[Ariel Chou]

Constitutional Law
Powers of the Federal Government
 Article III – The Judicial Power
 Article I – The Legislative Power
 Article II – The Executive Power
The Federal Judicial Power
The requirement for cases and  Standing
controversies  Ripeness
 Mootness
 Political Question
Standing Standing is the issue of whether the plaintiff is the proper party to bring a
matter to the court for adjudication.
Injury The plaintiff must allege and prove that he has been injured or imminently will
be injured:
a) P only may assert injuries that they personally have suffered; or
b) P seeking injunctive or declaratory relief must show a likelihood of future
harm
Causation P must allege and prove that D caused the injury
Redressability It must be redressible so that the favorable court decision is likely to remedy
the injury
 The court must not give any advisory opinion
3rd Party Standing P cannot assert claims of others of 3rd parties, who are not before the court,
Unless:
1) It is difficult for the 3rd party to assert her own rights; or
2) A special relationship exists between the claimant and the 3rd party; or
3) An organization may sue for its members, if:
- The members would have standing to sue
- The interests are germane to the organization’s purpose
- Neither the claim nor relief requires participation of the members
No generalized grievances P must not be suing solely as a “citizen” or a “taxpayer” interested in having
the government follow the law.
Exception: Taxpayer have standing to challenge government expenditure
pursuant to federal (or state and local) statutes as violating the Establishment
Clause.
Ripeness Ripeness is the question of whether a federal court may grant
(Immediate threat of harm) pre-enforcement review of a statute or regulations
a) Injunctive relief
b) Declaratory judgement
Factors to consider:
A. The hardship that will be suffered without pre-enforcement review
B. The fitness of the issues and the record for judicial review
Mootness If events after the filing of a lawsuit end P’s injury, the case must be dismissed
(P must introduce a live injury) as moot
Exception:
a) Wrong capable of repetition but evading review
b) Voluntary cessation, but free to resume at any time
c) Class action – so long as one member of the class has on-going injury
Political Questions The political question doctrine refers to constitutional violations that the
federal courts will not adjudicate

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 The “republican form of government clause”
 Challenges to the President’s conduct of foreign policy
 Challenges to the impeachment and removal process
 Challenges to partisan gerrymandering
Supreme Court Review
Original Jurisdiction The Supreme Court has original jurisdiction in all cases affecting ambassadors,
public ministers, consuls, and those in which a state is a party, but Congress
has given concurrent jurisdiction to lower federal courts in all cases except
those between the states.
Appellate Jurisdiction Writ of Certiorari (by discretion)
 All cases from state courts
 Al cases from federal courts of appeals
Appeal (obligated)
 Decisions of 3-judge federal district courts
Independent and Adequate State The Supreme Court will not exercise jurisdiction if the state court judgment is
Law based on adequate and independent state law grounds – even if federal issues
are involved.
 Adequate: State law grounds are adequate if they are fully dispositive of
the case
 Independent: They are independent if the decision is not based on federal
case interpretations of identical federal provisions
 If a state court decision rests on two grounds, one state law and one
federal law, if the Supreme Court’s reversal of the federal law ground will
not change the result in the case, the Supreme Court cannot hear it
Lower Federal Court Review
11th Amendment – 11th Amendment prohibits federal courts from hearing a private party’s or
Limits on Federal Court foreign government’s claim against a state government.
The Principle of Sovereign Immunity Sovereign immunity bars suits against states in state court or federal agencies.
Exceptions States may be sued under the following circumstances:
1) Waiver (must be explicit)
2) States may be sued pursuant to federal laws adopted under section 5 of
the Fourteenth Amendment. (Congress cannot authorize suits against
states under other constitutional provisions)
3) The federal government may sue state government
4) Bankruptcy proceedings
Suits against State Officers 1. State officers may be sued for injunctive relief
2. State officers may be sued for money damages to be paid out of their own
pockets – personal liability
3. State officers may not be sued if it is the state treasury that will be paying
retroactive damages
Abstention Unsettled Questions of State Law: A federal court will temporarily abstain from
resolving a constitutional claim when the disposition rests on an unsettled
question of state law.
Pending State Proceedings: Federal courts will not enjoin pending state
criminal proceedings.

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The Federal Legislative Power
Expressed or Implied Congressional Powers: Limitation of Congressional Powers: Delegation of Powers:
 No general Police Power  10 Amendment
th
 Intelligible Standards
 Necessary and Proper Power  14th Amendment, Section 5  Executive Power
 Taxing Power  Legislative Veto
 Spending Power
 Commerce Power
Expressed or Implied Congressional Power
No General Police Power Congress has no general police power, but has police power over (MILD):
 Military bases
 Indian reservation
 Lands (federal)
 District of Columbia
Necessary and proper power Congress has the power to make all laws necessary and proper for executing
any power granted to any branch of the federal government.
 Must work in conjunction with another federal power
Taxing Power Congress has the power to tax, and most taxes will be upheld if they bear
some reasonable relationship to revenue production or if Congress has the
power to regulate the activity taxed.
Sending Power Congress may spend to ‘provide for the common defense and general welfare’
Commerce Power Congress has the power to regulate all foreign and interstate commerce:
1) Regulate the channels of interstate commerce
- Places where commerce occur: highways, waterways, Interstate
2) Regulate the instrumentalities of interstate commerce and persons and
things in interstate commerce
- Things that facilities the commerce: Trucks, planes, telephones
3) Regulate activities that have a substantial effect on interstate commerce
- Cumulative effect can only be recognized in economic activities
- Non-economic activities regulation will be upheld only if Congress can
show a direct substantial economic effect on interstate commerce
- Congress cannot regulate inactivity (no power to compel activity)
Limitations on Congressional Powers
10th Amendment 10th Amendment states that all powers not granted to the United States, nor
prohibited to the states, are reserved to the states or the people
 Congress cannot compel state regulatory or legislative action
 Congress may prohibit harmful commercial activity by state government
14th Amendment Under section 5 of the 14th Amendment, Congress may not create new rights
or expand the scope of rights.
Congress may act only to prevent or remedy violations of rights recognized by
the courts and such laws must be “proportionate” and “congruent” to
remedying constitutional violations.
Delegation of Powers
General Rule Legislative power may generally be delegated to the executive or judicial
branch as long as intelligible standards are set and the power is not uniquely
confined to Congress.
Executive Power Congress may not delegate executive power to itself or its officers.
Legislative Veto Legislative veto is unconstitutional:
Congress attempts to overturn an executive action without bicameralism
(passage by both the House and the Senate) and presentment (giving the bill
to the President and sign or veto).
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The Federal Executive Power
Foreign Policy Domestic Affairs Executive Privilege/Immunity
 Treaties  Appointment/Removal/Impeachment  Executive Privilege
 Executive Agreements  Pardon  Executive Immunity
 Commander-in-Chief  Veto
Foreign Policy
Treaties Treaties are agreements between the US and a foreign country that are
negotiated by the President and are effective when ratified by the Senate.
Treaties vs. State Law Treaties prevails
Treaties vs. Federal Law Last in time prevails
Treaties vs. Constitution Treaties invalid
Executive Agreement An agreement between the US and foreign country that is effective when signed
by the President and the head of the foreign nation.
Executive Agreement vs. State Law Executive agreement prevails
Executive Agreement vs. Federal Executive agreement invalid
Law/Constitutional
Commander-in-Chief The President has broad powers as Commander-in-Chief to use American troops
in foreign countries.
Domestic Affairs
Appointment The president appoints ambassadors, federal judges, and officers of the US with
advice and consent of the Senate.
 The president may appoint inferior officers alone
 Congress may not give itself or its officers the appointment powers.
 The president may not make recess appointment during intrasession
recesses that are less than 10 days.
Removal The President can remove high level, purely executive officers at will, without
any interference by Congress.
 Congress may provide statutory limitations on the President’s power to
remove all other executive appointees.
Impeachment The President, the Vice President, federal judges and officers of the US can be
impeached and removed from the office for treason, bribery, or for high crimes
and misdemeanors.
A majority vote in the House is necessary to invoke the charges of impeachment,
and a 2/3 vote in the Senate is necessary to convict and remove from office.
Pardon The President may grant pardons for all federal offenses but not for
(Only as to federal criminal impeachment or civil contempt.
liability)  The pardon power cannot be limited by Congress.
Veto If the President disapproves an act of Congress, the act may still become law if
the veto is overridden by a 2/3 vote of each house.
 Pocket veto: The President has 10 days to exercise the veto power. If he fails
to act within that time, the bill is automatically vetoed if Congress is not in
session. If Congress is in session, the bill becomes law.
 Line-item veto is unconstitutional: The President attempts to veto part of
the bill while signing the rest of the law.
Executive Privilege/Immunity
Executive Privilege The President has a privilege to keep certain communications secret.
Exception: Such privilege must yield to other important government interests.
Executive Immunity The President has absolute immunity to civil suits for money damages for any
actions while in office. However, the President does not have immunity for
actions that occurred prior to taking office.
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Federalism
 Article VI – The Supremacy Clause
1. Express preemption
2. Implied preemption
3. Inter-governmental immunity
 Article IV – The Dormant Commerce Clause & Privileges and Immunities Clause
 State Taxation of interstate commerce
 Full Faith and Credit
The Supremacy Clause
Expressed Preemption A federal law may expressly provide that the states may not adopt laws
concerning the subject matter of federal legislation.
Implied Preemption Even if the statute is silent about the preemption, preemption can be found
Mutually exclusive If federal and state laws are mutually exclusive, federal law preempts state law
Environmental & Safety Standards: State may set environmental & safety
standards stricter than the federal law, unless the Congress prohibits.
Federal objective If state law impedes the achievement of a federal objective, federal law
preempts state law.
Congress intent If Congress evidences a clear intent to preempt state law, federal law preempts
state law.
E.g. Immigration Law – the Congress want federal law exclusive in this field
Inter-government immunity States may not tax or regulate federal government activity
Dormant Commerce Clause & Privileges and Immunities Clause
Dormant Commerce Clause A state/local laws are unconstitutional, if it places undue burden on inter-state
(Negative Implications of the commerce.
Commerce Clause)  Corporations and Aliens can sue under this clause
Exception Congressional approval: Congress may permit state regulations that would
otherwise violate the Commerce Clause.
Important state interest: The law may be valid if it furthers an important,
noneconomic state interest and there is no reasonable alternative available.
Market participant: A state may prefer its own citizens when acting as a market
participant
Privileges and Immunities Clause No state may deprive citizens’ privileges and immunities of citizens of US
– Anti-discrimination clause  Discrimination against out-of-staters
 Fundamental rights (Bill of Rights)
 Important economic activities (Ability to earn their livelihood)
 Corporations and Aliens cannot sue under this
Exception Substantial Justification: The state law may be valid if the state has a substantial
justification for the different treatment.
 The state must show that nonresidents either cause or are part of the
problem that the state is attempting to solve and that there are no less
restrictive means to solve the problem.
State Taxation of Interstate Commerce
Discriminatory Taxes States may not use their tax systems to help in-state businesses
Substantial Nexus A state may only tax activities if there is a substantial nexus to the state
Fair Apportion State taxation of interstate businesses must be fairly apportioned
Full Faith and Credit
Courts in one state must give full faith and credit to judgments of courts in another state, so long as:
1. The court that rendered the judgment had jurisdiction over the parties and the subject matter
2. The judgment was on the merits
3. The judgment is final
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State Regulation of Interstate Commerce

Invalid state regulation if federal law preempts the filed or the state law conflicts
Does the state regulation affect an activity Yes
with the federal law.
addressed by federal legislation?
Valid state regulation if the federal law authorizes the state law
No
Violates the Privileges and Immunities Clause if it discriminates against
Does the state regulation discriminate Yes individuals with regard to important economic activities or fundamental rights
against out-of-stater? unless:

No a) it is necessary to achieve an important government purpose

Does the state regulation burden interstate Yes

Balance Test: If the government is burdening interstate commerce (if the benefit
commerce? exceeds the burden, the law is upheld; if the burden exceeds the benefit, the law
is struck down)
No
Violates the Dormant Commerce Clause if it places a burden on interstate
Valid state regulation commerce unless:

a) It is necessary to achieve an important government purpose

b) Congressional approval of discrimination
c) Market participation

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The Structure of the Constitution’s Protection of Individual Liberties
1. Is there government action?
2. The application of the Bill of Rights
Is there government action
Basic Rule of Constitution The Constitution applies only to government action
Private conduct need not comply with the Constitution.
Congress power to regulate Congress, by statute, may apply constitutional norms to private conduct
private conduct 1) The 13th Amendment can be used to prohibit private race discrimination
2) The commerce power can be used to apply constitutional norms to private
conduct
3) Congress cannot use section 5 of the 14th Amendment to regulate private
behavior
Exception – situations where Public function exception
private conduct must comply with The Constitution applies if a private entity is performing a task traditionally,
the Constitution exclusively done by the government
Entanglement/Significant state involvement exception
The Constitution applies if the government affirmatively authorizes, encourages,
or facilitates acts of discrimination by its citizens
a) Courts cannot enforce racially restrictive covenants
b) Race discrimination has been more accepted as state actions
c) Government subsidy or granting license is insufficient to find state action
Bill of Rights
Federal government The Bill of Rights applies directly only to the federal government
State government The Bill of Rights is applied to state and local governments through its
incorporation into the due process clause of the 14th Amendment.
Exception 1. 3rd Amendment right to not have a soldier quartered in a person’s home
2. 5th Amendment right to grand jury indictment in criminal cases
3. 7th Amendment right to jury trial in civil cases
4. 8th Amendment right against excessive fines
5. 13th Amendment prohibits slavery and involuntary servitude – even
regulates private act
6. 14th Amendment prevents states from depriving any person of life, liberty,
or property without due process and equal protection of law
7. 15th Amendment prevents federal and state government from denying a
citizen the right to vote on account of race or color

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Individual Rights
 Procedural due process  Economic Liberties  Substantive due process  Equal Protection
- Life, Liberty, Property - The Taking Clause - Level of Scrutiny
- 3-Part Test - The Contract Clause - The Fundamental Rights
- Ex Post Facto Law
- Bills of Attainder
Procedural due process
Basic Principle A fair process is required for a government agency to individually take person’s
“life, liberty, or property”.
 Only intentional (or at least reckless) – not negligent – deprivation of these
rights violates the Due Process Clause.
 Emergency situation – the government is liable under due process only if its
conduct “shocks the conscience”
 Government’s failure to protect people from privately inflicted harms does
not deny due process, unless the government has the duty to protect
- If a person is physically in government’s custody
- If the government literally creates the danger
Deprivation of liberty Loss of a significant freedom provided by the Constitution or a statute
Deprivation of property If there is an entitlement and that entitlement is not fulfilled
(Reasonable expectation to continue receiving the benefit)
What type of process is required? 1. The importance of the interest to the individual
(3-part balancing test) 2. The ability of additional procedures to increase the accuracy of fact-finding
3. The government’s interests

Procedural Due Process

Has the government deprive a person of life, liberty (a significant freedom secured by the Constitution or Statute), or property (an
entitlement to a continued receipt of a benefit)?
YES No

What procedures must government supply?

Balance Test: Government need not provide

a) Importance of interest to the individual procedural due process
b) Ability of additional procedures to increase the accuracy of the fact-finding
c) The government’s interest

Examples:
1) Before welfare benefits are terminated there must be notice and a hearing
2) When Social Security disability benefits are terminated, there need be only a post-termination hearing
3) Before a school can discipline a student there must be notice of the charges and an opportunity to explain
4) Before a parent’s right to custody of a child can be permanently terminated there must be notice and a hearing
5) Punitive damage awards require instructions to the jury and judicial review to ensure reasonableness
6) An American citizen detained as an enemy combatant must be accorded due process
7) Except in exigent circumstance, prejudgment attachment or government seizure of assets require notice and a hearing

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Economic Liberties
Economic liberties Only rational basis test is used for laws affecting economic rights.
The Constitution provides only minimal protection for economic liberties.
5th Amendment – The government may take private property for public use if it provides just
The Taking Clause compensation.
Is there a taking? Possessory taking:
Government confiscation or physical occupation of property is a taking
Regulatory taking:
Government regulation is a taking if it leaves no reasonable economically viable
use of the property (Not taking if it just decreases the value)
Is it for public use? Rational basis test: If the government’s action is rationally related to a
legitimate public purpose
Is just compensation paid? Reasonable fair market value
The Contract Clause No state shall impair the obligation of contracts
 Only applies to state or local interference with existing contracts
Private contract Intermediate Scrutiny:
- Does the legislation substantially impair a party’s rights under an existing
contract?
- If so, is the law a reasonably and narrowly tailored means of promoting an
important and legitimate public interest?
Public/government contract Strict Scrutiny
Ex post facto clause The state or federal government may not pass a law that retroactively alters
(Criminal context only) criminal offenses or punishments in a substantially prejudicial manner for the
purpose of punishing a person for some past activity.
Bills of Attainder Bills of attainder are legislative acts that inflict punishment on individuals
without a judicial trial.
Both federal and state government are prohibited from passing bills of attainder
Substantive Due Process
Level of Scrutiny
Rational basis Test A law will be upheld if it is rationally related to a legitimate gov purpose
(usually government wins) Purpose: Conceivable legitimate government purpose
Alternative: Doesn’t matter if there is less restrictive way
Burden of proof: Challenger
Subject:
 Regulations that do not affect fundamental rights or involve suspect or
quasi-suspect classification
Intermediate scrutiny A law will be upheld if it substantially related to an important gov purpose
Purpose: Important actual government purpose
Alternative: Doesn’t matter if there is less restrictive way
Burden of proof: Government
Subject:
 Quasi- suspect classification (gender, legitimacy, etc.)
Strict scrutiny A law will be upheld if it is necessary to achieve a compelling gov purpose
(usually government loses) Purpose: Compelling actual government purpose
Alternative: No less restrictive alternative that could achieve the objective
Burden of Proof: Government
Subject:
 Fundamental rights (interstate travel, privacy, voting, etc.)
 Suspect classification (race, national origin, alienage, etc.)

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Fundamental Right
 Privacy
 Right to Bear Arm
 Right to Travel
 Right to Vote
 No fundamental right to education
Privacy 1. The right to get marry
2. The right to procreate
3. The right to custody of one’s children
4. The right to keep the family together
5. The right to control the upbringing of one’s children
6. The right to purchase and use contraceptives
7. The right to abortion
8. The right to engage in private consensual homosexual activity
9. The right to refuse medical treatment
10. No right to physician-assisted death
The right to abortion Pre-viability rule: A state (may not prohibit, but) may adopt a regulation
protecting the mother’s health and the life of the fetus if the regulation does not
place an “undue burden” on or substantial obstacle to the woman’s right to
obtain an abortion.
Post-viability rule: A state may prohibit abortion, but cannot prohibit abortion if
it is necessary to protect the woman’s health or safety.
 Financing abortion: The government has no obligation to pay for abortions.
 Consent: Spousal consent and notification laws are unconstitutional.
 Unmarried Minor: A state may require parental notice and/or consent for an
unmarried minor’s abortion so long as it creates an alternative procedure
where a minor can obtain an abortion by going before a judge who can
approve the abortion by finding it would be in the minor’s best interests or
that she is mature enough to decide for herself.
The right to refuse medical Competent adults have the right to refuse medical treatment even life-saving
treatment medical treatment.
 A state may require clear and convincing evidence that a person wanted
treatment terminated before it is ended.
 A state may prevent family members from terminating treatment for
another.
The Right to Bear arm 2nd Amendment protects the right of the people to keep and bear arms for the
sake of security. However, the right is not absolute, the government may still
regulate where to have guns, type of guns, and so on.  no fixed scrutiny
The Right to Travel Laws that prevent people from moving into a state must meet strict scrutiny.
Durational residency requirements must meet strict scrutiny.
Restrictions on foreign travel need meet only the rational basis test.
The Right to Vote Laws that deny some citizens the right to vote must meet strict scrutiny, but
regulations of the electoral process to prevent fraud only need be on balance
desirable
 One-person-one-vote must be met for all state and local elections
 At-large elections are constitutional unless there is proof of a discriminatory
purpose
 The use of race in drawing election district lines must meet strict scrutiny
 Counting uncounted votes without standards in a presidential election
violates equal protection.

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Equal Protection
 Suspect classification (Strict Scrutiny)
- Race
- National origin
- Alienage
 Quasi-suspect classification (Intermediate Scrutiny)
- Gender
- Legitimacy
Discrimination Discriminatory impact & discriminatory intent:
1) A law that is discriminatory on its face
2) A discriminatory application of a facially neutral law
3) A discriminatory motive behind the law
Race and National Origin Strict scrutiny
 No matter advantage/disadvantage, strict scrutiny must be applied
Alienage classification Strict scrutiny
 Rational basis test is used for alienage classification that concern self-
government and the democratic process
- Voting
- Serving as a jury
- Police officer / teacher / probation officer
 Because of Congress’s plenary power over aliens, federal alienage
classifications are not subject to strict scrutiny. (rational basis test)
 Intermediate / rational basis test for undocumented aliens
Gender classification Intermediate scrutiny
 Women: Gender classifications benefiting women that are based on role
stereotypes will not be allowed. However, ones that are designed to remedy
past discrimination and differences in opportunity will be allowed
Legitimacy classification Intermediate scrutiny
 Discriminatory regulations intended to punish non-marital children are
invalid
 Laws that deny a benefit to all non-marital children, but grant it to all marital
children are unconstitutional
Other classification Rational basis for all other types of discrimination
- Age
- Disability
- Wealth
- Sexual orientation

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The First Amendment
 Freedom of Speech and Assembly
 Freedom of Association and Belief
 Freedom of Religion
Freedom of Speech
 Free speech methodology  Unprotected or less protected speech  Places available for
- Content based vs. Content- - Incitement of illegal activity speech
neutral restrictions - Obscenity and sexually-oriented speech - Public forum
- Prior restraints - Commercial speech - Designated public forum
- Vagueness and overbreadth - Defamation and intentional infliction of - Limited public forum
- Symbolic speech emotional distress - Non-public forum
- Anonymous speech - Privacy
- Speech by the government - Speech by government employees
Free Speech Methodology
Content-based vs. content-neutral Content-based: Strict scrutiny
restriction - Subject matter restrictions / Viewpoint restrictions
Content-neutral: Intermediate scrutiny
- E.g. no parade & demonstration
Prior restraints Court orders suppressing speech must meet strict scrutiny.
Procedurally proper court orders must be complied with until they are vacated
(Court orders/administrative or overturned  a person who violates a court order is barred from later
system that stops speech before challenging it
occur)  The government can require a license for speech only if there is an
important reason for licensing and clear criteria leaving almost no discretion
to the licensing authority. Licensing schemes must contain procedural
safeguards such as prompt determination of requests for licenses and
judicial review.
Vagueness & Overbreadth Vagueness: A law is unconstitutionally vague if a reasonable person cannot tell
what speech is prohibited and what is allowed.
Overbreadth: A law is unconstitutionally overbroad if it regulates substantially
more speech than the constitution allows to be regulated.
 Fighting words laws are unconstitutionally vague and overbroad.
Symbolic speech The government can regulate conduct that communicates if it has an important
interest unrelated to suppression of the message and if the impact on
communication is no greater than necessary to achieve the gov’s purpose:
- Flag burning is constitutionally protected speech
- Draft card burning is not constitutionally protected speech
- Local government may prohibit nude dancing
- Burning a cross is protected speech unless done with the intent to threaten
- Contribution limits in election campaigns are generally constitutional, but
expenditure limits are unconstitutional
Anonymous speech Anonymous speech is protected
Speech by government Speech by the government cannot be challenged as violating the 1st Amendment
Unprotected & Less protected speech
Incitement of illegal activity The government may punish speech if there is a substantial likelihood of
imminent illegal activity and it is directed to causing imminent illegality.
Obscenity and Sexually-oriented Test:
speech 1) The material must appeal to the prurient interest
2) The material must be patently offensive under the law prohibiting obscenity
3) Taken as a whole, the material must lack serious redeeming artistic, literary,
political or scientific value
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 The gov may use zoning ordinances to regulate the location of adult
bookstores and movie theaters.
 Child pornography may be completely banned, even if not obscene.
 The gov may not punish private possession of obscene materials, but the
gov may punish private possession of child pornography.
 The gov may seize the assets of businesses convicted of violating obscenity
laws.
 Profane and indecent speech is generally protected excepts in schools or
over the broadcast media.
Commercial speech Advertising for illegal activity, and false and deceptive ads are not protected.
True commercial speech that inherently risks deception can be prohibited.
Other commercial speech can be regulated if intermediate scrutiny is met.
Government regulation of commercial speech must be narrowly tailored, but it
does not need to be the least restrictive alternative.
Defamation and intentional Public Official & Public Figure
infliction of emotional distress Liability Standard: actual malice
Damages: compensatory presumed/punitive
Burden of proof: P must prove falsity
Private Figure – Matter of public concern
Liability Standard: negligence and actual injury
Damages: Compensatory for actual injury; Presumed or punitive damages
require actual malice
Burden of proof: P must prove falsity
Private Figure – Matter of private concern
Liability Standard: negligence
Damages: Compensatory for actual injury; Presumed or punitive damages (do
not require actual malice)
Burden of proof: D must prove truth
Privacy  The gov may not create liability for the truthful reporting of information that
was lawfully obtained from the government.
 Liability is not allowed if the media broadcasts a tape of an illegally
intercepted call, if the media did not participate in the illegality and it
involves a matter of public importance.
 The gov may limit its dissemination of information to protect privacy.
Speech by government employees Speech by government employees on the job in the performance of their duties
is not protected by the First Amendment.
Places available for speech
Public forum – Contents:
Government properties that the Must be subject matter and viewpoint neutral, if not  strict scrutiny
government is constitutionally Means:
required to make available for Regulation but be a time, place, or manner regulation that serves an important
speech government purpose and leaves open adequate alternative places for
communication.
(Sidewalks, parks, etc.) Alternative:
Need not be the least restrictive alternative, but must be narrowly tailored
Designated public forum – Contents:
Government properties that the Must be subject matter and viewpoint neutral, if not  strict scrutiny
government could close to speech, Means:
but chooses to open to speech Regulation but be a time, place, or manner regulation that serves an important
government purpose and leaves open adequate alternative places for
(Non-public forums that communication.
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government opens to speech) Alternative:
Need not be the least restrictive alternative, but must be narrowly tailored
Limited public forum – Contents:
Government properties that are Must be viewpoint neutral, if not  Rational basis test
limited to certain groups or Means:
dedicated to the discussion of only Must be a reasonable regulation that serves legitimate government purpose
some subjects Alternative:
Need not be the least restrictive alternative, must be narrowly tailored
Non public forum – Contents:
Government properties that the Must be viewpoint neutral, if not  Rational basis test
government constitutionally can Means:
and does close to speech Must be a reasonable regulation that serves legitimate government purpose
Alternative:
Need not be the least restrictive alternative, must be narrowly tailored
Private Property No First Amendment right of access to private property for speech purposes
Freedom of Association
Prohibit or punish group Strict scrutiny
membership To punish membership in a group it must be proven that the person:
a. Actively affiliated with the group
b. Knowing of its illegal activities
c. With specific intent of furthering those illegal activities
Disclosure of membership Laws that require disclosure of group membership, where such disclosure would
chill association must meet strict scrutiny.
Constitutional prohibition Laws that prohibit a group from discriminating are constitutional unless they
interfere with intimate association or expressive activity.
Freedom of religion
The Free Exercise Clause The free excise clause prohibits government from punishing someone on the
basis of his religious belief.
 The free exercise clause cannot be used to challenge a neutral law of
general applicability
 The government may not deny benefits to individuals who quit their jobs for
religious reasons
 The government may not hold a religious institution liable for the choices it
makes as to who will be its ministers
The Establishment Clause The Establishment clause prohibits government from respecting an
establishment of religion.
Test:
1) There must be a secular purpose for the law
2) The effect must be neither to advance nor inhibit religion
3) There must not be excessive entanglement with religion

 The government cannot discriminate against religious speech or among

religions unless strict scrutiny is met.
 Government sponsored religious activity in public schools is
unconstitutional. But religious students and community groups must have
the same access to school facilities as non-religious groups
 The government may give assistance to parochial schools, so long as it is not
used for religious instruction. The government may provide parents
vouchers which they use in parochial school.

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Whether the regulation renders unconstitutional under the Free Speech Clause
 The First Amendment, which is applicable to the states through the Due Process Clause of the 14th Amendment,
provides that the government shall not abridge the freedom of speech. The freedom of speech includes the
freedom to refrain from speaking; the government may not compel people to profess views with which they
disagree. The freedom of speech is a fundamental right. Government action that interferes with the freedom of
speech will be upheld only if the government can prove that the action is necessary to achieve a compelling
government interest.
Whether X engaged in unprotected speech (incitement of imminent lawless action and fighting words)
 The First Amendment generally prohibits the government from restricting the content of speech unless the
government can prove the restriction is necessary to achieve a compelling government interest. However, there
are certain categories of speech that are not protected by the First Amendment, including speech that incites
imminent lawless action and “fighting words”.
 As a preliminary matter, it should be noted that generally a regulation of speech will not be upheld if it is
overbroad – i.e. prohibits substantially more speech than is necessary. If a regulation punishes a substantial
amount of protected speech judged in relation to its legitimate sweep, it is facially invalid and cannot be enforced
against anyone, including a person engaging in constitutionally unprotected speech, unless a court has limited
construction of the restriction so as to remove the threat to constitutionally protected speech.
 The Supreme Court has held that a statute may not constitutionally regulate mere advocacy of lawless action in
the abstract; only speech that incites imminent lawless action can be regulated.
 The Supreme Court has held that fighting words are not protected speech. The term “fighting words” has been
defined as personally abusive epithets that, when addressed to an ordinary person, are likely to incite immediate
physical retaliation. The statute here is too broad.
 Not every abusive word is likely to have such an effect.
Defamation – whether the statement was published with actual malice
 At common law, a plaintiff may bring a defamation action against a defendant who makes a false statement about
the plaintiff.
 Under the First Amendment, public figures cannot recover for defamation unless they can show that the
defaming statement was made with actual malice.
 Actual malice will be found where the statement is made with knowledge that it is false or with reckless disregard
of its truth or falsity.
 The First Amendment does not provide the press with any special right to trespass – even if the trespass was done
in order to investigate a story about a public figure or a matter of public concern.
 Generally, it is a tort to publish private information about a person – even if it is true – if a reasonable person
would object to having the information made public. However, if the matter is one of legitimate public interest, its
publication is privileged if it is made without actual malice, especially if the information was obtained legitimately,
such as a picture taken in public.
Whether the acts of private can be attributed to the state
 The Fourteenth Amendment Equal Protection Clause prohibits states and subsidiary state governments and
entities from treating similarly situated people in a dissimilar manner without adequate justification. This
proscription generally does not apply to private action. However, there are some situations in which private
action can constitute state action, and in such cases, the private actor’s action is subject to the Equal Protection
Clause.
 Private action will constitute state action when:
i) The private actor is performing a traditional and exclusive state function; or
ii) The state is significantly involved in the private action.
 Thus far, the Supreme Court has found only running a town or an election to be a traditional and exclusive public
function. The Court has found significant state involvement when enforcement of the private action involves use
of the courts or where private entities are entwined with government entities.
 On the other hand, the Court has found that state regulation of an industry – even heavy regulation – does not
make the industry’s action state action. Neither does licensing or providing essential services, such as police or

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fire protection. Indeed, the Court has found that regulation of a private school does not make the school’s action
state action.
Whether the discrimination is justifiable (Gender)
 The Equal Protection Clause of the 14th Amendment prohibits states from unreasonably discriminating against a
group of persons. What is reasonable depends on the basis of the discrimination and justification for it.
 The justification needed to uphold government discrimination being challenged under the Equal Protection Clause
depends on the circumstances. When a law discriminates on the basis of sex, the Court applies intermediate
scrutiny – the discrimination will be upheld only if the government can prove that the discrimination is
substantially related to an important government interest. An exceedingly persuasive justification is needed. The
interest must be genuine and not hypothesized for litigation, and the government may not rely on overbroad
generalizations about males and females.
 In race discrimination cases, if a law is neutral on its face but has a disproportionate impact, courts will look to the
underlying motive. If the motive is not discriminatory, the Court applies the rational basis test and the
government action generally is upheld. The Court has done the same in at least one sex discrimination case in
which the government gave a hiring preference to veterans.
Whether it amounts to a taking under the Fifth Amendment
 The Fifth Amendment to US Constitution prohibits the government from taking private property for public use
without just compensation (“the taking clause”). The Fifth Amendment is applicable to local governments through
the Due Process Clause of the Fourteenth Amendment.
 Under the Fifth Amendment, a taking can arise from any physical invasion or appropriation of property, or from a
regulation. A physical invasion or appropriation generally constitutes a per se taking, no matter how small the
area appropriated or occupied.
 A regulation generally will not found to constitute a taking unless it denies the owner all economically viable use
of the land.
 However, there is an exception to the general rule for emergency situations – no compensation is due when
property is appropriated or physically invaded to combat an emergency.
 As a final point, it should be noted that under the Fifth Amendment, a taking is proper only if it is for a public use.
The Supreme Court has defined the term “public use” very broadly.
The Free Exercise Clause: Whether the ordinance impermissibly punishes religious practice under the 1st Amendment
 The Free Exercise Clause of the First Amendment applies to the states and their political subdivisions through the
Due Process Clause of the 14th Amendment. The Clause generally prevents government entities from imposing
burdens on individuals on the basis of their religious beliefs. However, a religiously neutral law of general
applicability will not be struck down merely because it has an incidental effect on a religious practice.
 Such a law, like any other law, will be upheld unless the challenger can prove it has no rational basis. The Free
Exercise Clause does not relieve individuals from their obligations to comply with valid and neutral laws of general
applicability on the ground that the laws proscribe conduct that the religion prescribes.
 A law is not neutral if its object is to infringe on or restrict religious practices. A law is not of general applicability if
it specifically targets only religious services.
 A law that is not a neutral law of general applicability must pass strict scrutiny; the government must prove that
the law is narrowly tailored to meet a compelling state interest.
Establishment Clause
 The Establishment Clause prohibits government from passing any law respecting an establishment of religion. The
Clause is applicable to the states through the Due Process Clause of the 14th Amendment.
 Under Establishment Clause, the Supremacy Court will uphold government action only if it:
i) Has a secular purpose
ii) Has a primary effect that neither advances nor inhibits religion; and
iii) Does not produce excessive government entanglement with religion.
Venue for speech (school)
 School classrooms are not traditional public forums and generally are not available for the exercise of 1st
Amendment speech or assembly rights. However, if a school chooses to throw open its facilities for public use
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when the rooms are not being used for school purposes, the facilities for public use when the rooms are not being
used for school purposes, the facilities become designated public forum. At the times designated public forums
are open for speech activities, their use may be limited only by regulations that would be allowed in public forum:
The regulation must be content neutral, be narrowly tailored to serve a significant government interest, and leave
open alternative avenues of communication.
Viable claim under due process clause
 The 14th Amendment to the US Constitution provides that a state may not deprive a person of life, liberty, or
property without due process of law. Due process actually has two components: procedural due process and
substantive due process.
 Procedural due process guarantees that a person’s life, liberty, or property shall not be taken without adequate
procedures.
 Substantive due process requires that the government’s deprivation of a person’s life, liberty, or property be
justified by a sufficient purpose.
 Liberty interest go beyond physical restraint. Liberty interests are involved if a person loses significant freedom of
action or is denied a freedom provided by the Constitution.
 Under the Due Process Clause, if a government rule affects a fundamental right, the rule will be upheld only if the
government can prove the rule is necessary to promote a compelling interest. Rules affecting other interests are
valid under the substantive Due Process Clause as long as they are rationally related to a legitimate government
interest.
 A challenger has the burden of proving that the standard is not met.
 The Due Process of the 14th Amendment requires laws to be reasonable and not arbitrary. What is reasonable
depends on the nature of the law and interests involved. If the law involves economic regulation and does not
affect a fundamental right, the Supreme Court tests reasonableness using a rational basis standard – the
challenger must prove that the law is not rationally related to a legitimate state interest.
Via claim under equal protection claim
 In additional to providing due process right, the 14th Amendment to the US Constitution provides that a state may
not deprive a person of the equal protection of the laws. The standard for determining whether government
action that classifies people violates equal protection depends on the nature of the right involved and the basis of
the classification.
 If a fundamental right or a suspect classification is involved, the action will be upheld only if the government can
prove the discrimination is necessary to achieve a compelling interest. If a quasi-suspect classification is involved,
the action will be upheld if it is substantially related to an important government interest.
 The government bears the burden of showing an exceedingly persuasive justification. In all other cases, the action
will be upheld unless the challenger can prove it is not rationally related to a legitimate government interest.
Whether the statute violates the Commerce Clause
 The Commerce Clause gives Congress the power to regulate interstate commerce.
 While this power is note exclusive – states can regulate local aspects of interest commerce – it is so persuasive
that it includes some negative implications that are binding on the states.
 The DCC is the principle that state or local laws are unconstitutional if they place an excessive burden on
interstate commerce.
 A law that discriminates against interstate commerce clearly violates this standard unless it is necessary to
achieve an important, or even a compelling, government interest. If a law is not discriminatory, it violates the DCC
if the burdens it places on interstate commerce outweigh its benefits.
 A law that does not discriminate against interstate commerce can be found to violate the DCC if it unreasonably
interferes with interstate commerce when compared to its legitimate local benefits. The Supreme Court balances
the burden the law places on interstate commerce against the local interest being promoted.

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