New York Bar Exam Preparation Condensed Revision Notes for Constitutional Law

Constitutional Law

FEDERAL JUDICIAL POWER

1. Defined by Article III of the Constitution

Requirement for cases & controversies – case must be justifiable

Means – Federal Court decide actual cases and controversies & do not render advisory opinion.

1. Standing – whether P is the proper party to bring the case to court

For P to have standing – 4 Requirements

1. Injury – prove he has been INJURED OR IMMINENTLY WILL BE INJURED.
2. Not mere ideological objection
3. Only may assert injuries that they personally have suffered
4. Seeking injunctive or declaratory relief must show likelihood of future harm.

NOTE – Best standing for P who suffered money damages

1. Must allege an prove that D caused the injury, so that a favourably court decision is likely to remedy the harm (CAUSATION AND REDRESS -ABILITY).

NOTE – If Federal court ruling would have no effect, then it would be advisory opinion and that’s not allowed.

1. no 3rd party standing (because must present personally suffered injuries)

EXCEPTIONS

1. Close relationship – between P and the injured 3rd party which means that P can be trusted to adequately represent the interests of 3rd party.

Doctor Patient Relationship -YES

But NOT NON-custodial parent.

1. If the injured 3rd party unlikely to assert their own rights e.g. juries

iii. Organisation may sue for it’s members if:

1. members would have standing
2. interest are germane to the organisation purpose
3. neither claim or relief requires participation of individual members.

1. No generalised grievances – solely as a citizen or taxpayer

EXCEPTIONS

1. Taxpayer have standing to challenge gov expenditures pursuant to federal statute as violating the Establishment clause.

1. Person has standing as citizen, to allege federal statute violates 10th Amendment by interfering with powers reserved to state. But must show injury I fact and redressability.

1. Ripeness – Q whether FC (federal court) may grant PRE-ENFORCEMENT REVIEW of statute or regulation.
2. Hardship that will be suffered without it
3. The fitness of the issue and the record for judicial review.

1. Mootness – after filling lawsuit and P’s injury, case dismissed as moot because P must present LIVE CONTROVERSY, a non-privilege money claim damage will keep the claim alive.

EXCEPTIONS

1. the wrong is capable of repetition.
2. Voluntary cessation – stop doing something and then start again.

iii. Class action suits – as long as someone in the class has an ongoing injury.

1. Political Q doctrine – constitutional violation that the FC will not adjudicate.

Cases dismissed as non-justiciable political q - 4 of them

1. The US shall guarantee to each state a republican form of gov (guaranteed clause)
2. Challenges to the president’s conduct of foreign policy
3. Challenges to the impeachment and removal process.
4. Challenges to partisan gerrymandering (every 10 years lines are drawn)

1. Supreme court review – Supreme Court to hear a case, all justifiability requirements must be met.

1. Virtually all cases come to Supreme court by writ of certiorari.

1. All cases from State court come by writ of certiorari.
2. All cases from United States court of appeal – by writ of certiorari
3. Appeals exist for decisions of 3-judge federal district court
4. Supreme court has original & exclusive jurisdiction for suits between the state gov.

1. Generally, Supreme Court may hear cases only after there has been a final judgement of the highest or Unites States Court of Appeals, or 3-judge federal district court – this is called The FINAL JUDGEMENT RULE.

1. For the Supreme Court to review a state court decision – there must not be an INDEPENDENT & ADEQUATE STATE LAW GROUND OF DECISION. This means if Supreme Court reversal of federal law ground will not change the result in the case, the supreme court cannot hear it.
2. Lower federal court review
3. Federal and State courts may not hear suits against state gov (sovereign immunity)
4. Principle of SOVEREIGN IMMUNITY
5. 11th Amendment bars suit against States in federal court
6. Bars suits against States in State court or federal agencies and even on federal law claims.

EXCEPTIONS

1. Waiver is permitted – State may and must expressly consent to be sued.
2. States may be sued pursuant to federal laws adopted under section 5 under 14th Amendments(congress can use this to bring suits against the state). Congress cannot authorise suits against states under any other constitutional provision or power.

iii. Federal gov may sue state gov –that is not a bar

1. Bankruptcy proceeding – 11th Amendment does not apply to federal laws exercised to congress bankruptcy powers, so does not bar actions of the United States Bankruptcy courts.
2. Suits against state officers are allowed even if state gov cannot be named as a D.
3. Sate officers may be sued for injunctive relief
4. Money damages paid out of their own pockets

iii. MAY NOT BE SUED if it is state treasury that will be paying retroactive damages.

1. Abstention – Federal court may not enjoin pending state court proceedings.

THE FEDERAL LEGISLATIVE POWER

1. CONGRESS authority to ACT – 3 BIG POWERS

TAXING, SPENDING, COMMERCE.

1. There must be EXPRESS OR IMPLIED CONGRESSIONAL POWER
2. EXCEPTIONS – where Congress has POLICE Power.

MILD

1. MILITARY
2. Indian Reservation

iii. Federal Lands

1. District of Columbia

NOTE – congress does not have a power to promote general welfare unless with MILD.

1. Article I, sec 8 – says Congress can adopt all laws that are NECESSARY & PROPER to exercise its authority
2. The taxing/spending power & the commerce power
3. Congress may TAX AND SPEND for GENERAL WELFARE
4. Article I, sec 8: The Commerce Power: Congress can regulate commerce with FOREIGN NATIONS, INDIAN TRIBES AND AMONG THE STATES. Supreme court said congress could act under commerce clause in any of the 3 situations:
5. Congress may regulate the CHANNELS OF INTERSTATE COMMERCE (highways, waterways, internet)
6. Regulate INSTRUMENTALITIES (telephones, trucks even people, whatever crosses the state lines)

iii. Regulate ECONOMIC ACTIVITIES that have SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE (cannot be based on cumulative impact)

1. 10th Amendment – as a limit on congressional power, states that all powers not granted to the Unites States, nor prohibited to the states, are reserved to the states or the people.

2 Principle emerged

1. Congress cannot compel STATE REGULATORY OR LEGISLATIVE ACTION.

NOTE – CAN induce state gov action by putting STRINGS ON GRANT’S, as long as condition expressly stated & relate to the purpose of the spending program.

1. Congress may PROHIBIT HARMFUL COMMERCIAL ACTIVITY by state gov.
2. Delegation of Powers
3. NO LIMIT exist on Congress ability to DELEGATE LEGISLATIVE POWER (OFTEN ON THE BAR, ALWAYS WRONG ANSWER)
4. a. Legislative vetoes & line-item vetoes are unconstitutional. For congress to act – always must be passage by both the house and the senate & give to president to sign or veto.
5. President must sign or veto the bill in its entirety. A line-item veto is unconstitutional.
6. Congress may not delegate executive power to itself or its officers

NOTE – Congress can give BUT can’t take!

THE FEDERAL EXECUTIVE POWER (Power of the President)

1. Foreign Policy
2. Treaties – agreements between the United States & foreign country, negotiated by the president & are effective when ratified by the senate.
3. Executive Agreements – agreement between United States & foreign country that is effective when signed by the president and the head of the foreign nation.
4. Executive agreements can be used for any purpose.

SEE CHART 1.

1. The President has broad powers as Commander-in-Chief to use American troops in foreign countries.
2. Domestic Affairs
3. The APPOINTMENT AND REMOVAL POWER
4. The appointment power
5. President appoints ambassadors, federal judges & officers of United Nations, Senate must approve it.
6. Congress may vest the appointment of inferior officers in the president, head of department or lower federal courts.
7. Removal power – President may fire any executive branch official (unless removals is limited by statute). Congress may, by statute, limit removal, only if 2 requirements are shown:
8. Must be an office where independence from the President is desirable AND
9. Congress cannot prohibit removal, it can limit removal where there is good cause shown.

1. Impeachment and Removal – The President, Vice President, federal judges and ALL officers of the United States can be impeached and removed from the office for, treason, bribery or for high crimes or misdemeanours.
2. Impeachment does not remove a person from office.
3. Impeachment by the House of Representatives requires a majority of vote, conviction in Senate requires 2/3 of vote.
4. The President has Absolute immunity to civil suits for money damages for any actions while in office (not for actions that occurred prior to taking office).
5. President has executive privilege for presidential papers & conversations, but such privilege must yield to other important gov interest.
6. President has power to pardon anyone accused or convicted of federal not state crimes, except if that person impeached by the House of Rep, than he can never be pardoned for the underlined crimes that led to impeachment. Power does not apply to civil liability.

FEDERALISM

1. Pre-emption – ARTICLE IV CONTAINS SUPREMACY CLAUSE. Supremacy Clause says that The Constitution, & the laws and treaties made pursuant to it, are the supreme laws of the land. Federal law OVERRIDES OR PRE-EMPTS INCONSISTENT STATE LAW.

3 WAYS

1. EXPRESS PRE-EMPTION - when congress has authority to act, it can state that its power is exclusive in a field.
2. IMPLIED PRE-EMPTION – even if federal statute silent about pre-emption
3. if not possible to COMPLY SIMULTANEOUSLY with both federal and state law (impurities 90/95%)
4. If state law impedes the achievement of FEDERAL OBJECTIVE.
5. If Congress evidence a CLEAR INTENT to pre-empt state law.
6. Sates may not charge state tax to be paid out of the federal treasury for federal gov activity e.g. cannot charge federal property a tax (federal courts).

NOTE – Called inter-governmental immunity –immune from unwanted state taxation or regulation.

1. The DORMANT COMMERCE CLAUSE (Negative implication of the commerce clause) & The PRIVILEGES & IMMUNITIES CLAUSE OF ARTICLE IV.
2. THE DORMANT COMMERCE CLAUSE (Negative implication of the commerce clause) – State or local laws are unconstitutional if they place an UNDUE BURDEN ON INTER-STATE COMMERCE.
3. The PRIVILEGES & IMMUNITIES CLAUSE OF ARTICLE IV – No state or municipality may deny citizens of other states the privileges and immunities it affords its own citizens without substantial justification.
4. The privilege and immunities clause of the 14th Amendment, used to preserve a person’s right to travel form one state to another (ALWAYS wrong answer unless it deals with the right to travel)

NOTE – Corporations & Aliens cannot use or invoke the privileges and immunities Clause.

Corporations & Aliens can sue under the Dormant Commerce Clause.

SEE CHART 2 AND CHART 3

1. State taxation of interstate commerce (Not really tested)
2. Sates may not use their tax system to help instate business.
3. State may only tax activities if there is a substantial nexus between product or activity to be taxed and state.
4. State taxation of interstate business must be fairly apportioned.
5. Full faith and Credit –must enforce all judgments of courts in another state so long as:
6. Courts that rendered or issued the judgments must have personal & subject matter jurisdiction
7. Judgment must be on the merits
8. Judgment must be final.

THE STRUCTURE OF THE CONSTITUTIONAL PROTECTION OF INDIVIDUAL LIBERTIES

1. Is there gov action?
2. Constitution only applies to GOV. PRIVATE CONDUCT need not comply with Constitution.
3. Congress by statute may apply constitutional norms to private conduct.
4. Only provision that applies directly to private conduct. 13th Amendment (prohibits slavery and involuntary servitude). Congress can prohibit private race discrimination & has broad powers to adopt laws to enforce this provision.
5. Pursuant to Commerce Clause, Congress can apply constitutional norms to private conduct as it did when it adopted Civil Rights Act of 1964.
6. Congress cannot use sec5 of 14th Amendment to regulate behaviour, only to regulate state and local gov.
7. EXCEPTIONS – where private conduct must comply with the constitution.
8. Public Function Exception - If a private entity is performing a task traditionally done by gov
9. The Entanglement exception – if the gov affirmatively authorizes, encourages or facilitates unconstitutional activity.

KEY EXAMPLES

1. Courts cannot enforce racially restrictive covenants
2. There is a state action where gov leases premises to a restaurant that racially discriminates

iii. There is state action where a state provided free books to private schools that racially discriminate.

1. NO state action when private school that is over 99% funded by gov fires a teacher because of her speech.
2. NO state action when NCAA orders the suspension of a basketball coach state University.
3. State action – when private entity regulates interscholastic sports within a state

vii. No state action – when private club with a liquor license from the state racially discriminates.

1. The application of the Bill of Rights
2. Directly applies to the federal gov.
3. Applies to state and local gov through its incorporation unto the due process clause of the 14th Amendment.

EXCEPT (never incorporated)

1. 3rd amendment right – not to have a soldier guard in the person’s home
2. 5th amendment right to grand jury indictments in criminal cases
3. 7th amendment right – jury trial in civil cases
4. 8th amendment right – against excessive fines
5. LEVELS OF SCRUTINY

SEE CHART 4

WHEN SUPREME COURT ADDRESSES INDIV LIBERTIES UNDER CONST, OUTCOME OF ANALYSIS WILL DEPEND ON LEVEL OF SCRUTINY USED BY COURT.

RATIONAL BASIS- LAW UPHELD IF RATIONALLY RELATED TO LEGITIMATE GOVT PURPOSE + BURDEN OF PROOF ON CHALLENGER

INTERMEDIATE SCRUTINY- LAW UPHELD IF SUBSTANTIALLY RELATED TO IMPORTANT GOVT PURPOSE + GOVT BURDEN OF PROOF

STRICT SCRUTINY- LAW UPHELD IF NECESSARY TO ACHIEVE A COMPELLING PURPOSE + BURDEN OF PROOF ON GOVT

VI Individual Liberties

PROCEDURAL DUE PROCESS- procedures govt must follow to take away someone’s LIFE, LIBERTY OR PROPERTY.

1 Has there been deprivation of life, liberty or property (LLP)?

Liberty= loss of sign freedom provided by Const or statute

Deprivation of property= person has entitlement/reasonable expectation in continued receipt of benefit

Govt negligence not sufficient for deprivation of due process. Must be intentional govt action/ reckless action for liability to attach, (prisoner/pillow)

Emergency situation govt liable if conduct shocks the conscience

Govt failure to protect from privately inflicted harms doesn’t violate due process.

2 If deprivation of LLP, what procedures required>

THREE PART BALANCING TEST

I IMPORTANCE OF INTEREST TO INDIVIDUAL (THE MORE IMPORTANT THE INTEREST THE MORE PROCEDURAL PROTECTION WILL BE REQUIRED)

II ABILITY OF ADDITIONAL PROCEDURES TO INCREASE ACCURACY OF FACT FINDING

III GOVT INTEREST= EFFICIENCY + SAVE MONEY

Welfare benefits= notice+ hearing

Permanent termination of parent’s right to custody = notice + hearing

Except emergency, before adult institutionalised = notice + hearing

Social security disability benefits termination = post-termination hearing

Harm to reputation = not loss of liberty

Prisoners= no loss of liberty

Punitive damages awards= jury instructions to guide discretion + judicial review to ensure reasonable awards

Non citizen held as enemy combatant= ability to challenge continued detention

US citizen facing criminal charges in foreign country held by American military= can file habeus corpus petition sekeing review of their detention

Refusal of a judge if substantial risk of bias

SEE CHART 5

SUBSTANTIVE DUE PROCESS

Economic liberties & safeguards to property

1 Ask if govt has adequate reason for taking away person’s LLP

Constitution= minimal protection for economic liberties

Rational basis test used for economic liberties!

Takings Clause – 5th Amendment

Govt may take private property for public use but only if provides just compensation

Separate test and not levels of scrutiny

I Is there a taking? Possessory taking- govt confiscation/physical occupation of property & regulatory taking- no reasonable economically viable use of property

Decrease in value not taking

Govt conditions on development of property must be justified by benefit that’s roughly proportionate to burden imposed.

Temporarily denying owner use of property is not taking so long as govt’s actions reasonable

II is it for public use> Govt acts out of reasonable belief that taking will benefit public

III is just compensation paid? Measured loss to owner in reasonable market terms- gain to govt irrelevant

SEE CHART 6

Article 1 contracts clause- no state shall impair the obligations of contracts

STATE & LOCAL GOVT MAY INTERFERE WITH EXISTING PRIVATE CONTRACTS IF INTERMEDIATE SCRUTINY IS MET = 1) DOES LEGISLATION SUBSTANTIALLY IMPAIR A PARTY’S RIGHTS UNDER EXISTING CONTRACT? 2) IF SO, IS THE LAW A REASONABLY AND NARROWLY TAILORED MEANS OF PROMOTING THE IMPORTANT AND LEGITIMATE PUBLIC INTEREST?

State/local interference with govt contracts= strict scrutiny

Constitution says fed or state govts cannot adopt ex post facto laws- doesn’t apply to civil cases only criminal

PRIVACY

Fundamental right protected under SUBSTANTIVE DUE PROCESS & STRICT SCRUTINY standard must be used when govt interferes with fund rights

Right to marry

Right to procreate

Right to custody of one’s children (terminated if theres parental abuse.neglect)

Right to keep family together – includes extended family

Right of parents to control the upbringing of their children

Right to purchase and use contraceptives

Right to abortion:

Prior to viability

state cannot prohibit abortions so long as they don’t create undue burden on ability to obtain abortions.

Not undue burden= req to wait for 24h to obtain abortion, req that abortion be performed by licensed physician (constitutional), prohibition of partial birth abortions is constitutional

After viability

States may prohibit abortions unless necessary to protect woman’s life/health

Govt has no duty to subsidise abortions or provide abortions in public hospitals

Spousal consent & notification laws unconstitutional

Parental notice and consent laws for unmarried minors- state may require parental notice/consent for unmarried minor’s abortion so long as it create alternative procedure where minor can obtain abortion by going before a judge who can approve abortion by finding it would be in minor’s interest or she’s mature to decide for herself.

Right to privacy – right to engage in private consensual same sex activity

Right to refuse medical treatment

Competent adults have right to refuse med treatment even if life-saving

State has compelling interest in protecting the sanctity of persons life and may require clear and convincing evidence that person wanted treatment terminated before it is ended.

State may prevent family members from terminating treatment of another.

No const right to physician assisted suicide

2nd Amendment right to bear arms- supreme court- right to have weapons for self-defence – level of scrutiny unknown

Right to travel

Laws that prevent people from moving into state must meet strict scrutiny

Supreme court- voting purposes, 50 days max durational requirement

No fund right to international travel – restrictions on foreign travel = rational basis test

Right to vote= fundamental

Laws denying citizens right to vote must meet strict scrutiny

One person one vote must be met for all state and local elections

At large elections OK unless discriminatory purpose shown

Use of race in drawing election district lines= strict scrutiny

Counting uncounted votes w/o standards in a presidential election violates equal protection

No fund right to education under Equal Protection of US Constitution

SEE CHART 7

EQUAL PROTECTION

Whenever govt draws distinction among people- basis for EP challenge

EP challenges- 3 steps:

1 WHAT IS THE CLASSIFICATION

2 LEVEL OF SCRUTINY TO BE APPLIED

3 DOES THIS LAW MEET THE LEVEL OF SCRUTINY

Constitutional provision re EP

EP clause of 14th Amendment applies ONLY top state and local govts NEVER to Fed govts

EP applied to fed govt through due process clause of 5th amendment

CLASSIFICATIONS based on RACE/NATIONAL ORIGIN:

STRICT SCRUTINY used whenever govt discriminates against people on basis of their race/country of ancestor origin

Proof of existence of classification:

Classification exists on face of law OR

If law is race-neutral on its face- demonstrate DISCRIMINATORY IMPACT AND DISCRIMINATORY INTENT

Racial classification benefiting minorities:

Strict scrutiny

Numerical set asides require clear proof of past discrimination

Educ institutions may use race as 1 factor in admissions decisions to befit minorities/ethnic diversity

Public school systems- use of race in assigning students to schools- strict scrutiny

GENDER CLASSIFICATION

INTERMEDIATE SCRUTINY + EXCEEDINGLY PERSUASIVE JUSTIFICATION

Proof of existence of gender classification:

1 DOES CLASSIFICATION EXIST ON FACE OF LAW?

2 IF LAW FACIALLY GENDER-NEUTRAL – DISCRIMINATORY IMPACT AND DISCRIMINATORY INTENT

Gender classifications benefiting/disadvantaging women- intermediate scrutiny used.

Gender classifications benefiting women and based on role stereotypes not allowed (women can get alimony and men cannot- wtf)

Gender classifications benefiting women that are designed to remedy past discrimination/differences in opportunity allows.

ALIENAGE CLASSIFICATIONS (non-US citizens)

Laws that discriminate against non citizens= strict scrutiny

Certain privileges may be reserved just for citizens: voting, serving as jury, police officer, teaching, probation officer- rational basis for this analysis

Intermediate scrutiny for undocumented alien childen

Discrimination against non-marital children

Intermediate scrutiny

RATIONAL BASIS REVIEW FOR ALL OTHER TYPES OF CLASSIFICATION:

AGE, DISABILITY, WEALTH, GOVT ECONOMIC REGULATIONS, SEXUAL ORIENTATION

FIRST AMENDMENT

Constitutions protection of FREE SPEECH

Regulation seeking to forbid communication of specific ideas= content regulation and less likely to be upheld than regulation of CONDUCT incidental to speech

Content based restrictions on speech= strict scrutiny

e.g. state may not prohibit sale of violent video games- court refused to add violence as additional area of unprotected speech

SUBJECT MATTER restriction- application of law depends on topic of message

VIEW POINT restriction- application of law depends on ideology of speech

CONTENT NEUTRAL  laws burdening speech generally need to meet only intermediate scrutiny

Prior restraints- stopping speech before it happens- strict scrutiny

Procedurally court orders must be complied with until they are overturned

Person who violates court order is later barred from challenging it

Gag orders on press to prevent prejudicial pre trial discovery not allowed

Govt may require license for speech only if there is important reason for licensing and clear criteria leaving almost no discretion to the licensing authority + must be procedural safeguards such as prompt determination of requests for licenses and judicial review of license denials

Vagueness and overbreadth

Vagueness- law const vague if reasonable person cannot tell what speech is prohibited and what allowed

Overbreadth- law unconst overbroad if it regulates subst more speech than constitution allows to be regulated

Fighting words not protected speech- but statutes attempting to punish such speech are found to be vague.

Symbolic Speech:

Govt may regulate conduct that communicates if it has an important interest unrelated to suppression of message and if impact on communication is no greater than necessary to achieve govts goal

Flag burning- protected

Draft card burning- not protected

Nude dancing- not protected

Burning cross- protected unless burned with intent to intimidate (KKK)

Contribution limits on election campaigns- allows

Expenditure limits in campaigns- not allows

Anonymous speech protected by 1st amend

State has interest in promoting transparency and accountability in elections- sufficient to justify public disclosure of names and addresses of persons who sign ballot petitions

Speech by govt cannot be challenged as violating 1st amend- generally govt speech and govt funding of speech will be upheld as long as it is rationally related to legit state interest

Unprotected/less protected speech under 1st amend

Incitement of illegal activity unprotected by 1st amend. Modern test- govt may punish speech if theres substantial likelihood of imminent illegal activity and if speech directed to causing imminent illegality

Obscenity and sexually oriented speech

TEST:

1 MATERIAL MUST APPEAL TO THE PRURIENT INTEREST OR A SHAMEFUL OR MORBID INTEREST IN SEX

2 MATERIAL MUST BE PATENTLY OFFENSIVE UNDER LAW PROHIBITING OBSCENITY

3 TAKEN AS A WHOLE, MATERIAL LACKS SERIOUS REDEEMING ARTISTIC, LITERARY, POLITICAL OR SCIENTIFIC VALUE AS DETERMINED BY A NATIONAL STANDARD

GOvt may use zoning ordinances to regulate the number or location of adult bookstores and movie theatres

Child porno may be completely banned even if not obscene (children must be used in production)

Govt may not punish private possession of obscene materials but may punish possession of child porn

Govt may seize assets of businesses convicted of violating obscenity laws

Profance and idescent speech generally protected by 1st amend – exception: 1 free over air media but not cable tv 2 schools (fuck the draft t shirt case of teen in court)

Commercial Speech

Advertising for illegal activity and false and deceptive ads not protected by 1st amend

Event true commercial speech that inherently risks deception can be prohibited

States may prevent professionals from advertising or practising under trade name

States may prohibit attorney inperson solicitation of clients for profit

Lawyers who advertise as debt relief agencies can be required to include info about their legal status and nature of assistance provide along with the possibility of debtors filing for banlruptcy

Govt may not prohibit accountants from inclient solicitation of clients for profits (accuracy whereas attorney is advocacy- distrusted)

Other commercial speech can be regulated by govt if intermediate scrutiny is met.

GOVT REGULATION OF COMMERCIAL SPEECH MUST BE NARROWLY TAILORED BUT IT DOESN’T NEED TO BE THE LEAST RESTRICTIVE ALTERNATIVE

DEFAMATION:

If P PUBLIC OFFICIAL or running for public office the P can recover for defamation only by proving with clear and convincing evidence the falsity of the statement and actual malice  meaning the D knew the statement was false or acted with reckless disregard of truth presumed or punitive damages

If P PUBLIC FIGURE P can recover for defamation by proving falsity of statement and actual malice presumed or punitive damages

If P private figure and thee matter is of public concern state may allow the P to recover compensatory damages for defamation by proving falsity of the statement and negligence by D (specker wasn’t as careful as a reasonable speaker should have been). However, P may recover presumed or punitive damages only by showing actual malice.

If P is private figure  and matter not of public concern (private) P can recover presumed or punitive damages w/o proving actual malice

Liability for intentional infliction of emotional distress for defamatory speech must meet the defamation standards and cannot exist for speech otherwise protected by 1st amendment

SEE CHART 9

Privacy and 1st Amendment

State may not create liability for truthful reporting of info that was legally obtained from govt records

Media may not be held liable for broadcasting a tape of an illegally intercepted and recorded call so long as media didn’t participate in illegality and involves matter of public importance.

Govt may restrict its own dissemination of info to protect privacy. Only instance where public has 1st amend right to attend govt proceedings and have access to govt papers if for criminal trials and pre-trial proceedings

Speech by court employees on job in performance of their duties isn’t protected by 1st amend

Other govt restriction based on content of speech must meet strict scrutiny

PLACES AVAILABLE FOR SPEECH

Public forums- govt properties that govt is constitutionally required to make available for speech

Regulations must be subject matter and view point neutral or if not, strict scrutiny must be met

Regulations must be time, place and manner regulation that serve important govt purpose and leave open adequate altern places for communication

Govt regulation of speech in public forums needn’t use least restrictive alternative (concert in park- use city engineers- more costly but doesn’t have to be cheapest alt)

Permit fee requirements for parades/demonstrations unconstitutional if city officials have discretion in setting amount of fee

Designated public forums – govt properties that govt could close off to speech but chooses voluntarily to open to speech- same rules as for public forums (public schools on weekends)

Limited Public Forums- govt properties that are limited to certain groups or dedicates to discussions of certain topics – govt can regulate speech in limited public forums so long as regulation is reasonable and viewpoint neutral

Non-public forums govt properties that the govt constitutionally can and does close off for speech. Govt can regulate speech in non-public forums so long as the regulation is reasonable (rational basis test + viewpoint neutral) e.g. military bases, areas outside prisons and jails, schools, signs on public property, sidewalks, airports (cant restrict dissemination of literature but ok to restrict solicitation for money)

No 1st amend right to access to private property for speech purposes (shopping mall)

SEE CHART 10

Freedom of association

Laws prohibiting or punishing group membership must meet strict scrutiny

To punish membership in a group it must be proven that person: 1 is actively affiliated with the group 2 has knowledge of the groups illegal activities 3 has specific intent of furthering those illegal activities or objectives

Laws that require disclosure of group membership where such disclosure would chill association must meet strict scrutiny

Freedom of association doesn’t protect right to discriminate unless 1 exception “intimate association” (small dinner party/few people) 2 exception: discrimination is integral to expressive activities of the group e.g. KKK, nazi, boy scouts

Freedom of religion

Free exercise clause: cannot be used to challenge a neutral law of general applicability

The govt may not deny benefits to individuals who quit their jobs for religious reasons

ESTABLISHMENT CLAUSE: 3 PART TEST: SECULAR PURPOSE FOR LAW 2 EFFECT (PRIMARY) MUST BE NEITHER TO ADVANCE NOR INHIBIT RELIGION 3 XCESSIVE THERE MUST NOT BE EXCESSIVE GOVT ENTANGLEMENT WITH RELIGION

Govt cannot discriminate against religious speech or among religions unless strict scrutiny is met.

Govt sponsored religious activity in public schools is unconstitutional. But religious student and community groups must have same access to school facilities as non-religious groups.

School prayer even if voluntary is not allowed- not even a moment of silent prayer

Govt may give assistance to parochial schools so long as it is not used for religious instruction. Govt may provide parent vouchers if they use parochial schools.