CONSTITUTIONAL LAW

01. FED Judicial Power (15%)

02. FED Legislative Power
03. FED Executive Power
04. Federalism (20%)
05. Structure of the Constitution’s Protection of Individual Liberties**
06. Due Process (Individual Liberties)**
07. Equal Protection**
08. First Amendment** (20%)
- Congress passes an Act, and President signs the Act  FED Act (statute)

01. FED JUDICIAL POWER: Art. 3 defines the FED CT’s Power [15% of Con Law Qs]
(1) Requirement for “Cases & Controversies” Standing, Ripeness, Mootness, Political Q doctrine
(2) Supreme CT Review
(3) Lower FED CT Review
FED J is entitled to life tenure & undiminished pay.
I. Policy of strict necessity – Requirement for case or controversy (= Justice Ability Doctrines) for any FED CT to hear the case (= to be
justiciable). If not, Dismissed
1) Standing : must have Standing Senator NO standing for law to permit president line-item veto
2) Ripeness : must be Ripe
3) Mootness : must not be moot
4) Political Question doctrine: must not pose a political question.

(1) Standing is the issue of whether A person (P) is the proper party to bring a matter to CT for adjudication (4 requirements)
P must have a concrete (실체가 있는) stake in the outcome of the case. NOT advisory opinion. Shall be settled, solved …
① Injury: P MUST show that he has been injured OR imminently will be injured.
e.g., Invasion of privacy (even when damages not proved); 나라가 specific ppl 도청, other ppl have NO Standing bc can’t show injury.
- P seeking injunctive/declaratory relief MUST show additional element of ‘likelihood of future harm’. (Man was choked by
Police officer. Man seeks injunctive/declaratory relief. LACKED STANDING bc USSC held it is not likely that he Pally would be re-choked in the
future.
{TIP: Which P has the best standing? IF more than one answer (Pal injury), choose P who suffered economic loss ($ value harm)}
② Causation & Redressability: P MUST show that D caused the injury so that a favorable CT decision is likely to remedy the injury.
(P must show that a favorable FED CT ruling is likely to remedy the harm suffered. The best way to do so is to know that D is the cause of that
harm.)
(Case= Fed Statute said, hospital must provide free care to indigents to have a certain tax status. IRS rule said hospital need not do so, to keep its
tax status. Poor ppl went to hospital to ask for free care but were rejected. Poor ppl sued IRS b/c inconsistent w/ Fed Statute.  DISMISSED for
Lack of Standing b/c even if IRS rule was struck down, free care wouldn’t be available b/c hospital may choose not to keep that status. CT decision
would not remedy the injury.
③ No TP Standing: P CANNOT assert claims of TPs who are NOT before the CT.
 Exceptions: To have TP Standing, P must meet all standing requirements + one of the exceptions below is met:
a. There is a close relationship b/w P & the injured TP so P can be trusted to adequately represent the TP’s interests.
- e.g., doctor-patient
(CASE= doctors had TP Standing, asserting their patient’s constitutional right claims, to challenge the law prohibiting abortions.
Brought TP Standing claim b/c doctors couldn’t challenge the law by bringing their own claims, asserting economic injury by
prohibition on abortions.)
- e.g., parents-children
BUT USSC held that the father who lacked legal custody of his daughter lacked standing to act on behalf of her.
Father sued on behalf of his daughter to challenge the word, ‘God’ in the pledge of allegiance in public schools. Father had no
legal custody of his daughter. (Father LACKED STANDING) Mother had legal custody, but she did not want to sue.
b. The injured TP is unlikely to be able to assert his own rights.
c. An organization may sue on behalf of its members (aka Organizational/Associational Standing) IF
(i) An injury to the members, giving them a right to sue
(ii) The injury is related to the Org’s purpose
(iii) Neither the claim nor relief require participation of individual members
④ No standing for generalized grievances: P has no standing solely as a citizen/taxpayer interested in having gov’t follow the law.
e.g., b/c a FED taxpayer’s interest in the monies of the Treasury is “shared with millions of others; is comparatively minute and indeterminable”
 Exception: Taxpayers/citizens have standing to challenge gov’t expenditures under FED statutes violating the Establishment
Clause
Establishment Clause: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
e.g., Constitution Art. 1 says Congress must give a regular statement of account on all its expenditures. A FED statute allowed CIA budget to be secret. One man
challenged, stating that the statute violates Const. Statement of Accounts Clause  NO STANDING b/c Generalized Grievance. Man had no interest other than as a
citizen, objecting to his tax being used in violation of Constitution
e.g., Fed. law allowed to give fed. financial aid ($) to parochial schools (religious schools). Tax payers challenged, stating that the FED law (statute) violates the
Establishment Clause (impermissible establishment of religion in violation of First Amendment.)  YES STANDING. Law unconstitutional. b/c “The Establishment
clause was meant to limit Congress’s taxing and spending power. So, here, taxpayer standing is permitted.”
e.g., ST gov’t gave gov’t property worth $1 million to a religious college. Taxpayer challenged  NO STANDING b/c not expenditure of money.
e.g., Expenditures from general executive revenue. President Bush executed a faith-based program, giving FED money to churches and synagogues for social
service programs. Paid from General Executive Revenue. Taxpayer challenged as violating Establishment Clause.  NO STANDING b/c “the money was spent from
general executive revenue, not under a specific FED statute.”
e.g., Tax credit is OK. Arizona law allowed individuals to get a $500 tax credits for private school tuition. (evangelical Christian schools)  NO STANDING b/c Tax
Credit! Not money.
(2) Ripeness: In general, P cannot challenge a law if it is not enforced (e.g., no one has prosecuted under that law)
- Exception: P may challenge a law (e.g., requiring declaratory judgment) even when the law is not enforced, and FED CT may grant pre-
enforcement review of the law, by considering:
 ① Hardship P will suffer w/o pre-enforcement review (The greater the hardship, the more likely fed ct. will hear the case.)
② The issue’s fitness and the record for judicial review (Does Fed CT know enough to decide the issue right now? Would waiting until
Actual Prosecution provide more evidence to determine the issue?)
(Case= Food and Drug Administration adopted a rule: ‘all prescription drug labels must ST the generic name of the drug.’ Drug Companies challenged, stating that
FDA lacked the authority to adopt the rule under some FED Act. FDA argued, ‘No ripeness! No drug companies have been prosecuted under the rule yet! Wait
until they’re actually prosecuted’  YES RIPENESS b/c 1. Severe hardship b/c drug companies would either have to violate or comply and risk $ millions. 2. Yes
Fitness of the issues and the record for judicial review b/c waiting for actual prosecution wouldn’t provide any better evidence for determining the issue of
whether FDA had authority to adopt the rule or not.)
e.g., A ST adopted a law: ‘all clothing sold must be treated w/ fire retardant material.’ The law empowered a ST agency to issue rules specifying the required
treatment. (ex. what kind of fire retardant materials should be used). No rules issued yet. A manufacturer in that ST challenged and asked for a Declaratory
Judgment, alleging that it violates the Constitution.  NOT RIPE b/c 1. There can’t be hardship yet, and 2. No record or any basis for judicial review, until the ST
agency issues rules on what fire retardants must be used.
(3) Mootness: (must NOT be moot) IF the matter has been resolved (e.g., end injury) after the filing of a lawsuit, the case MUST be
dismissed. P must present a live controversy in ongoing injury in ALL stages of the proceedings.
 Exceptions:
① Wrongs capable of repetition but evading review (e.g., pregnancy)
- Injury that happens over and over, with short duration, that the injury ends before the proceeding ends.
(e.g., Roe vs. Wade. CT said it’ll adjudicate the case b/c a wrong capable of repetition, bc Roe could become pregnant again in the future
and seek an abortion (injury continues). It would always evade review b/c the time for human gestation 임신기간 is shorter than the time
for litigation.)
② Voluntary cessation
: If D voluntarily stops the offending behavior, but is free to resume it at any time, case is NOT dismissed as moot.
(Employer is sued for using a racially discriminatory test in hiring. After sued, he voluntarily halts using the test. But, legally, he can resume
anytime)
③ Class action suits
: The class action NOT dismissed, so long as one member of the class has an ongoing injury
(4) Political Question Doctrine: Fed CTs does NOT adjudicate certain claims as non-justiciable political Q, and case is dismissed.
1. The Republican Form (공화당) Of Gov’t Clause: If P challenges that a ST or local practice violates a republican form of gov’t
Clause, the case is dismissed as a political question.
 Const. Art 4. Sec. 4: US shall guarantee to each ST a republican form of gov’t. (People elect Reps who make the laws.)
2. Challenges to the President’s conduct of foreign policy (e.g., claim against the Vietnam War)
e.g., During 1960~1970s, many lawsuits were brought arguing that the Vietnam War was unconstitutional b/c the President was waging war without a
Congressional declaration of war.  Cases ALL Dismissed as political questions b/c they were challenges to the President’s conduct of foreign policy.
e.g., President Jimmy Carter rescinded the United STs’ Treaty with Taiwan as part of recognizing the People’s republic of China. Senator challenged President’s
conduct, saying that the Senate must approve the Rescission of a Treaty b/c it also approves making of the Treaty.  Case dismissed as a non-justiciable political
question b/c it was a challenge to the President’s conduct of foreign policy.
3. Challenges to the impeachment & removal process
e.g., A Fed District CT Judge Nixon was impeached by the House. Went to the Senate for a trial. Senate formed a committee to try him. He challenged, saying the
whole Senate should sit and try him.  Case Dismissed as a non-justiciable political question b/c challenge to impeachment & removal process.
4. Challenges to partisan gerrymandering *Gerrymandering= manipulating district boundaries for political advantage.
 where the political party that controls the legislature draws election districts to maximize ST seats for that party
e.g., A Republican-controlled ST legislature drawing ST legislative seats, or congressional seats, to maximize seats for Republican party.

- For review of USSC/lower FED CT, requirements for cases and controversies must be met.
II. SUPREME CT REVIEW Congress may remove subject area from USSC’s appellate JX, as long as it acts neutrally.
A. US Supreme CT (USSC) can hear cases by:
1. Writ of certiorari: by certiorari, USSC has discretion to hear (1) cases of highest ST CT on constitutionality of ST/FED laws, OR ST
law violating FED law, (2) cases from FED CTs of appeals that come.
2. Appeal: USSC must hear appeal cases decided by 3 Js FED panels.
3. USSC has original & exclusive JX (cases involving ambassadors, public ministers, consuls, and where ST is a party)
- USSC has given concurrent JX to lower FED CTs in all cases except for those btw STs.
B. Final Judgment Rule: Generally, USSC may hear cases only after there has been a final judgment, NOT interlocutory judgment.
C. Before USSC hears the case, all appeals in ST/FED CT must be tried.
D. USSC has no JX to review ST CT decision that is based on two grounds (FED and ST law), and one of them is an independent and
adequate ST law (= ST law is sufficient to sustain the judgment; USSC’s reversal based on the Fed Law will NOT change the result).
(e.g., P is beaten up by LA police officers. P sues the officers in CA ST CT, with two claims. One is a Constitutional claim – “The excess of police force violated 4 th
Amendment.” The other is a ST battery claim. P wins in the ST Trial CT on both claims. P is entitled to $100,000 either under the FED claim or ST claim. But, not
entitled to $200,000. D appeals but loses. D seeks USSC review of the FED Law ground of the decision. Can USSC review the FED Law Q, the Constitutional issue?
 No. b/c even if USSC reverses under FED Law ground of decision, P will win the same amount of money, $100,000 under ST law claim. In other words, since ST
Law claim is independent of FED law and adequate to support the result, NO USSC Review..)
(e.g., Neighborhood upset over pollution sued for 2 claims. 1. Fed claim: Clean Air Act. 2. ST Claim: Nuisance. ST Trial CT= P is entitled to the injunction under
either the FED Clean Air Act or the ST Nuisance law. D appeals, but loses. D seeks USSC review on the FED Law Claim. Remember the USSC can decide only FED
law question.  Here, USSC cannot review the FED Law claim. Even if USSC reverses on the FED Law ground, P will still have the same injunction based on ST
Nuisance Law. (entitled to injunction on either ST OR Fed grounds) Since ST Law ground is independent of FED Law ground and adequate to support the result,
NO USSC Review.
(e.g., P challenges a city ordinance based on ST law and FED law grounds at a ST Trial CT. ST Trial CT decides ordinance is unconstitutional (struck down) under ST
Law grounds. Permissible under FED law grounds. D appeals, but loses.  USSC cannot review this case b/c ST CT Decision had an independent and adequate ST
Law ground. Even if USSC reverses the FED Law claim, stating that the ordinance is constitutional, it will NOT change the result b/c the ordinance is already struck
down/unconstitutional under ST Law.

III. FED CT
A. In general, FED CTs may NOT hear suits against STs.
1. (1) 11th Amendment bars FED CT from hearing cases against STs by private party or foreign gov’t. e.g., where ST will have to pay
retroactive damages
(2) Sovereign immunity bars suits against STs in ST CTs even on FED claims.
2. EXCEPTIONS: STs may be sued IF:
① ST consents
 ② Actions: against local gov’t; by US/other STs; Proceedings against ST in FED bankruptcy CT.
③ Actions against ST officers for violation of constitution/FED law (for 1. Injunctive relief; 2. making him personally liable; 3.
requiring prospective payment to ST)
④ Congress may remove 11th Amendment immunity as to violation of 14th Amendment
B. Abstention (기권): Fed CTs may NOT enjoin pending ST CT proceedings, even if FED CTs have JX.
e.g., CA adopts a law that prohibits the ownership or use of Barbri books. I am sued in CA ST CT for having and using my Barbri books. After sued in CA ST CT, I
immediately file a lawsuit in Fed CT to enjoin (halt) the ST prosecution, to have the ST law declared unconstitutional for violating my 1 st Amendment rights. I
presented a FED question. Fed CT has JX (All Justice Ability requirements are met). However, the Fed CT must abstain b/c Fed. Ct. generally may not enjoin
pending ST CT proceedings.

02. FED LEGISLATIVE POWER: Art. 1 defines the powers of the Congress.
(1) Congress’ Authority to Act
(2) Delegation of Powers
I. CONGRESS’ AUTHORITY TO ACT
A. Congress MAY act ONLY if there is express/implied congressional power in constitution.
 Congress has no police power (= to legislate for the health, welfare, morals, etc., of the citizens) while ST/local gov’ts have police
power to do anything except what’s prohibited by Const.
 EXCEPTIONS: Congress has [MILD] police power on: TIP= If ST possessions, wrong
① Military
② Indian Reservations
③ FED Lands and Territories
④ governing Washington DC

B. Necessary & Proper Clause: Congress CAN adopt any laws to carry out its authority as Necessary and Proper means.
TIP= N&P must work w/ another FED power. (N&P alone= 답 아님)
A1 §8: Congress may raise an army and a navy. Congress can decide to hold a nat’l bake sale to fund the army and the navy, even though
nothing in the Constitution gives Congress the power to create a national bake sale.

C. Taxing/Spending Power and Commerce Power Non-activity 는 해당 안됌

1. Taxing/Spending Power: Congress may tax and spend for the general welfare of the public. NOT Only to ST; BUT to ST & Persons
Case: Congress law: Everyone must purchase health insurance (individual mandate), or pay a tax penalty= Constitutional b/c YES within
Taxing Power for the general welfare. To raise revenue. BUT, Congress CANNOT regulate inactivity (the failure to purchase insurance)
Case: Congress conditioning to aid STs for medical programs on ST funding of AIDS research.  Spending Power.
2. Commerce Power (Art. 1 Sec. 8): Congress may regulate commerce (NOT non-activities) with foreign nations, Indian tribes and
among the STs. Must be one of 3 situations:
① Congress may regulate the channels of interstate commerce (e.g., highway, waterway, the Internet 통해가는 곳)
② Congress may regulate the instrumentalities of interstate commerce (e.g. cars, planes, telephone, internet 지나가는 것) and
persons/things in interstate commerce (e.g., electricity, radio waves, stock, insurance, cattle, people (anything that crosses ST lines))
 Marshall said commerce refers to any intercourse crossing ST lines.
e.g., Congress law: prohibited gun within schools as a FED crime.= Unconstitutional b/c exceeded Congress’s Commerce Power among the
STs.
e.g., Congress law: prohibited taking a woman across the ST line for immoral purposes (prostitution, mistress), as a FED crime  OK
constitutional b/c regulated Ps in interstate commerce.
③ Congress may regulate INTRASTATE (1) economic activities, when taken cumulatively, with substantial effects on interstate
commerce; and (2) non-economic activities with a direct substantial economic effect on interstate commerce (NOT
aggregates effects).
Wicker Case: Congress law: regulated amount of wheat harvested by farmers for their own family’s consumption. Farmer challenged that
growing for his own family had nothing to do with interstate commerce.  SC: OK Constitutional b/c wheat farmers growing wheat for
home consumption taken cumulatively has a substantial economic effect on wheat prices.
Marijuana Case: Congress law: prohibit individual possession/cultivation of small amounts of marijuana  SC: OK Constitutional b/c
possessing/growing marijuana taken cumulatively, it has a substantial economic effect on marijuana prices.
Morrison: Congress law: can sue in FED CT for violence on women (ex. domestic violence, sexual assault) b/c Congress found violence on
women cost the economy $ billions/year  SC: Violence Against Women Act was unconstitutional, b/c when regulating non-economic
activities, substantial effect can’t be based upon cumulative impact.
Case: Congress bars racial discrimination at places of public accommodation = OK under Commerce Clause
Case: Congress requires all employers, including ST gov’ts, to comply w/ FED minimum wage and overtime provisions.= “ “

D. 10th Amendment as a Limit on Congressional Power

- Under 10th Amendment, all powers not delegated to US are reserved to the STs, if not prohibited by constitution.
1. Congress CANNOT adopt a law commandeering ST to adopt laws or enact regulations; otherwise, violation of federalism
2. Exception= Congress CAN induce ST action by putting strings on grants ($), IF the conditions are 1. expressly stated 2. relate
to the purpose of the spending program (=general welfare), AND 3. not unduly coercive.
3. Exception= Congress MAY prohibit harmful commercial activity by ST.
CASE= FED Act required every ST to clean up its nuclear waste by 1996, by failing to do so, that ST would be liable for any harm.  SC:
Unconstitutional, violates 10tsh Amendment! Congress was commandeering: forcing the STs to adopt laws or enact regulations
CASE= FED Act required ST law enforcement to do background checks before permits firearms.= Unconstitutional, violates 10 th b/c Congress was
commandeering: forcing the ST to carry out a FED mandate.
CASE= Congress said: Any ST taking FED highway $ money must set a 21-yr old drinking age, OR lose 5% of the funds.  OK Constitutional b/c
not requiring/compelling the STs to do something, but only encouraging them to do something by putting strings on grants. 1. Expressly stated
the conditions (21-yr drinking age), and 2. Related to the purpose of the spending program: Highway safety, and 3. Not coercive. Only 5% of FED
money.
CASE= Congress Act: Any ST taking FED Medicate $ funds must provide medicate coverage for certain people of a poverty level from ST money.
If not, NO FED Medicate fund.  Unconstitutional b/c unduly coercive. STs are sooooo dependent on Fed. Medicate money. Gun to head!
e.g., FED Act prohibits ST department motor vehicles from releasing Pal information by the individuals (ex. home addresses, or social security
numbers). South Carolina challenged the law arguing a violation the 10 th  Constitutional, No violation of 10th b/c Congress was prohibiting
harmful commercial activity. Congress was NOT imposing an affirmative duty on the STs.
 E. Congress has the power to adopt laws to enforce the 14th Amendment under 14th Amend. Sec 5.
1. Congress CANNOT create new rights OR expand the scope of rights recognized by CTs.
2. Congress MAY act to prevent/remedy violations of rights recognized by CTs, and such laws MUST be proportionate and
congruent (narrowly tailored) to preventing/remedying the violations, by showing pattern or history (in the past).
CASE= FED Act: tried to restore religious freedom.  Unconstitutional b/c Congress was creating new rights or expanding the scope of rights
under 14th Amendment Section 5.

II. DELEGATION OF POWERS EVERY DELEGATION IS UPHELD!

A. Congress can delegate its (even broad) legislative (law making, changing, regulation ..) power as long as intelligible standards are met.
(ex. Congress delegating legislative powers to an executive agency)
CASE= FED Communications Act= Congress authorizes the FED Communications Commission to regulate broadcasting in the public interest=
ENORMOUS DELEGATION! UPHELD. Constitutional
Ex. FED Statute= authorized Presidential Executive Order to set the specified percentage by which energy consumption must be reduced= Delegation
Upheld
{TIP: Answer choice that FED Law is unconstitutional b/c of axis of delegation of Congress’s legislative power are ALWAYS wrong b/c never declared
unconstitutional as an axis of delegation since 1936.}
B. Legislative Vetos & Line-Item Vetos are ALWAYS Unconstitutional
- Legislative Veto = Congress tries to overturn Executive Action w/o bicameralism or presentment.
e.g., bicameralism= passage by both houses of Congress.
e.g., presentment= giving the bill to president for his signature/veto
- Line-Item Veto = President tries to veto a part, and approve other parts.  President must approve/veto bill in its entirety.
C. Congress CANNOT delegate Executive Power to implement/execute/enforce a law to itself OR its officers b/c it is unconstitutional,
b/c violation of Separation of Powers.

03. FED EXECUTIVE POWER Art. 2 defines the President’s power.

(1) Foreign Policy
(2) Domestic Affairs
Hierarchy: ST laws < Executive Agreement < FED Statute OR Treaty (the one adopted last) < Constitution
I. FOREIGN POLICY TIP= Treaty is also a Supreme Law of the Land, if they are self-executing (=w/o any implementation by Congress)
A. Treaties: agreements btw US & foreign country entered into by president, with consent of 2/3 of Senate.
1. Treaties prevail over > conflicting ST laws.
2. If a treaty conflicts w/ a Fed statute, the one adopted last in time controls.
3. If a treaty conflicts w/ the US Constitution, Treaty is invalid
B. Executive Agreements: agreements btw US & foreign country signed by president, & the head of the foreign country.
1. Executive Agreement can be used for any purpose that treaties cannot be used.
2. Executive Agreements prevails over > conflicting ST laws, but < conflicting Fed laws/Constitution
C. Only the president has the power to recognize foreign countries, NOT congress has.
CASE= Fed statute: Any US citizen w/ a child born in Jerusalem could designate her place of birth in the child’s passport in Jerusalem=
Unconstitutional
D. Commander-In-Chief: Congress has power to declare war. President may use US troops in foreign countries.
USSC has NEVER held that a President’s use of troops in a foreign country as unconstitutional.  NEVER Unconstitutional (but cannot declare war).
President using troops in a foreign nation for something that seems outrageous.  Best answer: Case dismissed as a non-justiciable political question.

II. DOMESTIC AFFAIRS

A. Appointment & Removal Power
1. Appointment Power
a. President appoints ambassadors, public ministers and consuls, USSC Js, officers of the US (whose appointment are not
provided otherwise), with advice and consent of Senate (approval by affirmative vote).
- Congress appoints inferior officers of the President, CTs, and the Heads of Departments.
*Inferior Officers= those who can be fired by Officers of the US.
e.g., Underlined are Interior Officers. US Attorney General can fire US Attorneys; Secretary of ST can fire those under him.
- Congress CANNOT appoint members of administrative/enforcement (=executive?) powers.
Congress creates a new fed agency. Under terms of the agency, President will appoint some members, and the Speaker of the House and
Pres Pro Tem of the Senate would appoint some members  Unconstitutional. Congress can’t give the appointment power of the agency
to itself.
b. President has power to make appointments for vacancy without senate approval during any Senate recess of sufficient
duration, unless Senate declares it is in recess.
2. Removal Power
- UNLESS removal is limited by FED statute, President may fire any executive branch official.
President Nixon fired the Special Prosecutor.  OK b/c there was NO statute limiting the removal (prosecutor/ investigators/ detectives =
Executive Branch)
- Congress can limit (NOT prohibit) the president’s removal power by statute. (e.g., an officer whose independence from the
President is desirable; for good cause)
e.g., CONGRESS CAN LIMIT REMOVAL OF Special Prosecutor (independence from President is desirable) b/c he may prosecute President’s
wrongdoings.
e.g., CONGRESS CANNOT LIMIT REMOVAL OF President’s cabinet b/c they exist to carry out the President’s policies.
B. Impeachment(탄핵)
- Congress may impeach President, Vice-President, all civil officers for treason ( 반역), bribery, high crimes, and misdemeanors.
① House has the SOLE power to invoke impeachment, by majority vote.
② After the House invokes the impeachment, the person is convicted by 2/3 vote in Senate.
C. Presidential Immunity
1. President has absolute immunity to civil suits for money damages on grounds of actions that occurred during his presidency.
2. NO immunity for actions made prior to taking office
Jones sued President Clinton for sexual harassment conduct that took place while he was a governor. Clinton tried to dismiss based on absolute
 immunity.  SC: NO IMMUNITY. Absolute immunity exists to protect the president for actions that occurred DURING his presidency.
D. Executive Privilege 특권 사라질 수 있다 (박근혜)
1. President has Executive Privilege to protect confidentiality of presidential papers & conversations
(e.g., conversations/memos from Advisors)
2. BUT the privilege must yield to other important (overriding) gov’t interests.
e.g., Presidential conversation (tape) (Executive Privilege) yielded to other important gov’t interest b/c the need for evidence of criminal trial to ensure
a third trial overrode Executive Privilege.
E. Pardoning Power: President has the power to pardon those accused of FED crimes.
X found in civil contempt by a Fed Judge and placed in jail. President wanted to pardon X.  Pardon NOT allowed b/c it’s civil contempt.
- But CANNOT pardon a person convicted of crime, and impeached by congress for that crime.

04. FEDERALISM: limits on ST and Local Gov’t Power when there is a challenge to a ST or local gov’t’s actions
(1) Preemption (Supremacy Clause)
(2) Dormant Commerce Clause / Privileges & Immunities Clause of Art IV / P or I Clause of 14 th (right to travel)
(3) ST Taxation of Interstate Commerce
(4) Full Faith & Credit
I. PREEMPTION: Art VI. (6) Supremacy Clause: Constitution and laws/treaties made under constitution are the supreme laws of the land.
A. Express Preemption: If Fed law expressly states that it is exclusive in a field, then the ST/local laws are preempted.
Fed Meat Label Act: ‘Only US Dept of Agriculture can label and grade meat.’  STs can’t make conflicting rules. ST laws are Expressly Preempted.
B. Implied Preemption: Fed law preempts ST/local laws IF:
1. Fed & ST laws are mutually exclusive;
e.g., Fed Regulation said: All maple syrup must state its ingredients. ST Law said: should not state ingredients.  ST law is preempted. Fed Law
wins.
2. ST/local laws impedes the achievement of FED objective; OR
ST law: Anyone filing an unfair labor claim can’t claim unemployment benefits.  ST law impeded the Fed Objective (NLRA) of encouraging
those claims.
3. Congress proves a clear intent that FED Law preempts ST/local laws in a field. (e.g., by legislative history)
Especially Fed Immigration Law: Congress intended Fed law to wholly occupy the immigration field. (exclusive)  ST Law is preempted.
C. Inter-Gov’tal Immunity: STs may NOT tax on or regulate FED Gov’t activity
① TAX on Fed Gov’t activity (FOCUS who should pay)
ex1) ST tax on a National bank (Fed Bank)  Unconstitutional to pay a ST Tax out of the FED Treasury ($).
ex2) Mom and Dad privately owned and operated a store on Fed land.  STs may tax that store b/c Private Owners are paying the ST Tax.
ex3) Gov’t store (on army base) can’t be required to pay ST Taxes b/c tax liability would be paid by the US Treasury. Unconstitutional.
② REGULATE Fed Gov’t activity.
 Fed Gov’t NEVER has to comply w/ ST/local pollution laws (=may be too burden).
- STs can adopt pollution control laws stricter than Fed law (for private industry), but Fed Gov’t doesn’t have to comply.

II. DORMANT COMMERCE CLAUSE & PRIVILEGES/IMMUNITIES CLAUSE OF ARTICLE IV (4)

A. Definitions
1. Dormant Commerce Clause (aka Negative implications of Commerce Clause)
e.g., ST favoring local economic interest or unduly burdening IC
= ST/Local Laws are unconstitutional if it places undue burden on Interstate Commerce (IC) (b/c Congress’s implied power)
TIP= Focus on who the actor is. If Congress  Commerce Clause; ST/local Gov’t  Dormant Commerce Clause.
TIP: ST cannot conflict w/ Congress’ law on IC matters (fed law preempts ST law) OR make ST laws that unduly burden IC.
2. Privileges & Immunities Clause of Art IV, Section 2 (Anti-discrimination provision)  protect people from other STs
- NO ST may deprive citizens of other STs of the Privileges and Immunities accorded to its own citizens
- Corp/alien cannot use. Only out-of-ST individual can use.
- No exceptions are available.
3. Privileges or Immunities Clause of the 14th Amendment  protect people from their own STs
: NO ST may deprive any citizens of the Privileges and Immunities of the US national citizenship.
TIP= ALWAYS a wrong answer, UNLESS the Q involves the right to travel. 14th protects the right to travel. If a ST law would discourage ppl from
moving from one ST to another, violates P or I Clause 14 th.

B. ALWAYS start with this question: Does the ST/local law discriminate against out-of-STrs?
1. Analysis if the law does NOT discriminate (treats in-STrs and out-of-STrs alike)
a. P&I Clause of Art IV does NOT apply b/c no discrimination against out-of-STrs
b. If the law burdens IC, it violates DCC IF burdens on IC exceed benefits  struck down. (If benefit exceeds, upheld)
IL law: All trucks MUST have curved mud guards while other STs wanted straight mud guards. (even not discriminatory)
 Violates DCC b/c Substantial burden on IC and could identify no benefit of the law. Trucks had to avoid passing IL or change mud
guards at IL borders. No benefit b/c no evidence that curved mud guards are safer.
2. Analysis if the law discriminates (against out-of-STrs)
a. Violates DCC IF the law burdens on IC, UNLESS it’s necessary to achieve an important gov’t purpose (= no reasonable
alternatives are available).
(i.e. Helping in-STrs/business at the expense of out-of-STrs/business = NEVER an important gov’t purpose)
e.g.) Maine Law: prohibited out-of-ST bait fish from coming into Maine, b/c may contain parasites that’ll harm in-ST fish.  NO Violation of
DCC b/c it’s necessary to achieve Maine’s very important gov’t purpose.
e.g., G/R. NJ law: prevented out-of-ST garbage from coming in to NJ.  Discriminatory; Violated DCC b/c law burdened IC.
e.g., G/R. Michigan law: in-ST wineries can ship wine to consumers through mail. Out-of-ST wineries cannot ship by mail to Michigan
consumers.  Discriminatory; Violated DCC b/c the law burdened IC. Discriminating an out-of-ST business in favor of in-ST business is
never an important gov’t purpose.
- EXCEPT 1: Congressional approval of discrimination
= If Congress approves the ST law, No violation of DCC, even if it’d otherwise clearly violate DCC.
- EXCEPT 2: ST/local Gov’t may prefer its own citizens when ST is acting as a market participant. (buying or selling
products, hiring labor, giving subsidies).
ex1) Exception 2. USC charged less tuition to in-ST student, while charging more to out-of-STrs.  No violation of DCC b/c the university is
 regarded as a Gov’t benefit program. ST can prefer its own residents that have long been paying taxes to CA to support the program.
ex2) No Exception 2. ST law allowing Private College to charge less tuition to in-STrs.  Violates DCC b/c Private College is NOT a Gov’t
benefit program.
ex3) Exception 2. ST (SD) owned a cement factory that charged less to in-ST purchase cement and more to out of ST purchasers.  No
violation of DCC b/c it was a legitimate Govt owned business that could favor its own citizens.
ex4) No Exception 2. If Private company favoring in-ST purchasers.  Violates DCC. Not under Exception 2.
b. Violates P&I clause of Art IV IF the law discriminates against out-of-ST individuals w/ regard to fundamental rights (civil
liberties) OR important economic activities (their ability to earn their livelihood), UNLESS substantial justification for
different treatment (= nonresidents cause/part of problem, and NO less restrictive means to solve the problem)
- No right of out-of-STr to access document under record Act: No regarding fundamental rights/important economic activities.
ex1) ST law: Commercial shrimp fishing license cheaper for in-STrs.  Violates P&I Clause of Art. IV b/c Discrimination affecting livelihood.
ex2) ST law: In order to practice law in that ST (NH) OR to sit for Bar exam, the lawyer must be its (NH) citizen.  Violates P&I Clause of
Art. IV b/c discriminated against her (attorney’s) livelihood.
ex3) ST law: Elk (recreational) hunting license cheaper for in-STrs.  NO Violation of P&I Clause b/c it is a hobby, having nothing to do with
earning one’s livelihood.
e.g., ST law: out-of-STr criticizing the ST’s governor is a crime  Unconstitutional b/c violates Freedom of Speech; No Violates of P&I Clause
Art IV, b/c necessary, even though Freedom of Speech is involved.

III. ST TAXATION OF INTERSTATE COMMERCE (rarely tested. Maybe just one question on MBE.)
- STs may regulate IC if FED law authorizes ST tax.
- In the absence of fed regulation, STs may do so as long as the regulation is non-discriminatory. But, the law can be void IF violation of DCC.
A. STs may NOT use their tax system to help in-ST businesses b/c it is discriminatory.
OH law: If a P purchased in-ST-produced-ethanol, they would receive a tax credit. If out-of-ST ethanol, no tax credit.
 Unconstitutional b/c ST tax system prefers in-ST businesses.
B. Nondiscriminatory ST tax affecting IC IF:
① There is a substantial nexus b/w the activity taxed & the taxing ST,
CA can’t tax a business wholly operating in NY b/c no substantial nexus. Little or no contact to CA.
② Fair apportionment to the ST (e.g. revenue mileage; depending on the amount of contacts w/ the ST)
Interstate Trucking Company operating in all 50 STs. CA could calculate the percentage of miles traveled in CA compared to the rest of the
county and tax that amount … so long as the ST (CA) only taxes that which is connected and it is fairly apportioned.
③ Fair relationship to services and benefits provided by the ST

Types of ST Taxes Definition Validity under Commerce Clause

Use Tax Tax on goods purchased outside
of the ST, but used within it.
Sales Tax Tax on the sale of goods
consummated within the ST
Ad Valorem Tax D Tax on the assessed value
(종가세) of some property
Privilege, License, Tax placed on some activity
Franchise, and (“doing business” tax)
Occupational Tax
Valid unless higher than sales tax
Generally valid, if there is a substantial nexus to the taxing ST and the tax is properly
apportioned (if more than one ST can tax the sale.)
- Commodities: Valid only if property is no longer in IC
- Instrumentalities: Valid if instrumentality has “Taxable situs” in ST and tax is fairly
apportioned. Full tax by domiciliary ST is valid unless taxpayer can prove a defined part
has acquired taxable situs elsewhere.
Valid if (i) substantial nexus to taxing ST, (ii) fairly apportioned, (iii) does not discriminate
against IC, and (iv) fairly relates to services provided by the ST

IV. FULL FAITH & CREDIT: CTs in one ST MUST give full faith & credit to judgments of CTs in another ST, so long as:
① CT that rendered the judgment had JX over the parties & the subject matter (SMJ and PJ);
② Judgment was on the merits; AND
③ Judgment was final.

05. STRUCTURE OF THE CONSTITUTION’S PROTECTION OF INDIVIDUAL LIBERTIES

(1) Is there Gov’tal Action?
(2) Application of The Bill of Rights?
(3) Levels of Scrutiny
I. IS THERE GOV’T ACTION?
A. The Constitution applies ONLY to Gov’t action
 NOT Private conduct (Gov’t cannot violate your Constitutional Rights. ex. Freedom of Speech. Private parties can.)
(e.g. Private university (Duke) v. ST university (UC Berkeley). If P criticized the US President in both schools, and was fired for doing so… 1 st
Amendment Protection applies to the ST University (Gov’t Program). P cannot be fired for the speech.)
 ST Action Doctrine: Constitution applies to Gov’t at all levels (=FED/ST/local/officers)
B. Congress can adopt FED statutes to require Private actors to meet the same Constitutional norms imposed on the Gov’t.
Race/gender Discrim: Gov’t entity discriminating can be sued based on Equal Protection.
Can’t sue Private entity for discriminating against race, using the Constitution, but Congress, by statute, Private entities can be sued.
1. Statute under 13th Amendment (slavery/involuntary servitude) CAN be used to prohibit private race discrimination.
 Private discrimination alone NEVER violates the 13th Amend itself.
 Private discrimination can be liable under the 13th Amendment IF Congress adopts FED Statute.
e.g., when a private landlord discriminates someone: No 13th Amendment. But, maybe FED statute.
But what if the congress wants to adopt anti-discrimination statute? Then, under 13 th Amend.
2. Civil Right Act of 1964 adopted by Congress under Commerce clause can be used to prohibit private actor’s discrimination.
- barring discrimination in public accommodations.
Ollie’s BBQ: Restaurant refused to serve African-American customers. Claim of Title II violation. D argued that it wasn’t a part of IC.
 Private conduct (private restaurant) violated the FED law (statute) b/c a lot of the supplies(meat) came across ST lines. Looking to all
racially discriminating restaurants taken cumulatively, there was a substantial economic effect.
3. Congress CAN use 14th Amendment Sec 5 (appropriate legislation) to regulate ST/local gov’t, but NOT private behavior.
US v. Morrison: Civil damages provision of the Violence against women act.  SC: Congress can’t regulate private conduct using this §5.
C. EXCEPTIONS: situations where Private actors MUST comply w/ the Constitution (w/o Congress’s statute)
 1. Public Function Exception: Constitution applies, if a private actor is performing a task traditionally and exclusively done by the
Gov’t
e.g. Yes ST Action= running a town, holding a gov’t election; NO ST Action= running a shopping mall; Holding a warehouseman’s lien sale
e.g., A Private Company ran a company town. Kicked out Jehovah’s witnesses from the town.  Violated Constitution. Constitution applied b/c
running a town is a task traditionally exclusively done by the Gov’t.
e.g., Privately owned utility company terminated a customer’s service.  Constitution didn’t apply, and Due Process was required. b/c Running a
utility is NOT such a task traditionally exclusively done by the Gov’t.
2. Entanglement Exception: Constitution applies, if the gov’t affirmatively orders/authorizes/encourages/facilitates unconstitutional
activity to private actors, especially race discrimination to its citizens. 차별하도록 유인을 하는
 Examples: Be familiar w/ each of the following examples
① Yes, ST action, when CTs enforce racially restrictive covenants
K among neighbors promising not to sell their property to blacks, Jews, etc.  SC: By enforcing such a covenant, CT would be
facilitating discrimination.
② Yes, when the Gov’t leases premises to a (private) restaurant that racially discriminates
③ Yes, when a ST provides free books to (private) schools that racially discriminate  If Private Schools want to continue
getting free books, the Private schools must discriminate. If not, ST cannot provide books.
④ Yes, when public officials administer a private discriminatory trust
⑤ No, when a Private school that is over 99% funded by the Gov’t fires a teacher b/c of her speech b/c Gov had done
nothing to encourage the school to fire the teachers. Funding is insufficient.
⑥ No, when a ST grants monopoly to a utility, heavily regulates an industry, OR grants a Corporation its charter and
exclusive name
⑦ No, when NCAA (Private entity) suspended a basketball coach for recruiting violations at a ST University.
⑧ Yes, when TNSA (Private entity) regulates interscholastic sports within a ST
* ST empowered TNSA to regulate.
* TNSA operates in ONLY one ST while NCAA operates over the entire country.
⑨ No, when a Private club w/ liquor license and essential services from the ST racially discriminates.
- A Private club (Moose Lodge) refused to serve African-American customers.  SC: Not sufficient entanglement. Constitution does
NOT apply. Private entity.

II. APPLICATION OF THE BILL OF RIGHTS

A. BOR applies directly ONLY to the Fed Gov’t
B. BOR is applied to ST/Local Gov’t through its incorporation into the DPC of the 14th Amendment of DPC.
- The following are NOT deemed to have incorporated. (Under ST/Local Gov’t’s control)
① 3rd Amendment prohibition against quartering troops in a person’s home
② 5th Amendment right to grand jury indictment in criminal cases
③ 7th Amendment right to jury trial in civil cases

III. LEVELS OF SCRUTINY

A. Rational Basis Test: Law will be upheld if rationally related to (conceivable) legitimate gov’t purpose
1. Deferential to the Gov’t
- CT doesn’t insist that it should be an actual purpose. IF there is some conceivable legitimate purpose, it is enough
2. Challenger has the burden of proof; In general, challenger loses.
- Law will be upheld UNLESS Challenger can show that the law has no conceivable legitimate purpose, OR the law is not
rationally related to it.
B. Intermediate Scrutiny: Law will be upheld if substantially related to (actual) important gov’t purpose
1. CT will see ONLY to whether the Actual purpose is important. Mere conceivable purpose is NOT enough.
2. Means must be a good way to achieve the goal (Need not be the best way or the least restrictive)
3. Gov’t has the burden of proof
- Gov’t MUST prove that the law is substantially related to achieving an important gov’t purpose
C. Strict Scrutiny: Law will be upheld if necessary to achieve a (actual) compelling/overriding gov’t purpose
1. CT will look ONLY to the Actual/crucial purpose.
2. Means MUST be the best way to achieve the objective
- NO less restrictive alternative can achieve the objective.
3. Gov’t usually loses
4. Gov’t has the burden of proof

Standard Classification Example Burden

1. Suspect Classification for EP - Race, National Origin, Alienage;
Strict Scrutiny 2. Fundamental Rights (Privacy - Right to Privacy, Interstate Travel, Voting, First Amendment Gov’t
Rights; DP) rights (freedom of religion, speech …)
Intermediate - Gender, Legitimacy (Illegitimate children)
1. Quasi-Suspect Classification For EP Gov’t
Scrutiny - Content-neutral time, manner, place (TMP) regulation
1. No Suspect
- Age, disability, economic rights (poverty, wealth),
2. No Quasi-Suspect Classification for
Rational Basis necessities of life, etc. Challenger
EP
- Anything not listed above
3. No Fundamental Right Involved

06. DUE PROCESS/Individual Rights

I. DEFINITIONS TIP= What relief is requested? Nature of the claim?
① Procedural Due Process= Gov’t must follow fair process when taking one’s life/liberty/property (e.g., notice & hearing)
② Substantive Due Process= Gov’t must have substantive justification before taking one’s life/liberty/property (e.g., economic
liberties/privacy)
 ③ Equal Protection= Gov’t’s different treatment among people must be adequately justified

II. Prohibition against retroactive legislation

A. Contracts Clause: No ST shall retroactively impair the obligations of (already) existing Ks; NOT applied to FED
1. ST/local interferences w/ private Ks must meet intermediate scrutiny (little different)
a. Does the law substantially impair a party’s rights under an existing K?
b. If so, is the law reasonably & narrowly tailored to promote an important & legitimate public interest?
2. ST/local interference w/ Gov’t Ks must meet strict scrutiny e.g., when ST Gov’t tries to interfere w/ its own K, by not paying K
damages
B. A Bill of Attainder (사권박탈)= a Fed/ST law that inflicts the punishment of a specific person w/o a trial  Unconstitutional.
e.g., if CA adopts a law= “Eric Kim shall be imprisoned”  Gov’t loses. Impermissible Bill of Attainder
C. The Ex Post Facto Law ONLY applies in criminal cases (K violation, a denial of professional license = CIVIL)
 Ex post facto law= a Fed/ST law that retroactively alter criminal law (i.e. criminally punishes conduct that was lawful when
done) OR increases punishment for a crime than punishment prescribed when committed OR reduces the evidence required to
convict= Invalid.  Unconstitutional (Art. 1, Sec. 10)

III. PROCEDURAL DUE PROCESS One may WAIVE Due Process rights, if made voluntarily and knowingly.
(1) Did Gov’t deprive a P of life/liberty/property? If Yes, Question 2. If No, No DP violation.
1. Definitions
a. Deprivation of liberty occurs if there is a loss of a significant freedom provided by Constitution/statute
 Harm to reputation alone is NOT a loss of liberty
e.g., Hall v. Davis: Louisville posted shoplifters’ pictures in stores. P was wrongly posted. Sued claiming he was deprived of his
Reputation.  No loss of liberty (reputation alone)
 Prisoners rarely have liberty interest. When a prisoner seeks Due Process, for loss of liberty, he usually loses.
 If Gov’t fees including CT filing fees deny an indigent’s fundamental right, the fee must be waived.
e.g., marriage license, divorce CT filing fee; filing fee for candidates for electoral office
b. Deprivation of property occurs if there is an entitlement, but the entitlement is NOT fulfilled
 Entitlement: reasonable expectation to continue receiving the benefit.
e.g., X works for Gov’t and is promised the job will be his for 1 year. 6 months later X is fired and sues requiring Due Process.
 Yes, Gov’t MUST provide Due Process b/c X had a reasonable expectation to have that job for 1 yr. Property was deprived.
e.g., Roth v. Bd of Regents: P worked on a yr to yr K w/ no promise of renewal. K expired and wasn’t renewed. P sued arguing Due Process.
 Gov’t won. Gov’t NEED NOT provide Due Process b/c no reasonable expectation to continued benefit. No property deprived.
 “rights, but not privileges distinction” is no longer used (Wrong answer). Now, use “entitlement”
2. Gov’t negligence is NOT sufficient to ST a claim that DP has been deprived.
a. There must be intentional OR at least reckless gov’t action for liability to exist
e.g., Prisoner sued Gov’t, claiming that Govt’s negligence of leaving a pillow on a prison step deprived him of Due Process liberty (body
safety)  DP not deprived, for mere negligence.
b. In emergency situations, gov’t is liable under DP ONLY if its conduct “shocks the conscience” 응급상황 고려해서 정부 배려
e.g., Highspeed police chase resulting in teen death. Family sued Gov’t saying officer’s recklessness caused the death.
 Gov’t won. In emergency circumstances, Govt can be held liable only when the Gov’t conduct shocks the conscience.
3. Gov’t’s failure to protect people from privately inflicted harms does NOT violate DP
e.g., 4-yr old boy was beaten by his father. Guardian sued gov’t that the failure to respond to child abuse claims over 2 years caused boy’s loss of
Due Process liberty.
 No deprivation of DP (liberty). Gov’t has no duty to protect people from privately inflicted harms. Gov’t has duty to protect, ONLY if the Govt
created the danger. (ex. P physically in Gov’t custody)
(2) What procedures are required? (when Gov’t deprives ppl of life/liberty/property)
 3 Part Balancing Test:
① Importance of the individual’s interest;
② Value of specific procedural safeguards to that interests; AND
③ Gov’t’s interests (usually efficiency – i.e., saving money)
 Examples: Before -, there must be -.
a. Driver’s License Suspension, prior evidentiary hearing *Exception: Breathalyzer test suspension statutes.
b. Welfare benefits, prior notice & prior evidentiary hearing.
c. Termination of parent’s custody rights, prior notice & prior evidentiary hearing.
d. Discipline of public education, prior notice & opportunity to respond.
e. Disability benefits, prior notice & opportunity to respond & subsequent evidentiary hearing.
f. Public Employment (tenured or termination only “for cause”), prior notice & opportunity to respond & subsequent
evidentiary hearing - At-Will Employees= NO DP Rights. can be fired right away
g. Commitment to Mental Institution
- For Adults, prior notice and prior evidentiary hearing (Except in emergency)
- For children, prior screening by “neutral fact-finder” (Parental consent alone insufficient)
h. Punitive damages require instructions to the jury, and judicial review to ensure reasonableness.
{NOTE: Grossly excessive punitive damages violate DP}
e.g., Gore sued BMW since there was a hole painted and not disclosed. Gore was awarded $4M punitive damages. AL SC reduced it to
$2M.  Even $2M punitive damages violated due process b/c grossly excessive
i. US citizen as an enemy combatant, meaningful opportunity to contest the factual basis for detention
e.g., US army, apprehended/captured in Afghanistan, brought back to South Carolina.  He (US citizen, enemy combatant) must be given
DP (= notice of the charges, representation by L, factual hearing, …).
j. Pre-judgment attachment OR gov’t seizure of assets, notice & hearing, unless exigent circumstances (=reason to believe that
the property may be removed if there was notice before hearing).
 If Exigent circumstance, gov’t can attach/seize assets first, immediately followed by notice & hearing.
{NOTE: Gov’t may seize property used in illegal activity despite an innocent owner}
e.g., Man drove his wife’s car and picked up a prostitute. Police caught them. ST seized the car. Wife claimed violation of DP (deprived her
property (car)).
 No DP violation. Gov’t may seize property used in illegal activity, even if she was an innocent owner.
IV. ECONOMIC LIBERTIES Deprivation of Property; laws affecting property
A. ONLY a rational basis test is used for laws affecting economic rights (low standard)
e.g., DP challenge of trades (trade law) or professions (an employment regulation; minimum wage law) or consumer protection law  rational Basis Review,
Gov’t wins.
- New property owner may challenge regulations that already existed at the time he acquired the property.
B. Takings Clause: 5th(FED) + 14th(ST)= Gov’t may take private property for public use IF it pays just compensation.
1. Is there a taking? (2 alternative takings) If not a Taking, a mere Regulation (No gov’t compensation required)
① Possessory taking: Gov’t confiscation OR physical occupation of property (can be small; temporary)
e.g., NY law: required Apartment owners to leave room for cable boxes. (space= just 1 ft)  Yes, taking b/c Gov’t confiscated the room
e.g., creating public access easement on private property; abolishing inheritance rights
② Regulatory taking:
 Taking IF gov’t regulation leaves NO economically viable use of the property
 NO taking= it merely decreases the property value; temporarily denies an owner’s economic use of property.
e.g., Company bought Grand Central station in NY and wanted to construct an additional structure onto it. Not allowed to construct
b/c historic landmark. Owners argued Gov’t should compensate for investment decrease.  No DP violation. Although the
regulation decreased value, Owners still had economically viable use of the building that was there.
e.g., NOT A TAKING= zoning ordinance that merely prohibit the most beneficial use of property; ordering destruction of diseased
trees; landmark ordinances.
e.g., Law prohibited development of property for 3 years for purpose of environmental study.
 Gov’t won. NOT a taking, if reasonable. No need to compensate the Owners for prohibiting use for 3 years.
e.g., P bought beachfront property for $1M. Subsequent to purchase, ST development law: prohibited any development to P’s
property.  P won b/c the Gov’t prohibited ANY economic use.
 Exaction (강제징수): Condition on building/development permits to make a landowner to (i) convey title to part/all of
the property to the government or (ii) grant the public access to the property (e.g., an easement across the property).
- It constitutes taking UNLESS (1) essential nexus btw condition and the proposed development; AND (2)
adverse impact of the development is roughly proportional to the burdens on the property owner.
2. Is the taking for public use? If not, must return the property.
 (Broadly defined) if Gov’t reasonably believes that the taking will benefit the public (e.g., more jobs, economic prosperity)
ST used eminent domain power to forcefully take homeowners’ title away in order to sell it to private developers for new development
(prosperity, economic interests). ST was going to pay the homeowners just compensation.  Gov’t won. No DP violation, Taking to benefit
the public.
3. Is just compensation paid?
 Gov’t MUST pay just compensation (i.e., reasonable market value of property)
 If took property worthless to the owner, no compensation needed
 The gain to the taker is irrelevant.

[FUNDAMENTAL RIGHTS] IF deny everybody’s rights, substantive DPC; IF deny some, not others, EQ.
V. Right to PRIVACY: Fundamental Rights Protected under Substantive Due Process.
(1) Right to marry: Gov’t MAY interfere w/ this right by meeting strict scrutiny
ex. ST law: can be married only if counselor certifies they are compatible  ST wins ONLY IF strict scrutiny.
ex. ST law: prohibiting same-sex marriage  Violates Fundamental Right to Marry. Does not pass Strict Scrutiny. Denies EP.
(2) Right to procreate: MAY interfere w/ this right (e.g., mandatory sterilization: unconstitutional) by meeting strict scrutiny
(3) Right to custody of children: MAY interfere w/ this right by meeting strict scrutiny (e.g., criminal abuse, criminal neglect)
 ST MAY presume that a married woman’s husband is the father of the child.
e.g., Married W has a child from affair. Then, she lives with the biological father w/ the child for 18 months. Then, moves back to live with
Husband w/ the child.  Husband is the Presumed Father. Biological Father gets no visitation rights.
(4) Right to decide for upbringing of children (care, custody, control, etc.): May interfere w/ parenting IF meets strict scrutiny
 SC: Parents have the fundamental right to send their children to parochial schools (religious schools)
 SC: Violation of DP IF CT orders grandparents’ visitation over parent’s objection (b/c fundamental right to control)
(5) Right to keep the family together including the extended family, but the individuals MUST be related to one another
e.g., ST law: limited the # of unrelated ppl that could live together. It defined Grandmother unrelated to Grandsons.  unconstitutional. Extended
fam= related
e.g., ST law: limited the # of unrelated ppl that could live together. College students lived together  Constitutional. b/c not related.
(6) Right to use/sell contraceptives. Strict scrutiny is required.
(7) Right to abortion: Undue burden test
1. Prior to viability: STs may regulate abortions as long as no undue burden on the ability to obtain abortions.
 NO undue burden (may regulate)
 24-hr waiting period before abortions
 Abortions be performed by licensed physicians; Physician’s informed consent
 Prohibition “partial birth abortion” (= terminating fetus’ life after extracting from mother’s body)
 Requiring parental (one or both) consent or notice IF a judicial bypass option (=J approves, without parental
consent, by finding it would be in the minor’s best interests OR that she is mature enough to decide for herself)
 YES undue burden (cannot regulate)
 Spousal consent
 Requiring physician who perform abortions have admitting privileges at a nearby hospital
2. After viability: STs may prohibit abortion, UNLESS abortion is necessary to protect the woman’s life/health.
*Viability= when the fetus can survive outside the womb.
3. Gov’t has NO duty to subsidize (fund) abortions OR provide facilities for abortions.
(8) Right to engage in private consensual homosexual activity Violation to Privacy. Don’t know which Level of Scrutiny.
(9) Right to refuse medical treatment
1. Competent adults have the right to refuse medical treatment, EVEN life-saving ones (e.g., food, water)
2. ST may require clear & convincing E that a person wanted to terminate the treatment before it’s ended
3. ST may prevent family members from terminating treatment for their family member (e.g., due to financial problem)
- Rationale: The right belongs to each individual (conflict of interest)
 (10) NO - right to physician-assisted (aiding) suicide; right to practice a trade or a profession
(11) Yes – right to travel, vote (below); freedom of speech, association, religion (1 st)

VI. 2ND AMENDMENT RIGHT TO BEAR ARMS: For security (in homes OK), Gov’t may regulate “who” may have guns, “where” (school) and
“what type” of guns.  NOT an absolute right (Level of scrutiny not clear)

VII. RIGHT TO TRAVEL [under 14th Amend: P or I Clause and EP Clause]

A. Laws that prevent people from entering/leaving a ST MUST meet strict scrutiny (interstate travel)
B. Durational residency requirements MUST meet strict scrutiny (b/c it chills right to travel - interstate travel)
e.g., For voting, 50 days is the maximum durational residency requirement e.g., 30-day residency to vote= Valid
e.g., ST law= 1-year residency to get welfare benefits/ST-subsidized Medical Care  Unconstitutional. Struck down. Didn’t pass strict scrutiny w/ EP
Clause.
e.g., ST law= 1-year residency to get divorced  Valid. 1-year residency to vote  Unconstitutional. (Maximum= 50 days)
C. Restrictions on foreign (international) travel  rational basis test (NO fundamental right to int’l travel)

VIII. RIGHT TO VOTE [15th Amendment applies to both Fed & ST Gov’t]
A. Laws that deny some citizens’ rights to vote MUST meet strict scrutiny.
- For regulations prevent electoral fraud, benefits must outweigh negative impact of the regulation.
1. Poll-taxes (인두세) requiring a fee to vote would prevent some citizens from voting.  Unconstitutional
2. Property ownership requirements for voting are almost unconstitutional, except for water rights
City law= In order to vote on school board elections, P must have property in the ST OR children in city schools.  unconstitutional
ST law= In order to vote on a parochial school (to keep its religious values/system), a P must show photo ID  constitutional b/c to protect the
integrity of the electoral system; the law is designed to prevent voter fraud, with balance shown (integrity outweighs).
B. One-person-one-vote MUST be met for all ST/Local elections.
- Districting based on total population is permissible. (need not be based on eligible voters)
C. At-large elections are constitutional, UNLESS a proof of a discriminatory purpose
City had three members of city council. Instead of dividing the city in three districts (to have one voter vote for one representative), it had an at-large
election system (Every P cast three votes for city council). City Population= 2/3 Whites and 1/3 Black. Throughout history, no AA has ever been elected
to the city council.  At-large system is constitutional unless there is proof that its underlying purpose was to disadvantage minority voters.
D. Racial Gerrymandering: Use of race in drawing election districts MUST meet strict scrutiny. To achieve diversity= usually unconstitutional
E. Counting uncounted votes w/o (pre-existing) standards in a presidential election violates EP.

IX. NO FUNDAMENTAL RIGHT TO EDUCATION (under EP)

e.g., ST law= funding public schools through local property taxes (poor areas: high tax rate, little spent on education) (wealthy areas: low tax rate, more
spent on education)  Constitutional. No violation. Constitution provides no right to education. Rational Basis, Gov’t always wins.
*Irrebuttable presumption can be Invalid: Answer choice that says “invalid b/c it is an irrebuttable presumption” is probably wrong. Consider whether it concerns a
fundamental right OR quasi-suspect class, and judge it accordingly.

07. EQUAL PROTECTION CLAUSE (EPC of 14th Amendment) On its face; OR neutral, but discriminatory intent + impact
I. APPROACH to EP questions:
① What is the classification? (How is the Gov’t drawing distinction among people?)
② What level of scrutiny should be applied? Intermediate or strict scrutiny
③ Does the law (Gov’t Action) meet the level of scrutiny?

II. CONSTITUTIONAL PROVISIONS concerning EP TIP= Analysis is the same, whether ST or FED Gov’t.
A. EP of the 14th Amend applies ONLY to ST/Local Gov’t’s
B. EP applies to the Fed Gov’t under 5th Amend DPC

III. RACE & NATIONAL ORIGIN CLASSIFICATION  STRICT SCRUTINY

A. A racial or national origin classification can be proven when:
1. Classification exists on the face of the law; OR
e.g., ST law said blacks and whites couldn’t attend the same public schools; Only white men can serve the jury
2. If the law is facially neutral, the law has BOTH discriminatory impact AND discriminatory intent
e.g., Washington DC Ordinance= To be a police officer, must take test that statistically, blacks failed more.
 NO strict scrutiny b/c discriminatory impact but no discriminatory intent. Must show both.
B. Strict scrutiny is applied, whether it harms/helps the racial minorities.
C. Primary/secondary public school (below College) may NOT use race for diversity b/c it is NOT compelling interest, thus, failed strict
scrutiny.
e.g., ST High School used race as a factor in assigning students to schools (high schools, elementary schools), in order to achieve diversity.
 Unconstitutional b/c failed under Strict Scrutiny.
D. Post-secondary educational institutions may use race as one of factors in admissions to help minorities, but must prove that no
race-neutral alternative could achieve diverse student body in order to meet strict scrutiny.
- SC: Colleges MAY NOT add points to admissions scores based on race.
E. Numerical set-asides (quota system) are allowed only as a necessary remedy for past discrimination, ONLY IF clear proof of past
discrimination.
e.g., ST set-aside 30% of public works money from minority-owned businesses.  unconstitutional remedy b/c no clear proof of past discrimination.
e.g., ST police engaged in intentional racial discrimination in hiring and promotion (clear proof). As a remedy, ST CT said that every time a white was
hired or promoted, a black had to have the same.  Constitutional Remedy b/c clear proof of past discrimination.

IV. GENDER CLASSIFICATIONS  INTERMEDIATE SCRUTINY (= there is an “exceedingly persuasive justification”)

A. A gender classification can be proven when: *TIP= Most Gender Classifications are struck down
1. Classification exists on the face of the law; OR
OK: Women could buy beer at 18, men at 21.  Unconstitutional. Failed Intermediate Scrutiny
VA: Only men could attend the military institute.  Unconstitutional b/c no exceedingly persuasive justification
 2. If the law is facially neutral, must show BOTH discriminatory impact & discriminatory intent.
e.g., Discriminatory use of peremptory challenges based on gender violates equal protection.
B. Gender classifications designed to remedy past discrimination, and differences in opportunity will be allowed: Constitutional.
e.g., Social security administration used different benefits formula for women. 차별 근거를 바탕으로 보상
 Constitutional. b/c different formula was a remedy to compensate for past discrimination in unfair wages.
e.g., Navy law: If man not promoted w/in 6 years, had to leave the navy. To Women, had gave 10 years.
 Constitutional b/c at that time, men served in combat and women couldn’t = Men had more opportunity for promotion.
C. Gender classifications benefitting women based on role stereotypes will NOT be allowed: Unconstitutional
e.g., Women could be awarded alimony and men never.  Unconstitutional b/c laws based on stereotypes that women are economically
dependent on men, and men are not.
e.g., W automatically gets survivor benefits when H dies. But, when W dies, H can get survivor benefits only if he can prove he depends on her
income.  Unconstitutional.
- Struck down: gender-based death benefits/ alimony/ peremptory strikes/ different drinking age; ST-supported all-male or all-female schools
- Valid: Discriminatory statutory rape laws; male-only registration (army); Requiring American fathers (but not mothers) to prove their parentage
of nonmarital children born abroad for the children to obtain U.S. citizenship.

V. ALIENAGE CLASSIFICATION [Discrimination against non-US citizens]  Generally, STRICT SCRUTINY

e.g., ST law= Only US citizens could receive welfare benefits from the ST.  Unconstitutional under Strict Scrutiny
e.g., ST law= Only US citizens could serve civil service jobs.  Unconstitutional under Strict Scrutiny
e.g., ST law= Only US citizens could be admitted to BAR to practice law in US.  Unconstitutional under Strict Scrutiny
e.g., ST law= Only US citizens could own restaurants. Selling/giving/contracting w/ Aliens giving them restaurant is illegal.  Unconstitutional under
Strict Scrutiny
 Exceptions
① Alienage classifications that concern BOTH self-gov’t and democratic process  Rational Basis Test.
- Gov’t can discriminate against non-citizens for voting, serving on a jury, being a police officer/teacher/probation officer
e.g., ST law: To be a teacher/ a police officer, one MUST be a US citizen.  Constitutional. Only Rational Basis Review used. Teachers / Police
officers are integral to self-gov’t b/c they instill democratic values in the youth / enforce the laws that are the product of the democratic process.
e.g., ST law: To be a Notary Public of the ST, one MUST be a US citizen.  Unconstitutional, under Strict Scrutiny b/c Notary publics have
nothing to do w/ self-gov’t and the democratic process b/c they only stamp seals on things.
② Congressional Discrimination against Aliens  Rational Basis Test
- Congress has the plenary power to regulate immigration.
③ Discrimination against undocumented alien’s children  Intermediate Scrutiny
e.g., ST Law= US citizens’ or Documented immigrants’ children gets free public education. Undocumented immigrant’s children must pay. 
Unconstitutional.

VI. LEGITIMACY CLASSIFICATION [discrimination against Non-marital children]  INTERMEDIATE SCRUTINY

 Laws that provide benefits to ALL Marital children, but deny the benefit to ALL Non-marital children  Unconstitutional
e.g., ST law= Only Marital children can recover from their fathers’ estate.
 Laws that provide benefits to SOME non-Marital children, but deny to OTHER Non-marital children
e.g., ST law= Non-marital child can inherit only if paternity was established during his lifetime.  Constitutional under Intermediate Scrutiny b/c
important interest to prevent fraud.

VII. OTHER TYPES OF DISCRIMINATION  RATIONAL BASIS for all other types of discrimination under the Constitution
A. Age discrimination
 Gov’t retirement law (e.g., ST law= must retire at 65)  Constitutional; Rational Basis.
B. Disability discrimination
 Zoning to keep mental home out of the city  Unconstitutional; Rational Basis Review
C. Wealth discrimination
 Discrimination against the poor  Rational Basis Review
D. Economic regulation (can be challenged under 14th EPC OR DPC)
 Gov’t economic regulation  Rational Basis Review.
e.g., ST law= In order to be a push cart vendor (포장마차) in the French Quarter (유명한 상가), they MUST have already worked there for 8 years.
Ppl who worked for less than 8 yrs challenged the law.  Constitutional. Rational Basis Review.
E. Sexual Orientation discrimination
 Discrimination against gays and lesbians  Rational Basis Review
e.g., only one case: A initiative discriminate gay/lesbians is unconstitutional.

08. FIRST AMENDMENT (1st to FD; 14th to STs)

S&T. When a P intended to deliver a message and the audience was likely to understand it  protected by 1st
I. FREE SPEECH METHODOLOGY G/R= Free Speech Clause restricts Gov’t’s regulation of Private speech.
A. Vagueness & Overbreadth
1. Vagueness: Law is unconstitutionally vague if a reasonable person CANNOT tell what speech is allowed or prohibited.
- Any law regulating speech MUST be clear. If vague, violates DP.
e.g., City Ordinance: prohibiting the sale of books/magazines tending to corrupt youth’s morals.
 Unconstitutional. Vague. Struck down. No reasonable book seller could tell what was allowed.
2. Overbreadth: Law is unconstitutionally overbroad if it regulates a substantial amount of speech protected by constitution.
e.g., City Ordinance: prohibited all live entertainments. (Forced a new dancing club to close down.)  unconstitutional.
3. Laws with fighting words (intent to intimidate) directed at another to cause violence are always vague and overbroad=
Unconstitutional.
B. Content-Based v. Content-Neutral Restrictions
1. Content-based restrictions on speech generally must meet strict scrutiny:
① Subject matter restriction: application of the law depends on the topic of the speech
e.g., Prohibiting (or time limit) for certain topics; no picketing in neighborhoods unless a labor protest only; no picketing that tends
to bring foreign gov’t int public disrepute  Unconstitutional b/c content-based, subject matter restriction
② Viewpoint restriction: application of the law depends on the ideology of the speech
e.g., City allows pro-war demonstrations in city park, but not anti-war. (on one topic, but only limited views is permissible) 
Viewpoint discrimination and unconstitutional.
 2. Content-neutral laws burdening speech generally need only meet intermediate scrutiny
e.g., Prohibiting all parades, demonstrations, and protests in a city park  must meet intermediate scrutiny
C. Prior Restraints: Judicial order/administrative system that stops speech before it occurs
e.g., New York times/other newspaper covering Vietnam War.  Unconstitutional. Not passing strict scrutiny.
1. CT Orders suppressing speech is held IF special harm would result. Other types: strict scrutiny
a. Procedurally proper CT Orders must be complied w/ until vacated/overturned
- A person who violates a CT Order is barred from challenging it later
b. A Gag Order (함구령) (barring public disclosure of info related to a case) to the press to prevent prejudicial publicity=
Unconstitutional
e.g., Valid Prior Restraints= prohibiting publishing of troop movements in times of war (national security); when parties contractually agreed to
restraint (Enforcing contractual prepublication review of CIA agent’s writings).
e.g., Invalid Prior Restraints= Prohibiting publication of The Pentagon Papers b/c it might have an effect on the Vietnam War; Prohibiting grand
jury witness from disclosing testimony.
2. Gov’t can require a License/Permit for speech only if it has an important reason; AND clear criteria leaving almost no discretion
to the licensing authority
 Licensing schemes must contain procedural safeguards, such as prompt determination of requests for licenses, and judicial
review of license denials.
D. Symbolic Speech: Gov’t can regulate symbolic conducts if gov’t has an important interest; the interest is unrelated to suppression of
the speech; AND the incidental burden on speech is no greater than necessary to achieve Gov’t’s purpose.
e.g., Somebody (D) beats up a Bar examiner. Prosecuted for Assault and Battery. D defends, saying ‘I was just expressing my displeasure w/ the
Bar exam questions. I have 1st Amendment protection’  D’s defense loses. Gov’t CAN regulate. Gov’t’s important interest in stopping
Assault/Battery, 2. Gov’t’s interest is unrelated to the suppression of the message, and 3. such act is no greater than necessary to achieve Gov’t’s
purpose.
① Flag burning – Constitutionally protected speech (political opinion)
② Draft card (징병카드) burning – NOT constitutionally protected speech
③ Nude-dancing – NOT protected
④ Burning a cross – Protected unless done w/ the intent to threaten
e.g., group of ppl just burning a cross: protected; Man burning a cross on A’s lawn (intent to threat)= Not protected.
⑤ Contribution limits (e.g., how much supporter can contribute) in election campaigns is constitutional.
⑥ Expenditure limits in election campaigns is unconstitutional. (e.g., limit on how much a candidate can use)
E. Anonymous Speech: Protected. People have 1st Amend right to speak w/o disclosing identity.
e.g., A woman was convicted of circulating leaflets without disclosing identity. Overturned the conviction.
F. Speech by Gov’t: Free Speech clause restricts government regulation of private speech. In general, government is free to voice its
opinions and to fund private speech that furthers its views. e.g., License plates, ST School curricular guide = Gov’t speech
- Gov’t Speech & Funding of Speech will generally be upheld IF  Rational Basis Review.

II. WHAT SPEECH IS UNPROTECTED / LESS PROTECTED BY 1ST AMENDMENT?

A. Incitement (선동) of Illegal Activity (e.g., A man says, “let’s beat up Professor Chemerinsky! His joke is terrible.”)
- Gov’t may punish speech IF there is a substantial likelihood of imminent illegal activity; AND the speech is directed to causing
imminent illegal activity.
B. Obscenity & Sexually-Oriented Speech 음란한 말
1. Obscenity: Speech is obscene if it describes sexual conduct that, taken as a whole:
① appeals to the prurient interest in sex;
 Prurient interest= a shameful or morbid (병적인) interest in sex (not healthy interest in sex)
② is patently offensive under the law prohibiting obscenity, AND
(STs must have a specific law that states what depictions are patently offensive)
③ lacks serious artistic/literary/political/scientific value under national (NOT local) reasonable person standard.
2. Gov’t may use zoning ordinances to regulate the location of adult bookstores & movie theaters.
Limited number on any city block.  Constitutional b/c city’s interest in preserving the character of the neighborhoods.
All stores and theaters be in one corner occupying less than 5% of the city.  Constitutional b/c city’s interest in the neighborhoods’ character.
3. Child pornography may be completely banned, EVEN IF NOT obscene
 To be child pornography, children MUST be used in production of material (NOT computer image of child)
4. Gov’t CANNOT punish private possession of obscene materials
 BUT Gov’t CAN punish private possession of child pornography
5. Gov’t may seize ALL assets of businesses convicted of violating obscenity laws, EVEN IF only FEW books violated the law.
Alexander v. US: P owned adult bookstores and theaters, and convicted of selling 7 obscene items and sent to prison for 6 years and charged
100K. Pursuant to RICO, Feds seized ALL inventory of the bookstores and burned/destroyed books/videos/magazines, destroying $9M.  SC:
Gov’t won.
6. Profane & indecent speech (욕) is generally protected by 1st Amendment.
Cohen v. CA: Boy in CTroom with jacket that said “Fuck the Draft” and was convicted of disturbing the peace.
 SC: Gov’t cannot prohibit. Govt cannot cleanse the English language to appease the squeamish.
Reno v. ACLU: Comm. Decency Act made it a crime to transmit indecent messages over the internet to minor.  Struck down.
a. EXCEPTION 1: over the broadcast media (e.g., radio, TV), but less regulation on cable/satellite/internet that people choose to
bring cable into their homes.
 SC: Broadcast media is uniquely accessible to the home, available to children.
b. EXCEPT 2: in schools b/c schools are responsible for teaching civilized discourse to the youths.
e.g., speaking indecent language (sexual innuendos / “Drugs for Jesus” ) in school. School (ST gov’t) can punish to prohibit
profane/drugs/indecent speech
C. Commercial Speech
1. Advertising for illegal activity, false/deceptive ads are NOT protected by 1 st Amendment.
2. True commercial speech with inherent risk of deception can be prohibited.
a. Gov’t may prevent professionals from advertising or practicing under a Trade name.
b. Gov’t may prohibit attorneys, from in-person solicitation of clients for profit.
 Free service, solicitation by mail are fine due to less likelihood of deception or pressure.
c. Gov’t may NOT prohibit accountants from in-person solicitation of clients for profit.
  Attorney – trained in advocacy
 Accountant – trained in accuracy (NO reason to distrust)
3. Other commercial speech (NOT illegal/fraud/deception) can be regulated IF intermediate scrutiny is met.
FL Law: Prohibited attorney’s solicitation of accident Vs or their estates for 30 days after the accident: Constitutional under Intermediate Scrutiny.
4. Gov’t regulation of commercial speech MUST be narrowly tailored, but need NOT be the least restrictive alternative.
NY law: prohibited paper solicitation in dormitories; unsolicited mail to sell contraceptives.  Upheld. Constitutional, under Intermediate Scrutiny.
D. Defamation [Libel/Slander]
1. If P is a public official/figure, P can recover for defamation by proving by clear & convincing E the falsity of the statement,
AND actual malice.  compensatory/presumed/punitive damages
 Actual Malice: knows falsity or recklessly disregards for the truth
 Public figure: celebrities; ppl who have access to media
2. If P is a private figure & the matter is of public concern, P may recover compensatory damages for actual injury by proving
falsity of the statement AND negligence by D.
 BUT P may recover presumed/punitive damages ONLY by showing actual malice.
3. If P is a private figure & the matter is NOT of public concern, P can recover compensatory damages for actual injury; also,
presumed/punitive damages EVEN w/o showing actual malice.
- Liability for IIED for defamatory speech must meet Defamation standards. NOT under 1 st Amendment.
e.g., Magazine depicting P (public figure) having sex w/ his mother. P sued for IIED  Defamatory Speech standard used.
E. Privacy
1. Gov’t may NOT create liability for truthful reporting of info that was lawfully obtained from the Gov’t records.
e.g., ST law: prohibits disclosing rape victim’s identity w/o her consent. D1 (broadcaster) obtained her name from CT Records (publicly available)
and broadcasted her name. D2 (news reporter) got her name from Police report (lawfully available) and disclosed her name. P sued.  Ds won.
2. Media may NOT be liable IF the Media broadcasts a tape of an illegally recorded conversation; did NOT participate in the
illegality; AND it involves a matter of public concern.
3. Gov’t may limit its own dissemination of information to protect privacy.
 Exception: Gov’t cannot regulate criminal trials & pre-trial proceedings b/c open to public/press.
F. Speech by Gov’t Employees
① Official duties  gov’t can punish employee.
② Private speech:
- Matter of public concern  gov’t can punish if gov’t employer’s interest in providing efficient public service outweighs the
employee’s interest as a citizen in commenting on a matter of public concern.
- Not matter of public concern  employer has broad discretion to punish employee’s speech.
G. Other Gov’t Restrictions
 Any other Gov’t restrictions based on the content of speech MUST meet STRICT SCRUTINY .
e.g., violent speech. ST law: prohibited renting violent video games to minors w/o parental consent.  Unconstitutional, didn’t pass Strict
Scrutiny

III. WHAT PLACES ARE AVAILABLE FOR SPEECH?

A. Public Forums: Gov’t properties that Gov’t is constitutionally required to make available for speech (sidewalks, parks)
1. Regulations must be (1) content (subject matter, and viewpoint)-neutral, (TMP regulation (time, manner, and place)) that is (2)
narrowly tailed to serve an important Gov’t interests, AND (3) leaves open adequate alternative places for communication.
- Even if Valid TMP Regulation, it may be invalid if overbroad, vague, or gives unfettered discretion.
e.g., ST law: No sound trucks (w/ amplification) can be on streets residential areas at nighttime  Constitutional. Important Gov’t interest for
tranquility in residential areas at nighttime; This is a time/manner/place restriction that leaves adequate alternative places for communication
(during the day OR somewhere other than residential areas)
2. Gov’t regulation of public forums need NOT use the least restrictive means for the gov’t interest.
NY Ordinance: In order to have a concert in the city park, must use city sound engineers and equipment.  Gov’t wins. Constitutional, even
though NOT the least restrictive means. Important Gov’t interest: noise reduction. Less Restrictive Alternative means: Promoters said the City can
achieve noise reduction by setting a min decibel level.
3. City officials has NO discretion to set permit fees for public demonstration (inherent risk of content-based regulation)
ST law: To have a parade or demonstration, MUST get a permit from the mayor and pay up to $1000.  Unconstitutional b/c this would give
Gov’t a discretion to set a high fee or low fee, depending on whether they like the content or not.
B. Designated Public Forums: Gov’t properties that Gov’t could close for speech, but chooses to open for speech
(e.g., school facilities in evenings/on weekends, Gov’t chooses to open for speech)
- If Gov’t chooses to open, same rules as for public forums.
C. Limited Public Forums: Gov’t properties that are limited to certain groups or subjects. = Other than streets, sidewalks, parks, and
designated public forums
- Gov’t can regulate speech in limited public forums, so long as the regulation is reasonable and viewpoint neutral.
e.g., ST law: allows commercial ads on City Buses, but not political ads.  Constitutional b/c reasonable and Viewpoint neutral. Only open to
Some messages (topics) OR groups
D. Non-Public Forums: Gov’t properties that Gov’t constitutionally can close for speech so long as the regulation is reasonable &
viewpoint neutral.
e.g., military bases, schools while classes are in session, government workplaces, airport
- On Airports (Non-Public Forum), CANNOT prohibit distribution of literature, but CAN prohibit solicitation of funds.
E. There is NO 1st Amendment right of access to privately-owned property for speech purposes.

IV. FREEDOM OF ASSOCIATION: Fundamental Right protected under the 1 st Amendment

A. Laws that prohibit/punish/deny benefits of group membership MUST meet STRICT SCRUTINY
 To do so (above) membership in a group, it MUST be proven that the person:
Mere refusal to disclose membership is not enough, without showing below
① actively affiliated w/ the group,
② knew of its illegal activities, AND
③ had the specific intent to further those illegal activities
B. Laws that require disclosure of group membership, if such disclosure would chill association, MUST meet STRICT SCRUTINY
 C. Laws that prohibit a group from discriminating are constitutional UNLESS intimate association (e.g. small dinner party) OR express
activity. (e.g. Boy scouts; Nazis/clans excluding Jews)
e.g., ST law: Prohibited group membership based on gender (sex). Jaycees (all-men membership) argued freedom of association should allow them to
discriminate (to choose its members).  Membership cannot discriminate based on gender.
e.g., Boy scouts excluded a gay boy (discrimination)  Boy Scout won. Gov’t cannot prohibit it from discriminating. Boy Scout is an Express Activity of
group w/ express message that they’re anti-gay.

V. FREEDOM OF RELIGION
A. Free Exercise Clause – protection of free exercise of religion under 1th Amendment
1. Free Exercise Clause CANNOT be used to challenge a neutral law of general applicability
Employment Division v. Smith (native American Peyote): ST law: prohibited consumption of peyote. Native Americans sued based on their religion
b/c they ate peyote during their religious rituals.  Constitutional b/c Law was neutral (not motivated w/ the intent to interfere with religion) and
generally applicable (applied to all everyone)
- If law is not neutral (w/ intent to interfere w/ religion) OR targets only religious ppl  STRICT SCRUTINY
2. Gov’t CANNOT deny benefits to individuals who quit their jobs for religious reasons
ST law: No unemployment benefits, if voluntarily left work. Women quit her job b/c of religious reasons, to attend Sabbath on Saturday.  Gov’t
lost b/c gov’t impermissibly forced women to choose b/w religion and income.
3. Religious institution (e.g., school) CANNOT be liable for the choices it makes as to who will be its ministers.
4. Gov’t denial of benefits to a religious school that are provided to a secular private school  STRICT SCRUTINY
e.g., Gov’t providing 놀이터 고무바닥 to all secular private schools, but NOT to parochial schools.  Unconstitutional.
B. Establishment Clause (EC) compels Gov’t to pursue neutrality toward religion. (O) legislative’s invites clergies, begins session with pray
1. Lemon Test [SEX] - Violation of EC, if government act does not meet any:
① There MUST be a secular purpose for the law  S - Secular purpose:
- If Gov’t purpose is to advance religion, they violate the EC
e.g., KY law w/ 10 commandments in elementary schools.  SC: unconstitutional.
② The effect MUST be neither to advance/inhibit religion OR E – Effect
- If Gov’t symbolically endorses a particular religion  violate EC
Van Orden v. Perry: 10 Commandments monument b/w Texas capital and Texas Supreme CT.  No violation of EC by displaying
10 Comm. NOT an endorsement of a religion b/c there were 20 other symbols.
③ There MUST NOT be excessive entanglement w/ religion X – no eXcessive entanglement
e.g., Gov’t CANNOT directly pay teachers’ salaries at parochial schools.
2. Gov’t CANNOT discriminate religious speech OR religions, unless STRICT SCRUTINY is met. (content-based)
3. Gov’t CANNOT sponsor religious activity in Public schools. Unconstitutional.
a. Voluntary school prayer  NOT allowed
b. Clergy delivered prayer at public school graduation  NOT allowed
c. Student delivered prayer at high school football game  NOT allowed
d. Moment of “silent prayer”  NOT allowed
*BUT, religious clubs/groups must have the same access to school facilitates (school buildings) as non-religious groups. School
accommodation of religion is valid.
4. Gov’t may give assistance (property; NOT $) to parochial schools, so long as it’s NOT actually used for religious instruction.
5. Gov’t may provide vouchers (=bonds) to parents, even if vouchers are later used/ended up being used in Parochial Schools b/c
it is the parents’ choice, not the gov’t’s.