Bar Points: Constitutional Law

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Constitutional Law: Protection of Individual Rights: First Amendment: Licensing Statutes

Licensing statutes. Permit requirements prior to speech-related activities. Before an individual can give a speech on public property or conduct a march or parade, a person needs to obtain a permit to speak.

Permit generally constitutional. Provided it is content-neutral, narrowly drawn, non-discriminatory, as far as content, and no unfettered discretion for licensing official.

3 possible scenarios.

(1) Licensing statutes that is facially valid (i.e. content neutral, narrowly drawn) but unconstitutional as applied to speaker.

RESULT = speaker must apply for permit; speaker may not speak; must seek judicial relief before speaking

(2) Licensing statute is void on its face (i.e. mayor has unfettered discretion)

RESULT = statute may be ignored; individual may speak. Need not apply for permit and may defend against any subsequent prosecution.

(3) Speaker enjoined from speaking.

RESULT = injunction must be obeyed even if facially invalid. Invalidity of injunction must be established on appeal – no defense to subsequent charge of contempt.

Constitutional Law: Protection of Individual Rights: First Amendment: Time, Place, Manner Regulation

Time, Place, Manner Regulation (Track 2).

Apply 3-part test to regulation: Content-neutral regulation:

(1) must further a significant government interest
(2) must be narrowly drawn
(3) alternative channels of communication must be left open

Public Fora.

Traditional Public Forum. Areas where the government is required to make available for speech.

Sidewalks and Parks. However a law that says no trucks with sound amplification systems can operate in residential neighborhoods at nighttime.
Regulations must be subject-matter and viewpoint neutral. If not, strict scrutiny must be met.

Limited Public Forum. Government properties that the government could close to speech, but chooses to open to speech.

Library, school, state fairgrounds.

Non-public Forum. Government properties that the government constitutionally can and does close to speech.

Military bases, jails, airports, inside of courthouse, government office building, privately owned billboards, billboards on city busses, sidewalks on U.S. Postal Service property.
To regulate, law must only be (1) viewpoint neutral and (2) rationally related to a legitimate government interest.

Private property – need not be made available for speech-related activities. Private shopping centers may prohibit picketing on property.

Constitutional Law: Protection of Individual Rights: First Amendment: Regulation of Speech Content: Fighting Words and Symbolic Speech

Fighting Words. Insults, likely to provoke an ordinary person to commit an act of violence.

RAV. Statute which prohibited fighting words which provoked violence on the basis of race, religion, or gender = unconstitutional because statute must be viewpoint neutral.

A fighting words statute designed to punish only particular viewpoints (i.e. on basis of race, religion, gender is not viewpoint neutral).

Symbolic Speech. Speech where the medium itself is the message. Free expression consisting of non-verbal actions.

Apply strict scrutiny.

Flag-burning is protected symbolic speech. It’s unconstitutional to ban flag burning.

Constitutional Law: Protection of Individual Rights: First Amendment: Regulation of Speech Content: Commercial Speech

Commercial Speech. Generally, commercial speech is protected. However, it may be regulated as to false or deceptive advertising as well as harmful or illegal products.

TEST: For unprotected commercial speech[1] Central Hudson Test. Under Central Hudson, in order to be valid, the regulation must directly advance a substantial government interest and it must be narrowly tailored to further that interest.

Harmful but lawful products advertising (vice advertising)

Apply Central Hudson.

Solicitation. Court balances homeowner’s right to privacy with First Amendment right of commercial speech. Then ask whether the regulation in question is narrowly tailored.

Ordinance prohibiting all door-to-door solicitation = unconstitutional.
Ordinance prohibiting commercial solicitation without homeowner’s consent = UPHELD. Alternative channels of communication were left open.

True commercial speech that inherently risks deception can be prohibited.

Government may prevent professionals from practicing under a trade name.
The government may prohibit an attorney, in person, from soliciting a client for profit.

However, if attorney is offering free representation, that’s protected.
If attorney sends letters to prospective clients, that’s okay.

The government may not prohibit accountants from in-person solicitation of clients for profit.

State law barring attorneys from soliciting accident victims within 30 days of the accident is constitutional.

[1] Note that strict scrutiny is used for protected commercial speech.

Constitutional Law: Protection of Individual Rights: First Amendment: Regulation of Speech Content: Obscenity

Obscenity (Miller Test) – obscene material is:

Material that appears to the prurient interest in sex and is (community)
Patently offensive and (community)
Lacks any serious artistic, literary, social, or scientific value. (reasonable person)

Obscene Speech vs. Merely offensive language.

Merely offensive language is not obscene under Miller. It is protected.
“Fuck the draft” is offensive, not obscene.
Profane language on the radio waves is not protected.
Broadcasting can be restricted/limited without satisfying Miller. FCC can levy fines, restrict broadcasting.

Child Porn. This is outside the protection of the First Amendment. May be punished/restricted even if not obscene under Miller because the state has great power to protect its minor children.

Possession of obscene materials in the privacy of one’s home is protected BUT it has not been extended:

Public distribution of obscene materials can be punished.
Obscene films in public theaters may be restricted
Obscene material can be received in the mail and purchased in stores.

Regulation of obscenity through zoning and land use. Zoning ordinances may be enacted to regulate the location of adult theaters and bookstores.

The 21^st Amendment may be used to aggressively regulate adult speech in establishments which are licensed by the state to serve liquor.

Public nudity (erotic dancing). SCOTUS has upheld municipal ban on public nudity because of its harmful effect on community.

Constitutional Law: Protection of Individual Rights: First Amendment: Regulation of Speech Content: Defamation

Defamation: Written (libel) or spoken (slander) utterance of an untruth that injures one’s reputation.

Consider the status of the Plaintiff.

If Plaintiff is public official, the plaintiff can recover for defamation by proving falsity of the statement and actual malice.[1]
If Plaintiff is public figure[2], the plaintiff can recover by proving falsity of the statement and actual malice.
If Plaintiff is private figure and the matter is of public concern, to recover, the plaintiff need only show negligence.[3] For a matter of private concern, a private person need only show publication (i.e. that a false defamatory statement was made).

Defamation of fact required. Pure opinion may be actionable if “it is sufficiently factual to be susceptible of being proved true or false by other evidence.” Pure opinion is generally protected.

Freedom of the Press. The Press enjoys no special First Amendment privilege beyond that afforded an ordinary citizen.

Newsroom search. No 1^st Amendment exception for newsroom search. Search warrant is required.
Disclosure of sources. No federal shield law. There’s no newsman’s privilege. News person must disclose sources.
Closure of criminal trials to the press. Media has constitutionally protected right to attend criminal trials. However, closure may be done if compelling state interests is shown that is narrowly tailored.

Public access to the media.

Fairness doctrine. Government may require broadcasters to provide coverage of both sides of an issue because of limited spectrum. Newspapers, however, may not be compelled to publish what they choose not to print.

Broadcasters need not accept political ads.
Political candidates have no right of equal time in a newspaper to reply to personal attacks.

Regulation of CATV. (intermediate level review). CATV operators may ban indecent programming on channels which are leased to unaffiliated 3^rd parties. May NOT bad indecent programming as to public access channels. Nor may fed gov’t require that they scramble signals when they show sexually explicit pictures.

[1] Actual Malice – knowing statement was false + reckless disregard for the truth.

[2] Public figures – ones that thrust themselves into the limelight.

[3] If this private person plaintiff can also show malice, then he is entitled to punitive damages.

Constitutional Law: Protection of Individual Rights: First Amendment: Regulation of Speech Content: Clear and Present Danger

Clear and Present Danger: Speech is unprotected if:

(1) Speech is directed @ producing imminent unlawful conduct and (2) speech is likely to produce such unlawful conduct.

Freedom of Association. Freedom not to speak = Okay.

NH live free or die case. Petitioner can refrain from promoting a viewpoint she does not accept.
Whether a state university may force students to pay activity fees to support groups that engage in speech which the students do not agree with. State university may force students to pay these fees.

Freedom of Association may come up on exam.

Membership in an organization. Under what conditions may an individual be punished merely for belonging to a particular association. Membership cannot be punished unless the state can show 3 factors:

(1) the group advocates unlawful conduct
(2) the individual is a known and active member of the group.
(3) the individual must have specific intent to further the group’s unlawful objective.

Disclosure of Membership lists. Generally, an organization cannot be required to disclose its membership lists. Court will balance interference of right to associate against government interest in regulation. Disclosure is not required unless government could make membership of that group illegal.

Loyalty Oaths. Generally, a loyalty oath as a precondition to public employment is invalid. However, only 2 loyalty oaths which you may be required to swear to:

(1) support or uphold the constitution
(2) oppose the overthrow of the government.

Constitutional Law: Protection of Individual Rights: First Amendment: Procedural Issues and Methods

First Amendment: Procedural Issues and Methods

First try to make a facial attack. Claim that the law is overbroad or vague or is a prior restraint or an official has unfettered discretion.

Overbreadth: Overbroad statute is one which punishes both protected and unprotected speech. Be skeptical of words like “all” or “any”

Vagueness: law will be void for vagueness if it is so unclearly defined that persons of ordinary intelligence must guess at its meaning. A statute that prohibits “offensive language and opprobrious words” is vague.

Prior Restraint: (censorship, licensing, injunction) government restriction on free speech in advance of publication is unconstitutional.

Except for national security reasons; and some obscene books and films.

Unfettered discretion: a licensing scheme where licensing official has “unfettered discretion” to confer or deny the permit.

Next look at the speech which is being regulated. Look at an ordinance and ask: Is the speech which is being regulated content specific, or content neutral. I.e. is the law regulating the message or the conduct?

Track 1 – Content Specific
Track 2 – Content Neutral.

Track 1. Content Specific. If content specific speech is being regulated, is it protected? Or unprotected? If protected, apply strict scrutiny and the law will be presumptively invalid. If unprotected speech, there are areas where strict scrutiny will not apply.

Clear and Present Danger
Defamation
Obscenity
Child Porn
Fighting words
Fraudulent Commercial speech.

Track 2. If statement is regulating conduct (i.e. one that’s content neutral but regulating time, place, and manner of speech). Apply a 3-part test similar to intermediate scrutiny. The government regulation must:

(1) further a significant government interest
(2)Be narrowly tailored (no more restrictive than necessary)
(3)Leave open alternative channels of communication

Constitutional Law: Protection of Individual Rights: First Amendment: Freedom of Religion

First Amendment: Freedom of Religion

Establishment Clause: Government may not pass laws which prefer or aid one religion over another.

Lemon Test. In order for government regulation to be valid, it must pass a three part test (SEX test)

(1) Primary purpose must be SECULAR and
(2) Primary EFFECT must neither advance, nor inhibit religion and
(3) Law must not foster EXCESSIVE government entanglement.

General Principles:

Government sponsored religious activity in public schools are unconstitutional:

Required non-denominational prayer
Daily bible reading
Moment of silent voluntary prayer
Student led prayer at football games and other school sponsored events.

Government aid to religious schools for construction grants and salary supplements – unconstitutional at elementary and secondary level. Okay to universities.

Government aid to parochial schools which cannot be used for religious purposes = constitutional and must be made available to public schools on the same terms.

Government aid in form of health tests
Bussing of children to parochial schools
Loan of textbooks
Local school district may provide government funds to religious schools for computers.

Religious Ceremonies and Displays:

Opening prayer: A state legislature may allow an opening prayer led by a state paid chaplain. Bust a state court judge may not have an opening prayer.
Religious displays: Religious displays, which, taken as a whole, celebrate the holiday season will likely be upheld.

TEST: Whether a reasonable observer would believe that government was endorsing a religious message. Look at the context in which the religious symbol is displayed.

Free Exercise Clause: Religious beliefs are absolutely protected. However, conduct in furtherance of those beliefs may be regulated.

A government regulation which burdens free exercise rights may not be religiously motivated.

Purposeful interference vs. Incidental burden.

Decide if there is purposeful interference. If there is apply strict scrutiny and law will be presumptively invalid.

If law is generally applicable law which merely creates an incidental burden on an individual’s free exercise rights, the you DO NOT apply strict scrutiny. Use a balancing test similar to rational basis review and the law is generally upheld.

Constitutional Law: Protection of Individual Rights: Equal Protection: Gender

Equal Protection: Gender: Subject to intermediate scrutiny. Generally, purposeful, intentional discrimination is required. Discriminatory impact/effect alone is not enough to trigger intermediate scrutiny.

EX: MA law giving hiring preferences to veterans for civil service jobs. 98% of veterans were male. While there was discriminatory effect, there was no discriminatory purpose. Intermediate scrutiny not met. The law was upheld using RBR.

EX: City ordinances that provide for height and weight requirements for police officers are okay.

Discriminatory use of peremptory challenges based on gender denies equal protection.

Sexual stereotypes: Law applying archaic sexual stereotypes will be constitutional.

EX: women only admission police at nursing college = struck down because it reinforces a stereotype.
EX: laws requiring only men to pay alimony = unconstitutional.

Constitutional Law: Protection of Individual Rights: Equal Protection: Illegitmacy(non-marital children)

Equal Protection: Illegitimacy (non-marital children). Subject to intermediate scrutiny. Any law benefiting legitimate children and one that prejudices illegitimate children is likely to be unconstitutional.

EX: law which prevents illegitimate children from inheriting from their father if their father dies intestate – struck down.

EX: state law allowing illegitimate children to inherit by intestate succession only if the court made finding of paternity during father’s lifetime = upheld as a scheme that furthered orderly and just distribution as death.

State cannot totally ban an illegitimate child from having a chance to inherit.

Constitutional Law: Protection of Individual Rights: Equal Protection: Alienage Classifications

Equal Protection: Alienage Classifications – suspect class, strict scrutiny used. Laws that discriminates against non-citizens.

Federal discrimination against aliens: Strict scrutiny does not apply because Congress has plenary power over aliens, so Congressional laws are subject to RBR.

State discrimination against aliens: subject to strict scrutiny.

EXCEPTION: However, state laws are subject to RBR when they are alienage classifications that concern self government and the democratic process. The state may discriminate against aliens in this way with respect to voting, serving on a jury, being a police officer, teacher, or probation officer.

U.S. Citizenship is not required for bar admission.

Constitutional Law: Protection of Individual Rights: Equal Protection: Racial Classifications

Equal Protection: Racial Classifications- generally, purposeful, intentional discrimination must be shown in order to trigger strict scrutiny. Discriminatory impact alone is not enough.

Wash v. Davis – police qualifying test. Black applicants were 4x more likely than white applicants to fail. There was a discriminatory effect, but no purposeful discrimination.

Segregation: De Jure – intentional. Racial segregation for it to be unconstitutional, all public areas. But where De facto (no discriminatory purpose) segregation, equal protection is not violated.

Bussing: may be used to achieve racial desegregation. Racial quotas may be used to bus children, but if it appears on MBE, look for fact that says, “bussing must be used as a temporary measure.”

Benign/compensatory discrimination: (employment, college admissions, voting rights, quota systems, promotion preferences) a.k.a. AFFIRMATIVE ACTION.

Rule: Race based affirmative action plans are subject to strict scrutiny.

If you are dealing with a state entity using affirmative action = strict scrutiny.

Quotas: virtually all race-based set-asides/quotas will be held unconstitutional to remedy past discrimination.

They are not necessary to achieve a compelling government interest.
Numerical goals are favored.
Clear proof of past discrimination in that particular institution.

Educational institutions may use race, as 1 factor, among many others, in admissions decisions to help minorities.

Colleges may not assign points or set aside slots just for minority applicants.

Seniority systems may not be disrupted for affirmative action – usual rule is last hired, first fired.

Constitutional Law: Protection of Individual Rights: Equal Protection: Levels of Review

Strict Scrutiny

To determine if class is suspect:

Look to see if there are unalterable characteristics AND
A history of purposely unequal treatment

Intermediate scrutiny

Note that it also applies to regulation of cable television.
To be substantially tailored, there must be an exceedingly persuasive justification.

Rational Basis Review

Burden on plaintiff, NOT government.

Equal Protection MBE Analysis: Where equal protection will be the right answer and where it will not be the right answer.

Hypo: State passes law which discriminates against you on the basis of race

Strict scrutiny will apply and the state will probably lose.
If the subject matter of the question is strict scrutiny, pick the equal protection answer. Under strict scrutiny, a law is presumptively invalid.

Hypo: State passes law that all busses must be equipped with seatbelts. You own a bus company in this state and are being treated differently than other individuals. Applies only to busses, not other vehicles (rational basis review). This comes under a social/economic welfare regulation.

(1) First figure out what the classification is; how is the government drawing a distinction among people?

(2) Determine what level of scrutiny should be applied.

(3) Ascertain whether the law meets this level of scrutiny.

Constitutional Law: Protection of Individual Rights: Equal Protection: Levels of Review

Levels of Review under Equal Protection

Rational Basis Review	Intermediate Scrutiny	Strict Scrutiny
Burden on challenger (P)	Burden on government	Burden on government
to show that law is not rationally related to a legitimate government purpose.	to show that law is substantially related to an important government purpose	to show that law is necessary to a compelling government purpose.
Housing Mentally retarded people Public education Unrelated people living together Bankruptcy Economic/social welfare measures Poverty Age Wealth Necessities	Children of illegals[1] Illegitimacy Gender	Suspect Class --Race --Alienage --National Origin Fundamental Rights --Contraception --Abortion --Marriage --Procreation --Private Education --Family Relations --Sexual orientation. Protected 1^st A. rights
Deferential to government	Government’s goal must be important. The court will look at actual purpose. --Means must be narrowly tailored to achieve outcome.	Actual purpose must be vital, critical, compelling --means must be necessary to achieve outcome --court must be persuaded that no less restrictive alternative is available[2] --Government usually loses when it tries to regulate in this sphere

[1] Children of illegal immigrants. Falls under intermediate scrutiny. They have a narrow, limited right to free public education through 12^th grade.

[2] No less restrictive means available. The government must show that the there is no other way it can accomplish this purpose.

Constitutional Law: Protection of Individual Rights: Substantive Due Process vs Equal Protection

Equal Protection

Equal Protection Analysis

Substantive Due Process Analysis

Apply when law effects some persons

-- situations where persons similarly situated are being treated differently.

-- Applicable to the states through the 14^th A.

-- Applicable to the federal government through the 5^th Amendment Due Process Clause.

Apply where a law effects all persons

Equal protection cl. Of 14^th Amendment applies only to state and local government.

Equal protection is applied to the federal government through the 5^th amendment’s due process clause.

Constitutional Law: Protection of Individual Rights: Substantive Due Process: Fundamental Rights: Right to Vote

Right to Vote – 1 person, 1 vote for federal, state, and local elections.

EXECEPTIONS: for special limited purpose districts, voting can be limited only to landowners and votes can be apportioned according to percentage of land owned (water board).

Property interest restricts are generally unconstitutional.

Reapportionment: geographical boundaries may not be defined so as to deny medical equality.

Gerrymandering: unconstitutional; deliberately distorting political district for partisan purposes.

Ballot access: Restriction on becoming an independent candidate upheld after strict scrutiny applied.

California blanked primary law allowing voters to cast ballots across party lines – violates parties right to choose own leaders; struck down under strict scrutiny.

Right to be a candidate: Not fundamental (RBR applies).

Age, payment of reasonable filing fee, reasonable residency requirements all come under rational basis.

On ESSAY:

The right to vote is a 15^th Amendment issue.

Representation, apportionment, discrimination in voting come under the 14^th Amendment equal protection analysis.
Durational Residency Requirements: Substantive Due Process 14^th
Amendment analysis.

Constitutional Law: Protection of Individual Rights: Substantive Due Process: Fundamental Rights: Right to Travel

Right to Travel – apply strict scrutiny.

Durational Residency Requirements:

Unconstitutional for receiving

(1) medical services;

(2) library services.

Constitutional for

(1) reduced tuition at state universities

(2) obtaining divorce proceedings

(3) 50 days is valid requirement for voting in state elections.

Foreign travel – governed by rational basis review. Reasonable restrictions on passport use OK for national security reasons.

Constitutional Law: Protection of Individual Rights: Substantive Due Process: Fundamental Rights: Right to Privacy

Right to Privacy: (CAMPERS)

Contraception: right to use and purchase contraceptives for any married or unmarried person.

Abortion: Prior to viability, states may not prohibit abortion, but may regulate so long as there’s no undue burden.{undue burden test used} Right of woman to have abortion without interference from state before viability. However, normal strict scrutiny is not used. Interests may be in conflict: (1) protecting woman’s health vs. (2) protecting fetus.

Government may not place an undue burden on woman’s right to abortion.

Requirement for 24-hour waiting period before an abortion is not an undue burden.

Requirement that abortions be performed by licensed physicians is not an undue burden.

Prohibition of partial-birth abortions is not an undue burden.

Requiring informed consent of woman seeking abortions is not an undue burden.

Detailed record keeping at abortion facility is not an undue burden.

Consent of 1 parent before unemancipated woman under 18 obtains an abortion is not an undue burden.

Under Roe, government action to abort fetus was broken down to trimesters.

1^st – government may not prohibit abortion
2^nd – government may not prohibit abortion by may regulate only where necessary to protect fetus health.
3^rd – (After viability) government may prohibit abortion unless abortion is necessary to protect the life and health of the mother.

Abortion funding. There is no right to abortion funding for indigents; no duty to provide abortions in public hospitals.

Consent. Spousal consent is not required. Consent of both parents is not required. Parental consent of 1 parent may be required before unemancipated minor acquires abortion, but state must afford judicial bypass based on minor’s best interest or sufficient maturity.

Marriage: right to marry and any limits on that right are fundamental. There may be no bans on interracial marriage.

Procreation: Right to be free from excessive government intrusion dealing with procreation.

Private Education: Parents have right to privately educate their children

Family Relations: right for nuclear family to remain together. Does not apply to unrelated people living together.

Government may interfere with parenting decisions only if it meets strict scrutiny.

It’s a violation of due process for a court to order grandparent visitation after parent protest.

Right to custody of one’s children.

State may create the irrebuttable presumption that a married woman’s husband is the father of her child.

Sexual orientation: right of people to engage in private consensual homosexual activity.

-- Also note the fundamental right to refuse medical treatment: competent adults have the right to refuse medical treatment, even life-saving medical treatment. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended. State may prevent family members from terminating treatment for another.

Constitutional Law: Protection of Individual Rights: Substantive Due Process

Substantive Due Process – deals with economic regulations and fundamental rights. Whether the government has adequate reason for taking away a person’s life, liberty or property interest.

Economic regulation: Constitution provides only minimal protection for economic liberties. The government usually wins in these disputes. Under SDP, economic regulations are subject to rational basis review. To be upheld, the economic regulation need only be reasonably related to a legitimate government interest--- any type of economic regulation will have a legitimate purpose.

Rational Basis Review used and government wins when:

Due Process challenge to minimum wage law
Due Process challenge to practice profession
Due Process challenge to consumer protection law

Fundamental Rights: Right to privacy, travel, and vote are fundamental rights protected under substantive due process. Strict scrutiny is used. The regulation must be necessary to achieve a compelling government interest. (CAMPERS)

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