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KAPLAN BAR REVIEW
Jessielle Ann Fabian
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KAPLAN BAR REVIEW
Jessielle Ann Fabian
because police officers did not make the b) Prohibition of attorneys from
necessary steps to protect the rallyist). advertising routine legal services at
stated fees.
iv. Obscene speech c) Ban on newsracks placed on
(1) 3-part test: sidewalks to distribute commercial
a) The average person, applying publications (while allowing
contemporary community newsracks to sell newspapers)
standards, would find that the d) Complete ban of truthful
work, taken as a whole, appeals advertising of harmful, yet lawful,
to the prurient interest; products (e.g., cigarettes, liquor).
b) The work depicts or describes, in a e) Prohibiting beer bottle labels from
patently offensive way, sexual displaying alcohol content
conduct specifically defined by the
applicable state law; and ii. Sexual speech - speech which does not rise
c) The work, taken as a whole, lacks to a level of obscenity
serious literary, artistic, (1) 2-part test: Gov’t regulation must ...
political, or scientific value. a) serve a substantial government
interest.
(2) Held valid: b) leave open reasonable
a) Regulation of Child pornography alternative channels of
(including Virtual child communication.
pornography) (compelling
governmental interest) (2) Held Valid:
a) Ban on public nudity
ii. Defamatory speech b) Ban on nude dancing to prevent
(1) Categories: prostitution and other forms of
a) private person - purely private criminal activity.
concern >> publication (malice c) Zoning law that prohibits adult
presumed) movie theaters within 1,000 feet of
b) private person - public concern >> houses, churches, schools, and
negligence (FALSE & FAULT- parks. Theatres still have 5% of
negligence) the city where they can operate.
c) public official or public figure >>
actual malice (FALSE & FAULT- iii. Symbolic Speech (conduct treated as
actual malice) symbolic speech)
d) private person – public concern (1) O’BRIEN TEST (U.S. v. O’Brien):
(but for false-light invasion of Symbolic speech may be restricted if the
privacy) >> actual malice. regulation…
(FALSE & FAULT-actual malice) a) serves a substantial
government interest
c. Exception: Gov’t may regulate QUASI i. that is unrelated to the
PROTECTED SPEECH (INTERMEDIATE suppression of speech; and
SCRUTINY) b) the burden on speech is no
i. Commercial speech greater than is necessary.
(1) General Rule: A state may prohibit
commercial advertising of matters that (2) Held valid:
are illegal or false, misleading, or a) Prohibition of the destruction of
deceptive. draft cards (card sent to someone
drafted to the army)
(2) Exception: if the subject matter is not
illegal or false (e.g. vice advertising) (3) Held invalid:
gov’t regulation must … a) Prohibition of students wearing
a) directly advance black armbands to protest Vietnam
b) a substantial government war
interest; and b) Prohibition against burning the
c) be narrowly tailored American flag
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KAPLAN BAR REVIEW
Jessielle Ann Fabian
(1) 4-part test: The regulation must… ii. Held valid (exceptional cases):
a) be content-neutral; (1) National security and classified military
b) serve a significant government information
interest; (2) Seizure of a “single” book or film to
c) narrowly tailored; and preserve as evidence
d) leave alternative channels of (3) Requiring films to be submitted to a
communication open. Board of Censors (standard for denial of
license must be narrowly drawn and
(2) Licenses or permits: licensing officials reasonable; if license is denied the
given no unbridled or unfettered censor must promptly seek an
discretion to determine who may injunction; burden of proving obscenity
receive a permit is on the censor; with prompt judicial
a) If application is denied: determination)
i. statute valid on its face >>
applicant must appeal the b. OVERBREADTH DOCTRINE – regulation must
adverse ruling to the proper not be overly broad so as to unnecessarily cover
administrative or judicial and thereby have a chilling effect upon protected
body. speech.
ii. statute is facially void >>
speaker need not apply for i. Held invalid:
a permit (1) Prohibiting “opprobrious language”
(2) Prohibiting speech that “stirs the public
(3) Held valid: to anger, invites dispute”
a) Requiring permits for gatherings in (3) Requiring charitable orgs to use 75% of
parks (grounds for granting or receipts for “charitable purposes”
denying permit must be content-
neutral) c. VAGUENESS DOCTRINE - Government
b) prohibiting speeches through regulations must be narrow and specific. (when
amplifiers at night or in residential regulations fail to give reasonable notice of what is
zones, or in front of a person’s prohibited, also violates Due Process Clause)
house, or within buffer zones
i. Test: Could a reasonable person know what
(4) Held invalid: speech is outlawed and what speech is
a) Requiring parades to pay for police allowed?
protection. (not content-neutral
because unpopular speakers need ii. Held invalid: void for vagueness
more police protection) (1) statute making it a crime to treat the
flag “contemptuously”
ii. Non-public forums or Limited public places (2) statute prohibiting government
(e.g., military bases, jails, gov’t workplaces) employment for being “subversive”
(RATIONAL BASIS SCRUTINIY) (3) ordinance defining vagrants as “persons
wandering or strolling around” or
(1) 2-part Test: The regulation must … loitering as “to remain in one place with
a) be viewpoint-neutral; and no apparent purposed”.
b) be rationally related to a
legitimate government 3. FREEDOM OF THE PRESS
interest. a. General Rule: The press has no greater
freedom to speak than any ordinary member of
(2) Held valid: the general public and no right to refuse to testify
a) Prohibition of demonstrations on before a grand jury.
jailhouse grounds.
b) Closure of Military bases to political 4. FREEDOM OF ASSOCIATION
speeches and distribution of a. General Rule: Individual cannot be denied public
leaflets. employment based on membership in a political
organization.
4. FACIAL CHALLENGE / ATTACKS
a. PRIOR RESTRAINT - Gov’t cannot suppress or b. Exception:
restrain speech in advance of its publication or i. He is an active member of a subversive
utterance >> BUT can impose subsequent organization;
punishment. ii. He has knowledge of the illegal aims of
the organization;
i. Held invalid: iii. He has specific intent to further those
(1) Enjoining the publication of the aims.
Pentagon Papers.
(2) “large scale” confiscation by the post c. Held valid:
office of mailed materials determined by i. Oath of public employees to “support the
postmaster to be obscene constitution of the United States”
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KAPLAN BAR REVIEW
Jessielle Ann Fabian
d. Held invalid:
i. Requiring teachers to file affidavit listing 5. Standing
every org they belonged in or to swear not to a. Requirement: Plaintiff must show…
lend support to communist party i. Injury in fact – that there is direct and
personal injury
5. BAR ADMISSION ii. Causation and Redressability – that the
a. Held valid: injury was caused by the defendant and the
i. state permitted, to inquire into the relief sought will prevent or redress the
qualifications and fitness of candidates for injury.
admission to the bar.
ii. state can refuse bar membership to an b. Special cases on standing:
applicant who refuses to answer questions if i. Taxpayers: generally, no standing >>
his refusal obstructs the bar. Except: where there is a nexus (logical link)
between the taxpayer and the claim sought.
III. THE FEDERAL COURTS
A. JURISDICTION OF THE SUPREME COURT ii. Third parties: generally, no standing >>
1. Original Jurisdiction: Except:
a. cases affecting ambassadors, other public a. Where special relationship exists
ministers and consuls between claimant and third party
b. cases in which U.S. is a party b. Where party is unable to bring suit on
his/her own behalf
2. Appellate Jurisdiction:
a. Cases arising under the Constitution, Federal iii. Associations: allowed in behalf of its
Laws and Treaties; members, if …
b. cases of admiralty and maritime jurisdiction; a. the members have standing to sue in
c. controversies between two or more states; their own right,
d. cases between a state and citizens of b. the interest asserted is germane to
another state; and the association's purpose and
e. cases between citizens of different states c. the claim asserted nor the relief
(diversity jurisdiction) requested would not require
participation by the individual
3. 2 methods to invoke appellate jurisdiction: members in the lawsuit
a. Direct appeal – Decisions of 3-judge Federal
District Courts 6. Political Questions
a. Rationale: Doctrine of Separation of Powers and
b. Certiorari – Grounds: (discretionary) Limitation on the court’s SM Jurisdiction
i. conflicts between different Federal CA
ii. conflicts between the SCof two states, or a b. Example: impeachment process; amendment
state SC and a Federal CA ratification process; President’s power to
iii. involving important, yet unresolved, issues unilaterally terminate a treaty; foreign affairs,
particularly diplomatic and military strategizing;
B. LIMITATION ON FEDERAL COURTS disputes about the Guaranty Clause of Art. IV.
1. Actual case or controversy – no advisory opinions
a. Except: State courts allowed to render advisory c. Except: reapportionment and gerrymandering >>
opinions not political questions may be heard by the federal
courts
2. Mootness - A case is moot unless an actual
controversy exists at all stages of review 7. Adequate and Independent State Ground (U.S.
a. Except: SC only)
i. Party has interest in resolving a collateral a. If supported by state grounds >> NO judicial
matter review
ii. the injury is capable of repetition, yet b. If supported by federal grounds >> with judicial
evading review review
3. Ripeness – there must be a genuine, immediate threat 8. State Sovereign Immunity (11th Amendment)
of harm (apply to Federal and State courts)
a. General Rule: Pre-enforcement challenges on laws a. General Rule: Federal court cannot try a case
not allowed involving as State without the state’s CONSENT
b. Except: Where person faces risking penalties for i. Cases between a state and its own citizens
violating the law yet to be enforced ii. Cases between a state and the citizens of
another state
4. Abstention iii. Cases between state and foreign country
a. Types: Federal court will abstain to review and
leave the case with the State court … b. Covers: suits against the government itself (state
i. Pullman Abstention – where the case is or federal) and its arms or agencies
based on an unsettled issue of law
c. Exceptions:
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Jessielle Ann Fabian
i. Suits against state officials - If not paid out of b. Speech and Debate Clause - for any speech or
the state’s treasury (e.g. If sued in personal debate in either house
capacity)
ii. Suits against state subdivisions (e.g. cities, CONGRESSIONAL DELEGATION OF POWER - Congress
towns, counties may be sued) may delegate the task of implementing its laws to
iii. Suit brought by state or federal government government agencies if …
iv. State consent (e.g. consent to tort claims) i. Congress passes enabling legislation (state or
federal)
IV. SEPARATION OF POWERS ii. Specifies the purpose, functions, and powers
A. LEGISLATIVE POWER iii. Describes the procedure of the agency
1. Commerce Power – Congress can regulate: (a)
channels of interstate commerce, (b) instrumentalities B. EXECUTIVE POWER
of interstate commerce, and (c) activities that 1. Chief ExecutivePowers
substantially affect interstate commerce. a. Appointment power
a. Affectation Doctrine – can regulate activities i. With approval of Senate:
affecting directly or indirectly interstate commerce. (a) ambassadors, other public ministers and
b. Aggregation Doctrine – can regulate if overall consuls,
or aggregate impact on commerce is substantial. (b) Judges of the Supreme Court, and
(Limitation: only applies to economic activities) (c) all other officers of the United States,
whose appointments are not provided in
c. Fact patterns: the Constitution
i. Regulation of local matter affecting
commerce (e.g. regulation of amount of ii. Federal Executive Officers: Congress cannot
wheat farmer can grow) appoint federal executive officials . But
ii. Racial segregation and discrimination (e.g. Congress can delegate the appointment of
regulation of discrimination in restaurants) “inferior” officers to either (a) the President
iii. Criminal statutes that affect interstate or (b) the judiciary or (c) heads of
commerce (e.g. law against loan sharking) departments.
5. Investigatory Power- the “Necessary and Proper Override of veto: 2/3 vote of each house
Clause” permits Congress to conduct investigation of Congress
incident to its legislative power within a legitimate
legislative sphere. e. Pardon Power – limited to federal offenses
f. Executive Privilege - President has absolute
6. Property Power- the “Property Clause” gives privilege to not disclose military, diplomatic or
Congress complete power over federal lands. sensitive national security secrets >> BUT other
7. Power of Eminent Domain communications are only presumptively privileged
8. Admiralty and Maritime Power
9. Bankruptcy Power 2. Commander-in-Chief Powers – President has power
10. Postal Power to deploy military forces without a formal declaration of
11. Copyright and Patent Power war >> BUT NO power to declare war (only by
12. Congressional Immunity – senators and Congress)
representatives shall be immune in all cases >>
Except: treason, felony and breach of the peace 3. Foreign Affairs Power
a. Privileged from arrest - during their attendance at a. Treaty: with 2/3 vote of Senate
the session of their respective houses, and in i. Self-executing treaty – becomes law
going to and returning from the same; and ii. Non-self-executing – NOT law yet
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KAPLAN BAR REVIEW
Jessielle Ann Fabian
b. Executive Agreement: without Senate action i. General Rule: State is immune from federal
taxation if tax is applied to: (1) unique state
IMPEACHMENT OF PRESIDENT, VP AND FEDERAL activities or (2) to essential governmental
CIVIL OFFICERS functions. (if proprietary activity >> taxable)
i. Grounds: (a) treason, (b) bribery, or (c) other high
crimes and (d) misdemeanors. b. Immunity from Federal regulation
ii. Power to impeach: HR
iii. Power to try: Senate (2/3 vote of Senate) c. Immunity from Suits
i. General Rule: State may only be sued if it
V. RELATION OF FEDERAL AND STATE POWERS consents >> Except: if the suit is by FG or
A. NATURE AND SCOPE OF FEDERAL AND STATE one of its agencies or instrumentalities (may
1. Exclusive Federal Powers: Art 1 Sec 10 - entering sue SG without SG’s consent)
treaties, coin money, lay any impost or duties on
imports or exports. C. NATIONAL POWER TO OVERRIDE STATE AUTHORITY
a. NO FEDERAL POLICE POWER. 1. SUPREMACY CLAUSE - the Constitution, treaties and
b. General Welfare Clause and Necessary and Proper laws of the United States are the supreme law of the
Clause are NOT independent sources of power. land.
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KAPLAN BAR REVIEW
Jessielle Ann Fabian
VI. PROTECTION OF INDIVIDUAL RIGHTS c. Property interest: includes interest in real and
A. STATE ACTION REQUIREMENT personal property, continued receipt of public
1. General Rule: State action is required to infringe benefit, continued government employment, and
constitutional rights >> except: Slavery (13th continued public education
Amendment) – apply to private acts
2. Types:
2. Exceptions: state action can be found in actions of a. Procedural Due Process - The procedural
private individuals… safeguards of notice and a hearing are available
a. Public Function Exception – where a private whenever there is a serious deprivation of any life,
individual or entity is carrying on activities liberty, or property interest
traditionally and exclusively performed by the NB: irrebuttable presumptions violate PDD
government.
b. Entanglement Exception – where the b. Substantive Due Process - applies to
government is significantly involved in a private regulations affecting the fundamental rights of
individual’s or entity’s conduct. persons.
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Jessielle Ann Fabian
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