason, bribery, and other high crimes and misdemeanors
b) Appropriations Power
i)
Where Congress by legislative act explicitly directs the President to spend appropriated money,
President has no power to impound (i.e., refuse to spend or delay spending) the authorized funds
FEDERAL-STATE RELATIONSHIP
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1)
Immunity of Federal Government
a) Sovereign immunity: the federal government cannot be sued without its consent
b) Supremacy Clause: federal law is supreme over state law
c) Federal agencies are immune from state taxation and regulation that would interfere with their performance of federal functions
2)
Immunity of State Governments
a) 11th Amendment: Congress cannot create a private cause of action for money damages against a
state unless it is using its enforcement powers
b) A state is immune from federal taxation if the tax is applied to unique state activities or essential
governmental functions
c) Anti-Commandeering Doctrine: the federal government can’t force states to act in their sovereign
capacities (i.e., enforce laws)
3)
Authority Reserved for the States
a) Dormant Commerce Clause
i)
General rule: States cannot discriminate against out-of-state economic actors
ii) Rule—If a state law discriminates on its face against out-of-state goods or economic actors, the
state must show:
(1) The regulation serves a compelling interest; and
(2) The regulation is necessary to the compelling interest
iii) Rule—If a state law incidentally burdens interstate commerce, the state must show:
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iv)
(1) The regulation serves an important state interest; and
(2) The burden on interstate commerce isn’t excessive in relation to the interest served
Exceptions:
(1) Congress may affirmatively authorize states to legislate in areas that would violate the
dormant commerce clause
(2) States acting as market participants may discriminate between in-state and out-of-state
businesses
TYPES OF ACTION GOVERNED BY CONSTITUTION
1)
State-action requirement: the plaintiff must show that there is governmental action
2)
Exceptions:
a) Public-function theory
i)
Where a private entity is carrying on activities traditionally performed by the government
b) Significant-state-involvement theory
i)
Where a private party’s action is closely encouraged and supported by the state, the private
party’s action can be treated as action by the government
c) 13th Amendment
i)
Does not require state action; it protects against actions of private individuals
DUE PROCESS AND INCORPORATION OF PORTIONS OF THE BILL OF RIGHTS
1)
Which Constitutional Provision to Use
a) Claims against federal government: 5th Amendment Due Process Clause
b) Claims against a state government: 14th Amendment Due Process Clause
2)
Due Process Clause (both Fifth and Fourteenth Amendments)
a) Procedural Due Process
i)
Protects against governmental deprivation of “life, liberty, or property” without due process of law
(1) “Liberty” = freedom from bodily restraint and physical punishment
(2) “Property” = public education, public employment (if fixed-term employment or can be fired
only for cause), welfare benefits, driver’s license
(3) “Life” = capital punishment
ii) Applies to all people (not just citizens) as well as corporations
iii) To deprive someone of life, liberty, or property, the government must give: notice and an opportunity to be heard (i.e., a hearing)
(1) Factors to determine adequate notice and hearing:
(a) The importance of the individual interest protected;
b)
(b)
The risk of an erroneous deprivation of this interest through the procedures used; and
(c)
The government’s interest in streamlined procedures
Substantive Due Process
i)
Rights that are not enumerated in the Constitution
ii) Standards of review
(1) Rational basis = the plaintiff must show that the law is not rationally related to any legitimate government interest
(2) Strict scrutiny = the government must show a compelling government interest and there is
no other way to serve that interest
iii) Economic Regulation
(1) Substantive due process rights are not economic  economic regulations only have to
meet rational basis review
iv) Fundamental Rights
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(1)
Abortion
(a) Any regulation on a pre-viability abortion is unconstitutional if it imposes an undue
burden on a woman’s right to choose an abortion
(i)
(ii)
(2)
Examples of undue burden:
1.
Total ban on abortion
2.
Spousal consent or notification requirement
3.
Recording the names of patients who seek abortions
4.
Requiring minors to get parental consent without a judicial bypass option
Examples of no undue burden:
1.
Requiring minors to get parental consent with a judicial bypass option
2.
A 24-hour waiting period
3.
Requiring doctors to give truthful, non-misleading information to women
seeking abortions
4.
Refusing public funds
5.
A prohibition on certain methods of abortion if they are not the safest
Family Relations
(a) States cannot prohibit members of an extended family from living in a single
household
(b)
States can ban unrelated persons from living together in a single-family residence
(3)
Sexual Orientation
(a) States cannot ban homosexual intimacies and autonomy (use rational basis review)
(4)
Private Education
(a) Parents have a right to privately educate their children outside the public school
system
(5)
Possession of Obscene Material
(a) Right to possess obscene material (except child pornography) in the privacy of one’s
home
(i)
However, no right to buy or sell that same material
(6)
Right to Die
(a) Right to refuse unwanted medical procedures (i.e., life-support), but no right to physician-assisted suicide
(7)
Right to Travel
(a) 14th Amendment Privileges and Immunities Clause allows citizens to travel freely from
state to state and to set up residency in a new state
(8)
Right to Vote
(a) Generally, right to vote comes from First Amendment Right of Association and 14th
Amendment
(i)
(b)
Other voting rights:
1.
15th Amendment: States cannot discriminate with respect to race
2.
19th Amendment: States cannot discriminate with respect to sex
3.
24th Amendment: No poll taxes
4.
26th Amendment: Right to vote for citizens 18 years or older
Restrictions that are constitutional:
(i)
Reasonable residency and voter registration requirements
(ii)
Reasonable regulation of time and manner of casting votes
(iii) Denying felons the right to vote
(c)
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Restrictions that are unconstitutional:
CONSTITUTIONAL LAW
3)
(i)
Cannot require voters at school board elections to own property
(ii)
Cannot count votes using standards that lack uniformity or are too vague
5th Amendment Takings Clause
a) Government cannot take private property for public use without just compensation
i)
“Public use” = “public purpose” (easy standard to meet)
b) Two kinds of takings:
i)
Direct government appropriation = where government actually takes property
ii) Regulatory taking = where government doesn’t take property but imposes a regulatory requirement that is so onerous as to effectively amount to a taking of land
(1) Categories to determine whether a regulatory requirement amounts to a taking:
(a) The regulation requires the property owner to suffer some permanent physical
invasion;
(b)
The regulation deprives the property owner of all economically beneficial use to the
property; or
(c)
Balance the economic and physical impact of the regulation on the property owner, as
well as the duration and character of the government action
EQUAL PROTECTION OF THE LAWS
1)
Constitutional Basis
a) Federal government: 5th Amendment Due Process Clause
b) States: 14th Amendment Equal Protection Clause
2)
Standards of Review
a) Rational basis
i)
Rule: Plaintiff must show that the measure being challenged is not rationally related to any legitimate governmental interest
(1) Applies to all classifications not falling under strict or intermediate scrutiny (age, alienage
(federal), disability, sexual orientation, wealth)
b) Intermediate scrutiny
i)
Rule: Government must show that the measure being challenged is substantially related to an
important governmental interest
(1) Applies to government discrimination regarding gender, illegitimacy, and undocumented
alien children
c) Strict scrutiny
i)
Rule: Government must prove that the measure being challenged serves a compelling government interest, and that the measure is necessary to further that interest
(1) Applies to classifications based on race, alienage (state), voting, domestic travel, and
national origin
3)
Suspect Classifications
a) Strict Scrutiny
i)
Racial discrimination
(1) De jure segregation: laws that deliberately segregate on the basis of race
(a) This will face strict scrutiny and almost always be found unconstitutional
(2)
De facto segregation: segregation in fact but not by operation of law
(a) This isn’t discrimination, as there’s no state action
(3)
May pass strict scrutiny for classification based on race where:
(a) Police are separating a crowd by race in the middle of a riot; or
(b)
Affirmative action
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(i)
ii)
1.
Remedying the effects of past discrimination by the state; and
2.
Achieving a diverse student body in an institute of higher education
Alienage discrimination by states
(1) Resident Aliens
(a) Rule: When states discriminate against resident aliens, apply strict scrutiny
(i)
(2)
b)
Compelling interests for affirmative action:
Public-function exception—some jobs or activities may be withheld from resident
aliens, including:
1.
Police officers
2.
Governmental officials
3.
Public school teachers
Illegal Aliens
(a) Rule: When states discriminate against undocumented immigrants, apply rational
basis
Intermediate Scrutiny
i)
Illegitimacy
ii) Sex discrimination
(1) Examples of constitutional laws:
(a) Mandating men to register for military draft but not women
(b)
(2)
Examples of unconstitutional laws:
(a) Authorizing alimony payments to women but not to men
(b)
(3)
State statutory rape laws may set the age of consent higher for females than for males
Higher drinking age for men than for women
Affirmative action
(a) General rule: Benign discrimination in favor of women gets upheld to make up for past
discrimination either by the person who is offering the remedial program or to make up
for societal discrimination
PRIVILEGES AND IMMUNITIES
8
1)
14th Amendment Privilege and Immunities (P&I) Clause
a) Very limited application and primarily includes the right to:
i)
Travel across state lines and establish residence in a new state;
ii) Petition Congress;
iii) Vote for federal offices;
iv) Assemble; and
v) Enter public lands
b) Corporations are not protected
2)
Article IV, section 2 P&I Clause
a) Prohibits states from discriminating against non-residents (based upon the fact that they do not reside
in the state) with respect to rights and activities that are fundamental to the national union
i)
Test: The state can discriminate if it is substantially related to a substantial state interest
b) Invalid forms of non-resident discrimination:
i)
State statutes that require non-residents to pay a higher fee for commercial licenses;
ii) Commuter taxes that apply to non-residents, but not to residents;
iii) State statutes that only allows state residents to get abortions within the state; or
iv) A state law requiring employers to give hiring preference to state residents
c) Types of discrimination that have been upheld:
i)
Requiring non-residents to pay higher fees for recreational licenses than residents
CONSTITUTIONAL LAW
d)
ii) When the purpose of discrimination is to preserve natural, state-owned resources
Corporations cannot assert these rights, as a corporation is not a citizen
i)
A corporation can protect itself from such discrimination via the Dormant Commerce Clause
RETROACTIVE LEGISLATION
1)
The Contract Clause
a) The Contract Clause applies only to state legislation, and not to state court decisions
b) Rule—When determining whether a contract may be modified, courts will consider:
i)
The severity of the impairment; and
ii) The importance of the public interest to be served
2)
Ex Post Facto Laws
a) Rule—In general, a statute violates the ex post facto clause if it:
i)
Makes criminal an act that was not a crime when committed;
ii) Prescribes greater punishment for a crime after its commission;
iii) Decreases the amount of evidence required for conviction; or
iv) Extends the statute of limitations for a crime as to which the previously applicable statute of
limitations has already expired
3)
Bills of Attainder
a) Bill of attainder = a legislative act that inflicts punishment without a judicial trial upon named individuals
or an easily ascertainable group for past conduct
i)
Bills of attainder will single out an individual or a group and will not involve a trial
FIRST AMENDMENT FREEDOMS
1)
Establishment Clause
a) In General
i)
Rule (discriminatory legislation)—Where a law prefers one religion (or religious sect) over others,
strict scrutiny applies
ii) Rule (neutral legislation)—Where legislation is neutral on its face (**Lemon test**):
(1) The statute must have a secular legislative purpose;
(2) The principle or primary effect or purpose must neither advance nor inhibit religion; and
(3) The statute must not foster an excessive government entanglement with religion
b) Religious Activities Conducted at Public Schools
i)
Rule: School prayer is per se unconstitutional
(1) Other invalid activities at public schools:
(a) Period of silence “for meditation or voluntary prayer”
c)
d)
(b)
Posting Ten Commandments on the walls of classrooms
(c)
Rabbi/other cleric to conduct non-denominational prayer as part of a graduation
ceremony
(d)
Prayer before a high school football game
(2) Valid activity: religious club holding its meetings in a public school
Public School Curriculum
i)
State cannot put religious classes in public schools (i.e., anti-evolution laws)
Other Government Endorsement of Religion
i)
Examples of constitutional action:
(1) Including a crèche in a Christmas display in a park, especially where there’s also a Santa
Claus and candy canes
(2) Posting the Ten Commandments as a monument along with other monuments surrounding
the State Capitol
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(3) Sunday closing laws
Examples of unconstitutional action:
(1) Placing the Ten Commandments on the walls of courthouses is unconstitutional (no secular
purpose)
(2) Delegation of authority to religious organizations is unconstitutional
Tax Deductions for Religious Institutions
i)
General rule: A property tax exemption for religious institutions is valid if treated the same as
other non-profits
ii) A tax exemption from sales and use taxes available only for the sale of religious magazines and
books is an invalid endorsement of religion
Government Aid to Religious Schools
i)
States can provide money to both public and private schools for:
(1) Secular textbooks;
(2) Standardized secular exams;
(3) School lunches;
(4) Library media materials and computers; and
(5) Interpreters for deaf students
ii) States cannot give money to:
(1) Be used directly for religious instruction; or
(2) Religious secondary schools for salaries of teachers of secular subjects (risk of “excessive
government entanglement”)
(a) May give such money to schools at the university level
ii)
e)
f)
iii)
g)
2)
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Forms of valid government aid:
(1) Providing bus fare for both public and private (including some religious) schools
(2) Giving a tax deduction to all parents based on actual expenditures for children attending
any public, private, or religious school
(3) A voucher program that allows parents to send their children to parochial or religious
schools with state aid
Providing Public Services Through Religious Institutions
i)
If the government has a sex education program where it gives funding to both secular and religious organizations to carry out the program, it is constitutional
Free Exercise Clause
a) A person’s religious beliefs are absolutely protected
i)
Government may not determine the truth or falsity of a person’s religious beliefs
(1) But government may determine a person’s sincerity in his claim of religious belief
b) Rule (**important**): Where an individual’s conduct is motivated by his religious beliefs, the state
may regulate or prohibit the activity if the regulation is “neutral in respect to religion and is of general
applicability”
i)
Applications of the rule:
(1) Criminalizing possession of peyote with no exception for American Indians who use peyote
for religious rituals
(2) Outlawing polygamy
(3) Jewish Air Force doctor violating uniform dress requirements by wearing a yarmulke while
on duty
(4) Applying Social Security tax to a Amish employer whose religious beliefs prohibited him
from making payments and receiving benefits
ii) Exceptions (cases that haven’t been overruled):
(1) States can’t deny unemployment benefits to a person whose religious faith observes
Saturday as the Sabbath
(2) States can’t require Amish children to attend high school
CONSTITUTIONAL LAW
3)
Freedom of Expression
a) General principle: The government may not interfere with or distort the marketplace of ideas, especially with respect to political speech
b) Strict Scrutiny
i)
Rule: Strict scrutiny applies when the government engages in content-based discrimination
(1) Exceptions:
(a) Unprotected or low-value speech
c)
(b)
Government as speaker
(c)
Content-neutral conduct regulation
(d)
Content-neutral time, place, and manner regulation
Unprotected Speech
i)
Rule: A regulation that relates to unprotected speech is subject to rational basis review
ii) “Unprotected speech” includes:
(1) Speech that advocates violence or unlawful action;
(a) Rule: Advocacy that is (1) directed to inciting or producing imminent lawless action
and (2) is likely to incite or produce such action
(2)
Fighting words;
(a) Words likely to incite an ordinary citizen to commit immediate physical retaliation
(i)
(3)
Hostile audience speech;
(a) Speech that elicits an immediate violent response against the speaker by an audience
(i)
(4)
The speech must be more than annoying or offensive; must be a direct, personal
insult
Police must make reasonable efforts to protect the speaker, guard against a
“heckler’s veto” of unpopular speech
Obscene speech; and
(a) Rule—Speech is considered obscene if:
(i)
The average person, applying local contemporary community standards, would
find the work, taken as a whole, appeals to the prurient interest;
(ii)
The work depicts or describes, in a patently offensive way, sexual conduct that is
specifically defined by state law; and
(iii) The work, taken as a whole, lacks serious literary, artistic, political, or scientific
value
(5)
Defamatory speech
(a) Private person, matter of private concern  no proof of malice or negligence needed
(b)
Private person, matter of public concern  must prove negligence about the truth or
falsity of the statement (no malice required)
(c)
Public official/figure (matter of public or private concern)  must prove “actual malice”
(i)
(d)
Private person suing media for false-light invasion of privacy concerning matter of
public interest  must prove actual malice
(i)
d)
Actual malice = knowledge of the falsity or reckless disregard of the truth or
falsity of the statement
Rule: Newspaper/broadcaster is never liable for publishing truthful information
obtained from the public record
Low-Value Speech (quasi-protected speech)
i)
Commercial speech
(1) Rule: Government may regulate commercial speech that is false or deceptive, or that
relates to unlawful activity
(2) Rule—If commercial speech is not false or deceptive and does not relate to unlawful
activity, a regulation of commercial speech must:
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(3)
(a)
Serve a substantial governmental interest;
(b)
Directly advance the substantial governmental interest; and
(c)
Not be more extensive than is necessary to serve that interest
Examples:
(a) A state can:
(b)
ii)
e)
f)
g)
(i)
Discipline lawyers for in-person solicitation of clients for personal gain
(ii)
Prohibit commercial billboards
A state cannot: ban all advertisement of drug prices or legal services
Sexual or indecent speech
(1) Indecent speech is fully protected but can be regulated on the basis of secondary effects
(a) Rule: Secondary-effects regulations must serve a substantial government interest and
leave open reasonable alternative channels of communication
Government as Speaker
i)
Rule: Where the government is the speaker, the government may say what it wants
Conduct Regulation
i)
Rule—Laws that regulate conduct and create an incidental burden on speech is allowable if:
(1) The regulation furthers an important or substantial government interest that is unrelated to
the suppression of free expression; and
(2) The incidental restriction on speech is no greater than is necessary to further that interest
Time, Place, Manner
i)
Public forums
(1) Rule—The regulation must:
(a) Be content neutral, as to both subject matter and viewpoint (i.e., the regulation cannot
prefer some messages over others);
(2)
(b)
Be narrowly tailored to serve an important government interest; and
(c)
Leave open alternative channels of communication
Examples:
(a) Government can:
(b)
ii)
(i)
Require large gatherings to get a permit to use public property (the criteria to
receive a permit must be defined and content neutral)
(ii)
Restrict the volume and hours of amplifiers
Government cannot:
(i)
Require parades or marches to pay for police protection
(ii)
Enact a complete ban on door-to-door solicitation
Non-public forums
(1) Rule: the regulation must be reasonably related to a legitimate government purpose
(2) Examples:
(a) Government can:
(i)
Prohibit demonstrations on jailhouse grounds
(ii)
Close military bases to political speeches and distribution of leaflets
(iii) Regulate speech in government workplaces
(iv) Sell commercial advertising on a city bus but refuse to sell such space for political advertising
(b)
Government cannot:
(i)
h)
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Deny use of public school facilities to religious groups if other public and private
groups are allowed similar access
Public Employment
i)
General rule: Cannot be denied public employment, except a high-level policy-making position,
CONSTITUTIONAL LAW
based on membership in a political organization
(1) Rule—An individual may be denied public employment based on political association if:
(a) He is an active member of a subversive organization;
(b)
He has knowledge of the illegal aims of the organization; and
(c)
He has a specific intent to further those illegal needs
ii)
i)
j)
k)
l)
m)
n)
o)
Rule—Public employees may be disciplined or fired for speech if:
(1) The speech is not a matter of public concern; or
(2) The speech is potentially disruptive of the workplace (even if the speech is on a matter of
public concern)
School Children
i)
Rule: Public school children can be disciplined for speech that is potentially disruptive
Prisoners
i)
Rule: Prisoners’ speech may be restricted by a regulation that is rationally related to a legitimate
penological objective
Prior Restraint
i)
General rule: Cannot suppress or restrain speech in advance of its publication or utterance
(1) Strong presumption that prior restraints are illegal
Overbreadth
i)
A regulation of speech must be narrow and specific, not overly broad as to have a “chilling effect”
on protected speech
Vagueness
i)
A regulation of speech must not be vague (i.e., must be able to determine the type of speech
covered by the regulation)
Press
i)
In general, radio and television broadcasting can be more closely regulated than the print media
or a private individual
(1) Cable television receives protection somewhere between that of broadcast TV and newspapers and citizens
ii) Government can ban offensive sexual content and speech on broadcast television
iii) Where cable TV operators are subjected to content-neutral regulations, intermediate scrutiny is
applied
Bar Admission
i)
States are permitted to inquire into the qualifications and fitness of candidates for admission to
the bar
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