Federal Judicial Power

Requirement for Cases & Controversies –

A. Requirements: All requirements must be met for any Fed court to hear case:
a. Standing
b. Ripeness
c. Mootness
d. Political Question

B. Standing – a person must have a concrete stake in the outcome of the case
I. Requirements:
a. Injury
• P may only assert injuries directly & personally suffered by allegedly
unlawful government action [injury does not need to be economic]
• Seeking injunctive relief → must show likelihood of future harm
b. Causation: Must be a causal connection between injury & conduct
complained of
c. Redressability: A decision in litigants favor must be capable of eliminating
her grievance

II. No Third Party Standing

a. Exceptions P must meet independently all 3 standing requirements & one
of the exceptions below
• Close-Relationship (doctor-patient)
• 3rd party unlikely to assert his or her own claim
• Organizational Standing if
• members would have standing to sue
• interests germane to organization's purpose
• neither claim nor relief requires participation of individual
members
III. No Generalized Grievances
a. No standing as “Taxpayer” or “Citizen” to challenge government
expenditures
i. Exception: Standing for suits attacking congressional taxing and
spending measures under First Amendment Establishment Clause
grounds
• Can challenge expenditure of money pursuant to statute as
violating EC
• No challenge for grants of property or expenditures of general
executive funds

C. Ripeness- A plaintiff is not entitled to a review of statute or regulation before its

enforcement unless the plaintiff will suffer some harm or immediate threat of harm
• MBE → Ripeness issue will arise when there's a request for declaratory
judgment
I. When evaluating ripeness courts will look to →
• Hardship P will suffer without pre-enforcement review
• Fitness of the issue in the record for judicial review

D. Mootness - A live and ongoing controversy must exist at all stages of the review
I. Exceptions
a. Controversies capable of repetition but evading review
 b. Class Actions
c. Voluntary Cessation

E. Political Questions - Cases dismissed as political questions →

a. Republican Form of Government Clause
b. Challenges to President's conduct re: foreign policy
c. Challenges to impeachment and removal process
d. Challenges to partisan gerrymandering

Jurisdiction of Supreme Court – all 4 requirements above must be met

A. Original Jurisdiction - SCOTUS has original jurisdiction to hear all cases affecting
ambassadors, public ministers, consuls, and those in which a state is a party
a. Congress has granted concurrent jurisdiction to lower federal courts in all
cases except those between states

B. Appellate Jurisdiction - SCOTUS has appellate jurisdiction in all cases to which

federal power extends. Cases come by one of 2 ways →
a. Writ of Certiorari → Complete discretion to hear cases that come to it by
writ of cert
i. Include:
• Cases from state courts where (I) constitutionality of a federal statue,
federal treaty, or state statute is in issue, or (II) a state statue
allegedly violates federal law
• All cases from federal court of appeals
b. Appeal- must hear cases that come to it by appeal
i. Confined to decisions by 3 judge federal district court panels that grant
or deny injunctive relief

C. Final Judgment Rule: Generally no interlocutory review – all state appeals must
be tried before SCOTUS can hear case. Federal court- all federal court appeals
must be tried before SCOTUS can hear case

D. Independent Adequate State Law ground for decision in order for SCOTUS to
review state court decision

Jurisdiction of Lower Courts

A. Eleventh Amendment Limitations Prohibits federal courts from hearing a

private party or foreign government's claims against a state government

B. Sovereign Immunity - Bars suits against states in state courts or federal

agencies
I. Exceptions: States may be sued under the following circumstances
i. Waiver – state expressly consents to be sued
ii. Pursuant to federal laws adopted under section 5 of Fourteenth
Amendment
iii. Federal government may sue State government
iv. Bankruptcy proceedings
• Sovereign immunity does not apply

C. State Officers - Suits against state officers are allowed

 I. State officers may be sued for →
a. injunctive relief
b. money damages to be paid out of their own pocket
II. State officers may not be sued if →
a. the state treasury will be the one paying the retroactive damages

D. Abstention: Federal Courts may not enjoin pending state court proceedings

Federal Legislative Power

Congress Authority - Enumerated & Implied Powers-
◦ Necessary & Proper Clause → Congress has the power to make all laws
necessary and appropriate for executing any power granted to any branch of the
federal government
• Tip: N & P clause standing alone cannot support federal law. Any answer
choice that states (1) a law is supported by the necessary and proper clause,
or (2) or is valid under Congress' power under the N & P clause will be
incorrect unless another federal power is linked in Q.

◦ Taxing Power –> Congress has the power to tax for the general welfare
◦ Spending Power → Congress has the power to spend for the general welfare

◦ Commerce Power → Congress has the exclusive power to regulate all foreign
and interstate commerce
▪ May regulate in 1 of 3 ways :
• Regulating the channels of interstate commerce
• Regulating the instrumentalities of interstate commerce
• Regulating activities that have a substantial effect on interstate commerce
▪ Intrastate activities →
• Economic or commercial activities → only upheld if
◦ Rational basis activity in aggregate substantially affects
interstate commerce
• Noneconomic/Noncommercial Activities--> only upheld if
◦ factually show a substantial economic impact on interstate
commerce
◦ Tenth Amendment Limits
▪ Congress cannot compel state regulatory or legislative activity.
• Congress CAN induce by putting strings on grants so long as the conditions
are expressly stated and related to the purpose of the spending program
▪ Cannot force to enact statutes -
▪ Congress may prohibit harmful commercial activity by state governments

◦ Congress Power Under Section 5 of Fourteenth Amendment.- Congress

cannot create new rights or expand the scope of rights

Delegation of Legislative Power

 • No Limitation to Congress' ability to delegate legislative power
◦ Tip: Answer choice “unconstitutional as excessive delegation of legislative
powers” never the correct answer choice

• Legislative Veto's & Line Item Veto's Unconstitutional

◦ Must have bicameralism and presentment for Congress to act

• Congress may not delegate executive power to itself of its officers

Federal Executive Power

Domestic Policy
• Appointment Power
◦ President alone must appoint officers with advice and consent of senate
◦ Inferior officers may be appointed by President, the Courts or Heads of
Departments
▪ Congress may not appoint members of a body with AA or enforcement
power

• Removal Power
◦ President → an remove high level purely executive officers at will – no Congress
interference
▪ Congress may limit Presidents power to remove all other officers (with good
cause)
◦ Congress → may remove executive offices only through impeachment
• Pardons
◦ President may grant pardons for all federal offenses. Congress cannot limit
Pardon power.
▪ Not for impeachment
▪ Not for civil contempt
Foreign Policy
• Treaties - President has power to enter into treaties with consent of 2/3 senate
▪ State laws that conflict with treaty = invalid
▪ Federal law that conflict with treaty = last one in time prevails
▪ Constitution prevails over conflicting treaty
• Executive Agreements- signed by Pres and head of another country – no Senate
approval required
◦ Conflict with state laws → executive agreement prevails
◦ Conflict with federal law → federal law prevails over executive agreement

Executive Privilege /Immunity

• Executive Privilege: Pres has privilege to keep certain communications secret.
◦ Exception--> Criminal proceedings, presidential communications not privileged
 where a need for such information is demonstrated
• Executive Immunity:
◦ Absolute immunity from civil damages based on any action within official
responsibilities
▪ No immunity for acts that occurred before office

Impeachment
• All civil officers of the US are subject to impeachment for (1) treason, (2) bribery,
(3) high crimes (4) misdemeanors
◦ Majority vote in house necessary to invoke charges of impeachment
◦ 2/3 vote in Senate necessary to convict and remove
 Federalism
Relative Spheres of Federal & State Power
• Preemption - Article IV Supremacy Clause provides that the Constitution and
laws and treaties made pursuant to it are the supreme law of the land (Federal Law
trumps state law)
◦ Can be found in any of the following ways →
▪ Express preemption-
• Fed statute says fed law is exclusive in field
▪ Implied preemption -
• Federal law and state law are mutually exclusive – state law preempted
• State or local law impedes federal objective
• Congress evidences clear intent to preempt state law (immigration) -

• Inter-Governmental Immunity - Immunity Fed Gov has from unwanted taxation

or regulation
◦ States may not tax or regulate federal government activity -
▪ Unconstitutional to pay a state tax out of federal treasury
◦ Federal government doesn't have to comply with state pollution control laws -
▪ States cannot impose a substantial regulatory burden on federal
government

Dormant Commerce Clause of Article IV

• DCC [Negative Implications of the Commerce Clause]
◦ State and local laws are unconstitutional if they place an undue burden on
interstate commerce
▪ Inferred by SCOTUS from a grant of the power to regulate commerce
◦ Dormant Commerce Clause has 2 meanings under the Constitution
▪ (1) authority of congress to act (2) state action that doesn't burden
interstate commerce

Privileges and Immunities Clause of Article IV

• No state may deny citizens of another state of the privileges and immunities it
accords its own citizens
◦ Anti-discrimination provision for out of state citizens
◦ Only applies when state discriminating against out of state citizens
◦ Only “Fundamental Rights” protected – commercial activities and civil
liberties
• Substantial Justification Exception- state must show nonresidents either
caused or are part of the problem that the state is attempting to solve and there
are no less restrictive means to solve the problem

Distinction: Privileges or Immunities Clause of Fourteenth Amendment

• States may not deny their citizens the privileges and immunities of national
citizenship – corporations not protected by this clause
• Note: Always a wrong answer unless question involves the right to travel

Analysis - Does the state law discriminate against out of staters?

 • Law does not discriminate
▪ Privileges & Immunities Clause of Article IV doesn't apply
▪ If the law burdens interstate commerce it violates the DCC if → burdens >
benefits

• Law does discriminate against out of state residents

◦ Violates DCC unless its necessary to achieve an important government purpose
• Protectionist purpose will never be regarded as an important purpose
• Must also be necessary – no less restrictive alternative can achieve its
objective
▪ Exceptions:
• Congressional Approval
◦ Laws that would otherwise violate DCC will be upheld if Congress
approves
• Market Participant Exception
◦ A state or local government may prefer its own citizens in receiving
benefits from government programs or in dealing with government-
owned business
◦ If law discriminates against out of staters with respect to their ability to earn a
livelihood – it violates the Privileges and Immunities Clause of Article IV unless
→
▪ its necessary to achieve an important government purpose
◦ The law bust discriminate against out of staters
◦ the discrimination must be with regard to civil liberties or important
economic liberties
◦ Corporations and aliens cannot use the Privileges & Immunities
◦ Discrimination must be necessary to achieve an important
government purpose

Dormant Commerce Clause Privileges and Immunities Clause

Does not require discrimination against out Requires discrimination against out of state
of state residents in order to apply residents in order to apply

Requires burden on interstate commerce Requires discrimination with regard to civil

liberties or important economic activities

Corporations & Aliens can sue under it Corporations & Aliens Cannot Sue Under It

Exceptions: Congressional Approval and No exceptions

Market Participant

Regulation of Commerce
• By Congress -
◦ Congress may supersede or preempt state regulation of commerce
◦ Congress may permit state regulations that would otherwise violate the
Commerce Clause as well as prohibit otherwise valid state regulations
◦
• State Regulation of Commerce in the Absence of Congressional Action –
Dormant Commerce Clause [Continued]
 ◦ Congress has not enacted laws re: subject – a state may regulate local aspects
of local commerce
▪ To be valid State Regulation must not discriminate against or unduly
burden interstate commerce
◦ Discriminatory Regulations -
▪ State or local regulations that discriminate against interstate commerce to
protect local commerce are almost always invalid.
• Exception: Important State Interest -
◦ Discriminatory state law may be valid if it furthers an important, non-
economic state interest and there are no reasonable
nondiscriminatory alternatives
• Exception – State as Market Participant
◦ State may prefer its own citizens when its acting as a market
participant [buying, selling, hiring labor or giving subsidies]
• Government Performing Traditional government Functions -
◦ SCOTUS applies more lenient standard when a law favors government
action that involves the performance of a traditional government
function (waste disposal) – Discrimination against interstate
commerce in such a case is permissible because its likely motivated
by legitimate objectives rather than economic protectionism
◦ Nondiscriminatory Regulations
▪ Balance Test -
• Nondiscriminatory law that burdens interstate commerce will be valid
unless
◦ Burden > promotion of a legitimate local interest

State Taxation of Interstate Commerce

• Same basic rules apply to state taxation of interstate commerce as does state
actions affecting commerce
◦ Discriminatory Tax
▪ Unless authorized by Congress, state taxes that discriminate against
interstate commerce violate the Commerce Clause
• States may not use their tax systems to help in-state-business
Nondiscriminatory Tax- Valid if:
▪ A state may only tax activities if there is a substantial nexus to the state
▪ Fair relationship
▪ State taxation of interstate business must be fairly apportioned
• Use Taxes
◦ Permissible in buyer's state – use taxes imposed on goods purchased
outside state but used within it are valid
▪ interstate seller may be required to collect use take if seller has sufficient
nexus with the taxing state (maintains office) - merely soliciting orders by
mail and shipping into state insufficient

Full Faith & Credit

• Courts in one state must give full faith and credit to judgments of courts in another
state so long as:
◦ The court that rendered the judgment had jurisdiction over the parties and the
subject matter
◦ The judgment was on the merits
◦ The judgment is final
 Structure of The Constitution's Protection of Individual Liberties
Government Action -
• The Constitution only applies to Government action.
◦ Private Conduct does not need to comply with the constitution

• Congress – by statute- may apply Constitutional Norms to Private Conduct

◦ 13th Amendment can be used to prohibit private race discrimination
• Discrimination NEVER violates the 13th Amendment itself;
◦ Only Slavery violates the 13th Amendment
◦ Discrimination violates federal laws adopted by Congress under the
13th Amendment

◦ Commerce power can be used to apply constitutional norms to private conduct

◦ Congress cannot use Section 5 of the 14th Amendment to regulate

private behavior
▪ Can act to regulate only state & local governments under this section -can
never use this authority to regulate private behavior

• Exceptions
◦ Situations where private conduct must comply with the Constitution
▪ Public Functions Exception
• The Constitution applies if a private entity is performing a task
traditionally, exclusively done by the Government

▪ Entanglement Exception
• The Constitution applies if the government affirmatively authorizes,
encourages, or facilitates unconstitutional activities
◦ Key Examples: No reconciliation among inconsistencies
▪ Courts cannot enforce racially restrictive covenants
▪ State action
• When the government leases premises to restaurant that
racially discriminates – implied authority to facilitate
discrimination
• Where government gives books to schools that racially
discriminate
• When a private entity regulates interscholastic sports within
state
▪ No State Action
• A private school that is over 99% funded by the Gov fires
teacher because of speech
◦ Receipt of money – by itself – is not enough for
Constitution to apply
• When NCAA orders the suspension of a basketball coach at
state university
• A private club with liquor license from state racially
discriminates
◦ Pattern?
 ▪ Racial discrimination → court seems more inclined to apply
entanglement exception

Application of the Bill of Rights

• Bill of Rights →
◦ Applies only directly to the Federal Government
◦ Applies to state & local government via incorporation into 14th Amendment Due
Process Clause
▪ SCOTUS has never held that all of the bill of rights have been applied to the
states

• Exceptions- The Bill of Rights Provisions that have not been incorporated to apply
to states
▪ 3RD Amendment right to not have a soldier quartered in person's home
▪ 5TH Amendment right to grand jury indictment in criminal cases
• If a state wants to it doesn't have to use a grand jury
▪ 7TH Amendment right to jury trial in civil cases
▪ 8TH Amendment right to excessive fines

Levels of Scrutiny

• Rational Basis Test

◦ Law will be upheld if its rationally related to a legitimate government
purpose
• Intermediate Scrutiny
◦ Law will be upheld if its substantially related to an important government
purpose
• Strict Scrutiny
◦ Law will be upheld if its necessary to achieve a compelling government
purpose

Retroactive Legislation
• Contracts Clause- prohibits STATES from enacting any law that retroactively
impairs contract rights
◦ Not applicable to federal government -but retroactive federal law that flagrantly
impairs contract right would violate 5th Amdendment Due Process
▪ Private Contract – State legislation that substantially impairs and existing
private contract is invalid UNLESS → legislation (1) serves important and
legitimate public interest and (2) is reasonably and narrowly tailored means
of promoting that interest
▪ Public Contracts -Stricter Scrutiny
• Legislation that impairs a contract with the state is tested by same test
but will receive stricter scrutiny – especially if the legislation reduces the
contractual burdens on the state
• Ex Post Facto Laws
◦ State or federal government may not pass an ex post facto law – law that
retroactively alters criminal offenses or punishments in a substantially
prejudicial manner for purpose of punishing a person for some past activity
▪ Invalid if (1) makes criminal an act that was innocent when committed (2)
prescribes greater punishment for an act that was prescribed for the act
 when it was done, or (2) reduces the evidence required to convict a person
of crime
• Courts prohibited from retroactive interpretation of criminal laws under
DPC of 5th and 14th amendment

Individual Liberties

Procedural Due Process

∫A fair process is required for a government agency to individually take a person's “life,
liberty or property”
Only intentional deprivation of these rights violates DPC
Negligent deprivation is insuffficient
• Liberty
◦ Deprivation of liberty occurs if a person (1) loses significant freedom of action,
or (2) is denied the freedom provided by the Constitution or statute
• Property-
◦ Something in which a person has a legitimate claim or entitlement to the
benefit under state or federal law (attendance at public school, welfare benefits,
and some government employment)
▪ NOTE: any answer that uses “right v. privilege” is incorrect – its now called
entitlement
• What type of process is required?
◦ Procedures given determined by balancing test
▪ the importance of the interest to the individual
▪ the value of specific procedural safeguards to that interest
▪ the government interest in fiscal and administrative agency
◦ Generally
▪ unbiased decisionmaker and fair procedures always required
▪ notice and chance to respond before termination of liberty or property
interest usually required
• Due Process rights are subject to waiver if knowing and voluntary

Equal Protection
Substantive Due Process and Equal Protection
Both the Substantive Due Process guarantees and Equal Protection guarantees require
the Court to review the substance rather than the procedures employed

Size of Class Affected Determine Which Law Applies

Substantive – If a law limits liberty of ALL persons to engage in some activity→ MBE due
process quest.
Equal Protection – iF a law treats a person or a class of persons differently from others
→ EP ques on MBE
• Class of One – recognized in relation to property regulation – an equal
protection claim can be brought for arbitrary treatment against an individual
◦ Exception: At-will government employee claims to be victim of arbitrary
discrimination cannot use class of one theory to bring equal protection
claim
Standard of Review for Both
Under either guarantee the Court is reviewing the legitimacy of the governmental acts – 3
standards of review are used
• Strict Scrutiny (Maximum) – law examined will often be invalidated
◦ Regulations affecting these rights get reviewed under SS →
▪ Fundamental Rights
• Interstate travel
• Privacy
• Voting
• First Amendment Rights
▪ Suspect Classifications
• Race
• National Origin
• Alienage
◦ Law upheld if it is necessary to achieve a compelling government interest
▪ No less burdensome alternatives exist to achieve government's goal
• Intermediate Scrutiny -
◦ Regulations involving
▪ Quasi Suspect: --Gender and Legitimacy
◦ Law upheld if it is substantially related to an important government
purpose
• Rational Basis
◦ Laws that do not affect fundamental rights, or do not involve suspect, or quasi
suspect classifcations (most laws) are reviewed under rational basis standard.
• Includes regulations involving classifications re:
• Age
• Disability and
• poverty
▪ Law upheld if rationally related to legitimate government purpose
• Law usually valid unless arbitrary or irrational

Substantive Due Process

• State Action: Due Process Clause of 14th Amendment
• Federal Action: Due Process Clause of 5th Amendment

• When a fundamental right is limited the law or action is evaluated under → strict
scrutiny
• All other cases → rational basis standard is applied
◦ Analysis
▪ Determine whether the law or regulation concerns a fundamental right,
suspect classification or quasi-suspect – and attack it accordingly
▪ Answer choices re: invalid because irrebutable presumption WRONG

Equal Protection
• Must be STATE ACTION
• Discrimination by federal government will not violate EPC !!

• Fundamental right or suspect classification → strict scrutiny

 ◦ must be intent on the state to discriminate
▪ (1) law facially discriminatory (2) discriminatory application of facially
neutral law, or (3) discriminatory motive
• Discriminatory effect alone not enough → that only gets RB review
• Quasi suspect → intermediate scrutiny
◦ must be intent by the state to discriminate
▪ (1) law facially discriminatory (2) discriminatory application of facially
neutral law, or (3) discriminatory motive
• Discriminatory effect alone is not enough – only RB review
• All others → rational basis

Equal Protection Due Process

Clause
State Only Fed: DPC 5th State:
th
Affects Person or Class of Persons DPC 14
Affects Everyon
Strict Suspect Classification Fundamental Rights
Scrutiny Race & National Origin Right to interstate travel
necessary to First Amendment Rights
achieve a State Alienage Classifications Privacy →
compelling (unconstitutional for US citizenship to be required Marriage; Use of
government for welfare, civil service jobs, or to be a lawyer) Contraceptives;
interest Abortion (Undue burden
Impingement of Fundamental Rights (Privacy, standard);
no less Interstate travel, voting, first amendment) Obscene reading
burdensome material in home;
alternative Keeping family together;
exists to Parental rights; Intimate
achieve gov Sexual Conduct
goal Voting

Quasi Suspect
Intermedia Gender Classifications
te Scrutiny - gov must also show exceedingly persuasive
justification for discrimination
substantially classifications benefitting women designed to
remedy past discrimination usually valid
related to an Legitimacy
important (discrimination re: legitimate / illegitimate
government children)
purpose law allowing illegitimate children to recover
from fathers estates only if parenthood
established = valid
Other classification ANY and ALL other rights
Federal Alienage Classifications
Rational International Travel
(valid if not arbitrary and unreasonable)
Basis State discrimination of Aliens to participate in
state government
Law upheld if State discrimination of Aliens for non-elective
rationally public policy offices (police, primary and
related to secondary school teachers, probation
legitimate officers)
government • Undocumented Aliens Age
purpose • Disability Wealth

Actor Affects Rights Review

Federal Gov Fundamental Strict Scrutiny

(DPC 5th)
Due Process
Everyone
Clause
State (DPC Non Fundamental Rational Basis
14th)

Suspect Strict scrutiny

Person or
Quasi Suspect Intermediate
Equal
State
Protection Class of
persons
Other Classification Rational Basis
 First Amendment
First Amendment:
• Prohibits Congress from establishing a religion or interfering with the free exercise
of religion, abridging the freedom's of speech and press, or interfering with the
right of assembly. Prohibitions are applicable to the states through the Fourteenth
Amendment

• Free Speech Clause

◦ Restricts government regulation of private speech
▪ Government free to voice its own views as well as fund private speech –
generally upheld if rationally related to a legitimate state interest
◦ Government funding of Private Speech –
▪ Must be in viewpoint-neutral basis

• Regulation of Conduct/Content
◦ Conduct-
▪ Regulation of conduct related to speech may be regulated by content-
neutral time, place and manner restrictions
◦ Content
▪ Presumptively unconstitutional to place burdens on speech because of
content
• Exceptions → Certain categories of speech [Obscenity, Defamation]
▪ Content-neutral regulations on speech are subject to intermediate scrutiny -
• Must advance an important interests unrelated to suppression of speech
and
• Must not burden substantially more speech than necessary to further
those interests
• Reasonableness of Regulation
◦ Overbroad Regulations – Invalid
▪ If a regulation of speech related conduct punishes a substantial amount of
protected speech in relation to its plainly legitimate sweep - the regulation
is facially invalid
• UNLESS → a court has limited construction of the regulation so as to
remove the threat to constitutionality protected expression
◦ Vagueness
▪ Void for Vagueness Doctrine: If a criminal law or regulation fails to give
persons reasonable notice of what is prohibited – it may violate the Due
Process Clause. Applied strictly when First Amendment activity is involved.
◦ Unfettered Discretion
▪ A regulation cannot give officials broad discretion over speech issues; there
must be defined standards for applying the law.
• If a statute gives officials unbridled discretion it is void on its face –
◦ speaker doesnt have to apply for a permit
• If a licensing statute includes standards → speaker may not ignore
statute, must apply and if denied – challenge denial on First Amendment
grounds
• Scope of Speech
◦ Freedom not to speak
 ◦ Symbolic Acts -
▪ Government may regulate conduct undertaken to communicate an idea if it
has an important interest in the regulation independent of the
speech aspects of the conduct and the incidental burden on speech is
no greater than necessary

Time Place and Manner Restrictions – Regulation of Conduct

• Public Forums and Designated Public Forums
◦ Rule: Government may regulate speech in public and designated public forums
with reasonable time, place and manner restrictions that
▪ Are content neutral
▪ Are narrowly tailored to serve an important government interest; and
▪ Leave open alternative channels of communication
◦ Note: even if a regulation meets the TPM requirements it may still be
invalid if overbroad, vague or gives unfettered discretion
◦ Injunctions:
▪ Content-based injunctions against speech in public forums →
• Must be necessary to achieve a compelling interest
▪ Content-neutral injunctions →
• Must burden no more speech than is necessary to achieve an important
government interest
• Limited Public and Non-Public Forums -
◦ The government can regulate speech in such a forum to reserve the forum for
its intended use -
▪ Regulations valid if they are
• Viewpoint neutral, and
• Reasonably related to a legitimate government purpose

Unprotected Speech – Regulation based on Content

• Valid: Content based restrictions must be necessary to achieve a compelling
government interest

◦ Speech where Gov has Compelling Interest → “Unprotected Speech” under First
Amendment

• Inciting Imminent Lawless action

◦ Speech can be burdened if it creates a clear and present danger of
imminent lawless action.
▪ Must be shown that imminent illegal conduct is likely, and
▪ the speaker intended to cause it
• Fighting Words
◦ True threats are not protected by first amendment
◦ Speech can also be burdened if it constitutes fighting words
[personally abusive words that are likely to incite immediate physical
retaliation in the average person]
▪ Statutes that attempt to punish fighting words invalid for being
overbroad and vague as well
• Obscenity
◦ Obscene speech is not protected
◦ Elements-->
 ▪ Speech is obscene if it describes or depicts sexual conduct that,
taken as a whole, by the average person:
• Appeals to the prurient interest in sex, using a community
standard
• Is patently offensive and an affront to contemporary
community standards
• Lacks serious value (literary, artistic, political, scientific) under
a national reasonable person standard
◦ Standard may be different for minors
◦ Zoning Regulations
▪ A land use/zoning regulation may limit the location or size of adult
entertainment establishments if the regulation is designed to
reduce the secondary effects of such businesses (rise in crime,
drop in property value)
• Regulations may not ban such establishments altogether
◦ Liquor Regulations
▪ Under 21st Amendment – states have broad discretion to regulate
intoxicating beverages – laws relating to this power that affect free
speech rights generally will not be set aside unless irrational
◦ Private Possession of Obscene Material in the home cannot be
punished
▪ Exception: child porn
• Defamatory Speech
◦ May be burdened -
▪ Defamatory statement about public official, or public concern –
First Amendment require P prove all elements of defamation plus
falsity and some degree of fault
• Commercial Speech
◦ Rule: Truthful commercial speech is protected by First Amendment
▪ Commercial speech that proposes unlawful activity, or that is
misleading or fraudulent may be burdened.
• Any other regulation of commercial speech upheld only if →
◦ serves substantial government interest
◦ directly advances the interest
◦ narrowly tailored to serve that interest
▪ [Reasonable fit between goal and means chosen]
▪ Prior Restraints
• Prevent speech before it occurs – rarely allowed. Government has heavy
burden in justifying a prior restraint → must show some special societal
harm will otherwise result
◦ Requirements- To be valid- a system for prior restraint must provide
following:
▪ The standards must be narrowly drawn, reasonable, and definite
▪ Injunction must be promptly sought, and
▪ There must be prompt and final determination of the validity of the
restraint
Freedom of the Press
Freedom of Association

Freedom of Religion
• Free Exercise Clause
◦ Prohibits government interference with religious beliefs – but generally doesn't
prohibit regulation of conduct
▪ If gov action regulates general conduct – even religious – its valid
• Exceptions: Unemployment compensation and education of Amish
•
• Establishment Clause – prohibits laws respecting establishment of religion
◦ Sect Preference
◦ No Sect Preference
▪ Lemon Test
• Valid under Establishment clause if
◦ Secular purpose
◦ primary effect neither advances nor prohibits religion
◦ does not produce exessive government entanglement with religion