Con Law

Question 1

Standing - Injury

Answer 1

must be concrete; need not be economic; must have suffered injury or show likelihood of imminent injury (also required for injunctive/declaratory relief, even if P has standing to sue for damages); no generalized grievances (no TP standing at federal level except a specific gov’t expenditure pursuant to the Establishment Clause; TP standing allowed to challenge municipality’s expenditures); Congressman cannot challenge institutional actions (shared by all members of Congress), claimed injury must be concrete and personal.

Question 2

Standing - third parties

Answer 2

General rule: third parties generally lack standing.
Exceptions (standing for indirect harm): close relationship with injured party; injured party unlikely/unable to assert own rights; organizational standing: at least some members have injuries that would give them standing; their injuries are related to the purpose of the organization; the members do not need to participate in the claim or relief.

Federal courts may hear a case only when the plaintiff has standing to assert a claim, meaning that the plaintiff must have a significant stake in the controversy.

Generally, a litigant has no standing to bring a lawsuit on behalf of a third party that is not in court.

However, organizations and association may bring an action on behalf of its members if: (i) its members would have standing in their own rights; (ii) the interests being asserted by the organization in the lawsuit must be related to the organization’s purpose; and (iii) neither the claim asserted nor the relief requested would require the participation of the individual members.

Question 3

Sovereign Immunity - 11th Amendment

Answer 3

Limit on Article III “cases or controversies”

FORBIDS (usually)

• private citizens from suing states in federal court
• private citizens suing in their own state court for money damages (can sue in sister state for money damages)
• -can be overriden by State consent, and abrogated if Congress explicitly authorizes it under the enabling clause of the 14th Amendment (to enforce individual rights)

Does NOT forbid

• suits by federal government against states in federal court
• suits against state subdivisions
• suits in federal court against state officers where officer has violated claimant’s federal/constitutional rights
• suits in federal court against state officers for money damages if damage is to be paid out of officer’s own pocket

Question 4

Necessary and Proper Clause

Answer 4

Congress can exercise enumerated powers and all auxiliary powers (implied) N&P to carry out the enumerated powers (if not constitutionally prohibited).

Question 5

Taxing and Spending Power - Taxing

Answer 5

Taxes must be rationally related to raising revenue (low threshold).
May tax and spend in any way deemed necessary for the general welfare (very broad power).
To use its taxing power to regulate, tax’s dominant intent must be to raise revenue AND there must be a reasonable relationship between the tax and the regulation (low burden to satisfy).

Question 6

Taxing and Spending Power - Spending

Answer 6

May spend in any way deemed necessary for the “general welfare” (very broad power).

• Can use spending power to accomplish things it cannot do by direct regulation under the CC.
• Limit: cannot commandeer state and local officials to carry out federal programs. But: may use spending power to regulate, or adopt a federal regulatory program and enforce it with federal officers.

Question 7

Jurisdiction of federal “police power” (very limited)

Answer 7

Military; Indian reservations; Land (federal land or territories); District of Columbia.

Question 8

Commerce Clause (Source of Federal Power)

Answer 8

• Exclusive authority to regulate interstate commerce. Channels, instrumentalities or economic activities that have a substantial effect on interstate commerce (includes persons/things in interstate commerce).
• Intrastate commerce - may regulate commercial or economic activities if the cumulative effect of all those engaging in the conduct substantially affects interstate commerce.
• Intrastate commerce - may only regulate non-economic, non-commercial activities if the activity individually affects interstate commerce (cannot use cumulative effects doctrine).

CC places limitations on state laws that potentially interfere with Congress’ commerce power

Question 9

10th Amendment (reserved powers) - If Congress tries to legislate beyond its enumerated powers

Answer 9

• All powers not granted to the federal gov’t, nor prohibited to the states, are reserved to the states and people.
• Under the Tenth Amendment, a state or subsidiary of a state may make reasonable regulations for the health, safety, and welfare of its citizens.
• Such a regulation need only be rationally related to a legitimate government interest.
• However, such a regulation will only pass if it does not infringe upon other constitutional rights.
• Congress cannot compel state regulatory or legislative action. Can induce such action through conditional grants.
• Conditions must somehow relate to the purpose of the spending program at issue (low burden to satisfy).
• Congress may prohibit harmful commercial activity by state governments.

Question 10

Congressional delegation of powers

Answer 10

• Congress may delegate law making power
• May not delegate executive or judicial power to itself or its officers
• Bicameralism and Presentment Requirements
• Legislative veto evades exclusivity of Presidential veto power - Congress cannot reserve right to disapprove future executive actions by simple resolution
• Line-item veto evades bicameralism/presentment requirements
• In MA, governor can line-item veto appropriations bills (subject to override by both houses with 2/3 vote)

Question 11

Speech or Debate Clause

Answer 11

• Official legislative acts of federal legislators cannot be introduced into evidence
• applies to Senators, Congressman and aides
• Is action essential to official legislative act?

Question 12

Appointment and Removal

Answer 12

• President appoints ambassadors, federal judges, other high-level officers (sometimes requiring advice and consent of Senate - not an appointment power)
• Congress may vest power to appoint inferior officers (those working under presidential appointee) in federal judges, heads of executive departments/agencies, and president
• Only president or his appointees can hire/fire executive officers (anyone who takes action on behalf of US).
• Congress cannot give executive power to anyone it can hire/fire

Removal
-presidential power to remove any executive officer (cause required if Congress has determined that the officer is independent)

Impeachment

• House majority to impeach
• 2/3 Senate to remove
• President/VP/federal judges/federal officers
• for treason, bribery, high crimes and misdemeanors

Question 13

Executive Privilege and Immunity

Answer 13

Prevents disclosure of presidential papers and confidential conversations with advisers
-exception if government demonstrates a specific need in a criminal prosecution (important gov’t interest)

Immune from civil suits arising from actions taken while in office (absolute immunity).

Question 14

Exclusive Executive Powers not subject to statutory control

Answer 14

Pardon - federal crimes (cannot pardon someone for convictions leading to impeachment)
Veto
Appointment/Removal of Executive Officials

Generally, power to enforce is greatest when authorized by statute. Least when against statutory authority. Less clear when Congress silent.

Question 15

Foreign Policy - Treaties and Executive Agreements

Answer 15

Congress and President have authority in foreign affairs
Federal courts will not generally hear lawsuits challenging handling of foreign affairs matters - political question doctrine - committed by the Constitution to the political branches
President - commander-in-chief - military decisions
Congress - exclusive power to declare war

Art III gives Pres. power to make treaties, appoint ambassadors, act as CIC of armed forces

• Treaties effective upon 2/3 Senate ratification
• prevail over state laws, but not over Constitution; prevails over federal law if more recent but not if less recent.

Executive agreements - between President and foreign heads of state

• no ratification requirement
• only prevails over state laws that conflict (not federal law even if federal law is older)

Question 16

Supremacy Clause

Answer 16

Federal laws trump conflicting state and local laws under the Supremacy Clause.

Preemption: can be express or implied; if not express, is there a direct contradiction/mutual exclusivity? If not, is there occupation of the field? Evaluate (PUSH): pervasiveness, uniformity, similarity, history.

Question 17

Dormant Commerce Clause

Answer 17

CC limit on state and local laws
-Protects out-of-state businesses

Is there federal legislation/regulation?
Yes - Supremacy Clause Analysis
No - analyze under DCC

Does it regulate wholly extraterritorial activity? If it does, probably violates CC.

Does law discriminate against out of state interests?

• If yes, valid only if it does not burden interstate commerce, and it is necessary to achieve an important government purpose (which is never helping its own citizens; environmental concern is a possibility) or if it is 1) authorized by Congress 2) state is acting as a market participant (buying/selling goods/services) 3) concerns subsidies, e.g. welfare, in-state tuition
• If no, does it place an undue burden on interstate commerce? (rare - must be very lopsided cost/expensive compared to benefit)

Question 18

Article IV Privileges and Immunities Clause

• treat others as your own (when it comes to important things)
• Comity Clause

Answer 18

No state may deny citizens of other states the privileges and immunities it accords to own citizens.
Important things: civil liberties/fundamental rights, and the ability to earn a living
Threshold: only applies to US citizens, not corporations and not aliens

Is it discriminatory?
No - no violation
Yes - if it relates to civil liberties or the ability to earn a living, must be necessary to achieve an important government purpose, or else it’s a violation; in other words - forbids serious discrimination against out of state individuals absent a substantial justification

• residency requirement not ok for private employment (e.g. bar admission or other occupational licenses), but ok for public employment
• non-serious discrimination - relates to recreational opportunities such as hunting licenses

Question 19

State taxation of interstate commerce and intergovernmental immunity

Answer 19

• State may only tax federal government indirectly (e.g. by taxing federal employees)
• Federal gov’t can tax state directly subject to anti-commandeering principles (10th Am.) - fed. gov’t must show tax’s dominant intent is to raise revenue, and a reasonable relationship between the tax and the regulation (low burden).

DCC - state may not use tax systems to help in-state businesses.

Analyzing a state tax of interstate commerce

• substantial nexus to state?
• cannot use to help in-state businesses
• taxation of interstate business must be fairly apportioned - can only tax portion of business connected to state

Ad valorem (value-based) property taxes

• personal property
• instrumentalities/commodities
• commodities - states can only tax commodities which have come to rest for a business purpose on tax day within the state
• instrumentalities - TP domicile taxes full value of instrumentality (equipment), and state distributes credits to other states which assert taxation when the instrumentality uses the state’s highways, e.g. – this results in a fair apportionment of tax liability among states that have a substantial nexus to the instrumentality

Taxing power - Congress has broad discretion to tax - tax must be a “reasonable means of raising revenue that does not violate the Constitution.” Similarly, the same deference is given to the state.

• Any economic regulation that does not implicate a fundamental right or a protected class will be subject to a rational basis standard.
• Under this standard, the plaintiff would have to demonstrate that the legislation is not rationally related to a legitimate government interest.

Say what the plaintiff will claim. Then suggest a possible argument by the government – if it’s economic regulation, can come up with any conceivable basis to justify the regulation.

Question 20

Full Faith and Credit Clause

Answer 20

State must give full faith and credit to judgments of other states’ courts if the judgment was a valid final judgment on the merits.

• deciding court must have had personal and subject matter jurisdiction
• must not have been decided on procedural grounds

Interstate compacts - agreements among states are allowed, but if they affect federal rights, Congress must approve them

Question 21

MA Constitutional Structure

Answer 21

Judiciary can render advisory opinions

• policy of strict necessity
• not between private litigants
• only at request of executive/legislative branch on constitutionality of proposed legislation
• or certified question of state law by federal courts

Home rule petition - legislature can grant a county jurisdiction over a specific area in a way that does not affect the whole Commonwealth - e.g. if county wants to forbid the sale of alcohol

Governor can line-item veto appropriations bill (override by both houses with 2/3 vote)

Question 22

MA Con Law - Individual Rights

Answer 22

State constitution provides greater safeguards and entitlements

2nd Am - McDonald (contradicted by earlier decision of the SJC) grants MA citizens right to keep and bear arms
-qualifications like licenses are OK

Right to Marry - SS couples have right to marry under MA Constitution (ban violates EP and DP under RBR); such couples have rights of married individuals also under federal law.

Right to Education
Not a fundamental right under federal constitution
MA Constitution imposes an enforceable duty on Commonwealth to provide education for all children in every city/town through public schools
–SJC created a list of capabilities to use in determining whether a child has been deprived of the right
–State may not deny the right to public education for disciplinary reasons

MA has more suspect classifications (triggering strict scrutiny)

• sex, race, color, creed, national origin, disability
• must show compelling interest and narrowly tailored means to pursue the interest

First Am - claimant challenging the law must show religious belief was sincerely held

Free Speech - Public Forum doctrine -
35 foot buffer around abortion clinic does not hinder free speech and is content-neutral because it applies to all protesters regardless of the message.

Question 23

MA Discrimination Statutes - Ch. 151B

Answer 23

Discrimination in employment but also mortgage loans, selling or leasing real estate, and issuing credit. Threshold: employers with more than six workers.

Protected classes: race, color, religious belief, national origin, sex, sexual orientation, age, ancestry, genetic information, marital status, handicap, military service, and sometimes criminal record

Age - can inquire for purposes of determining an element of credit worthiness; definitely prohibits discrimination of people over 40 (possibly younger people too - no floor established); mandatory retirement laws are generally in violation.

Disability - physical or mental impairment that substantially limits one or more major life activities (includes references to a record of having such a disability or being regarded as having such)
-employers have duty to provide reasonable accommodations to persons with disabilities when it does not interfere with the performance of an essential function of the job.

Sex - includes sexual harassment; pregnancy-related duties of employers – to allow accumulation of sick leave, and to give person substantially same position upon return in terms of compensation, responsibilities and opportunities for advancement.

• harassment protections also impose obligations on fellow workers
• harassment - where sexual advances etc. are implicitly or explicitly made part of the terms and conditions of employment or where the work environment is made intimidating, hostile, humiliating or offensive.

Sexual orientation - includes custody and foster children discrimination.

Religious test - employer forces employee to violate a sincerely held belief.

Procedure - file complaint w/MCAD within 6 months; MCAD investigates and determines sufficiency of grounds to pursue; if no decision after 90 days or with agreement of commissioner, can file in Superior Court (right to jury trial)

Remedies - injunctive relief; compensatory damages, attorney’s fees, other reasonable costs; only Superior Court can award punitive damages.

If not filed within 6 months, lose only 151B remedies. Can still file for breach of K or wrongful discharge.

Question 24

MA Constitutional Law - Anti-Discrimination Statutes (continued)

Answer 24

Equal Rights Act - All persons have rights to make and enforce contracts, purchase/lease/sell real and personal property, have the equal benefit of the laws.
Must file within 6 months from moment of offense with MCAD or Superior Court.

Civil Rights Act - hate crimes - perpetrator motivated by bias against race, color, religion, national origin, sexual orientation or disability.
-Perpetrator targets victim because of belonging to protected group; interferes with victim’s civil liberties; used verbal slurs while threatening the victim (to take some action).

Equal Pay
Discrimination in payment of wages based on sex whenever men/women receive different pay for same/similar work. (courts will compare character and operations/duties of jobs)

General Public Accommodation Laws
-prohibit discrimination on grounds seen under ch. 151B in places of public accommodation, e.g. hotels, stores, restaurants, barber shops

Question 25

Freedom of Association (implied by the text of the First Amendment)

Answer 25

Applicable to states through the Fourteenth Amendment.
Protects the right to form or participate in any group, gathering, club, or organization without restriction. Right not absolute.
-Restrictions on the freedom of association for political activities are evaluated under the strict scrutiny standard because association for political activities is a fundamental right.
-Association for illegal activities may be prohibited if the government proves that a person actually participated in a group having illegal objectives with knowledge of the group’s illegal activities and the specific intent to further those activities.
-Laws requiring disclosure of group members may chill expression and thus be subject to evaluation under the strict scrutiny standard.
-Laws forbidding groups from discriminating are invalid if they interfere with the group’s expressive activities.
-A public employee or independent contractor cannot be fired or disciplined for expressing an opinion 1) in public as a citizen 2) on matters of public interest UNLESS it undermines the employer’s authority or disrupts the employer’s policies. Government may punish or fire employees if speech is not on a matter of public interest or is done pursuant to employee’s official duties. Thus, speaking in the workplace in an official capacity can be infringed.
-Requiring loyalty oaths for public employment is permitted only if the oath is not vague or overbroad.

-If law restricts First Amendment right to assemble, government must demonstrate that the law is (TEST) narrowly tailored to serve a compelling government interest. Otherwise, it will be found to (VIOLATION) substantially impair assembly and association. (TEST) Discuss also whether the law left open alternatives for assembly and association.

• Framework
  1) Does law implicate the freedom of assembly. 2) If it does, is it a content-neutral time/place/manner or content-based? 3) Test for determining whether a content-neutral time/place/manner restriction substantially impairs a right protected by the First Amendment – is it narrowly tailored to serve a compelling government interest? In discussing whether narrowly tailored, ask whether it leaves open alternatives for the restricted right.

Question 26

Establishment and Free Exercise Clauses

Answer 26

The Free Exercise Clause specifically prohibits states from burdening a person’s beliefs, but states may, subject to limitations, forbid or burden conduct which may be required by such religious beliefs.

If the state’s interference or law intentionally targets religious conduct, such interference is subject to strict scrutiny and must be the least restrictive means to achieve a compelling government interest. (Are there less restrictive means to achieve the goal?)

A neutral law of general applicability that has an impact on religious conduct is subject to the rational basis test. The neutral law is automatically enforceable, regardless of how much burden it causes to an individual’s religious beliefs, assuming that the government (TEST) did not intend to disadvantage a particular religion when it enacted its law and the government is advancing an important public interest.

The Establishment Clause is applicable to states through the Fourteenth Amendment.

The Establishment Clause attempts to keep the government from sponsoring religious observances, from preferring one religion over another, or from preferring (?) religious beliefs in general over non-religious beliefs.

To determine whether a particular program violates the Establishment Clause, the courts apply a three-part TEST. A governmental action that benefits religion is valid if: (i) it has a secular purpose; (ii) its principal or primary effect neither advances nor inhibits religion; and (iii) it does not result in excessive governmental entanglement with religion.

An incidental effect to aid religion is not necessarily a violation of the Establishment Clause.

In addition, Massachusetts requires that the person opposing the law show a sincerely held religious belief that conflicts with and is burdened by the statutory requirement.

Question 27

Fundamental Right to Raise Children

Answer 27

Parents have the fundamental right to make decisions regarding the care, custody, and control of their children and any law infringing on such a right must survive strict scrutiny.

Question 28

Affirmative Action

Answer 28

The Equal Protection Clause of the Fourteenth Amendment provides that a state must not deny to any person within its jurisdiction the equal protection of the laws.

If a fundamental right or suspect classification like race, ethnicity, or national origin is involved, the strict scrutiny test applies.

When strict scrutiny applies, the law must be the least restrictive means to achieve a compelling government interest.

Courts have upheld affirmative action programs that: (i) redress past discrimination against the group it is seeking to favor as long as the remedy is narrowly tailored to end discrimination; or (ii) enhance a college or university’s educational interest in a diverse student body.

Compelling interest prong of SS - promoting racial diversity and remedying past discrimination (or anything close to it/synonymous/akin).
Must show more than a history of societal discrimination against non-whites.
Must show that City itself was guilty of past discrimination against non-whites and that the remedy must be narrowly tailored to end that discrimination and eliminate its effects.

Remedy is not narrowly tailored if the proposed action is “solely based on race.”
Actions “solely based on race” are akin to rigid set-asides, quotas, and racially mechanical approaches.
Where race is sole determining fact, AA plan will not be found narrowly tailored to a compelling government interest, and thus unconstitutional.

Question 29

Procedural Due Process

Answer 29

The Fourteenth Amendment Procedural Due Process clause applies when a state or entity whose activities constitute state action deprives an individual of life, liberty, or property without notice and the opportunity to be heard.

Cognizable Property Interest - More than Abstract Need or Desire; Must be a Legitimate Claim of Entitlement
Identify the Source of the Entitlement - Statute? Contract?

• Where the power of the state is used to deprive an individual of property, the party is entitled to due process of the law.
• Convicted criminals have already been afforded all of the process given a criminal defendant. As such, the state is already privileged in depriving said defendants of liberty and property rights such as imposing imprisonment, a fine, and taking away the right to vote.

Argue by analogy: Here, depriving a convicted criminal of any right to profit from his crime is similar to the imposition of fines when a person is convicted of a crime.

A criminal defendant is presumed to be innocent until proven guilty and convicted of the crime alleged. Here, the statute is proposing to take away property before the defendant has had a trial and has had the benefits of due process afforded to him.

A person who has voluntarily admitted to the commission of a crime is not necessarily a person who has been afforded due process. There is no indication that an adjudication occurred and that the defendant is actually guilty of the crime because the defendant admitted to such. It is possible that the defendant has a valid defense or is innocent of the crime, but admitted to the crime to avoid a trial, in the process of a plea bargain, or for some other reason other than guilt.

Question 30

Contracts Clause

Answer 30

Contracts Clause
If impairing obligations of private contracts, (TEST) ask whether state is acting reasonably in pursuit of a legitimate public purpose pursuant to their Tenth Amendment Police Powers.
-Here, the State would prevail in such a challenge because such impairment is reasonably related to the legitimate purpose of not allowing criminals to profit from their crimes while depriving those who are rightfully owed these proceeds.
-In addition, the state cannot impair such private contracts while the defendant is still innocent without being actually convicted of the crime charged, as such impairment would not be reasonably related to a legitimate state objective.

Contracts Clause - Article I, § 10. Applies to: States only.
Source or prohibition: Prohibition.
The Contracts Clause, or “Obligations of Contracts” Clause, prohibits states from passing any law which impairs the obligations of contracts. It’s usually correctly applied when the state seems to be trying to escape its own obligations.

The most important thing to remember here is that, as a prerequisite for protection under this clause, the contract must have existed when the statute was passed. States can regulate contract formation prospectively. Thus, when the “Contracts Clause” is an answer choice, the first thing you should do is check to see if the contract in question predates the offending statute. If not, then the Contracts Clause is irrelevant.

That’s the most important thing to remember, but there are a couple of other points to keep in mind.

First, not all contract impairments are invalid under the Contracts Clause. If they were, people could insulate themselves from state regulation simply by entering into contracts. Instead, state modifications of contracts will be permissible (TEST) if the modifications (1) serve an important and legitimate public interest and (2) are necessary to achieve that public interest; and if, (3) the contract impairment is reasonable under the circumstances.

Also, keep in mind that the state has more leeway when the state itself was a party to the contract. Beyond the rules on modification applicable to all contracts (see last paragraph) the state needn’t adhere to a contract where it surrenders, from the start, an “essential attribute” of its sovereignty (such as the police power or eminent domain).

Question 31

State Action - MA

Answer 31

The Constitution generally protects against wrongful conduct by the government thus, state action is necessary to trigger constitutional protections. In Massachusetts, municipalities are granted charters by the state government and become municipal corporations, thus there is sufficient state action to bring a constitutional challenge based on the rights of public school students, e.g.

Question 32

Speech - MA

Answer 32

In Massachusetts, students are statutorily entitled to freedom of expression, even when the expression is considered vulgar or lewd, as long as it does not cause disruption within the school.

• While students in a school setting do not enjoy full First Amendment free speech rights, arbitrary content-based limitations of those rights will be deemed unconstitutional.
• Although students on school grounds possess more limited rights to free speech to maintain order and prevent disruptions, they do not surrender all of their First Amendment rights when they are on school grounds.

Question 33

First Amendment - Expressive Conduct/Symbolic Speech

Answer 33

The First Amendment right to free speech is applicable to states through the Fourteenth Amendment.

• Express conduct or symbolic speech may be protected as speech, but it is subject to a lesser degree of protection.
• Government regulation of expressive conduct will be upheld if the regulation: (i) is within the government’s power to enact; (ii) furthers an important government interest; (iii) the government interest is unrelated to the suppression of ideas; and (iv) the burden on speech is not greater than necessary.
• Argue regulation is/is not narrowly tailored to the important government interest.
• Argue regulation regarding symbolic displays is/is not content-based.
• Argue definition of such content is both vague and overbroad. Argue complainant did not know the regulated conduct would be interpreted to violate the regulation.
• Argue motivated by a desire to suppress a particular message, so the ban must be strictly scrutinized as being narrowly tailored to a compelling government interest.

Question 34

First Amendment - Time/Place/Manner Restrictions

Answer 34

• Traditional public forums are those that are historically associated with expression, such as sidewalks, streets, and parks.
• The government may impose reasonable restrictions on the time, place, or manner of protected speech as long as the restrictions are: (i) content neutral as to subject matter and viewpoint; (ii) narrowly tailored to serve a significant government interest; and (iii) leave open ample channels for communication of the information.
• In Massachusetts, students are statutorily entitled to freedom of expression, even when the expression is considered vulgar or lewd, as long as it does not cause disruption within the school.
• Analyze whether regulation was a prior restraint.

Question 35

First Amendment - Prior Restraints

Answer 35

• Regulation of speech that occurs in advance of its expression.
• Prior restraints are presumed unconstitutional unless there is a particular harm to be avoided and certain procedural safeguards are provided to the speaker.
• The burden is on the government to prove that the material to be censored is not protected speech. –To prevail, the standards must be narrowly drawn, reasonable, and definite, the censoring body must promptly seek an injunction; and there must be a prompt and final judicial determination of the validity of the restraint.
• strict scrutiny
• prior restraints prevent expression, whereas other speech restrictions punish expression after it has occurred
• injunctions - most common type of prior restraint; gag orders against pre-trail publicity are never allowed
• permits/licensing - may only require if a reasonable justification for doing so - must be a rubber stamp process with procedural safeguards or judicial review for denied permits/licenses

Question 36

First Amendment

Answer 36

Prohibits Congress from establishing a religion or interfering with the exercise of religion; abridging the freedom of speech or the press; interfering with the right of the people to assemble.

• Applicable to the states through the Fourteenth Amendment
• Freedoms of speech and assembly - protect free flow of ideas - a most important function in a democratic society.

Question 37

Freedom of Speech - Guidelines

Answer 37

• Gov’t Speech
• Free Speech Clause restricts gov’t regulation of private speech; does not require gov’t to aid private speech nor restrict gov’t from expressing its views (gov’t free to voice its opinions and fund private speech that furthers its views while refusing to fund other private speech absent some other constitutional limitation, e.g. Establishment Clause or Equal Protection Clause.)
• Gov’t speech/funding of speech - upheld if rationally related to a legitimate state interest; can fund family planning and except from funding services that provide abortion information; also covers things like public monuments.
• Distinguish between gov’t funding of speech for the purpose of promoting its own policies and its choice to fund private messages – must be viewpoint neutral. (Exception - funding the arts - choosing inevitably must be based on the content of the art).

Content v. Conduct
Regulation seeking to forbid communication of specific ideas (content regulation) is less likely to be upheld than a regulation of the conduct incidental to speech.

Content-Based

• Presumptively unconstitutional to burden speech because of content.
• Gov’t must show regulation/tax is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.
• Narrowly drawn - concepts of underinclusive/overinclusive

Content-Based but Different Treatment

• -exception to content-based application of SS for certain categories of speech deemed “unprotected;”
• however, even regulation of speech within an unprotected category will be less likely to be upheld if the regulation is a prior restraint (regulation prohibiting speech before it occurs) rather than a punishment for speech that has already occurred.

Content-Neutral
-content-neutral speech regulations are subject to intermediate scrutiny - gov’t must show that i)they advance important interests unrelated to the suppression of speech ii) they do not burden substantially more speech than necessary to further those interests.

Conduct

• gov’t has more leeway in regulating conduct related to speech
• gov’t allowed to adopt content-neutral time, place and manner regulations
• such content-neutral time, place and manner regulations involving public forums (historically linked with exercise of First Amendment freedoms) -must be narrowly tailored to achieve an important government interest;
• content-neutral time, place and manner regulations involving non-public forums must have a reasonable relationship to a legitimate regulatory purpose.

Reasonableness of Regulation of Speech or Conduct

• overbroad: is facially invalid if it punishes a substantial amount of protected speech judged in relation to the regulation’s plainly legitimate sweep
• ->facial invalidity means it cannot be enforced against anyone even a person engaging in an activity that is not constitutionally protected unless a court limits construction of regulation to remove the threat to constitutionally protected expression.
• void for vagueness: if criminal law or regulation fails to give persons reasonable notice of what is prohibited, may violate the DPC. This is applied strictly where First Am. activity is involved in order to avoid the chilling effect a vague law might have on speech.
• ->arise most often in relation to content regulations, but the same principles would apply to time, place and manner restrictions.
• ->greater imprecision allowed when gov’t acts as a patron in funding speech activity than when enacting criminal statutes or regulatory schemes because less chilling effect. (Nat’l Endowment for the Arts ex. - consider standards of “decency” and “respect for values of American people”).

Official Discretion

• cannot give officials broad discretion over speech issues
• must be defined standards for applying the law
• fear is abuse of discretionary power to prohibit dissemination of ideas unlike their own
• usually arises under licensing schemes established to regulate time, place and manner
• such schemes must be related to an important government interest, contain certain procedural safeguards, and not grant officials unbridled discretion (if they do, they’re void on their face and speakers need not even apply for a permit - cannot be punished for violating the licensing statute)
• if licensing statute is valid because it contains adequate standards, speaker must seek permit, and if denied, must seek administrative or judicial relief (failure to seek permit precludes later assertion that his actions were protected by the First Am.)

Scope of Speech

• includes freedom not to speak/refrain from endorsing beliefs with which one does not agree; state cannot force school children to salute or say a pledge to the flag; a motorist could not be punished for blocking out the portion of his license plate bearing the NH state motto; may not require private parade organizers to include in their groups messages with which they disagree.
• gov’t may not compel people to express a message, but may tax people and use the revenue to express a message with which people disagree
• but people cannot be compelled to subsidize private messages with which they disagree (exception - student activity fees - as long as the program supported is viewpoint neutral).
• state can require large shopping center open to the public to permit persons to exercise their speech rights on shopping center property - at least as long as message is not dictated by state and not likely to be identified with the owner of the property
• Includes symbolic content
• conduct regulation upheld if i) within constitutional power of gov’t ii)furthers an important gov’t interest iii) interest is unrelated to suppression of speech iv) incidental burden on speech is no greater than necessary
• regulation not invalid simply because some imaginable alternative exists that might be less burdensome
• excludes freedom to bar military recruitment

Prison speech - regulation concerning activities of inmates including any First Am. speech activities governed by different standard in order to facilitate prison order: will be upheld if reasonably related to legitimate penological interest

• restriction on incoming mail upheld if rational
• restriction on outgoing mail must be narrowly tailored because there is less of a penological interest involved

Question 38

Regulation of Conduct - Time/Place/Manner Restrictions

Answer 38

All speech conveyed through physical action and while freedom of belief is absolute, freedom to convey beliefs cannot be.
Extent to which gov’t may regulated speech-related conduct depends on whether forum involved is public forum, designate public forum, limited public forum, or nonpublic forum.

Public forum - historically open to speech-related activities;
Designated public forum - not historically been open to speech-related activities, but which gov’t has thrown open for such activities on a permanent or temporary basis by practice or policy

In both, gov’t may regulate with reasonable time, place and manner regulations.
To be valid regulations must be 1) content neutral (SM and viewpoint) 2) narrowly tailored to serve important gov’t interest; 3) leave open alternative channels of communication.

Even if it meets above conditions, may still be struck down on other grounds – overbreadth, vagueness, unfettered discretion.

content neutral: cannot be based on content of the speech, absent substantial justification.

narrowly tailored: may not burden substantially more speech than necessary to further gov’t interest BUT need not be least restrictive means of accomplishing the goal. a regulation that is not narrowly tailored might also fail on overbreadth grounds.

important gov’t interest - includes traffic safety, orderly crowd mov’t, personal privacy, noise control, litter control, aesthetics.

alternative channels of communication - reasonable means for comm. idea must be available

Upheld - statute that prevented focused residential picketing; can charge telemarketing firm with fraud for telling persons solicited that the firm pays a significant amount of each donation to the charity when in fact the firm keeps 85% of gross receipts.

Struck down - state cannot require professional fundraisers to disclose to potential donors the percentage of contributions collected over the previous year that were actually turned over to charity; may not require persons to obtain permits in order to canvass door-to-door for noncommercial or nonfundraising purposes.

injunctions restricting First Am. activity in public forums treated differently from generally applicable ordinances b/c injunctions present a greater risk of censorship and discriminatory application

• test depends on whether injunction is content neutral
• content based: necessary to compelling interest
• content neutral: burdens no more speech than necessary to achieve important gov’t purpose

Limited Public Forums and Nonpublic Forums

• limited - e.g. government property opened up for expressive activities on a particular topic such as a school gym opened on a particular night to host a debate on a particular topic;
• gov’t can regulated speech in such forums to (TEST) reserve them for their intended use
• will be upheld if 1) viewpoint neutral (need not be content neutral) 2) reasonably related to a legitimate gov’t purpose
• gov’t can discriminate based on identity of speakers in nonpublic forums - school board might limit speakers to licensed teachers
• military bases: if military leaves its streets open as thoroughfares, will be treated as public forums
• Speech and association in schools may be reasonably regulated to serve the school’s educational mission
• can control content of student speeches etc. for legitimate pedagogical concerns
• suppression of communication must be related to a regulatory interest*
• gov’t workplace and gov’t controlled charity drive are not public fora
• sidewalks on postal service property not public fora
• Court has upheld city ord. prohibiting posting signs on public property even if sign is temporary in nature and could be removed w/o damage to property
• Airport terminals operated by public authority are not public fora - reasonable to ban solicitation w/i airport terminals, since it presents a risk of fraud to hurrying passengers; not reasonable to ban leafletting within multipurpose terminals that are like shopping malls but leafletting can still be subject to reasonable time, place and manner regulations.
• public TV station debate for congressional candidates from major parties or who have strong popular support is not a public forum because such debates are not open to a class of speakers, but selected members of a class. Exclusion of candidates not from a major party and who lack popular support is permissible because these criteria are viewpoint neutral and reasonable in light of the logistics for an educationally valuable debate.
• letter/mailbox at business or residence not a public forum - gov’t may prohibit placing unstamped items in post boxes to promote efficient mail service

Question 39

Freedom of Speech - Symbolic Speech

Answer 39

Conduct intended to convey a message.
Test - gov’t can regulate if 1) regulation furthers important gov’t interest 2) gov’t interest is unrelated to suppression of message (if aimed at speech more than conduct, likely unconstitutional) 3) impact on speech no greater than necessary to further important gov’t interest

ex. burning u.s. flag; burning draft card; nude dancing; burning a cross; election campaign regulations: limits on spending (unconstitutional); limits on contributions (constitutional).

Question 40

Unprotected speech

Answer 40

restrictions on content must be necessary to achieve a compelling gov’t interest

• very few restrictions on content are tolerated
• court allows them only to prevent grave injury
• following list are only reasons for which Court has allowed content-based restrictions on speech
  (i. e. categories of unprotected speech:
• clear and present danger of imminent lawless action
• constitutes fighting words as defined by a narrow, precise statute
• is obscene (includes child pornography)
• constitutes defamation, which may be subject of civil penalty through tort action brought by injured party
• violates regulation against false and deceptive advertising – commercial speech is protected and cannot be proscribed simply to help certain private interests
• gov’t can demonstrate a compelling interest in limitation of the First Am. activity

*even regulation within foregoing categories may be held void for vagueness or overbreadth.

Question 41

Clear and Present Danger of Imminent Lawlessness

Answer 41

state cannot forbid advocating the use of force or of law violation unless such advocacy 1) is directed to producing or inciting imminent lawless action and 2) is likely to produce or incite such action

Question 42

Fighting Words

Answer 42

• true threats are not protected - meant to communicate intent to place individual or group in fear of bodily harm
• free to ban use of fighting words - those personally abusive epithets that when addressed to the ordinary citizen are inherently likely to incite immediate physical retaliation
• classification continues to exist in theory but rarely upheld - tend to be overbroad or vague - “opprobrious words” “annoying conduct” “abusive language” - will fail as imprecise terms could be applied to protected speech
• “white son of a bitch, i’ll kill you” cannot be punished under such a statute
• court will not tolerate in fighting words statutes restrictions designed to punish only certain viewpoints - proscribing fighting words only if they convey a particular message - limits hate crime legislation
• -but can punish racially motivated conduct (enhance sentence for aggravated battery based on fact that defendant selected victim because of victim’s race); cannot increase punishment merely because of abstract beliefs

Question 43

Obscenity

Answer 43

description of depiction of sexual conduct that, taken as a whole, by the average person (sensitive and insensitive adults included, but not children), applying contemporary community standards

1) appeals to the prurient interests in sex;
2) portrays sex in a patently offensive way;
3) does not have serious literary, artistic, political or scientific value - using national RP std. rather than contemporary community std.

• state may adopt specific definition of obscenity applying to materials sold to minors, even though material might not be obscene in terms of adult audience; gov’t may not prohibit sale of distribution of material to adults merely because it is inappropriate for children.
• to protect minors from exploitation - may prohibit sale or distribution of visual depictions of sexual conduct involving minors even if it would not be found obscene if it did not involve children; may also prohibit offers to provide/requests to obtain material depicting children engaging in sexually explicit conduct when prohibition requires scienter and does not criminalize a substantial amount of protected speech. (such offers of material that is unlawful to possess have no First Am. protection).
• may not bar visual material that only appears to depict minors engaged in sexually explicit conduct but that in fact uses young looking adults or computer generated images. holding otherwise would bar speech that is not obscene under Miller test and does not involve the exploitation of children.
• sweeping language - may be unconstitutionally vague - may be saved by state supreme court opinion that limits construction
• land use regulations may limit location/size of adult entertainment establishments if regulation is designed to reduce secondary effects of such businesses; may not ban them altogether.
• liquor regulation - 21st Am. - states have more than usual regulatory authority - prohibitions of explicit live sexual entertainment and films in establishments licensed to sell liquor by the drink even though proscribing some forms of visual presentation that would not be obscene do not violate First Am. as long as they are not irrational
• display - court suggested state may regulate display of certain material to prevent it from being so obtrusive that an unwilling viewer cannot avoid exposure to it
• possession of obscenity cannot be made a crime - personal privacy right - but does not extend beyond home – child pornography is an exception

Question 44

Defamatory Speech

Answer 44

Public Figure/Public Concern Cases - Plaintiff must prove by clear and convincing evidence that the statement was false.

• False statement must be viewed by RP as a statement of fact rather than one of opinion or parody. (can’t circumvent by suing under a different tort - emotional distress, e.g.)
• but, labeling something “opinion” doesn’t make it so if statement would reasonably be understood to be a statement of fact
• Fault - in public figure/public concern case, plaintiff must prove fault on the part of the defendant.
• -public official/figure – malice required (knowledge that statement was false, or reckless disregard as to its truth or falsity)
• -must show that defendant was subjectively aware that statement was false or he subjectively entertained serious doubts as to its truthfulness
• Public figure – general fame or notoriety in the community and pervasive involvement in the affairs of society or someone who has voluntarily injected himself or has been drawn into a particular controversy to influence the resolution of the issues involved (involuntary public figure would be exceedingly rare)
• not deemed public figures - spouse of wealthy person; person engaging in criminal conduct; scientist in federally funded program

Private Individual suing on matter of public concern

• at least negligence required
• presumed or punitive damages only if malice established
• rationale: less need to protect freedom of speech and press when private person defamed, and more of a need to protect private individuals from injury from defamation b/c they do not have opportunities as effective for rebuttal as public figures
• defamation actions brought by private individuals subject to const’l limitations only when defamatory statement involves a matter of public concern
• 2 restrictions on private plaintiffs: i) prohibits liability without fault ii) restricts recovery of presumed or punitive damages
• must provide competent evidence of actual damages if plaintiff establishes negligence but not malice
• actual damages may be awarded for economic losses, and for injury to plaintiff’s reputation in the community and for personal humiliation and distress
• if malice established, no need to prove actual damages; in other words - no constitutional protection for statements made with malice, even though a matter of public concern is involved
• what is a matter of public concern? - case by case determination, looking at content, form and context of the publication
• IIED - damage actions by private individuals for intentional infliction of emotional distress are subject to First Am. rights of defendants if speech relates to matter of public concern, despite its outrageous and particularly hurtful quality.
• private individuals suing on matters not of public concern - no constitutional restrictions; presumed and punitive damages can be recovered even if malice is not established
• in federal court defamation action, in case involving issue of public concern, judge should grant motion for SJ unless it appears that the plaintiff could meet his burdens of proving falsity and actual malice at trial by clear and convincing evidence
• appellate court must review case by conducting an independent review of the record to determine if the finder of fact (the jury) could have found that the malice standard was met in the case
• to recover damages for depiction in a false light arising out of comments directed at activities of public interest, an individual must establish 1) falsity and 2) actual malice whether or not he qualifies as a public figure. it is assumed that the Court would now modify this to mirror the negligence rule for private plaintiffs.
• true privacy actions
• publishing true fact of public record - cannot be sued
• publishing name of juvenile charged with crime - cannot require judicial approval where name was acquired through legal means
• publishing information on judge’s competency - cannot make it a crime
• commercial privacy - disclosing private performance can violate ‘right to publicity’ - state law could award damages to entertainer who attempted to restrict the showing of his act to those who paid admission when a TV station broadcast his entire act
• copyright infringement - First Am. does not require an exception to copyright protection for material written by a former President or other public figures; magazines have no right to publish such material beyond the statutory fair use exception.

Question 45

Some Commercial Speech

Answer 45

False advertising not protected.
Threshold: does the speech regulated concern a unlawful activity? is it misleading or fraudulent? if no to both, the regulation will only be valid if:
1) serves substantial gov’t interest
2) directly advances asserted interest
3) is narrowly tailored to serve the substantial interest - does not require least restrictive means; must be a reasonable fit between legislation’s end and means chosen

complete bans on truthful advertisement of lawful products very unlikely to be upheld due to lack of tailoring. court has struck down total bans against advertising: legal abortions, contraceptives, drug prices, attorneys’ services, liquor prices (21st Am. does not give states power to override First Am)

• commercial sign regulation - unclear whether billboards may be totally banned from a city, but can be regulated for purposes of traffic safety and aesthetics
• blockbusting - town could not prohibit use of outdoor for sale signs by owners of private homes as a way of reducing the effect of blockbusting real estate agents - encouraging homeowners to sell at reduced prices because of threat of sudden influx of minorities
• commercial speech protected largely because of value to consumers. gov’t may require certain disclosures if not unduly burdensome and reasonably related to state’s interest in preventing deception. advertisements by lawyers (and others) as debt relief agencies may be required to include information about legal status and nature of assistance provided as well as possibility of debtor’s filing for bankruptcy
• special attorney advertising rules - Court has upheld prohibitions against in-person solicitation by attorneys for pecuniary gain - state interest in protecting laypersons from fraud and overreaching is substantial, and prohibition here is narrowly tailored and directly advances that interest; state interest in protecting lawyers’ reputation is substantial.

Question 46

Government Actor

Answer 46

traditional and exclusive government function; significant involvement - facilitating - affirmative act - encouraging or aiding – not just licensing or providing essential services (look up)

Question 47

Similar tests for symbolic speech; content-neutral time place and manner restrictions

Answer 47

intermediate type scrutiny – look up – requires something like an important government purpose and narrow tailoring, which in the context of time place and manner means that it leaves open alternative channels of communication; public/designated public; for nonpublic - must only be rationally related to a legitimate government purpose and viewpoint neutral (lookup) in the context of symbolic speech, the concern has to be unrelated to the suppression of speech, and must not suppress substantially more speech than necessary to achieve the important government purpose; content-based laws/regulations that have been found constitutional (which means they have withstood strict scrutiny) are considered unprotected speech. they are in enumerated categories.

reasonableness principles are pervasive. certain patterns in their application to first amendment cases. overbreadth – overinclusive or underinclusive; this is addressed by the narrowly-tailored element of the intermediate-type test for content-neutral restrictions; can make a regulation or law invalid even as applied to constitutionally unprotected speech – must be made narrowly tailored to apply at all; void for vagueness – due process problem – lack of notice of proscribed conduct – has applied in certain areas of unprotected speech; more important where a law imposes criminal or administrative penalties, and less important where the imprecision makes it unclear what will qualify for a government subsidy – the thought is that where the stakes are gaining or failing to gain a subsidy, it is less likely that the vagueness would chill speech.