April 1, 2012

Constitutional Law Bar Exam Outline for Law Students


4 Main Areas:
1.      Federal Judicial Authority (5)
a.       Organization of Federal Court System
b.      Federal Judicial Review
2.      Separation of Powers (7)
a.       Federal Legislative Power
b.      Federal Executive Power
c.       Inter-Branch Checks and Balances
3.      Federalism (federal limitations on states) (6)
a.       Intergovernmental Immunities
b.      Dormant Commerce Clause
c.   State Taxation
d.      Supremacy Clause
4.      Protection of Individual Rights
a.       14th Amendment issues (7)
(1)  State Action
(2)  Due Process
(3)  Equal Protection
b.      1st Amendment (8)
(1)  Freedom of Religion
(2)  Content Specific Regulation

General Essay Format usually includes:
1.      Standing (15%)
2.      A 1st Amendment issue (45%)
3.      A 14th Amendment issue
a.       State Action (10%)
b.      Due Process (15%)
c.       Equal Protection (15%)

ConLaw Approach:
1.   Underline who is passing the law.
2.      Determine subject matter of question.
3.   Match appropriate power of regulation to that subject matter.


I.       Organization of Federal Courts
A.    Article 3 vests judicial power in the Supreme Court and such inferior courts as congress may establish.


1.      Congress has no power to divide Supreme Court and its jurisdiction is limited to “cases and controversy” which requires a dispute between parties with adverse interests.
2.      The Supreme Court will not give advisory opinions.
B.     Article 1 Courts include:
1.      They include:
a.       Legislative courts
b.      Military courts
c.       DC courts
d.      Bankruptcy courts
2.      Judges in these court have administrative functions and no lifetime tenure.
C.     Article 3 court decisions can be reviewed.
D.    Congress has plenary power (exclusive / absolute power) to establish the lower federal courts.  Congress can confer and remove the JX from the lower federal courts.
E.     Types of Supreme Court JX:
1.      Original JX - extends to cases involving ambassador, public minister, a counsel, or any case where a state is a party.  In these situations Congress may neither enlarge nor restrict the original jurisdiction.
2.      Appellate JX - Congress can broadly regulate jurisdiction of the appellate jurisdiction of the Supreme Court.  The only limitation is that Congress cannot legislate to preclude review of an entire class of cases.
F.      Types of Supreme Court Review:
1.      Appeal - very few go by appeal.  Decisions of three judge federal courts will go by appeal and usually involves injunctions.
2.      Certiorai - most go by cert.  This includes state court decision and lower federal court decisions and all decision from US Courts of Appeal.
G.    Lower Federal courts have concurrent JX with Supreme Court except that the Supreme Courts has exclusive jx to hear any case between any two states.


II.  Judicial Review
A.    Reasons why not to hear a case:
1.      Case and controversy requirement
2.      Timing of issues
3.      Consequences of adjudication
4.      Not necessary to the constitutional issue

B.     Doctrines of Judicial Review
1.      Adequate State Grounds - only applies to US Supreme Court (not the entire judiciary).  Requires a final judgment from the highest court in the state the case may reach. 
a.       Where a state court decision establishes both an adequate and independent state ground upon which the case was decided, the Supreme Court will not hear the case even if the state court has erroneously decided a federal issue.


b.      Caveat - state court must make it clear that the state ground was independent of the federal constitution, otherwise the Supreme Court will assume the federal constitution and will hear the case.  Cannot piggyback state violation onto the federal violation.
c.       Procedural Strand - in a criminal case a D who fails to comply with state procedural rules and loses at highest state level will also fail to be heard by US Supreme Court.
d.      If state finds statute unconstitutional based on state constitution the US Supreme Court will not hear the case based on adequate state grounds

2.      Standing - anytime you have a P in federal court you MUST discuss standing first. 
a.       P needs to establish a personal stake in the outcome.  That is done by satisfying constitutional standards including:
(1)  Injury in Fact (liberal standard)
(2)  Redressability - relief sought must eliminate the harm alleged (strict standard).
b.   May also need to discuss prudential limitations which include:
(1)  Cases involving 3rd party standing.  General rule is 3rd party standing is not allowed unless you can show close relationship / nexus between P and 3rd party AND a special need to adjudicate. (i.e. doctor-patient; union-workers; school-minor students)
(2)  Cases with abstract or generalized agreements.  Often comes up in cases of citizen standing which is usually denied.
c.       Taxpayer Standing
(1)  State Taxpayer - has standing to challenge measurable expenditures (i.e. busing children to parochial schools.  No standing if the measure is other than financial (i.e. bible reading in public schools).
(2)  Federal Taxpayer - they have no standing b/c their interest is too remote.  Standing is only available to:
(a)  make an Establishment Clause challenge, or
(b)  challenge an expenditure enacted under the Taxing and Spending Power, in violation of a limitation on the Taxing and Spending Power.

3.      Ripeness - deals with timeliness of a case.  In order to be ripe there must be a genuine and immediate threat of harm.
a.       The only issue is to present court’s side which is future events will sharpen the issues or resolve them.  That is balanced against P saying he will suffer serious hardship if immediate review is denied.

4.      Mootness - an actual controversy must exist at all stages of review.  Otherwise the case will be dismissed as moot (the flipside of ripeness).
a.       Exception - where injury is capable of repetition yet evading review.



5.      Political Questions - a political question is a non-justiciable issue committed to another branch of government.  Policy is that there are certain issues not enforceable by the federal judiciary.  Examples include:
a.       Guarantee Clause (4th Amendment) - every state is guaranteed a republican form of government. The court can compel a state to reapportionment of voting districts.  This is the most common area tested under political question.
b.      Congress can determine length of time states have to ratify an amendment.
c.       Organizing, arming or disciplining the military is a political question.
d.      Age, residency, and citizenship requirements for the Congress are political questions and Congress has the right to determine the qualifications.
e.       Foreign Affairs are the responsibility of the President and Congress.

6.      11th Amendment - a state cannot be sued in federal court by its own citizens, citizens of another state, or citizens of a foreign country without consent.  The 11th amendment does not bar suits against municipalities, counties, school board, or other local agencies.  The 11th is generally a wrong because the exceptions swallow the rule.
a.       Exceptions:
(1)  Ex Parte Young - state official can be sued in federal court for federal law violations
(2)  Congress can strip the states of immunity when civil rights are involved.

7.      Abstention - A federal court will abstain where an unsettled issue of state law exists b/c the state court interpretation of its statute may preclude the need for federal review.  (aka Pullman Abstention Doctrine)
a.       Procedurally the federal court retains JX of the federal claim in the event the issue remains unresolved.
b.      Younger Abstention Doctrine - restricts federal court review of pending state criminal proceedings.  The effect of this is to prevent a party from going to federal court as a civil P and seeking declaratory relief and force the party to be a criminal D in state court.
(1)  also applies to criminally related civil proceedings (i.e. welfare fraud)
(2)  also applies to civil contempt proceedings
c.       Procedurally the party is sent to state court for all purposes.
d.      *Note: Adequate state grounds apply to final judgment in state court (at end) whereas Abstention is at the beginning of proceedings while those proceedings  are still pending.


III. Separation of Powers
A.    Legislative Powers (Enumerated Powers) - federal government has only the power conferred upon it by the Constitution.  Powers not delegated to the federal government are retained by the state via the 10th Amendment. (10th Amendment - includes police power.  Deals with health, safety, welfare or aesthetic interest.  If a law deals with these areas it is probably constitutional b/c it is r/b or furthers legitimate interest.)


1.      Article 1, Section 8 - area of enumerated powers (commerce, war, taxing and spending, copyright, patent, etc.).  These powers are magnified by the necessary and proper clause which allows Congress to use any r/b means to execute the enumerated powers.

2.      Types of Enumerated Powers:
a.       Commerce Power - permits Congress to regulate both domestic and foreign commerce.  It can regulate items or people.  Two distinct doctrines:
(1)  Affectation Doctrine - any activity whcih in the aggregate has a substantial economic affect on the stream of interstate commerce may be regulated by the federal commerce power.
(a)  Key is that is must substantially affect interstate commerce.  The link between the thing being regulated and the effect must not be tenuous.
(b)  Congress can regulate for clearly noncommercial reasons (i.e. social welfare, health regulations, or civil rights).
(2)  Cumulative Impact Doctrine - even an entirely intrastate activity can affect interstate commerce.
(3) National League of Cities - Congress under Commerce Power attempted to regulate hours/wages of state employees.  The state defended on grounds of 10th Amendment that Congress could not regulated “traditional government powers.”  It’s one of the few successful challenges to Commerce.  However, the case was overruled by Garcia so the 10th Amendment is now considered to be a weak challenge to the Commerce Power and is therefore usually a weak answer (i.e. traditional government functions, state sovereignty, reserved powers and 10th Amendment are probably wrong answers).
(4)  Generally applicable laws are permissible under the Commerce Power.

b.      Taxing and Spending Power - Congress can tax and spend for the general welfare.
(1)  General Welfare Clause - it is not an independent source of power and cannot stand alone.  If properly used it can be a limitation on the taxing and spending power.  It is usually a wrong answer on the MBE.
(2)  Spending Power - Congress can attach strings to grants of federal money as long as they are reasonable.  Basically allows Congress to regulate indirectly where it cannot directly.
(3)  Taxing - if dominant intent is fiscal then tax is valid.

c.       Delegation of Federal Legislative Power - Congress can delegate to executive branch.  The only limitation is that it cannot delegate a legislative veto, in other words once the power is delegated Congress cannot come back and retract the power.

B.     Federal Executive Power
1.      Domestic Policy - president has obligation to faithfully execute the laws.


2.      Appointment and Removal Powers - President can appoint purely executive officers (ambassadors, secretaries, justices) but Senate confirmation is required.
a.       He can appoint members of agencies or commissions with no Senate approval.
b.      Congress cannot appoint federal officials or inferior officers but Congress can delegate such appointment either to judiciary or executive branch or to the President.
3.      Removal Powers - President may remove any purely executive official except a federal judge or fixed term administrative official w/o showing of good cause.  Congress has no removal power.
4.      Legislative Power - President has none except that which is delegated by Congress.  Closest thing is the veto power which can be overidden by 2/3 vote of each house.
5.      Pardon Power - extends only to offenses against the United States.  Only applies to federal crimes and not state crimes.
6.      Executive Privilege - absolute to military or diplomatic secrets but otherwise merely qualified privilege.
7.      Commander-in-Chief - President can deploy military troops in occupied areas before declaration of war.  This is balanced by Congressional War Powers.  The President has broad emergency powers as Commander-in-Chief.
8.      Foreign Powers
a.       Foreign Affairs - President’s power is shared with Congress, it is NOT plenary.  There are three sources of the President’s power:
(1)  Commander-in-Chief
(2)  Treaty Power
(a)  a treaty is considered supreme law of the land
(b)  if conflicts with federal statute then last in time controls
(c)  Executive Agreements - day-to-day agreements where President enters into deals with foreign governments (Executive Orders are for domestic policies and the President has broad power to issue them)
(d) General Hierarchy of Laws:
i.        Constitution
ii.      Act of Congress / Treaty (last in time wins)
iii.    Executive Agreement / Order
iv.    State Law
(3)  Congressional Authorization - delegation by Congress of its commerce power over to the President so he can enter in executive agreements.

III. Federalism
A.    Intergovernmental Immunities -
1.      How states regulate the federal government?
a.       As a general rule the federal government is immune from state taxation.  Federal contractors can be taxed so long as the burden of the tax does not fall on the federal government


b.      State may levy taxes on federal owned buildings and income taxes from federal employees.
c.       Federal Property Power - Article 4, Section 3 - Congress has power to dispose of and make all needful regulations respecting the territory or other property of the United States.
(1)  It applies to four areas:
(a)  wild animals on federal land
(b)  federal buildings or enclaves
(c)  military ships and airplanes
(d) Indian reservations
2.      How federal government regulates the state?
a.       States are not immune from federal regulation.  Federal government may sue state or its agencies without consent.
b.      Federal government may tax proprietary state businesses (businesses which could be operated by a private citizen).
c.       Federal government may NOT tax unique or essential state government functions.
B.     Dormant Commerce Power - negatively framed doctrine where if federal government has not established a uniform regulatory scheme the states can regulate. 
1.      Two requirements:
a.       Not discriminate - may not favor local businesses as a market regulator.  State can only be a market participant. Regulation could have been achieved by taxes.
(1)  Exception - where state uses its own taxpayer money to create the market the state may regulate and favor local businesses.
b.      Not unduly burden interstate commerce - court balances the state interest in regulation against the burden on interstate commerce and there must be no less restrictive alternatives available.
(1)  state laws not considered undue burdens:
(a)  state regulation of highways
(b)  health and safety
(c)  regulations preventing fraud or usery
(d) regulations dealing with conservation of natural resources
2.      Privileges and Immunities Clause (P&I) - prevents discrimination by one state against citizens or residents of another state regarding basic economic rights or liberties.
a.       Violations found where commercial licenses are involved but not where recreational resources are involved.
b.      Applicants must be allowed to sit for the bar but state can create other obstacles.
c.       P&I is generally wrong answer on MBE.
B.     State Taxation of Interstate Commerce
1.      To be permissible the state tax:
a.       Must be reasonable
b.      Must be nondiscriminatory
2.      There has to be a substantial nexus between the state interest and the activity being taxed. (This is used to satisfy due process clause).


3.      General Principles:
a.       Goods in Stream of Interstate Commerce May Not Be Taxed (purpose is to avoid multiple taxes which may be burdensome)
(1)  Exception - tax could be at beginning, a break, or at end of the commerce; not by every state along the route traveled.
b.      Instrumentalities - cars, planes, boats may be taxed as long as tax is fairly apportioned according to time or extent of taxpayer use.
c.       Direct and Indirect Taxes
(1)  Direct tax must be apportioned.
(2)  Indirect tax must be geographically uniform.

C.     Supremacy Clause - even the most trivial federal law predominates over the most important state law.
1.      Preemption Doctrine - where Congress intends to occupy a given field, any conflicting state law will be invalid.
2.      Super-Session Doctrine - a federal law will supercede any state law which is in direct conflict.  State law may give greater protection than federal law but not require lesser protection.


IV.  Protection of Individual Rights
A.    State Action
1.      Defined as a threshold requirement of government conduct which must be satisfied before private discrimination can be restricted under the 14th or 15th Amendments.
2.      Without state action private discrimination is not actionable.
3.      Be aware that if 13th Amendment is the answer, it does not require state action.  The 13th punishes acts of purely private racial discrimination.
4.      To constitute state action the deprivation must be caused by the exercise of a right created by the state.
5.      Where state action is found:
a.       Public Function - where a private entity is performing activities traditionally and exclusively carried on by the state (i.e. company town).
(1)  No public function for privately owned utility company under heavy state regulation.
(2)  No public function for nursing homes.
b.      Significant State Involvement
(1)  Public Schools
(2)  Symbiotic Relationship (i.e. parking garage with restaurant)
(3)  Private Schools Can Be Punished If It Uses State Supplied Textbooks
6.      Where state action not found:
a.       Granting a Liquor License - licensing alone is not enough to create state action.
7.      Encouragement Doctrine - state action where government encourages or facilitates private discrimination (i.e. state court enforcing restrictive covenants).



B. Bill of Rights
1.      First ten amendments apply to federal government but are made applicable to state by the 14th Amendment (doctrine of selective incorporation).
2.      Rights which don’t apply to states:
a.       Right to bear arms (2nd)
b.      Right to grand jury in criminal cases (5th)
c.       Right to jury trial in civil cases (7th)
d.      Right against excessive bailment (8th)
3.      P&I (14th) usually wrong answer on MBE.  Rights of national citizenship are protected under P&I.

C.    Generally Wrong MBE Answers
1.      Contracts Clause - prevents the states from impairing the obligation of public and private Ks unless a significant public need exists.  Commerce Clause in not applicable to the federal government.
a.       Only viable answer is situation where obligation of bondholder is threatened by state action.
2.      Ex Post Facto Laws - they make criminal conduct that was not a crime when committed or increases the punishment for a crime or decreases the amount of evidence needed to convict.  It is a criminal concept and is not applicable in civil cases.  Never right on MBE.
3.      Bill of Attainder - legislative punishment of a named group or individual without a trial.  Never tested on MBE.

D.    Due Process (MBE won’t say substantive or procedural)
1.      Procedural Due Process - notice and hearing are available whenever there is serious deprivation of any life, liberty or property interest.  Interest can be a right or a privilege.
a.       Court will determine whether notice and hearing are required by balancing severity of harm to individual if procedure not granted against government interest in administrative efficiency.
b.      Liberty Interests (if deprivation then notice and hearing available)
(1)  Right to K
(2)  Right to engage in gainful employment
(3)  Right of natural parents in care and custody of their children
(4)  Right to refuse unwanted medical procedures
c.       Property Entitlements / Interests (if deprivation then notice and hearing available)
(1)  Welfare benefits
(2)  Disability benefits
(3)  Right to public education (elementary and secondary only)
(4)  Garnishment of wages


(5)  Right to continued public employment where termination can only be for cause
d.      Takings - private property cannot be taken for public use without just compensation.
(1)  Three ways to take property:
(a)  imminent domain (with just compensation paid)
(b)  inverse condemnation (with just compensation paid)
(c)  police power by passing a zoning ordinance (NO compensation paid b/c state argues this is part of its regulatory power)
i.        Land use
ii.      Zoning regulations
iii.    Environmental preservation
iv.    Landmark preservation
(2)  A taking can involve:
(a)  confiscation (taking beach front property)
(b)  physical occupation (required cable TV wire in hallway will trigger just compensation)
(c)  regulation which denies owner all reasonable economic viable use of land

2.      Substantive Due Process
a.       Two parts:
(1)  Economic Regulation - subject only to rational basis standard of review
(2)  Fundamental Rights - subject to strict scrutiny (necessary to achieve compelling interest)

(a)  Right to Privacy - CAMPER
i.        “C”- contraception - Right to use and purchase is fundamental among both married and unmarried persons.
ii.      “A”- abortion - States may not prohibit abortion but may regulate it as long as they do not create an undue burden on the ability to obtain an abortion.                        
(a)  Consent of one parent, guardian, or judge is constitutional before an un-emancipated minor can get an abortion.  Judicial bypass option must be made available in any state which requires consent. 
(b)  No right to public funding.
iii.    “M”- marriage - Right to marry and any restrictions on it are fundamental.
iv.    “P” - procreation - Right to procreation is closely related to contraception.  Right to be free from excessive government interference with decisions related to contraception.  Strict scrutiny applies.


v.      “E” - education - No fundamental right to public education but a complete deprivation would probably be unconstitutional.  Here there is a right for parents to privately educate children.
vi.    “R” - relations - Right to keep nuclear family together - related people can live together.  No right for unrelated persons to live together.  No right for homosexuals to engage in sodomy in privacy of their own home.

(b)  Right to Travel - right to move freely between states.
i.        Durational Residency Requirements - unconstitutional for receiving medical , welfare, or library services.  However, upheld for divorce proceedings, state university discounts, and voting in state elections.
ii.      Foreign Travel - reasonable restrictions on passport use are upheld for national security reasons.

(c)  Rights to Vote (15th Amendment)
i.        One person one vote rule.  Except for special limited purpose districts such as a water storage district where votes can be apportioned to land owners and the portion of land owned.
ii.      Any limitation is generally unconstitutional.
iii.    Reapportionment of Voting District and Discrimination
Use 14th Amendment Equal Protection Action
(a)  Geographic boundaries cannot be defined so as to deny numerical equality among voters.
(b)  Gerrymandering - apportionment schemes deliberately distorts districts for partisan political purposes is unconstitutional.
iv.  Ballot Access - any type of ballot access restriction which is reasonable should be upheld.  Key is the deterrence factor.
v.      Minimal age OK for candidate qualifications.

3.      Equal Protection
a.       Use where a law affects some persons.  Persons similarly situated are treated differently.  (Cf. Substantive Due Process used where law affects ALL persons).
b.      14th Amendment equal protection applies to Federal Government under due process government of the 5th Amendment.
c.       Three levels of Judicial Scrutiny
(1)  Strict Scrutiny - burden is on state to show law is necessary to a compelling interest (no less restrictive means available).
(a)  Protected 1st Amendment Rights
(b)  Suspect Classes (RAN - race, alienage, national origin)
i.        To be suspect the class must be determined by characteristics which are unalterable and a history of purposeful unequal treatment.
(c)  Fundamental Rights (privacy, travel, and voting)
(2)  Intermediate Scrutiny - burden on state to show law is substantially related to an important interest.


(a)  Gender
(b)  Illegitmacy
(3)  Rational Basis - burden on P to show law not rationally related to any legitimate interest.
(a)  all areas not already covered
(b)  poverty
(c)  age
(d) mental retardation
(e)  necessities of life
(f)  social and economic welfare measures (aka the kitchen sink)
d.      Equal Protection is usually right answer in strict or intermediate scrutiny cases.
e.       Equal Protection is probably wrong answer if rational basis subject matter.
f.       Racial Classifications
(1)  Purposeful and intentional discrimination must be shown to trigger strict scrutiny.  Discriminatory impact is insufficient.
(2)  Segregation
(a)  de jure - intentional racial segregation is unconstitutional.  Applies to all public areas.
(b)  de facto - no intentional racial segregation is NOT unconstitutional.
(3)  Busing may be used and racial quotas in busing may be used.  However, it is a temporary remedy for past discrimination.
(4)  Benign Racial Classification / Reverse Discrimination / Aff.  Action
(a)  applies to employment, college admissions, hiring quotas, and voting rights
(b)  Race-based affirmative action plans are subject to strict scrutiny.  Specific findings of past discrimination are required for affirmative action quotas.
(c) Most race based quotas are unconstitutional; “goals” are OK but not numerical goals.
g.      Alienage - not always suspect b/c it is dependent on who is passing the law.
(1)  Federal Discrimination only subject to rationale basis b/c federal government has plenary power over aliens.
(2)  State Discrimination subject to strict scrutiny.  Exception is where participation in government is involved.  State can:
(a)  exclude aliens from being teachers
(b)  exclude aliens from being policemen
(c)  exclude aliens from serving on a jury
(3)  Illegal alien children have a right to a free education.
h.      Preemptory Jury Strikes - made on the basis of race violated equal protection and are unconstitutional in both civil and criminal cases.
i.        Illegitimacy - deals with status beyond control of the child.  Any law which benefits legitimate children and prejudices illegitimates will likely be unconstitutional.
j.        Gender Discrimination - purposeful or intentional discrimination is required for there to be a violation.  Discriminatory impact or effect is not enough.


(1)  Benign Action / Affirmative Action w/ Gender - law upheld if means substantially related to important government interest.

V.    First Amendment Guarantees

A.    Freedom of Religion
1.      Basic principal is government neutrality.  Court goes on case-by-case basis.
2.      Establishment Clause - government cannot pass any law which prefers one religion over another.
a.       The Lemon Test - for a government action to be valid and not violate the establishment clause following elements must be satisfied:
(1)  primary purpose secular
(2)  primary effect neither advances nor inhibits religion
(3)  law must not foster excessive government entanglement with religion (hardest to satisfy).
b.      Government Sponsored Religious Activities in School Are Unconstitutional. (Forbidding teaching evolution)
c.       Government Aid to Religious Schools for Construction Grants and Salary Supplements is Unconstitutional in Elementary and Secondary Levels.
d.      Government Aid to Parochial Schools which Cannot be Used for Religious Purposes is Constitutional (usually the aid has to be made to public schools as well). (i.e. health tests, busing, loaning textbooks)
(1)  CANNOT pay for field trip busing.
e.       Taxes:
(1)  Tax Benefits to Parents of Children in Religious Schools is Unconstitutional.
(2)  Property Tax Exemptions for Religious Schools Themselves are Constitutional b/c the Money is Not Being Given for Religious Purpose.
(3)  The Sale of Religious Material May be Taxed.
f.       Opening Day Prayer - its long tradition in state legislature makes it constitutional.  However it is not permissible in state courts.
g.      Religious Displays
(1)  Secular purpose of celebrating a holiday does not create excessive entanglement with religion.
(2)  Key is not to favor one religion over another and that the display is not set up by a religious group.
(3)  If display taken as a whole celebrates the secular holiday season it will likely be upheld.  Look at who put it up, where it was, and what was in it.
3.      Free Exercise
a.       Violation exists where government undertakes to burden persons b/c of their religious beliefs.
b.      A persons’ religious beliefs are absolutely protected but conduct in furtherance o those beliefs may be regulated.


(1)  Balancing the severity of the burden on the individuals free exercise of religion against the government interest in regulating such conduct.
(2)  Uniform day of rest is permissible.
(3)  The reasonableness of one’s beliefs may not be determined by the court.  However, the court may determine the sincerity of the belief.
(4)  Public welfare benefits MAY NOT be conditioned upon surrender of First Amendment rights.
(5)  Jewish soldiers in the military can be required not wear yamikas.
c.       Generally applicable criminal laws will be enforced no matter how much of a burden the law places on a religion.  State has interest in drug and narcotic enforcement.  Laws passed to burden particular religions are unconstitutional.

B.     Procedural Issues and Methodologies / Writing an Essay
1.      Approach
a.       Is the statute content-specific (Track #1 -message) or content-neutral (Track #2 - method)?
b.      Can the statute be facially attacked?
(1)  Overbreadth - an overbroad statute is one that punishes both protected and unprotected speech.
(2)  Vagueness - a law is void for vagueness if it is so unclearly defined that persons of ordinary intelligence must guess at its meaning.
(3)  Prior Restraints - generally in censorship, licensing, permit systems or injunctions.  Government restrictions on free speech in advance of publication are unconstitutional.  However:
(a)  allowed for national security interests
(b)  allowed for obscenities (seizure requires warrant and PC).
(c)  allowed for film censorship where
i.        Film is obscene.
ii.      There is a prompt judicial determination.
iii.    The standards for denial are reasonable and narrowly drawn.
(4)  Unfettered Discretion
c.       If, Track #1 then ask whether the speech being regulated is:
(1)  Protected Speech - apply strict scrutiny (necessary to a compelling interest)
(2)  Unprotected Speech - look at particular area of unprotected speech involved:
(a)  Clear and Present Danger
(b)  Defamation
(c)  Obscenity
(d) Child Pornography
(e)  Fraudulent Commercial Speech
(f)  Fighting Words
d.      If, Track #2 then apply three part test where regulation IS constitutional if all three parts are met:
(1)  regulation serves significant government interest.


(2)  regulation is narrowly tailored.
(3)  regulation leaves open alternative channels of communication.

C.     Freedom of Speech
1.      Clear and Present Danger
a.       Speech may be punished if:
(1)  directed at producing imminent unlawful conduct, and
(2)  is likely to produce such lawful conduct

2.      Defamation
a.       Written or spoken statement of an untruth which injures another.
b.      Malice Standard - plaintiff must show malice for the following:
(1)  Public Officials
(2)  Limited Public Figur - someone who voluntarily injects themselves into the public eye.
(3)  Public Figure - someone like a celebrity or sports star.
c.       Private Plaintiff
(1)  If matter of public concern the plaintiff only needs to show is mere negligence.
(2)  If matter of private concern the plaintiff only needs to show statement was made.

3.      Obscenity
a.       Three part test to determine whether speech is obscene:
(1)  appeal to the purient interest in sex applying contemporary (local) community standards (consider that expert evidence not required and look at how material is marketed)
(2)  depict sexual conduct in patently offensive way (use local standards)
(3)  material lacks serious literary, artistic, political, or scientific value (to a reasonable person)
b.      Offensive Language
(1)  Generally offensive language displayed is not obscene under Miller obscenity test.
(2)  However, offensive language broadcasted over the airwaves can be limited b/c children have unsupervised access to the media.
c.       Private Possession of Obscene Material - is protected in the privacy of one’s own home.  However, distribution can be punished and showing of films can be regulated.  Obscene material can also be restricted in stores.
d.      Zoning Ordinances - may be used to regulate location of adult theaters and bookstores.
e.       21st Amendment - states can regulate establishments which serve liquor.  That ability  translates into the ability to restrict activities in adult oriented establishments which sell liquor.



4.      Child Pornography
a.       Not protected b/c state has power to protect its minor children.
b.      State can make it criminal to possess child pornography in the privacy of one’s own home.

5.      Fraudulent Commercial Speech
a.       Commercial speech is generally protected.  However, commercial speech is not where it involves:
(1)  fraudulent or deceptive advertising
(2)  harmful or illegal products
b.      A blanket prohibition on attorney advertising is unconstitutional.  However, in person solicitation is not protected (lawyers cannot solicit clients for profit)
(1)  Solicitation - court balances right to privacy against right to free speech. Key is determining if the government regulation is the least restrictive option.
b.      Drug sale prices can be advertised.
c.       Utility companies can include promotional advertising in the bills they send out.

6.      Fighting Words
a.       Insults likely to cause an ordinary person to commit an act of violence.
b.      Fighting word statutes must be viewpoint neutral.

7.      Symbolic Speech - is speech in which the medium itself is the message.
a.       For symbolic speech regulations to be valid they must:
(1)  further government interest
(2)  be narrowly tailored
(3)  leave open alternative channels.
b.      Wearing a black armband in school is protected.
c.       Imposing a peace sign on the American flag is protected.
d.      Flag burning is protected.


8.       Time, Place and Manner Regulations
a.       Three different forums:
(1)  Traditional Public Forum - streets, parks, sidewalks, government office building, or airport terminals.
(a)  For regulation to be constitutional it must be:
i.        Content-neutral
ii.      Further significant government interest
iii.    Narrowly tailored
iv.    Alternatives left over.
(2)  Limited Public Forum - libraries, schools, or state fairgrounds.
(a)  same test but slightly more restriction is permissible
(3)  Nonpublic Forum - inside of courthouse, jails, or privately owned billboard.


(a)  These are places traditionally not designated for public communication.
(b)  the government regulation may prohibit all speech in these areas as long as there is a rational basis for the regulation.
b.      Key is to determine whether the property you are dealing with is public or private.
(1)  For privately owned shopping centers they may not be made available for free speech.  The center may prohibit picketing.  NO right for free speech purposes on private property.

9.      Licensing Statutes (requirements for free speech activities)
a.       Required to be:
(1)  content-neutral
(2)  narrowly drawn
(3)  no unfettered discretion in the licensing official
b.      Licensing statutes can always be attacked facially as discussed above.
c.       Three possible scenarios:
(1)  Licensing statute valid on face but unconstitutional as applied.
(a)  If you see this then speaker must apply for permit and must seek prompt judicial relief before speaking.
(2)  Licensing statute void on face.
(a)  If you see this the speaker may speak and need not apply for a permit and she may successfully defend against any subsequent prosecutions.
(3)  Licensing statute enjoins the speaker (an injunction has been issued).
(a)  If you see this the speaker must obey the injunction (even if facially valid) and appeal from the injunction.  Invalidity of the injunction is what must be established on appeal.  Subsequent prosecution is permitted.

D.    Freedom of Association
1.      Asks where can membership in an association be grounds for punishing an individual?
2.      Membership Cannot Be Punished Unless:
a.   State shows organization advocates unlawful conduct.
d.      State shows individual is knowing and active member of such group.
e.       Individual has specific intent to further the group’s unlawful objectives.
3.      Disclosure Requirements for Membership Lists - court balances the right to freely associate with the government interest in regulation.  Disclosure generally not required unless government could make such membership illegal.
4.      Loyalty Oaths
a.       As a precondition to public employment is generally invalid.
b.      However, two types are upheld:
(1)  oaths to support and uphold the constitution
(2)  required to oppose violent overthrow of the government

E.     Freedom of the Press


1.      Generally the press involves no more freedom than afforded the average person.
2.      Equal Protection review is unnecessary to analyze laws which burden First Amendment rights.  Substantive guarantees of the First Amendment provide stronger protection and thus the First Amendment is usually the better answer.
3.      Newsroom Search - no privilege exempting it from constitutional searched and seizures.
4.      Newspersons Privilege - a newsperson has no privilege to refuse to disclose sources of information to a grand jury.
a.       Note that many states have enacted “shield” laws which protect newspersons.
5.      Access to Criminal Trials - a criminal trial may be closed to the press only if there is a compelling and overriding state interest and the closure is narrowly tailored.  Generally there is a right to attend.
6.      Public Access to the Media
a.       Fairness Doctrine - government may require broadcasters to provide equal time to cover both sides of an issue.  Rationale is that the airwaves are limited.
(1)  Distinguish airwaves with newspapers which are not required to print articles.
(2)  Political candidates have no right of equal access to reply to personal attacks made against them.