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A. Questions/Issues
1. Will the judiciary hear the case?
2. Does govt. have the power to act?
3. Is there a structural limitation that prohibits the action?
4. Is the action infringing on a fundamental right or denying due process or equal protection?


A. Defined
1. The power of the federal courts, specifically SCOTUS, to decide cases  can’t get relief without
this power.
B. Scope
1. Acts of Congress: SCOTUS is the final judge of an act’s constitutionality. Marbury v. Madison.
2. Federal Court Decisions: SCOTUS has appellate and supervisory power to review the decisions of
lower federal courts.
3. State Court Decisions: SCOTUS has appellate jurisdiction of state court criminal and civil cases
that apply federal principles. Cohens v. Virginia, Martin v. Hunter’s Lessee.  no power to review
state court cases decided on “adequate and independent” state law grounds.
C. Limitations of Judicial Power
1. Case and Controversy: judicial power extends to all “cases and controversies.”
a. Can’t issue advisory opinion where no controversy exists.
b. Declaratory judgments are okay, as long as a controversy exists.
2. Standing: a party seeking relief in court must have standing to do so.
a. Three requirements:
i. Actual and concrete injury  distinct and palpable, not abstract or hypothetical;
ii. Fairly traceable to D’s conduct; and
iii. Likely to be redressed by a favorable ruling
b. Taxpayer standing  Flast v. Cohen “double nexus” test
i. Logical nexus between taxpayer status and the type of legislation that is being
attacked  legislation must be an exercise of Congress’s taxing and spending power;
ii. Nexus between the taxpayer’s status and the “nature of the Constitutional violation
alleged”  the regulation must be alleged to violate a constitutional limitation other
than those inherent in the taxing and spending power.
c. Citizen standing:
i. Simply being a citizen does not confer standing.
ii. Citizen standing requires that pl. allege some particular injury connected to his or
her status as a citizen  i.e. challenges to state laws that discriminate against citizens
from other states in violation of the P&I Clause.
3. Mootness  court will not grant relief when the controversy ceases to exist. Two exceptions:
a. Recurring controversy  the nature of the controversy means it will become moot before a
final decision can be rendered, but is likely to recur.
b. Voluntary acquiescence  D who voluntarily ceases the challenged conduct has the
burden of showing that it is unlikely the challenged conduct will recur.
4. Ripeness  the threat of a constitutional violation cannot merely be hypothetical.
5. Concreteness  controversy must have matured to the point where the parties’ adverse positions
are concretely fixed.
6. Eleventh Amendment  you cannot sue a state in federal court
7. Abstention  if an issue can be decided on other grounds, federal court should abstain from
deciding the constitutional issue.
A. Separation of Powers  action by Congress or Prez. may be unconstitutional if:
1. There is no Congressional authorization for the action, or the action exceeds the authorization.
2. There is a usurpation of power granted to another branch
3. The action constitutes an improper delegation of power by one branch of the government to
B. Scope of Executive Power
1. Sign and veto legislation passed by Congress
2. Commander in chief of armed forces
3. Grant reprieves and pardons
4. Make treaties (subject to Senate approval)
5. Appoint ambassadors, judges, and other US officers (subject to Senate approval)
6. Enforce and execute all US laws
C. Scope of Congress’s Power
1. Regulate interstate commerce
2. Impose taxes and pay debts
3. Borrow on credit
4. Declare war
a. Issue: is domestic federal activity (i.e. imposing martial law) justified as an exercise of the
war power?
5. Raise and support armies, provide and maintain a navy
6. Establish naturalization rules and bankruptcy laws
7. Establish post offices and roads
8. Grant copyrights and patents
9. Necessary & proper clause: power to “make all laws which shall be necessary and proper for
carrying into execution”
a. Necessary and proper = “convenient or useful to the exercise of an enumerated power.”
b. Basically, if the end is permitted, using reasonable means to get it will be justified.


A. Gives Congress the power to regulate interstate commerce  question is whether the federal regulation
is a necessary and proper exercise of that power.
B. Current Law
1. Federal regulation is permitted as long as the regulated activity “affects” interstate commerce.
2. Two limitations:
a. Congress cannot regulate a purely local activity. United States v. Lopez (Gun-free School
Zones Act)
b. Congress may not use its Commerce Clause Power to create commerce to regulate where
none previously existed. Sebelius.


A. Gives Congress the power to tax and to spend “for the general welfare” and for the payment of national
B. Limitations
1. Art. I requires that all taxes be uniform throughout the country  BUT the 16th Amendment
authorizes the imposition of an income tax without apportionment among the states or by population.
2. The “general welfare” limitation does not require that the spending be in furtherance of one of the
other enumerated powers.
3. Congress may regulate through its taxing and spending powers  i.e. withhold some federal
highway funds to states with a lower drinking age. SD v. Dole.
4. As long as a tax produces income, it will not be invalidated merely because it constitutes a
regulatory measure  BUT it must comport with other constitutional limitations, i.e. it cannot
seriously and unnecessarily burden a fundamental right.


A. Structural Limitations
1. Each branch can only exercise the powers that have been granted to them  cannot usurp powers
OR give their powers away (i.e. Congress can’t pass a law giving Prez. legislative authority).
2. However, delegation of legislative power to the executive or judicial branch is okay, as long as
the delegation includes sufficient standards such that the delegate’s action can be judged for its
fidelity to the legislative will.
B. 10th Amendment – Powers Reserved to the States
1. The powers that are not delegated to the US by the Constitution not prohibited by it to the states,
are reserved to the states or to the people, respectively.
2. Federal litigation cannot compel states to participate in a federal regulatory program, or compel
them to enact legislation in accordance w/ federal guidelines  this is a violation of state
sovereignty under the 10th Amendment. New Yord v. United States (taking title to hazardous waste).


A. Source: 10 Amendment
1. Power to regulate and promote the health, safety, morals, and welfare of their citizens.
2. In LA, state power is only restricted by peoples’ civil liberties.
B. Limitations
1. Supremacy Clause: the Constitution, federal laws, and treaties are the “supreme law of the land.”
2. States cannot enact regulations are preempted by federal law
a. Conflict preemption
i. State policy may produce a result inconsistent with the objective of the federal
a. Environmental regulation
b. Securities
c. Antitrust
d. Trademark
e. Etc.
b. Field preemption
i. State law will be preempted by federal law when it touches a field in which the
federal interest is so dominant that the federal system will be assumed to preempt
enforcement of state laws on the subject.
a. Immigration
b. Federal currency, debt, and bond issues
c. Patents
ii. Scheme of federal regulation is so pervasive that it can be reasonably inferred that
Congress left no room for the states to supplement it.
c. However, if there is a “gap” in federal legislation, states may legislate within those gaps.
C. The Dormant Commerce Clause
1. A state’s action cannot burden the flow of interstate commerce  unconstitutional interference
with the federal commerce power.
2. Two ways to discriminate:
a. Look for statutes that either blatantly treat out of state businesses, industries, or actors
differently  i.e. different taxes, different rules, more procedures, etc. These are
b. Look for statutes that are neutral on their face, regulate to effectuate a legitimate local
public interest, and have an incidental effect on out-of-state commerce. Statutes like this that
have a discriminatory impact on out-of-state businesses, industries, etc. are FACIALLY
NEUTRAL and will be upheld unless the burden is excessive in relation to the local benefits.
For facially neutral laws, use the Pike v. Bruce Church balancing test:
i. Identify burden
ii. Identify purpose
iii. Does the purpose justify the burden?
iv. Is there a less burdensome alternative?
c. Some examples of valid state interests: public health and safety, solving a purely local
3. Exceptions to DCC
a. Market Participant exception: state and local governments will not be restricted under the
commerce clause when act as market participants, e.g. when they are the ones buying or
paying for the services (rather than regulating them)  i.e. a government construction
project, public universities, giving state residents preferential treatment in an industry/market
owned by the government itself (i.e. cement plant).
i. Limit: state cannot use participation in a market to regulate another market in which
it is not a direct participant (“downstream regulation”).
D. The Privileges and Immunities Clause
1. “The citizens of each state shall be entitled to all the privileges and immunities of citizens in the
several states.”
2. Only applies to fundamental privileges:
a. Travel
b. Own property
c. Transact business or carry on a trade
3. Limitations:
a. No fundamental right to participate in recreation activities (i.e. hunting licenses, etc).
b. State may discriminate against a non-resident with respect to a protected fundamental right
when its reasons for doing so are substantial and the difference in treatment bears a close
relationship to the reasons.
E. Limitations of State Taxation
1. A state’s taxation power may be limited by any or all of the following:
a. Commerce Clause  state taxation that unduly burdens or discriminates against interstate
commerce violates the commerce clause
i. Property taxes: state may tax property before its interstate movement has begun or
during a significant interruption in that movement. Tax must also be fairly
apportioned to the activity occurring within the taxing state, and fairly related to the
services provided by the state.
ii. Income taxes:
a. Inquiry: will the taxpayer be subject to multiple taxation?
b. State may impose tax on net income derived by a domestic corporation
from interstate transactions as long as the tax does not discriminate against
interstate commerce and is fairly apportioned to activities occurring within the
taxing state to avoid multiple taxation.
iii. Sale and use taxes:
a. State cannot impose a sales tax on a sale that occurs entirely in another
state, or an interstate sale, if the effect is to discriminate on interstate
commerce (i.e. making taxes lower for in-state products or buying local, etc)
b. State can require a foreign seller to collect a use tax on goods shipped into
the state only if the seller has a sufficient nexus with the taxing state.
c. Sale or use tax can be defeated by showing the risk of multiple taxation 
burden to show this is on the taxpayer.
d. Sale and use tax must be at the same rate, otherwise it discriminates against
b. 14th Amendment
i. Due Process
a. Does the state have sufficient relation to the property or activity to be
taxed?  the taxpayer needs minimum contacts with the state, otherwise the
tax will violate the Due Process Clause (internet or catalog sales that are
delivered by common carrier are not enough  no actual contact between the
business and the state)
b. Is the tax fairly apportioned to avoid multiple taxation?  burden on
ii. Equal Protection
c. P&I Clause: right to pursue one’s trade is protected by the Privileges and Immunities
Clause. If a state tax restricts a protected privilege or immunity and is discriminatory against
citizens of other states, it is unconstitutional.
d. Import-Export Clause
i. The states are prohibited from imposing imposts or duties on imports or exports,
except what may be absolutely necessary for imposing its inspection laws  purpose:
to prevent taxes that are basically transit fees for the privilege of moving goods
through a state.
ii. When goods come to rest in a state, they will acquire a tax situs that will support a
tax, even if the tax has an incidental effect on the volume of goods imported.
F. The Contract Clause
1. The states are prohibited from imposing laws that impair the obligation of contracts  must be a
direct impairment/cause a severe change.
a. State cannot pass a law to undo its own contractual obligations.
b. State cannot pass a law that retroactively effects a severe change in contractual
circumstances unless the law is necessary to solve a broader problem (i.e. moratorium on
mortgage foreclosures/Great Depression).
2. Contracts Clause will not be applied to invalidate a state law that only has indirect effects on
G. Takings
1. Fifth Amendment: “nor shall private property be taken for public use, without just compensation.”
2. Takings issues:
a. Was there a taking?
i. Taking = physical occupation of property by the state, condemnation, denial of all
rights in land, denial of substantially all use of land.
ii. Regulating land use does not count, even if it is substantial, as long as it is closely
related to a substantial public purpose.
iii. Zoning ordinances are generally not a taking, unless they deny substantially all
use of the land.
iv. When issuing permits, an “essential nexus” must exist between the legitimate
state interest and the permit condition.
v. Reduction of govt. benefits under a social program and change in the base rate for a
utility are not takings.
b. Was the taking for a public purpose?  states are given wide latitude in advancing public
purposes to support takings. A state legislature’s declaration of public purpose will not be
disturbed unless it is palpably without reasonable foundation.
i. If not, the landowner may obtain a return of the property.
ii. If so, the landowner’s only remedy is just compensation.
iii. Taking private property for condemnation to resell to developers to support a
city’s redevelopment/economic revitalization plan.
c. What constitutes just compensation?
i. Generally, money damages are given out = value of the property at the time it was
ii. Calculation of damages begins at the time use of the property is denied, not the
time a “taking” is declared by the court.


A. Due Process
1. Source: 14th Amendment  “no state shall deprive any person of due process or equal protection
of laws.
2. Requirement of action by a state actor or entity  a private actor has no duty to provide Due
a. State action = passing a law, leasing public property, “encouraging” an illegal action, state
court’s enforcement of racially discriminatory private action, judicial allowance of
discriminatory peremptory challenges.
b. Permission of private action, granting a liquor license = generally not enough involvement
to constitute a state action.
c. The question will often turn on the degree of involvement.
B. Procedural Due Process
1. Elements
a. Presence of state action;
b. Adverse effect on a recognized liberty or property interest; and
i. Property interest must be “vested,” by law or otherwise (i.e. civil service or tenure
is a vested property interest in continued employment; whereas temporary state
employment without civil service status is not)
c. Notice and meaningful opportunity to be heard. Mathews v. Eldridge factors for nature
and timing of the notice and opportunity to be heard:
i. The private interest that will be affected by the state action,
ii. Risk of an erroneous deprivation of that interest through the procedures used,
iii. The probable value of additional or substitute procedural safeguards, and
iv. The government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
2. How much process is due?
a. Are common law safeguards adequate or is additional process needed?
b. Is a pre-deprivation hearing necessary to provide a check against substantial loss to the
c. Will the required procedures substantially reduce the risk of an erroneous deprivation of
the right?
d. Has there been a historical incidence of abuse of these rights?
3. The additional process you’re seeking needs to actually be helpful
4. Winning on a procedural due process claim = the government will have to stop whatever they’ve
been doing.
C. Substantive Due Process
1. Source: The 5th and 14th Amendments prohibit the federal government and the states (respectively)
from depriving a person of life, liberty, and property without due process of law.
a. Unlike procedural due process, winning on this kind of claim means the government will
have to stop whatever it’s doing to you.
2. Economic/Business Regulations
a. State laws regulating business operations are valid as long as they are reasonably and
rationally related to a valid police power purpose (i.e. promotion of public safety and
i. Presumption of validity
ii. Courts are reluctant to overturn these, even if there is a more effective method to
achieve the purpose.
iii. As long as there is a theoretically rational relationship between the problem to be
fixed and the regulation, it will be upheld.
b. On the exam: look for the state passing a regulation with the purpose of protecting the
health, safety, or welfare of its citizens, or to solve some local problem, and an adverse effect
on a corporation, business, industry, etc. Similar to a fact pattern for the Dormant Commerce
3. Privacy/Personal Rights
a. Laws that infringe on “fundamental rights” can be challenged under Substantive Due
i. Examples of fundamental rights
a. Family/personal life: marriage, procreation, abortion, family relationships,
educating your children, consensual sex between gay adults.
b. Right to travel
c. Right to vote
d. First Amendment rights (mentioning the SDP question is okay, but these
should generally be analyzed under the First Amendment analysis discussed
later in the outline).
ii. NOT fundamental rights
a. Right to die (Cruzan – doctor assisted suicide)
b. Right to education
i. These are judged under the rational relationship test
ii. BUT the court has struck down a law denying education to children
because of their status as aliens (Plyler v. Doe)
iii. A tuition difference for in-state vs. out-of-state residents is
b. Analysis: regulating the exercise of a fundamental right is only permitted if the regulation
i. Serves a compelling state interest;
ii. Is narrowly drawn as to accomplish the compelling state interest with as little
interference as possible with the fundamental right.
c. The Right to Travel
i. Regulations that infringe upon this right “penalize” a person who exercises their
right to interstate travel  denies them benefits that citizens of their new state would
get. Generally done by imposing a “waiting period.”
ii. Waiting period for welfare benefits violates substantive due process, because the
traveler is being denied benefits that he would be getting if he lived there all along.
Shapiro v. Thompson.
iii. A one-year waiting period for a divorce to a couple who has just moved to a new
state has been upheld, though. Sosna v. Iowa.  this is seen as a mere delay, not a
d. Right to Vote
i. Voting limitations are generally always struck down if they place severe
restrictions on the right (i.e. property ownership or literacy tests)  these limitations
are subject to strict scrutiny, and will be invalidated unless they serve a compelling
state interest.
ii. In contrast, reasonable non-discriminatory restrictions (such as a ban on-write
in candidates, a cut-off for registration) will be reviewed to determine whether they
are sufficiently justified by an important state interest
a. A state has an important interest in preventing voter confusion and
unrestrained factionalism at the polls.
b. This means that making voting less convenient is generally okay.
iii. Campaign contributions
a. Statutes limiting campaign contributions are subject to intermediate
scrutiny  must be closely drawn to match a sufficiently important state
b. Although limiting the amount that a person can contribute is permissible,
the government may not limit the amount that a person expends on his own
campaign. Buckley v. Valeo.
c. Govt. also cannot limit the amount that one person spends to get a candidate
elected, as long as the funds do not directly go to the candidate or are not
coordinated with that candidate’s efforts (i.e. disguised campaign
contributions)  this means that corporations, unions, etc. may spend
whatever they want to get a candidate elected. Citizens United.
4. Suspect Classifications
a. Types of classifications
i. Facially discriminatory
a. Outright discriminates against the protected group (i.e. “no black people are
allowed in this building”)
b. These are per se unconstitutional and will rarely be upheld  during a
national emergency, they might be (i.e. Korematsu exclusion of Japanese
people from the west coast during WW2), but generally not otherwise.
ii. Facially neutral, but discriminatory in their impact/application
a. Does not mention race/national origin/etc, but has a disparate impact on a
protected group (i.e. “you need to apply for a permit to enter this building” 
and then they don’t give any permits to black people).
b. A discriminatory impact is not enough to make the classification suspect
 you also need a discriminatory motive.
b. Suspect classifications (facially discriminatory, facially neutral with discriminatory
impact AND motive) are subject to strict scrutiny  the law must serve a compelling
government interest, the means used must be narrowly tailored to achieve that goal or
interest, and there must be no less restrictive means that could be used to achieve the
goal or interest.
c. Race/national origin
i. Laws that classify on the basis of race are generally disfavored and will be viewed
with suspicion  subject to strict scrutiny.
ii. If the law is facially neutral with a discriminatory impact  the party challenging
the law has the burden of proving a discriminatory motive.
iii. Affirmative action
a. Considering race, sex, etc. to cure prior discrimination against these groups
is permissible  curing past discrimination is a compelling state interest.
b. However, the plan must still be sufficiently narrowly tailored to correct the
problem. Some factors to consider are:
i. Whether the plan has flexible goals
ii. Whether the plan is temporary
iii. Whether the plan is access-barring to other groups
c. Disfavored remedies in this context: lay-offs (Wygant), use of numerical
quotas (Bakke)
d. Colleges/universities: using a blind numerical point system is not allowed
(Gratz), but considering race as one factor among many when assessing
applications is allowed (Grutter).
d. Alienage
i. State and local alienage classifications are subject to strict scrutiny  however,
this excludes immigration/naturalization regulations put into place by the federal
government (Congress has plenary power over aliens)
ii. Classifications based on alienage must be closely related to a substantial state
interest in order to be upheld.
iii. “Political function exception”: states may discriminate against aliens to protect a
special public interest, i.e. qualifications for police officers and elected officials.
iv. Undocumented/illegal aliens have not been identified as a suspect class 
classifications involving them are only subject to the rational basis test.
5. Quasi-suspect classifications
a. Gender
i. SCOTUS has never declared sex-based classifications to be suspect, but has treated
them with something close to strict scrutiny.
ii. Classifications explicitly based on gender (even if they appear to be benign) will be
closely reviewed and will not be upheld if they reflect the “baggage of racial
iii. Govt. bears the burden of proving an exceedingly persuasive justification to an
important government interest.
a. The govt. interest must be “genuine” and not merely made up for the
purpose of the litigation.
b. The government’s justification cannot rely on “overbroad generalizations.”
iv. Facially neutral classifications with a disparate impact on the sexes  need to
show a discriminatory purpose.
v. Affirmative action plans to put women in jobs from which they have traditionally
been excluded are permissible.
vi. Discrimination against men
a. Examples of laws that have been struck down:
i. Denying men admission to nursing school
ii. Only allowing women to be eligible for alimony
iii. Permitting only unwed mothers, not fathers, to stop adoption
iv. Providing a higher minimum drinking age for men
b. Examples of laws that have been upheld
i. Punishing only men for statutory rape
ii. Provide for a male-only draft
iii. Grant automatic citizenship to nonmarital children born abroad to
American mothers
b. Illegitimacy
i. Classifications intended to punish the children born of illicit relationships, such as
those that exclude such children from inheriting from their intestate fathers, will not
be upheld.
6. Classifications that are neither suspect nor burden protected rights
a. These classifications are subject to rational basis review  will be upheld if rationally
related to a legitimate state purpose
b. Analysis
i. What is the purpose of the classification?
ii. Is there a connection between the classification and this purpose?
c. The classification does not need to be the best method for solving the problem, nor does it
need to solve it completely.
d. Wealth and age classifications are subject to this kind of scrutiny.


A. Issues
1. Can the exercise of the right be restricted by the government?
2. If so, how?
B. Freedom of Expression
1. The extent to which the government can regulate depends on the type of speech at issue.
a. SCOTUS has consistently struck down laws that seek to regulate based on the “content” of
speech  impermissible regulations punish one type of speech over others or seek to
regulated based on the message contained in the speech.
b. Regulations on content are not tolerated unless they fall under one of these exceptions:
i. Political speech
a. Govt. may not regulate unless the regulation is narrowly tailored to serve
a state interest of the highest order.
b. Political speech that advocates violence or criminal acts is subject to
regulation as long as it is coupled with a chance that the advocated conduct
will actually happen  the more likely it is that the conduct will happen, the
more the government can restrict the advocacy of such conduct.
c. Brandenburg v. Ohio test for govt. regulation of speech that advocates
lawless conduct:
1. Speech must be directed to imminent lawless action; and
2. Is likely to produce or incite such action.
d. Likelihood or probability that the conduct will happen  factors to
1. How serious is the conduct that is advocated?
2. How much influence does the speaker have?
3. Who is listening to the speaker?
4. Where is the speech occurring?
5. Are there aggravating circumstances that would increase the risk of
ii. Commercial speech
a. Govt. may regulate commercial speech that is false or deceptive.
b. Govt. restrictions on commercial speech that are greater than those on other
types of speech are tolerated when the regulation is necessary to promote a
substantial state interest and there is a “reasonable fit” between the
regulation and the state interest at stake.
c. Commercial speech is also subject to reasonable restrictions on time, place,
and manner.
iii. Speech by public employees  more restricted than speech by other people
a. Test for whether the speech will be protected:
1. Speech must relate to a manner of public concern;
2. If the speech addresses a public concern, the govt. must show that
its interest in efficiently delivering public services outweighs the
employee’s free speech rights; and
3. Even if the govt. cannot meet the second test, the govt. can also
justify its action by showing that a negative employment decision
would have been reached anyway, for reasons unrelated to the
employee’s speech.
iv. Obscenity  not protected at all
a. Since obscenity is not protected by the First Amendment at all, the states
may control/regulate it.
b. Issue: whether or not the work is obscene.
c. Miller v. California test for obscenity:
1. Work must be such that “the average person applying contemporary
community standards” would find that, taken as a whole, it appeals to
the prurient (morbid or sexual) interests;
2. Work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by state laws; and
3. The work, taken as a whole, lacks serious literary, political, artistic,
or scientific value.
d. State may also impose regulations on speech that is “harmful to minors.”
v. Fighting words  states may restrict public speech that is likely to create a breach
of the peace.
2. Prior restraint
a. Generally, the government must wait until speech occurs before acting.
b. Prior restraint is permitted only in extreme cases: govt. has a heavy burden of showing a
justification for the restraint.
3. Restrictions on time, place, and manner
a. Because speech in public places affects the public (duh), the govt. may place reasonable
restrictions on the time, place, and manner of the speech in order to protect the public.
b. These restrictions
i. Must not be thinly-veiled restrictions on the content of the speech; and
ii. Must be no greater than necessary to achieve the govt’s stated purpose.
c. License or permit requirements are okay (look for such requirements that are actually a
pretense for content regulation or give the licensing authority total discretion about whether
or not to issue the permit/license).
d. A state may not restrict public speech solely to protect others from hearing it, unless they
can show that “substantial privacy interests are being invaded in an essentially intolerable
e. Place
i. Public forum (public park, street, sidewalk, etc) open to speech
ii. Limited public forum (govt. post office, military base, etc): govt. may restrict
speech in these places to reserve the forum for its intended use  restriction must
be viewpoint neutral and reasonably related to a legitimate govt. purpose.
iii. Private property: a property owner may generally prevent any form of expression
on his property (unless the property, by its use, become the equivalent of a limited
public forum).
f. Symbolic speech
i. Conduct is generally not protected under the First Amendment, unless it’s
combined w/ protected speech or constitutes “symbolic speech.”
ii. Cross and flag burning are protected as acts of political expression  just make
sure it’s your own flag or cross.
4. Overbreadth and vagueness
a. Constitutionally overbroad regulations  i.e. banning “all First Amendment” activities at
an airport terminal.
i. Unconstitutionally overbroad statute = restricts both protected and unprotected
speech; is broader than necessary to achieve its stated purpose.
b. Vague regulations  i.e. banning any conduct that is “annoying to passerby”
i. Unconstitutionally vague statutes = restricts First Amendment expression but fails
to provide an ascertainable standard of acceptable conduct.
ii. Related to due process: will stop people from engaging in protected speech if they
can’t figure out what type of speech is subject to regulation.
iii. Plaintiff who is engaging in conduct that is clearly prohibited will fail on a
vagueness challenge
5. Defamation
a. Public figure: must prove that D acted with “actual malice” (knowledge that the statement
was false or reckless disregard of its falsity)
b. Private person: does not need to prove actual malice.
C. Freedom of Association
1. Freedom of association
a. Right to peaceably assemble
b. Right to petition govt. for a redress of grievances
c. Right to not assemble
2. Freedom of association will not apply to non-political associations that lack a sufficient degree of
privacy and intimacy (i.e. teenager curfew, groups that welcome strangers/have a public
purpose/welcome media coverage).
D. Freedom of the Press
1. Govt. cannot place restraints on the content of the printed press  but school newspapers can be
regulated by schools as long as the regulation is reasonably related to legitimate educational
2. Newsman’s privilege: there is no constitutional privilege against the disclosure of constitutional
press information (but many states have enacted such statutes); nor is there a privilege from searches
pursuant to a warrant of newsrooms
3. Free access to govt. information: trials, voir dire, and hearings in criminal cases must be open to
the press. Suppression hearings do not. Unclear if there is any right to attend civil trials.
E. Religion
1. Establishment Clause
a. Prohibits laws “respecting an establishment of religion”  state cannot:
i. Require any form of religious observance,
ii. Advance any religion over another, or
iii. Advance religion over non-religion.
b. Govt. benefits to religious institutions: Lemon test
i. Govt. program has a secular legislative purpose;
ii. Principal or primary effect of the benefit can neither advance nor inhibit religion;
iii. There is no “excessive governmental entanglement” with religion.
c. 10 Commandments display: permitted as long as the purpose of the display is not
predominantly religious (i.e. displaying in front of a courthouse is not okay, displaying in a
public park among several dozen other monuments is fine)
2. Free Exercise Clause
a. Forbids the enactment of laws “prohibiting the free exercise of religion.”
b. Govt. cannot punish anyone on the basis of their religious beliefs, nor can it find religious
beliefs to be false.
c. Religious oaths for federal govt. jobs are prohibited.
d. However, states may regulate conduct in general through laws that interfere with a
person’s religious practices.
i. This is different than punishing conduct in a manner targeted toward a religious
belief or expression, which is not permitted.
ii. State may be required to permit an exception to a law regulating conduct if the
effect of the law, though neutral on its face, is to interfere w/ a person’s religious
beliefs or practice  generally shows up as a person who has been denied
employment benefits or lost their job due to a conflict between work and religious
iii. Test for a “free exercise” exception:
a. Does the person have a sincerely-held religious belief?
b. Is that belief burdened by the state regulation?
c. If so, the state must show the following in order to avoid an exception:
i. The requirement or regulation is necessary to an important state
goal, and
ii. An exception would substantially hinder the fulfillment of that
iv. Examples of laws of general application: criminal laws, laws requiring the
payment of taxes, rule excluding college degrees in devotional theory from a
scholarship program.