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Constitutional Law II
Valparaiso University School of Law
Levinson, Rosalie Berger

I.    Federal Judicial Power
A. Intro to Justiciability Doctrines
1. determine which matters fed courts can hear and decide and which must be dismissed
2. prohibition against advisory opinions, standing, ripeness, mootness, political question doctrine
3. Const v Prudential requirements
i.        const – doctrines are result of Court’s interpretation of Art III of Const (cases and controversies req) which imposes substantial const limits on fed judicial power – Cong CANNOT override const restrictions on judicial power
ii.       prudential – doctrines derived from prudent judicial administration (const permits jurisdiction but wise policy militates against judicial review) – Cong CAN override prudential restrictions
iii.      policy – they conserve scarce judicial resources, improve decision making, promote fairness
B.   Prohibition against advisory opinions
1. fed courts are not allowed to provide opinions about the const of pending legislation or on const questions referred to them by other branches of govt
i.        justifications – separation of powers, conservation of jud resources, ensures specific disputes
2. criteria to avoid being advisory opinion
i.        must be an actual dispute btwn adverse litigants
ii.       there must be a substantial likelihood that a fed court decision in favor of a claimant will bring about some change or have some effect
a. PLAUT v SPENDTHRIFT – court declared fed law unconst because it had rendered SC decisions advisory (law allowed cases to be brought after SC said they couldn’t be). Cong cant override final judgments
3. declaratory judgments are not impermissible advisory opinions – jud can issue them if meet criteria to avoid being advisory
C.   Standing – who may bring suit
1. standing is the determination of whether a specific person is the proper party to bring a matter to the court for adjudication
i.        it is jurisdictional so court may bring up on its own
2. requirements for standing
i.        3 const standing req
a. personally suffered injury – P must allege that he actually suffered or will imminently suffer an injury as result of challenged conduct
(1)   mere interest in problem is not sufficient (SIERRA CLUB – no standing to challenge ski resort constr)
(2)   only person residing in election dist has standing for gerrymandering challenge (HAYS)
(3)   in order to seek injunction, P must show likelihood of direct future harm (LYONS – couldn’t show injury by police chokeholds so no injunctive standing, but had standing for damages – bifurcated standing)
(4)   LUJAN – desire to use or observe animal species is cognizable interest – but P couldn’t show sufficient likelihood that would be injured because had no plans to return to area in immediate future
(5)   stigmatic injury or marital happiness not sufficient injury (unless person actually denied equal treatment)
b. causation – the injury is fairly traceable to Ds conduct
(1)   ALLEN – parents of black students didn’t have standing to sue IRS to enforce laws denying exempt status to racially discrim schools. No causation because injury not fairly traceable to govt conduct.
(2)   if indirectly cause another to harm P, then likely causation issue
(3)   DUKE POWER – court found causation in construction of nuclear reactor that would cause injuries – but for the act, the reactor would not be built. Court then upheld the act.
c. redressability – a favorable fed court decision is likely to redress the injury
(1)   EASTERN KY WELFARE RIGHTS ORG – P challenged IRS rev ruling that limited amount of free med care that hospitals rcvg tax exempt status were req to provide. No redressability because no guarantee that victory would result in receipt of medical care. Also, purely speculative on causation.
ii.       3 prudential standing principles (cong may override)
a. cant raise claims of 3rd party not before court – may assert only your own claims
(1)   exception
(i)      if other standing requirement met (injury, causation, redressability)
(ii)     may assert violation of others’ rights to buttress claims if
(a) there are substantial obstacles to 3rd pty asserting his own claims and if there is reason to believe that the advocate will effectively represent the interests of 3rd pty
(1)   BARROWS v JACKSON – white property owner allowed to bring claims of blacks denied opp to buy house (because not party to covenant)
(b) and where there is a close relationship btwn the advocate and 3rd pty (rights closely intertwined
(1)   SINGLETON v WULFF – Dr allowed to bring suit – their injury was not being paid, close relationship bcz abortion decision is one in which Dr intimately involved, obstacles existed because women may want to protect privacy
(2)   CRAIG v BOREN – bartender allowed to bring suit challenging males right to buy beer – injury was payment, close relationship btwn vendor and customers
(3)   NEWDOW – no standing where 3rd party’s standing is founded only on family law rights that are in dispute when prosecution of lawsuit may have adverse effect on person who is the source of the plaintiff’s claimed standing. Also, Newdow didn’t suffer injury – nothing board did impaired newdows right to control religious upbringing of child
(2)   special standing for vagueness and overbroad laws
b. no generalized grievances – no standing when asserted claim is generalized griev shared in a substantially equal measure by all or a large class of citizens (as taxpayer, as citizen voter). Generalized grievances best left to political process. (Treated as Const now)
(1)   narrow exception for taxpayer standing (logical nexus btwn status, legislation, and const provision)
(i)      expenditure is valid under taxing and spending clause of Const
(ii)     must argue that Cong is violating a particular const provision w/expenditure (establishment clause)
(a) FLAST v COHEN – upheld standing as taxpayer challenging expenditure to parochial schools because i) it was valid under taxing and spending power and ii) violated establishment clause
(b) RICHARDSON – no standing when attack regulatory statute instead of taxing and spending statute (secrecy of CIA budget)
(c) transfer of property not same as transfer of funds under tax/spend power (VALLEY FORGE)
c. P must raise a claim within the zone of interests protected by the statute in question
D. Ripeness – when
1. ripeness seeks to separate matters that are premature for review (because injury is speculative and never may occur)
i.        usually person can challenge legality only when he is prosecuted for violating it – problem w/denying preenforcement review is that person left w/choice of violating it and risk prosecution, or unnecessarily obey an unconst law
ii.       2 issues in determining ripeness
a. the fitness of the issues for judicial decision – has law been enforced yet?
(1)   where inevitability that law will be enforced is patent, dsnt matter that there is time delay before enforced
(2)   but court wants to know facts concerning enforcement
b. the hardship to the parties of withholding court consideration (how much will they be harmed?)
E.   Mootness – when
1. P must present a live controversy at all stages of fed court litigation. If anything occurs while a lawsuit is pending to end Ps injury (death, settlement, law repealed), the case is to be dismissed as moot.
i.        equitable remedy wont make moot suit for damages
ii.       3 exceptions to mootness
a. wrongs capable of repetition but evading review (pregnancy)
(1)   a case is not dismissed, even though moot, if there is an injury likely to recur in future and it is possible that is could happen to P again, and it is of such duration that it is likely to always evade review
(i)      DEFUNIS – law student challenge to admissions was moot because wouldn’t happen to P again
b. voluntary cessation
(1)   a case is not moot if the D voluntarily ceases, but is free to return to it at any time. Only if there is no reasonable chance that D could resume the offending behavior is a case deemed moot on this basis
(i)      heavy burden of persuading court that behavior cannot be reasonably started up again lies w/party asserting mootness (environmental cases)
c. class action suits
(1)   a properly classified class action suit may continue even if the named P claims rendered moot – so long as the members of class action have live controversy the case can continue
F.   Political Question – what
1. refers to allegations of const violations that fed courts will not adjudicate because subj matter inapp for judicial review (best left to political branches of govt to interpret and enforce)
i.        factors which show political question
a. textually demonstrable const commitment of the issue to coordinate political dept (impeachment)
b. lack of judicially discoverable and mangable standards (guaranty clause)
c. avoid excessive conflict w/coordinating branches
d. foreign affairs
ii.       malapportionment (BAKER said that they were justiciable under equal protection, not under guaranty clause)
a. VIETH – political gerrymandering challenges not justiciable based on lack of judicially discernable and manageable standards for adjudicating claims (no test for when court should hear them)
iii.      congressional self-governance – justiciable
a. POWELL – member of house allowed to bring claim to get his seat because const sets out specific standards for members of house to meet and ways for house to expel. Cong may not create additional standards
iv.      foreign policy – nonjusticiable (but only 4 votes)
a. GOLDWATER – senate challenge to president’s rescission of treaty nonjusticiable – const gives senate power to ratify treaty but is silent as to senate’s power to rescind. Avoid conflict w/coord branches
v.       impeachment and remova

B.   why should freedom of speech be fundamental right
1. SC has never adopted view that 1st am prohibits all govt regulation of speech (child porn, title VII)
2. lines must be drawn as to where and when speech is allowed, as well as defining speech
C.   Theories for why freedom of speech should be protected as fundamental right
1. it is crucial to further self governance (informed decisions, checks abuse of power by public officials)
2. it is essential for the discovery of truth (marketplace of ideas)
3. it is an essential aspect of personhood and autonomy (self definition and expression, but there is hate speech)
4. it is integral to promoting tolerance, which should be basic value of society
IV.                 Free Speech Methodology
A. distinction btwn content based and content neutral laws
1. content based restrictions are those that suppress, disadvantage, or impose differential burdens upon speech because of its content (look at whether govt adopted reg because of agreement of disagreement w/message conveyed)
i.        they are presumptively invalid and must meet strict scrutiny to be const (narrowly tailored to further compelling govt interest)
a. REPUB PARTY OF MINN – law prohibited MN judges from announcing views before election. Court said unconst. regulation not narrowly tailored to serve asserted interest of preserving impartiality. To show narrowly tailored, govt must demonstrate that restriction dsnt unnecessarily circumscribe protected expression
2. content neutral restrictions affect all communications equally, regardless of message
i.        they must meet intermediate scrutiny (advance important govt interest, which is unrelated to prohibited interests, and is not more restrictive than necessary to further important interest)
a. TBS v FCC – must carry provision for cable companies was content neutral because cable companies were req to include all local stations, regardless of content
3. viewpoint based restriction if prohibit certain viewpoint (such as negative speech about war in iraq)
4. how is it determined whether reg is content based?
i.        content neutral means that regulation is both viewpoint neutral and subject matter neutral
a. viewpoint neutral means that the govt not regulating speech based on the ideology of the message (but in BOOS court said that reg that no signs critical of foreign govts w/in 500 ft of embassy viewpoint neutral, but was content based)
b. subject matter neutral means that the govt not regulating speech based on the topic of speech
c. SIMON & SCHUSTER – NY law that said income from books describing crim acts be put in escrow and paid to victims was unconst. It was content based (regulated because of topic) so used SS, there was compelling interest in ensuring victim’s compensated, but not narrowly tailored because applied to all works.
5. problems in applying the distinction btwn content-based and content-neutral
i.        a facial content-based restriction will be deemed content neutral (at least in case of sexually explicit material restrictions) if it is motivated by permissible content-neutral purpose (controlling secondary effects of speech)
a. RENTON v PLAYTIME THEATERS – court rejected challenge to zoning ordinance that prohibited adult movie theaters from being in residential areas. Ordinance was content based, but court treated as content neutral because it was motivated by desire to control secondary effects of adult theaters (crime)
(1)   content neutral regs are justified w/out reference to the content of the regulated speech
b. likely limited to sexually explicit material regulation (BOOS – not content neutral even though justification was to shield ambassadors, couldn’t be justified w/out reference to content of speech | DISCOVERY NETWORK – prohib on newsracks on public property uncont despite purpose of aesthetics and safety)
ii.       when govt must make content-based choices