CON LAW II. NATIONAL POWERS A. BALANCING THE POWERS 1. Action by Congress or President may be uncon if: a.

No constitutional authorization for action; or if exceeds authorization b. Usurpation of power granted to another branch; or c. Constitutes improper delegation of power by one branch to another 1) To delegate power from one branch to another: a) State the legislative objective sought b) Prescribe the method of achieving the said objective c) Set stds to guide the administrative determination (Yakus) 2) No legislative veto b/c formalities of the Bicameral and Presentment clauses must be observed when Congress legislates (Chadha) B. SCOPE OF THE NATIONAL EXECUTIVE POWER 1. Basis of power- Article II; well defined and carefully construed by SC to maintain balance and separation among three coordinate branches 2. Important powers a. Art I, 7 grants prez power to sign or veto legislation passed by Congress b. Art. II, 2 and 3 grant prez the following: 1) Power as Commander-In-Chief of Armed Forces 2) Power to grant reprieves and pardons 3) Power to make treaties, subject to Senate approval 4) Power to appoint ambassadors, judges, and all other officers of the U.S., subject to Senate approval 5) Power to convene special sessions of Congress; and 6) Power to enforce and execute all laws of the U.S. 3. In foreign affairs, executive powers are at their highest (Dames and Moore)

4. In domestic affairs, is strongest when acting pursuant to Congressional authorization (Youngstown Steel) C. SCOPE OF NATIONAL LEGISLATIVE POWER 1. Basis of power a. Art. I, 8 provides enumerated powers to Congress: 1) Power to impose taxes and pay debts 2) Power to borrow money 3) Power to regulate interstate commerce 4) Power to establish naturalization rules and bankruptcy laws 5) Power to coin and regulate the value of money and fix standard weight and measures 6) Power to punish for counterfeiting 7) Power to establish post offices and roads 8) Power to grant copyrights and patents 9) Power to create lower federal courts 10) Power to define and punish piracy and other crimes under international law 11) Power to declare war 12) Power to raise and support armies 13) Power to provide and maintain a Navy 14) Power to regulate land and navy forces 15) Power to call forth a domestic militia 16) Power to organize and regulate a militia 17) Power to legislate w/ respect to the D.C. b. It also grants the further power to make all laws that shall be necessary and proper for carrying into execution any other power granted by Con c. To be necessary and proper, legislation need only be convenient or useful to the exercise of an enumerated power (McCulloch v. Maryland)

2. Important enumerated powers a. Commerce power- Art. I, 8, cl. 3 grants to Congress the power to regulate commerce among the states. Issue is whether necessary and proper- related question of whether state regulation unconstitutionally burdens the federal power to regulate commerce 1) Scope of commerce power has been broadened over time by Cts: a) Channels: Congress can regulate the use of channels of interstate commerce. Thus, Congress can regulate in a way that is reasonably related to highways, waterways, and air traffic b) Instrumentalities: Congress can regulate instrumentalities of interstate commerce, even though the threat may come only from intrastate activities. Refers to people, machines, and other things used in carrying out commerce. c) Substantially affecting commerce: Congress may regulate those activities having a substantial effect on interstate commerce. Lopez i. Substantial effect: * Congressional findings- helpful in showing how regulated activity affects commerce * Jurisdictional nexus * Commercial activity- doesnt seem to matter whether particular instance of activity directly affects interstate commerce, if part of a general class of activities that collectively, substantially affect interstate commerce * Not commercial- there will apparently have to be a pretty obvious connection between activity and interstate commerce * Traditional domain of states- Ct is less likely to find Congressional authority if activity is one that traditionally has been domain of states b. Taxing and spending power 1) Art. I, 8 cl. 1 grants Congress power to tax and spend for payment of national debts and for general welfare 2) Requires all taxes be uniform throughout U.S., but 16th Amendment authorizes imposition of an income tax w/o apportionment among the states or by populace

3) Limitation that spending be for general welfare does not require that it be in furtherance of one of the other enumerated powers a) Congress may withhold funds from state that does not satisfy conditions provided conditions related to general welfare 4) So long as tax is productive of some income, will not be invalidated on ground that it also constitutes regulatory measure a) Regulatory aspect must comport w/ other Con restraints; a tax that seriously and unnecessarily burdens a fundamental right, therefore, may be uncon c. War and treaty powers 1) Congress has power to declare war; prez is Commander-In Chief 2) Federal government also possess powers of external sovereignty that do not depend on any specific constitutional source (Curtis-Wright Export Corp.) 3) War Powers Resolution Act allows prez to send troops into battle for a set period of time and Congress reserves the right to either declare war or the troops come home a) May be uncon delegation of power to executive branch because it is a broad delegation of power and there seems to be no articulated standards set by Congress b) Congress may also reserve in itself an uncon legislative veto 4) Another issue in war and treaty power litigation is whether domestic federal activity, such as imposition of martial law, can be justified as an exercise of power. Ex Parte Milligan 5) A Congressional exercise of the war and treaty power is subject to other Con limitations (Bill of Rights) D. SEPARATION OF POWERS 1. Structural limitations on national powers a. One branch cannot exercise a power constitutionally granted to another branch. Conversely, one branch cannot abdicate its powers to another through a broad unlimited delegation b. A legislative delegation of power to the executive branch or judicial branch will violate the principle of separation of powers unless the delegation includes sufficient standards such that the delegatees actions can be judged for its fidelity to the legislative will

c. Once power is properly delegated, Congress cannot retain in itself a legislative veto over the exercise of that power by the executive or judicial branch 2. Powers reserved to the states; the Tenth Amendment a. The Tenth Amendment provides that the powers not delegated to the U.S. by Con nor prohibited by it to the States, are reserved to the States respectively, or to the people b. Garcia: so long as a federal action is w/n the scope of one of the enumerated federal powers and cannot be deemed to be destructive of state sovereignty, it does not violate the Tenth Amendment 1) New York and Printz seem to stand for propositions that Congress may not (1) force a state to legislate or regulate in a certain way; or (2) require state executive-branch personnel to perform even ministerial functions a) Unfunded mandates: Congress could presumably get around these problems by conditioning the states or local governments receipt of federal funds on its officials willingness to do the federal bidding. Only compulsion, not a voluntary quid pro quo, seems foreclosed. III. STATE POWERS A. SOURCE OF STATE POWERS 1. Tenth Amendment: reserves to states or to people those powers not expressly granted to federal government nor prohibited by states by the Con. 2. Traditional domain of states: it is well recognized that states posses power to regulate and promote health, safety, morals and welfare of their citizens B. STRUCTURAL LIMITATIONS ON STATE POWERS; THE SUPREMECY CLAUSE 1. Art. VI, cl. 2 provides that Con, federal laws made pursuant to the Con and U.S. treaties shall be the supreme law of the land 2. State action is preempted by federal legislation if there is a collision b/w the two 3. State action can be preempted by federal legislation only when there is a clear congressional intent to do so. If there is a gap in federal legislation, states will be permitted to legislate w/n the gaps 4. Three types of preemption: a. Express: has Congress expressed an intent to preempt a field? Is there a pervasive and dominant federal interest in the field? b. Implied: is there a pervasive federal regulatory scheme?

c. Conflict: does state law conflict w/ federal statute? C. STRUCTURAL LIMITATIONS ON STATE POWERS: DORMANT COMMERCE CLAUSE 1. Dormant Commerce Clause- the mere existence of the federal commerce power restricts the states from discriminating against, or unduly burdening, interstate commerce 2. Test: a. Does state regulation discriminate against interstate commerce? 1) A state law or action that discriminates against interstate commerce in favor of intrastate commerce is per se uncon regardless of its purpose a) Facially discriminatory b) Discriminatory in effect b. If not, does it burden interstate commerce? 1) Pike balancing test: a) The regulation must pursue a legitimate state end b) The regulation must be rationally related to the legitimate state end; and c) The regulatory burden imposed by the state on interstate commerce must be outweighed by the states interest in enforcing its regulation d) The final question is whether the legitimate state interest can be promoted as well w/ lesser impact on interstate activities 3. A states interest in the health and safety of its citizens has been found to be sufficiently important to justify a burden that otherwise may be excessive 4. A burden on interstate commerce generally will not be upheld if there is a less burdensome alternative available to the state 5. A state law or action that serves primarily to protect or promote a states own economic interests generally will not be upheld even if it professes to promote public health and safety 6. Exception for Governmental Market Participation: a. State and local governments are not restricted by the Commerce Clause when they act as market participants rather than market regulators 1) When government acts as spending agent, it can favor its citizens

b. However, the market participation exception is limited in that a state or local government cannot use participation in one market to regulate another market in which it is not a participant D. STRUCTURAL LIMITATIONS ON STATE POWERS; THE PRIVILEGES AND IMMUNITES CLAUSE 1. Art. IV, 2 provides that the citizens (must be natural persons) of each state shall be entitled to all Privileges and Immunities of citizens in the several states 2. However, the clause applies only to those privileges that are fundamental, for example: a. Right to travel b. Right to own property c. Right to transact business or carry on a trade 3. It does not apply to non-fundamental rights, such as the right or privilege to hunt elk or engage in other recreational activities 4. A state may discriminate against a nonresident w/ respect to protected fundamental right only where its reasons are substantial and the difference in treatment bears a close relationship to the reasons E. COMMON APPLICATIONS OF STRUCTURAL LIMITATIONS ON STATE POWERS; LIMITATIONS ON STATE TAXATION 1. States power may be limited by: a. Commerce Clause b. The 14th Amendment c. The Privileges and Immunities Clause d. The Import-Export Clause 2. Commerce Clause limitations- state taxes that unduly burdens or discriminates against interstate commerce violates the Commerce Clause a. Property taxes- state may impose nondiscriminatory tax upon property or activities which have a substantial nexus w/ the taxing state. Although moving in interstate commerce, movable property may be taxed if it has come to rest and thereby acquired a tax situs w/n the state. Thus, a state may tax property b/f its interstate movement has begun or during a significant interruption in its interstate movement. The tax must also be fairly apportioned to the activity occurring w/n the taxing state, and fairly related to the services provided by the state

b. Income taxes- issue is whether the taxpayer is subject to risk of multiple taxation. State may impose a tax on net income derived by a domestic corporation from interstate transactions so long as the tax does not discriminate against interstate commerce and is fairly apportioned to activities w/n the taxing state to avoid multiple taxation 1) Factors: a) Applied to activity w/ a substantial nexus w/ taxing state b) Fairly apportioned c) Does not discriminate against interstate commerce d) Fairly related to services provided by state c. Sales and use taxes 1) A state cannot impose a sales tax on a sale occurring entirely in another state or on an interstate sale if the effect is to discriminate against interstate commerce 2) A state can require a foreign seller to collect a use tax on goods shipped into a state only if the seller has a sufficient nexus w/ the taxing state 3) A sales or use tax can be defeated by showing the risk of multiple taxation, but the burden to show is on the taxpayer 3. Privileges and Immunities Clause limitations- the right to pursue ones trade is protected. If a state restricts a protected privilege or immunity and is discriminatory against citizens of other states, it is uncon 4. 14th Amendment limitations a. Due Process Clause 1) Does the state have sufficient relation to the property or activity to be taxed? If the TP has no minimum contacts w/ the state, the tax will violate the DPC 2) Is the tax fairly apportioned to avoid multiple taxation? Burden on TP b. Equal Protection Clause 1) The basic question is whether the classification in the taxing scheme employed has a rational basis 2) States are given broad discretion in discriminating b/w different kinds of property or different kinds of TPs, as long as the classification is reasonable

5. Import-Export Clause limitations a. Article I, 10 prohibits a state from imposing imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws b. The purpose is to prevent taxes that amount to transit fees for privilege of moving imports or exports through a state c. When imported goods come to rest w/n a state, they receive the benefits and protections of the states laws and thereby acquire a tax situs that will support a tax, even if the tax has an incidental effect on the volume of goods imported F. CONTRACT CLAUSE 1. Article I, 10 prohibits, among other things, any state law impairing the obligation of Ks 2. The USSC has used the K Clause to invalidate state laws that effected severe change in contractual obligations. The principles that have emerged from these decisions include: a. A state my not pass a law to undo its own contractual obligation b. A state may not pass a law that retroactively effects a severe change in contractual circumstances unless the law is necessary to solve a broad economic or social problem (Spannauer) 3. The K Clause will not be applied to invalidate a state law that only has indirect effect on Ks G. TAKINGS AND IMPAIRMENTS OF PROPERTY VALUES 1. The Fifth Amendment states that nor shall private property be taken for public use, w/o just compensation. Issues: a. Was there a taking? If law merely affects land use and does not effect a taking, no compensation is due b. Was the taking for a public purpose? If not, a landowner may obtain a return of the property. If the taking was for a public purpose, the landowner is entitled to just compensation c. What constitutes just compensation? 2. What constitutes a taking? a. Physical occupation of property by state or condemnation of property

b. Denial of all rights in land or substantially all use of land c. Other regulations that impair use of property- but will depend on degree of impairment. Zoning ordinances generally will not rise to the level of a taking unless they deny the property owner substantially of all his use of the property 1) A substantial regulation of property use will not be viewed as a taking that requires just compensation when the regulation is closely related to a substantial public purpose 2) But a substantial regulation may be viewed as a taking requiring compensation when not closely related to its asserted public purpose 3. Is the taking supported by a public purpose a. States are given wide latitude in advancing public purposes to support takings. A states legislatures declaration as to a public purpose will not be disturbed unless palpably w/o reasonable foundation b. Even if the state advances a public purpose, the purpose nonetheless must be closely related to the state regulation in order to support the regulation 4. Just compensation a. Just compensation ordinarily takes the form of money damages b. The calculation of time for which compensation is due begins from time the use of the property was denied, not from the time a taking declared by court IV. PROTECTION OF INDIVIDUAL RIGHTS A. THE REQUIREMENT OF STATE ACTION- the 14th Amendment provides that no state shall deprive any person of due process or equal protection of the laws. Thus, the P must allege some state action. Passing law- direct/clear Indirect actionunclear 1. Mere permission of private action is not usually sufficient 2. Affirmative state involvement necessary a. Leasing public property to private party found sufficient b. Grant of state liquor license to private club found insufficient 3. Unless state, through legislation or otherwise, encourages an illegal private action, state action does not exist a. A states enforcement of a racially discriminatory private action constitutes state action

b. Judicial enforcement of racially-motivated or gender based peremptory challenges constitutes state action B. PROCEDURAL DUE PROCESS IN CIVIL PROCEEDINGS 1. When persons liberty or property interests are affected by government or state action, person entitled to procedural due process. Three elements: a. The presence of state action b. An adverse effect on recognized liberty or property interest c. Notice and meaningful opportunity to be heard 2. To be entitled to procedural due process protection, property interest must be vested by law or otherwise a. Faculty member at state institutions and civil service workers who have tenure have vested property interests in continued employments b. Temporary state employment w/o civil service status not vested 3. Liberty interest must involve a fundamental right 4. The nature and timing of the required notice and opportunity to be heard will vary w/ circumstances: a. Private interest affected b. Risk of erroneous deprivation through procedures used c. Probable value of additional procedural safeguards d. Governments interest including function involved and fiscal administrative burdens that additional requirements would entail (Matthews v. Eldridge) 4. How much process due? Factors: a. Are common law safeguards adequate to protect right, or is additional process needed? b. Is a pre-deprivation hearing necessary to provide a check against some substantial loss to individual? c. Will the requested procedures substantially reduce risk of erroneous deprivation of right? d. Has there been a historical incidence of abuse of these rights? C. SUBSTANTIVE DUE PROCESS

1. Economic business regulations a. Laws regulating business operations are valid so long as regulations are reasonably related to valid police power purpose b. Courts will generally not invalidate regulation merely b/c there might be more effective method c. As long as there is at least a rational relationship b/w evil sought to be remedied and regulatory means, regulation will be upheld d. Punitive damages will violate DPC if grossly excessive in relation to the states legitimate interests in punishing unlawful conduct and deterring its repetition. Court will examine : 1) Degree of reprehensibility of Ds conduct 2) Ratio b/w compensatory damages and punitive damages 3) Difference b/w punitive damages and criminal/civil sanctions that could be imposed for same conduct 2. Privacy and personal rights a. Laws that infringe upon fundamental rights may be invalid under DPC of 5th and 14th. Determination of what is fundamental made on case-by-case basis b. Any personal activity or relationship that is associated w/ the idea of personal privacy should be afforded process protection 1) Examples- marriage, procreation, abortion, family relationships c. The right of privacy does not protect homosexual activities d. Also, no federal constitutional right to die 4. Right to travel a. Not explicitly mentioned in Con, but recognized as fundamental right b. To bring into play compelling state interest test, classification must be deemed to penalize person who exercises right of interstate migration 1) Example- one year waiting period for new residents to seek welfare c. Most cases involve state residency requirements. Cases indicate that residency requirements will be deemed to penalize right where it results in an outright denial of some other right that is fundamental. If it merely delays the result sought by traveler, then it probably does not constitute enough of a penalty to bring into play the compelling state interest test

5. Right to vote a. Other than 15th (Blacks) and 19th (Women), Con does not identify protected right to vote. Recognized by court b. A law which places severe restrictions on right to vote will be subject to strict scrutiny and invalid unless supported by a compelling state interest 1) State does have compelling state interest in accuracy of its voting rolls and therefore can establish a reasonable cut-off period for voter registration c. A law that places a reasonable non-discriminatory restriction on voting will be reviewed to determine whether it is sufficiently justified by an important state interest 1) State has important interest in preventing voter confusion and unrestrained factionalism at polls d. Implied right to have vote counted equally 1) Right to vote in special purpose elections may be limited to certain voters e. Right of access to the ballot. Any restriction on qualifying as a candidate must be no greater than necessary to promote compelling state interest 6. Other fundamental rights a. First Amendment rights- (and the remainder of the Bill of Rights) should be viewed as fundamental; however, laws that impinge upon these rights generally are analyzed directly under First Amendment analysis b. Right to education- USSC declined to hold that education is fundamental right. Classifications burdening access to education are judged under rational relationship test. Nonetheless, the Court has not tolerated laws denying education to children based on status as alien D. EQUAL PROTECTION OF THE LAWS 1. Deals w/ classifications a. Basic rule is that persons similarly situated must receive similar treatment. When persons are put in different classifications by a law, the issue is whether the classifications employed are valid b. Depends on whether classification characterized as: 1) Burdensome to constitutionally protected rights 2) Inherently suspect, or

3) Neither burdensome nor suspect 2. Classifications that burden constitutionally protected interests (fundamental rights)- to be valid, classifications that burden fundamental rights must be shown to be necessary to satisfy a compelling state interest and drawn as narrowly as possible to satisfy that interest a. The fundamental rights include the substantive DP rights as well as rights protected by First Amendment b. If classification burdens a fundamental right, the law employing the classification will be reviewed to determine whether it (a) serves a compelling state interest and (b) is narrowly tailored (no broader than necessary) to serve that interest c. Laws or regulations that impose waiting periods on travelers may create classifications that burden fundamental right to travel. For example, a residency requirement for voting creates a classification that burdens the fundamental right to vote, and will be upheld only if no longer than necessary to satisfy the states compelling interest in maintaining accurate voting rolls (50-day waiting period upheld while one-year period invalid) 3. Suspect classifications- an inherently suspect classification will seldom, if ever, be upheld. However, where a law is facially neutral, a discriminatory impact, by itself, is not enough to invalidate the law; the party attacking the law must show a discriminatory purpose a. Race 1) Racial classifications are subject to most rigid scrutiny and if they are upheld, must be shown to be substantially necessary to the accomplishment of some compelling state objective 2) When not facially discriminatory, the party challenging has the burden of proving a discriminatory purpose. Difficult, but satisfied by showing that the legislation was intended to work to disadvantage of a particular racial group 3) Proof of discriminatory impact alone does not establish EP violation (although it is a factor to consider in a claim under Title VII of the Civil Rights Act) 4) Affirmative action- benign racial classifications can be used w/o violating the EPC when they are part of a carefully crafted affirmative action plan to assist a previously disadvantaged minority group in business, education or employment. Some principles have emerged: a) Race or sex may be considered to cure prior discrimination against or underrepresentation of an identifiable minority group

b) The worse and more particularized the prior discrimination, the greater the affirmative action remedy that can be employed. But, affirmative action plan must be tailored to correct the problem. Factors Court has considered to determine if plan properly tailored: i. Whether the plan has flexible goals ii. Whether plan is temporary; and iii. Whether plan is access-barring to other groups. Plans that are flexible, temporary and non-access barring are most likely to pass constitutional muster c) Certain remedies are disfavored in affirmative action setting. The use of layoffs and quotas to achieve affirmative action goals is disfavored. However, where a particular D has displayed rampant history of prior discrimination, the use of numerical quotas may be justified b. Classifications that are almost suspect- although not declared by USSC to be suspect, nevertheless treated as much in same manner 1) Gender a) Classifications explicitly based on gender, even if apparently benign, will be closely reviewed and will not be upheld if they reflect the baggage of sexual stereotypes b) When a classification is facially neutral but affects the sexes unequally, it will be held invalid only if a discriminatory purpose is shown c) Affirmative action plans narrowly designed to promote women in jobs from which they have traditionally been excluded are permissible 2) Alienage a) The EPC protects persons, which includes aliens as well as citizens. Classifications based on alienage must be sufficiently related to an important state interest to be upheld b) However, there is a political function exception that permits states to discriminate against aliens to protect a special public interest, such as qualifications for state elected officials and police officers c. Classifications that are not suspect, but which obtain more than minimal review 1) Illegitimacy- USSC held that classifications based on illegitimacy are not suspect and do not call for the highest standard of scrutiny. The practical

standard probably is somewhere b/w the strict scrutiny applicable to suspect classifications and the rational relationship test applicable to nonsuspect classifications that do not burden protected interests 2) Wealth- USSC indicated that classifications are subject to more than minimal scrutiny, but declined to label suspect 4. Classifications that neither are suspect nor burden protected rights a. Valid if rationally related to legitimate state interest b. Classification need not be best method for promoting states interest nor completely solve the problem being addressed; the state is permitted to take a gradual approach V. FIRST AMENDMENT RIGHTS A. FREEDOM OF EXPRESSION 1. Restrictions on content of speech- extent to which government can regulate speech depends on type of speech at issue. Different rules emerged depending upon whether reg is directed at political speech, obscenity, or commercial speech a. Content regulations in general 1) USSC consistently has struck down laws that seek to regulate based on content of speech. An impermissible content regulation either punishes one type of speech over others, or seeks to regulate based on message contained in the speech 2) Regulations based on content of speech are not tolerated unless they fall w/n one of the narrowly defined exceptions b. Political speech 1) Deserves the highest degree of protection under First Amendment. Government may not regulate unless the regulation is narrowly tailored to serve a state interest of the highest order 2) Speech advocating illegal or criminal acts can be subject to governmental control and punishment, even if the speech has political content. Mere advocacy of violence or illegal conduct, however, is not enough to justify governmental interference. There must be at least some possibility that the speech will result in the illegal conduct advocated. The more likely it is that the conduct will come to pass, the greater the ability of the government to restrict the advocacy of the conduct 3) Brandenberg test- government can regulate if speech is: a) Directed to imminent lawless action; and

b) Likely to incite or produce such action 4) The likelihood or probability that speech will result in illegal activity must be determined from the surrounding circumstances: a) How serious is the conduct advocated? b) How much influence does the speaker have? c) Who is listening to the speaker? d) Where is the speech occurring? e) Are there aggravating circumstances that would increase the likelihood of violence? c. Commercial speech 1) USSCs current view is that commercial speech is protected. The government may, however, regulate commercial speech that is false or deceptive 2) But more toleration on regulation of commercial speech when restriction is necessary to promote a substantial state interest, and provided there is reasonable fit b/w the regulation and the state interest at stake. As w/ other speech, commercial speech is subject to reasonable restrictions as to time, place and manner of speech 3) A corporation, like any other person, is entitled to full First Amendment protection when it engages in political speech. However, a state may impose limits on political spending from corporate treasuries to prevent the appearance of corruption in the political process d. Speech by public employees- although public employees do not relinquish their free speech rights as a condition of public employment, the right of a public employee to speak freely is not as broad in scope of right of a citizen not employed in public sector. The right to speak must be balanced against the states interest in efficiently performing state functions. Three-step test: 1) Speech must relate to a matter of public concern. Speech that relates solely to private interests is not protected in the public workplace 2) If the speech addresses a public concern, the government must show that its interest in efficiently delivering public services outweighs the employees free speech rights. Balancing test. Relevant factors include the states interest in the destruction of relationships essential to the fulfillment of public responsibilities, and the need for personal loyalty from the public employee 3) Even if the government cannot meet the second test, the government can justify its action by showing that a negative employment decision would

have been reached anyway for reasons unrelated to the employees speech e. Obscenity 1) Obscenity is not protected by the First Amendment. Can be controlled by states. Issue is what is obscene 2) USSC in Miller v. California developed three part test: a) Work must be such that the average person applying contemporary community standards would find that, taken as a whole, it appeals to a prurient interest b) Work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law; and c) Work taken as a whole, lacks artistic, political or scientific value 3) A state may impose regulations on speech that is harmful to minors. It is generally believed that greater state regulation is tolerated under this standard f. Fighting words 1) Restrictions may be placed on public speech that is likely to create a breach of the peace 2. Prior restraint a. Normally, government must wait until speech occurs b/f acting. Sometimes, however, it tries to prevent speech b/f it occurs b. Because this idea of censorship is directly contrary to our political history, prior restraint of speech is permitted only in extreme cases: any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validitythe government thus carries a heavy burden of showing justification for the enforcement of such restraint 3. Restriction on time, place and manner of expression a. Speech in public places 1) B/c speech in public places affects the public, the government may place reasonable restrictions on time, place and manner of the speech to protect the public. Time place and manner restrictions: a) Must not be thinly-veiled content restrictions and b) Must be no greater than necessary to achieve the government stated purpose

2) A license requirement can be a reasonable restriction on time, place and manner; however, it cannot be pretense for content regulation, or leave unfettered discretion to governmental licensing authority 3) A state may not restrict public speech solely to protect others from hearing it absent a showing that substantive privacy interests are being invaded in an essentially intolerable manner 4) Not all public places are public for a (forum) open to speech and the government may restrict speech in places that are not public fora b. Speech on private property 1) Generally, a private property owner may prevent any form of expression on his property 2) In some cases, however, private property may, by its use, become the functional equivalent of public property and be a limited public forum (same is true for government owned property) c. Symbolic speech 1) Conduct, by itself, usually is not protected by the First Amendment. However, conduct may receive protection if: a) It is combined w/ protected speech; or b) It constitutes symbolic speech by itself 2) Where conduct and speech are combined, the government can regulate the nonspeech element to promote an important governmental interest and any incidental restriction on speech element will be tolerated. The degree of the restriction on the speech element that will be tolerated depends on the importance of the governmental interest in regulating the non-speech element. While wearing arm-bands at school to protest war is protected, burning draft card is not. 4. Overbreadth and vagueness a. General- a statute can impinge on First Amendment rights if it is constitutionally overbroad (regulates protected as well as unprotected speech) or vague (unclear as to speech or conduct it regulates) b. Overbreadth- restricts protected speech as well as unprotected; broader than necessary to achieve its stated purpose 1) To successfully attack a statute on grounds of overbreadth, the regulation must reach expression w/n the protection of the First Amendment.

c. Vagueness- restricts First Amendment expression but fails to provide an ascertainable standard of acceptable conduct 1) Concept related to DP: if a person cannot tell what speech is subject to regulation, then person is likely to avoid engaging in protected speech as well (chilling effect) 2) USSC has narrowed the vagueness defense: In a facial challenge to overbreadth and vagueness law, a courts first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct (overbroad). If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A P who engages in some conduct that is clearly proscribed cannot complain of vagueness of the law as applied to the conduct of others. A court should therefore examine the complainants conduct b/f analyzing other hypothetical applications of the law. 5. Protection of reputation and privacy- In the context of an action for defamation or invasion of privacy, the Ds words may be protected by First Amendment. The scope of the protection depends on whether the injured person is public figure or private person a. Defamation of public figures 1) To recover for defamation, a public figure must prove that the D acted w/ actual malice a) Knowledge that statement was false; or b) Reckless disregard for its truth or falsity 2) To meet this higher standard of proof, a public figure defamation P is entitled to make direct inquiries during discovery into the state of mind or editorial communications of media Ds. b. Defamation of private persons 1) A private person, even if involved in matters of public or general interest, is not required to prove actual malice 2) However, a private person defamation P is limited in other ways: a) May not recover at all w/o some proof of fault for inaccurate publication b) May not recover general damages w/o proof of specific injury; and c) May not recover punitive damages w/o proof of actual malice

d) Furthermore, USSC has altered the old common law rule that truth is defense to defamation suit. The Court found that the First Amendment requires a private person defamation plaintiff to prove the falsity rather than requiring the D to prove its truth e. Who is a public figure 1) Public officials generally are public figures for all purposes 2) Private persons may become private figures for either limited purposes or for all purposes. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues Gertz v. Robert Welch 3) A defamation D cannot argue that a private person has become a public figure by virtue of public attention that resulted from the defamatory speech B. FREEDOM OF ASSOCIATION 1. First Amendment protects right of people peaceably to assemble, and to petition the Government for a redress of grievances- this developed into freedom of association 2. Freedom related most closely to freedom of speech 3. USSC held that freedom of association will not apply to non-political associations that lack sufficient degree of privacy and intimacy. For instance, the First Amendment does not include a right of association for teenagers to have a chance encounters in night clubs. (City of Dallas v. Stranglin) The constitutional right also may not apply to existing groups that are not sufficiently intimate or private. If the membership is large, has high turnover rates, and is inclusive, and if the group has public purposes, welcomes media coverage and encourages strangers to participate, then the group may not enjoy a constitutional right to associate (Rotary Club of Duarte) 4. The First Amendment also protects the right of persons not to associate C. FREEDOM OF THE PRESS 1. Background a. Matter of debate whether Press Clause grants press any freedom not otherwise granted by Free Speech Clause b. Even if the press is given special protection, it still is subject to general business regulations, unless the purpose or effect of the regulation is to curb

or impair its institutional viability. The application of general tax laws to the press raises no serious First Amendment concerns 2. Restraints on editorial judgment a. Generally, the government cannot place restraints upon content of the printed press: A newspaper is more than a passive receptacle or conduit for news, comment and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size of the paper, and content, and treatment of public issues and public officials-- whether fair or unfair constitutes the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent w/ First Amendment guarantees of free press as they have evolved to this time. b. However, the commercial content of newspapers may be subject to regulation c. B/c of its nature and limited availability, the electronic media are subject to regulation of content (tv had to offer equal time) d. The content of school newspapers may be regulated. A school need not tolerate speech that is inconsistent w/ its basic educational mission, and may exercise editorial control over school-sponsored speech activities so long as the regulation is reasonably related to legitimate pedagogical concerns 3. Newsmans privilege a. Number of states have enacted newsmans privilege statutes, but there is no constitutional privilege against disclosure of confidential press information to grand jury. But grand jury investigations conducted other than in good faith would pose wholly different issues b/c news gathering is not w/o First Amendment protection b. Nor does the First Amendment preclude issuance of search warrant for search of a newsroom. First Amendment values may be considered in determining reasonableness and particularity under 4th Amendment, but no higher standard of probable cause must be shown for the issuance of such warrants 4. Press Access to government information a. Judicial proceedings- the First Amendment protects the right of the press to attend trials, voire dire proceedings and preliminary hearings in criminal cases. The press may be excluded, however, from suppression hearings. Whether there is a right of the press to attend civil trials has not been decided by the USSC b. Other information- w/ respect to government information, the press has no greater right of access than general public D. SEPARATION OF CHURCH AND STATE: THE RELIGION CLAUSES

1. The Establishment Clause a. This clause prohibits laws respecting an establishment of religion. Thus, a state cannot require any form of religious observance, advance any religion over another, or advance religion over non-religion b. Government may extend benefits to religious institutions so long as the government action satisfies the three-part test announced in Lemon v. Kurtzman: 1) The government program must have secular legislative purpose 2) Principal/primary effect or benefit neither advances nor inhibits religion 3) There is no excessive governmental entanglement w/ religion 2. The Free Exercise Clause a. This clause forbids the enactment of laws prohibiting the free exercise of religion. A law that directly and facially interferes w/ the free exercise of religion will be held unconstitutional b. Although the government may not restrict religious benefits, it may regulate conduct associated w/ religious beliefs. This is similar to protection afforded symbolic speech c. A state may be required to permit an exception to a law regulating conduct if the effect of law, though neutral on its face is to interfere w/ a persons religious practices or beliefs. These free exercise exceptions to laws generally occur in the context of the denial of unemployment benefits to person who lost his or her job due to conflict b/w work and religious observance d. General test for exception to a state law: 1) Does the person have a sincerely-held religious belief? 2) Is that belief burdened by the state regulation? If so, then to avoid an exception the state must show that : 3) The requirement or regulation is necessary to an important state goal; and 4) An exception would substantially hinder the fulfillment of that goal e. USSC held that state need not recognize a free exercise exception when the adverse action against the person is related to violation of a states generally applicable criminal law