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details the judicial powers
What does the Federal judiciary have power over per Article III
- Cases and controversies:
- -Arising under the Constitution, laws, or treaties of the United States
- -of admiralty and maritime jurisdiction
- -in which the United States is a party
- -between two or more states
- -between a state and citizens of another state
- -between citizens of different states
- -between citizens of the same state claiming lands under grants of different states
- -between a state or citizens thereof and foreign states, citizens, or subjects
Marbury v. Madison
established judicial review of the Constitutionality of the actions of other branches of government - it is the "province and duty of the judiciary to declare what the law is"
Supremacy Clause - Article IV
The Constiution, Laws, and Treaties of the United States take precedence over state laws
What are the two types of Federal Courts?
Article III - the usual courts
Article I -hybrid courts that perform both administrative and judicial functions
What types of jurisdiction does the Supreme Court have?
When does the Supreme Court have original jurisdiction?
In all cases affecting ambassadors, other public ministers and Consuls, and those in which a state shall be a Party.
What are the two methods for invoking Federal Appellate jurisdiction
- Appeal - if jurisdiction is mandatory
- Certiorari - if appeal is discretionary
Where may the Supreme Court receive writs of certiorari from?
- From the highest state courts where:
- --constitutionality of a federal or state law is called into question
- -- alleged conflict between state law and federal law
- cases from federal appellate courts
What are the 3 predicates to federal jurisdiction?
requirement of ripeness
plaintiff must have already been harmed or be under threat of immediate harm
is the harmful situation concluded?
exception to mootness
- Capable of repetition but evading review
- -- Roe v.Wade -
- -- issues of short duration
- -- the defendant is voluntarily stopping, but is free to resume it
- class actions
What are the basic elements of standing?
- Injury in fact
How can injury in fact be established in the context of standing to sue in federal court?
- injury need not be economic
- must be concrete and particularized
When may a third party sue on another's behalf (when do they have standing?)
In which First Amendent/pledge of allegiance case did the party suing lack standing?
Elk Grove v. Newdow
What is the general rule regarding taxpayer standing?
- Generally, there is no taxpayer standing
- But,if the spending clause is being used in violation of the First Amendment, there is the possibility of standing
When do legislators have standing?
If they have personal stake and suffer concrete injury
Is there a possibility of Citizenship standing?
Probably not - per Lujan v. Defenders of Wildlife
What does the Eleventh Amendment bar?
- Actions against state governments for damages
- Actions against state governments for injunctive or declaratory relief where the state is named as a party
- Actions against state government officers where the effect of the suit will be that retroactive damages willbe paid from the state treasury or where the action is the funcitonal equivalent of a quiet title action that would divest the state of ownership of land
- Actions against state government officers for violating state law
What does sovereign immunity bar?
- suits against a state government in state court, even on federal claims,without the defendant state's consent
- adjudicative acctions against states and state agencies before federal administrative agencies
What is one way that Congress has removed immunity
Under the Fourteenth Amendment -to prevent discrimination, Congress may abrogate states' immunity
May Congress abrogate state power under the Eleventh Amendment?
No - Seminole Tribe v. Florida
Generally, when are the 3 times in which it will be permissible for a state to be sued in Federal Court
- When the state has consented to suit
- When the plaintiff is the United States or another state
- When Congress has clearly abrogated the state's sovereignty under the Fourteenth Amendment
What was the holding of McCullough v. Maryland?
Congress could charter banks because it was a necessary and proper exercise of its power to tax, borrow money, and regulate commerce.
What is the limit on the necessary and proper clause?
- It may only be used to accomplish those ends already enumerated in the Constitution
- Congress may not use it to adopt a law that is prohibited by another provision of the Constitution
Are export taxes permitted?
Where can Congress's spending power be found?
US Const, Article I, Section 8
When may Congress exercise its spending power?
When it is for the "common defense and the general welfare" - any public purpose
Can Congress regulate through the spending power?
Yes, even if it does not otherwise have power to legislate in the area
What is the Constitutional text of the Commerce Clause?
Congress has the power to regulate commerce with foreign nations, indian tribes,and among the several states.
What constitutes commerce?
- Interstate transportation (commercial or not)
- Basically all activity affecting two or more states (Gibbons v. Ogden)
Is transportation part of commerce?
Yes - it is part of the lanes of commerce
Wickerd v. Fillburn
- Substantial effects on interstate commerce
- cumulative effects
What three areas are Congress' Commerce power limited to?
- Channels of commerce
- Instrumentalities of commerce
- Activities that have a substantial effect on interstate commerce
May Congress delegate its legislative power to executive officers and administrative agencies?
Yes -Schechter Poultry v. United States
What powers cannot be delegated?
Those that are specifically confined to Congress
Congress may only delegate its power if it does so with a ______ standard for the delegate to follow.
Which article of the constitution details the executive power?
May the president appoint inferior officers?
Yes, ambassadors, public ministers and consuls, judges of the Supreme Court, all other officers of the United States -with the advice and consent of the Senate
Is a special prosecutor an inferior officer?
Yes, Congress may vest the judiciary with the power to appoint him - Morrison v.Olson
May Congress appoint inferior executive officers?
No -but it may appoint officers for regulation of internal legislative matters
When may the President remove inferior officers?
- At will-most high level officers
- Unless Congress has placed restrictions on the removal
- Morrison v. Olson
When/how may Congress remove inferior executive officers from office?
By impeachment (not by legislation)
When is it inappropriate for Congress to give executive power to an appointee?
When the appointee is removable by Congress
May the president line-item veto a bill?
No - Clinton v. City of New York
What are the three areas of presidential power described by justice Jackson in Youngstown?
- When he acts with the express or implied authority of Congress -highest ebb
- When Congress is silent and the President acts - probably OK as long as he doesn't infringe on another branch's power
- where the president acts against the express will of Congress -lowest ebb
What powers does the President have in the realm of foreign affairs?
- To commit troops to hostilities
- To negotiate treaties (w/advice and consent of Senate) to enter into executive agreements
When does a treaty become law?
When it is approved by 2/3 majority in the Senate
What are the two types of treaties
What is a self-executing treaty?
When it does not require any action from Congress to be implemented
What is a non-self-executing treaty?
One that requires extra action from Congress to be implemented
Medellin v. Texas
The President could not, by entering into a treaty, make international law binding on the states (that is the equivalent of performing a legislative function), hence the Vienna Convention was not applicable to the state court proceedings.
Does Presidential immunity extend to actions before he took office?
No -Clinton v. Jones
Who is subject to impeachment?
- Vice President
- all civil officers of the US
Why can these officers be impeached?
- high crimes
States have all powers not prohibited to them by the Constitution
When state and federal ___ are in conflict, ____ law is _______.
laws, Federal, supreme
What types of preemption are there?
- ---field - no room for the states to supplement the federal power/regulation
- --- conflict preemption - where it is impossible to comply with both state and federal rules or where the state rule stands in the way of the exercise of Federal power
May the states impose additional qualificaitions for Federal legislators?
No - Terms limites inc. v. Thornton
What are the Constitutional limits on states' power to regulate commerce?
- It may not
- unduly burden interstate commerce
- discriminate against interstate commerce
Who may regulate foreign commerce?
When Congress has not made a law regarding a type of commerce that is debatably interstate, what power arises?
the "Dormant Commerce Clause"
If a state were to be willing to sell its natural resources to anyone, but restrict the processing of that resource to in-state, would it be an unconstitutional restriction on interstate commerce?
Yes - South-Central Timber Development, Inc. v. Wunnicke
A state law cannot prohibit out-of-state customers from buying in-state products, but
if the state itself owns a resource, it may restrict access to the resource to in-state residents - Cofield v. Coryell (MA oysters)
A discriminatory state or local law may be valid if
- it furthers an important, noneconomic state interest
- there are no reasonable alternatives available
May a state prefer its own citizens if the state is the one buying or selling products, hiring labor, or giving subsidies?
Yes, under the market participant theory
May states generally prohibit private landfills from accepting out-of-state waste?
No - Oregon Waste Systems
When might states be allowed to discriminate against out-of-state waste?
- Nuclear waste -
- Hazardous wastes -
If a state were to favor practices encouraging waste haulers to bring waste to state owned-facilities instead of private facilities, would it be unconstitutional discrimination against interstate commerce?
No - waste disposal is a traditional government function (United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Management Authority)
South Dakota v. Dole
- While the states have the power to regulate the drinking age,
- The Federal government may use its spending power to encourage states to have a certain drinking age
When are the two instances in which a state law that is discriminatory against interstate commerce might be valid?
- 1) when the state law furthers an important state interest and there are no reasonable nondiscriminatory alternatives
- 2) when the state is a market particpant
Hamdi v. Rumsfeld
- Enemy combatant caught in Afghanistan
- Not totally denied the ability to contest factual basis for his detention, but
- Because it happened during an ongoing miltary conflict, it was ok to tailor the process
How is the First Amendment freedom of religion applied to the states?
Through the Fourteenth Amendment
The government may regulte action only, but not belief
What constitutes a religious belief?
Anything that occupies a place parallel to that of a belief in God - United States v. Seeger
May the government find a belief to be false?
No - it may only inquire if it is sincerely held - United States v. Ballard
Church of the Lukumi Bablu Aye, Inc. v. Hialeah
- A law may not single out religious conduct specifically for prohibition
- The law in this case
- Was not a law of general applicability
- It did not further a compelling interest
May a state refuse to give scholarships to those pursuing religious degrees?
Yes - Locke v. Davey
When have religious beliefs been held not to be exempt from laws of general applicability?
- Using peyote - Employment Division v. SmithSchools that discriminate on the basis of race denied tax exempt status - Bob Jones University v. United StatesCompliance with Federal minimum wage laws
- Payment of social security taxes
- Sales and use taxes
May a state refuse unemployment benefits to one who is unemployed because she refused to work on Sabbath?
No - Sherbert v. Verner
Wisconsin v. Yoder - Why were the Amish granted an exception from the generally applicable school-age laws?
- Because there was no demonstrated harm to the children
- The state did not have a compelling interest in requiring the final two years of high school
What is the Lemon test?
- secular purpose
- primary effect that neither helps nor hinders religion
- no excessive entanglement with religion
When is the Lemon test applied?
when there is suspected establishment of religion
How is it determined if a Ten Commandment display is Constitutional or not?
Whethe or not the display's primary purpose is religious. - if it is part of a larger display, it is probably OK
What kind of "holiday" displays are Constitutionally permissible?
- It depends:
- Where is the display?
- What is part of the display?
- apply the Lemon test
If aid is given to a class of people, not dependent on religion, but it allows it to be used for religious training, it it a violation of the Establishment Clause?
No - a blind student was allowed to use his scholarship to go to a religious instution to become a missionary
If aid is given on an individual basis, may that individual use it to go to a religious school?
Yes - public school district funds could be used for a sign language interpreter for a deaf child who went to a religious school
Suppose that school vouchers were given to parents of poor children, and those vouchers could be used at private schools or public schools out of the area, is that constitutional?
Yes, private choice makes the difference, it is direct aid to individuals
Is a tax deduction for parents who send their children to private schools constitutional?
It depends - the deduction may not be restricted to those parents who send their children to religious schools
In determining whether or not a religious school may receive aid, what test should be used?
The Lemon test
What kinds of aid have been upheld?
- textbooks given to all students
- secular materials given to all schools
- transportation to and from school for all students
When has aid to religious schools been invalidated?
Paying the salaries of teachers at private schools
May religious instruction be given in a public school facility during normal school hours by a non-school employee?
No - McCollum v. Board of Education
Does a concurrent resolution have the force of law?
May students be "shipped" off campus to attend religious trainings?
Yes - Zorach v. Clauson
If students wish to meet after school for religious purposes on-campus, it it constitutionally permissible?
Yes - as long as the public school allows all organizations, whether religious or not, to use the facilities in such a manner - Good News Club v. Milford Central School
Is the Second Amendment right to bear arms an individual right?
Yes - District of Columbia v. Heller
What are three interpretory rules to use when reading the Constitution?
- plain meaning
- how have the states interpreted it
- what did the words mean at the time of the writing?
McDonald v. City of Chicago
the Bill of Rights (fundamental rights) is applicable to the states
The Declaration of Independence is ______ into the Constitution by ________.
Calder v. Bull
- No ex-post facto laws
- natural law reasoning
What are the four main interpretations of the establishment clause?
- No national church
- Wall of separation - Lemon test
- No endorsement
- Exclusionary view
What are the essential factors that a proponent of the "no national church" view would look at?
Is school prayer allowed?
No - Lee v. Weisman - even a religion-neutral prayer is not allowed because of the possibility of "coercion"
What was the holding in Capitol Square v. Pinette regarding the KKK's cross in the square?
The square was typically a public forum, so there is no imprimatur of state approval on the display. It would be understood to be a purely private display.
What is the rule drawn from Capitol Square?
- Religous displays do not violate the establishment clause where:
- 1) they are purely private
- 2)it occurs in a public forum (traditionally understood as a public forum and generally open to all)
Could a student publication be excluded from generally available funding because it was a religious publication?
No - Rosenberger v. Rector - the funds didn't go directly to the religious publication, but to the student organization
What were the two keys to the holding in Reynolds?
- It was a law of general applicability
- It was in the state's interest to maintain good order
What are the three levels of review?
- 1)strict scrutiny
- 3)rational basis
Strict scrutiny level of review
- 1) fundamental rights
- 2) burden on the state
- 3) state must show
- a) compelling government interest
- b) narrowly tailored to further that interest
intermediate level of review
- 1) important rights
- 2) burden is on the state
- 3) state must show
- a) important state interest
- b) law must be closely drawn
rational basis review
- 1) most laws (of general applicability)
- 2) burden on plaintiff
- 3) plaintiff must show
- a) no legitimate government purpose
- b) interest cannot be reasonably be believed to be furthered by the law
What have the cases regarding literature distribution decided?
- Door-to-door distribution was not ok --> public safety concern
- Children selling materials not ok --> child-labor laws compelling state interest
- General prohibition on distributing leaflets in public --> not ok
Law of _________ a_______ do not need to accomodate you if such accomodation is __________ to society.
general, applicability, harmful
Did Sunday closing laws impose an unconstituional burden on the free exercise of religion?
No - it was an indirect burden - Braunfield v. Brown
Was Sherbert considered to be a direct restriction on religion?
What test was applied to the decision in Employment Division v. Smith?
City of Boerne v. Florida
- Church denied building permit because local zoning law prohibited the tearing-down of historical buildings
- RFRA exceeded Congress’ power because the court deemed that the act defined the scope of the rights granted in the Constitution
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal
Applied the RFRA strict scrutiny test to prohibiting the importation of hallucinogenic tea, but the government failed to prove a compelling interest
What was the effect of RFRA?
It required the strict scrutiny test to be applied to laws affecting religion.
What are three exceptions to strict separation of powers?
- Executive appoints judicial officers and the legislature affirms
- Executive veto power (legislative power)
- Only Congress has the power to declare war – executive power
- Presidential treaties at the advice and consent of the senate– both executive and legislative
Which court does the Constution require?
The Supreme Court - all other lower courts are discretionary.
Does the Constitution require a certain number of judges?
Case or controversy – Prudential requirements
- Not 3rd party rights
- Not just taxpayer or citizen suits
- Zone of interest
- There is no general standing on the part of Members of Congress (although an individual member may have standing)
In the case of a man suing a city for the police's use of a choke-hold, what would be the outcome?
He would not have standing, because the injury was not redressable (Lyons v. Los Angeles)
What is an example of a case that used the "capable of repetition yet evading review" concept of standing?
Roe v. Wade
When may a third party bring a claim for another?
- When there is a special relationship between the two (Ex. Parents, Doctors)
- When it is an organization asserting the rights of its members (ex. HOA's)
How is the overbreath doctrine applied?
Standing may be established if a statute that is valid when applied to my particular situation, but is not valid as to other individuals due to overbreadth
Did Arizona taxpayers have standing to sue for the tax exemption for conributions to school tuition organizations?
What rule was established by Flast v. Cohen regarding taxpayer suits?
- Nexus between Π’s taxpayer status and “precise nature of the constitutional infringement alleged.”
- Only applied to establishment clause cases – particularized injury does not need to be proven
Is a tax credit the same as a tax expenditure?
No - because it leaves the individual taxpayer with the ability to chose
How did the State in Massachusetts v. EPA establish standing?
As the landowner of almost all of the state's coastal land, it would be injured if global warming caused rising sea levels.
What two questions must be asked when determining ripeness?
- How severe of a hardship would occur if review is denied?
- ---Foregoing action he or she contends I lawful or risking likely prosecution
- ---When the enforcement of a statute or regulation against the Π is certain and imminent
- ---Collateral injuries
- Fitness of the issues and record for judicial review (usually more questions of law than fact are ripe)
What is the requirement of mootness?
that the case or controversy be live throughout the entire litigation
What are some exceptions to mootness?
- When collateral injury remains
- Wrongs capable of repititon yet evading review
- When the defendant voluntarily ceases the activity, but may resume at any time
- Class actions
In the context of mootness, what is an example of collateral injury?
See Camreta v. Greene - review of such immunity questions could be beneficial
Three holding points of Ex Parte McCardle
- Appellate powers are given by the constitution and are regulated by the judicial act
- The power to make exceptions to the appellate jurisdiction of the Supreme Court is expressly given to Congress
- If a court has no jurisdiction, then it must dismiss the case
May Congress limit the jurisdiciton of lower courts?
Yes - Congress even has the power to establish the lower courts
The judiciary has neither the power of the _______ nor the ________.
Marbury v. Madison
established the principle of judicial review
Are state officials bound by the Constitution?
Yes - Cooper v. Aaron
What are the two things required for a bill to become law?
- Pass house and senate
- per INS v. Chada
What is a non-justicable political question?
An issue which the Constitution says must be decided by a branch other than the judiciary.
What are the two types of spending measures that Congress may pass?
- Authorization - the President may spend
- Mandate - the President must spend
When may the President refuse to comply with a Congressional spending mandate?
When he believes the spending to be unconstitutional
May a Congressional appointee appoint an executive -type officer?
What does the War powers act require of the President?
- That he give notice to Congress of action 48 hours after doing so
- That he withdraw within 30 days after the 60 day period if Congress does not declare war
What did the War Powers Act authorize?
The President may commit troops to hostilities anywhere in the world for up to 60 days without a declaration of war from Congress
Was the taking in Youngstown Steel eventually allowed? Why(not)?
No, because there was not a sufficient nexus between the production of steel and the conflict in Korea
Who may remove executive officers appointed by the President?
What was the office at issue in Myers v. United States?
Postmaster - an at-will job
Humphrey’s Executor v. United States addressed which office?
FTC director - a quasi-legislative position
Was President Roosevelt allowed to remove the director of the FTC at will in Humphrey's Executor?
No - because it was quasi-legislative and the laws said that the director could only be removed for cause
Why didn't executive privilege apply in United States v. Nixon?
because it was a criminal proceeding for something that was not done in performance of the President’s duties
What are the four levels of deference applied to administrative agencies?
- (ACMS) most deferential --> least deferential
What are the components of Auer deference?
- In the case of agency regulations
- The court is to defer to the agency’s interpretation
What are the components of Chevron deference?
- If the statute is unambiguous -->language of the statute prevails
- If the statute is ambiguous -->If the agency’s interpretation is one of many reasonable interpretations of the statute, then there is deference to the agency’s decision
What is Mead deference?
The ability to “fill in” ambiguities must be within the power that Congress has delegated to the agency
What is Skidmore deference?
IF the argument is persuasive and reasonable, then the court might buy into it
In Gonzalez v. Oregon, did the Court find that the Attorney General had the power to prohibit assisted suicide under the CSA?
No - the court found improper delegation
What is a joint resolution?
- Essentially the same as a bill
- Must pass both houses
- Signed by President
- Force of law
What is a concurrent resolution?
A resolution passed by both houses, but not signed by the President (no force of law)
U.S. v. Curtiss-Wright
It was OK for Congress to delegate a Commerce Power (regulation over foreign exports) to the President, because the executive branch has supremacy in international affairs.
Under the War Powers Act, when must the President notify Congress of comitting troops to hostilities?
48 hours after doing so
Per Boumedine v. Bush
Congress and president are limited by Constitutional habeas requriements when the person is being detained on US soil, but not necessarily off US soil
enemy combatants captured on US soil are not necessarily entitled to all Constitutional protections
Hamdan v. Rumsfeld
Presidential authority over detainees must defer to Congress
The president may detain enemy combatants that are on US soil
Which sections within Article I describe Federalism?
- Section 8 – describes the powers of the gov’t (in a limited fashion)
- Section 9 – limits the power of the Federal government
- Section 10 –limits the power of the States
What are some "fields" where the federal government has pre-empted state regulation?
- immigration - Hines v. Davidowitzmaritime law - United States v. Locke
Can federal law pre-empt state suits where a manufacturer has had its device FDA approved?
Yes - Reigel v. Medtronic
Wyeth v. Levine was an example of _____ preemtion.
Conflict preemption, but it was not actually found, because the company could comply both with state duties of care and Federal law, the Federal law simply set a minium labeling requirement, but still allowed companies to strengthen their warnings
In the case where Federal law required automobiles after certain years to have air bags, was state suit based on a car that was older precluded?
Yes - Geier v. American Honda
What was the factual background of Chamber of Commerce of the US v. Whiting?
- AZ required that state employers who knowingly or intentionally employ illegal aliens have their licenses suspended or revoked
- They also required all state employers use e-verify to make sure that all of their employees are legally authorized workers
What did the court find in Chamber of Commerce of the US v. Whiting?
- (no express preemption) The text of the federal statute allows states to impose civil or criminal penalties only through licensing and similar laws
- (no implied preemption) Arizona’s laws simply implement the sanctions that Congress expressly allowed the states to retain
- States could require their employers to use E-verify, as long as they did not make the transaction too burdensome
- The AZ act also included anti-discrimination language
What was the factual issue in Gibbons v. Ogden?
Ogden sued Gibbons in order to get an injunction against him to keep him from operating a steam ship on the waters within the state (because he wanted the exclusive right to operate steam ships in the state to belong to Livingston and Fulton) even though he was properly licensed to operate the ships (under Federal Rules)
What did the court hold in Gibbons v. Ogden?
That the transportation of people on the NY waterways was interstate commerce within the scope of the Commerce Clause
May the government regulate activity that is wholly intrastate?
Yes, if it has a substantial effect on interstate commerce
E.C. Knight and sugar
simple manufacturing is not "commerce"
Did the subject matter in the Lottery case come within the Commerce power?
Yes, but it was probably not constitutional
United States v. Lopez
Ruled the Gun-Free School Zone Act an unconstitutional exercise of Commerce Clause power because there was no statutory connection with the guns carried onto school grounds with interstate commerce
Is violence against women an activity that affects interstate commerce?
No - United States v. Morrison
Gonzalez v. Raich and MMJ
- Said that the MMJ is bound to be sold in interstate markets specifically because it is legal in CA
- This fact was based on Congress’ findings that there is an interstate drug trade and the private use/cultivation would encourage the illegal drug trade
What are the two possible ways a state might interfere with interstate commerce?
- facially discriminatory laws --> per se invalid
- not facially discriminatory, but has an effect --> Pike balancing test
- ---If the burden imposed on such commerce is clearly excessive in relation to the putative local benefits --> invalid
Was it permissible for the state of PA to require that a PA licensed pilot navigate a ship in the waters of its harbor?
Yes - the law is regulating health and safety - per Cooley v. Board of Wardens
Was New York permitted to restrict wine sales to only NY distributors?
What does the Tenth Amendment say?
The powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people
If a state is exercising a "traditional state function" may the federal government regulate it?
It depends - the term "traditional state function" has been determined to be an unworkable standard
What is "process federalism"?
The idea that state's rights are sufficiently protected by the respective representatives in Congress.
Did the Brady Handgun act involve unconstitutional comandeering of State officers?
Yes - even assuming that the act is valid under the Commerce Clause, it was not a "proper" exercise of Federal power to force the state officers to perform the Federal Government's tasks
What are the four limitations on the spending power outlined in South Dakota v. Dole?
- 1) it must be in the pursuit of the general welfare
- 2) the terms of receiving federal funds must be unambiguous
- 3) The condition placed on recieving funds must be related to the Federal interest
- 4) the exercise of the spending power must not be barred by some other area of the Constitution
May the Fed. impose punitive damages on the states?
When may Congress abrogate states' sovereign immunity?
In cases of equal protection
What areas of speech that are outside of the First Amendment?
- Fighting words
- True threats
- Incitement to imminent illegal activity
In regard to incitement to illegal activity, when may the speech be limited?
- Only when it advocates action, but not when it is simply a statement of belief.
- Furthermore, the speech must be intended and be likely to produce such illegal activity immediately.
- (Brandenburg; Hess; NAACP)
- 1) directed at another (intentional)
- 2) likely to produce a response
Per RAV v. City of St. Paul what does "directed at another" mean?
directed at an individual, not a group
The rule in Wisconsin v. Mitchell re: hate crimes.
It is ok to punish actions committed with a specific motive
In Snyder v. Phelps what door did the Court leave open for restriction of this type of speech?
reasonable time, place, manner restrictions