CONSTITUTIONAL LAW BAR REVIEW OUTLINE

I. The Federal Judicial Power A. Cases a d Co !ro"ersies 1. Art. III requires that federal courts may only try cases and controversies. a. Supreme Court may not issue advisory opinions. 2. Standing a. Injury 1) must allege and prove that he or she has been injured or imminently will be injured. 2 Includes violations of C!"# statutory# or constitutional rights. $ %ay include aesthetic or environmental injuries. & 'conomic loss is the best injury. 5) (s may only assert injuries that they personally have suffered. 6) (s see)ing injunctive or declaratory relief must show a li)elihood of future harm. b. Causation and *edressability. 1) caused the injury. 2 +avorable court decision will remedy the injury. c. ,o $rd -arty Standing. 1) may not assert claims of $rd parties. 2) Three Exceptions a) Close relationship between and injured $rd party. i Ex: .artenders who sued on behalf of their customers. b Injured $rd party unli)ely to able to assert their own rights. i) Ex: Criminal (s may raise the rights of prospective jurors to be free from discrimination. c /rgani0ation has standing if its members have standing.

d. ,o 1enerali0ed 1rievances 1) may not sue solely as a 2ta3payer4 or a 2citi0en4 interested in having the gov(t follow the law. 2) Establishment Clause Exception a 5a3payers may challenge gov(t spending as violating the 'stablishment Clause against religion. i Ex: If the gov(t gives 6 directly to religious schools. b 5a3payer may not challenge a gov(t grant of land as violating the 'stablishment Clause 7only 6 . $. *ipeness a. 1enerally court may not review a statute until it is has been violated. b. +actors 1 8ardship that will be suffered w!o pre9enforcement review. 2 +itness of the issues and record for judicial review. c. Ex: :rug companies were allowed to challenge +:A reg that required them to add e3pensive labels to drugs. &. %ootness a. If (s injury ends after the lawsuit is filed# the suit is dismissed as moot. b. Exceptions

1 2 $

;rong capable of repetition but evading review. <oluntary cessation. Class action suits.

=. -olitical >uestion :octrine a. Courts will not hear political question cases. b. '3amples automatically dismissed as political questions? 1 *epublican +orm of 1overnment Clause a Ex: voters adopt a law by initiative# not representation. 2 Challenges to -resident(s foreign policy. a Signing of treaties. b ;aging war. $ Challenges to impeachment and removal process. B. Su#re$e Cour! Re"iew 1. ;rit of Certiorari a. <irtually all cases come to the @.S. Supreme Court by writ of certiorari. 1 All cases from State courts 7discretionary review . 2 All cases from @.S. Court of Appeals 7discretionary review . $ :ecisions of three9judge district courts 7non9discretionary review . & Suits between State gov(ts 7original and e3clusive jurisdiction . 2. +inal Audgment *ule a. Supreme Court may only hear cases after a final judgment. b. 5here is no interlocutory appeal. $. Independent and Adequate 1round a. 5o review a State court decision# there can not be an independent and adequate state law ground of decision. b. If State decision rests on state and federal law# and reversal of the federal judgment will not change the outcome of the case# then the Supreme Court can not hear it. 1) Ex: If wins both a state law battery claim and a federal discrimination claim and gets the same damages# it is non9appeallable. C. So"erei% I$$u i!& 1. "ower federal courts and state courts may not hear suits against state governments. a. 11th Amend. bars naming a state as a in federal court. b. Sovereign immunity bars suing a state in state court 7without the state(s consent . 2. Exceptions a. ;aived by state gov(t. b. States may be sued pursuant to federal laws adopted under 1& th Amend. 1 Ex: Civil *ights Act adopted under '-C. 2 +eds may not authori0e suits under other portions of the Constitution. c. +ederal gov(t may sue state gov(ts. d. Suits against state officers. 1 Ex: If a law is unconstitutional. II. The Federal Le%isla!i"e Power A. Co %ress' Au!hori!& !o Ac! 1. 5here must be an e3press of implied power. a. Congress has no federal police power.

b. Exceptions 1 ;ashington# :.C. 2 Indians. $ %ilitary. & +ederal "and. 2. ,ecessary and -roper Clause a. Congress may use any means not prohibited. b. Ex: .a)e sale to fund the military. $. 5a3ing and Spending -ower a. Congress may ta3 and spend for the 2general welfare.4 &. Commerce Clause a. Channels of interstate commerce. b. Instrumentalities or persons or things in interstate commerce. c. Activities that have a substantial effect on interstate commerce. 1 'conomic impact. 2 If area being regulated is non9economic# then substantial effect can not be based on cumulative impact 7i.e# violence against women . d. Ex? all forms of intercourse that go across state lines# truc)s# phones# the Internet. =. 1Bth Amend. "imit on Congressional -owers 7( )BE * a. Congress may not compel state action. b. Congress may induce state action by putting strings on grants that e3pressly state the conditions. C. Section = of the 1&th Amend. a. Congress may not create new rights or e3pand the scope of rights. B. +ele%a!io o, Powers 1. ,o limit on Congress( power to delegate legislative power to e3ecutive or judiciary. a. Ex: @.S. sentencing guidelines. b. It is never a right choice if the answer says 2e3cess of delegation.4 2. "egislative vetos and line9item vetos are always unconstitutional. a. %ust be bicameralism. b. %ust be presentment to -resident to sign or veto all of the bill in its entirety. $. Congress may not delegate e3ecutive power to itself or its officers 7)BE . III. The Federal E-ecu!i"e Power ./ )BE *'s0 A. Forei% Polic& 1. 5reaties a. ,egotiated by the -res. and effective when ratified by the Senate. 2. '3ecutive Agreements a. ,egotiated by the -res. and effective when signed by the -res. and the head of a foreign country. b. :o not need to be ratified by the Senate. $. -resident has broad powers as Commander9in9Chief to use troops in foreign countries.

TREATIES AN+ E1ECUTIVE A2REE)ENTS

IS SENATE APPROVAL RE3UIRE+* Des TREATIES ,o E1ECUTIVE A2REE)ENTS

CONFLICTS WIT4 STATE LAW 5reaty Controls

CONFLICTS WIT4 FE+ERAL STATUTE ;hichever was adopted last in time controls +ederal Statute Controls

CONFLICTS WIT4 CONSTITUTION

Constitution Controls Constitution Controls

'3ecutive Agreement Controls

B. +o$es!ic A,,airs 1. Appointment -ower 7)BE * a. -res. appoints ambassadors# federal judges# and /fficers of the @.S. b. Senate confirms. c. Congress may vest appointment of inferior officers in -res.# the heads of :ep(ts# or lower federal courts. 1 Ex: Congress may vest appointment of independent counsel w! federal court. d. Congress may not give itself or its officers the appointment power. 1 Ex: Congress creates a new agency and gives some appointment power to the Spea)er of the 8ouse or the -resident -ro 5em of the Senate 7its unconstitutional . 2. *emoval -ower a. @nless limited by statute# -resident may fire any e3ecutive branch officer. b. Congress may limit removal to good cause when independence from the -res. is desirable. $. Impeachment and *emoval a. -res.# <ice9-res.# federal judges# and /fficers of the @.S. can be impeached and removed from office for treason# high crimes and misdemeanors. b. Impeachment does not remove a person from office. c. Impeachment by the 8ouse requires a majority vote. d. Conviction by the Senate requires a 2!$ vote. &. Immunity a. -res. has absolute immunity to civil suits for 6 damages for any actions while in office. b. Immunity does not apply to actions before ta)ing office. =. '3ecutive -rivilege a. '3ecutive privilege covers presidential papers and conversations. b. -rivilege yields to other important governmental interests. C. -ardon -ower 7)BE a. -resident may pardon those accused or convicted of federal crimes. b. Crimes must be federal not state crimes. c. -resident may not pardon civil liability# including civil contempt. d. -resident can not pardon anyone for the crimes for which they impeached for.

IV.

Federalis$ A. Pree$#!io .5 )BE *'s0 1. Supremacy Clause states Constitution and federal laws are supreme law of the land. 2. '3press -reemption a. +ederal law e3plicitly states that the federal law is e3clusive. $. Implied -reemption a. If federal law and state law are mutually e3clusive# state law is preempted. 1 If it is impossible to comply w! both the State and +ederal laws. 2 State may set stricter environmental standards than the +ederal law# unless prohibited. b. If state law impedes the achievement of a federal objective# federal law preempts state law. c. If Congress evidences a clear intent 7based on legislative history to preempt state law. &. State may not ta3 or regulate federal government. a. It is unconstitutional to pay a State out of the +ederal 5reasury. b. State may not regulate the +ederal gov(t if it burdens +ederal activity 7i.e.# pollution controls . B. +or$a ! Co$$erce Clause a d !he Pri"ile%es 6 I$$u i!ies Clause o, Ar!icle IV 1. +e,i i!io s 7applies when State and "ocal 1ov(t(s ma)e laws a. :ormant Commerce Clause 1 State and local laws may not place an undue burden on interstate commerce. 2 Also called the negative implications of the Commerce Clause. b. -rivileges E Immunities Clause of Article I< 1 ,o State may deny citi0ens of other states privileges and immunities it affords its own citi0ens. c. -rivileges E Immunities Clause of 1&th Amend. 1 /nly protects the right to travel. 2 /therwise# it is always a wrong answer choice. $ Ex: CA discriminates against new in9staters re? the receipt of welfare benefits. 7. +iscri$i a!io a. If the law does not discriminate against out9of9staters? 1 -rivileges E Immunities Clause of Art. I< F apply. 2 :ormant Commerce Clause is violated if law burdens interstate commerce and burdens e3ceed its benefits. b. If the law discriminates against out9of9staters? 1 -rivileges E Immunities Clause violated if it interferes w! ability to earn livelihood. a :iscrimination is regard to civil liberties or economic activities. i Ex: Commercial shrimp fishing but not recreational el) hunting. b Corporations and aliens can not claim it. 2 :ormant Commerce Clause violated unless it is necessary to achieve important government interest. a Ex: %A says no out9of9state bait fish b!c of fear of contamination to environment. b) Exceptions i Congressional Approval. ii %ar)et9-articipant '3ception.

71 Ex 1: -S@ 7state9owned school may charge less in tuition to residents. +OR)ANT CO))ERCE CLAUSE8PRIVILE2ES 6 I))UNITIES CLAUSE OF ART. IV :/'S 58' S5A5' /* "/CA" 1/<'*,%',5(S AC5I/, :ISC*I%I,A5' A1AI,S5 /@59/+9S5A5'*SG

9ES

NO

<iolates the :ormant Commerce Clause if it places a burden on interstate commerce unless it is necessary to achieve an important government purpose. Two Exceptions? 71 Congressional approval of discrimination. 72 %ar)et participant e3ception.

<iolates the -rivileges E Immunities Clause of Art. I< if it discriminates against individuals w! regard to important economic activities or civil liberties unless it is necessary to achieve an important gov(t purpose.

If the gov(t is burdening interstate commerce# balance the benefit to the state vs. the burden on interstate commerce 7if the benefit e3ceeds the burden# the law is upheldH if the burden e3ceeds the benefit# the law is struc) down .

-rivileges E Immunities Clause of Art. I< is inapplicable.

CO)PARISON OF T4E +OR)ANT CO))ERCE CLAUSE AN+ PRIVILE2ES 6 I))UNITIES CLAUSE OF ART. IV

T4E

+OR)ANT CO))ERCE CLAUSE 1 :oes not require discrimination vs. out9of9 staters in order to apply. 2 *equires a burden on interstate commerce. $ Corporations and aliens can sue under it.

PRIVILE2ES 6 I))UNITIES CLAUSE OF ART. IV 1 *equires discrimination vs. out9of9staters in order to apply. 2 *equires discrimination w! regard to civil liberties or important economic activities. $ Corporations and aliens can ,/5 sue under it.

& Exceptions: Congressional approval and %ar)et -articipant '3ception.

& ,o '3ceptions.

V.

The S!ruc!ure o, !he Co s!i!u!io 's Pro!ec!io s o, I di"idual Li:er!ies A. Is !here %o"er $e ! ac!io * 1. Constitution only applies to gov(t action# not private action. 2. Statutes may apply the constitutional norms to private conduct. a. 1$th Amend. applies directly to private conduct 7no slavery . b. -rivate racial discrimination may violate statutes adopted under the 1$ th Amend. c. Commerce power can apply constitutional norms to private conduct. d. Congress can not use section = of the 1&th Amend. 7'-C to regulate private conduct. $. -rivate Conduct '3ceptions a. -ublic function e3ception 7company owned9towns# elections . b. 'ntanglement e3ception 1 Courts may not enforce racially restricted covenants. 2 1ov(t leases premises to restaurant that racially discriminates. $ State provides boo)s to schools that racially discriminate. & ,o state action when gov(t subsided school fired teacher in violation of 1 st Amend. = ,o state action when ,CAA 7all over the country ordered coach suspended. C State action when private entity regulates school sports entirely w!in one state. I ,o state action when private club w! state liquor license discriminates. B. A##lica!io o, !he Bill o, Ri%h!s 1. .ill of *ights directly only applies to federal government. 2. .ill of rights incorporated through :-C of the 1& th Amend. except: a. *ight to bear arms 72nd Amend . b. *ight to not have solider quartered in your house 7$ rd Amend . c. *ight to grand jury in criminal cases 7=th Amend . d. *ight to jury trial in civil cases 7Ith Amend . e. *ight against e3cessive fines 7Jth Amend H e3cessive bail not o)ay. C. Le"els o, Scru!i &; T4E LEVELS OF SCRUTIN9 C4ART

)EANS*

EN+S*

LEAST RESTRICTIVE ALTERNATIVE* ,o @ncertain# but -robably ,ot Des

BUR+EN OF PROOF*

RATIONAL BASIS TEST INTER)E+IATE SCRUTIN9

*ationally *elated

"egitimate Conceivable -urpose Important Actual -urpose Compelling Actual -urpose

Challenger 1overnment

,o STRICT SCRUTIN9

1overnment

VI.

+ue Process A. Procedural +ue Process 1. 8as there been a deprivation of life# liberty# or propertyG a. "iberty K "oss of significant freedom provided by Constitution or statute. 1 :oes not include prisoners w!in prison. b. -roperty K 'ntitlement that is reasonably e3pected and has not been fulfilled. 1 Includes the continued receipt of a benefit. 2. ;hat procedure are requiredG a. .alancing 5est 7Matthews v. Eldridge 1 Importance of the interest. 2 Ability of additional procedures to increase accuracy of the fact9finding. $ 1overnment interest 7cost in efficiency. b. Examples 1 ;elfare benefits get notice and hearing. 2 Social security benefits get post termination hearing. $ School students get notice of charges and opportunity to e3plain. & "oss of custody of child gets notice and hearing. = -unitive damage award gets instructions to jury and judiciary review. C -re9judgment attachment and gov(t sei0ure get notice and hearing 7includes innocent owners . B. Su:s!a !i"e +ue Process 1. Is there an adequate reason for the gov(t ta)ing a person(s life# liberty# or propertyG 2. 'conomic "iberties regulations get *ational .asis *eview a. %inimum wage laws. b. Consumer protection laws. c. -rofessional regulations. $. 5a)ings Clause 7=th Amend. a. 1ov(t may ta)e private property for public use if it provides just compensation. b. ossessor! Ta"ing 1 Actual gov(t confiscation or physical occupation. c. #egulator! Ta"ing 1 *egulation leaves no reasonable economically viable use of the property K ta)ing. 2 1ov(t condition on development of property with a benefit that is roughly proportional to the burden imposed F ta)ing. $ *easonable temporary denial of use of property is F ta)ing. & *egulation that lowers the value of a property F ta)ing. = -roperty owner may bring 5a)ings Clause challenge to e3isting regulations. d. $ust Compensation 1 +air mar)et value to the owner. 2 ,ot based on gain to the ta)er. &. Contracts Clause 7Art. I a. ,o State or local gov(t may interfere w! e3isting Ls. 1 :oes not apply to the feds. 2 :oes not apply to future Ls. $ /nly applies to civil cases. b. Interference w! private Ls gets Intermediate Scrutiny.

1 :oes reg substantially impair party(s rights under e3isting LG 2 Is law reasonably tailored to promote important public interestG c. Interference w! government Ls gets Strict Scrutiny. d. '3 -ost +acto Clause 1 *etroactive criminal liability is unconstitutional under the '3 -ost +acto Clause. 2 *etroactive civil liability gets *ational .asis *eview. $ .ill of Attainder directs punishment of specific person w!o a trial 7unconstitutional . & '3 -ost +acto Clause is a common wrong choice on a Contracts Clause %.' G. =. *ight to -rivacy 7+undamental *ight under Substantive :ue -rocess .

FUN+A)ENTAL RI24TS <E9 E1A)PLES

Ri%h!s Tri%%eri % S!ric! Scru!i & *ight to marry *ight to procreate *ight to custody of children *ight to )eep family together *ight to control raising of children *ight to purchase and use contraceptives *ight to travel 7'-C *ight to vote 7'-C +reedom of speech 71st Amend +reedom of association 71st Amend +ree e3ercise of religion 7if law is not neutral law of general applicability 71st Amend

Ri%h!s Tri%%eri % U due Burde Tes! *ight to abortion

No! a Fu da$e !al Ri%h! .O l& Ra!io al Basis Re"iew0 *ight to practice a trade or profession *ight to physician9assisted suicide *ight to homose3ual activity *ight to education

VII.

E=ual Pro!ec!io A. A##roach 1. :efine the classification 2. define the level of scrutiny $. determine whether the law meets the level of scrutiny B. Co s!i!u!io al Pro"isio s co cer i % E=ual Pro!ec!io 1. +ourteenth Amendment applies to state and local governments only 2. +ifth Amendment applies to federal government only C. Classi,ica!io s :ased o Race8Na!io al Ori%i 1. Strict Scrutiny Applies 2. Classification a. Classification e3ists on the face of the law or

b. If facially neutral# demonstrate that the law has 1 :iscriminatory impact and 2 :iscriminatory intent $ '3ample? :iscriminatory use of peremptory challenges based on race denies equal protection $. ;here racial classifications benefit minorities? a. Strict scrutiny applies b. >uotas only upheld if there is clear proof of past discrimination c. 'ducation institutions may use race as one factor in admissions to help minorities d. Seniority systems may not be disrupted for affirmative action +. 2e der Classi,ica!io s 1. Intermediate Scrutiny Applies? Classification must be substantially related to an important government interest 2. 1overnment must show an e3ceedingly persuasive justification for the discrimination $. Classification a. Classification e3ists on the face of the law or b. If facially neutral# demonstrate that the law has 1 :iscriminatory impact and 2 :iscriminatory intent &. ;here gender classifications benefit women a. Classifications that benefit women based on role stereotypes will not be allowed b. 1ender classification designed to remedy past discrimination will be allowed =. '3amples of Invalid 1ender Classifications a. 1ender9based death benefits b. 1ender9based peremptory stri)es c. Alimony for women only d. State supported all9male or all9female schools e. :iscriminatory minimum drin)ing age C. '3amples of <alid 1ender Classifications a. All male draft b. :iscriminatory statutory rape laws E. Alie a%e Classi,ica!io s 1. 1eneral *ule? Strict Scrutiny Applies 2. *ational basis applies if classification is based on self9government and the democratic process a. <oting b. .eing a police officer c. .eing a probation officer d. Serving as a juror e. .eing a teacher $. *ational basis applies when Congress discriminates against aliens 7they have the sole power to regulate &. Intermediate Scrutiny applies for undocumented alien children

10

F. +iscri$i a!io a%ai s! No >)ari!al Childre 1. Intermediate Scrutiny Applies 2. "aws that deny a benefit to all non9marital children# but grant to all marital children are unconstitutional 2. Ra!io al Basis Re"iew ,or all o!her !&#es o, +iscri$i a!io 1. 2. $. &. =. Age discrimination 7e.g.# mandatory retirement laws :isability discrimination ;ealth discrimination 'conomic regulation Se3ual orientation discrimination

4. Fu da$e !al Ri%h!s Pro!ec!ed u der E=ual Pro!ec!io 1. *ight to 5ravel a. "aws that prevent people from moving into a state must meet strict scrutiny b. :urational residency requirements must meet strict scrutiny c. *ational basis applies to restrictions on foreign travel 2. *ight to <ote a. "aws that deny some citi0ens the right to vote get strict scrutiny b. ,o property ownership conditions allowed c. /ne9person9one9vote applies to all state and local elections d. <oter approval does not justify a deviation from one9person9one9vote requirement e. At large elections are /L unless discriminatory purpose e3ists f. @se of race in drawing election district lines to benefit minorities must meet strict scrutiny g. Counting uncounted votes without standards in a presidential election violates equal protection 7%ush v. &ore h. %a3imum residency requirement for voting is =B days $. ,o fundamental right to education

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E3UAL PROTECTION C4ART

(. W4AT IS T4E CLASSIFICATION* a 5he classification is on the face of the law or b If the law is facially neutralH there is both a discriminatory intent and a discriminatory impact 7. W4AT IS T4E LEVEL OF SCRUTIN9* Strict Scrutiny 'aw must be necessar! to achieve a compelling government purpose. *ace ,ational /rigin Alienage Mgenerally 5ravel <oting Intermediate Scrutiny 'aw must be substantiall! related to an important government purpose. &overnment must show exceedingl! persuasive (ustification for the discrimination 1ender Illegitimacy @ndocumented Alien Children *ational .asis 'aw must be rationall! related to a legitimate government interest Alienage classifications related to self9government and democratic process Congressional regulation of aliens Age 8andicap ;ealth All other classifications

?. +OES T4E LAW )EET T4E LEVEL OF SCRUTIN9*

VIII.

The Firs! A$e d$e ! A. Free S#eech )e!hodolo%& 1. Content .ased *estrictions a. %ust meet Strict Scrutiny. 1 Subject matter restrictions. 2 <iewpoint restrictions. 2. Content ,eutral *estrictions. a. %ust meet Intermediate Scrutiny. $. -rior *estraints a. Court orders suppressing speech before it occurs must meet Strict Scrutiny. 1 Collateral .ar /rder? court orders must be complied w! until they are overturned. 2 1ag /rders are always constitutional. b. "icensing Schemes 1 %ust be an important reason and clear criteria. &. <agueness and /verbreadth a. <agueness if reasonable person can not tell what speech is prohibited. b. /verbroad if regulates substantially more than allowed.

12

c.

+ighting ;ord laws are always overbroad and vague.

=. Symbolic Speech a. Can be regulated if gov(t has important interest unrelated to suppression of ideas and if impact is no greater than necessary to achieve goal. b. Examples 1 +lag burning is protected. 2 :raft card burning is not protected. $ ,ude dancing is not protected. & .urning a cross or painting a swasti)a are protected. = -enalty enhances for hate crimes are constitutional. C 'lection *estrictions a Contribution limits are constitutional. b '3penditure limits are unconstitutional. C. Anonymous speech is protected. B. U #ro!ec!ed or Less>Pro!ec!ed S#eech 1. Incitement of illegal activity. 2. /bscenity and se3ually9orientated speech. a. 5he 5est 1 Appeals to prurient interest. 2 -atently offensive. $ ,o redeeming artistic# literary# political# or scientific value on a national level. b. Noning ordinances may regulate the location of adult boo)stores and theatres. c. Child porn 7actual children used is completely bannable. d. -rivate possession of obscene materials 7e3cept child porn is not punishable. e. .usiness possession of obscene materials may be sei0ed. f. -rofane and indecent speech is generally protected. 1 Exception: .roadcast over free media. 2 Exception: In schools. $. Commercial Speech a. +alse and deceptive ads are not protected. b. Commercial speech that ris)s deception can be prohibited. 1 -rofessionals may be stopped from using a trade name. 2 Attorneys may be stopped from in9person# face9to9face solicitation. a Covers ambulance chasers. b :oes not cover an offer for free services. c :oes not cover letter solicitation. $ Accountants may solicit any way they want 7including face9to9face . c. /ther commercial speech is subject to Intermediate Scrutiny. 1 1ov(t regulation of commercial speech is narrowly tailored but does not have to be the least restrictive means necessary. &. :efamation a. .ecause of +ree Speech# a (s right to recover for defamation may be limited.

13

+EFA)ATION PLAINTIFF -ublic /fficial or -ublic +igure -rivate +igure in %atter of -ublic Concern -rivate +igure in %atter of -rivate Concern LIABILIT9 STAN+AR+ Actual %alice ,egligence and Actual Injury ,egligence +A)A2ES Compensatory -unitive :amages Compensatory 7Actual Injury -unitive 7Actual %alice Compensatory 7Actual Injury -unitive :amages 7do not require Actual %alice BUR+EN OF PROOF -laintiff must prove falsity -laintiff must prove falsity .urden on :efendant to prove 5ruth :efense

C. Places A"aila:le ,or S#eech 1. -ublic +orums!"imited -ublic +orums a. 5-% restriction must leave open ample alternative channels. b. ,eed not be the least restrictive means. c. City officials can not have discretion to set permit fees. 2. ,on9-ublic +orums a. Subject to rational basis review b. Examples 1 %ilitary bases. 2 -rison grounds. $ City bus ad space. & Sidewal)s on post office property. = Airports 7may distribute literature only . C :ebates on gov(t owned 5< station.

PLACES AVAILABLE FOR SPEEC4

SUBJECT )ATTER NEUTRAL*

VIEWPOINT NEUTRAL*

)ET4O+ OF RE2ULATION ALLOWE+*

INTEREST RE3UIRE+*

PUBLIC FORU)S 6 LI)ITE+ PUBLIC FORU)S NON>PUBLIC FORU)S PRIVATE PROPERT9

Des ,o

Des Des

5ime# -lace# or %anner *easonable

Important "egitimate

,o 1st Amend. *ight to use -rivate -roperty for Speech -urposes.

+. Freedo$ o, Associa!io 1. "aws that prohibit!punish group membership get strict scrutiny. 2. -unishment allowed if group member? a. Actively affiliated w! group. b. Lnew of its illegal activities.

14

c.

Intended to further those illegal activities.

$. "aws that require disclosure of group membership which would chill association get strict scrutiny. &. "aws that prohibit a group from discriminating are constitutional unless? a. 5he group is an intimate association 7po)er game or dinner party . b. :iscrimination is part of the group(s e3pressive activity 7LLL# ,a0is# .oy Scouts . E. Freedo$ o, Reli%io 1. +ree '3ercise Clause a. Cannot be used to challenge a neutral law of general applicability unless the law is motivated by a desire to intentionally interfere w! religion. 1 Ex: -eyote law. b. 1ov(t may not deny benefits to someone who quits job for religious reasons. 2. 'stablishment Clause a. 'emon 5est 1 Secular purpose for the law. 2 'ffect must be neither to endorse nor inhibit religion. $ ,o e3cessive entanglement w! religion. b. Examples 1 "aw requiring posting of 1B Commandments in schools is unconstitutional. 2 ,ativity scenes must be accompanied by secular counterpart and counterparts from other religions. $ 1ov(t may not give cash 6 directly to religious institutions or schools. c. "aws discriminating among religious speech or religions are subject to strict scrutiny. d. Schools 1 1ov(t sponsored religious activity in public schools is unconstitutional. 2 <oluntary school prayer is unconstitutional. $ *eligious groups must have the same access to school facilities as non9religious groups. & 1ov(t may give assistance 7supplies but not 6 to religious schools as long as it is not used for religious instruction. = 1ov(t may provide parents w! school vouchersH parents can then choose to use them at religious schools.

15