Constitutional Law

A:5
B:15
C:20

どの条文か意識!!

Constitutional Law.........................................................................................................................................1

Justiciability.....................................................................................................................................................3
C<Justiciability Doctrines>....................................................................................................................................3
C<Standing – General>..........................................................................................................................................3
C<Standing –Third-party Standing>....................................................................................................................3
C<Standing –Organizational Standing>...............................................................................................................3
C<Ripeness>............................................................................................................................................................4
C<Mootness>...........................................................................................................................................................4
B<State Sovereign Immunity (11th Amendment)>..............................................................................................4

Power of Congress...........................................................................................................................................6
B<Congressional Power – Commerce Power>.....................................................................................................6
B<Congressional Power – Section 5 of the 14th Amendment / 13th, 15th>........................................................6
C<Congressional Power – Taxing/Spending Power>...........................................................................................6
B<Limit on Congress Power– the 10th Amendment>..........................................................................................6
C<Delegation of Power>.........................................................................................................................................7

Power of the President....................................................................................................................................8

C< Executive Powers: Domestic Powers>.............................................................................................................8
C< Executive Powers: Foreign Powers>...............................................................................................................8

Federalism-based limits on State Authority..................................................................................................9

C<Supremacy Clause & Preemption>..................................................................................................................9
B<Dormant Commerce Clause>............................................................................................................................9
C<Privileges & Immunities Clause of Article IV>...............................................................................................9

Governmental Action....................................................................................................................................10
C<The Bill of Rights>...........................................................................................................................................10
A <State Action Requirement>............................................................................................................................10

Due Process (5th & 14th AM) & Taking (5th AM)....................................................................................11
C<Procedural Due Process – General>...............................................................................................................11
B <Taking Clause – General>..............................................................................................................................11
B<Taking Clause – Conditions on Exactions >...................................................................................................11
C<Substantive Due Process >...............................................................................................................................11

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Equal Protection (5th & 14th AM)..............................................................................................................13

Freedom of Speech.........................................................................................................................................14
A <Freedom of Speech – Standards of Review (Content-based vs.Content-neutral)>....................................14
A <Freedom of Speech – Public Forums and Designated Public Forums>......................................................14
A <Freedom of Speech –Nonpublic Forums>.....................................................................................................14
B<Freedom of Speech – Overbroad Regulation>...............................................................................................14
B<Freedom of Speech – Vagueness Doctrine>....................................................................................................14
C<Freedom of Speech – Symbolic Conduct>......................................................................................................15
B<Freedom of Speech – Unprotected Speech (Incitement of Imminent lawless action)>................................15
B<Freedom of Speech – Unprotected Speech (Fighting Words)>.....................................................................15
C<Freedom of Speech – Unprotected Speech (Obscenity)>...............................................................................15
B<Freedom of Speech – Unprotected Speech (Defamatory Speech)>...............................................................15
C<Freedom of Speech –Commercial Speech>....................................................................................................16
B<Freedom of Speech: Public School Students >...............................................................................................16
C <Freedom of Speech: Government Employees>.............................................................................................16
C <Freedom of Speech – Prior Restraints>........................................................................................................16

Freedom of Association.................................................................................................................................17
C<Freedom of Association – General>................................................................................................................17

Freedom of Religion......................................................................................................................................18
C<Freedom of Religion – Free Exercise Clause (Neutral Law of Generally Applicability)>..........................18
C<Freedom of Religion – Establishment Clause>..............................................................................................18

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Justiciability

C<Justiciability Doctrines>
The issue is to what extent a cases is judiciable.

Even if a federal court has jurisdiction over the subject matter of a case, it still might refuse to hear the
case. Whether a case is “judiciable” (i.e., a federal court may address it) depends on whether a “case or
controversy” is involved, and on whether other limitations on jurisdiction are present.

The Supreme Court’s interpretation of the “case and controversy” requirement in Article III bars
rendition of “advisory” opinions. Thus, federal courts will not render decisions in moot cases, collusive
cases, or cases involving challenges to governmental legislation or policy whose enforcement is neither
actual nor threatened (i.e., to hear a case for federal courts, there must be a specific present harm or
threat of specific future harm).

C<Standing – General>
The issue is whether the plaintiff has standing to bring the constitutional issue to the court.

A plaintiff MUST have standing to sue in federal court. Standing exists when the plaintiff: (1) personally
suffered an injury in fact (the plaintiff has been injured or injury is imminent); (2) the injury was caused
by the defendant (a reasonable connection is sufficient); AND (3) the injury is redressable by a court
order. To receive injunctive or declaratory relief, the plaintiff must show a concrete, imminent threat of
future injury. likelihood of future harm.

C<Standing – Third-party StandingCommon Standing Issues (Standing to Assert Rights of Others)>

The issue is whether the plaintiff has standing to bring the constitutional issue to the court, asserting the
right of other person.

To have standing, the claimant must have suffered or may presently suffer a direct impairment of his
own constitutional rights. A plaintiff may, however, assert third-party rights where he himself has
suffered injury and:
(i) Third parties find it difficult to assert their own rights (e.g., an association may attack a law
requiring disclosure of membership lists, because members cannot attack the law without
disclosing their identities); orOR
(ii) The injury suffered by the plaintiff adversely affects his relationship with third parties, resulting in
an indirect violation of their rights (e.g., a doctor can assert a patient’s rights in challenging an
abortion restriction).
-----

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 * As to (ii), a father lacks standing to sue on behalf of his daughter, who is not in the father’s custody (he
is already divorced).

C<Standing – Organizational StandingCommon Standing Issues (Standing of Organizations)>

The issue is whether the organization has standing to bring the constitutional issue to the court.

An organization has standing if:

(i) related to an issue that is germane to the organization’s purposethere is an injury in fact to
members that gives them a right to sue on their own behalf;
(ii) the organization’s members would have standingthat injury is related to the organization’s
purpose; and
(iii) individual member participation in the lawsuit is not necessaryrequired.
-----
* e.g., The All Dentist Association (“ADA”) would not have standing to challenge a change in the federal
income tax rates that will disadvantage all person making between $100,000 and $200,000 of property
without due process, because that claim is not related to the organization’s purpose (to promote the
professional well-being of dentists). But ADA probably could bring suit challenging a state regulation of
dental practices if the regulation injures ADA membvers, as long as the injury to ADA members dos not
vary.

C<Ripeness>
The issue is whether the federal court may hear the action for declaratory relief.

Article III of Constitution limits federal courts to deciding actual cases or controversies.
 Courts CANNOT render advisory opinion.

A case is ripe for review by a court when there is actual harm or an immediate threat of harm to P.
Federal courts will not determine the constitutionality of a statute if it has never been enforced and
there is no real fear that it ever will be (i.e., a plaintiff may not obtain a declaratory judgment).
However, federal courts can hear the actions for declaratory relief if a plaintiff will suffer some harm or
immediate threat of harm.
-----
* Factors for Ripeness：
(a) The hardship that will be suffered without pre-enforcement review.  As hardship increases, more
likely court will take the case.
(b) The fitness of the issues and the record for judicial review.  Does the court have everything they
need to decide it or not?
e.g., A drug company wanted to enjoin a potential FDA (Food and Drug Administration) action.
The case was ripe, because they had to either comply with the law (expensive), or not

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 comply with the law and risk penalty, and nothing gained by waiting for an actural fine
levied by the FDA (i.e., criminal prosecution is hardship, and no record is necessary to
decide).

C<Mootness>
The issue is whether the federal court may address the case.

Article III of Constitution limits federal courts to deciding actual cases or controversies.
 Courts CANNOT render advisory opinion.

A federal court will not hear a case that has become moot; a real, live controversy must exist at all
stages of review, not merely when the complaint is filed. If the matter has already been resolved, the
case will be dismissed as moot. However, there are a few exceptions:
(i) Controversies capable of repetition, but evading review, are not moot (e.g., issues concerning
events of short duration (e.g., abortion)) or;
(ii) a defendant who voluntarily stops the offending practice but is free from resume).
(iii) A class representative may continue to pursue a class action after the representative’s
controversy has become moot if claims of other members are still viable.

B<State Sovereign Immunity (11th Amendment)>

The issue is whether a citizen file a suit against a state.

The 11th Amendment prohibits a party from suing a state in federal court, unless: (i) the state expressly
consents to be sued; (ii) the suit is filed pursuant to laws adopted by Congress under Section 5 of the
14th Amendment (e.g., under a civil rights statute), or (iii) bankruptcy proceeding.

In addition, a state official officer may be sued for (i) injunctive relief, or (ii) monetary damages to be
paid out of his own pocket for the violation of the Constitution or the federal laws.

* Local governments (e.g., cities or counties) are not protected by the 11th Amendment immunity and
sovereign immunity.

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Power of Congress

B<Congressional Power – Commerce Power>

The issue is to what extent Congress has the power to regulate commerce.

Congress has the power to regulate foreign and interstate commerce under the Commerce Clause.
A federal law may regulate (i) channels of interstate commerce, (ii) instrumentalities of interstate
commerce, (iii) persons and things in interstate commerce; or (iv) activities that have a substantial
effect on interstate commerce.

As to (iv), if the activity in issue is economic activity, it can be based on cumulative impact.
 [substantial effect on interstate?] Federal regulations regarding intrastate activities will be upheld if
 [commercial] (1) rational basis (2) to conclude that the cumulative national impact of the
activities (aggregation) (3) have a substantial effect on interstate commerce.
 [not commercial] aggregation cannot be used  difficult to meet the substantial effect
standard. (e.g., possessing a firearm in a school zone; general acts of violence)

B<Congressional Power – Section 5 of the 14th Amendment / 13th, 15th>

The issue is to whether Congress may create new rights or expand the scope of rights.

Congress has the power to enforce the provisions of the following Amendments through appropriate
legislation:
13th; 14th; 15th

 Congress may only prohibit behavior that is likely to involve a constitutional violation.
 Congress CANNOT define constitutional rights or change substantive law. There must be congruence
and proportionality between the constitutional injury to be prevented or remedied, and the
legislative means that are adopted by Congress.

Congress may not create new rights or expand the scope of rights under Section 5 of the 14th
Amendment. Congress may act only to prevent or remedy violations of rights recognized by the courts.
Laws must be “proportionate” and “congruent” to remedying constitutional violations

CB <Congressional Power – Taxing/Spending Power>

The issue is whether the legislative enactment can impose a “tax”.

Congress has the power to tax and spend for general welfare.

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 A tax law is constitutional if (i) the law is reasonably related to revenue production; or (ii) Congress has
the power to regulate the activity taxed.

B<Limit on Congress Power– the 10th Amendment>

The issue is whether Congress can compel state regulatory or legislative action.

Under the 10th Amendment, all powers not NOT granted to the federal government are reserved to the
states. Thus Congress cannot compel state to take regulatory or legislative action.

However, Congress can induce state government action by putting attaching conditions on federal
funding grants pursuant to its federal taxing and spending powers, so long as the conditions (i) are
expressly stated, and (ii) are related to the purpose of the spending program; (iii) and not unduly
coercive.

C<Delegation of Power>
The issue is whether Congress may delegate its legislative power.

Legislative power may generally be delegated to the executive or judicial branch as long as:
(i) reasonably intelligible standards are set; and
(ii) the power is not uniquely confined to Congress (e.g., powers to declare war, nor impeach)
-----
* “Intelligible standards”: as a practical matter, almost anything will pass for an intelligible standard
(e.g., “upholding public interest, convenience, or necessity”).

Congress CANNOT delegate powers it does not have (=executive or judicial powers) to itself or its
officers.

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Power of the President

C< Executive Powers: Domestic Powers>

The President has the power to: (1) faithfully execute the law; (2) appoint officers of the United States
(with Senate advice and consent) and inferior officers; (3) remove cabinet level appointees (without
cause) and independent regulatory agency appointees (without cause unless Congress passes a statute
requiring good cause); (4) pardon federal crimes (except for crimes that lead to impeachment by the
House of Representatives); AND (5) as Commander in Chief, the power to control troops.

When determining whether the President’s act is within his Constitutional power, a court must consider
the three Youngstown circumstances. First, if the President acts pursuant to an express or implied
authorization of Congress, he is acting within the highest level of authority, and his actions are likely to
be deemed valid. Second, if the President acts when Congress is silent, the President’s acts will be upheld
UNLESS he is usurping the power of another branch of the federal government. Third, the President acts
within the lowest level of authority when acting against an express or implied will of Congress, making
his actions likely to be deemed invalid.

C< Executive Powers: Foreign Powers>

 The President shares treaty powers with Congress. Treaties must be negotiated by the President,
and ratified by two-thirds vote of the Senate.
 However, the President alone may enter into Executive Agreements (agreements between the
President and a head of a foreign country)., and may
 The President has broad power to control and deploy troops in foreign countries.

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Federalism-based limits on State Authority

C<Express Supremacy Clause & Preemption>

The issue is whether a federal law preempts a state law.

Under the Supremacy Clause of the UC Constitution, validly enacted federal law will always preempt
conflicting state law. Preemption may be express or implied.

 Express preemption occurs when federal legislation specifically states that the federal law is
exclusive.
 Implied preemption occurs through (a) direct conflict with the state law; (b) field preemption,
when it appears from the law itself or its legislative history that the federal government intended
to exclusively occupy a given field; OR (c) when the state law substantially interferes with the
objective of the federal law.
The Supremacy Clause provides that the Constitution, and laws and treaties made pursuant to it, are
the supreme law of the land. Thus, a federal law may expressly provide that the states may not adopt
laws concerning the subject matter of the federal legislation. However, an express preemption clause
will be narrowly construed. If the purposes of the federal statute and the state statute are different, it is
likely that the intent of the federal statute is not to occupy the field which the state statute is regulating.

C<Implied Preemption>
The issue is whether a federal law preempts a state law.

Even if federal law does not expressly prohibit state action, state laws will nevertheless be held
impliedly preempted if:
(i) They actually conflict with federal requirements;
(ii) They prevent achievement of federal objectives; or
(iii) Congress has preempted the entire field (field preemption).

B<Dormant Commerce Clause>

The issue is whether a state may regulate commerce that Congress has not enacted laws.

If Congress has not enacted laws regarding the subject, a state may regulate local aspects of interstate
commerce (preemption).
Notwithstanding the above, state and local governments generally CANNOT pass laws that (a)
discriminate against out-of-state commerce ; OR (b) place an undue burden on interstate commerce.

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  Discriminatory?
(1) On its face; OR
(2) Discriminatory impact + intent

 [Discriminatory Regulation] If discriminatoryHowever, where the state regulation discriminates

against out-of staters, the regulation violates the Dormant Commerce Clause, unless (i) the
regulation must be necessary to achieve an important state interest (must be NO LRA), (ii)
Congress approves the regulation, or (iii) the state is a market participant.

 [Undue Burden Regulation] Where the state regulation does not discriminate against out-of staters,
the regulation violates the Dormant Commerce Clause, if the burden outweighs a legitimate state
interest.

CB<Privileges & Immunities Clause of Article IV>

The issue is whether the state action violates the Privileges and Immunity Clause of Article IV.

A state action violates the Privileges and Immunity Clause of Article IV, if it discriminates against out-of
state individuals with regard to fundamental rights (civil liberties) or important economic activities
(ability to earn a livelihood), unless it is necessary to achieve an important state interest.

* NOT applicable to aliens or corporations

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Governmental Action

C<The Bill of Rights>

The Constitution provides individuals with a number of rights that restrict the power of the government.
By its terms, the Bill of Rights (the first 10 Amendments to the Constitution) is the most important
source of limitations on the federal government’s power. However, the Bill is not applicable to the
states, although most of its safeguards have been held to be applicable to the states through the 14th
Amendment Due Process Clause.

However, there are four provisions of the Bill of Rights that have not yet been incorporated into the Due
Process Clause:
(i) 3rd amendment right to not have soldiers quartered in a person’s home
(ii) 5th amendment right to grand jury indictment in criminal cases
(iii) 7th amendment right to jury trial in civil cases
(iv) 8th amendment right against excessive fines

A <State Action Requirement>

The issue is whether the Constitution applies to the action.

The Constitution generally applies only to governmental action. However, the Constitution applies to
private action if (i) if a private entity is performing a task traditionally &, exclusively done by reserved to
the government, ; or OR (ii) the government when significant government involvement amounts to
affirmatively authorizes, encourages, or facilitates unconstitutional activity.

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Due Process (5th & 14th AM) & Taking (5th AM)

C<Procedural Due Process – General>

The issue is what procedure is required to deprive a person of life, liberty or property.

The Due process Clause of the Fifth Amendment (applicable to the federal government) and the
Fourteenth Amendment (applicable to the states) provide that the government shall not individually
take a person’s life, liberty, or property without due process of law. Due process contemplates fair
process/procedure, which requires at least an opportunity to present objections to the proposed action
to a fair, neutral decision-maker (not necessarily a judge).

 Deprivation of property occurs when an individual has an entitlement that is not fulfilled.

The type and extent of required procedures are determined by a three-part balancing test that weighs:
(i) The importance of the individual’s interest to the individual; and
(ii) The value of specific procedural safeguards to that interest; against
(iii) The governmental interest in fiscal and administrative efficiency.

B <Taking Clause – General>

The issue is under what conditions the government may take private property.

Under the Takings Clause of the Fifth Amendment, the government may take private property for public
use, if it provides just compensation.
 A "taking" includes not only physical occupation, even if it’s just a small portion (possessory
taking), but also government regulation that leaves no reasonable economically viable use of the
property (regulatory taking).
 A taking is for "public use", if the government reasonably believes that the taking will benefit the
public.
 "Just compensation" is measured by the fair market value of the property before the taking.

* Emergency exception

B<Taking Clause – Conditions on Exactions >

The issue is whether the condition on development of property placed by the government constitutes a
taking.

Conditions on development of property placed by the government does not constitute a taking under
the Fifth Amendment, if it is justified by a benefit that is roughly proportional to the burden imposed.

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C<Substantive Due Process >
 Substantive Due Process pertains to the government’s power to regulate certain activities.
 When the government attempts to regulate fundamental rights, it must satisfy strict scrutiny.
Fundamental rights include: (1) the right to vote; (2) the right to interstate travel; and (3) the right
to privacy, which encompasses the right to marry, procreate, use contraceptives, raise one’s
children, keep the family together, and maintain custody over one’s children.
 The government may regulate activities that DO NOT constitute fundamental rights so long as it
meets the rational basis test.

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Equal Protection (5th & 14th AM)

A <Equal Protection - General Analysis>

The issue is whether the government action violates the Equal Protection Clause.

The Equal Protection Clause of the Fourteenth Amendment, applicable to the federal government
thorough Due Process Clause of 5th AM, prohibits the government from denying citizens equal protection
of the laws. When the government makes laws that classify people into groups, the court will use the
different levels of scrutiny in determining its constitutionality.

<suspect class: BoP on Gov>

Where a classification is based on a suspect class (race, national origin, or alienage, etc.) or the law
infringes on a fundamental right for a class of people, the court will apply strict scrutiny. Under strict
scrutiny, the government must show that the law is necessary to achieve a compelling government
interest.
[If the law is facially neutral, a plaintiff must show both discriminatory impact and discriminatory intent.
if fails, rational basis test applies. Under rational basis test....]
[In case of alienage classification, if the law concerns self-government and the democratic process,
rational basis test applies. Under rational basis test....]

<quasi-suspect class: BoP on Gov>

Where a classification is based on a quasi-suspect class (gender, non-marital children, or undocumented
aliens, etc.), the court will apply intermediate scrutiny. Under intermediate scrutiny, the government
must show that the law is substantially related to an important government interest. [In addition, a
gender classification requires an exceedingly persuasive justification.]
[If the law is facially neutral, a plaintiff must show both discriminatory impact and discriminatory intent.
if fails, rational basis test applies. Under rational basis test.....]

<other class: BoP on P>

Where a classification is based on a class other than suspect or quasi-suspect class, the court will apply
rational basis test. Under rational basis test, the plaintiff must show that the law is not rationally related
to any legitimate government interest.

<Past Discrimination Remedy>

A classification to remedy past discrimination may be allowed if the class has actually suffered past
discrimination. The level of scrutiny depends on the classification.

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Freedom of Speech

A <Freedom of Speech – Standards of Review (Content-based vs. Content-neutralConduct)>

The issue is the regulation violates the Free Speech Clause.

Under the Free Speech Clause, the government may not regulate the content of speech unless the
regulation meets strict scrutiny. Under strict scrutiny, the government must show that the restriction is
necessary to achieve a compelling government interest.

Under the Free Speech Clause, the government may regulate the time, place, and manner of the
content-neutral speech if the regulation meets intermediate scrutiny. Under intermediate scrutiny, the
government must show the restriction is substantially related to an important government interest.

A <Freedom of Speech – Public Forums and Designated Public Forums>

The issue is whether the government may regulate speech in the public forum/designated public forum.

The government may regulate the time, place, and manner of content-neutral speech in a public
forum/designated public forum, if the regulation is narrowly tailored to serve an important
government interest; and leaves open alternative channels of communication.

A public forum is a government property that has traditionally been available to the public for free
speech (public sidewalks, parks, streets). A designated public forum is a government property that has
not traditionally been available to the public for free speech but the government choose to open to
speech.

The government may not regulate the content of speech in a public forum/designated public forum
unless it meets strict scrutiny.

A <Freedom of Speech – Limited Public Forums and Nonpublic Forums>

The issue is whether the government may regulate speech in the limited public forum/nonpublic forum.

The government may regulate speech in limited public forum/non-public forums if the regulation is (i)
reasonably related to a legitimate government purpose and (ii) viewpoint neutral.

A limited public forum is a government property that is limited to certain groups or dedicated to the
discussion of only some subjects. Non-public forum is a government property that the government can
and does close to speech.

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B<Freedom of Speech – Overbroad Regulation>
The issue is whether the regulation is invalid as overbroad regulation.

A regulation of speech violates the Free Speech Clause and is facially invalid if it is overbroad, i.e., it
regulates substantially more speech than is constitutionally permitted. necessary.
However, where a court has previously deemed a law applicable to only unprotected speech, then any
alleged overbreadth/vagueness will NOT bar a conviction.

B<Freedom of Speech – Vagueness Doctrine>

The issue is whether the vague statute is invalid.

A statute violates the Free Speech Clause and is facially invalid if a reasonable person cannot tell what
speech is prohibited and what speech is allowed.
However, where a court has previously deemed a law applicable to only unprotected speech, then any
alleged overbreadth/vagueness will NOT bar a conviction.

C<Freedom of Speech – Symbolic Conduct>

The issue is whether symbolic conducts are protected under the freedom of speech.

The freedom of speech can extend to symbolic acts that is undertaken to communicate an idea.
However, the government may regulate such conduct if:
(i) it furthers an important government interest;
(ii) the government interest is unrelated to suppression of speech; and
(iii) the incidental burden on speech is no greater than necessary.

B<Freedom of Speech – Unprotected Speech (Incitement of Imminent lawless action)>

The issue is whether the prohibition of advocacy of lawless action violates Free Speech Clause.

The government cannot regulate an advocacy of action unless (1) the speech advocates the use of force
or illegality;there is advocacy of specific illegal conduct, (2) the advocacy calls fordirected to inciting
imminent lawless action (=intent) lawbreaking, and (3) substantial likelihood of inciting such action
(=objective likelihood) the lawbreaking is likely to occur.

B<Freedom of Speech – Unprotected Speech (Fighting Words)>

The issue is whether the prohibition of the use of “fighting words” violates Free Speech Clause.

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 The 1st AM DOES NOT protectThe government can ban the use of “fighting words,” which by their very
utterance, (a) inflict injury; OR i.e., personally abusive words that are (b) inherently likely to incite
immediate physical retaliation.

C<Freedom of Speech – Unprotected Speech (Obscenity)>

Obscenity is NOT protected under the 1st AM.

TEST for Obscene Speech:

(a) Material must appeal to the prurient interest, or a “shameful or morbid interest in sex.”
Use of an average person applying a local community standard
(b) Material must be classified as patently offensive under applicable federal/state/local law
(c) Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific
value.
Use a national standard of “value” not local.

B<Freedom of Speech – Unprotected Speech (Defamatory Speech)>

The issue is whether the First Amendment precludes a liability of defamatory speech.

The First Amendment precludes a liability of defamatory statement if the person suing is a public
official or public figure, or the statement involves an issue of public concern. In these cases, the plaintiff
must prove that the statement was false and made with actual malice (acknowledgment or
recklessness).

C<Freedom of Speech – Unprotected Speech (Commercial Speech)>

The issue is the commercial speech may be restricted.

As a general rule, commercial speech is afforded First Amendment protection if it is truthful. However,
commercial speech that proposes unlawful activity or that is misleading or fraudulent may be burdened

False or misleading commercial speech is NOT protected.

Any other regulation of commercial speech will be upheld only if it:

The government MAY regulate truthful, non-misleading commercial speech if the regulation
(i) directly advances
(ii) servers a substantial government interest; AND
(iii) directly advances that interest; and
(iv) it is no more extensive than necessary (narrowly tailored to serve that interest).

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B<Freedom of Speech: Public School Students >
Public school students DO NOT LOSE their 1st AM rights to freedom of speech. BUT schools are given a
greater latitude to regulate speech by a student.

In order to justify the suppression of speech, school officials MUST prove that the conduct in question
would materially and substantially interfere with the operation of the school.

C <Freedom of Speech: Government Employees>

To be protected under 1st AM, a government employee must speak (1) as a citizen; AND (2) on a matter
of public concern. An employee’s statements made pursuant to their official duties are NOT protected
under the 1st AM.
If these are met, then consider whether the government had an adequate justification for treating the
employee differently based on the government’s interest as an employer.

C B<Freedom of Speech – Prior Restraints>

The issue is whether the prior restraint is allowed.

 A prior restraint violates the Free Speech Clause unless the restraint meets strict scrutiny. Under
strict scrutiny, the government must show that the restraint is necessary to achieve a compelling
government interest.
 In case of license or movie censorship, a court requires (1) the government has an important reason
for licensing; (2) specific, articulated standards are used to grant the license to remove discretion of
the licensing body; AND (3) procedural safeguards (, such as (i) prompt determination, (ii) a
reasonable and narrowly drawn standard, and (iii) judicial review,) are in place.

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Freedom of Association

C<Freedom of Association – General>

 Freedom of association is a fundamental right. Thus, the government may only regulate it and/or
compel disclosure of group membership if it satisfies strict scrutiny.

 However, theThe government MAY punish a person's membership in a group if it proves that the
person: (1) the group is actively affiliated actively engaged in illegal activitywith the group; (2) the
person knows of its illegal activities; AND (3) the person has the specific intent of furthering those
illegal activities.

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Freedom of Religion

C<Freedom of Religion – Free Exercise Clause (Neutral Law of Generally Applicabilityle Regulation)>
The issue is whether the Free Exercise Clause requires religious exemption from generally applicable
governmental regulations.

The Free Exercise Clause in the 1st AM, applicable to States through 14th AM, prohibits the government
from interfering with the exercise of religion.

A neutral law of general applicability does not violate the Free Exercise Clause, so long as a law is (i) not
directed towards a religion, (ii) not motivated to limit religion., and (iii) has general applicability.

If it was motivated or targeted to restrict interfere with religion, then it must meet strict scrutiny
[target してたら即違憲って訳じゃないので SS のあてはめ必要].

C<Freedom of Religion – Establishment Clause>

The issue is the standard of review for the Establishment Clause.

Government action challenged under the Establishment Clause will be found invalid unless the action:
(i) has a secular purpose;
(ii) has aits primary effect that neither advances nor inhibits religion; and
(iii) does not produce excessive government entanglement with religion (the “Lemon” test).

Laws that discriminate against a religion MUST satisfy strict scrutiny.

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