CON LAW REVIEW CLASS 1. Due Process and Equal Protection Rational Basis A. Apply the rational basis test when no other test applies. It is the fall back test. If you don’t have suspect classifications, or fundamental rights, or other classifications like gender or alienage, or illegitimacy. B. Do you approach it as due process rational basis or equal protection rational basis? Usually that is not a critical choice, as long as you are applying the same test. But make your best effort to give it the same call. i. Due process means you are concerned with the law overall. This law just does not make sense. Like Lee Optical. ii. Equal protection is always a concern for classifications. Your principle concern is that it seems to treat people that are similarly situated in a different way, or it could be treating different people in the same way. C. Applying the test i. First give the test – The law limiting the substantive interest must rationally relate to a legitimate or permissible governmental end. Then add in that the burden of proof in on the person challenging. The court will presume the law is valid. It is unlikely that the court will find the law irrational. The court will look to see if it is simply conceivable that the law rationally relates to any conceivable legitimate governmental end. D. We also have more searching rational basis test – If you see a law or a classification that you think gets the rational basis test then apply it. Usually you apply the traditional, deferential level of view. Use the more searching rational basis test as an alternative discussion, and only use it in these situations. i. It parallels the cases where the court applies more searching rational basis. The court feels that a politically unpopular group singled out principally because they are not liked. Murray v. Dept of Agriculture (congress denied a particular group food stamps); Living Center (law singled out the mentally retarded); Romer v. Evans, Lawrence v. Texas; Plyler v. Doe (law effecting children of illegal aliens); ii. Look for situations where the more searching rational basis may actually make a difference. Close call situations. iii. In applying it, apply both parts in a more searching way. In particular the court is more worried about the purpose. Court is less likely to look at conceivable purposes, but rather the real purposes. CONTRACT CLAUSE 1. Limited to state law only. If you have a federal law impairing obligations of contract, that is a due process/rational basis issue. 2. Applies only with regard to retroactive impairment of contractual rights. Prospective limitation on contracts is not an issue. 3. If you have a state law which retroactively impairs contract rights then undertake the test (called public purpose balancing test). Three parts to the test. A. There must be substantial impairment (court will rarely decide it on the first part of the test); and i. Must be more than de minimus, but less than total destruction is enough.
ii. Look to see if it goes against reasonable investment based expectations iii. Look to see the degree to which the particular area has been regulated in the past. B. If there is substantial impairment it must be justified by a legitimate public purpose; and i. Look to see how important the governmental interest is. Why is there some need to impair obligations of contract? Just use the facts you can to identify whatever it is. ii. If you have some emergency measure or a temporary measure, the court is more likely to allow. C. Look at reasonable conditions that are appropriate to the public purpose. i. What ever the law is, advances the public purpose, based on reasonable conditions. ii. Look at balance between harm to contract and benefit to govt. interest. (Blysdale case, mortgage holders and banks). NO TAKINGS CLAUSE 1. Applies to State and Federal govt. 2. No taking of private property for public use without just compensation. 3. What is public use? For public use, or for any use that rationally relates to public interest. Can even take private property and give to another private person as long as it will be used to benefit the public. 4. Just compensation. Even if court finds that govt. has taken and then govt. tries to back out the govt. has two choices. 1) They can take it and pay for the value, or 2) they can say never mind and just pay for the period of time they “took” it. 5. If not considered a taking, then govt. just needs to pass the rational basis due process test. Generally speaking, zoning laws are not takings. Just must pass rational basis test. But zoning laws that take away all economically viable use are a taking. Per se taking. The physical appropriation by the govt. is also a taking. Can also be in the form of noise, or dirt, or smells. Per se taking. Even without Per se taking, can still find takings by applying the Penn Central Balancing test. Factors: The extent of the taking (took all or some); the nature of the taking (zoning or other); how much harm was done to reasonable investment based expectations. 6. EXACTIONS – This is when the govt. imposes conditions for granting a property owners request for a change in use. Must pass the Nolan / Dolan Test. A. Nolan Test – Govt. must list a reason for the taking and there must be an essential nexus between what was taken and the reason for the taking. Very easy test to pass. In the Nolan case the govt. took a lateral easement on beachfront property but they listed the reason as “to provide perpendicular access to the beach.” They listed the wrong reason and thus there was no nexus. Court said it was a compensable taking. B. Dolan Test – There must be a rough proportionality between the exaction and the harm caused by the change in use. FUNDEMENTAL RIGHT TO PRIVACY
1. Use compelling state interest test – Must be narrowly tailored to advance some compelling state interest. As part of the narrowly tailored aspect you must considered whether there are less drastic alternative ways of advancing the governmental interest without hurting the fundamental right. 2. This test does not involve as much of the facts. The biases are against the law. 3. What interests are part of the fundamental right to privacy? A. Procreation i. Use of contraception ii. Choices about abortion a. Use Casey undue burden test. Under Casey before viability, states may not prohibit abortion, but they may adopt regulations to protect the mother’s health and the life of the fetus, as long as the regulations do not create an undue burden on the woman’s right to obtain an abortion. After viability, a state may prohibit abortion (because of compelling interest in protecting the life of the fetus), unless abortion is necessary to protect the mother’s life or protect her health. Whether any particular regulation imposes an undue burden. b. With regard to parental consent and notification laws provided that such laws have a judicial bypass. Judicial bypass must have two aspects to it: 1) Judge must have authority to decide that the minor is mature enough to make the decision for herself, and 2) Judge may also bypass by determining that abortion is in the minor’s best interest. c. Partial Birth Abortion laws: In the past they were unconstitutional because they were too vague and they did not have emergency exception for the life of the female. d. Funding choices about abortion get just a rational basis level of review. Restriction on abortion in state hospitals are regarded as funding decisions and get a rational basis test. iii. Procreation decisions with regard to children gets special attention. Court has not decided if it is a fundamental right for children. Courts have struck down law that limit a minor’s right to contraceptives but they have used different reasons. Some members of the court apply compelling state interest test, and others use more searching rational basis test to strike laws down that restrict minor’s procreation decisions. B. Right to Marry i. This is problematic because some regulations involving the right to marry just get a rational basis test. Just talk about the issue. Significant and unreasonable restrictions get a compelling state interest level of review. Insignificant and reasonable restrictions get a rational basis level of review. No clue as to gay marriage. C. Child rearing decisions i. All we know is that some child rearing decisions get a compelling state interest test. In Michael H. the court applied rational basis but in other cases the court applied compelling state interest. D. And possibly the right to keep certain info confidential (such as medical records). This question is un-answered.
SUSPECT CLASSIFICATIONS 1. Race and Ethnic origins get a suspect classification. Use the compelling state interest test (look for less drastic alternative that advance the compelling state interest but do not use race based classifications). 2. The complexity comes with race and school desegregation cases. A. Court distinguishes between De Jure (intentionally state imposed segregation, either by law or by covert government acts like changing the zoning laws) and De Facto segregation (segregation as a result of historical and economic factors). B. The remedy for De Jure segregation is limited to fixing the wrong. C. When the local school boards have remedied the last vestiges of segregation as practicable, then the courts have lost power to step in. QUASI-SUSPECT CLASSES (Gender Based Classifications) 1. Use intermediate test (2 of them) Must substantially relate to important government interest (Craig v. Boran) Exceedingly persuasive test (see recording), there must be an exceedingly persuasive justification. 2. Mention both tests but apply the Craig v. Boran test. Look at reasonable alternatives as part of the test. CLASSIFICATIONS BASED ON PREGNANCY 1. This gets rational basis level of review. Courts do not consider this gender based classification. WASHINGTON v. DAVIS – PER SE APPROACH 1. Neutral law that has disproportionate impact on race or gender. 2. Basic approach is to ignore the disproportionate impact and it does not change the level of review. Apply whatever test you usually apply. 3. The only exception is when the law was passed for the purpose of working a hostile classification as to race or gender, then the law is per se invalid. Must prove that the law was passed for the sinister reason. 4. Factors: Disproportionate impact; historical, procedural, or substantive departures. 5. The difficulty is when you normally apply compelling state interest approach versus the per se approach. Again look to see if passed for the very purpose of hurting people because of race. GENDER BASED AFFIRMATIVE ACTION 1. Use intermediate test. 2. Laws passed for the purpose of making up for historical discrimination against women, can pass the governmental interest part of the intermediate test. But be careful to look for reasonable alternatives. Is there some non gender based reasonable alternatives. 3. AA programs generally need to be moderate and flexible overall. RACE BASED AFFIRMATIVE ACTION 1. These get a compelling state interest test. 2. Court has upheld these “benign” racial classifications in some cases.
3. Look at 4 factors: Purposes of the law Degree of advantage to minority persons Degree of disadvantage to majority (preferences in hiring may pass, preferences in firing are no good, too much disadvantage) Overall flexibility of the law (provisions that set goals are better than quotas) 4. Simply making up for historical discrimination is not enough to be a valid purpose. 5. If can be more specific, like making up for historical disc. by a particular person, or company, or segment of society. This is the best purpose. 6. Other purposes can pass the compelling state interest portion of the test as well, like diversity in education. That can pass the purpose part, but still must look at other factors. CLASSIFICATIONS BASED UPON ALIENAGE Three basic categories: 1. Most of the time apply the compelling state interest test when dealing with state law. 2. State laws based upon jobs involving the political function exception apply the rational basis test. Jobs with a high level of discretionary policy making in the job. These kinds of jobs can be limited to citizens using the rational basis test. (Policemen, teaching position, serving on a jury) 3. All federal laws involving alienage get a rational basis test. Congress has enumerated powers to deal with aliens. This test applies only to the line between legal aliens and citizens. We don’t know how do deal with illegal aliens. With illegal aliens generally the law will be subject to a rational basis test. But court has been more willing to use a more searching rational basis test with laws that apply to illegal alien children. CLASSIFICATIONS BASED ON ILLEGITAMACY 1. Use intermediate test, but less strict than gender (don’t need to look at reasonable alternatives) 2. Must bear a substantial relationship to a legitimate or permissible state ends. 3. Court upheld laws that say for an illegitimate child to inherit from the father must have order of legitimacy. However, if father is still alive, the child has until the age of majority to do this. FUNDEMENTAL RIGHT TO VOTE 1. Use compelling state interest test. 2. Ability to vote (CSI) -- Length of registration – One year too long, but 50 days ok. You can only have the amount of time to ensure accuracy in the voter lists. 3. Reapportionment – One person, one vote. The various legislative districts (federal) must be equal in size with regard to population. Must be as nearly equal as is practicable. For state must be substantial equality in population (lower standard than federal). 4. Gerrymandering generally gets rational basis test unless egregious, but can not be done if primary purpose is to advance or hurt candidates based on race. This violates the equal protection clause? 5. Drawing districts that are democratic or republican, right now that does not raise equal protection concerns. 6. Getting name on ballot, regulations must reasonably relate to the election process.
7. Use of race in drawing district lines is no good. Use CSI. Can prove it by showing a bizarre shape of voting district, or by just proving that race was a predominant factor. FUNDEMENTAL RIGHT TO TRAVEL Limited to two categories 1. Durational residency and necessities of life or fundamental rights. Must have both. 2. Bonafide residency requirements get a rational basis level of review. WEALTH BASED CLASSIFICATIONS 1. Generally rational basis EDUCATION 1. Education above a minimum level is not a fundamental right. We do not know if a complete denial of education is a violation of a fundamental right. PROCEDURAL DUE PROCESS 1. Must be the right kind of act. Must be a judicial like taking. Must be what judges do. Making individual case by case decisions. Can be any public employee. If just an overall classification then just an equal protection concern. 2. Must be taking of a liberty interest or property interest. Property interest are defined by state law of federal law or some valid contract you have entered into with the government. With regard to govt. jobs the law must say you can only be fired for cause then you have a property interest in your job. Liberty interests are created by law and by the constitution. Being free from confinement is a liberty interest. All of your fundamental rights are also protected, right to vote, right to travel, right to privacy, etc. 3. Must be the right level of process based on three Mathews Factors: Importance of private interest, state interest, and whether or not additional process would reduce potential for error. 4. Irrebutable presumptions are basically classifications that usually get the rational basis test. Marriages less than a year no spousal support, and more than 10 years support for life. The only possibility is when the facts parallel Stanley v. Illinois or Bell v Burson, then irrebutable presumptions may violate procedural due process. The court made a discretionary factor the issue (like fitness of the parent) and they scheduled the hearing after the fact. The court said usually procedural due process requires a hearing before the termination. STATE ACTION 1. If it is the government doing something then you don’t have state action issue. 2. Talk about state action when a private person is violating constitutional rights. When the lawsuit is filed against the government for something a private person did When the lawsuit is filed against the private individual and the assertion is that because the private individual is connected to the state, constitution applies I. STATE ACTION – State action is a threshold requirement of governmental conduct which must be satisfied before private discrimination can be restricted under the 14 th and 15th amendments. First state action, then move on to due process or equal protection. Must show there is some link between a private actor and the government.
State action does not apply to 13 th amendment (prohibit any badge or incident of slavery) A. Public Function – Situation where a private entity is performing activities traditionally and exclusively carried on by the state. Classic example is a company town. If a public function then the private entity will be subject to the restrictions of the 14 th and 15th amendments. Private companies or individuals running an election or running prisons are considered a public function, but running schools probably not. No public function for a privately owned utility company under state regulation. B. Significant State Involvement/Entanglement – Look for symbiotic relationship. Public school is an agency of the state City parking garage leased space to a private restaurant that discriminated on the basis of race. Court found state action because of symbiotic relationship because the city played a significant role in the success of the restaurant. For private activity on government property ask: Does it look like it is part of the public property? Do people think it is run by the public authority? Could government have easily regulated the actions by the private actor? Private school purchases textbooks from state and that is enough of a nexus No state action if only fact is that govt. granted a liquor license No state action for private school that is merely licensed by the state C. State Action where State encourages private discrimination State enforcing racially discriminatory zoning ordinance is enough for state action
CONGRESS ENNUMERATED POWER 1. Can congress pass legislation reaching private acts? A. Congress can certainly reach private acts under the spending clause, commerce clause, etc. but we don’t care about that. B. Section 2 of 13th gives power to reach private acts. But to reach the private acts you need two elements: i. Must involve racial discrimination ii. Must involve a badge of slavery. Employment Contracting Ownership and use of property Not service in a restaurant, hotel or motel. C. Congress can also reach private acts which invade the essential attributes of being a citizen. Your privileges and immunities. What are they? Sailing the navigable waters Being protected while in the custody of a federal marshal Right to petition congress Right to travel interstate (the important one). D. Congress does not have ability to reach private acts in violation of free speech rights, procedural due process rights, etc. 2. To what degree can congress change the constitutional meaning of the 13, 14 and 15 th amendments?
A. Congress has some limited ability to expand the substantive provision of Section 1 of the 13th , 14th and 15th amendments. B. Congress can not change the substantive provisions, but they can change the remedial provisions. Basically they can make limited changes. Any significant changes are going to violate congress’ enumerated powers. 13th amendment prevents slavery, congress expanded it to badges of slavery 15th says no intentional discrimination, congress can expand to disproportionate impact FIRST AMENDMENT – The first amendment prohibits congress from establishing a religion (establishment clause) or interfering with the exercise of religion (free exercise clause) or abridging the freedom of speech or press, or interfering with the right of the people to assemble. 1. Freedom of Religion A. Establishment Clause – The govt. may not pass laws which prefer or aid one religion over another. Use the Lemon test – For a government regulation to be valid: i. The primary purpose of the law must be secular; and ii. The primary effect of the law must neither advance nor inhibit religion; and iii. The law must not foster excessive government entanglement with religion (basically this means that any aid to religion must not be of the type that requires too much supervision by the government to prevent its misuse). B. General Principles which relate to Establishment Clause i. Government sponsored religious activities in public schools are unconstitutional. Such as, required non-denominational prayer, daily bible reading, moment of silent voluntary prayer, student led prayer at football games, all of these were struck down. ii. Government aid to religious schools for construction grants and salary supplements are unconstitutional at the elementary and secondary level. For aid to elementary and high schools use the following factors: 1. Aid directly to parents is less likely to violate establishment clause than aid directly to the schools. 2. Aid to all schools, public and private, is less likely to create establishment issues, than aid to just public schools. iii. Government aid to parochial schools, which can not be used for religious purposes, is constitutional and must be made available to public schools on the same terms. Examples: govt. health tests, bussing, textbooks, computers and software. C. Religious Ceremonies and displays i. Religious displays a. Religious displays, which taken as a whole, celebrate the holiday season, will likely be upheld. Santa Claus along with Nativity scene makes it ok. Must be a balance within the individual cite.
b. The test is whether a reasonable observer would believe the government was endorsing a religious message. Look at the context. Is there a presence of other non-religious symbols nearby? Does it look like the government is endorsing a particular religion. D. Free Exercise Clause – Religious beliefs are absolutely protected, but conduct in furtherance of those beliefs may be regulated. i. General Rule – Government regulation which burdens free exercise rights may not be religiously motivated. ii. Purposeful interference v. Incidental burden – If purposeful interference apply strict scrutiny, if the law is a generally applicable law that creates an incidental burden then apply RB or a balancing test (intermediate test). Probably intermediate test. 2. First Amendment Procedural Issues and Methodology A. First try to make a facial attack i. Vagueness – A law will be void for vagueness if it is so unclearly defined that persons of ordinary intelligence must guess at its meaning. This is really a procedural due process issue because laws have to give people notice. Don’t stress on this issue. ii. Overbreadth – This is a statute that punishes both protected as well as unprotected speech. Look for words like all or any. If the law is overbroad then it does not need to be followed at all, even by someone doing something that is not protected. iii. Prior Restraint – This comes up in licensing, censorship, injunctions, etc. Government restriction of free speech in advance of publication is generally unconstitutional. a. Exceptions: Where national security interests (clear and present danger) are involved, and with certain obscene books and films iv. Unfettered Discretion – Licensing statute where the person issuing the statute has unfettered discretion is unconstitutional 3. Regulation of Speech Content – Is the speech which is being regulated content specific, or content neutral? Regulating content or conduct? A. If content specific find the appropriate test and apply it. If no test applicable then use strict scrutiny. i. Conduct may qualify as symbolic speech and thus be protected. a. Is the conduct considered symbolic speech? Apply Spence Factors: 1. Is the conduct closely akin (connected) to speech? 2. Is there a particularized message that is capable of being understood by its listeners? b. If the conduct is considered symbolic speech then decide if the regulation is content neutral or specific. If specific then apply the appropriate test below. If neutral then apply the O’Brien test. 1. The governmental interest in the regulation must be unrelated to the suppression of expression. If related then
go to other content specific tests, otherwise move on with O’Brien test. 2. It must be within governmental power. The govt. is advancing a legitimate governmental interest. This is very easily satisfied. 3. The regulation must be in the advancement of an important or substantial governmental interest. 4. The regulation hurts no more speech than is necessary in the advancement of those interests. (Basically the same as the intermediate approach in the time, place, and manner regulations) ii. If government provides the funding to an organization they can control their speech. Except for controlling a legal aid clinic. Can not interfere with attorneys. iii. People also have a right not to speak. “Live free or die.” B. Specific Tests for various speech content. i. Political Speech is protected, therefore, for the govt. to regulate radical political speech the Clear and present danger test must be satisfied – The speech can be regulated if: a. The speech advocates unlawful acts; and b. Were stated with the specific intent of accomplishing those acts; and c. The speech is likely to produce such acts (clear) ii. Fighting Words – These are insults likely to provoke an ordinary person to commit an act of violence and they can be regulated. To qualify as fighting words you need: a. Fighting words that are indecent or swearing; and b. You need a face to face confrontation. c. Statutes that regulate fighting words must be narrowly tailored and viewpoint neutral. iii. Defamation/Right to Privacy Torts – You must look at the status of your plaintiff a. Definitions: 1. Public Officials are those who are elected to office or other government employees who are involved in policy making. 2. Public Figures are those who are in the limelight. Look to see if they voluntarily inject themselves into public eye. Also look for limited purpose public figures b. If public official or figure then the plaintiff must prove actual malice (knowing falsity or reckless disregard for truth, subjective standard). When ever you prove actual malice there are no limit on damages. c. If private person plaintiff then the constitutional standard is at least negligence for a matter of public concern (thus damages are limited) and for a matter of private concern the speech is not
protected, thus need only show publication (strict liability). In the case of private/private there is no limit on damages. d. Need defamation of fact and pure opinion is generally protected unless it is sufficiently factual to be susceptible to being proved true or false e. Public Disclosure of Private Facts – For the govt. to punish the revealing of private facts there must be a compelling state interest. No case has found this yet. Must be a private fact, therefore anything from public records would not qualify. f. Intrusion Upon Seclusion -- Court says that the gathering of info is not protected by the 1 st amendment. But if the media obtains a copy of info that was illegally obtained, as long as they did not do the illegal obtaining, then they can publish without repercussion. g. False Light – Similar to defamation h. Misappropriation of like or kindness – Tort, not 1st amendment violation iii. Obscenity – Obscene speech may be regulated. Offensive language is not obscene and thus is protected, but offensive language over the airwaves may be regulated. a. In order for speech to be obscene use the Miller test: 1. The material must appeal to the prurient interest in sex applying contemporary community standards (pandering is relevant in determining appeal); and 2. The material must depict sexual conduct in a patently offensive way (local standards); and 3. The material must lack serious literary, artistic, political, or scientific value (reasonable person standard) b. Possession of obscene material in the privacy of your home is protected (good luck getting it there) c. Child Porn – This is outside the protection of the first amendment. No need to find the material obscene under the Miller test. States may even criminalize private possession of child porn. But virtual child porn must go through the Miller test. vi. Commercial Speech – Generally commercial speech is protected and regulations are subject to the Central Hudson test (form of intermediate scrutiny). Commercial speech (ads) that are fraudulent, misleading and/or related to an unlawful activity are not protected and thus can be regulated with ease. a. Central Hudson test for regulations of protected commercial speech: 1. Regulation must directly advance a substantial governmental interest; and 2. It must be narrowly tailored (it hurts no more speech than essential) to further that interest (look for less restrictive alternatives).
4. Regulation of time, place and manner of speech (conduct) – If the statute regulates speech conduct in a public forum or a limited public forum then apply a three part test similar to middle tier scrutiny. A. The Ward v. Rock test (remember, the regulation must be content neutral): 1. Regulation must be justified without reference to the speech content 2. The regulation must be narrowly tailored to serve a significant government interest (no more restrictive than necessary, does not need to be least restrictive, just narrowly tailored) 3. The regulation must leave open alternative channels of communication (balance the harm to speech and the governmental interest) B. Public Forum 1. Traditional public forum – Streets, parks, sidewalks, area that are historically associated with expressive activity 2. Designated public forum – Parts of library, school, state fair ground, or mall like area of airports. 3. Non-public forum – Jail, military base, inside a courthouse, airport terminal, government office building, privately owned billboards, and billboards on city busses. To regulate these: i. The law need only be viewpoint neutral; and ii. Reasonably related to a legitimate interest C. Private property need not be made available for speech related activities. Owner may prohibit speech, even prohibit picketing. D. Licensing Statutes – Must be content neutral, narrowly drawn, and there must be no unfettered discretion in the licensing official 1. Statute is valid on its face, but license was denied because of content. This is an as applied challenge. The speaker must apply for the permit and may not speak. Must seek judicial relief. 2. Statute is invalid on its face. The statute is the void and can be ignored. Need not even apply for the permit. 3. If there has been an injunction issued against the speaker the injunction must be obeyed even if it is invalid. Must seek judicial relief on appeal. Will be charged with contempt if disobey the injunction. 5. Freedom of association A. Regulation of associations turn on whether the regulation impacts an expressive aspect of the association, or merely a societal aspect. 1. If an expressive aspect, then regulation must pass the compelling state interest test to be valid. Like anti-gay group can not be forced to take in gays. B. Compulsory Associations – If you are compelled to be in an association such as the state bar or student union, and some of the money goes to areas you don’t approve of, you can get part of your dues back only if the money is spent on an area unrelated to the association. C. First amendment right not to speak – cover up license plate that said, “Live free or die” D. Membership in an organization – Where can an individual be punished based on group membership? State must show all of the following:
1. Group or organization advocates unlawful conduct 2. The individual is both a knowing and active member 3. The individual must have the specific intent to further the group’s unlawful objectives E. Compelled association with political party -- If you are being picked for a government job that sets policy then you can be compelled to be a member of a particular party in order to hold the job. But if you are just a run of the mil government employee, then you can not be compelled to be a member of a particular party in order to be hired. F. Free speech rights of government employees -- If your speech as a government employee relates to the internal activity of the government offices then you can be fired, you have no free speech rights. Even if you are just critical of your boss. But, if your speech is of a matter of public interest then you are protected. G. Regulation of speech on public schools -- This only applies to mandatory schools like elementary and high school. Since the govt. compels kids to go to school, they have a responsibility to protect them. Govt. can regulate speech on school house property if reasonably related to legitimate pedagogical (the study of the physical and mental development and characteristics of children) concerns F. Loyalty oath – Loyalty oath as a precondition to public employment are generally not valid. There are two exceptions: 1. Swear to support and uphold the constitution 2. Swear to oppose overthrow of the government 6. Regulation of Cable TV – Content based regulation of broadcast media (radio and tv and cable) is subject to middle tier scrutiny, not strict. A. Indecent programming can be channeled into safe harbor hours of 10pm-6am.