Constitutional Law for the California Bar Exam


  1. Article III – FJP extends to cases and controversiesno advisory opinions

  2. JusticiabilityRequirements

    1. Standing (stake in the controversy)

      1. Elements

        1. Injury

          1. Must be personally suffered

          2. P’s rights have been impaired or imminently will be

          3. There is a clear threat of prosecution if P fails to comply

          4. Injunctive/declaratory relief – must show likelihood of future harm

        2. CausationD caused the injury

        3. Redressability – P has a concretestake in the outcome of the case such that a favorabledecision will likely remedyinjury

      2. Special Cases

        1. 3rd Party Standing – not allowed unless:

          1. P personally suffered AND

          2. Close relationship b/w P and injured party (such that P’s injury adversely affects relationship w/3rd party) OR

          3. Injured 3rd party is likely unable to assert own rights

        2. Associational Standing

          1. Individ members have standing to sue

          2. Interests related to org’s purpose AND

          3. Claim and relief don’t require participation of individ members (no unique injury for member)

        3. No generalized grievances (taxpayer, citizen)

          1. Exception: Government expenditures in violation of EC

          2. For taxpayer to have standing, spending power must be involved (TF, no standing to challenge fed grants of prop).

    2. Ripenesspre-enforcement review

      1. P not entitled to review of state ct law b/4 its enforcement unless immediate threat of harm.

      2. Courts consider

        1. Hardship P will suffer w/o PER

        2. Fitness of issues in record for judicial review

        3. Will not determine const. of a statute if it has never been enforced and there is no real fear that it ever will

    3. Mootnesslive controversy at all stages of review

      1. Exceptions.

        1. Wrongs capable of repetition yet evading review.

        2. Voluntarycessation – D voluntarily stops but free to begin doing it again.

        3. Classactionsuits – so long as one member has ongoing injury

    4. Political Question Doctrinecourts will not decide PQ’s (issues constitutionally committed to another branch of govt or inherently incapable of judicial resolution).

      1. Nonjusticiable political questions:

        1. Cases under “republican form of govt” clause;

        2. Challenges to Pres’ conduct of foreign policy;

        3. Challenges to impeachment and removal process;

        4. Challenges to partisan gerrymandering

  3. Supreme Court Review

    1. Original jxd – SC has og jxd in cases involving ambassadors, public ministers, consuls, and state a party

      1. SC has sole and exclusive jxd for suits b/n states

      2. Congress may neither restrict nor enlarge original jxd

    2. Writ of Certiorari(Discretionary – 4 justices must agree)

      1. Cases from highest state court

        1. Constit of a fed stat, fed treaty, state statute in issue, or

        2. Alleging state statute violates federal law

      2. All cases from federal courts of appeals

    3. Appeals(Mandatory)

      1. Decisions made by 3-judge fed district court panels that grant/deny injunctive relief.

    4. Final Judgment RuleSC may only hear cases after final judgment of highest state court, US Court of Appeals, or 3 judge fed district ct.

    5. Independent and Adequate State Groundfor review of state ct decision by SC, there must not be an independent and adequate state law ground of decision.

      1. If decision where state law rules on 2 grounds (state and fed) and SC reversal of fed would not make a diff→ SC cannot hear it.If

  4. Lower Federal Court Review

    1. Fed and state cts cannot hear suits against state govts (ok to hear suits against local govts or actions brought by US)

    2. Final JudgmentExhaustion of all state appellate remedies

    3. 11th A Limits on Fed Cts– prohibits fedcts from hearing private party/foreign govt claim against state govt.

      1. Bars:

        1. Actions against state govt. for damages

        2. Actions against state govt. for injunctive or declaratory relief where the state is named as a party

        3. Actions against state officers where the effect will be that retroactive damages will be paid from the state treasury

        4. Actions against state govt. officers for violating state law

      2. Does Not Bar:

        1. Suits against local govt.

        2. P asserts the State law violates the U.S. Constitution

        3. Actions by U.S. govt. or other state govt.

        4. BK Proceedings

        5. State officers if

          1. Seeking injunctive relief

          2. $ damages for prior conduct not to be paid by state (paid from officer’s own pocket)

      3. Sovereign Immunity – bars suit against state govt in state courts unless D consents

      4. Exceptions (when states can be sued in fed ct):

        1. Explicit waiver/consent

        2. Congressional removal of immunity pursuant 14th Amend (law validly enacted under §5 may be used to sue fed govt)

        3. Fed govt is suing

    4. Abstention – fed ct has jxd but does not exercise – unsettled Qs of state law, OR pending state criminal proceedings, or civil and admin cases that involve an important state interest

      1. Exception if state proceeding is in bad faith then it should intervene


  1. Hierarchy of US law – Constit, treaties and fed statutes (last in time prevails), executive agreements, state law

  2. Limited to those powers enumerated under the constitution.

    1. Power must be express or implied

    2. Necessary & Proper Clause – may use any means necessary and proper to carry out any power granted to any branch of govt (must be linked with an enumerated power)

    3. No general police powerexcept

      1. MILD police powers (legislating for military, Indian reservations, federal land & territories, Dist of Columbia)

  3. Taxing and Spending for the general welfare

    1. Tax – some reasonablerelationship to revenue production or if congress has independentauthority to regulate activity taxed

      1. No tax on exports to foreign countries.

    2. Power to apportion funds for a validly passed spending law

  4. Commerce Power to regulate:

    1. Channels of IC (highways, internet)

    2. Instrumentalities of IC (things that facilitate IC) or Persons/Things in IC (anything that goes across state lines)

    3. Substantial effect on IC – can be based on cumulative economic impact (cannot be based on cum impact in non-economic activities)

      1. Intrastate Activity – upheld if it is of economic or commercial activity and the crt can conceive of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce (regulation of intrastate cultivation of drugs ok)

        1. Compare – cannot regulate noncommercial, noneconomic activity w/o interstate effect (regulation of guns near school zones not ok)

  5. §5 of the 14th Amendment – may act to prevent or remedy violations of rights already recognized by the courts such laws must be proportionate and congruent to remedying constitutional violations. C cannot expand rights beyond Constit.

  6. Impeachment and Removal of President, VP, fed judges and officer of the US – treason, bribery, high crimes and misdemeanors

    1. Impeachment by House – majority vote

    2. Trial by the Senate – 2/3rd vote

  7. War and Related Powers – declare war, raise and support armies, provide for and maintain a navy, establish military courts and tribunals

  8. Investigatory Power – implied from N&P clause– may appoint own members to investigative committee – very broad power, need not be directed toward particular law

  9. Property Power – dispose of and make rules for territories/properties of the US.

  10. Power over Citizenship – plenary and exclusive power over aliens

    1. Aliens have no right to enter and can be refused entry b/c of their political beliefs

    2. Resident Aliens are entitled to notice and a hearing b4 deport

    3. Cannot take away citizenship w/o consent

  11. Power over Postal System – monopoly power; exclusive power

  12. Admiralty Power – exclusive over navigable waterways

  13. Delegation Powerno limit exists on Congress’ ability to delegate legislative powers as long as intelligiblestandards are set and the power is notuniquelyconfined to congress (the power to declare war or impeach)

  14. Limitations on Congress’ Powers

    1. 10th Amendment – all powers not granted to the US, nor prohibited to states, are reserved to the states or the ppl.

      1. Commandeering – 10th prohibits Congress from ordering state officials to regulate their own citizens

        1. Cong cannot compel state legislative or regulatory activity, but may induce state action via strings on grants (conditions must be expressly stated and relate to purpose of program)

    2. Bicameralism (passage by both house and senate) & Presentment (giving bill to the President to sign or veto in its entirety); both necessary for Cong to act.

      1. Legislative vetoes are unconstitutional (where C tries to overturn an executive action w/o bicameralism or presentment)

      2. Line item vetoes are unconstitutional (Pres tries to veto part and sign rest into law)


  1. Foreign Affairs.

    1. Treaties – agmnts b/n US and foreigncountry that are negotiated by Pres and effective when ratified by 2/3rd of Senate

      1. If conflict w/federal statute, last in time prevails

    2. Executive agreements – agmnt b/n US and foreigncountry that is effective when signed by pres and head of foreign nation; prevails over conflicting state laws only – fed law and treaties will prevail

    3. Commander in Chief – extensive power to deploy troops against foreign or domestic enemy and to act militarily in actual hostilities w/o Congressional declaration of war (Pres cannot declare war)

  2. Domestic Affairs

    1. Appointment Power – ambassadors, fed judges, officers of the US w/the advise and consent of the Senate. Congress may vest the appointment of inferiorofficers in the Pres alone or lower courts

      1. C cannot give itself or its officers appt power (C may not create new fed agency by statute)

    2. The Removal Power – unless limited by statute, the Pres may fire any executive branch office. Congress may limit removal (NOT prohibit) by statute if an office where independence from P is desirable;

    3. Presidential Immunity – absolute immunity from civil suits for actions while in office; no immune for axns prior to office

    4. Executive Privilege – may keep secret memos & conversations, but priv must yield to other impt govt interests (overriding need 4 info –evidence in criminal trial)

    5. Veto Power – if P vetos, act may become law only by 2/3rd vote of each house

      1. Pocket veto – Pres has 10 days to exercise veto power, otherwise: (1) If C in session, bill becomes law; (2) If C not in session, bill is automatically vetoed.

    6. Presidential Pardon – those accused or convicted of federalcrimes (Note – cannot pardon impeached officials)

  3. Executive Orders – based on President’s broad inherent power as chief executive – Test:

    1. Where Pres acts w/express or implied authority of Congress, his authority is at its maximum and his actions are likely valid;

    2. Where the Pres acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of govt. or prevent another;

    3. Where the Pres acts against the express will of Congress, he has little authority and his action is likely invalid


  1. The Supremacy Clause Article IV provides that the constitution and law made pursuant to it are the supreme law of the land

    1. Express Preemption – federal statute explicitly says that fed law is exclusive in a field

    2. Implied Preemption

      1. Fed and state laws are mutually exclusive

      2. State law impedes the objective of federal law

      3. Congress evidences a clear intent to preempt the field (i.e. thru legislative history)

    3. Taxation – State may not tax or regulate federal govt.

      1. Exceptionnon-discriminatory, indirect taxes on the fed govt or its property if they don’t unreasonably burden the fed govt (i.e. state income tax on fed employees)

  2. State Regulation of Local Aspects of Interstate Commerce

    1. Definitions:

      1. P & I Clause of Article IV – state may not discriminate against non-residents w.r.t. civil liberties or imp economic activities (fundamental rights)

        1. I.e. residency req. for abortion or to take the bar

        2. Corps/aliens not protected by this clause.

      2. Dormant Commerce Clause – state law is unconst if it places an undue burden on interstatecommerce

      3. P or I Clause or the 14th Amend – state may not deny any citizen the P or I of being a citizen.

        1. Only applies to right to travel, vote (cannot denyunlessthe law passes under SS)

        2. I.e. durational residency requirements

    2. State/Local Action does NOTDiscriminate

      1. P&I– inapplicable

      2. DCC– violated if state law unduly burdens IC

        1. Balancing Test = burden on IC v. benefit to state for having the law.

        2. Exceptioncongressional approval

    3. State/Local Action Discriminatesvs. Out of State Entities

      1. P&I– violated if discrimination involves important economic activities or civil liberties (i.e. ability to earn a living); Not applicable to corps.

        1. Unlessnecessary to achieve an imp govt purpose

            1. Subst justification + no less restrictive means

        2. Applies only when discrim involves out of staters

      2. DCCviolation if it burdens IC

        1. Unlessnecessary to achieve an imp govt purpose

            1. impt non-economic state interest + no less discrim alternative will achieve purpose, OR

          1. Exceptions

            1. Congressionalapproval

            2. Market participantstate can prefer own citizens when acting as market participant (i.e. receiving benefits from govt programs/dealing w/ govt owned business)

        2. DCC appliesto aliens and corps

    4. 21st Amendment – repealed prohibition – gives states broad authority over importation of liquor and conditions of sale – cannot give preference to local liquor – would violate DCC

    5. Contracts Clause – no STATE or local govt. can impair obligations over existing private contracts (does not apply to fed)

      1. Test – K can be modified only if (1) an important and legit public interest exists, (2) the law is necessary to that public interest, and (3) the impairment of the K is justified by the public purpose at issue (IS)

      2. Govt. K’smust meet SS

  3. State Taxation and Interstate Commerce

    1. May not be used to help in-state businesses

    2. States Can Tax IC if Nondiscriminatory and: (1) there is a substantial nexus b/n the TP and the state (TP receives benefits or protection from state), (2) the tax is fairly apportioned (approximates the avg phy. presence w/in state), and (3) there is a fair relationship b/n the tax and benefits provided by the state

    3. States may not regulate or tax foreign commerce – imports or exports – exclusive to federal

    4. States may not tax commodities in the course of interstate commerce – look for “final resting place”


  1. State Action – Constitution applies to govt actors only

    1. Exceptions:

      1. Private entity performing a task traditionally, exclusive done by the govt;

      2. Significant state involvement – the govt affirmativelyauthorizes, encourages or facilitates acts of discrimination

        1. Govt subsidy insufficient for finding state action

        2. Merely granting a license or providing essential services is insufficient ‘

        3. States are NOT req. to outlaw discrim. – Const. only forbids encouraging or authorizing it

      3. Pursuant to the 13th Amend, Congress can prohibit private race discrim

        1. 13th Amend prohibits slavery (including badges and incidents of it)

        2. Enabling Clause – permits congress to adopt laws to enforce 13th amend

        3. Therefore, can reach private action

  2. Application of Bill of Rights to the states

    1. Applicable to states through incorporation of due process clause of 14th Amendment.

    2. All of the Bill of rights apply to state and local govts except

      1. 3rd (rt to not have a soldier quartered in person’s home), 5th(rt to grand jury indictment in crim cases), 7th (rt to jury trial in civil case) and 8th (rt against excessive fines)

  3. Levels of Scrutiny:

    1. Rational Basis – applies to regulations that do not affect a fundamental right or involve suspect classes

      1. Means rationally related to a legitimate government interest.

        1. Loosely related

        2. Goals – any conceivable legitimate purpose (not actual)

        3. Burden of proof – Person challenging law (P)

    2. Intermediate Scrutiny – applies to quasi-suspect classifications (i.e. gender/legitimacy)

      1. Means must be substantially related to an important govt int

        1. Narrowly tailored but not least restrictive alternative

        2. Goals – actual interest must be important

        3. Burden of proof – State/Govt

    3. Strict Scrutiny – fundamental rights/suspect classifications

      1. Means must be necessary to achieve a compelling government interest.

        1. No less restrict alternatives could be used to accomplish govt.’s purpose (necessary)

        2. Goals – actual interest must be vital

        3. Burden of proof – State/Govt


    1. Triggered when a law limits the liberty of all persons to engage in some activity

      1. Applies to the states through the 14th Amendment

      2. Applies to the federal govt through the 5th Amendment

    2. Procedural Due Process

      1. Rule: a govt must provide a “fair” process/procedure before it may deprive a person of life, liberty or property

      2. Has there been a deprivation life, liberty or property?

        1. Liberty = loss of a significant freedom secured by the constitution or a statute (prisoners rarely have liberty int);

          1. Harm to rep is not a loss of liberty;

        2. Property = loss of an entitlement (a reasonable expectation to continued receipt of a benefit)

          1. I.e. welfare, disability, SS, contin public ed or employmt

        3. Intentional/Reckless action req’d – govt negligence not sufficient;

          1. But, in emergency situation, govt liable under due process if conduct shocks the conscience

          2. Govt.’s failure to protect ppl from privately inflicted harm does not deny DP

      3. Was the procedure fair?/What procedures req’d?

        1. At least an opp to present objections to a neutral decision maker

        2. Balancing Test = [CIA]

            1. Cost – govt int in administrativeefficiency

            2. Importance of the interest to the individual

            3. Accuracy of current procedures and ability of additional procedures to increase accuracy

        3. Examples:

          1. Welfare benefits – pre notice and hearing

          2. Social security/disability benefits notice and post termination hearing

          3. Public EE – if removal only for cause notice and pre-hearing

          4. Public school discipline notice of charges and opp to explain.

          5. Permanent termination of parent’s right to custody pre notice and hearing

          6. Govt seizure of assets and pre-judgment attachmentsnotice and hearing unless exigent circumstances

          7. Driver’s License suspension – prior hearing

    1. Substantive Due Process – law limits liberty of ALL persons

      1. Rulea govt must have a substantive (adequate) reason before depriving a person of life, liberty, or property (protects economic liberties and fundamental rights—right to vote, travel, privacy, 1st amnd)

      2. Source – DP Clause of 5th and 14th

      3. Deprivation of Economic Liberty

        1. Violated if govt conduct does not pass rational basis test – means chosen are rationally related to a legit govt purpose;

          1. Govt regulating trade/profession → RBR

      4. Fundamental Rightstravel, privacy, voting, 1st Amendment rights – all receive SS

      5. Deprivation of Right to Privacy

        1. Privacy is a fundamental rightunder SDP thru the word “liberty” in DP Clause.

        2. Right to Marry, Procreate, Contraception, Keep family together, Abortion, Rights of Parents(Custody, Child upbringing)(PneumonicMary Keeps Contraceptives At Parent’s Place)

          1. Violated if govt conduct does not pass strict scrutiny test– means chosen are necessary to achieve a compelling govt int (except abortion which has own test)

        3. Right to Abortion (undue burden test)

          1. Violated if govt conduct creates anundue burden

              1. Prior to viability – govt may not prohibit abortions, but may regulate if no undue burden on ability to obtain abortion

              2. After viability – govt may prohibit unless necessary to protect the woman’s life or health

          2. No govt duty to subsidize abortions or provide abortions in public hospitals

          3. Spousal consent and notification laws are unconst

        4. Right to engage in private, consensual Homosexual Activity

          1. Test unknown but govt may not prohibit this activity

        5. Right to Refuse Medical Care

          1. Test unknown but govt may not prohibit a competent adult from refusing medical treatment

            1. Govt may require clear and convincing that person wanted treatment terminated

            2. Govt may prevent family members from making decision (this right belongs to the ind)

        6. NOT a fundamental right – right to edu, right to physician assisted suicide

    2. The Takings Clause – Govt may take private prop for publicuse if it provides just compensation; 5th Amendment – Fed; 14th Amendment – State.

      1. Test:

        1. Is there a taking?

          1. Possessory taking – govt confiscation/physical occupation of prop = taking.

          2. Regulatory taking govt regulation is a taking if it leaves no reasonable economically viable use of prop

            1. Govt conditions on development must be justified by a benefit roughly proportionate to burden imposed; if not→ taking

          3. Temporary denying use of prop is not a taking as long as govt.’s action is reasonable

          4. Owner may challenge regulation that existed at time prop acquired.

          5. Emergency Destruction – no taking – i.e. destroying diseased trees or burning oil fields to avoid enemy possession

        2. Is it for public use? Public use if govt acts under reasonable belief that taking will benefit the public.

        3. Just compensation? Fair Market Value measured in terms of loss to owner. Or, terminate the regulation and pay owner for damages while regulation in effect

    3. Retroactive Legislation

      1. Contracts Clause States may not impair existing contracts. Does NOT apply to fed govt or future contracts.

        1. State/Local Interference with Private ContractIntermediate Scrutiny

          1. State legislation that substantially impairs an existing private K is invalid unless it: (i) serves an impt and legitimate public interest, and (ii) is a reasonable and narrowly tailored means of promoting that interest;

        2. If the State is a contracting partyStrict scrutiny. State/local interference w/ govt K must meet SS.

      2. Ex Post Facto Lawscriminal case only.

        1. Laws may not retroactively alter crimes, punishment, or evidence standard

          1. Exception for Megan’s Laws

        2. Retroactive civil liability – only need meet RB test.

      3. Bills of Attainder – Legislative acts that inflict punishment without judicial trial. Neither states nor fed can pass.


    1. Triggered when a law treats a person/class of persons diffly from others;

      1. Applies to states thru 14th A;

      2. Applies to the fed govt thru 5th A.

    2. Proving Existence of Classification

      1. The law is facially discriminatory

      2. If law facially neutral, must prove law has a discrim impact AND discrim intent

        1. Impact alone not enough. RBR is used unless can prove intent is discriminatory.

    3. Approach

      1. What is the classification? Prove it via facial or neutral (I + I)

      2. What level of scrutiny should be applied?

      3. Does the law meet the level of scrutiny?

    4. Suspect classification – SS if facially discriminatory. If facially neutral, must show intent.

        1. Race and National Origin

          1. Level of scrutiny = Strict scrutiny;

          2. Classifications benefiting minorities – permitted to remedy past discrim;

            1. Strict scrutinygovt must prove means chosen are necessary to achieve a compelling govt interest

              1. Compelling govt interest = to remedy clearly proven past discrim, diversified student body.

            2. Numerical set asides ok (only as remedy for past discrim), quantifying race is not (use of quotas or adding pts)

            3. Seniority systems may not be disrupted for affirmative action.

        2. Alienage (citizens vs. non-citizens)

          1. Level of scrutiny = Strict Scrutinyif state discriminates against non-citizens

            1. i.e. unconst for citizenship to be req. for civil service jobs.

          2. Exception: Rational basisused for:

            1. Alienage classifications that concern self govt and democratic process

              1. Govt may discrim w/ respect to: Voting, serving on jury, Police officer, teacher, probation officer; NOT notary public;

            2. Congressional discrim against aliens

            3. Undocumented aliens (not a suspect class)

              1. I.S. used for undocumented alien children

    5. Quasi-Suspect Classification – IS if facially discriminatory. If facially neutral, must show intent

        1. GenderIS + “exceedingly persuasive justification

          1. Level of scrutiny = Intermediate Scrutiny – govt must prove that means chosen are substantially related to important govt. purpose

            1. There must be an exceedingly persuasive justification to show discrim is substantially related to impt govt interest

          2. Classification Benefiting Women

            1. Permitted to remedy past discrim (impt govt interest) as long as remedy is congruent to problem (substantially related)

            2. Not permitted if based on roles/stereotypes.

        2. Illegitimacy (non-marital children)

          1. Level of scrutiny = Intermediate Scrutiny

            1. Impt interest = prevent fraud, efficient disposition of prop at death

    6. Non suspect classification – RB.

        1. Level of scrutiny = Rational Basis; applies to:

          1. Age discrimination

          2. Disability discrimination

          3. Wealth discrimination

            1. If inability to pay a fee deprives s/o of exercising a fund right→ invalid

          4. Economic regulation

          5. Sexual Orientation Discrimination

    7. Fundamental Rights Protected under EP Clause

      1. Right to travel.

        1. Strict Scrutiny

          1. Right to travel

          2. Durational residency requirements (50 days = max durational residency requirement)

        2. Rational Basis

          1. Foreign Travel

      2. Right to vote.

        1. Level of scrutiny = Strict scrutiny

        2. Prop ownership requirements for voting/holding office not allowed

          1. Exception: prop ownership to vote in water election (water storage district)

        3. Poll taxes→ unconstitutional

        4. One person, One vote – must be met for all state and local elections

          1. Applies whenever any level of govt decides to select reps to a govt’al body by popular election from individual districts

          2. Voter approval does not justify deviation from 1 person, 1 vote

          3. If Congress apportions, given more deference

        5. At large elections (all voters vote for all office holders)

          1. Constitutional unless proof of discriminatory purpose

        6. Gerrymandering – race cannot be predominant factor in drawing boundaries unless meets strict scrutiny

        7. Counting uncounted votes w/o standards in a presidential election violates EP


    1. Prior Restraint? – Judicial order or adminis system that prevents speech b/4 it occurs→ must meet Strict Scrutiny

      1. To be valid: (i) the standards must be narrowly drawn, reasonable, and definite, (2) injunction must be promptly sought, and (3) there must be prompt and final determination of validity of the restraint

      2. License for speech – govt can require license for speech onlyifimpt reason for licensing and clear criteria leaving little discretion to licensing authority.

      3. Gagorders on the pressto prevent prejudicial pre-trial publicity unconstitutional

      4. Procedurally proper court ordersmust be complied with until vacated or overturned.

    2. Vagueness or Overbreadth?regulation of speech is void on its face if vague or overbroad

      1. Overbroad – regulates substantially more speech than necessary or that can be constitutionally regulated

      2. Vague – does not give reasonable notice of what is prohibited (RP cannot tell what speech prohibited and what allowed) – bring up chilling effect

      3. Fighting words laws are vague and overbroad

    3. Unfettered Discretioncannot give officials broad discretion over speech issues, there must be defined standards for applying the law

    4. Content BasedRegulationsStrict Scrutiny.

      1. Content based – subject matter restriction or viewpoint restriction (depends on ideology of the message)

      2. To be valid, restrictions on content must be narrowly tailored to achieve a compelling govt interest.

      3. Unprotected speech – govt has compelling interest in the following categories of “unprotected” speech:

        1. Incitement of Illegal Activity

          1. Govt can burden/punish speech if there is a substantial likelihood of imminent illegal activity. Must prove that imminent illegal conduct is likely and that speaker intended to cause it.

        2. Obscenity (Miller Test) –

          1. Speech is obscene if it describes/depicts sexual conduct that:

            1. Appeals to the prurientinterest. (community std)

              1. That which appeals to shameful/morbid interest in sex

            2. Patentlyoffensive under law prohibiting obscenity. (community std)

            3. Material taken as a whole lacks SLAP value. (national std)

              1. SLAP = scientific, literary, artistic, political

          2. Govt may use zoning ordinances to regulate location of adult bookstores and movie theaters.

          3. Govt may seizeassets of businesses convicted of violating obscenity laws

        3. Obscene Material in home

          1. Right to possess in home (Stanley)

            1. Govt may NOT punish private possess

          2. Does not apply to child porn (govt. may punish)

        4. Child Pornography – need not be taken as a whole.

          1. May be completely banned even if not obscene

          2. Children must be used in its production

        5. Profane and Indecent Speech – Generally protected by 1st A.

          1. Exceptions:

            1. Over broadcast media (intrusive to the home and accessible to children)

              1. Applies to free over the air TV and radio

            2. In schools b/c responsible for teaching civilized discourse

        6. Fighting Words – unconstitutionally vague and overbroad.

      4. Less Protected Speech

        1. Commercial Speech – afforded 1st A protection if truthful.

          1. Unprotected (the following may be burdened)

            1. False and deceptive advertising not protected.

            2. Misleading speech may be regulated.

              1. May prevent professional from advertising or practicing under trade name

              2. May prohibit attorney from in-person solicitation of clients for profit

              3. May NOT prohibit accountants from in-person solicitation.

            3. Speech that proposes unlawful activity

          2. Truthful, non-misleading commercial speech – will be upheld if meets intermediate scrutiny (must be narrowly tailored but not least restrictive alt)

        2. Near Obscene Speech.

          1. Government may regulate to minimize secondary effect.

          2. Government may prohibit nudity.

      5. Defamation

        1. Defamatory statements can be burdened.

        2. Public official or running for public office or public figure

          1. P must prove:

            1. Falsity of statement, AND

            2. Actual malice (D knew statement false or acted w/ reckless disregard for its truth)

        3. Private figure/Public Concern

          1. For compensatory damages, P must prove:

            1. Falsity of statement, AND

            2. Negligence by D

          2. For presumed/punitive damages, P must show:

            1. Actual malice

        4. Private figure/Private matter

          1. Presumed/punitive damages do not require proof of actual malice

      6. Rights of Journalists – requiring reporter to appear and testify does not abridge freedom of speech/press (but may violate 5th)

        1. No privilege to refuse to reveal confidential sources to grand jury conducting good faith inquiry

    5. Content Neutral – ordinance on its face does not regulate content of speech

      1. Intermediate Scrutiny

        1. Ordinance advances important interests unrelated to the suppression of speech, and

        2. Ordinance does not burden substantially more speech than necessary to further those interests

      2. Time Place and Manner regulations

        1. Conduct related speech can be regulated by content neutral time, place and manner restrictions.

        2. Extent to which govt may regulate speech related conduct depends on type of forum involved:

          1. Public forums/Designated Public Forumgovt properties govt is constitutionally req’d to make available for speech (i.e. sidewalks and parks); Designated PF – prop not historically open for speech, but govt has thrown open for speech by practice or policy.

            1. Govt may reg speech w/ reasonable TPM regs that:

              1. Are content neutral (SM and VP neutral)

              2. Are narrowly tailored to serve an impt govt interest; and

              3. Leave open alternative channels of communication (need not use least restrict alt)

          2. Non-Public Forum – govt props that govt constitutionally can and does close to speech.

            1. Rational basis test – Regulations are valid if they are:

              1. Viewpoint neutral, and

              2. Reasonably related to legitimate govt purpose

            2. Examples: military bases, area outside jails/prison, city buses, sidewalks on post office prop, airports, schools, candidate debates sponsored by govt. owned stations

              1. Can prohibit all political ads on bus, but cannot allow political ad against an issue, but not for it (VPN) – reasonably related to govt. interest in minimizing appearance of favoritism and the risk of imposing on a captive audience

          3. Private Propertyno 1st A right of access to private prop for speech purposes.

      3. Symbolic Speech.

        1. Govt can regulate conduct that communicates if it has an impt interest unrelated to the suppression of the message AND if the impact on comm. is no greater than necessary to achieve govt.’s purpose.

          1. Examples:

            1. Protected speech→ flag burning, burning cross, painting swastika

            2. Unprotected → draft card burning, nude dancing

      4. Freedom of Association(fund right protected by 1st A)

        1. Laws that prohibit/punish group membership must meet Strict Scrutiny

        2. To punish membership in a grp, gov must prove person:

          1. Actively affiliated w/ the group;

          2. Knowing of its illegal activities;

          3. With specific intent of furthering those illegal activities.

        3. Laws that prohibit a grp from discriminating are constitutional unless they interfere w/ intimate association (i.e. small dinner party) or expressive activity (discrim integral to expressive activity)

        4. Laws that require disclosure of grp membership where such disclosure would chill association – must meet SS

    6. Privacy

      1. Govt may not create liability for truthfulreporting of info lawfullyobtained from govt records

      2. Liability not allowed if media broadcasts a tape of illegallyintercepted call, if media did not participate in illegality and involves matter of public concern.

      3. Govt may limit its own dissemination of into to protect privacy. Except: press has right to be present at most stages of crim trials


    1. Free Exercise Clause

      1. Govt may not make laws prohibiting free exercise of religion (govt may not punish on basis of one’s religious belief)

      2. FEC cannot be used to challenge a neutral law of general applicability unless motivated by desire to interfere w/ religion.

        1. TF, if law targets religion or not of general applicability→ strict scrutiny must be met to be valid.

      3. Govt may not deny benefits to individuals who quit their jobs for religious reasons

      4. Govt may give an exemption, but not req’d to. FEC does not require exemptions from generally applicable govt’al regulations that happen to burden religious conduct.

        1. SC has granted the Amish an exemption from law requiring compulsory school attendance until age 16.

      5. Law of general applicabilityRational Basis.

      6. Facially discriminatoryStrict Scrutiny.

    2. Establishment Clause prohibits laws respecting est. of religion.

      1. Sect preference – if govt preferring one religion over another, it is invalid unless it is narrowly tailored to promote a compelling interest (SS)

      2. Lemon Testa law is unconstitutional if it violates any part of the following test: (SEX)

        1. Secular purpose for the law

        2. Primary effect must be neither to advance nor inhibit religion; and

          1. Govt must not symbolically endorse religion or a particular religion

          2. Symbol of particular religion ok if there is also a secular symbol or symbols of more than 1 religion.

        3. No excessive entanglement w/ religion

      3. Where govt discriminates against religious speech or prefers one religious sect over another→ Strict Scrutiny must be met.

      4. Govt sponsored religious activity in public schools is unconst

        1. But religious grps must have same access to school facilities as non-religious grps

      5. Through a religiously neutral program, govt may give assistance to parochial schools, so long as not used for religious instruct

        1. Salary supplements to religious school teachers→ unconst

        2. Govt financial assistance to post secondary (college or university) religious schools for secular use → constitutional

          1. Ok as long as govt program requires aid to be used for non-religious purpose.

        3. Funds to be used for supplemental service that the schools are not otherwise req’d to provide (remedial teachers) and offers instructions to all disadvantaged students→ does not violate EC

        4. Govt may provide parents w/ vouchers to use in parochial schools

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