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Although the federal government is required by the provisions of the Constitution to respect the individual citizen's basic rights,such as right of trial byjury,the most significant guarantees for individual civil rights were provided by ratification of the Bill of Rights（Amendments 1—10）. The First Amendment guarantees freedom of religion,speech,and the press,the rights of peaceful assembly and petition. Other amendments guarantee private property,fair treatment of those accused of crimes,such as unreasonable search and seizure,freedom from self‐incrimination,a speedy and impartialjury trial,and representation by counsel.
（1） Content‐based restrictions on speech generally must meet types
（i）Subject matter restrictions—application of the law depends on the topic of the speech
（ii）Viewpoint restrictions—application depends on the ideology of the message
（2） Content‐neutral laws burdening speech generally need only meet intermediate scrutiny—must:
（i）further a significant government interest,
（ii）narrowly tailored,AND
（iii）leave open alternative channels of communication
2. Prior Restraints —Judicial orders to stop speech before it occurs（worst form of restraint on free speech）
（1）Court orders suppressing speech must meet strict scrutiny
（i）Procedurally proper court orders must be complied with until they are vacated or overturned—gag orders on press to prevent prejudicial pretrial publicity are NOT allowed
（ii）Collateral bar rule—a person who violates a court order is later barred from challenging it
3. Vagueness&Overbreadth :
（1）Vagueness—a law id unconstitutionally vague if not give reasonable notice of that is prohibited
（2）Overbreadth—a law is unconstitutionally overbroad if it regulates substantially more speech than is necessary
（3） Fighting Words （likely to provoke a violent response）laws are unconstitutionally vague&overbroad. HYPO:Appealing victim and nasty speaker—Answer is always that law prohibiting fighting words is unconstitutional.
4. Symbolic Speech —the government can regulate conduct that communicates IF（i）it has an important interest unrelated to suppression of the message,&（ii） the impact on communication is no greater than necessary to achieve the government's purpose
5. Anonymous speech is protected—protect right not to speak
II. What Speech Is Unprotected or Less Protected by the First Amendment
1. Incitement of Illegal Activity—government may punish speech if:（i）there's a substantial likelihood of imminent illegality,AND（ii）the speech is directed at causing the imminent illegality
2. Obscenity&Sexually‐oriented Speech :
（1）Obscenity Test
（i） appeal to the prurient interest （a“shameful or morbid interest in sex”）—local community standard；
（ii） patently offensive under the law prohibiting obscenity —local community standard；AND
（iii） lack serious redeeming artistic , literary , political or scientific value —national standard
（2）Zoning Permissible—government may use zoning ordinances to regulate the location of adult bookstores&movie theaters（
Erogenous
Zoning is permissible）
（3）Child pornography—can be completely banned,
even if not obscene
. （To be child pornography,it must be children,not adults that look like children or computer generated images）
（4）Punish private possession of obscene materials NOT allowed—BUT,may punish private possession of child pornography
（5）Government may seize the assets of businesses convicted of violating obscenity laws
（6）Profane&indecent speech—generally protected by the First Amendment,EXCEPT:
（i）broadcast media—broadcast is uniquely intrusive into the home,CAN censor profanity,（EXCEPT for cable television and the Internet which people choose to bring into their homes）
（ii）in schools（schools can punish profane and indecent language,including sexual innuendo）
3. Commercial Speech :
（1）False&deceptive ads—NOT protected by the First Amendment
（2）True commercial speech that inherently risks deception can be prohibited:
（i）Government may prohibit professionals from advertising or practicing under a trade name
（ii）Government may prohibit attorney,in‐person solicitation of clients for profit—BUT,if lawyers offer services for free or by letters,they can solicit
（iii）Government may NOT prohibit accountants from in‐person solicitation of clients for profit
（3）Other commercial speech can be regulated if intermediate scrutiny id met（cannot solicit accident victims for 30 days was upheld）
（4）Commercial speech regulation must be narrowly tailored,but NOT need to be least restrictive alternative
4. Defamation —not protected,but the ability of a state to limit recovery is limited
actual malice
—knew the statement was false or acted with reckless disregard for the truth
（1）Government may NOT create liability for the truthful reporting of information that was lawfully obtained from the government
（2）Liability is NOT allowed if the media broadcasts a tape of an illegally intercepted call,IF:（i）the media did not participate in the illegality,&（ii）it involves a matter of public importance
（3）Government may limit its dissemination of information to protect private,but NOT in criminal trials—only the press has the First Amendment right in pre‐trial criminal proceeding
6. Other government restrictions based on the content of speech—must meet strict scrutiny
1. Public Forums —government properties that the government id required to make available for speech（e. g. streets,sidewalks&parks）
（1）Regulations must be subject matter&viewpoint neutral
（2）Regulations must be a time,place,or manner regulation that serves an important government purpose&leaves open adequate alternative places for communication（e. g. No trucks with sound amplification equipment allowed in residential areas at night—UPHELD）
（3） Narrowly tailored‐government regulation of public forums need not use the least restrictive alternative （e. g. city ordinance said concert in the park required city engineers for sound system—this is OK,because need not be least restrictive alternative）
（4）City officials can NOT have discretion to set permit fees for public demonstrations
2. Limited / designated Public Forums —government propertied that the government could close to speech,but chooses to open to speech；so long as government chooses to open property for speech,it must follow all of the above rules（e. g. school facilities are non‐public forums in the evenings and on the weekends—Congress can open the place as a limited public form）
3. Non‐public Forums—government properties that the government constitutionally can&does close to speech
（1）Government can regulate so long as the regulation on time,place&manner is（i） reasonable （rational basis）,&（ii）viewpoint neutral
（2）Non‐public forums include:
（i）military bases
（ii）Areas outside prisons&jails
（iii）Advertising space on city buses
（iv）Sidewalks on post office property
（v）Airports—may prohibit money solicitation；can NOT（vi）prohibit distribution of literature（fails rational basis review）
4. Private Property—the First Amendment right of access to private property（i. e. Shopping centers）for speech purposes.
1. Laws that prohibit or punishgroup membership must meet strict scrutiny —to punish a membership in a group,it must be proven that the person（i）actively affiliated with the group,（ii）knowing of its illegal activities,&（iii）with the specific intent of furthering those illegal activities.
2. Laws that require disclosure ofgroup membership ,where such disclosure would chill association,must meet strict scrutiny.
3. Laws that prohibit a groupfrom discriminating are constitutional ,UNLESS they are
a. Intimate association（e. g. ,ifyou're not invited to a small dinner party,you can't sue）,OR
b. Expressive activity—discrimination is an integral part of the association（e. g. ,the KKK who have an anti‐black messenger or Boy Scouts who had anti‐gay message）.
1. Free Exercise Clause
（1）Prohibits government interfere with religious beliefs Member of the clergy can hold government office
（2）Allow regulation of general applicability（ conduct ）
Exception‐Unemployment compensation（government may not deny benefits to individuals who quit their job for religious reasons）
2. EstablishmentClause
（1）Prohibits laws respecting the establishment of religion
（2）Test（SEX）（if any of these three are violated,it violates the Establishment Clause）:
（i）Must be a Secular purpose for the law（e. g. ,10 commandments can't be posted on public schools）.
（ii）Effect must neither advance nor inhibit religion—government can't symbolically endorse religion,or a particular religion.
—plastic reindeer rule—if there are religious symbols accompanied by symbols from other religions,AND secular symbols（e. g. ,plastic reindeer）,that's OK.
（iii）Must not be excessive entanglement with religion—government can't pay salaries of parochial school teachers because that would require too much supervision.
（3）Government can't discriminate against religious speech or among religions,unless strict scrutiny is met.
（4）Government sponsored religious activity in public schools is unconstitutional（e. g. ,school prayer,even moments of silence are unconstitutional,clergy delivered prayers at school graduations not allowed,student delivered prayers at football games not allowed）,BUT religious students&community groups must have the same access to school facilities as non‐religious groups.
（5）Government may give assistance to
parochial
schools—so long as the money isn't used for religious instruction.
JUSTIE OLIVER WENDELL HOLMES,JR. :This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act ofJune 15,1917... by causing and attempting to cause insubordination,etc. ,in the military and naval forces of the United States,when the United States was at war with the German Empire；to wit,that the defendant Charles T. Schenck willfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18,1917,a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy,ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offense against the United States；to wit,to use the mails for the transmission of matter declared to be non‐mailed by... the Act of June 15,1917,to wit,the above‐mentioned document... The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. Schenck was found guilty on all the counts. He set up the First Amendment to the Constitution,forbidding Congress to make any law abridging the freedom of speech or of the press,and,bringing the case here on the ground,has argued some other points also of which we must dispose.
It is argued that the evidence,if admissible,was not sufficient to prove that the defendant Schenck was concerned in sending the documents. According to the testimony Schenck said he was general secretary of the Socialist party and had charge of the Socialist headquarters from which the documents were sent. He identified a book found there as the minutes of the executive committee of the party. The book showed a resolution of August 13,1917,that 15,000 leaflets should be printed on the other side of one of them in use,to be mailed to men who had passed exemption boards,and for distribution. Schenck personally attended to the printing. On August 20 the general secretary's report said,“Obtained new leaflets from the printer and started work addressing envelopes,”etc. ；and there was a resolve that Comrade Schenck be allowed＄15 for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand printed. There were flies of the circular in question in the inner office which he said were printed on other side of the one‐sided circular and were there for distribution. Other copies were proved to have been sent through the mails to drafted men... No reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about...
It is objected that the documentary evidence was not admissible because obtained upon a search warrant,valid so far as appears. The contrary is established. The search warrant did not issue against the defendant but against the Socialist headquarters at 1326 Arch Street and it would seem that the documents technically were not even in the defendants'possession... The notion that evidence even directly proceeding from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly unsound.
The document in question upon its first printed side recited the first section of the Thirteenth Amendment,said that the idea embodied in it was violated by the conscription act and that a conscript is little better than a convict. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said,“Do not submit to intimidation,”but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side ofthe sheet was headed“Assert Your Rights. ”It stated reasons for alleging that any one violated the Constitution when he refused to recognize“your right to assert your opposition to the draft,”and went on,“Ifyou do not assert and support your rights,you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain. ”It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press,and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands,and added that words could not express the condemnation such cold‐blooded ruthlessness deserves,&c. ,&c. ,winding up,“You must do your share to maintain,support and uphold the rights of the people of this country. ”Of course the document would not have been sent unless it had been
intended to have some effect,and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point.
But it is said,suppose that that was the tendency of this circular,it is protected by the First Amendment to the Constitution... We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within his constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction order to stop against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight,and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved,liability for words that produced that effect might be enforced. The statute of 1917... punishes conspiracies to obstruct as well as actual obstruction. If the act,（speaking,or circulating a paper,）its tendency and the intent with which it is done are the same,we perceive no ground for saying that success alone warrants making the act a crime... But as the right to free speech was not referred to specially,we have thought fit to add a few words.
It is not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The words“obstruct the recruiting or enlistment service,”and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces,as well by draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this act. The factthattheActof1917 was enlarged by the amending Act ofMay 16,1918... of course,does not affect the present indictment and would not,even if the former act had been repealed. Judgments affirmed.
1. Commerce clause is _______
A. the constitutional provision giving the U. S. Congress power to legislate over matters that affect“interstate commerce. ”
B. the power of the U. S. Congress to legislate over foreign affairs.
C. the power of the president to regulate banks because of national economic and security considerations.
D. the power of the President to regulate banks because of public safety issues.
2. A state has a total population of one million people,of whom only 4％are black. The question of whether to celebrate Martin Luther King Day was put on the ballot and failed to pass by the narrowest of margins. To ensure its passage in the next election,a local pastor sought to relocate elderly citizens to the state with“Friends of the King Holiday,”a citizens'group operating in the state. The state has a 90‐day residency requirement before a person can vote,and a one‐year residency requirement before a person can receive state‐funded medical assistance. An elderly woman relocated to the state two months before the election. She liked the state so much that she decided to remain permanently,and she applied for medical assistance the same day that she attempted to register to vote. The woman's application for state‐funded medical assistance was denied,and the town clerk refused to allow her to register to vote.
If the woman sues for medical benefits and the right to vote,what is the most likely outcome of the action?
A. The court will order that the woman receive medical benefits.
B. The court will order that the woman receive medical benefits and be permitted to register to vote,because she is a member of a suspect class.
C. The court will deny the woman's claim for medical benefits and the right to vote,because she has resided in the state for only two months.
D. The court will order that the woman be permitted to register to vote,because voting is a fundamental right that is not subject to state restrictions.
3. Congress recently enacted the Reproductive Health Act,and appropriated finds for the implementation of health education and clinical programs associated with sex education and pregnancy‐related medical treatments. The sex‐education programs were to provide clients with information about the prevention of sexually transmitted diseases,as well as information about all aspects of pregnancy prevention and termination. The president,who felt that homosexuality was immoral,ordered all executive branch personnel to refrain from discussing AIDS‐related aspects of health care on the job. A physician's assistant working for the National Centers for Disease Control challenged the constitutionality of the president's order.
How is the court likely to find on the question of the constitutionality of the president's order?
A. The order is constitutional,because the president has authority over executive branch employees.
B. The order is constitutional,because the president has substantial discretion in executing the laws.
C. The order is unconstitutional,because it violates the president's duty to faithfully execute the laws.
D. The order is unconstitutional,because the president cannot refuse to spend funds as appropriated.
4. A city became a haven for protests of all kinds. Some of the protests and parades in the city had spawned counter‐demonstrations,and on a couple of occasions,violent incidents erupted. The city council became worried when a budgetary analysis showed that the city spent＄2,000,000 for extra police protection on weekends on which parades and rallies were held. Therefore,the city council passed an ordinance that provided that groups who applied for a permit to hold a parade or rally in the town could be charged up to a maximum of＄2,500 for a permit,to be determined by the city manager, based on how much police protection was anticipated to be needed. A group of radical environmentalists applied for a permit to hold a parade in the town. Knowing that one of the largest employers in a town was a lumber company,the city manager expected a counter‐demonstration,and so he imposed a＄1,000 fee for the permit. The environmentalists sued to enjoin the enforcement of the ordinance.
How should the court rule?
A. In favor of the city,because the fee was not based on the content of the message,was narrowly tailored to serve a significant governmental interest,and left open ample alternatives for communication.
B. In favor of the city,because the ordinance was a valid use of the city's police power to regulate for the city's safety and welfare.
C. In favor of the environmentalists,because the statute was facially void,not content‐neutral,and gave the city manager overly broad discretion as to the price of the permit.
D. In favor of the environmentalists,because although the ordinance was content‐neutral,it gave the city manager overly broad discretion as to the price of the permit.
5. A hearing officer has worked for a federal agency for 17 years. A federal statute provides that hearing officers and all other court employees,with the exception of Article III judges,must retire at age 70. The hearing officer,who is 69,is a highly productive employee,in good health,and could work for several years.
If the hearing officer seeks a declaratory judgment prohibiting her termination at age 70,which of the following is the strongest constitutional argument that the mandatory retirement statute is invalid?
A. The statute violates the powers granted to Congress under Article I.
B. The statute violates the Fourteenth Amendment Due Process Clause by depriving the hearing officer of a property right.
C. The statute violates the Fifth Amendment Due Process Clause by discriminating against the elderly.
D. The statute violates the Privileges and Immunities Clauses of Article IV and the Fourteenth Amendment.
6. A maintenance worker was hired by a city's parks department and is now in his third consecutive one‐year contract. According to a city ordinance,he cannot acquire tenure until after five consecutive annual contracts. In his third year,the maintenance worker was notified that he was not being re‐hired for the following year. Applicable state law and city department rules did not require either a statement of reasons or a hearing,and,in fact,neither was offered to him.
Which of the following,if established,most strongly supports the parks department in refusing to give the maintenance worker a statement of reasons or an opportunity for a hearing?
A. The maintenance worker's performance had been substandard.
B. A speech he made that was critical of parks department policies violated a department regulation concerning employee behavior.
C. The maintenance worker worked at the parks department for less than five years.
D. The maintenance worker could be replaced with a more competent maintenance worker.
7. An army fort had been used as a military outpost for more than 100 years. Following the end of the Cold War,the federal government closed the fort and sold half of the property to the state,which used the land to build a university. The population at the school is now double the population that had existed at the base,straining the available water supply. The water source,while located on the land purchased by the state,supplies water to both halves of the property.
As a humanitarian gesture in response to global events,the federal government agreed to take in 200 refugees from a war‐torn country,and decided to place them in the barracks that remained on the portion of the land which the federal government still owned. The state then brought suit in federal court to prevent the refugee relocation,claiming that there would not be enough water for the existing population.
What is the most likely outcome of the suit?
A. The state will prevail,because a state may assert its regulatory authority over the federal government.
B. The state will prevail,because the source of the water is on state property.
C. The state will not prevail,because of the Supremacy Clause.
D. The state will not prevail,because a state may not assert its regulatory authority over a natural resource to be used by the federal government for the benefit of aliens.
8. For more than 100 years,the premier manufacturers of boats in the nation carried on their businesses in one particular state. There was little competition until recently,when out‐of‐state manufacturers began to take a significant portion of the boat‐building business. At the same time,a global economic downturn affected the retail market for boats. Sales of boats manufactured in the state plummeted,layoffs followed on a massive scale,several builders closed their businesses permanently,and the surviving boat manufacturers turned to their state legislators for help.
The legislature responded by enacting an excise tax on all boats purchased in the state but manufactured elsewhere. The amount of the tax on each boat was a percentage of its purchase price,with luxury vessels paying an additional surcharge. A manufacturer of recreational and luxury crafts in a bordering state had acquired a large market share of the retail boat business in the state prior to the tax being passed.
In a challenge to the excise tax by the boat manufacturer in federal court,which of the following is the strongest constitutional argument against enforcement of the tax?
A. The tax violates the Privileges and Immunities Clause.
B. The tax imposes a burden on interstate commerce.
C. The tax violates the Due Process Clause of the Fourteenth Amendment.
D. The tax violates the Equal Protection Clause of the Fourteenth Amendment.
9. On the last day of its legislative session for 2009,a state legislature enacted the following statute,to go into effect on January 1,2010:“Recycling creates many jobs in our great state,but many state citizens could benefit from increased demand for recycled products. Therefore,all offices in the state must use only 100％recycled paper in their copiers and printers. ”The governor signed the bill into law. On November 1,2009,the state Chamber ofCommerce filed a complaint in state court challenging the constitutionality of the new law. The state filed a motion to dismiss.
Which argument would best support the state's motion?
A. The statute is constitutional,because the state's police power includes the authority to enact legislation for the health,welfare,and safety of its citizens.
B. The Chamber of Commerce does not have third‐party standing.
C. The matter is not ripe for adjudication.
D. The complaint asks for an advisory opinion,which state courts are not permitted to render.
10. State law requires that any alcohol sold in the state must be sold through state‐operated liquor stores. Recently,many of the stores in the state have had problems with employees belonging to a particular racial minority group. State legislators,aware that members of this minority group rarely graduate from college,passed a law that no person may apply for a job in a state‐operated liquor store without a college degree. Members of the minority group who applied for jobs with the liquor stores and who were rejected on the basis that they lacked college degrees challenged the law as being discriminatory on the basis of race.
Which of the following correctly describes the level of scrutiny the court should use?
A. Strict scrutiny,because the classification is based on race.
B. Strict scrutiny,because even though the law is facially neutral,the state had a discriminatory purpose.
C. Strict scrutiny,because the law has a discriminatory effect against members of the racial minority.
D. Rational basis scrutiny,because the law is facially neutral and a mere discriminatory effect is insufficient to trigger strict scrutiny.
QUESTION 1
The Constitution of the State of America contains a due process clause whose language is identical to the Due Process Clause of the U. S. Constitution's Fourteenth Amendment. Tom was a teacher in the Town of Aaron,in America. Because Tom's status was that of“probationary teacher,”the custom in Aaron was that Tom could be fired at the end of any school year without cause. Tom was fired without cause. He sued Aaron in America state court. His suit was premised on the argument that his firing violated the America due process clause,in that he was not given a hearing before being fired. The Ames state court agreed,and the higherst appeals court in Ames affirmed. Now the Town of Aaron has appealed the case to the U. S. Supreme Court. May the U. S. Supreme Court hear the case?Give your reasons.
QUESTION 2
Five years ago,City adopted a municipal ordinance prohibiting the placing of“commercial”signs on rooftops within city limits. The stated purpose of the ordinance was“... improving the quality of life within City by emphasizing and protecting aesthetic values. ”The ordinance also provided that all signs in place on the date of its adoption in violation of its terms,must be removed within five years.
Three years ago,Rugged Cross Church（Church）,with its church building situated within City's limits,placed a 20‐foot blue neon‐lighted sign in the shape of a cross on its church roof,with the message“Join and Support Our Church”in white neon lights inside the blue neon borders of the cross.
After the Church sign was in place,various citizens of City urged that the sign ordinance be amended to include all rooftop signs in City. Other citizens complained to City officials that Church's sign,in particular,was“an eyesore. ”
Effective two months ago,City amended its sign ordinance by deleting the word“commercial. ”City then notified Church that its rooftop sign would have to be removed within five years.
Church has brought suit against City in a state trial court of proper jurisdiction,claiming that the amended City sign ordinance is invalid under the United States Constitution,both（1）by its terms and general application,and（2）as City seeks to apply it to Church.
How should the court rule on each of Church's claims?Discuss.