• Whether a case is "justiciable" depends or whether there is a "case or controversy".
• "Case or Controversy" Requirements:
  • Standing
  • Ripeness
  • Mootness
  • Political Question Doctrine
• Other Limitations on Fed Ct Jxn include: abstention; advisory opinions; 11th Amendment; adequate and independent state grounds

• Is plaintiff proper party to bring the claim?
• ∏ must allege and prove the following:
  • Injury-in-fact: ∏ injured (or imminently will be
    • Only injuries that ∏ personally suffered
    • If injunctive/declaratory relief is sought:
      --> Must show likelihood of future harm
  • Causation: Δ caused the injury
  • Redressability: capable of being remedied
• EXAM TIP: A successful ruling on the issue of standing only means that ∏ has an opportunity to try the case; it doesn't mean that he wins it.

• 3P Standing: generally, no 3P standing.
  • 3P Standing Exceptions (Discretionary):
    
    • If there is a "sufficiently close relationship" between 3P and ∏ (e.g. MD & patient); or
    • If 3P is unable (or likely unable) to assert
• Taxpayer Standing: only if challenging gov't expenditures as violating the Establishment Clause
  • No standing if challenging gov't use of property, tax credits, or general executive revenues
• Associational Standing: can sue for members if:
  
  • Members would have standing to sue;
  • Interests are germane to organization's purpose; and
  • Neither claim nor relief requires participation of members
• Standing to Enforce Gov't §s: may have standing to enforce fed §s if within "zone of interests" that Congress meant to protect
• No Generalized Grievances: can't sue solely as "citizen" or "taxpayer" interested in having gov't follow the law

• Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation.
• Basically, the court will weigh two factors:
  • The hardship suffered without pre-enforcement review (must suffer harm or imminent harm)
  • The fitness of the issues and the record for judicial review
• EXAM TIP: if question contains a request for declaratory judgment, check for "case-and-controversy" requirements (especially ripeness).

• If events after the filing of a lawsuit end the ∏'s injury, the case must be dismissed as moot.
• Exceptions:
  • Wrong capable of repetition but evading review
    • E.g. Roe v. Wade
  • Voluntary cessation
    • When Δ voluntarily halts the offending conduct, but is free to legally resume it at any time
  • Class action suits
    • Only one member of the class still has to have an ongoing injury

• Federal courts will not adjudicate:
  • The "Republican Form of Government Clause" (also called the "Guarantee Clause")
  • Challenges to the President's conduct of foreign policy;
  • Challenges to the impeachment and removal process;
  • Challenges to partisan gerrymandering
• Nonpolitical questions (these are justiciable):
  • Arbitrary exclusion of a congressional delegate
  • Production of presidential papers and communications

• Most cases come to SCOTUS by writ of certiorari:
  • All cases from (highest) state courts
  • All cases from U.S. Courts of Appeals
  • Decisions of 3-judge fed district cts
• Can only hear cases from the above three once there has been a final judgment
• SCOTUS has OG and exclusive jxn for suits between state governments
• If reviewing a state court decision, there must not be an independent and adequate state law ground of decision.
  • If state decision rests on state and fed grounds, and SCOTUS's reversal on fed ground won't change the result, then SCOTUS can't hear it.

• Fed & State Cts can't hear suits vs. state gov'ts
• Principle of Sovereign Immunity:
  • 11th Am: bars suits against states in fed ct
  • Sovereign Immunity: bars suits against states in state courts or federal agencies
• Exceptions: waiver; bankruptcy proceedings; suits brought pursuant to federal laws adopted (only) under §5 of 14th Am; fed gov't can sue state gov't
• Suits against state officers are allowed
  • Money damages & injunctive relief OK
  • Can't sue if state treasury will be paying retroactive damages
• Abstention:fed cts can't enjoin pending state ct proceedings

• Express or implied Congressional power
  
  • Congress has power of legislating for MILD:
    • Military; Indian reservations; Lands or territories (federal); D.C.
  • There is no general, federal police power
• Necessary and Proper Clause: Congress may choose any means not prohibited by the C to carry out its authority
• Taxing/Spending Power: may tax/spend for general welfare
• Commerce Clause: Congress may regulate:
  
  • Channels of interstate commerce
  • Instrumentalities of interstate commerce and persons or things in interstate commerce
  • Economic activities that, in the aggregate, have a substantial effect on interstate commerce
    • If non-economic activity, substantial effect can't be based on cumulative impact
  • Congress probably can't regulate inactivity

• 10th Am: all powers not granted to US, nor prohibited to the states, are reserved to states
  • Congress can't compel state regulatory or legislative action; can prohibit harmful commercial activity by state gov't
  • Congress can condition grants if condition: expressly stated and relates to purpose of the spending program and not unduly coercive
• Congress's power under §5 of the 14th Am:
  • Congress can't create/expand rights
  • Congress may act only to prevent or remedy violations recognized by the courts
    • Such laws must be "proportionate" and "congruent" to remedying C violations

• No limit on Congress' ability to delegate leg. power
• Legislative and line-item veto = unconstitutional
  
  • Legis. veto: where Congress tries to overturn an exec. action w/o bicameralism &/or presentment
    • Bicam: passage by both House & Senate
    • Presentment: give bill to Prez to sign or veto
  • Line-item veto: where Prez tries to veto in part
• Congress may not delegate executive power to itself or its officers (i.e., to enforce/implement law)
• EXAM TIP: Never pick answer that says "Federal law is unC as an excess of delegation of legislative power"!

• Treaties: agreement b/w US & foreign country; Prez negotiates; effective when ratified by Senate
  • If conflicts w/ fed § -> last in time wins
• Executive Agreements: agreement b/w US & foreign country that is effective when signed by Prez and head of foreign nation (no Senate approval req'd)
  • Can be used for any purpose (anything that can be done by treaty can be done by Exec/Ag)
  • If conflicts w/ fed § -> fed § wins
• Both treaties and executive agreements prevail over conflicting state laws, but never over C !!!
• UnC for Congress by § to designate foreign capitols
• Prez has broad powers as C-in-Chief to use US troops in foreign countries
  • EXAM TIP: Prez usually wins, even if no Congressional declaration or use is outrageous!

Domestic Affairs: Appointment & Removal Powers

• Appointment Power
  • Prez appoints ambass, fed judges, & US officers
  • Congress may vest appt of interior officers (i.e., US attys and those under Sec. of State) in Prez or heads of depts or lower fed cts
  • Congress can't give self/its officers appt power
  • Prez can't make recess appts during intrasession recesses that are less than 10 days
• Removal Power
  • Prez can fire any exec. office (unless lim by §)
    
  • Congress can limit removal only if office where independence from Prez is desirable
    • Can't prohibit removal though; can only limit to where there is good cause

• Impeachment (and Removal)
  
  • Who: Prez, VP, fed judges and US officers
  • Why: treason, bribery, high crimes & misdems
    • No definition -> "high crimes & misdems"
  • Procedurally: need both impeach & removal
    • Impeachment: maj. vote by House (>1/2)
    • Conviction (removal): 2/3 vote by Senate
• Immunity
  • Prez has absolute immunity to civil suits for $ damages for any actions while in office
    
    • No immunity --> actions before taking office

• Executive Privilege
  • Prez has exe/priv for presidential papers and convos, but privilege must yield to other important gov't interests
• Pardons
  • Prez has power to pardon accused/convicted of federal crimes (not state crimes!)
    • Exception: person who has been impeached by House can never be pardoned for the offenses that led to the impeachment
    • Only pardons criminal liability--not civil!

• Express: fed § explicitly says fed law is exclusive
• Implied: Fed law preempts if:
  • Fed and state laws are mutually exclusive
  • State law impedes achievement of fed objective
  • Congress evidences clear intent to preempt:
• States can set enviro. standards that are stricter than fed law unless Congress explicitly prohibits
• States can't tax/regulate fed gov't activity
  • Intergovernmental Immunity: fed gov't doesn't have to comply with state laws
• EXAM TIP: It's unC to pay state tax out of fed treasury--look & ask: who is actually gonna pay tax?

Dormant Commerce Clause

• Dormant C/C (negative implications of C/C)
• State/local laws are unC if they place an undue burden on interstate commerc
• Corps/aliens can sue under it
• Doesn't require discrim. against O-of-S citizens
• Exc: (1) Congressional approval and/or
  
  • (2) Market Participant: state/local gov't may prefer its own citizens in receiving benefits from gov't programs or in dealing w/ gov't-owned bizs
• TIP: Is Congress doing something? --> C/C        Or state/local gov't? --> Dormant C/C
• ***See card #19 for Dormant C/C v. P&I analysis

• P&I of Art. IV: No state may deprive citizens of other states of the P&Is it accords its own citizens
  • TIP: Unless the question involves the right to travel, an answer saying "The P or I Clause of 14th Am." is always going to be wrong!
• Requires discrim. against O-of-S citizens
• Requires discrim. w/ regard to fundamental rights or important economic activities
• Corps and aliens cannot sue under it
• No exceptions
• ***See card #19 for Dormant C/C v. P&I Analysis

Dormant Commerce Clause

vs.

Privileges and Immunities Clause of Art. IV

Does state law discrim. against O-of-S citizens?

• If yes:
  • If law burdens interstate commerce, it violates Dormant C/C unless [its necessary to achieve an important (substantial) gov't purpose.]
    
    • Necessary: no alternative means
    • Protectionist ≠ important gov't purpose
  • If law discrim. against O-of-Sers w/ regard to their ability to earn their livelihood or fundamental rights, it violates the P&I of Art 4 unless (same [test] as above)
• If no:
  • P&I of Art. IV does not apply
  • If law burdens interstate commerce, it violates Dormant C/C if burden > benefits
• EXAM TIP: if question involves state/local gov't discrim. against O-of-Sers and challenger is a ©, only use Dormant C/C; if challenger is an individual, use both Dormant C/C and P&I of Art 4.

• States may not use their tax systems to help in-state businesses
• States may only tax activities if there is a substantial nexus to the state
• State taxation of interstate businesses must be fairly apportioned
  
  
             ***This topic is rarely tested on***

• First ask: is there gov't action? ("State Action")
  • The C applies only to gov't action--not private
  • Applies to gov't/officers at all levels
• Congress by § may apply C norms to private conduct:
  • Can use 13th Am (prohibit private race discrim)
  • Can use commerce power
  • Can't use §5 of 14th Am (only used to regulate state/local gov'ts)
• See card #22 for Exceptions to the State Action Doctrine

• Public Function Exception:
• The C applies (and there is S/A) if a private entity is performing a task traditionally, exclusively done by the gov't; narrowly applies
  • E.g., private utility ©s ≠ S/A
• Entanglement Exception:
• The C applies if the gov't affirmatively authorizes, encourages, or facilitates unC activity
  • Examples where S/A found
    • Ct can't enforce racially restrix covenants
    • Gov't leases land to biz that r/discrim
    • State gives books to schools that r/discrim
    • Private entity reg. interscholastic sports w/in the state (must operate nationally)
  • Examples where S/A not found
    • Private school funded 99% by gov't fires teacher over speech (subsidy ≠ S/A)
    • NCAA orders susp. of coach at state univ.
    • Private club w/ state liquor lic. r/discrim
  • TIP: if fact pattern involves r/discrim, Ct will likely apply Entanglement Exc; if it involves DP or 1st Am or other C claim, Ct unlikely to apply

• BofR applies directly only to fed gov't
• BofR is applied to state/local gov't through its incorporation into the DP clause of 14th
• Selective incorporation: only fundamental rights are inc'd; today, almost all are inc'd EXCEPT:
  • 3rd Am right to not have soldier qrtr'd in home
  • 5th Am right to GJ indictment in crim cases
  • 7th Am right to jury trial in civil cases
  • 8th Am right against excessive fines

• Rational Basis Test (Challenger bears burden)
  • Rationally related to legitimate gov't purpose
    • Doesn't have to be actual purpose, just conceivable
• Intermediate Scrutiny (Gov't bears burden)
  
  • Substantially related to important gov't purpose
    • Ct only looks to gov'ts actual purpose
    • Means must be narrowly tailored (not least restrictive means though)
• Strict Scrutiny (Gov't bears burden)
  
  • Necessary to achieve compelling gov't purpose
    
    • Ct only looks to gov'ts actual purpose
    • Means must be necessary (meaning least restrictive means)

• Procedural Due Process: deals with the procedures that a gov't must follow when it takes away a person's life, liberty or property
• Substantive Due Process: deals with whether there is an adequate justification for the gov't's taking away of a person's life, liberty or property
  • Usually protecting economic liberties or safeguarding privacy
• Equal Protection Clause: deals with whether the gov'ts differences in the treatment of people are adequately justified

Individual Rights: Procedural Due Process

• Step 1: Has there been a depriv. of life/liberty/prop?
• Depriv of liberty: where loss of significant freedom provided by C or §
• Depriv of property: where entitlement not fulfilled
• Gov't negl. insufficient for depriv. of DP
  • Need intentional or reckless gov't action
  • If emergency, gov't only liable under DP if its conduct "shocks the conscience"
    • Gov't must act w/ intent to harm
  • Gov't failure to protect person from privately inflicted harms ≠ denial of DP unless:
    • Person in physical custody of gov't or
    • Gov't literally created the danger
• Step 2: What procedures are required? Balance:
  • Importance of interest to individual
    
  • Ability of additional procedures to increase fact-finding accuracy (reduce risk of erroneous dep)
  • Gov't interest (cost-efficiency? police power?)
    • *See card #27 for procedural DP reqs
      

• Where notice and hearing required:
  • Before welfare benefits are terminated
  • Before school can discipline a child
    • Unless corporal punishment school
  • Before a parent's right to custody of a child can be permanently terminated
  • Prejudgment attachment/gov't seizure of assets
    • Unless exigent circumstances exist (i.e. reasonable to believe person could dispose of property before notice/hearing), then P gets post-seizure notice and hearing
    • Gov't can seize prop used in illegal activity even if innocent owner
• Where post-termination hearing required:
  • When SS disability benefits are terminated
• Punitive Damages: requires jury instrux and judicial review to ensure reasonableness
  • Grossly excessive fines violate DP
• US Cit. Detained as Enemy Combatant must get DP

• If law affects economic liberties, apply Rational Basis review
  • E.g., minimum wage, right to practice trade/profession, etc.

• Takings Clause: gov't may take private property for public use if it provides just compensation
• Step One: Is there a taking?
  • Possessory: gov't confiscation or phys. occupation of prop (no matter how small!)
  • Regulatory: gov't reg. leaves no reasonable economically viable use of property
  • Doesn't matter when regulation came about
  • Temp. denial ≠ taking (3y moratorium OK)
  • Gov't conditions on prop dev? benefit must be roughly proportionate to burden imposed
• Step Two: Is it for public use? (broadly defined)
  • OK so long as gov't has reasonable belief that the taking will benefit the gov't
• Step Three: Is just compensation paid?
  • Measured by loss to owner (NOT gain of taker)

• K Clause: No state shall impair obligations of Ks
• Applies only to state/local interference w/ existing Ks
  • Never applies to fed gov't
    • If fed gov't is abrogating Ks, can be sued under DP (meaning they get R/B review)
• If interfering w/ private Ks --> intermediate scrutiny
  • Does leg. sub. impair a party's rights under K?
  • If so, is law a reasonably & narrowly tailored means of promoting imp&legit public interest?
• If interfering with gov't Ks --> strict scrutiny

• The ex post facto clause doesn't apply in civil cases.
  • An ex post facto law is a law that criminally punishes conduct that was lawful when done or that increases punishment after crime committed
• Retroactive civil liability? --> R/B review
• Compare with Bill of Attainder:
  • A BoA is a law that directs the punishment of a specific person(s) without a trial
• EXAM TIP: "Ex Post Facto Clause" often appears on the MBE as a wrong answer--its only correct if gov't is criminally punishing retroactively

• Privacy: fundamental right protected under sub DP; if state imposes law on these apply SS review:
  
• Right to marry (includes same-sex)
  • State may impose invol. steriliz. if passes SS
• Right to procreate
  
• Right to custody of one's children
  • State may create irrebuttable presumption that a married woman's husband -> father
• Right to keep family together
  • Can't limit # of related cohabs (can if unrel.)
• Right to control upbringing of one's children
  • Can send kid to religious school
  • Vio. DP if Ct orders visitation w/ g-parent over objection of the parent
• Right to purchase and use contraceptives
• Right to abortion (see card #32 for Abortion)
  • Does not get SS review--use "undue burden"
    
• Right to refuse Mx treatment (even if life-saving)
  
  • State may prevent family from terminating treatment or require C&C evidence
  • No C right to MD-assisted suicide
    
• No fundamental right to education

• Prior to viability: state may not prohibit abortions, but may regulate them so long as they don't place an undue burden on ability to obtain; replaces SS!
  • OK: 24hr waiting period; if req. licensed MD; prohibition of "partial birth" abortions
  • Not OK: requirement that MD have admitting privileges at nearby hospital and that facility has "ambulatory surgical facilities"; spousal consent and notification laws
    • Parental notice & consent laws for unmarried minors OK only if creates alt. procedure where judge can approve abortion (best interest? mature?)
• After viability: state may prohibit abortions unless necessary to protect woman's life/health
• No duty on gov't to subsidize/provide in public hosp.

• 2Am Right to Bear Arms: unknown level of review
• Right to own guns for private home security
  • § banning handguns --> unC
• Can prevent some weapons though
• Can regulate type/who owns/where

• Laws that prevent people from moving into a state must meet SS standard
• Durational residency reqs must meet SS also
  • For voting, max C duration is 50 days
• Restrictions on foreign travel get R/B review
  • No fundamental right to int'l travel

• Laws that deny some citizens the right to vote -> SS
  • Poll taxes and prop. ownership reqs -> unC
  • But--regulations of electoral process (to prevent fraud) only need be on balance
• 1 person, 1 vote must be met for all state/local elections. OK for districting to be based on total population instead of eligible voters
  • If gov't uses race as predominant factor in drawing districts (even to benefit minorities), must apply SS
• At-large elections OK unless proof of discrim purpose
  • At-large elections: where all voters vote for all officeholders
• Counting uncounted votes w/o standards in a prez election violates Equal Protection

• Apply Strict Scrutiny:
  • All privacy rights except abortion
    • Right to: marry; procreate; custody of children; keep family together; control raising of kids purchase/use contraceptives
  • Right to travel
  • Right to vote
  • Freedom of Speech, Association (1st Am)
  • Free exercise of religion (unless "neutral law of general applicability") (1st Am)
• Apply "undue burden": right to abortion
• Apply Rational Basis:
  • Economic rights
  • Mx-assisted suicide
  • Right to education
• Level of scrutiny unknown:
  • Right to engage in private consensual homo act
  • Right to refuse Mx treatment
  • Right to possess firearms

• EQP of 14th Am. applies only to state/local gov'ts
  • 14th Am. never applies to fed gov't!
• EQP is applied to fed gov't through 5th Am. D/P
• How to approach EQP questions:
  • 1. What is the classification?
  • 2. What level of scrutiny should be applied?
  • 3. Does this law meet that level of scrutiny?

• How is racial classification proven?
  • Classification exists on face of the law (use SS)
  • If law is facially neutral, proving racial class requires demonstrating both discrim impact and discrim intent (if show both, use SS)
• If racial class. benefits minorities:
  • Use strict scrutiny
  • Quotas req. clear proof of past discrim
    • allowed as remedy for past discrim only
  • Educ. institutions may factor (not solely) race when admitting to help min., but must show:
    • No race neutral alt could achieve diversity
    • Also, can't "add pts" based on race
  • Public schools can't factor race in assigning students to schools unless SS met

• Intermediate scrutiny is used
  • Also needs "exceedingly persuasive justification"
• How is gender classification proven?
  • Exists on face of law
  • If law is facially neutral, proving gender class req. both discrim impact and discrim intent
• If gender classification benefits women:
  • Based on role stereotypes? --> unC
  • Designed to remedy past discrim and differences in opportunity? --> C

• Generally, strict scrutiny is used
• If alien class. concerns self-gov't and democratic process (functions integral to self-gov't):
  
  • Use Rational Basis test
  • E.g., voting, jury service, teacher, police officer, probation officer
• If Congress discrim against alien, use R/B test
• If discrim. against undocumented alien children, use intermediate scrutiny

• Also called "legitimacy classifications"
• Intermediate scrutiny is used
• If denies benefit to all non-marital kids, but grants benefit to all marital kids --> unC
  • If some non-marital kids receive the benefit, but other non-marital kids don't --> C

• Use Rational Basis test for all other types of discrimination under the C:
  • Age
  • Disability
  • Wealth
  • Economic (TIP: gets R/B under both EQP and DP)
  • Sexual orientation

Content-Based vs. Content-Neutral

Restrictions

• Content-based restrix generally get S/S
  • Subject-matter restrix: application of law depends on the topic of the message
  • Viewpoint restrix: application of law depends on the ideology of the message
• Content-neutral restrix generally get int. scrutiny

• Prior restraint: judicial order or administrative system that stops speech before it occurs
• Court orders suppressing speech get S/S
  • Procedurally proper court orders must be complied with until vacated or overturned
    • If don't comply, barred from challenging
• Gov't can require a license for speech only if:
  • Important reason for licensing; and
  • Clear criteria leaving almost no discretion to licensing authority
    • Licensing schemes must contain procedural safeguards such as prompt determination of requests and jud. review

• Vagueness: law is unC vague if a reasonable person can't tell what is prohibited and what is not
• Overbreadth: law is unC overbroad if regulates substantially more speech than C allows
• EXAM TIP: Fighting Words §s are always unC vague and overbroad ("FW": words directed at another to provoke a violent reaction)

• Gov't can reg. conduct that communicates if:
  • Important interest unrelated to suppression of the message and
  • Impact on comm. is no greater than neccesary
• Examples: (if red, gov't can likely reg/prohibit)
  • Flag burning: C-protected speech
  • Draft card burning: not protected speech
  • Cross burning: C-protected speech unless done with the intent to threaten
  • Nude dancing: not protected speech
  • Contribution limits in elections: generally C
  • Expenditure limits in elections: generally unC

Anonymous Speech

&

Speech by the Gov't

• Anonymous speech is protected
  • Distribution of anonymous political leaflets -> C
• Speech by the gov't cannot be challenged as violating the 1st Am.
  • Doesn't apply when gov't only creates forum; gov't must be speaker!
    
  • E.g., driver's license, passport, license plate, etc.
• Speech by gov't employees on the job in performance of their duties is not protected

• Incitement of illegal activity (see #50)
• Obscenity/sexually-oriented speech (see #51)
• Commercial speech (see #52)
• Defamation and IIED (see #53)

• Gov't may punish speech if:
  • Substantial likelihood of imminent illegal activity and
  • Speech is directed at causing imminent illegality

• Test for Obscenity:
  • 1. Material must appeal to the prurient interest (use localized standard)
    
    • Prurient: incites lust/lascivious thoughts
  • 2. Material must be patently offensive under the law prohibiting obscenity; and
  • 3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (national--not local-- standard)
• Gov't can use zoning ordinances to reg. location of adult bookstores and movie theaters
  • Concentration/dispersement methods OK
• CP may be completely banned, even if not obscene
  • CP: kids must be used in production
  • Virtual CP --> OK
• Gov't may not punish private possession of obscene materials (can punish priv. poss. of CP though!)
• Gov't may seize assets of biz convicted of violating obscenity laws

Commercial Speech

• False/deceptive ads or ad for illegal act: unprotected
• True commercial speech that inherently risks deception can be prohibited
  • Can prevent professionals from ad/practicing under trade name
  • Can prohibit atty, in-person, for profit solicitation
  • Can't prohibit accountants from in-person for profit solicitation
• Other comm speech can be reg if meets int. scrutiny
  • Meaning gov't reg of comm speech must be narrowly tailored, but not least restrictive

Defamation

&

Intentional Infliction of Emotional Distress

• Actual malice: knew false or reckless disregard
• Public official or running for office:
  • Must prove falsity and actual malice
• Public figure:
  • Must prove falsity and actual malice
• Private figure & matter is of public concern:
  • May allow ∏ to recover for defamation by proving falsity and negligence of Δ
  • Can recover presumed or punitive damages only by showing actual malice
• Private figure & matter is of private concern:
  • Unclear what ∏ needs; likely negligence
  • Can recover presumed or punitive damages w/o showing actual malice
• For all of the above, ∏ bears the burden of proof except private figure/private concern (unclear)
• Liability for IIED for defamatory speech must meet the defamation standards and can't exist for speech otherwise protected by 1st Am.

• Gov't may not create liability for truthful reporting of information that was lawfully obtained from gov't
• No liability if media broadcasts tape of illegally intercepted call if:
  • Media didn't participate in illegality and
  • Involves a matter of public importance
• Gov't may limit dissemination of info to protect privacy
  • Press and public have right to attend criminal trials and most criminal pre-trail proceedings

• Public Forums: Gov't prop that gov't is C required to make available for speech (e.g., sidewalks, parks)
  • Reg. must be subject matter and viewpoint neutral or it gets SS review
    
• TPM restrix that (1) serve important gov't purpose and (2) leave open adequate alt channels are C
  • "Narrowly tailored", not least restrix means
• City officials can't have discretion to set permit fees for public demonstrations

• Designated Public Forums: Gov't prop that the gov't could close to speech, but chooses to open
  • Subjected to same rules as public forums
  • E.g., school facilities on weekends

• Limited Public Forums: Gov't prop that are limited to certain groups or dedicated to the discussion of only some subjects
  • Gov't can regulate speech in LPFs so long as:
    • Regulation is reasonable and
    • Viewpoint neutral
      • Subject matter neutrality not req'd!
  • E.g., ad space on buses (could allow comm speech and disallow non-comm speech)

• Non-Public Forums: gov't prop that the gov't constitutionally can and does close to speech
  • Subject to same rules as limited public forums
  • E.g., military bases, airports, sidewalks on USPS property, areas outside prisons, jails
• Private Forums: no 1st Am. right of access to private property for speech purposes

• Laws that prohibit/punish group membership get SS
  • In order to punish, must be proven that the person:
    • Actively affiliated w/ group;
    • Knowing of its illegal activities; and
    • W/ specific intent of furthering those illegal activities
• Laws that require disclosure of group membership (where disclosure would chill association) get SS
  • E.g., NAACP didn't have to disclose
• Laws that prohibit a group from discriminating are C unless they interfere with intimate association or expressive activity
  • Boy Scouts or KKK would win
  • Jaycees or Key Club would lose

• Free Exercise cannot be used to challenge a "neutral law of general applicability"
  • E.g. peyote case
• Gov't may not deny benefits to individuals who quit their jobs for religious reasons
• Gov't may not hold a religious institution liable for the choices it makes as to who will be its ministers

• The test: (SEX: SecularEffectXcessive)
  • There must be a secular purpose for law;
  • The effect must be neither to advance nor inhibit religion; and
  • There must not be excessive entanglement with religion.
    • Gov't can't pay teacher $ in relig schools
• If fails any prong of ^ test, then unC
• Gov't can't discrim against religious speech or among religions unless S/S is met
  
• Gov't-sponsored relig. activity in public schools: unC
  • But, religious students and community groups must have same access to school facilities as non-religious groups
    
• School prayer (even if vol. or silent): unC
  • "Silent reflection" is OK though
• Gov't may give assistance to relig schools so long as $ not used for religious instruction
• Gov't may provide vouchers for use in relig. schools