Constitutional Law - FLORIDA

Homestead Exemption From Forced Sale. The FL Constitution (Article 10, Sec. 4) gives certain protection
to homestead propert, !hich consists o" residential propert (e.g., limited to one #main$ resident per
person) o!ned % natural persons up to &'acre !ithin a municipalit and 1(0 contiguous acres outside a
municipalit as !ell as personal propert up to )1000. *roceeds "rom sale o" the homestead propert retain
homestead status +F the o!ner has a good "aith intent to reinvest that ) in another homestead !ithin a
reasona%le time. ,omestead propert is protected "rom lev % creditors o" the o!ner B! it is not
protected "rom "orced sale to satis" (1) ta-es, (.) mortgages on the propert, (/) mechanic0s liens (arising
"rom improvements to the propert), or (4) e1uita%le liens involving "raud. 23T45 The homestead must %e
esta%lished 64F374 the lev o" the 8udgment creditor. ,omestead inures to the %ene9t o" the surviving
spouse and minor children. Thus, homestead propert ma 23T %e conveed % one spouse !ithout the
other0s consent and it ma %e "reel devised 32L: i" there are no surviving minor children or spouse.
,o!ever, the spouse ma !aive his;her homestead rights in an antenuptial agreement. +" homestead is
a%andoned, the protection ma %e "or"eited.
nconstitutional Statutes. The FL Constitution re1uires that statutes cannot %e vague or over%road, and
the should %e reasona%l related to a pu%lic purpose. A la! ma cover 32L: one su"#ect (and connected
matter) and the su%8ect must %e %rie< e-pressed in the act0s title. A la! ma $O! %e amended %
re"erence to its title onl = appropriate portions o" the original te-t must %e set out in the amending act. A
la! >?ST include an enactin% clause stating5 #6e it enacted % the Legislature o" the State o" Florida$.
Laws failing to comply with these requirements are nullities.
o @eneral and Special La!s. @eneral la!s appl uni"orml throughout the state. Special la!s re"er to
speci9c persons, places or things. For enactment o" a special la!, notice o" intention to seeA its
enactment must %e pu%lished in a local ne!spaper 37 thee must %e an approval % re"erendum vote o"
the electors. A general la! o" local application is a la! limited to a geographic area that is esta%lished
% population. The la! !ill appl to an area restricted % a minimum and ma-imum population 9gure.
The general la! o" local application is distinguisha%le "rom a special la! in that it does not re1uire notice
or re"erendum.
Access to Courts. The courts shall %e open to ever person "or redress o" in8ur and 8ustice shall %e
administered !ithout sale, denial, or dela. +" the legislature a%olishes a cause o" action, a reasona%le
alternative must %e provided unless the legislature can sho! a compelling pu%lic necessit or no alternative
method can %e esta%lished.
Separation o& 'owers. ?nliAe the ?.S. Constitution, the FL Constitution e-pressl incorporates the doctrine
o" separation o" po!ers, mandating separation o" the e-ecutive, 8udicial, and legislative %ranches o"
government. 4ncroachment occurs !hen one %ranch o" government usurps the "unction o" another %ranch.
For e-ample, !hen the Legislature passes a statute !hich change 8udicial rules. ?nauthoriBed delegation o"
legislative po!er occurs !hen the legislature delegates the po!er to maAe la! or "undamental polic
decisions. For e-ample, !hen Congress gave the president the line item veto (oA in FL, though).
E(ual 'rotection Clause. Similar to the "ederal la!s. The Court uses three diCerent standards "or
determining a la!s constitutionalit5 rational %asis revie!, intermediate (or heightened scrutin), and strict
scrutin. Dhen a statute or ordinance in"ringes on the "undamental rights o" adults, the la! must pass the
most e-acting standard o" revie! called strict scrutin. For an ordinance to !ithstand strict scrutin, it must
%e necessar to promote a compelling government interest and must %e narro!l tailored to advance that
interest (e.g., no less restrictive means o" accomplishing that tasA). Strict scrutin applies to classi9cations
%ased on Race) Reli%ion) $ational Ori%in) or '*+sical Disa"ilit+. ,ere, the %urden rests on the
governmental %od !ho seeAs to en"orce the statute or ordinance. Courts sometimes invoAe intermediate
scrutin (or heightened scrutin) "or 1uasi'suspect groups such as A,E or ,E$DER. To !ithstand such
heightened revie!, the ordinance must %e su%stantiall related to the achievement o" an important
government interest. @enerall speaAing, the %urden rests on the government seeAing to en"orce the statute
or ordinance. The most common and least intrusive standard is the rational %asis test = it is used !hen the
la! at issue does not involve a suspect classi9cation or in"ringe on a "undamental right. ?nder that test, a
statute or ordinance must %e rationall related to the legitimate government interest and the %urden rests on
the person challenging the statute or ordinance.
Due 'rocess. The Eue *rocess Clauses o" the F
th
(applica%le to the Federal @ov0t) and 14
th
Amendment
(applica%le to the States) provide that the government shall not deprive a person o" his;her #li"e, li%ert, or
propert !ithout due process o" la!$. Eue process contemplates "air process;procedure = such as a "air trial =
!hich re1uires at least an opportunit to present o%8ections to the proposed action to a "air, neutral decision'
maAer. Su%stantive due process concerns "undamental rights. The state must pass the strict scrutin test
to inter"ere !ith "undamental rights contained in the ?.S. and state constitutions. 4-amples are5 ri%*t to
tra-el) pri-ac+) -otin%) and all .
st
Amd. ri%*ts.
Suns*ine Law. 4ver person has a right to access pu%lic records and meetings o" the state and local
government. The legislature ma provide e-emptions % stating a pu%lic necessit 8usti"ing the e-ception so
long as the la! is no %roader than is necessar to accomplish the stated purpose.
'ri-ac+. The FL Constitution e-pressl provides a right o" privac. 4ver natural person has the right to %e
let alone and "ree "rom governmental intrusion into his;her private li"e. FL0s privac right is considered to %e
more protective than the Federal right. 4-amples5 right to re"use li"e sustaining medical treatment, right to
decide !hat to do !; children, etc. Eecisional *rivac v. +n"ormational *rivac 7asmussen Case5 *atient
sued hospital "or names o" %lood donors a"ter he contracted aids. Held5 *rivac interests o" %lood donors
out!eighed patient0s right to get their names. Din9eld Case5 State agenc su%poenaed %anA records as
part o" a criminal investigation. Held5 State0s interest in criminal investigation out!eighed the privac in
one0s %anA records.
Finance. The State ma generall %orro! mone "or capital improvements such as %uildings, %ridges,
airports, and roads. General Obligation Bonds are issued % the state or its su%divisions in order to 9nance
capital pro8ects "or a pu%lic purpose. 6ecause the ta-ing po!er o" the state is %eing used, there must %e
authorit to issue the %onds. Local @eneral 3%ligation 6onds must %e approved % the votes. Revenue Bonds
are issued "or tradition a municipal purposes and are secured % the revenue o" the pro8ect (e.g., a toll
%ridge). A re"erendum is 23T need "or approval o" 7evenue 6onds %;c the are not %eing secured !ith ta-
dollars. *u%lic *urpose Test = e.g., anthing that increases tourist ) or enhances the local econom (%road
test).
Or%ani/ed La"or. Right to Work. 2o one can %e deprived o" a 8o% in FL %ased on mem%ership or non'
mem%ership in a union. Also, !orAers have a right to collective %argaining and to striAe 6?T pu%lic
emploees ma not striAe.
Constitutional Law - 0BE
CO00ERCE CLASE
Commerce Clause. Dhen Congress regulates interstate commerce, con<icting state la!s are superseded and
even noncon<icting state or local la!s in the same 9eld ma %e preempted. Congress >A: permit state
regulations that !ould other!ise violate the Commerce Clause. LiAe!ise, Congress ma prohi%it state regulation
that could other!ise %e upheld under the Commerce Clause. Congress ma not, ho!ever, permit states to violate
civil li%erties.
Eormant Commerce Clause. Dhen Congress has not enacted la!s regarding the su%8ect, a state or local gov0t ma
regulate local aspects o" interstate commerce 6?T it must not discriminate against or undul %urden interstate
commerce = i" it does, the state;local regulation !ill violate the commerce clause.
Eiscriminator La!s. Eiscriminator regulations are almost ALDA:S invalid (e.g., 2: cannot %an CA !ines or ta-
them at a higher rate than local !ines). I& t*e re%ulation is discriminator+) it will "e in-alid $LESS 1i2 it
&urt*ers and important) noneconomic state interest A$D t*ere are no reasona"le nondiscriminator+
alternati-es OR 1ii2 t*e state is a mar3et participant.
o +mportant State +nterest 4-ception. ,3D4G47, a discriminator state;local la! ma %e valid +F it "urthers an
important, non'economic state interest and there are no reasona%le nondiscriminator alternatives availa%le
(e.g., a state could prohi%it importation o" live %ait 9sh %;c parasites could have a detrimental eCect on its o!n
9sh population. ,o!ever, a state could not prohi%it e-port o" live %ait 9sh !hen no ma8or state interest !as
involved).
o >arAet *articipant 4-ception. A state >A: pre"er its o!n citiBens !hen acting as a marAet participant (e.g.,
!hen %uing or selling, hiring la%or, or giving su%sidies).
2ondiscriminator La!s. +" a non'discriminator state la! (i.e., a la! that treats local and out'o"'state interests
aliAe) %urdens interstate commerce, it !ill %e valid $LESS the %urden out!eighs the promotion o" a legitimate
local interest. The court !ill consider !hether less restrictive alternatives are availa%le. 4-. An +o!a statute
%anning trucAs over (0"t !as invalid %;c the state sho!ed no signi9cant evidence o" increased sa"et and the
%urden on commerce !as su%stantial. I& t*e re%ulation does not discriminate B! "urdens interstate
commerce) it will "e in-alid i& t*e "urden on commerce outwei%*s t*e state4s interest.
'O5ER IF S!A!ES !O !A6 I$!ERS!A!E CO00ERCE
2ondiscriminator Ta-es. A nondiscriminator ta- !ill %e valid IF5 (1) the ta- applies to an activit having a
su"stantial nexus to the ta-ing state (i.e, there must %e signi9cant or su%stantial activit !ithin the ta-ing
state)H (.) the ta- is &airl+ apportioned according to a rational "ormula (Ita-paer has %urden o" proving un"air
apportionment)H and (/) the ta- must %e "airl related to the services or %ene9ts provided % the state.
?se Ta-es. e.g., ta-es imposed on goods purchased outside the state %ut used !ithin it. The are valid. An
interstate seller ma %e re1uired to collect a use ta- IF the seller has a suJcient ne-us !ith the ta-ing state (e.g.,
maintains oJce in the ta-ing state) 6?T merel soliciting orders % mail and shipping orders into the state is 23T
suJcient.
Sales Ta-. e.g., imposed on the seller o" goods "or sales consummated !ithin the state. The generall do not
discriminate against interstate commerceH rather the issue usuall involves !hether there is a su%stantial ne-us
%et!een the ta-paer and the ta-ing state or !hether the ta- is properl apportioned.
Ad Galorem Ta-es. Ad valorem propert ta-es are %ased on the assessed value o" the propert in 1uestion.
Commodities in interstate commerce are entirel+ exempt "rom state ta-ation. +nterstate transportation "or these
purposes %egins !hen the cargo is delivered to an interstate carrier 37 actuall starts its interstate 8ourne and
interstate shipment usuall ends !hen the cargo reaches its destinationH therea"ter the goods are su%8ect to local
ta-. 23T45 A %reaA in the continuit o" transit does 23T destro the interstate character o" the shipment unless
the %reaA !as intended to end or suspend the shipment. The validit o" ad valorem propert ta-es on
instrumentalities o" commerce (e.g., trucAs or planes) depends on (i) !hether the instrumentalit ac1uired a
7taxa"le situs8 in the ta-ing state (e.g., !hether there are suJcient #contacts$ !ith the ta-ing state to 8usti"
the ta-) and (ii) !hether the value o" the instrumentalit has %e properl+ apportioned according to the amount
o" the #contacts$ !ith each ta-ing state = a ta- apportioned on the value o" the instrumentalit !ill %e upheld i" it
"airl appro-imates the average phsical presence o" the instrumentalit in the ta-ing state.
# Eoing 6usiness$ Ta-es. e.g., generall permitted and ma %e measured % a <at amount or % a proportional rate
%ased on contact !ith the ta-ing state. +n either case, the %asic re1uirements must %e med5 (i) the activit must
have a su%stantial ne-us to the ta-ing stateH (ii) the ta- must %e "airl apportionedH (iii) the ta- must not
discriminate against interstate commerceH and (iv) the ta- must "airl relate to services provided % the state.
I$DI9IDAL ,ARA$!EES
.:
t*
Amendment. *rohi%its slaver and involuntar servitude. ?nder the 1/
th
Amd.0s 4na%ling Clause, Congress
can prohi%it raciall discriminator action % anyone (the gov0t 37 a private citiBen).
.;
t*
Amendment. *revents STAT4S "rom depriving an person o" li"e, li%ert, or propert !ithout due process and
e1ual protection.
.<
t*
Amendment. *revents %oth "ederal and state gov0t "rom dening citiBens to vote on the %ases o" race or
color.
=Commerce Clause > Ci-il Ri%*ts. ?nder the %roadl construed commerce po!er, Congress ma prohi%it
'RI9A!E racial discrimination in activities that might have a su%stantial eCect on interstate commerce. 6ecause
almost an activit taAen cumulativel might have a su%stantial eCect on interstate commerce, the Commerce
Clause is an important %asis "or civil rights.
State Action Re(uirement. 6ecause the Constitution generall applies onl to governmental action, to sho! a
constitutional violation #state action$ must %e involved. 23T45 This concept applies to gov0t and gov0t oJcers at
all levels = local, state or "ederal. 2ote, ho!ever, that state action can %e "ound in action o" seemingl private
individuals !ho (i) per"orm e-clusive pu%lic "unctions (e.g., activities that are so traditionall the e-clusive
prerogative o" the state are state action no matter !ho per"orms them) OR (ii) have signi9cant state involvement
(e.g., state action e-ists !herever a state aJrmativel "acilitates, encourages, or authoriBes acts o" discrimination
% its citiBens).
RE!ROAC!I9E LA5S
CO$!RAC! CLASE. *rohi%its STAT4S (not "ederal gov0t) "rom enacting an la! that retroactivel impairs
contract rights. +t does not aCect contracts not et entered into. For pri-ate contracts) intermediate scrutin+
applies ? e.g., state legislation that su%stantiall impairs an e-isting private contract is invalid unless the
legislation serves an important pu%lic interest and is a reasona%le and narro!l tailored means o" promoting that
interest. For pu"lic contracts) strict scrutin+ applies ? e.g., legislation that impairs a contract to !hich the
state is a part.
Ex 'ost Facto Laws. State or Federal @ov0t ma not pass e- post "acto la!s (e.g., la!s that retroactivel alters
criminal oCenses or punishments in a su%stantiall pre8udicial manner "or the purpose o" punishing a person "or
some past activit). A statute retroactivel alters a la! in a su%stantiall pre8udicial manner i" it5 (i) maAes criminal
an act that !as innocent !hen doneH (ii) prescri%es greater punishment "or an act than !as prescri%ed "or the act
!hen doneH or (iii) reduces the evidence re1uired to convict a person o" a crime "rom !hat !as re1uired !hen the
act !as committed. 23T45 4- *ost Facto Clauses appl onl to criminal cases.
Bills o& Attainder. e.g., legislative acts that in<ict punishment on individuals !ithout a 8udicial trial. 6oth "ederal
and state govt0s are prohi%ited "rom passing %ills o" attainder.
Due 'rocess Considerations. +" a retroactive la! "oes not violate Contracts, 4- *ost Facto, or 6ill o" Attainder
Clauses, it still must pass muster under the Eue *rocess Clause. +" the retroactive la! does not related to a
"undamental right, it need onl %e rationall related to a legitimate gov0t interest.
'ROCEDRAL DE 'ROCESS. e.g., a "air process (e.g., notice and a hearing) is re1uired "or a gov0t agenc to
individuall taAe a person0s #li"e, li%ert, or propert$. 3nl intentional = not negligent = deprivation o" these rights
violates Eue *rocess Clause. Li%ert A deprivation o" li%ert occurs i" a person loses signi9cant "reedom o" action
37 is denied a "reedom provided % the Constitution or a statute. *ropert There must %e a legitimate claim or
entitlement to the %ene9t under state or "ederal la! = e.g., pu%lic school, !el"are %ene9ts, and (in some cases)
pu%lic emploment. The tpe and e-tent o" re1uired procedures are determined % a three'part %alancing test that
!eighs5 (i) the importance o" the interest to the individualH and (ii) the value o" speci9c procedural sa"e'guards to that
interestH against (iii) the government interest in 9scal and administrative eJcienc. *resuma%l, "air procedures and
an un%iased decision'maAer !ill always %e re1uired. 2otice and a chance to respond %e"ore termination o" the li%ert
or propert interest are usually re1uired. As a general rule, due process rights are, presuma%l, su%8ect to !aiver i"
the !aiver is voluntar and Ano!ingl made.
Access to Courts. @ov0t "ees (e.g., court 9ling "ees) >?ST %e !aived !hen imposition o" a "ee !ould den a
"undamental right to the indigent. Thus, "or e-ample, a marriage license or divorce court 9ling "ee (privac rights) or a
9ling "ee "or candidates "or electoral oJce (voting rights) must %e !aived. ,3D4G47, "ees can %e imposed !hen non'
"undamental rights are involved (e.g., "ees "or a %anAruptc discharge or revie! o" !el"are termination).
!HE 7!A@I$,S8 CLASE. e.g., private propert ma 23T %e taAen "or pu%lic use !ithout 8ust compensation
(applica%le to states via 14
th
Amd.). +" gov0t action is rationally related to a legitimate public purpose (e.g., "or
health, sa"et, !el"are, economic, or aesthetic reasons), the #pu%lic use$ re1uirement is satis9ed. AuthoriBed taAings
% private enterprises are included +F the redound to the pu%lic advantage (e.g., railroads and pu%lic utilities). An
actual or p*+sical in-asion;appropriation o" propert !ill almost ALDA:S amount to a taAing. LiAe!ise, i" a gov0t
regulation denies a lando!ner o" ALL economic use o" his land (e.g., a regulation prohi%iting an %uilding on the land),
the regulation amounts to a taAing ?2L4SS principles o" nuisance or propert la! maAe the use prohi%ita%le.
!emporar+ denials o& all economic use do 23T constitute a per se taAing and the court !ill set out to determine
!hether #"airness and 8ustice$ re1uire compensation. 7egulations that merel decrease the value o" propert (e.g.,
prohi%it the most %ene9cial use) do 23T amount to a taAing i" the leave an economically viable use for the property =
e.g., the court !ill consider the economic impact o" the regulation on the claimant and !hether the regulation
su%stantiall inter"eres !ith distinct, investment'%acAed e-pectations o" the claimant. +" the regulation amounts to a
#taAing$, the gov0t must5 (1) pa+ the propert o!ner 8ust compensation "or the propert (e.g., F>G) or (ii) terminate
t*e re%ulation and pa+ the o!ner "or damages that occurred !hile the regulation !as in eCect. 23T45 Kust
compensation is measured % the loss to the o!ner, not the gain to the taAer = so #!orthless$ propert can %e the
su%8ect o" a taAing %ut no compensation need %e paid !hen it is taAen.
$O!EA O$ !HE 0BE) IF A LA5 LI0I!S LIBER!B !O ALL 'ERSO$S !O E$,A,E I$ SO0E AC!I9I!B)
SALLB A DE 'ROCESS CES!IO$. IF A LA5 !REA!S A 'ERSO$ OR CLASS OF 'ERSO$S
DIFFERE$!LB FRO0 O!HERS) I! IS SALLB A$ ECAL 'RO!EC!IO$ CES!IO$.
SBS!A$!I9E DE 'ROCESS. The Eue *rocess Clause is "ound in the F
th
Amd ("ederal) and the 14
th
Amd (states) =
the same tests are applied under each clause. Dhen a "undamental right is limited, the la! or action is evaluated
under strict scrutin. +n ALL other cases, the rational %asis standard is applied.
Fundamental 7+ghts
Ri%*t o& 'ri-ac+. >arriage. The right o" a male L "emale to enter into (and pro%a%l to dissolve) a marriage is
"undamental ,3D4G47 a statute restricting the rights o" prison inmates to marr !ill %e upheld i" it is reasona%l
related to a legitimate penological interest. ?se o" Contraceptives. A state cannot prohi%it the distri%ution o"
nonmedical contraceptives to adults. A%ortion. 2ormal strict scrutin is not applied here %;c the state has t!o
compelling interests that o"ten compete5 protecting the !oman0s health and protecting the "etus that might
%ecome a child. T!o %asic rules = (i) pre'via%ilit rule (state ma adopt a regulation protecting the mother0s health
and the li"e o" the "etus +S the regulation does not place an #undue %urden$ on or su%stantial o%stacle to the
!oman0s right to o%tain an a%ortionH (ii) post'via%ilit rule (once a "etus is via%le, the state can prohi%it the
!oman0s right to o%tain an a%ortion 6?T cannot prohi%it the !oman "rom o%taining one +F it is necessar to
protect the !oman0s health or sa"et). 23T45 he gov!t has no obligation to "#$ for abortions% 3%scene 7eading
>aterial. The right to privac includes the "reedom to read o%scene material in one!s home (e-cept child
pornograph) 6?T 23T the right to sell, purchase, or transport such material. Meeping 4-tended Famil Together.
Noning regulations that prevent "amil mem%ers (even e-tended ones) "rom living together are invalid. ,o!ever
this right does 23T e-tend to unrelated people. 7ights o" *arents. *arent0s have a "undamental right to maAe
decisions concerning the care, custod, and control o" their children (e.g., a parent has a "undamental right to send
a child to a private school or to "or%id visitation !ith grandparents. +ntimate Se-ual Conduct. The state has no
legitimate interest in maAing it a crime "or "ull consenting adults to engage in private intimate se-ual conduct
(e.g., sodom) that is not commercial in nature. Collection and Eistri%ution o" *ersonal Eata = 23 *7+GAC: 7+@,T.
The state >A: reasona%l gather and distri%ute in"ormation a%out its citiBens. Thus, there is no privac right to
prohi%it the accumulation o" names and addresses o" patients "or !hom dangerous drugs are prescri%ed.
Ri%*t to 9ote. The right to vote is a "undamental right. Thus, restrictions on that right, other than on the %asis o"
residence, age, and citiBenship, are in-alid unless the can pass strict scrutin.
Ri%*t to !ra-el. 4-amples5 (i) 1'r residenc to receive !el"are %ene9ts (invalid)H (ii) 1'r residenc to receive
state su%sidiBed medical care (invalid)H (iii) 1'r residenc to vote in the state (invalid)H (iv) /0'da residenc to
vote in state (valid)H (v) 1'r residenc to get divorced (valid). 23T45 The right to international travel is 23T a
"undamental right = it is ho!ever protected "rom ar%itrar "ederal inter"erence % the F
th
Amd Eue *rocess ClauseH
the rational %asis standard applies.
ECAL 'RO!EC!IO$. +" a "undamental right or suspect classi9cation is involved, the strict scrutin standard is used
to evaluate the regulation. +" a &uasi'suspect classi(cation is involved, intermediate scrutin is used. +" the
classi9cation does not aCect a "undamental right or involve a suspect or 1uasi'suspect class, rational %asis standard
applies. 23T45 For strict or intermediate scrutin to %e applies, there must %e intent on the part o" the government to
discriminate. +ntent ma %e sho!n %5 (i) a la! that is discriminator on its "aceH (ii) a discriminator application o" a
"aciall neutral la!H or (iii) a discriminator motive %ehind the la! (most diJcult to prove = here, a discriminator
eCect is not enoughO the legislature0s discriminator motive must also %e sho!n %, "or e-ample, evidence o" a
histor o" discrimination).
o S?S*4CT CLASS+F+CAT+32S P 7ace, 2ational 3rigin, and Alienage (sometimes) DFL E Race) Reli%ion)
$ational Ori%in) or '*+sical Disa"ilit+ F
o Q?AS+ S?S*4CT CLASS+F+CAT+32S P @ender, Legitimac (e.g., nonmarital children)
o 3T,47 CLASS+F+CAT+32S5 +nclude, age, disa%ilit, and !ealth. $O!EA I$ FL) Disa"ilit+ is a SS'EC! CLASS.
AGrmati-e Action. @ov0t action !hich FAG37S racial or ethnic minorities is su%8ect to the same strict scrutin
standard as is government action discriminating against racial or ethnic minorities. The government has a
compelling interest in remeding past discrimination (e.g., discrimination !hich !as done in a persistent and
readil identi9a%le !a). Dhere there !as no past discrimination, the gov0t ma have a compelling interest in
aJrmative action %ut the governmental action must %e narro!l tailored to that interest (e.g., in colleges !here
#diversit$ is considered to %e a compelling interest, the school must onl consider race as a plus one among
man "actors as opposed to having race %e the de9ning criterion "or admission, !hich !ould not %e narro!l
tailored to achieving the compelling interest o" ensuring a diverse student %od).
Aliena%e ClassiHcations. 6ecause o" Congress0 plenar po!er over aliens, "ederal alienage classi9cations are
23T su%8ect to strict scrutin. Such classi9cations are valid i" the are no ar%itrar and unreasona%le. ,3D4G47,
state;local la!s on alienage A74 suspect classi9cations su%8ect to strict scrutin 6?T i" a la! discriminates against
alien participation in state gov0t (e.g., voting, 8ur service, elective oJce), the rational %asis standard is appliedH
also, the rational %asis standard is used "or state and local la!s limiting certain non'elective oJces involving
important pu%lic polic (e.g., police oJcers, pro%ation oJcers, and teachers). #?ndocumented aliens$ are 23T
suspect classi9cation = thus state la!s regarding them are su%8ect to rational %asis.
FREEDO0 OF S'EECH
Content -. Conduct. +t is presumptivel unconstitutional to place %urdens on speech %;c o" its content 4RC4*T "or
certain categories o" unprotected speech (e.g., o%scenit, de"amation, etc.). Content'neutral speech regulations
are generall su%8ect to intermediate scrutin+ ? the must advance important interests unrelated to suppression
o" speech and must not %urden su%stantiall more speech than necessar to "urther those interests. Conduct
related speech can %e regulated % content'neutral time, place, and manner restrictions.
O-er"readt*. +" a regulation o" speech or speech'related conduct punishes a su%stantial amount o" protected
speech in relation to its plainl legitimate s!eep (e.g., a regulation outla!ing all 1
st
Amd. activit in an airport
terminalH a regulation prohi%iting all canvassers "rom going onto private residential propert to promote an case
!ithout 9rst o%taining a permit), the regulation is "aciall invalid (e.g., it ma not %e en"orced against anone, not
even a person engaging in activit that is not constitutionall protected) unless a court has limited construction o"
the regulation so as to remove the threat to constitutionall protected e-pression. +" the regulation is not
su%stantiall over%road, it can %e en"orced against persons engaging in activities that are not constitutionall
protected.
9a%ueness. +" a criminal la! or regulation "ails to give persons reasona%le notice o" !hat is prohi%ited (e.g., a
prohi%ition o" #le!d$ speech), it ma violate the Eue *rocess Clause. This principle is applied some!hat strictl
!hen 1
st
Amd. activit is involved.
Cannot ,i-e OGcials n&ettered Discretion. A regulation cannot give oJcials %road discretion over speech
issuesH there must %e defned standards "or appling the la!. +" a statute gives licensing oJcials un%ridled
discretion, it is void on its "ace and speaAers need not even appl "or a permit. +" the licensing statute includes
standards, a speaAer ma not ignore the statuteH he must seeA a permit and i" he is denied he can challenge the
denial on 1
st
Amd. grounds.
$O!EA 0andator+ Financial Support. Although the government cannot compel a person to e-press a message,
it ma ta- people and use the revenue to e-press a message !ith !hich the disagree (e.g., a %ed producer can
%e re1uired to pa an assessment to support government sponsored generic advertising o" %ee" even i" the
advertiser thinAs generic advertising is a !aste o" mone). ,3D4G47, it appears that people cannot %e compelled
to su%sidiBe private messages !ith !hich the disagree (e.g., !hile la!ers ma %e compelled to pa %ar dues and
government teaches can %e compelled to pa union dues, the cannot %e compelled to pa sums to such private
associations that !ill %e used to support political vie!s that, or candidates !hom, the do not endorse).
4RC4*T+325 The gov0t can re1uire pu%lic universit students to pa a student activit "ee even i" the "ee is used to
support political and ideological speech % student groups !hose %elie"s are oCensive to the student, as long as
the program is vie!'point neutral.
!I0E) 'LACE) > 0A$$ER RES!RIC!IO$S. The gov0t has the po!er to regulate the conduct associated !ith
speech and assem%l, although the %readth o" this po!er depends on !hether the "orum involved is a pu%lic
"orum, a designated pu%lic "orum, or a nonpu%lic "orum. *u%lic Forum. (e.g., streets, side!alAs, and pu%lic parAs).
Eesignated or Limited *u%lic Forum (e.g., schoolrooms that are open "or a"ter'school use % social, civic, or
recreation groups). !*e %o-ernment ma+ re%ulate speec* in pu"lic and desi%nated pu"lic &orums wit*
reasona"le !'0 re%ulations t*at are 1i2 content-neutral) narrowl+ tailored to ser-e a si%niHcant
1important2 %o-4t interestI and lea-e open alternati-e c*annels o& communication. 2on'pu%lic Forums.
Speech and assem%l can %e more %roadl regulated here (i.e., gov0t'o!ned "orums not historicall linAed !ith
speech and assem%l and not held open "or speech activities such as militar %ases, schools !hile classes are in
session, gov0t !orAplaces, etc.). In suc* locations) re%ulations are -alid IF t*e+ areA 1i2 -iewpoint neutral
A$D 1ii2 reasona"le related to a le%itimate %o-4t purpose.
$'RO!EC!ED S'EECHA Re%ulation Based on Content. When regulating speech based on its content) the
restrictions must be narrowly tailored to achieve a compelling gov!t interest% +nciting +mminent La!less Action.
Speech can %e %urdened i" it creates a clear and present danger o" imminent la!less action. +t must %e sho!n that
the imminent illegal conduct is likely and that the speaAer intended to cause it. Fighting Dords. e.g., #true
threats$ (cross'%urning carried out to intimidate, "or e-ample) are 23T protected % the 1
st
Amd. Speech also can
%e %urdened i" it constitutes 9ghting !ords (personall a%usive !ords that are liAel to incite immediate phsical
retaliation in an average person). Dords that are merel annoing are not suJcient. 2ote that the Supreme Court
!ill not tolerate 9ghting !ords statutes that are designed to punish onl certain vie!points (e.g., proscri%ing onl
9ghting !ords that insult on the %asis o" race, religion, or gender). 3%scenit. Speech is o%scene i" it descri%es or
depicts se-ual conduct that, taAen as a !hole, % the average person5 (i) appeals to the prurient interest in se-,
using a communit standardH (ii) is patentl oCensive and an aCront to contemporar communit standardsH and
(iii) lacAs serious literar, political, or scienti9c value, using a national reasona%le person standard. 23T45 T!o
diCerent standards are used in o%scenit = #appeal to the prurient interest$ and #oCensiveness$ (contemporar
communit standards = local or state!ide)H #value$ (national standard). Also note, a land use (Boning) ordinance
ma limit the location or siBe o" adult entertainment esta%lishments i" the regulation is designed to reduce the
secondar eCects o" such %usinesses (e.g., rise in crime rates, drop in propert value, etc.) ,3D4G47 regulations
ma not %an such esta%lishments altogether. Ee"amator Speech. +" de"amator speech is a%out a pu%lic oJcial or
pu%lic 9gure or involves a pu%lic concern, the 1
st
Amd. re1uires the * to prove all elements o" de"amation plus
"alsit and some degree o" "ault. Commercial Speech. As a general rule, commercial speech is aCorded 1
st
Amd.
protection i" it is truth"ul = ,3D4G47, commercial speech that proposes an unla!"ul activit or that is misleading
or "raudulent ma %e %urdened. An regulation o" commercial speech !ill %e upheld onl i" it5 (i) serves a
su%stantial gov0t interestH (ii) directl advances that interestH and (iii) is narro!l tailored to serve that interest.
'rior Restraints. 7arel are held to %e valid = gov0t has heav %urden o" sho!ing that some special societal
harm !ill other!ise result is speech is allo!ed. To %e valid, a sstem o" prior restraint must provide the "ollo!ing
sa"egaurds5 (i) the standards must %e narro!l dra!n, reasona%le, and de9niteH (ii) in8unction must promptl %e
soughtH and (iii) there must %e prompt and 9nal determination o" the validit o" the restraint.
FREEDO0 OF RELI,IO$
Free Exercise Clause. The Free 4-ercise Clause prohi%its gov0t "rom punishing someone on the %asis o" her
religious %elie"s. The Free 4-ercise Clause cannot %e used to challenge gov0t regulation ?2L4SS the regulation !as
speci9call designed to inter"ere !ith religion (e.g., a la! that prohi%its the precise tpe o" animal slaughter used
in a ritual % a particular religious sect is unconstitutional). >oreover, the F4C does not re1uire religious
e-emptions "rom generall applica%le gov0t regulations that happen to %urden religions conduct (e.g., a la! that
regulates conduct o" all people can %e applied to prohi%it the conduct o" a person despite the "act that his religious
%elie"s prevent him "rom compling !ith the la!). 4RC4*T+325 A state cannot re"use to grant unemploment
%ene9ts to persons !ho 1uit their 8o%s "or religious reasons, as long as their %elie" is sincere. Also, the Supreme
Court has granted Amish an e-emption "rom a la! re1uiring compulsor school attendance until age 1(, %ased on
the F4C and the "undamental right to educate one0s children.
Esta"lis*ment Clause. +" gov0t regulation or action includes a pre"erence "or one religious sect over another, it is
invalid unless it is narro!l tailored to promote a compelling gov0t interest (unliAel). +" a gov0t regulation or action
contains no sect pre"erence, it is valid under the 4sta%lishment Clause +F5 (i) it has a secular purposeH (ii) has a
primar eCect that neither advances nor inhi%its religionH and (iii) does not produce e-cessive gov0t entanglement
!ith religion.
7A2E3> #@7A6 6A@$ +SS?4S
Standin%. A person challenging the constitutionalit o" a government action must have standing to raise the
issue. +n order to have standing, a person must sho! that he is in8ured % a gov0t action (in8ur in "act) and that a
"avora%le decision !ill eleminate the arm. @enerall, a ta-paer does not have standing to challenge the !a ta-
mone is spent %;c an alleged in8ur is too remote.