1

Individual Rights [12-15 questions]

Constitutional Framework for Protection of Individual Liberties
1. Constitutional Restrictions on Power Over Individuals: Other than the 13th Amendment ban on
slavery, the Constitution regulates only government action, not private action. The Constitution
sets the minimum threshold of rights. States are generally free to grant broader rights than
those granted by the Constitution
a. Bill of Rights: The Bill of Rights (the first 10 amendments of the Constitution) limits
federal power. However, the 14th Amendment Due Process Clause applies almost all
provisions of the Bill of Rights to the states. Except for: (1) the 5th Amendment's
prohibition of criminal trials without a grand jury indictment, and (2) the 7th
Amendment's right to a jury trial in civil cases
b. 13th Amendment prohibits slavery and involuntary servitude, which the Court has
defined as compulsion of labor through the use or threat of physical or legal coercion.
Under the 13th Amendment's Enforcement Clause, Congress can prohibit racially
discriminatory action by anyone (the government or a private citizen)
c. 14th and 15th Amendments
i. 14 Amendment prevents states from depriving any person of life, liberty, or
property without due process and equal protection of law
ii. 15 Amendment prevents both the federal and state governments from denying
a citizen the right to vote on account of race or color
iii. Private conduct is not prohibited by these amendments – only where some state
action is involved (purely private conduct may be prohibited however on a
separate constitutional basis such as the commerce clause)
iv. Scope of Congressional Power under 14A: Section 5 of the 14th Amendment
gives Congress the power to adopt appropriate legislation to enforce the rights
and guarantees provided by the 14th Amendment. Under Section 5, Congress
may not expand existing laws to prevent or remedy violations of rights already
recognized by the courts. To adopt a valid law, Congress must point to a history
or pattern of state violation of such rights and adopt legislation that is
congruent and proportional (narrowly tailored) to solving the identified
violation
d. Rights of National Citizenship: Congress has inherent power to protect rights of
citizenship under Section 5 of the 14th Amendment
2. State Action Requirement: Because the Constitution generally applies only to governmental
action, to show a constitutional violation "state action" must be involved. Note: This concept
applies to government and government officers at all levels – local, state, or federal; but note
that state action can be found in actions of seemingly private individuals who (1) perform
exclusive public functions or (2) have significant state involvement
a. Activities that are traditionally the exclusive prerogative of the state, are state action no
matter who performs them
b. State action also exists wherever a state affirmatively facilitates, encourages, or
authorizes acts of discrimination by its citizens, or where there is sufficient entwinement
between the state and private party
3. Levels of Scrutiny: The following standards of review are used by the Court when reviewing
challenges to governmental acts under the guarantees of substantive due process and equal
protection, as well as 1A rights
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a. Rational Basis: Regulations that do NOT affect fundamental rights or involve suspect or
quasi-suspect classifications (most laws) are reviewed under the rational basis standard
– the law is upheld if it is rationally related to a legitimate government purpose
i. Easy standard to meet so law is usually valid, unless it is arbitrary or irrational
ii. Burden of Proof: The person challenging the law has the burden of proof
iii. The rational basis standard is used to review regulations involving classifications
that are not suspect or quasi-suspect such as age, disability, and poverty
b. Intermediate Scrutiny: Regulations involving quasi-suspect classifications (gender and
legitimacy) are reviewed under the intermediate scrutiny standard – the law is upheld if
it is substantially related to an important government purpose
i. Burden of Proof: It is unclear who has the burden of proof under intermediate
scrutiny. Usually, courts place the burden on the government
c. Strict Scrutiny: Regulations affecting fundamental rights (interstate travel, privacy rights,
voting, 1A rights) or involving suspect classifications (race, national origin, alienage) are
reviewed under the strict scrutiny standard – the law is upheld if it is necessary to
achieve a compelling government purpose
i. Difficult test to meet so laws examined under strict scrutiny will often be
invalidated especially if there is a less burdensome alternative to achieve the
government’s goal
ii. Burden of Proof: The government has the burden of proof under strict scrutiny
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Procedural Due Process

1. Due Process Clause of the 5th Amendment and the 14th Amendment provide that a person has
a right to a fair process when the government deprives the person of life, liberty, or property
a. Government negligence is insufficient to state a procedural due process claim. Instead,
there generally must be an intentional or reckless government action
b. Liberty: The term liberty is not specifically defined in the Constitution. However, it has
been held to include more than just physical freedom (includes the right to contract and
to engage in gainful employment)
i. A deprivation of liberty occurs if a person –
1. Loses significant freedom of action or
2. Is denied a freedom provided by the Constitution or a statute
ii. Note: Injury to reputation itself is not a deprivation of liberty or property
c. Property includes personal and real property (whether its tangible or intangible) and
government benefits to which there is an entitlement (a reasonable expectation of
continued receipt) under state or federal law. An abstract need or desire for a benefit is
not enough
2. What Types of Process Is Required: Procedural due process required – (1) notice, (2) an
opportunity to be heard, AND (3) a neutral decisionmaker
a. Notice: The notice must be reasonably calculated to inform the person of deprivation
b. Hearing: The type and extent of the hearing are determined by a balancing test that
weights – (1) The importance of the interest to the individual, and (2) The value of
specific procedural safeguards to that interest AGAINST (3) The government interest is
fiscal and administrative efficiency
i. Typically, the claimant should be given a pre-deprivation hearing, unless that
would be impracticable
c. Neutral Decisionmaker: The decisionmaker cannot have any actual bias or a serious risk
of actual bias
3. Due Process Rights are Subject to Waiver: As a general rule, due process rights are, presumably,
subject to waiver if the waiver is voluntary and made knowingly
4. Access to Courts – Indigent Plaintiffs: Government fees (i.e., court filing fees) must be waived
when imposition of a fee would deny a fundamental right to the indigent
a. However, fees can be imposed when nonfundamental rights are involved
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Substantive Due Process

1. Substantive Due Process guarantees that laws will be reasonable and not arbitrary. Substantive
Due Process derives from the Due Process Clause of the 5th Amendment which applies to the
federal government, and the Due Process of the 14th Amendment, which applies to state and
local governments. The same tests are applied under each clause
2. Applicable Standards: When a fundamental right is limited, the law or action is evaluated under
the strict scrutiny standard. In all other cases, the rational basis standard generally applies (in
cases involving economic rights, the right to education, and the right to physical assisted suicide)
a. Fundamental Rights include –
i. All 1st Amendment rights
ii. The right to interstate travel
iii. Privacy related rights
iv. Voting
b. Note: Fundamental rights can be enumerated in the Constitution or unenumerated.
Whether an unremunerated right is fundamental depends on whether it is deeply
rooted in the nation’s history and tradition and essential to the concept of ordered
liberty
3. Relationship Between Substantive Due Process and Equal Protection: Both substantive due
process and equal protection guarantees require the Court to review the substance of a law
rather than the procedures employed
a. Substantive Due Process: If a law limits the rights of all persons to engage in some
activity, on the MBE it usually is a due process question
b. Equal Protection: If a law treats a person or class or persons differently from others, on
the MBE it is usually an equal protection problem
i. Class of One: The Supreme Court has recognized that an equal protection claim
can be brought for discrimination against a group and for arbitrary treatment of
a single individual – a class of one. However, the Court has held that an at-will
government employee who claims to be a victim of arbitrary discrimination
cannot use the class of one theory to make an equal protection claim
4. Privacy Related Rights: Various privacy rights including marriage, procreation, contraception,
and childrearing are fundamental rights. Regulations substantially burdening these rights are
reviewed under the strict scrutiny standard
a. Marriage: A law prohibiting a class of adults from marrying is likely to be invalidated
unless the government can demonstrate that the law is narrowly tailored to promote a
compelling or, at least, important interest
i. Ban on Interracial Marriage: A ban of interracial marriage triggers and fails strict
scrutiny
ii. Same Sex Marriage: The fundamental liberties guaranteed by the 14th
Amendment (both Due Process and Equal Protection Clauses) require every
state to issue marriage licenses to 2 people of the same sex and recognize same-
sex marriages performed elsewhere. Bans on same-sex marriage are not based
on any legitimate interests related to protecting or promoting marriage
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iii. Special Test in Prisoners’ Rights Cases: A statute restricting the rights of prison
inmates to marry will be upheld if reasonably related to legitimate penological
interests
iv. Minimum Age Requirements: Regulations that don’t substantially burden the
right to marry, such as minimum age requirements, are subject to rational basis
review
b. Procreation: Individuals have a fundamental right to reproduce that cannot be limited
by the state
c. Use of Contraceptives: A state cannot prohibit the distribution of nonmedical
contraceptives to adults or minors
d. Rights of Parents: Parental rights are fundamental rights. They include the
companionship, care, custody, and upbringing of children
e. Keeping Extended Family Together: There is a fundamental right for family members –
even extended ones – to live together. This right does NOT extend to unrelated people
f. Abortion: The Supreme Court recently overruled the line of cases that held that the
Constitution protected a woman’s right to obtain an abortion. There is no longer a
fundamental right to an abortion under the federal Constitution – the matter is left to
the states to legislate
i. The court stated that laws restricting abortions are entitled to a strong
presumption of validity under rational basis review
ii. The Court has identified several legitimate state interests that can support a
restriction – Respecting and preserving prenatal life at all stages of
development, protecting maternal health and safety, eliminating particularly
gruesome or barbaric medical procedures, preserving the integrity of the
medical profession, mitigating fetal pain, and preventing discrimination based
on race, gender, or disability
g. Obscene Reading Material: The right to privacy includes freedom to read obscene
material in one’s home (except for child pornography) but not the right to sell, purchase,
or transport such material
h. Collection and Distribution of Personal Data [No Privacy Right]: The state may
reasonably gather and distribute information about its citizens. So, there is NO privacy
right to prohibit the accumulation of names and addresses of patients for whom
dangerous drugs are prescribed
5. Right to Travel: An individual has a fundamental right (1) to travel from state to state, and (2) to
be treated equally after moving into a new state. Note: Not every restriction on the right to cross
state lines in an impairment of the right to travel
a. Right to Equal Treatment in a New State: A problem arises when a state imposes a
minimal durational residency requirement for receiving its benefit or otherwise
dispenses state benefits based on the length of time a person has resided in the state. It
is not clear whether the Court always reviews these regulations under the strict scrutiny
standard
b. Right to International Travel: International travel is NOT a fundamental right. It is
however protected from arbitrary federal interference by the 5th Amendment Due
Process Clause. The rational basis standard applies
6. Right to Vote: The right to vote is a fundamental right. Restrictions on that right, other than on
the basis of residence, age, and citizenship, are invalid unless they can pass strict scruntity
a. Restrictions on the Right to Vote
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i. Property Ownership: Conditioning the right to vote or hold office on ownership

of property is usually invalid
1. Exception: Special purpose elections (ex: water storage districts)
ii. Residency Requirements: Reasonable time periods for residency (for example 30
days) are valid. Note: Congress can override state residency requirements in
federal elections and substitute its own
iii. Identification: A state may require voters to show a government issued voter ID
iv. Poll Taxes are unconstitutional
v. Primary Elections: States can require early registration to vote in primaries.
However, states cannot prohibit political parties from opening their primary
elections to anyone, whether or not registered with the party
b. Dilution of Right to Vote
i. One Person, One Vote Principle: The one person, one vote principle applies
whenever any level of government decides to select representatives to a
governmental body by popular election from individual districts
1. State and Local Elections: The populations of voting districts must be
substantially equal – the variance in the number of persons included
within districts cannot be unjustifiably large, but the districts don’t need
to be within a few percentage points of each other. A state must show
that a deviation from mathematical equality is reasonable and tailored
to promote a legitimate state interest although a 10% variance is
presumptively valid
2. Congressional Elections: States must use almost exact mathematical
equality when creating congressional districts within the state – even a
0.7% variance was invalidated. However, when Congress apportions
representatives among the states, this does not apply; Congress’s good
faith method for apportioning representatives gets more deference and
is not subject to a precise mathematical formula, as are state plans
3. Districts Can be Measured Using Total Population: When states measure
the equality of their districts, they don’t have to count only persons
eligible to vote. Counting the total population is sufficient and this best
serves the one person, one vote principle
4. Exception – Appointed Officials and Officials Elected At Large: The
apportionment requirement is inapplicable to officials who are
appointed or elected at large
5. Exception – Special Purpose Election: The one person, one vote
principle doesn’t apply to elections of officials who do not exercise
normal governmental authority but rather deal with matters of special
interest in the community (for example, water storage districts)
ii. Gerrymandering: Race (and other suspect classifications) cannot be the
predominant factor in drawing the boundaries of voting districts unless the
district plan can satisfy strict scrutiny
1. Political Gerrymandering: Drawing lines to achieve certain political
results is a non-justiciable political question
iii. States May Use Independent Commissions to Draw Districts: To avoid
gerrymandering, states can use independent commissions to adopt
congressional districts, rather than allowing the state legislature to redistrict
c. Candidates and Campaigns
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i. Candidate Qualification
1. Fee Must Note Preclude Indigents: States cannot charge candidates a
fee that makes it impossible for indigents to run for office
2. Restrictions on Ability to Be a Candidate: A ballot access regulation must
be a reasonable, nondiscriminatory means of promoting important state
interests. A state may require candidates to show reasonable support to
have their names placed on the ballot
ii. Campaign Funding: The government can allocate more public funds to the two
major parties than to minor parties for political campaigns
7. Right to Bear Arms: The 2nd Amendment protects the right of individuals to bear arms for self-
defense. This includes the right to keep a handgun at home and the right to carry a handgun in
public
a. Gun permits: For a gun permit to be constitutional, the criteria must be clear. A law that
gives an official discretion in granting permits in unconstitutional
i. A state cannot require someone who is applying for a concealed carry permit to
show they need it for safety, such a requirement is unconstitutional
b. Standard of Review: If a regulation burdens an individual’s right to keep and bear arms
then the government must justify the regulation by demonstrating it is consistent with
the country’s historical tradition of firearm regulation. Simply posting that the
regulation promotes an important interest is NOT sufficient
8. Right to Fair Notice: A fundamental principle of our legal system is that laws that regulate
people or entities must give fair notice of conduct that is forbidden or required. A regulation that
fails to give fair notice violates the Due Process Clause
9. Unspecified Rights
a. Intimate Sexual Conduct: The state has no legitimate interest in making it a crime for
fully consenting adults to engage in private intimate sexual conduct (for example
sodomy) that is not commercial in nature. While the court has not stated what standard
of review should be applied to such laws, it has indicated that they can’t even pass the
rational basis test because of the lack of a legitimate state interest
b. Right to Refuse Medical Treatment: The right of a mentally competent adult to refuse
medical treatment is part of an individual’s liberty under the 5th and 14th Amendment
Due Process Clauses. However, the Supreme Court has not ruled that this aspect of
liberty is a fundamental right and has not explained which standard of review should be
used
i. There is no fundamental right to physician assisted suicide
ii. States can compel vaccination against contagious diseases
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Equal Protection [64-69]

1. Equal Protection Clause of the 14th Amendment is limited to state action. An equal protection
claim arises whenever the government treats people differently from others
a. Equal Protection Clause is not applicable to the federal government, the Due Process
Clause of the 5th Amendment
2. Applicable Levels of Scrutiny: If a fundamental right or suspect classification (like race) is
involved, the strict scrutiny standard is used to evaluate the regulation; If a quasi-suspect
classification is involved (like gender), intermediate scrutiny is the applicable standard; If the
classification does not affect a fundamental right or involve a suspect or quasi-suspect
classification, the rational basis standard applies
3. Proving Discriminatory Classification: For a strict or intermediate scrutiny to be applied, there
must be intent on the part of the government to discriminate
a. Intent may be shown by:
i. A law that is discriminatory on its face
ii. A discriminatory application of a facially neutral law, or
iii. A facially neutral law with a disparate impact on a protected class of people
b. Note: The second and third ways to show intentional discrimination are the most
difficult prove. A discriminatory application or effect alone is NOT enough. The
legislature's discriminatory intent must be shown (for example by evidence of a history
of discrimination)
4. Suspect Classifications: Classifications are suspect if they are based on race, national origin, or
(at the state and local levels) alienage
a. Race and National Origin: Classifications based on race or national origin are judged by
strict scrutiny standard
i. School Integration: Intentional segregation violates the Constitution. If school
systems and attendance zones are established in a racially neutral manner, there
is no violation. Thus, there is no violation if housing patterns result in racial
imbalance in schools
1. Remedying Intentional School Segregation: If it's proven that a school
board has engaged in the racial districting of schools, the board must
take steps to eliminate the effects of that discrimination. If the school
refuses to do so, a court can order the school district to take all
appropriate steps to eliminate the discrimination, but the order cannot
go beyond the purpose of remedying the past effects of discrimination
ii. Benign Government Discrimination – Affirmative Action: Government action –
whether by federal, state, or local governmental bodies – that favors racial or
ethnic minorities is subject to the same strict scrutiny standard as is
government action discriminating against racial or ethnic minorities
1. Remedying Past Discrimination: The government has a compelling
interest in remedying past governmental discrimination against racial or
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ethnic minorities. The past discrimination must have been persistent

and readily identifiable. A race-based plan cannot be used to remedy
general past societal discrimination
2. When There is No Past Discrimination: Even where the government
hasn’t engaged in past discrimination, it may have a compelling interest
in affirmative action in limited contexts. However, remember that the
governmental action must be narrowly tailored to that interest
3. Diversity in Higher Education: In 2023, the Court brought the rule for
universities in line with the rule for lower public schools – having a
diverse student body is NOT an interest compelling enough to overcome
strict scrutiny
iii. Discriminatory Legislative Apportionment: If P can show that a redistricting
plan was drawn up predominately on the basis of racial considerations, strict
scrutiny is triggered, and the plan will violate the Equal Protection Clause unless
the government can show that the plan is narrowly tailored to serve a
compelling state interest
b. Alienage Classifications
i. Federal Classifications: Because of Congress's plenary power over aliens, federal
alienage classifications are NOT subject to strict scrutiny. Such classifications are
valid if they are not arbitrary and unreasonable
ii. State and Local Classifications: Generally, state/local laws on alienage
(citizenship status) are suspect classifications subject to strict scrutiny
1. Exception – Participation in Self-Government Process: If a law
discriminates against alien participation in state government (for
example, voting, jury service, elective office) the rational basis standard
is applied. The rational basis standard is also used for state and local
laws limiting certain non-elective offices involving important public
policy (for example, police officers, probation officers, and primary and
secondary schoolteachers)
iii. Undocumented Aliens are NOT a suspect classification. Thus, state laws
regarding them are subject to a rational basis standard
1. Denial of free public education to undocumented alien children has
been held to be invalid. Strict scrutiny does not apply, though the
Supreme Court has used language in its opinions evoking both the
rational basis and intermediate scrutiny standards
5. Quasi-Suspect Classifications: Classifications based on legitimacy and gender are quasi-suspect
a. Gender Classifications are reviewed under the intermediate scrutiny standard - must be
substantially related to an important government purpose
i. Burden of Proof: The government bears the burden of showing an exceedingly
persuasive justification for the discrimination
ii. Gender classifications based on role stereotypes are generally invalid, whereas
those designed to remedy past discriminations are more likely to be upheld
under intermediate scrutiny
b. Martial vs. Nonmartial Classifications of Children: Distinctions drawn between martial
and nonmarital children are also reviewed under the intermediate scrutiny – these must
be substantially related to an important government interest. Discriminatory
regulations intended to punish nonmarital children are invalid
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6. Other Classifications: All other classifications are evaluated under the rational basis standard.
These include age, disability, and wealth classifications
a. Animus Not Rational: If the government's only interest in denying a benefit to or
imposing a burden on a group of people is a dislike of them, the classification will not
meet rational basis review
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The Taking Clause

1. Taking Clause: The 5th Amendment provides that private property may only be taken (1) for
public use and (2) the government must pay just compensation. This rule is applicable to the
states via the 14th Amendment
a. Note: The Taking Clause is not a source of power for taking, but rather a limitation
b. Covered Property: Property subject to the Taking Clause includes personal property, real
property, and certain intangibles
2. Is There a Taking: The crucial issue is whether governmental action is a taking (requiring
payment of just compensation) or merely a regulation (not requiring compensation)
a. Confiscation or Occupation [Physical Takings]: A taking will be found if there is (1) a
confiscation of a person’s property or (2) a permanent or regular physical occupation of
a person’s property by the government
i. Temporary Occupations by the government may also be a taking, depending on
factors like the degree of invasion, the duration, the government’s intention, the
foreseeability of the result, the character of the property, and the interference
with the use of the property
ii. Exceptions
1. Development Exception: Municipalities often attempt to condition
building or development permits on a landowner’s (1) conveying title to
part of the property to the government, OR (2) granting the public an
easement to access the property. These conditions constitute a taking
unless (1) the government can show there is an essential nexus between
the condition and the proposed development and (2) the adverse impact
of the proposed development is roughly proportional to the loss caused
to the property owner from the forced transfer
2. Emergency Exception: A taking is less likely to be found, even for a
complete and permanent deprivation, if it’s made pursuant to a public
emergency, such as war
b. Use Restrictions (Regulatory Takings)
i. Denial of All Economic Value of Land – Taking: If a government regulation
denies a landowner of all economically viable use of their land, the regulation
amounts to a taking unless principles of nuisance or property law make the use
prohibitable
1. Temporary Denials of All Economic Use: Temporarily denying an owner
of all economic use of property does not constitute a per se taking.
Instead, the Court will carefully examine and weigh all the relevant
circumstances – the planner’s good faith, the reasonable expectations of
the owners, the length of the delay, the delay’s actual effect on the value
of the property, etc. – to determine whether fairness and justice require
just compensation
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ii. Decreasing Economic Value – Balancing Test: Generally, regulations that merely
decrease the value of property do not amount to a taking if they leave an
economically viable use for the property. The court will consider (1) the
government interest sought to be promoted, (2) the diminution in value to the
owner, and (3) whether the regulation substantially interferes with distinct,
investment backed expectation of the owner
3. Public Use Limitation Liberally Construed: If the government’s action is rationally related to a
legitimate public purpose, the public use requirement is satisfied. Authorized takings by private
enterprises are included if they work to the public advantage
4. Just Compensation is measured by the fair market value of the property taken at the time of
the taking, and it’s based on the loss to the owner. Increases in value to the owner’s remaining
property as a result of the taking are not considered
a. Inverse Condemnation: When the government acts under the power of eminent domain
to take property for public use, it will condemn the property and pay the owner just
compensation. When property is taken by occupation or regulation without
condemnation proceedings, the landowner can bring an action for inverse
condemnation. If the court determines that the government action amounted to a
taking, the government will be required to either –
i. Pay the property owner just compensation for the property, OR
ii. Terminate the regulation and pay the owner for damages that occurred while
the regulation was in effect
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Retroactive Legislation [76-77]

1. Contract Clause limits the ability of state and local governments to enact laws that retroactively
impair contract rights. It doesn’t affect contracts not yet made
a. Not Applicable to Federal Government: There’s no comparable clause applicable to the
federal government but flagrant contract impairment would violate the 5th Amendment
Due Process Clause
b. Impairment Rules
i. Private Contracts – Intermediate Scrutiny: Legislation that substantially impairs
an existing private contract is invalid unless the legislation –
1. Serves an important and legitimate public interest, and
2. Is a reasonable and narrowly tailored means of promoting that interest
ii. Public Contracts – Heightened Scrutiny: Legislation that impairs a contract to
which the state is a party is tested by the same basic test, but the legislation will
likely receive heightened scrutiny, especially if the legislation reduces the
contractual burdens on the state
2. Ex Post Facto Laws: Neither the states or the federal government may pass an ex post facto law,
which is a law that retroactively alters criminal offenses or punishments in a substantially
prejudicial manner for the purpose of punishing a person for some past activity
a. A statute retroactively alters a law in a substantially prejudicial manner if it –
i. Makes criminal an act that was innocent when done
ii. Imposes a greater punishment for an act that was imposed for the act when it
was done, or
iii. Reduces the evidence required to convict a person of a crime from what was
required when the act was committed
b. Note: Due Process Clause of the 5th and 14th Amendments similarly prohibits courts
from retroactively interpreting criminal laws in a unexpected and indefensible way
3. Bills of Attainder are legislative acts that inflict punishment of individuals without a judicial trial.
Both federal and state/local governments are prohibited from passing bills of attainder
4. Due Process Considerations: If a retroactive law does not violate the Contracts, Ex Post Facto, or
Bill of Attainder Clauses, it still must pass under the Due Process Clause – if a retroactive law
doesn’t substantially burden a fundamental right, it only needs to be rationally related to a
legitimate government interest
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Freedom of Speech and Assembly

1. First Amendment prohibits Congress from abridging the freedoms of speech and press,
interfering with the right of assembly, and from establishing a religion or interfering with the free
exercise of religion. These prohibitions are applicable to the states through the 14th Amendment
2. Speech includes words, symbols, and expressive conduct
a. Expressive conduct is any kind of conduct that is either inherently expressive, or conduct
that is (1) intended to convey a message, and (2) reasonably likely to be perceived as
conveying a message
3. Unprotected Speech: Some categories of speech lack 1A protection and may be censored.
Certain categories (defamation and commercial speech) only receive partial protection. All other
types of speech are protected speech
a. Incitement: Speech can be censored as incitement if it is (1) intended to produce
imminent lawless action and (2) likely to produce such action
b. Fighting Words: Speech can be censored if it constitutes fighting words (personally
abusive words that are likely to incite immediate physical retaliation in an average
person) Words that are merely annoying won't be sufficient
i. True Threats: 1A does not protect true threats, which are words that are
intended to convey to someone a serious threat of bodily harm. To qualify as a
true threat, the speaker must have had some subjective understanding that
their threats were of a threatening nature, but a mental state of recklessness is
sufficient (the speaker is aware that others could regard the statements as
threatening violence and delivers them anyway)
ii. Statutes Cannot be Viewpoint Based: Even though fighting words are
unprotected, the Supreme Court won't allow fighting words statutes that are
designed to punish only certain viewpoints (for example prohibiting only fighting
words that insult on the basis of race, religion, or gender)
c. Obscenity: Obscene speech is not protected
i. Elements: Speech is obscene if it describes or depicts sexual conduct specified
by statute that, taken as a whole, by the average person:
1. Appeals to the prurient interest in sex, using a contemporary community
standard
2. Is patently offensive under contemporary community standards, AND
3. Lacks serious value (literary, artistic, political, or scientific) using a
national, reasonable person standard
ii. Private possession of obscene material in the home cannot be punished (except
for the possession of child pornography) However, the protection does NOT
extend outside the home
iii. Child Pornography: To protect minors from exploitation, the government may
prohibit the sale or distribution of visual depictions of sexual conduct involving
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minors, even if the material would not be found obscene if it did not involve
children
1. Simulated Pictures of Minors: The government can’t bar visual material
that only appears to depict minors engaged in sexually explicit conduct,
but that actually uses young-looking adults or computer-generated
images
iv. Obscenity Standard May Be Different for Minors: The state can adopt a specific
definition of obscenity applying to materials sold to minors, even though the
material might not be obscene in terms of an adult audience. However, the
government can’t prohibit the sale or distribution of material to adults just
because it’s inappropriate for children
v. Land Use Regulations: A land use (or zoning) regulation may limit the location or
size of adult entertainment establishments if the regulation is designed to
reduce the secondary effects of such businesses (for example, to protect
children and unwilling adults from exposure, or to prevent neighborhood crime
and decay). However, these regulations can’t ban such establishments
altogether
vi. Liquor Regulation: Under the Twenty-First Amendment, states have broad power
to regulate intoxicating beverages. Laws relating to this power that affect free
speech rights generally will not be set aside unless they are irrational
d. Defamatory Speech: Defamatory statements can be subject to tort liability. If the
defamatory statement is about a public official or public figure or involves a matter of
public concern, the First Amendment requires the plaintiff to prove all the elements of
defamation plus falsity and some degree of fault in order to recover
i. Public Official or Figure Suing: If the plaintiff is a public official or figure, then
regardless of whether the defamation is on a matter of public or private
concern, the degree of fault the plaintiff must show is actual malice
ii. Actual Malice: To show actual malice, the plaintiff must prove by clear and
convincing evidence that the alleged defamatory statement was made with (1)
knowledge that it was false, OR (2) reckless disregard as to its truth or falsity
iii. Public Officials: Public officials include people (1) holding or running for elective
office (at any level), and (2) public employees in positions of public importance
(for example, prosecutor, school principal, police officer)
iv. Public Figures: Public figures are people who have (1) assumed roles of
prominence in society, (2) achieved pervasive fame and notoriety, or (3) thrust
themselves into particular public controversies to influence their resolution
v. Matters of Public Concern: Matters of public concern are issues important to
society or democracy. The courts decide on a case-by-case basis whether the
defamatory statement involves a matter of public concern, looking at the
content, form, and context of the publication
vi. Private Figure Suing on Matter of Public Concern: If the plaintiff is a private
figure and the defamatory statement involves a matter of public concern, the
plaintiff can only recover actual damages if the plaintiff only shows negligence.
To recover punitive damages or presumed damages they need to show actual
malice
1. If the plaintiff is a private figure suing on a matter of private concern,
then the First Amendment is not involved. These plaintiffs can recover
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for any damages that state law allows, even if they can’t show actual
malice
vii. Intentional Infliction of Emotional Distress: The Supreme Court has required
proof of actual malice for recovery under the torts of intentional infliction of
emotional distress and other torts (for example, invasion of the right to privacy)
where the plaintiff is a public figure or official, or where the speech is on a
matter of public concern
e. Some Commercial Speech: Commercial speech (that is, advertisements, promotions of
products and services, brand marketing) is NOT protected if it is (1) false, (2) misleading,
or (3) about illegal products or services
i. Any other regulation of commercial speech will be upheld only if it:
1. Serves a substantial government interest
2. Directly advances that interest, AND
3. Is narrowly tailored to serve that interest
ii. Complete Bans: Complete bans on truthful advertisement of lawful products are
very unlikely to be upheld due to a lack of a legitimate government interest
iii. Required Disclosures: The government may require commercial advertisers to
make disclosures if the disclosures are not unduly burdensome and they are
reasonably related to the state’s interest in preventing deception
4. General Speech Restrictions: Speech and assembly regulations can generally be categorized as
either content-based or content-neutral
a. Content-Based Regulations are subject to strict scrutiny, and they are presumptively
unconstitutional (unless they fall within one of the categories unprotected speech like
obscenity) A regulation is content-based if it restricts speech based on the subject matter
or viewpoint of the speech
b. Content-Neutral Regulations (restrictions that are both subject matter neutral and
viewpoint neutral) are subject to intermediate scrutiny – they must advance important
interests unrelated to the suppression of speech and must not burden substantially
more speech than necessary (narrowly tailored) to further those interests
i. These are often in the form of time, place, and manner
5. Speech Restrictions on Government Property
6. Speech Restrictions in Public Schools
7. Speech in Public Employment
8. Overbreadth, Vagueness, and Prior Restraints
9. Freedom of the Press
10. Government Speech and Government Compelled Speech
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Freedom of Religion
1. Free Exercise Clause prohibits government from punishing someone on the basis of their
religious belief or related religious status or conduct
a. Religious Beliefs: For First Amendment purposes, a religious belief includes the tenets of
traditional religions, as well as beliefs that play a role in the life of believers similar to the
role that religion plays in the life of traditional adherents
i. When deciding whether a person holds a religious belief or whether the belief
qualifies as religious, courts can question the sincerity of a person’s belief, but
NOT the truthfulness of the belief
ii. Note: The Supreme Court has never held that an asserted religious belief was
not religious for First Amendment purposes
b. Discriminatory Laws Subject to Strict Scrutiny: A law or other government conduct that
discriminates on the basis of religion is subject to strict scrutiny. A law is discriminatory
if it is either –
i. Not neutral on its face (the law expressly provides favored or disfavored
treatment based on religious belief, conduct, or status), OR
ii. Factually neutral but not generally applicable (the law is silent with regard to
religion but, by design, it targets religion generally or a religion in particular)
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1. A law that is facially neutral and generally applicable is NOT subject to

the Free Exercise Clause. The Free Exercise Clause cannot be used to
challenge government action unless the action was specifically designed
to interfere with religion
iii. A law that gives government officials discretion to grant exemptions from the
law is NOT applicable. So, if someone seeks an exception from such a law on
religious grounds and the government refuses to grant the exception, that
person can challenge the denial on Free Exercise Clause grounds. Strict scrutiny
applies
c. No Religious Exemptions Required: The Free Exercise does NOT require religious
exemptions from generally applicable governmental regulations that happen to burden
religious conduct (a law that regulates the conduct of all people can be applied to
prohibit the conduct of a specific person despite the fact that their religious beliefs
prevent them from complying with the law). But granting an exemption to accommodate
religious exercise would not violate the Establishment Clause
i. Exception – Ministers: Religious organizations must be granted an exemption
from suits alleging employment discrimination by ministers against their
religious organizations. Imposing an unwanted minister would violate the Free
Exercise Clause, and allowing the government to determine who will minister
within a faith would violate the Establishment Clause. This exception extends to
the head of the congregation and others who are in any position considered to
be ministerial
ii. Exception – Unemployment Compensation Cases: If a state’s unemployment
regulations allow people to refuse work for good cause, then the state cannot
refuse to grant unemployment benefits to people who quit their jobs for
religious reasons. The worker doesn’t need to belong to a formal religious
organization as long as the belief is sincere
iii. Exception – Right of Amish Not to Educate Children: The Supreme Court has
granted the Amish an exemption from a law requiring compulsory school
attendance until age 16, based on the Free Exercise Clause and the fundamental
right to educate one’s children

iv. Federal Statutory Exemption [Outside the Scope of Exam]: The federal
Religious Freedom Restoration Act allows a person to challenge federal laws of
general applicability as burdening their religious beliefs and practices, and strict
scrutiny is applied in actions brought under the fact. However, RFRA is statutory
in nature and is outside the scope of a constitutional law question
d. A state may not limit eligibility for a generally available governmental benefit to
nonreligious organizations. Even if a state is not required to create a benefit, if it
chooses to do so, it may not exclude an otherwise qualified individual or institution from
receiving the benefit based solely on the basis of their religious status – there is no
compelling interest that would justify the exclusion. Thus, if a state provides textbooks
to secular private schools, it must provide the same benefit to otherwise eligible
religious private schools
2. Establishment Clause prohibits government sponsorship of religion, meaning the government
cannot aid or formally establish a religion. Like the Free Exercise Clause, it compels the
government to pursue a course a neutrality toward religion
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a. Neutrality: The government must remain neutral with respect to religion, neither
favoring nor disfavoring it
b. Coercion Prohibited: The government may not directly or indirectly coerce individuals to
exercise (or refrain from exercising) their religion
c. History and Tradition Approach: The Court has often stated that the Establishment
Clause must be interpreted by reference to historical practices and understandings.
Religious practices and displays that have been around for a long time tend to get
upheld because the Court sees them as a tolerable acknowledgement of the role that
religion has played in the history and tradition of this country. The Court also looks at the
time when the Constitution was first adopted and tries to determine what the Founders
intended to prevent by adopting the Establishment Clause and what they would have
deemed acceptable
d. Types of Cases: The Establishment cases can be grouped into 4 categories – (1) cases
preferring one religious sect over others, (2) a limited group of cases unconnected to
financial aid or education, (3) cases involving financial aid to religiously affiliated
institutions, and (4) cases concerning religious activities in public schools
i. Sect Preference: Government action that prefers one religious sect over another
violates the Establishment Clause, at least if such favoritism is not necessary to
achieve a compelling interest
ii. Cases Unconnected to Financial Aid or Education: A law favoring or burdening
religion of a specific religious group will be invalid (i.e., exempting only
traditional religions from state registration requirements); but a law favoring or
burdening of a large segment of society that happens to include religious groups
will be upheld (i.e., like Sunday closing law)
iii. Cases Involving Financial Benefits to Religious Institutions: A statute
authorizing governmental aid to a religiously affiliated institution MUST be
neutral toward religion –
1. Recipient Based Aid: A neutral benefit program (i.e., school tuition
assistance) is valid even if, as a result of the independent choices of
private benefits recipients, it allows public funds to be directed to a
religious organization (such as a religious private school)
2. Aid to Grade Schools and High Schools: Programs of aid to grade schools
or high schools are subject to the same test as all other laws under the
Establishment Clause
a. Most of the time, programs that include both religious and
secular private schools will be valid
b. If a state subsidizes private education, it cannot deny the same
funding to religious schools. Treating religious private schools
the same as non-religious private schools does not violate the
Establishment Clause and is required by the Free Exercise Clause
iv. Religious Activities in Public Schools: School sponsored religious activity is
invalid, but school accommodation of religion may be valid
1. If a public school allows members of the public and private organizations
to use school property when classes are not in session, it cannot deny a
religious organization permission to use the property for meetings
merely because religious topics will be discussed
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