CHAPTER 6 – THE BILL OF RIGHTS

I. INTRODUCTION a. Bill of Rights: the first 10 amendments to the Constitution. These rights trump the enumerated powers of the Gov’t in the Constitution with very few exceptions = a check on gov’t power b. 14th Amendment: incorporated the Bill of Rights against the States w/ few exceptions c. History of the Bill of rights i. Magna Carta 1215 ii. Petition of Right of 1628 – Sir Edward Coke and Parliament of England forced King Charles I to sign, confirmed that the king could not arrest or detain his subjects w/o providing the due process of a jury trial, only Parliament could raise taxes, and there were limits to the royal power of quartering soldiers iii. English Bill of rights 1688 – precursor to the US bill of Rights iv. English Bill of Rights of 1689 statute codifying a Declaration of Rights that Parliament presented to James II’s successors William and Mary d. America’s Bill of Rights i. Anti-Federalists sought it for preserving liberty through localism ii. Original Bill of Rights was 12 amendments 1. 1st Dealt w/ the size of the House of Representatives 2. 2nd Dealt w/ Congressional pay increases 3. 3rd Establishment Clause (our 1st A.) forbade national legislation that would either establish a national church or interfere w/ state established churches 4. 6th and 7th rights to jury trial in all criminal and civil cases 5. 10th Federalism guarantee iii. Barron v Baltimore 928: held that the Bill of Rights (prior to 14 A.) was applicable ONLY against the federal government iv. 3 Schools of thought for what the 14th A. did w/ the Bill of Rights 1. Total Incorporation through Privileges/Immunities– only Justice Hugo Black thought this 2. Fundamental Fairness through DP– Justice Felix Frankfurter 3. Selective Incorporation through DP– Justice Brennan - Subscribed to today a. Under this approach SCOTUS examines on a case-by-case basis whether each right has been incorporated against the States. All rights have been incorporated EXCEPT 3rd A., 5th right not to be indicted except by a grand jury, and 7th right to civil jury trial. b. The Slaughterhouse Cases 930: the Privileges or Immunities Clause was largely inconsequential, protecting only rights derived form national citizenship, which would preempt contrary state law even w/o the 14th A. Incorporation is b/c of the DP clause of the 14th II. FREEDOM OF SPEECH a. 1st Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . . i. Central Idea: gov’t (fed, state, local) may not prohibit/punish/penalize speech b/c of its message – b/c of the content of the message or the views being expressed ii. Exception: Gov’t may regulate “actions” for reasons not having to do w/ regulating message iii. What 1st A Promotes: Free ideas, maintaining a representative democracy, safety valve for people to speak and be heard, preserves other constitutional values (liberty, equality) b. Free Speech Clause: protects speech and expression c. US v O’Brien 932 main case: ∆ and 3 other burned their selective service registration certificates on the steps of the South Boston courthouse. For this ∆ was indicted, tried, convicted, and sentenced by a US DC in the district of Massachusetts. ∆ didn’t contest that he burnt the card and said he did it to influence others to adopt his antiwar beliefs. This was a violation of title 50 §462(b) of the Universal Military Training and Service Act of 1948. This was amended in 1965 to state that anyone who “forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate” is a violator. i. COA: held amendment unconstitutional b/c it abridged the freedom of speech and the amendment served no purpose b/c the conduct was already punishable ii. ∆: 1. Unconstitutional b/c it violates his free speech 2. Unconstitutional b/c the intent of Congress was to suppress free speech iii. SCOTUS – Constitutional – reverse COA 1. The 1965 Amendment doesn’t abridge freedom of speech ON ITS FACE b/c it punishes the mutilation and destruction of the certificates. This = conduct having NO connection w/ speech 2. Freedom of Speech Argument: a. 1st A protects Symbolic speech “communication of ideas by conduct” b. ***Standard for Speech and Nonspeech: when combined in the same conduct, a SUFFICIENTLY IMPORTANT gov’t interest in regulating the nonspeech can justify incidental limitations on 1st A freedom i. Important Gov’t Interest = substantial, paramount, cogent, strong, subordinating c. But some expressive conduct SHOULD/CAN be protected d. ***Test of O’Brien (symbolic speech): gov’t regulation is sufficiently justified if i. It is w/in the constitutional power of the gov’t ii. If it furthers an important or substantial gov’t interest iii. If the gov’t interest is unrelated to the suppression of free expression iv. And if the incidental restriction on alleged 1st A freedoms is no greater than is essential to the furtherance of that interest v.  This is an “intermediate” level scrutiny test – not a strict scrutiny test, and DOESN’T apply if the gov’t interest is related to suppressing expression e. Here: the constitutional power of congress to raise and support armies and to make all laws “necessary and proper” to that end is broad and sweeping – power of congress to conscript manpower for military service is “beyond question” as the legislation serves a “legitimate and substantial purpose” i. Proof that ∆ was registered for the draft ii. Facilitates communication b/t registrants and local boards, simplifying the system and benefiting all concerned – has address for local board iii. Continual reminder that registrant must notify his local board of any change in address iv. The regulatory scheme of Selective Service must prevent alterations of these cards f. The 1965 Amendment addresses overlapping but not identical gov’t interest and reach a diff class of violators. And the court sees NO Alternative means to do so 3. Intent of Congress Argument: the intent of Congress is not a basis for declaring legislation unconstitutional iv. Harlan Concurring: preventing a speaker from reaching a significant audience w/ whom he could not otherwise lawfully communicate should still be a valid lawsuit even if the criteria are met v. Douglas Dissenting: no declaration of war here, so the court should answer whether Congress has this power even when no war has been declared d. Texas v Johnson 939 main case: ∆ burned an American flag as a means of political protest. ∆ was convicted of desecrating a flag in violation of Texas law. Someone buried the burnt flag afterwards, but no one was hurt during the demonstration. i. SCOTUS 1. Analysis for 1st Amendment Free Speech/Expressive Conduct a. Was the conduct expressive – Apply Spence Standard – was conduct intended to and perceived as having a message/express an idea i. If No, then out of 1st A and no protection ii. If yes – next decide whether the Stat’s regulation is related to the suppression of free expression 1. If No – then the less stringent standard of O’Brien for regulations of noncommunicative conduct controls 2. If Yes – then the case is outside the O’Brien test and the court must ask whether this interest justifies ∆’s conviction under “strict standard” a. Would have to have a “compelling” interest and “no less onerous” means 2. Burning a flag = expressive (many cases of precedent hold so) 3. Is State regulation related to suppression of free expression a. States may not proscribe particular conduct BECAUSE it has expressive elements – “what might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription. A law DIRECTED at the communicative nature of conduct must, like a law direct at speech itself, be justified by the substantial showing of need that the 1st A requires. b. It is the gov’t interest at stake that determines if the regulation is valid, only where the interest is UNRELATED to the expression does O’Brien apply c. Texas Interest in regulating conduct i. To prevent breaches of the peace (very broad/amorphous/slippery term) 1. This is not supported by the record 2. The function of free speech under our system of gov’t is to invite dispute 3. To examine if the conduct could really incite a riot the court asks “whether the expression “is direct to inciting or producing imminent lawless action and is likely to incite or produce such action” 4. Allowing the “breach of the peace” argument would allow too much discretion to PO’s and others 5. ∆’s conduct ≠ “fighting words” and won’t provoke retaliation ii. To preserve the flag as a symbol of nationhood and national unity 1. This is directly related to expression in the context of activity such as affixing a peace symbol to a flag – Content based regulation 2. Thus, O’Brien doesn’t apply, strict scrutiny applies and no less onerous means 4. Does the state’s interest justify the conviction a. Boos v. Barry hold that this restriction was based on ∆’s expression so the state interest must be subjected to “the most exacting scrutiny” b. If there is bedrock underlying the 1st A it is that the gov’t may NOT prohibit the expression of an idea simply b/c society finds the idea itself offense or disagreeable c. Allowing the conviction would = permitting a state to “prescribe what shall be orthodox” 5. Principle of 1st A a. To invite dispute b. Ability to criticize the gov’t c. Gov’t may not prohibit the expression of ideas b/c gov’t finds it disagreeable d. No official can describe what will be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein ii. Dissent-Rehnquist, White, O’Conner 1. Flag is special through history and should have its own exception 2. 1st A is not absolute, this could be “fighting words” and fits that exception iii. Dissent Stevens 1. Flag is special e. US v Eichman 950: SCOTUS struck down the federal statute on 1st A ground that prohibited flag burning b/c it was NOT “unrelated to the suppression of free expression” but instead focused on disrespectful treatment of the flag. III. MAP OF THE FIRST AMENDMENT FREEDOM OF SPEECH a. WHAT IS SPEECH i. Speech: vocal expression of messages of discernible content. ii. Symbols: treated symbolic expression of messages identically w/ verbal communication iii. Symbolic/Expressive Conduct: treated like speech 1. Burning a flag, burning a cross, burning a draft card, burning the Constitution, marching in protest, marching w/o protest, not marching at all, sitting silently, wearing an armband, wearing a jacket w/ vulgar message, wearing one’s hair long, wearing nothing at all, saluting a flag or refusing to salute a flag, making a gesture, driving a car around w/ a license plate slogan on it, driving around making a vulgar gesture, praying aloud, praying silently, teaching children, spending money to communicate a message or to support a political candidate, advertising a product, b. WHAT IS FREEDOM OF SPEECH i. Fighting Words: Not Protected words in the immediate presence of another that would constitute an immediate provocation to “fisticuffs” – must be focused on a person, face to face 1. Chaplinsky v NH 952: calling someone a “damned fascist” and a “racketeer” 2. Relatedly, speech directed to inciting and likely to produce immediate violence or lawlessness is not covered by the 1st amendment ii. Hate Speech: Protected 1. RAV v City of St. Paul 952: SCOUTS unanimously struck down city’s “bias oriented crime ordinance” as a violation of the 1st A. overturning ∆’s conviction for burning a cross on a black family’s lawn. The city could NOT make alarm at the speaker’s message, no matter how hateful, and there were other statues to punish ∆’s CONDUCT. iii. True Threats: Not Protected – true threats are genuine threats of physical harm 1. Virginia v Black 952: iv. Defamation: Not Protected but narrowed by SCOTUS – false statements of FACT, injurious to a person’s reputation (libel if written, slander if spoken) 1. New York Times v Sullivan 953: court limited the traditional defamation exception to cases where the false statements of fact were made KNOWINGLY or in RECKLESS DISREGARD of whether they were true or false 2. Hustler Magazine v Falwell 953: scathing, offensive, satirical depictions are NOT false statements of FACT and do not fit w/in defamation or anything like it v. False Advertising: Not Protected 1. Virginia Pharmacy Board v Virginia Citizens Consumer Council 953: untruthful speech, commercial or otherwise, is Not protected vi. Commercial Speech Generally: Not Protected 1. 44 Liquormart Inc v Rhode Island 953: court is starting to protect commercial speech like non- commercial speech now vii. Obscenity and Child Pornography: Not Protected 1. US v Williams 953: obscene material–sexually explicitly material that violates fundamental notions of decency does NOT fall w/in the traditional understanding of the freedom of speech 2. Child Porn is NEVER protected viii. Extra Broad Implications of the 1st Amendment 1. Freedom NOT to speak: 1st protects freedom not to speak, to remain silent in the face of compelled or coerced gov’t methods a. West Virginia State Bd. Of Ed. V Barnette 954: can’t force kid to recite the Pledge of Allegiance b. Wooley v Marynard 954: right of NH driver to cover up the “live free or die” slogan on license plate c. Hurley v Irish American Gay, Lesbian, and Bisexual Group of Boston 954: right of private Org. to exclude participants whose message it does not promote 2. Right of Associations to express themselves: the freedom of groups of persons to band together to advance their desired messages, to control the content of their own message by deciding what speakers or messages fall w/in the group’s Identify and to exclude messages or speaker they do not wish to include a. Democratic Party v Wisconsin 954: right of political party to exclude voters who are not member of that party from the party’s primary election b. Hurly v GLIB 954: right of parade organizers to exclude contingents it does not wish to include c. Boy Scouts of America v Dale 954: right of Boy Scouts to exclude openly gay scoutmaster. d. Roberts v US Jaycees 954: private business blubs do NOT have the right to exclude women absent a reason to believe that the club is truly devoted to expressing a message that the presence of women might alter. ix. Exceptions to Freedom of Speech 1. If 1) compelling state interest and 2) no less onerous means – can focus on content 2. O’Brien Test (for expression) – no focus on content 3. Time/Place/Manner exceptions (for all speech) – no focus on content c. WHAT IS A LAW “ABRIDING” THE FREEDOM FO SPEECH i. Rules 1. 1st A applies to all branches of the gov’t “Congress shall make no law” abridging the freedom = any legal req, including an executive branch action or regulation or even a judicial decision, injunction, or damages award. 2. DP clause of 14th incorporated 1st against the states too. ii. Abridging = anything that shortens, lessens the 1st right 1. The gov’t may not prohibit, regulate, punish or otherwise abridge the communication or expression of messages for reasons having to do w/ the content of the messages, at least not unless some exception to this rule can fairly be implied form strict necessity (a compelling interest test where the asserted interest must be really, truly, sincerely compelling) or from an exceptionally strong showing of a historical understanding that the freedom simply cannot be understood as extending to communication of messages of a particular sort 2. A law abridges the freedom of speech when it regulates or penalizes speech based on its CONTENT or message so long as the speech at issue falls w/in the received understanding of the freedom of speech iii. Speech vs. Conduct 1. US v O’Brien 955: the gov’t may regulate CONDUCT, including conduct of an expressive nature, IF a. Its interest in doing so is unrelated to the suppression of expression b. If it has an important, substantial interest in regulating the conduct at issue c. And if its regulation involves no greater incidental restriction of EXPRESSION than is necessary to accomplish its legitimate interest in regulating the CONDUCT iv. Time, Place, and Manner Regulations: 1. Clark v Community for Creative Non-Violence 955: gov’t doesn’t abridge the freedom of speech where it regulates the time/place/manner of expression if the gov’t interest is NOT related to regulating the CONTENT of the speech and IF a. The regulations are reasonable b. Justified w/o reference to the content of the regulated speech c. Narrowly tailored to serve a significant gov’t interest d. Leave open ample alternative channels for communication of the information – can’t shut down the expression entirely there must be other options v. The Public Form Doctrine: certain areas – streets, sidewalks, public parks – are traditional public for a that gov’t may NOT simply close to all expression 1. Hague v CIO 956: wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and have been used for purposes of assembly, communicating thoughts b/t citizens and discussing public questions 2. Widmar v Vincent 956: where the gov’t has CHOSEN to make facilities available for a range of expressive purposes it has created a limited public forum and may NOT then pick and choose among speakers based on content of their message. Where a state university make facilities available for student groups it could not then exclude an otherwise eligible student group b/c the content of their expression (christian worship) 3. Non-Public Forums: there are some gov’t facilities, operations, or places that are committed to restricted uses for the gov’t specific purposes a. Perry Ed. Assn v Perry Local Educators 956: public school’s internal mail system = a nonpublic forum and need not grant access to outside organizations vi. Enclaves – Free Speech Zones: where the 1st A does NOT operate = military bases and prisons are not governed by the 1st A. vii. Gov’t as Proprietor, Educator, Patron, Employer, Speaker: 1. When gov’t engages in expressive activity – No abridging here 2. When gov’t restricts expression of its EE’s – No abridging here 3. Rust v Sullivan 957: gov’t may prohibit medial service providers w/in a gov’t funded program from counseling or referring patients for abortions viii. Gov’t as Media Regulator: 1. Spectrum Scarcity: gov’t may license the use of certain channels or media to avoid various “speakers’ interfering w/ each other much as it may regulate parade license to avoid two competing parades. ix. Exceptions Implied out of Necessity: 1. Near v Minnesota 958: Gov’t may prohibit the press from publishing the movement of troops and ships in time of war – from telling Hitler when D-Day landing will occur d. WHAT IS THE PRESS: i. Press = includes all means and media of communicating messages other than the spoken word, whether or not such media were present at the time of the 1st A adoption. The press refers to media generally, new technologies mean there will be new media that fit into the term’s category. Press doesn’t change w/ time, but the list of included items that fall into press. e. TIME, PLACE, AND MANNER REGULATION OF SPEECH – mediates speech/moves it around i. Test: the gov’t does not abridge the freedom of speech when it imposes CONTENT NEUTRAL regulations on the time, place or manner in which the speech takes place. 1. The reasons for regulation must be made aside from the content of the speech 2. The time, place, or manner regulated must be reasonable 3. The regulations must be “narrowly tailored” to serve a “significant” interest of the gov’t 4. The regulation must leave open other alternative channels of communication for the desired message ii. Clark v Community for Creative Non-Violence 959 main case: Issue whether a National Park service regulation prohibiting camping in certain parks violates the 1st A when applied to prohibit demonstrators from sleeping in Lafayette Park and the Mall in connection w/ a demonstration intended to call attention to the plight of the homeless. 1. ∆’s challenges a. The application of the no camping regulation is not covered by the regulation b. The regulation is unconstitutionally vague, has been discriminatorily applied, and violates the 1st A. 2. SCOTUS – no abridgment of the 1st A. a. Camping: when it reasonably appears that the participants are in fact using the area as a living accommodation regardless of the intent of the participants b. Test for These Cases i. Time, place, manner restriction must be reasonable ii. Must not be based upon the content of the speech iii. Must be narrowly tailored to serve a significant gov’t interest iv. Must leave open ample alternative channels for communicating the information c. Here i. Restriction is reasonable ii. It is content neutral iii. Substantial gov’t interest in “maintaining the parks in the heart of the Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them” iv. There are other ways to communicate the plight of the homeless d. The regulation is NOT unconstitutional on its face 3. Dissent – Marshall, Brennan a. This is protected symbolic speech b. Test is OK, but the outcome should be different i. Interest is significant but there is no explanation how prohibiting the activity will further that interest ii. It is irrelevant that the sleeping would be “facilitative” to the gov’t ban on sleeping advances the substantial gov’t interest c. Majority creates a 2-Tiered approach i. When gov’t regulation is content-neutral = deference ii. When not neutral = strict judicial review iii. NOTES ON CASE 1. Kovacs v Cooper 966: upheld ban on sound trucks 2. Grayned v Rockford 966: upheld conviction for violating “anti-noise” ordinance prohibiting disturbing noise adjacent to school when it was in session 3. Frisby v Schultz 967: upheld ban on targeted residential picketing of person’s home 4. Ward v Rock Against Racism 967: upheld NY regulation req use of city-provided sound system and technician to control volume of performance in Central Park 5. City of Ladue v Gilleo 967: struck down ordinance banning most yard signs except for sale and business signs – b/c city wanted to avoid visual clutter 6. Hill v Colorado 967: upheld law prohibiting persons from “knowingly” approaching w/in 8 feet of another person in order to present a handbill or leaflet, counsel, or protest, in front of a hospital or other medical facility. IV. FIRST PRINCIPLES OF THE 1ST AMENDMENT – CORE PROHIBITION ON CONTENT AND VIEWPOINT BASED PROHIBITION AND REGULATION a. BASIC PROHIBITION ON CONTENT DISCRIMINATION i. General Rule: gov’t may not punish/regulate/discriminate/penalize speech on the basis of the message that is being expressed – not b/c of its content, and especially not b/c of the particular viewpoint being expressed. ii. Police Department of Chicago v Mosely 968 main case: gov’t may not disfavor the expression of certain messages – employ regulations of speech that discriminate on the basis of content/message/ideas/or subject matter. City ordinance make it illegal to picket or demonstrate w/in 150 ft of school while in session, or ½ hour before or after school ended. But allowed “labor” picketing to be conducted. ∆ had picketed a school by himself, peacefully, and was affected by this. 1. SCOTUS – unconstitutional b/c makes distinction b/t labor picketing and others a. Analyze this case under the EPC b/c it treats different picketers differently. b. Problem w/ ordinance = that it describes permissible picketing in terms of subject matter – labor is OK but all others are disallowed c. This = content discrimination b/t picketers so must “carefully scrutinize” i. The EPC, and 1st A, hold that gov’t may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. ii. b/c labor picketing is allowed, city has determined that “picketing” in general will not interfere w/ schools so can’t discriminate iii. Ordinance imposes a selective restriction on expressive conduct far greater than is essential to the furtherance of a substantial gov’t interest 1. Once the public forum is open to expression – labor picketing here – others can’t be discriminated against 2. Also, motivation here, the timing of enactment, shows that ∆ might have be singled out specifically iii. Simon & Schuster Inc. v. New York State Crime Victims Board 972 main case: can’t punish authors for describing their own crimes. Son of Sam laws required that any entity contracting w/ an accused or convicted person for a depiction of the crime to submit a copy to NY state Crime Victims Board, and the board could require deposit of all payments into an escrow account for the benefit of the victims if the victims, w/in 5 years, file civil action against ∆. ∆ here was Henry Hill and ex-mobster. Wrote a book w/ ∏ and it was a big seller and made into the movie Goodfellas. The NY board determined that the $$ fit the statute and tried to force Hill and ∏ to pay $$ into escrow, they sued. 1. SCOTUS – Unconstitutional a. Statute is PRESUMPTIVELY inconsistent w/ 1st A if it imposes a FINANCIAL burden or penalty on speakers b/c of the content of their speech = abridgment of speech i. Has to pass strict scrutiny: compelling state interest and narrowly tailored means b. SON OF SAM LAW = CONTENT DISCRIMINATION i. It singles out $ derived from expressive activity and the state doesn’t place this burden on anything else. ii. Singles out criminal authors and penalizes them for the content of their speech c. State Arguments i. It only puts into escrow for 5 years doesn’t tax a % 1. NO, this still = disincentive to speak, ii. Not intended to suppress ideas 1. Illicit intent is not the sine qua non of a violation of the 1st A, no intent is necessary iii. Imposes a general burden on an “entity” contracting w/ ∆ 1. Any entity that enters into a K becomes a “medium of communication” and in any event the identity of the speak doesn’t matter d. Court applies STRICT SCRUTINY i. State does have a compelling interest in compensating victims and ensuring criminals don’t profit from crime 1. But little interest in limiting compensation to the proceeds of ∆’s speech ii. Son of Sam law = OVERINCLUSIVE & not narrowly tailored to fit e. Take Homes: i. Abridgment can happen w/o full prohibition on speech (financial burden =) ii. When content-based differentiation takes place, Strict Scrutiny applies like EPC b. OFFENSIVENESS i. Cohen v CA 979 main case: ∆ was convicted in LA of disturbing the peace by wearing a jacket that said “fuck the draft.” ∆ was arrested in a courthouse, where women and children were present, but ∆ didn’t do or say anything, he was just there. 1. SCOTUS – Unconstitutional a. State here sought to punish speech and not conduct b. ∆ was convicted on a statute that applied across the state – not just the courthouse – so it couldn’t be based on desire to preserve courthouse atmosphere of decorum c. This is NOT an obscenity case b/c there was no sexual expression d. Not fighting words – no evidence of citizens enraged and ready to strike e. Nor under state police power f. And as for it being “thrust” upon people, people are only protected in their home from speech not in public places g. One man’s vulgarity is another’s lyric – this serves a dual communicative function i. Conveys ideas ii. Expresses emotions as well h. No particular and compelling state reason to restrict here i. Take Home: can’t ban vulgar words in an of themselves ii. Hustler magazine v Falwell 985 main case: Hustler published a parody depicting F as having lost his virginity to his mother in an outhouse. F was a minister and disturbed by this so he sued for 1) invasion of privacy 2) libel 3) IIED. The ad had a disclaimer that said it was a parody and fiction. 1. SCOTUS – unconstitutional to make this a crime a. Public Figures may hold a speaker liable for damage to reputation caused by publication of DEFAMATORY falsehoods, but only if the statement was made w/ knowledge that it was false or w/ reckless disregard of whether it was false b. F = a public figure, so he can only recover if the statement was false AND made w/ the required level of culpability i. Constitution protects speech against PUBLIC MATTERS/CONCERNS – public figures count as public matters c. For Public figures/officials – No IIED unless the publication was a false statements of fact made w/ actual malice as to its falsehood d. H’s bad motive to make the ad ≠ culpable conduct e. No “outrageous” conduct can allow damages to be awarded b/c of the speech f. Hold: public figures and officials may NOT recover for the tort of IIED by reason of publication like this w/o showing in addition that it contains a false statement of fact which was made with ACTUAL MALICE iii. NY Times v Sullivan 990: slander for oral statements and libel for written/published statements are NOT protected under the 1st A. For Public Figures defamatory statements must be false statements of fact made w/ knowledge of their falsity or reckless disregard for the truth to be actionable. Satire or parody or cartoon ≠ libel b/c not an assertion of “fact” iv. Snyder v Phelps supplement: P and his congregation Westboro Baptist Church picketed the funeral of a marine in Maryland. The father of the deceased marine didn’t see the signs as he approached the funeral but saw them on the news afterwards and it emotionally injured him. The signs said: God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” However the ∆’s had complied w/ state law and even had their picketing 1. Snyder alleged five state tort law claims: defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. 2. Westboro moved for summary judgment contending, in part, that the church’s speech was insulated from liability by the First Amendment 3. SCOTUS – Protected PUBLIC Speech a. Speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection i. Of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community ii. News interest; that is, a subject of general interest and of value and concern to the public b. Matters of purely private significance are at issue, First Amendment protections are often less rigorous. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public import. i. Things that merely concern the individual and not public issues c. Analysis: examine the “ ‘content, form, and context’ ” of that speech, “ ‘as revealed by the whole record.’ No factor is dispositive, must look at context what was said, where it was said, and how it was said. d. Content: here relates to broad public interests – moral conduct of US, homosexuality, scandals of the Catholic clergy, fate of nation e. Form: repeatedly referred to public streets as the archetype of a traditional public forum,” noting that “ ‘[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.” f. Context: Westboro’s speech. Westboro’s signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern society. Its speech is “fairly characterized as constituting speech on a matter of public concern,” g. This would still be subject to T/P/M restrictions but Maryland’s law doing so wasn’t in effect at the time, so this was OK - Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence. h. Captive Audience Doctrine: has been used sparingly to protect home residences, this doesn’t fit the bill. c. HATE SPEECH i. RAV v City of St. Paul 991 main case: The gov’t may not engage in content or viewpoint based regulation of expression even w/in otherwise “unprotected” categories of expression like defamation, obscenity, or fighting words - ∆ was a teenager and burnt a cross in the yard of a black family. Although ∆ could’ve been prosecuted for many things, the state prosecuted him for placing a symbol known to “arouse anger, alarm or resentment” on the basis of race, color, creed, religion, or gender. State Sup C held this to = “fighting words” so allowed it 1. SCOTUS – Unconstitutional b/c prohibits otherwise permitted speech on basis of content a. Precedent allows some speech to be proscribable b/c of the content (obscenity and defamation) b. The power to proscribe particular speech on the basis of a noncontent element (noise) does not entail the power to proscribe the same speech on the basis of a content element; so the power to proscribe it on the basis of 1 content elements ≠ power to proscribe it on the basis of OTHER content elements. Gov’t can’t regulate based on favoritism or hostility towards the message c. This ordinance only applies to “fighting words” based on race, color, creed, religion, or gender = favoritism/hostility i. Fighting words aren’t generally prohibited, only the racial/creed ones are ii. This law was unconstitutional b/c – although it targeted fighting words – it discriminated b/t “fighting words” based upon race/greed/religion/gender iii. *Even in the 1st A exceptions–the gov’t can’t prefer messages based on content* 1. gov’t should be neutral regarding “private person” speech d. Apply strict scrutiny and this is NOT necessary to serve a compelling interest ii. Wisconsin v Mitchell 995: Court upheld regulation punishing hateful CONDUCT more severely b/c of an assertedly aggravating mind-set of racial animus. ∆ wanted to beat up a white kid, so him and his friends did = racial motivation = aggravating factor that increased sentence. iii. Virginia v Black 996: cross burning carried out with intent to INTIMIDATE can be punished b/c the 1st A does not protect “true threats” but the statute could not use cross burning as PF evidence of intent to intimidate as well. iv. National Socialist Party v Skokie 997: 1st A requires procedural safeguards before a judicial injunction could be issued against speech b/c injunctions = “prior restraint” on speech. If the state is to impose a restraint it must provide strict procedural safeguards including IMMEDIATE APPELLATE REVIEW – absent this = unconstitutional d. SPEECH THAT SUBJUGATES i. American Booksellers Ass’n v Hudnut 999 main case: Indianapolis enacted an ordinance defining Porn as a practice that discriminates against women. This ≠ the obscene definition which req the publication as a whole to appeal to prurient interest, contain patently offensive depictions of sexual conduct, and have no serious literary, artistic, political or scientific value determined under the standards of the community. The ordinance didn’t req prurient interest or a lack of value. 1. SCOTUS – Unconstitutional discriminates on grounds of content a. It establishes its own view of how women should be perceived. b. Content Based: “approved” porn was OK b/c it didn’t “subjugate” women, but the “bad” porn was disallowed c. Strict Scrutiny ii. US v Williams 1003: obscene Speech = sexually explicit material that violates fundamental notions of decency = not protected by 1st A. This includes child porn V. INCITEMENT, SUBVERSIVE ADVOCACY, SPEECH URGING VIOLATION OF LAW a. HISTORICAL INTROUDUCTION TO CONCEPTS i. Sedition Act of 1798: an act for the punishment of certain crimes against the US. This made it a crime to “unlawfully combine or conspire together, w/ INTENT to oppose any measure or measures of the gov’t of the US, which are or shall be direct by proper authority or to IMPEDE the operation of any law of the US. Also, if any person or persons w/ INTENT of aforesaid, shall counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, he or they shall be deemed guilty of a high misdemeanor. ii. Lincoln and Vallandigham: In the Civil War Era, General Ambrose Burnside issued General Order No. 38 – announcing that anyone who committed acts for the benefit of the enemies of the country, including the habit of declaring sympathies for the enemy, would be arrested. The general arrested Vallandigham for a speech he made saying the war was “wicked, cruel, and unnecessary” and other any war stuff. 1. Lincoln Letter: Said that V wasn’t arrested for what he “said” but for his conduct – he was “laboring” to prevent the raising of troops and to encourage desertion from the army so as to leave the rebellion w/o an adequate military force. Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? a. In cases of rebellion or Invasion, the PUBLIC SAFETY requires these proceedings which would NOT be constitutional in the absence of a rebellion or invasion b/c the public safety would not then require them. b. The commander in the field is better judge of the necessity in any particular case. iii. Clear and Present Danger Test: for Seditious Speech/Incitement 1. Schenck v US 1008: Clear and Present Danger Test: While we were at war with Germany, ∆ printed pamphlets arguing that conscription violated the 13th A (prohibiting slavery) and wanted people to fight the draft and oppose the war abroad. Test: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a CLEAR AND PRESENT DANGER that they will bring about substantive evils that Congress has a right to prevent – a question of proximity and degree. So if the words here had the effect of obstructing recruitment then they could be punished. 2. Frohwerk v US 1009: upheld a conviction for publishing a newspaper that attempted to cause disloyalty, mutiny, and refusal of duty in the military. There was “so far as the language of the articles go” no difference b/t these and Schenck 3. Debs v US 1009: D was the socialist party presidential candidate and made a speech against the war. The court held ∆ had caused and incited and attempted to cause and incite insubordination, disloyalty, mutiny, and refusal of duty in the military and naval forces, and w/ intent to do so delivered a public speech to an assembly of people. B/c part of the intent was to encourage the obstruction of recruiting then 1st A doesn’t protect it. 4. Abrams v US 1012: Upheld a conviction for publishing circulars advocating a general strike and urging munitions factory workers to stop producing weapons that might be used against Russian revolutionaries. a. Holmes: dissented here b/c he didn’t agree w/ the result – he thought b/c there was no war going on the use of the “clear and present danger” test was going too far. 5. Gitlow v NY 1013: Upheld conviction for “criminal anarchy” 6. Whitney v CA 1013: Upheld conviction for “criminal syndicalism” based on advocacy, or organization to engage in advocacy, of the duty and necessity of overthrowing organized gov’t by force, violence, and unlawful means. Justice Brandeis and Homes refined the Clear and Present danger Test: there is guilt even though society MAY NOT CONTEMPLATE IMMEDIATE promulgation of the doctrine. Thus ∆ can be punished, not for attempt, incitement, or conspiracy, but for A STEP IN PREPARATION which if it threatens the public order at all, does so only remotely. A remote threat = enough for C&PD to apply BUT a. there must be REASONABLE grounds for fear that SERIOUS EVIL will result if the speech is practices, AND b. there must be REASONABLE grounds to believe that danger is IMMINENT: so imminent that it may befall before there is opportunity for full discussion of opposing viewpoints in public discourse. Only an EMERGENCY can justify repression c. AND that the evil is SERIOIUS: Either immediate serious violence was expected or advocated, or that past conduct rationalizes fear of violence 7. Dennis v US 1016: upheld conviction for organizing a group to teach and advocate the overthrow of the US gov’t by force/violence. If the gov’t is aware that a group is aiming at its overthrow, is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the gov’t is REQUIRED. The gov’t need not wait for a successful attempt, and success or probability of success is NOT a criteria b. CURRENT TEST – BRANDENBURG i. Brandenburg v Ohio 1018 main case: ∆ a leader of the KKK was convicted under the Ohio Criminal Syndicalism statute for “advocating the duty, necessity, or propriety of criminal, sabotage, violence, or unlawful methods of terrorism to accomplish political reform.” He got 10 years and 1K fine. The record shows that ∆ called a reported for the local TV station and invited him to a KKK rally – a private rally. At the a speaker said that “we’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken” but ∆ said something like this, but not exactly, and ∆ didn’t have a weapon like some others. 1. SCOTUS – Ohio Statute Unconstitutional a. ***Test: The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe ADVOCACY of the use of force or of law violation EXCEPT where such advocacy is directed to inciting or producing IMMINENT lawless action and is LIKELY to incite or produce such action. i. A mere abstract teaching ≠ preparing a group for violence ii. A statute that fails to draw this distinction impermissibly intrudes upon the 1st and 14th A. iii. Focus: is not on the “words” like previous cases (content), but on the “result” the words are meant to achieve b. Ohio Statute punishes persons who advocate or teach the duty, necessity, or propriety of violence – it doesn’t draw the distinction. ii. Notes on Brandenburg 1. How the test breaks down a. Directed to (an intent of the speaker element) b. Inciting or producing (words as triggers to action, not pure advocacy) c. Imminent (no time for “answering speech” or intervening reflection) d. Lawless action (of any kind no matter how harmful) e. And likely to produce such action (probability of harm) 2. NAACP v Clairborne Hardware 1020: during civil rights boycott ∆, an NAACP secretary, made a remark during his speech that if people didn’t support the boycott they would get their necks broken. Some violence did happen and ∆ was brought to court. Court – the mere ADVOCACY of the use of force/violence does NOT remove speech from the protection of the 1st A. iii. Rice v Paladin Enterprises Inc. 1022 main case: ∆ published a book “Hit Man” that instructed the reader “how to murder someone” and get away with it basically. ∆ was charged w/ being CIVILLY liable for aiding and abetting James Perry in a triple murder 1. ∆’s Stipulations a. Perry followed the instructions in Hit Man for his murder b. Perry followed another book of instructions on how to make a silencer c. Perry followed instructions in trying to cover up murder d. That ∆ intended to attract/assist criminals to commit murder e. ∆ intended and had knowledge that Hit Man would be used to plan murder f. ∆ also stipulates that it assisted Perry in particular in perpetrating the murders 2. So basically the ONLY question is whether the 1st A blocks civil liability 3. SCOTUS – 1st doesn’t bar Civil Liability a. Speech that = legitimately proscribed, punishable, and regulated conduct can be limited i. It has never been an abridgment of freedom of speech or press to make a course of CONDUCT illegal merely b/c the conduct was in part initiated, evidenced, or carried out by means of language – either spoken, written, or printed. b. Just b/c CONDUCT takes the form of words ≠ protection c. Hit Man = abstract advocacy and gets Brandenburg Protection, but ∆ stipulated to soooooo much that the test can’t save ∆ now i. Also the book is not ambiguous or vague, it tells exactly how to kill d. This won’t threaten media b/c publishers won’t have the INTENT to assist criminals – only b/c ∆ stipulated that it had such intent here does ∆ lose basically iv. Planned Parenthood of the Columbia/Willamette v American Coalition of Life Activists 1031: Coalition made the “Nuremburg Files” on doctors that were performing abortions and even put out Deadly Dozen and Wanted posters on them. ∆’s were sued by doctors for making “true threats” and inciting violence and murder. Court Held this = “true threats” and was not protected b/c the context matters, and the statements could reasonable be interpreted by the recipient (doctor) as an effort to intimidate ∏’s into ceasing abortions. This is info that could be used by others to commit murder – like Rice v. Holder v Humanitarian Law Project main case supp: Advocacy of Legal Action - Congress passed 18 USC §2339B which makes it a crime to “knowingly provide material support or resources to a foreign terrorist organization” ∏’s claim that the statute is unconstitutional as applied to tem b/c it violated their freedom of speech. 1. SCOTUS – Constitutional a. The statute makes it illegal to “provide material support” which is conduct – it is meant to criminalize AID to terrorists that makes their attacks more likely b. ∏’s allege that they are merely to promote peaceable lawful conduct, but by giving them $$$ the terrorists can use it to support terrorism/violence and not just humanitarian or legal means of revolution c. This is Content Based regulation: b/c it bars “trained/intelligent” speech to teach others, ignorant speech is OK but if the speech imparts specialized skills then that = barred i. So court must apply strict scrutiny ii. BUT IT PASSES STRICT SCRUTINY (b/c national security/foreign affairs) iii. Why is this necessary 1. Resources are fungible and giving any assistance can help 2. Legitimacy – any assistance, even speech/training, legitimizes the group d. The Executive branch has already made conclusions that terrorist support further terrorism no matter if it be $$ or services or anything else i. This is entitled to deference b/c it implicates weighty interests of national security and foreign affairs e. Even teaching the terrorists how to get aid from organizations ≠ 1st A violation b/c it is a ban on giving the terrorists knowledge/information that will make their conduct potentially more likely. VI. GROUP PROTEST, TORTIOUS ACTS, INJUNCTIONS AND DAMAGES a. NAACP v Claiborne Hardware Co 1034 main case: this was a boycott of white merchants in Miss. Business brought suit for $$ from lost business and got an injunction restraining the NAACP from persuading persons to w/hold patronage and using demeaning/obscene language to accomplish that. Issue: whether the organization was liable for the violence of a few protestors i. SCOTUS – Unconstitutional to hold agency liable 1. The right to associate does NOT lose all constitutional protection merely b/c some members of the group may have participated in conduct or advocated doctrine that itself is not protected 2. The NONVIOLENT activities are entitled to 1st A protection 3. Violent Activities: only the parties responsible are liable a. The lower court held that the business losses were NOT 100% the proximate result of the protests, the protests only contributed to the boycott success. b. There is nothing unlawful about standing outside a store and taking names or wearing a hat (indication of boycott watcher to see who doesn’t follow protest) c. Mere association w/ a group-absent SPECIFIC INTENT to further an unlawful aim embraced by that group-is insufficient to predicate liability 4. Evers (leader) = NOT liable a. He didn’t authorize/direct/ratify the violence b. He didn’t Incite the violence c. He didn’t give specific instructions to carry out the violence or threats d. The “break necks” phrase ≠ fighting words, merely emotionally charged b. Significance of NAACP v Claiborne i. Free Speech Clause protects COLLECTIVE advocacy – the rights of groups of like minded persons to band together for joint action in a common cause ii. Affirms Free Speech Clause right of groups to engage in EXPRESSIVE CONDUCT under the O’Brien test iii. While Free Speech does not protect violence, it forbids THE GROUP from being held responsible for the torts of individuals that members did not authorize, direct, or ratify. iv. An INJUNCTION against speech or expressive conduct by members of the group is improper merely b/c some members have engaged in wrongful acts v. Speech does not lose its constitutionally protected nature simply on account of coercive, intimidating, or vilifying words vi. A speaker may NOT be punished even for ADVOCACY of violence absent strong proof of a DIRECT AND INTENTIONAL connection to immediate violence c. Madsen v Women’s Health Center 1041: Court upheld part of a state judge’s INJUNCTION creating a 36 ft “buffer zone” around an abortion clinic for anti-abortion protestors. Citing significant gov’t interest in justification. Doctors were followed home, protestors picketed the workers’ homes, they yelled on bullhorns so patients could hear them during procedures, Court applied T/P/M test for intermediate scrutiny. i. Dissent: argues that an injunction is different from statutes and is “content” based so it must meet strict scrutiny not intermediate scrutiny ii. Of Note: if a ∆ violates an injunction ∆ will be arrested for “contempt” and under the “collateral bar” rule ∆ can’t raise constitutional issues during the contempt case. So ∆ will be prosecuted for the contempt and will be blocked from raising the constitutional issue d. Hill v Colorado 1044: Upheld a law forbidding persons to “knowingly approach” w/in 8 ft of another person “for the purpose of passing a leaflet or handbill, displaying a sign, or engaging in oral protest or education or counseling w/o the consent of the person and w/in 100 ft of the “health care facility” SCOTUS – cited the “right of every person to be left alone” as something to be weighed against the 1st A as the gov’t “substantial” interest. And applied the T/P/M test to this statute – b/c it prohibited ALL protest and ALL counseling it = neutral i. Analysis 1. Is there a protected right? 2. Is this regulation content neutral? 3. What standard applies? 4. Application – how narrow must the means be tailored? ii. Dissent: this isn’t content neutral b/c for a ∆ to be prosecuted the PO must know the “words” that ∆ said to know if ∆ “counseled” a person or not, so should get strict scrutiny VII. COMPELLED SPEECH a. Minersville School District v Gobitis 1066 main case: ∆s were kids who refused to recite the pledge of allegiance b/c they were JW and were expelled from school. Pennsylvania law makes school attendance MANDATORY for kids this age, so they had to go to private school where they had to pay $$$ and were effectively denied a free education. i. SCOTUS – constitutional, 1. Gov’t may not interfere w/ expression of beliefs/religion 2. But the pledge of allegiance = CONDUCT here (not expression) 3. But this is the interest of “legal values” (National Unity) which is very large and trumps all else – it is a “permissible end” to be achieved (like national security), and the “means” to achieve that result have not been demonstrated as to “how” to achieve it best so DEFER to legislature 4. Court assumes that the legislature has the power to make this law 5. Hold: Constitutional b/c the court lacks the “competence” to choose among competing considerations in securing “effective loyalty” to the ideals of democracy 6. Only where the “transgression of constitutional liberty is too plain for argument” the flag salute is OK b. West Virginia State Board of Education v Barnette 1072 main case: W. Virginia amended statutes to require all schools to conduct courses in history, civics, and the constitution, as well as REQUIRE A FLAG SALUTE in ALL PUBLIC schools. Failure to do the flag salute = expulsion, so the child = “unlawfully absent” and could be prosecuted as a “delinquent” and the parents can be convicted as well and subject to a fine and jail. i. SCOTUS – Unconstitutional 1. Distinguish Gobitis b/c here the attendance is NOT optional, the kids MUST go to school or be prosecuted and the parents can be prosecuted too 2. Here the pledge of allegiance = EXPRESSION a “compulsion to declare a belief 3. Court will NOT ASSUME that the state legislature has the power here like in Gobitis a. Gov’t = limited powers, and education must have political neutrality b. A person’s rights to life, liberty, property, FREE SPEECH, free press, freedom of worship and assembly and other fundamental rights are NOT subject to a vote and depend on NO elections – can only be restricted to prevent grave danger c. Bill of rights denies to those in power a legal opportunity to coerce consent, authority is controlled by public opinion not the other way around – DON’T DEFER TO LEGISLATURE d. National unity = legitimate gov’t purpose (end) but compulsion (means) to foster them ARE NOT CONSTITUTIONALLY PROTECTED 4. Quote: if there is any fixed start in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. 5. Hold Unconstitutional b/c compelled a flag salute and invaded the sphere of intellect and spirit protected by the 1st A. Overrule Gobitis – the “means” used here were wrong c. Notes on Compelled Speech i. Axson-Flynn v Johnson 1079: ∆ was a member of Latter-Day Saints and was a student at the U. Of Utah Actor Training program and refused to say the “F” word or “take the lord’s name in vain” and the school told her she could not continue in the program if she refused to say the words. ∆ sued and the court held that the suit was not susceptible to SJ b/c the issue was whether the U. was motivated by a disagreement w/ ∆’s religion ii. Abood v Detroit Bd. Of Ed. 1079: the freedom from compelled speech includes the right not to have to pay contributions to private organizations (like labor unions) for ideological advocacy. Union members have to pay due for collective-bargaining but not the political advocacy d. Wooley v Maynard 1079 main case: ∆ lived in New Hampshire and the state license plate said “live free or die” ∆ didn’t agree w/ this b/c he was a JW and covered it up w/ tape. A NH statute made it a crime to “knowingly obscure the figures or letters on any license plate.” So ∆ was prosecuted for covering up the words. i. SCOTUS – Unconstitutional 1. ∆ was engaging in “symbolic speech” - COMPELLED 2. The right to speak and the right to refrain from speaking are complementary components of the broader concept of “individual freedom of mind” 3. NH’s statute effectively required ∆ to be a “mobile billboard” for the state’s ideological message or suffer penalties 4. State Interests a. Facilitate ID of passenger vehicles i. Already satisfied by the “not-covered-up” part of the plate b. Promote appreciation of history/individualism/state pride (this is a favoring of ideology) i. NOT ideologically “neutral” 5. Hold: the state seeks to communicate to others its view as to proper appreciation of history, state pride, and individualism. This cannot outweigh a person’s 1st A right to avoid becoming the courier for messages a. Gov’t may NOT compel people to state/affirm messages other than the ones they have chosen e. Hurley v Irish-American Gay, Lesbian, and Bisexual Group of Boston 1083 main case: Freedom of Association. H was a private sponsor of the Boston Evacuation Day parade, it was NOT sponsored by the city or any public entity. ∆ (GLIB) was a group of gay/lesbian/bisexuals who wanted to march in the parade as a “unit” and hoist their own flag indicating gay pride. The lower courts held this event to = a “public event” and thus no discrimination based on sexual orientation could go on. i. SCOTUS – Constitutional, Hurley has 1st A right to NOT “speak/express” the views it wants 1. Parades = forms of expressive conduct 2. A PRIVATE speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech 3. GLIB was formed specifically to march in this parade so their conduct would = expressive w/out a doubt. They are seeking to “communicate” their ideas 4. Here: this disagreement is b/t GLIB and the PRIVATE organizers of the parade. H doesn’t have to alter H’s expressive content of H’s parade – allowing GLIB in would in effect declare that the sponsors’ endorsed GLIB’s message and only H can make that decision a. Private Speakers have the right to shape their expression by speaking on 1 subject as well as remaining silent on other subjects b. State does NOT have the power to force “speakers” to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it w/ their own messages 5. Take Home: a speaker has the right to control the content of his own expressive messages a. And speaker doesn’t have to have 1 special/specific message for it to be protected VIII. COLLECTIVE EXPRESSION & CAMPAIGAN FINANCING a. COLLECTIVE EXPRESSION: right of groups of persons to organize, join their voices, pool their resources, and speak/publish/control the content of their message. As well as to EXCLUDE persons that do not embrace the message of the group. i. Democratic Party of US v Wisconsin 1088 main case: D’s charter provides that only people who PUBLICLY affiliate w/ the Democratic party may participate in the process of selecting delegates to the Party’s National Convention. Wisconsin, however, allowed non-D’s (members of other parties and independents) to vote in the Democratic primary w/o regard to party affiliation or w/o req that they declare a public affiliation w/ the Democrats. 1. Issue: whether W may insist that its delegates be seated at the Convention even though they were chosen through a process that violated the Democratic National charter. 2. SCOTUS – NO, W may not insist that D seat the delegates a. Cousins v Wigoda 1089: precedent here, held that a state interest in protecting the integrity of its electoral process ≠ compelling enough to displace 1st A right of the National Party Convention to include/exclude as group b. 1st A = right to gather in association for the purpose of advancing shared believes = FREEDOME TO IDENTIFY THE PEOPLE WHO CONSTITUTE THE ASSOCIATION i. Right of group to define itself = a right to exclude those the group believes will “distort its collective decisions” ii. And protects the group from intrusions by those w/ adverse political principles c. State does NOT have a compelling interest: the state interest is not significant enough to justify the substantial intrusion into the associational freedom of members of the National Party d. Take Home: group’s have collective constitutional rights to free speech and association, to engage in expressive activity includes the right to define who is in the group, in order for the group to be able to control the content of its own collective expression i. The right to DIS-ASSOCIATION from others ii. This means: the group gets to decide WHAT messages the group expresses, WHO is in the group that is deciding what the group says as a group, HOW the group will operate to decide these things, HOW and THROUGH WHOME it will communicate its message ii. Roberts v US Jaycees 1091 main case: J’s = junior chamber of commerce, a nonprofit membership corporation devoted to educational and charitable purposes to foster the development of MEN’S civic organizations in the US. It has 7 classes of memberships including: regular members: limited to young men 18-35, associate members (women may join this) and Local chapters: any young men’s organization of good repute. Women make up about 2% of members. 1. Issue: Minneapolis and St. Paul chapters allowed women to join as “regular” members and the board of directors threatened to revoke the charters of the chapters for violating bylaws. So the groups sued for discrimination. 2. Statute: it is unfair discriminatory practice, to deny any person the full and equal enjoyment of . . . a place of public accommodation b/c of . . . sex 3. SCOTUS – J’s violated statute, not a 1st A infringement to req inclusion here compelling interest a. Place of public accommodation = a business who facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public b. Is there a protected right – Yes the J’s have a 1st A right to organize i. Generally: groups may define their members and who to include/exclude ii. Two Rights of Association 1. Right to intimate relationship: fundamental right 2. Right to associate for purposes of engaging in 1st A protected activities: political, social, protest, parades, etc..(group activities that express things) c. Regulation: it works an infringement by requiring the org to admit certain people into it d. Exception for Associational Rights – Test – Strict Scrutiny: i. Must be a compelling state interest ii. Unrelated to the suppression of ideas iii. That cannot be achieved through less restrictive means e. State Passes Test b/c i. The eradication of sex discrimination = compelling ii. The Act ≠ suppression of speech or content/viewpoint regulation. It merely eliminates discrimination iii. No way less restrictive b/c the act does not change the J’s creed of promoting interests in young men, it imposes no restriction on the Org’s ability to exclude members w/ different ideologies/philosophies f. J’s = place of public accommodation and J’s haven’t articulated any SERIOUS BURDEN that the act places on them, in fact they have already admitted many women g. Absent of a showing of a far more substantial burden being placed on the J’s lose h.  B/c Jaycee = a “business” they are a little outside usual 1st A protection b/c they didn’t really have an “expressive message” and no form of political speech & Stuff iii. Boy Scouts of America v Dale 1096 main case: Dale was a former Eagle Scout and gay rights activist. The boy scouts sought to revoke his membership when they found out he was gay. 1. Issue: Does New Jersey’s public accommodation law violate the 1st A of the BSA to expressive association 2. SCOTUS – yes the NJ law = violation of BSA 1st A rights a. Freedom of Association: presupposes freedom NOT to associate – if the presence of a person affects in a SIGNIFICANT way the group’s ability to advocate public/private viewpoints i. (TEST) Freedom can be overridden by ii. Regulations adopted to serve COMPELLING state interests, iii. UNRELATED to the suppression of IDEAS, iv. That cannot be achieved through SIGNIFICANLY LESS RESTRICTIVE means b. Analysis: i. Does BSA engage in EXPRESSIVE ASSOCIATION - yes 1. The group must engage in some form of expression whether public or private that COULD be impaired in order to be entitled to protection 2. BSA is intended to develop good morals, reverence, patriotism, and self- improvement – and discourages Scout leaders from disseminating views on sexual issues a. Merely b/c the BSA doesn’t revoke the membership of “straight” leaders who disagree w/ the “no-gay” policy ≠ dispositive 3. Keep kids “morally straight” and “clean” 4. This = expression through example a. Court gives EXTREME deference to the BSA as to what it’s “message” is b. BUT the group must articulate SOME KIND of EXPRESSIVE conduct ii. Is NJ’s law in violation of the 1st A – yes 1. The forced inclusion of Dale would SIGNIFICNATLY affect the expression of BSA b/c Dale’s homosexuality = his viewpoint and forcing BSA to include Dale would force them to indorse his viewpoint  thereby changing the advocated “viewpoint” of BSA so this is like Hurley iv. Rumsfeld v FAIR 1101 main case: FAIR = an association of law schools that opposed gay discrimination in the military so the schools denied military recruiters access to the schools. The gov’t had enacted the Solomon Amendment that forces institutions to choose b/t either enforcing their non-discrimination policy against the recruiters and forgo receiving certain federal funding, or to allow the recruiters access in order to get the funding. 1. Issue: does the Solomon Act denying funding to schools abridge their 1st A freedom of association 2. SCOTUS – NO abridgement a. Schools have a Choice: allow the recruiters in or forgo the funding b. Unconstitutional conditions Doctrine: gov’t can’t deny a benefit to a person that infringes his constitutionally protected freedom of speech – even if he has no entitlement to the benefit. c. But Congress could directly impose the mandates of the Solomon Act i. The Act regulates CONDUCT – the schools can still speak out against the discrimination if they want they only have to allow the recruiters onto the premises ii. Schools are not being compelled to pledge or motto anything supporting the recruiters iii. Allowing the recruiters onto the land ≠ affect the schools’ speech at all, a decision to allow a recruiters is NOT EXPRESSIVE CONDUCT like a parade would be (Hurley) 1. Unlike flag burning the Solomon Act is not expressive iv. For the school to be “expressing” anything it has to be saying something about the recruiter = Evidence that this is CONDUCT related so APPLY O’BRIEN v. O’Brien Applied 1. Gov’t = compelling interest in raising/supporting army 2. Solomon Act regulates conduct not content 3. Passes O’Brien vi. Important Distinction b/t other cases 1. Unlike Roberts, the recruiter is NOT a “part” of the school, he is merely a visitor and therefore ≠ an “associate” of the school, so the Act doesn’t abridge the schools’ right to association a. It doesn’t force the school to “accept a member” 2. Recruiters are merely on campus for limited time so having them on campus ≠ the law school changing its viewpoint b/c the school isn’t “taking on” the recruiters and their messages like Hurley a. b/c they are “alien” to the law school recruiters ≠ part of the “association” b. CAMPAIGN FINANCING i. Citizens United v FEC 130 S. Ct. 876 (2010) supp: ∏ sued alleging that campaign financing rules were unconstitutional as applied to their movie about Hilary Clinton when she was running for president. The FEC (Federal Election Commission) made it a felony for a Corporation to finance and distribute videos regarding presidential candidates under the Bipartisan Campaign Reform Act (BCRA) 1. 3 Q’s a. Is spending money for political purposes protected by 1st A b. Is the collective spending of money protected by 1st A. c. Are there sufficient gov’t interests that trump/restrict spending of money by groups for political purposes 2. SCOTUS – Unconstitutional a. Government Interests i. Equalizing the playing field ≠ compelling gov’t interest applied to individuals or corporations ii. Anti-Corruption: must distinguish b/t 1. Contributions to campaign and = compelling interest w/ NLOM = OK to restrict a. From other contributors but NOT from the candidate himself – can’t bribe self 2. Expenditures to influence the public ≠ compelling b/c restrictions would be a “ban” on the speech by reducing the “open marketplace” of ideas iii. Protecting Shareholders from having Corp $$ spent on politics: This is NOT applicable b/c shareholders have their own recourse through company voting, allowing this would be 1. Overinclusive; b/c it would attach single shareholder’s who own companies 2. Underinclusive: b/c it the timeframe of the restrictions b. Here the ID of the “speaker” is NOT dispositive of whether there is 1st A protection. Can’t limit speech in the political arena based on their $$$, and the aggregation of such $$$ still warrants 1st A protection. c. Government may not, under the First Amendment, suppress political speech on the basis of the speaker’s corporate identity, overruling Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 d. Federal statute barring independent corporate expenditures for electioneering communications violated First Amendment, overruling McConnell v. Federal Election Com’n, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 e. Disclaimer and disclosure provisions of Bipartisan Campaign Reform Act of 2002 did not violate First Amendment, as applied to nonprofit corporation’s film and advertisements f. Take Homes i. Court applied Strict Scrutiny to all 3 gov’t interests above ii. In upholding the disclosure/reporting rules they applied Intermediate scrutiny b/c it is “conduct” iii. Corporations = citizens/people for 1st A IX. RELIGIOUS SPEECH a. GENERALLY: i. Courts routinely affirm the same 1st A protection for religious speech as other speech – gov’t can’t prohibit/penalize/or exclude b/c of message ii. Free Exercise Clause: state action prohibiting or penalizing speech (or expressive conduct) b/c of its specifically RELIGIOUS message punished the free exercise of religion at the same time that it abridges the freedom of speech iii. Establishment Clause: limits GOV’T SPEECH on religious topics and prohibits gov’t COERCION on religious exercise – but it DOES NOT impose any limitation on freedom of speech for citizens. b. Rosenberger v Rector and Visitors of University of Virginia 1009 main case: Limited Public Forum Doctrine R’s started the Wake Awake Productions (WAP) newspaper to convey a pro Christian message. The paper wanted the school to pay 5K for its printing costs for the paper. The school said NO b/c it was a “RELIGIOUS ACTIVITY” as defined by the school. But the paper wasn’t a “RELIGIOUS ORGANIZATION” which would’ve made it ineligible for status as a Contracted Independent Organization (CIO) with the school. B/c it was a CIO it was NOT a “religious organization” it was a CIO eligible for $$$ i. SCOTUS – Violates 1st Freedom of WAP 1. 1st Amendment a. WAP = a CIO NOT a religious organization so it is eligible for SAF funding “like any other” organization – and at no stage in suit did University claim WAP was a “religious org” b. ***Limited Public Forum Doctrine: Gov’t regulations may NOT favor 1 speaker over another, and once the gov’t has opened up 1 forum for expression, the State must respect the boundaries it has itself set it may not exclude speech where its distinction is NOT (1) reasonable in light of the purpose served by the forum (can’t be strict scrutiny b/c a LPF is already somewhat content discriminatory for purpose) (2) nor may it discriminate against speech on the basis of its viewpoint (viewpoint is singled out b/c the limited public forum already means that some sort of content is limited by the limited forum) i. Content discrimination may be permissible if it preserves the purposes of the LIMITED FORUM ii. Viewpoint discrimination is presumed impermissible when directed against speech otherwise w/in the forum’s limitations c. Here the SAF = a forum d. For WAP the university did VIEWPOINT DISCRIMINATION against them i. The prohibited perspective, not the subject matter, caused the denial of $$ e. Having offered to pay 3rd party fees for private speakers the University may NOT silence the expression of a selected viewpoint i. The economic fact of scarce $$$ ≠ enough to justify 2. Establishment Clause a. Factor: the guarantee of neutrality is respected, not offended when the gov’t, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are BROAD AND DIVERSE b. Gov’t program here = NEUTRAL to religion i. The guidelines make a distinction b/t “religious organizations” and others, and doesn’t discriminate based on which religion it is – all are barred from being funded c. Fees are not like taxes, they are mandatory from the students of $14 a term and that money goes to a pool fund for all the student groups. i. So this is not like a public assessment designed to fund religion d. Critical Difference is b/t GOV’T speech endorsing religion, which the Establishment Clause forbids, and PRIVATE speech endorsing religion which the Free Speech Clause and Free Exercise Clause protect e. Here: the University puts a disclaimer on all publications that it does NOT endorse the messages of the authors so it has NOT endorsed the perspective i. It is not necessary for the University to deny eligible student publications $$ b/c of their viewpoint in order to obey the Establishment Clause ii. Just no VIEWPOINT discrimination c. NOTES ON ROSENBERGER i. 3 Types of Forums 1. Traditional Public forums: streets, parks, sidewalks, etc…which are gov’t property but have been places for expression for a very long time 2. Limited Public Forums: places or facilities that the gov’t has made open to a limited category of speakers – universities for students a. Rosenberger was this: once open the gov’t can’t close it up b/c of religious message 3. Nonpublic Forums: places the gov’t has reserved for its proprietary purposes and not made generally open for expressive activity ii. Widmar v Vincent 1125: student group at University of Missouri-Kansas city sought to meet at the university center for religious discussions. The school wanted to deny them access but allow access to other “non-religious” groups. Court held this violated the free speech clause and that the Establishment clause doesn’t authorize states to discriminate against religious speech iii. Westside School Dist. v. Mergens 1126: extended Widmar to all public secondary schools – high school and most middle schools iv. Lamb’s Chapel v Center Moriches Union Free School Dist 1126: held that a public school district could NOT exclude a religious group from renting a school building after hours for hosting a religious film simply b/c of the religious nature of the film – where the school district made its facilities available for rental by other community groups v. Can a Limited Fund = a Public Forum: Rosenberger says YES 1. Zelman v Simmons-Harris 1126: upholding the inclusion of religious schools in Cleveland 2. Locke v Davey 1126: Free Exercise Clause of 1st A does NOT REQUIRE the equal inclusion of the choice of religious education under the stat’s college scholarship award program. The court upheld Washington’s state promise scholarship program’s exclusion of scholarship money for religious theological education for the purpose of becoming a pastor vi. Christian Legal Society v Martinez supp 108: School enforce an “all comers” policy for student groups to be recognized and receive preferential treatment. All comers, meaning they had to allow anyone to join the group and be leaders. A religious group only allowed members who had signed a disclaimer of the faith – their belief in god and that sex should only be done b/t married heterosexual adults – wanted to be recognized and get the preferential treatment. The school said no. The court upheld it under the Limited Public Forum Doctrine b/c access to the facilities was like a “subsidy” and didn’t compel the groups to admit people but instead allowed them to deny access of their own accord in exchange for not getting the preferential treatment. 1. Limited Public Forum Doctrine: the gov’t may exclude speakers form public property that has been opened up for speech activities ONLY IF it has a reason that is BOTH – viewpoint neutral and reasonable in light of the purposes served by the forum. 2. SCOTUS – here School regulation is OK a. LPF have a lower standard than Strict Scrutiny****** only “reasonable…./\ b. Merges 2 Claims - Court analyzes BOTH the Association claim and the Speech claim under the LPC Doctrine – this is a new way to analyze claims like this under LPF c. Here the BIG things = not compulsion b/c it is a subsidy – groups only get the stuff if they work w/in the limits (like Rumsfeld v FAIR) d.  the Regulation was “reasonable” b/c it was related to the PURPOSE of the forum for allowing diversity/equality of views in the limited forum e. BUT if this is a PRETEXT for discrimination then = FAIL as viewpoint discrimination i. However if it is neutral, then just b/c the regulation has a “disparate” impact (incidental effect on some groups) on the views is NOT a violation X. STUDENT SPEECH: A PARADIGM CASE OF “GOVERNMENT ENCLAVES” a. Gov’t Enclaves = where gov’t “owns” the forum and is funding it, acting more like a proprietor rather than as a specific regulator b. Emblematic Nature of Student Speech: b/c students speak where the gov’t OWNS the program, school, or activity in question. There is always some sort of restriction here except when the gov’t itself is speaking c. Sonkowsky v Board of Education 1130 main case: ∆ was a 4th grade student in love w/ the Green Bay Packers, he refused to color a picture in Minnesota Vikings colors (purple and gold) and did it in the Green/Yellow of the Packers against the teacher’s instructions. The teacher gave him a 0 and refused to let me go on a field trip to see the Vikings b/c ∆ had 25 other instances of “disruptive behavior” during the week. Parent sued as violation of 1st A i. SCOTUS – no 1st A violation 1. ∆ hasn’t established the deprivation of a constitutional right. 2. Instead the record shows that ∆’s CONDUCT (disruption in class) not his expressive ideas was what kept him from going 3. A 9 year old has no constitutional right to wear a Green Bay Packers Jersey to school a. School can set attendant and appearance standards for involvement in school sponsored activities/functions d. NOTES ON SONKOWSKY i. Tinker v Des Moines Independent Community School Dist 1131: 2 students wore black armbands in protest of the Vietnam war. The school had passed a policy just 2 days earlier to ban this armband wearing and the school suspended the students. School appeared to have the “purpose” of trying to minimize the controversy arising from student demonstration. The state may NOT impose and enforce any conditions that it chooses upon attendance at public institutions of learning and the court struck down the school’s prohibition. 1. Standard: (symbolic expression here) a student may express his opinions if he does so w/o materially and substantially interfering w/ the requirements of appropriate discipline in the operation of the school and w/o colliding w/ the rights of others. a. This was “content & viewpoint” based b/c up until this point the school had tolerated such symbolic expression – only this thing did the school pass a rule against 2. This case was NOT a “curricular” case where the school was aiming at pedagogical material – that is a bit different a. Also NOT disruptive – this was silent/passive expression ii. School Library Book Censorship Island Tress School Dist v Pico 1133: local school attempted to remove 8 “anti-american” books from the SCHOOL library. The court noted that the books were NOT required course material but were library books and the 1st A protects the students’ right to choose their own reading material. However, the library could refuse to add such books to the library, but once it let them in it did not have absolute discretion to remove them. Only “sexually explicit” books could be removed if such removal was based on “educational suitability” rather than political ideology. 1. This was NOT “curricular” so that draws a distinction on the restriction – says restrictions are Bad iii. Vulgar Student Expression Bethel School Dist v Fraser 1134: student made sexually explicit speech talking about being “firm in the pants” and “reaching a climax” and was suspended. SCOTUS upheld the suspension schools can ban sexually vulgar/indecent speech b/c sexual innuendo is NOT related to any form of political viewpoint = content based expression & it Interfered w/ the school’s pedagogical mission of maintaining civil discourse (interest) that saying lewd and vulgar things in public is “inappropriate” 1. This WAS curricular b/c it was a. A required assembly of the students (req attendance) (captive audience) b. Assembly = school sponsored iv. Student Speech in Curricular context: 1. Hazelwood School Dist v Kuhlmeier 1134: school principal deleted 2 articles form a school funded newspaper where the articles were written in the school’s journalism class (articles were about teen pregnancy and interviewed pregnant students). While the school could NOT sensor student-produced newspapers designed for student expression, it COULD control the content of school-run newspapers/pedagogical exercises furthering legitimate educational goals. B/c the school funded and maintained the newspaper as part of its curriculum it could restrict the content it could reasonably be believed by others to bear the IMPRIMATUR of the school a. Only where NO valid educational goals/purposes are being furthered can court intervene b. This WAS curricular: school run, part of curriculum in class i. Journalism ethics about not having time to remove identifying info re: students ii. Also not “age appropriate” b/c newspaper circulated to High School and Middle School 2. Settel v Dickson County School Brd 1135: teacher has power to refuse to allow a student to write a paper regarding religion 3. West Side School Dist v Mergens 1135: School could NOT refuse to allow a Christian student group to meet after school under Equal Access Act of 1984 e. Morse v Frederick 1136 main case: the Olympic Torch Relay passed through Juneau Alaska and the Juneau-Douglas High School allowed students to attend and get out of class. Some students during the relay held up a banner that said “bong hits 4 jesus” and the principal asked them to take it down. 1 student refused and was suspended for 10 days. It was school policy to prohibit students from advocating the use of illegal drugs and to apply all school rules during “class trips and events.” This Event was a “class trip” as allowed by the school and teachers were there to supervise the students. i. SCOTUS – no 1st A violation 1. The banner = advocating the use of illegal drugs (pot) 2. As school policy notes all school rules apply to class trips, and the rules prohibit such advocating of illegal drugs a. The cheerleaders performed, the band performed, teachers were supervising students, etc 3. ∆ didn’t even argue that the banner conveyed a political or religious message, just that it was “nonsense” = killed his case basically a.  this is NOT a case about political debate on the legalization of pot 4. Tinker precedent = 1st A rights apply in “light of the special characteristics of the school environment” and only allowed suppression when student speech “materially and substantially disrupts the work and discipline of the school” (standard) = regulation 5. Fraser upheld a suspension for the sue of a sexual metaphor and has 2 principles a. The constitutional rights of students are not automatically coextensive w/ the rights of adults in other settings b. The Tinker test is not absolute for scope of school/teacher power to regulate student speech in schools c. Standard = vulgar and lewd speech = regulation 6. Kuhlmeier upheld school censorship of a school paper b/c educators don’t violate the 1st A when the exercise control over the style and content of student speech in school-sponsored activities so long as their actions are reasonably related to legitimate pedagogical concerns a.  school can regulate some speech even though the gov’t could NOT in similar situations outside school b. Standard – if speech could be considered to be that of the school by others = regulation 7. HERE – a. Detering drug use = COMPELLING interest so OK to ban in schools b. BUT schools CAN’T ban anything they label “offensive” = No offensiveness standard 8. School Standard for Regulation: (twist on Brandenburg) advocacy of illegal drug use can be regulated by the school f. NOTES ON FREDERICK i. Prisons: prisoners have 1st A rights but it is limited by prison context ii. Military Bases: just like prisons gov’t may restrict access to military bases iii. Gov’t as Employer 1. Rankin v McPherson 1147: gov’t EE in a county PO office could not be fired for expressing chagrin that the attempted assassination of President Reagan had failed “If they go for him again I hope they get him” 2. Snepp v US 1147: gov’t can ask EE’s to contract away 1st A rights. CIA EE violated contractual agreement by publishing book before sending it to the Agency for clearance b/c Gov’t has a COMPELLING interest in protecting secrecy of info important to national security iv. Teachers in Schools 1. High Schools are like that for students, teachers can be restricted 2. Sweezy v NH 1147: for University teachers the 1st A forbids the gov’t from abridging the content of the teachers lectures a. Same w/ communist speech v. Gov’t as Librarian: Pico case above – gov’t can’t remove the books but it can decide not to incorporate them into the library vi. Gov’t as Patron of Arts: 1. National Endowment for the Arts v Finley 1147: court upheld a statutory provision requiring the NEA to ensure that artists’ applications for a gov’t grant be judged on the basis of “artistic excellence and artistic merit” while also “taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public” b/c although this was “content based” the grant was a “competitive process” not a limited public forum vii. Other Gov’t funding 1. Speiser v Randall 1148: Gov’t can’t deny tax exemption to groups b/c they advocate the forcible overthrow of the gov’t – it would be penalizing them for their speech 2. Regan v Taxation w/ Representation 1148: upheld provision conditioning tax benefit to groups that do political lobbying 3. FCC v League of Women Voters 1148: struck down condition on receiving grant from CPB that prohibited recipients from “editorializing” their broadcasts w/ their own funds 4. Rust v Sullivan 1148: upheld prohibition on recipients (doctors) of federal family planning funds from referring patients for abortions 5. Legal Services Co v Velazquez 1148: struck down prohibition on recipients of gov’t legal services funding from representing the poor to challenge the welfare law viii. Gov’t Own Speech 1. Pleasant Grove City v Summum 1149: city had 1st A right to display a privately donated monument that included the 10 commandments to be displayed on gov’t property w/o allowing another religion to donate a display as well. XI. VAGUENESS, OVERBREADTH, LICENSING, STANDARDLESS DISCRETION, PRIOR RESTRAINT a. VAGUENESS, OVERBREADTH, LICENSING, STANDARDLESS DISCRETION i. Procedural Doctrines – better 1st line fight – easier to challenge procedurally v. substantive 1. Vagueness: prohibits vague regulations of speech – people shouldn’t have to guess at law a. Standard: would a reasonable person be able to discern what is applicable/ what this regulation is addressed at. Also, would a reasonable person be able to know in advance what activities are prohibited, would the POs have too much discretion to interpret it? 2. Overbreadth: prohibits sweeping speech restrictions – if law prohibits otherwise protected a. Standard: there is a substantial likelihood that law will abridge protected speech 3. Prior Restraint: that gives administrators wide discretion to restrain speech in ADVANCE 4. Standardless/Unbridled Discretion: giving POs/Administrators unbridled discretion as to how to apply a law affecting the freedom of speech by its “chilling effect” on expression ii. Commercial Speech: these standards don’t usually apply quite as strictly, but changing now iii. Board of Airport Commissioners v Jews for Jesus 1149 main case: Issue: whether a resolution banning ALL 1st A activities at LAX violates the 1st A. ∆ was handing out free religious literature on a walkway at LAX a PO warned ∆ that the city would take legal action if he refused to leave so he left and later sued 1. SCOTUS – Facially Unconstitutional, don’t need to reach “forum” arguments a. Overbreadth Doctrine: an individual whose own speech/conduct MAY be prohibited is permitted to sue to challenge the statute on its FACE “b/c it also threatens others not before the court–those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law challenged i. Test: the overbreadth must be SUBSTANTIAL - there must be a realistic danger that the statute itself will significantly compromise recognized 1st A protections of parties not before the court for it to be facially challenged for overbreadth 1. Lowers the standing requirement to allow ∆ to challenge for “others” ii. Here: by prohibiting ALL protected expression LAX tried to create a “1st A free zone” so the statute does NOT merely regulate expression, it prohibits everything, talking, reading, wearing campaign buttons or symbolic clothing 1. Even if this was a “nonpublic forum” no gov’t interest would be sooo compelling as to justify an a absolute prohibition on speech b. Vagueness: LAX suggests that the resolution is only intended to reach expression “unrelated to airport related purposes” = vague b/c what is and isn’t “airport-related” is “murky” at best. c. Standardless Discretion: under LAX’s vague construction, POs would be able to decide in the 1st instance whether a ∆’s activity is “airport related” or not = virtually unrestrained power to arrest and charge persons w/ a violation and creates an opportunity for abuse iv. NOTES On Jews for Jesus 1. Overbreadth: allows facial challenge for “substantial” b/c it lowers the standing req and allows anyone who COULD be prohibited to challenge the law 2. Vagueness: 1st A requires that laws be precise a. Coates v Cincinnati 1153: court struck down a city ordinance that made it illegal for “three or more persons to assemble” on a sidewalk and “conduct themselves in a manner annoying to persons passing by” b/c “annoying” = no standard at all (vague) and it would sweep in too much clearly protected expression (overbreadth) 3. Unfettered Discretion: a. Housing v Hill 1153: PO was talking to ∆’s friend, ∆ said for PO to pick on someone his own size. PO asked ∆ if ∆ was “interrupting him in his official capacity” and ∆ said yes, so PO arrested ∆ under ordinance making it illegal to “oppose….or interrupt” a PO. This was soo broad as to be “vague” b/c wasn’t really a standard, and it gave UNFETTERED DISCRETION to the PO b/c he could abridge the rights of ∆’s for expressing ideas that merely annoyed him 4. Licensing: schemes that permit gov’t officials sweeping discretion to permit/refuse speech, a. City of Lakewood v Plain Dealer Publishing 1154: struck down city ordinance that vest mayor w/ essentially “unbridled discretion” to decide which publishers could place newsracks on public property 5. Prior Restraint: systems that authorize officials to forbid speech in ADVANCE are considered PRESUMPTIVELY violations of free speech. These can be judicial, administrative, or legislative orders. These are the “most serious and least tolerable” infringement on 1st A rights. b. PRIOR RESTRAINT i. Gov’t Can Prohibit Conduct: for sufficiently important reasons unrelated to the suppression of any expression as long as it hits the conduct it is aiming at, and not the speech primarily 1. Gov’t may regulate speech/expressive conduct even on the basis of its content where such speech is so tightly casually connect to, or an integral part of, the occurrence of conduct that gov’t has an exceptionally strong interest in prohibiting, as to make the speech inseparable from the EXCEPTIONAL HARM gov’t is trying to prevent/punish 2. Clarity on Prior Restraint: such laws must have very clear standards, have nearly no discretion to be exercised by an official, and a quick means of appeal for decisions. ii. Pentagon Papers Case Summarized: official leaked 17,000 pages of top secret info regarding US involvement in Vietnam. Papers want to publish it. US argues national security 1. Issue: is it permissible to band speech b/c its leaking could be harmful to national security 2. Court – No injunction on publication a. Prior Restraint i. Presumptively invalid ii. Heavy Burden iii. At heart of 1st A iii. Notes on Pentagon Papers Case 1. 6 votes to FORBID an injunction against publications – ESPECIALLY DISFAVORED‼ a. US v Progressive Inc 1062: DC enjoined a magazine from publishing an article explaining how to build a hydrogen bomb. But then an independent publisher did so and the gov’t dropped the injunction anyway b. Shuttlesworth v Birmingham 1063: court struck down city ordinance giving the city commission “virtually unbridled and absolute power” to deny a parade permit ordinance if its “judgment of the public welfare, peace, safety, health, decency, good order, morals, or convenience require” such action. i. Walker v Birmingham 1063: established that violators of an injunction could still be prosecuted for CONTEMPT even if injunction unconstitutional********* c. In re Providence Journal 1064: DC issued TRO against a paper barring it from printing a story about a guy being a member of the mafia. Paper printed it anyway and lawyer successfully challenged the TRO the next Monday, but the paper was still held in CONTEMPT for violating the TRO 2. Felonious Acquisition of Information a. Bartnicki v Vopper 1064: a guy illegally intercepted and taped a call b/t union officials and got good dirt. He gave it to a radio station and they played the tape on the air. Union tried to sue the radio for violating a fed law making it illegal to disclose illegally obtained info, but SCOTUS upheld 1st defense b/c the publisher obtained the info LAWFULLY from a source who had obtained it unlawfully – Key is info was TRUTHFUL b. Morison v US 1065: DOD EE provided classified info to a paper and was convicted, conviction upheld b/c the ∆ here actually illegally got the info and gave it away. iv. Prior Restraint in Court: usually OK against court personnel and lawyers 1. Press – prior restraint/gag orders on the press is usually very strictly scrutinized. Only if press will prejudice the case can a gag order be upheld XII. NEW CATEGORIES OF UNPROTECTED SPEECH a. US v Stevens supp main case: Congress enacted 18 USC §48 to criminalize the commercial creation, sale, or possession of depictions of animal cruelty. The statute only addresses PORTRAYALS of harmful acts, not the underlying conduct – applies to any visual or auditory depiction in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed if that conduct violates the fed/state law where the creation/sale/possession takes place. Exempts religious, political, scientific, educational material. Legislative history focus was CRUSH VIDEOS. ∆ was indicted for selling videos of dogfighting. ∆ moved to dismiss that the statute was facially invalid under 1st A. i. Gov’t argues New category of “inextricably linked” (like “true threats”) to criminal activity and should therefore not be protected b/c it fits w/in a category of prohibited speech like true threats ii. SCOTUS – Invalid b/c substantially overbroad b/c “categorical exclusion” of speech 1. Statute = presumptively invalid b/c regulates expression based on content 2. While long history of prohibiting animal cruelty, no history of prohibiting depictions 3. Analysis - Overbroad = if a substantial number of its applications = unconstitutional a. Categorical Exclusion can only be based on historical understanding of what was to be included/excluded based on 1st A. (traditional exclusions)**** 4. Statute Here – only applies to “depictions of animal cruelty” not even req that the depicted conduct be illegal (no distinction based on illegal conduct) a. Applies to conduct illegal in the state where depiction is created, regardless of whether the actual conduct took place there b. Would apply to hunting videos too b/c the state allows each jurisdiction to export its laws to the rest of the country c. Exclusions of “animal cruelty” have NOT be historically banned speech b. Brown v Entertainment Merchants Assn supp main case: ∆ representing video-game and software industries filed a challenge to a CA law that restricts the sale and rental of violent video games to minors. Content discrimination = S.S. review**** (same w/ viewpoint). i. State tries to argue for new category of prohibition against lewd/nude graphics to children (violence) ii. SCOTUS – Violation of 1st A 1. Video games = 1st A protection = entertainment/art/literature in a way 2. Legislature cannot create a new category of unprotected speech by weighing the value of a particular category against its social costs 3. Content Regulation Here  directed at Children = “unprecedented” a. Content based regulation = presumptively invalid unless it passes STRICT SCRUTINY 4. CA Alleges: that violent video games lead to violence in children. But support from studies, inconclusive, and flawed methodology and not enough to show a positive correlation – NO direct causal link so the evidence ≠ “compelling” at all a. And children can then buy the game if they have parental consent later - 5. Game Rating System already in place that allows parents to restrict their children’s access a. Not all children who are prohibited from buying the games have parents who disapprove of them playing them 6. Under-inclusiveness – CA failed to restrict Saturday morning Cartoons like the games a.  VIEWPOINT discrimination b/c singling out video games and not all media 7. Over-Inclusive: b/c the parents of some children allow them to have the games 8. Fails S.S. b/c no compelling state interest and not NTM 9. Unprecedented to balance social cost to benefit to make new categories of prohibitions a. Categorical exclusions MUST BE HISTORICALLY BASED – have to tie it to an old to make it applicable now – can’t just make up new ones iii. Thomas Dissenting 1. Not facially unconstitutional, would reverse and remand for further proceedings 2. CA law doesn’t implicate 1st A b/c the “rental and sale” of video games = conduct 3. New category would be ok as “speech directed at children not OK’ed by parents” iv. Breyer Dissenting 1. Constitutional b/c regulates “conduct” 2. Also communication to children can regulated more than w/ adults – OK to protect children c. Sorrell v IMS Health Inc supp main case: Vermont enacted statute to restrict the sale, disclosure, and use of prescriber-identifying information. Pharmaceutical manufacturers promote their drugs to DR through “detailing” where pharmacies receive “prescriber-identifying information” when processing RX and sell the info to “data miners” who produce reports on prescriber behavior and lease their reports to pharmaceutical manufacturers. “Detailers” for the pharmaceutical manufacturers then use the reports to market the drugs better. Vermont law stopped the disclosure of this information unless a Dr consents. ∆’s challenge that this unconstitutionally burdens their speech i. SCOTUS – 1st A Violation 1. This = CONTENT and SPEAKER based restriction. Exception = educational communications, who can buy the information. Only ∆’s who want to use the info for marketing are barred. So also = VIEWPOINT discrimination a. On its face this law burdens the disfavored speakers 2. Legislative Findings indicate that the intent of the statute was to prevent the detailers, and ONLY detailers, from communicating w/ physicians  To diminish the effectiveness of the marketing by the brand-name drug companies a. Content and Viewpoint discrimination 3. *****Intermediate Scrutiny Plus***** b/c of content/viewpoint discrimination – COMMERCIAL SPEECH IS NO EXCEPTION and gets 1st A protection like privates ppl**** a. Not just mere commercial speech otherwise Central Hudson test would apply: Intermediate scrutiny to sustain content based commercial speech restriction i. State must show regulation directly advances a substantial gov’t interest ii. Must be a fit b/t regulation and desired result 4. Standard Used Here******* (Info 1st can’t be misleading) – then  a. Substantial interest b. Materially advances the interest c. Well tailored fit d. PLUS – viewpoint neutral (like private people now) 5. Vermont Argues: a. Statute made to lower cost of drugs ≠ compelling and narrowly tailored i. The law doesn’t have a simply effect on speech, it is direct at certain content and aimed at a particular speaker b. That the law is made to protect confidentiality and avoid harassment c. Also, that this is regulating access to gov’t information i. Once the gov’t makes that info available there are limits on how it can decide how to distribute the benefit d. The statute is aimed at “conduct” b/c it limits the “sale and transfer of the info” i. Court has held previously that the creation/dissemination of info = SPEECH 6. Prescriber-Identifying information = SPEECH for 1st A protection 7. Content Regulations are presumptively INVALID a. Even under Commercial Speech Inquiry State must satisfy STRICT SCRUTINY: compelling interest w/ NLOM – there must be a “fit” b/t ends and means b.  NOT NARROWLY TAILORS –the state isn’t being “direct” w/ its regulation of “detailers” – this is only an indirect way of restraining these speakers 8. Final Flaw – many doctors find this conduct instructive and like it a. And the state nowhere asserts that this conduct/speech is false or misleading ii. Breyer/Ginsburg/Kagan Dissenting 1. Should not use S.S. only “intermediate” here b/c that is what works for COMMERCIAL SPEECH 2. Under intermediate scrutiny – the statute passes constitutional muster

CHAPTER 6 – FREEDOM OF RELIGION

I. THE FREE EXERCISE CLAUSE a. Constitution – Congress shall make no law respecting an ESTABLISHMENT of religion; or prohibiting the FREE EXERCISE thereof i. Stansbury v Marks 1155 main case (1793): a witness could be fined for refusing to testify on his Sabbath. ∆ called a witness who refused to be come in (it was Saturday) and it was his Sabbath and he was fined 10l but the ∆ waived the benefit of the testimony and the witness was discharged w/o fine 1. Penalty = against 1st A Free Exercise (penalty interpreted same as “prohibition”) ii. Rosenberger v Rector & Visitors of University of Virginia 1157: the Free Exercise Clause means AT A MINIMUM that gov’t may NOT discriminate against religious persons/groups/exercise iii. Purposes of These Clauses 1. Prohibit Federally chartered church 2. Protect the already established churches iv. Religion = sincerely held belief that takes place of orthodox beliefs. 1. Court can gauge if a belief is “sincerely held” but can’t examine the “truth” of the belief b. What is Clear under Free Exercise Clause – freedom to believe is ABSOLUTE – BUT freedom to act based on religious beliefs is NOT absolute i. Prohibiting free exercise means: can’t regulate beliefs 1. Can’t compel affirmation of beliefs 2. Can’t punish expression of doctrine the gov’t believes to be false (gov’t can’t look at “truthfulness” of religion” only sincerity) c. How Free Exercise usually comes about i. Gov’t prohibits what is req by religion ii. Gov’t requires what religion prohibits iii. Gov’t laws burden/make difficult religious observation (unemployment disallowed when people quit for religious reasons) d. Employment Division v Smith 1158 main case (1990): Issue: whether the Free Exercise Clause permits Oregon to criminally prohibit religious use of Peyote as a “controlled substance” and Deny unemployment benefits to persons fired for such religious use. ∆’s used peyote as part of native american religious ceremony part of Native American Church, they were fired from their jobs at a drug rehabilitation center b/c of this. The tried to get unemployment but were denied b/c they were “discharged for work related misconduct” i. OR Sup C – held violation of 1st A b/c denial was based on religious practice ii. SCOTUS – No 1st A violation under Free Exercise Clause 1. Free Exercise Clause of 1st A applies to states under 14th A. – a. Right to believe and profess whatever religious doctrine 1 desires b. Gov’t may not compel affirmation of religious beliefs, punish the expression of religious doctrines or impose special disabilities on the basis of religious views/status 2. It is permissible to incidentally effect the exercise of religious by a GENERALLY APPLICABLE, and otherwise valid, law a. While laws cannot interfere w/ religious beliefs and opinions, they may regulate PRACTICES/CONDUCT b.  so a law that does TARGET (not neutral/generally applicable) or discriminates against religious exercise = violation of Free Exercise 3. ∆’s argue Sherbert Test – strict scrutiny, but that has only been used for unemployment (but that is what is going on here…huh) a. If bare Free Exercise claim = RB b. Free Exercise + (hybrid claim) = S.S. c. Free E + individualized process (for determining exception) = SS i. exception permitted if SS says so ii. NO individual assessment here b/c law = criminal, for Sherbert no criminal violation d.  RB for GENERALLY applicable criminal laws where gov’t ability to enforce such laws cannot depend on measuring the effects of a gov’t action on a religious objector’s spiritual development 4. While other states have made exceptions for religious use of peyote, that is best left to the political process and not the courts. 5. Hold = prohibition in OR is constitutional 6. Standard for Generally Applicable Laws = Rational Basis Scrutiny a. B/c applying SS would  i. Allow each person to become a law unto himself ii. And reduce gov’t regulation using “generally applicable” laws 7. O’Conner Concurrence a. Use Sherbert standard of SS but here “compelling” interest and NLOM e. NOTES ON SMITH i. American Indian Religious Freedom Act Amendment of 1994 – allows use of peyote by an Indian for bona fide traditional ceremonial purposes ii. Sherbert v Verner 1168: Gov’t cant deny unemployment to 7th-Day Adventist (recognizing Sat as Sabbath) for refusing to work on Sat. Court applied S.S. and found that the “relinquishing” of religious beliefs = unconstitutional b/c no “compelling” state interest and not narrow fit iii. Thomas v Review Board 1168: Can’t deny unemployment to religious person who refused to work on armament manufacturing iv. Wisconsin v Yoder 1168: Amish may elect to not comply w/ state’s compulsory school attendance law and refuse to send children to school past 8th grade for religious reasons v. US v Lee 1168: Amish may NOT object to paying Social Security on religious grounds vi. Gillette v US 1168: No Constitutionally Required exemption from the draft for religious reasons vii. Bowen v Roy 1168: OK to req ∆ to provide Social Security number to get welfare despite religious objection viii. Goldman v Weinberger 1168: OK to forbid jewish military officer from wearing yarmulke pursuant to uniform headgear req ix. Lyng v Northwest Indian Cemetery Protection Assn 1169: OK for gov’t to build logging road on gov’t land through traditional Indian holy ground b/c Indians no longer own land and no burden on religious exercise (no prohibition) x. ****Religious Freedom Restoration Act (RFRA) enacted federal protection of religious freedom – req gov’t to justify a burden on religious exercise by showing “least restrictive means” and “compelling gov’t interest” = strict scrutiny. (this is used TODAY) 1. City of Boerne v Flores 1169: SCOTUS held RFRA could NOT be constitutionally applied to the states, only the Fed b/c it went beyond the constitutional req announced in Smith. Congress can only create a “remedy” not a constitutional right 2. Gonzales v O Centro Espirita Beneficente Uniao Do Vegetal 1170: upheld application of RFRA to federal gov’t prohibiting prosecution of use of hallucinogenic used for religious ceremony – gov’t lacked a compelling interest, created exemption from CSA for sincere religious practice 3. Cutter v Wilkinson 1170: RFRA doesn’t violate Establishment clause – accommodation ≠ establishment xi. Minimum REQ of the Free Exercise Clause 1. McDaniel v Paty 1170: struck down Tenn provision that prohibited ministers from holding public office b/c = against religious exercise and religious professions 2. Church v Lukumi Babalu Aye v City of Hialeah 1170: struck down ordinance forbidding ritual animal sacrifice – the Free Exercise Clause applies if the law at issue discriminates against some/all religious beliefs or regulates/prohibits conduct b/c it is undertaken for religious reasons a. Court here looked below the surface at the facts to demonstrate that the purpose of the law was to target the religion – it even had an exception for the killing of animals pursuant to “kosher” killing mechanisms such as Jewish req but not for this specific religious group b. It also regulated “conduct” based upon the religious reasons for it  law as a PRETEXT II. THE ESTABLISHMENT CLAUSE a. Establishment Clause: the gov’t may NOT coerce or induce the exercise of religion b. What’s Clear Under Establishment i. Can’t set up state/fed church ii. Can’t compel religions service iii. Can’t prohibit religious service iv. Gov’t can’t prefer 1 religion over another c. Establishment Clause Test – Lemon Test – 3 part test – void if fails any of the 3 i. 1 - is the primary purpose of the restriction/law to advance religion? 1. Posting of 10 commandments in school/courthouse 2. Statutes req teaching of creationism in public school if evolution was taught too 3. Laws req moment of silence/meditation in school ii. 2 – is the law’s primary effect to aid/inhibit religion? iii. 3 – would this regulation result in excessive entanglement b/t the gov’t and religion? d. 3 Theories i. Complete separation of church and state. Not just no official church/doctrine, but separation prohibits more by forbidding every form of PUBLIC aid or support for religion. 1. Benefits – total neutrality in religion so all religions feel like the gov’t is “theirs” 2. Bad – truly hard to separate out services given to public generally from religious aid, believers may perceive this as gov’t hostility toward their religion. And traditionally religion was important part of civil life and led to the development/creation of US and also traditionally part of Gov’t. ii. Neutrality: doesn’t have to be separation b/t church and state, but gov’t must be neutral. Gov’t can’t favor or disfavor religion. Neutral b/t diff religions and b/t religion and secular activities. And no endorsement of any religion b/c not neutral. Gov’t can support religion only as it supports other secular institutions – as long as it is evenhanded. 1. Benefits – flexible, and doesn’t “hurt” religion like separation theory 2. Disadvantage – hard to know what is “endorsement” iii. Active Accommodation of Religion: we want equality of religion w/ secularism. Gov’t shouldn’t be hostile to religion or traditional historic place in society. And constitution is violated ONLY when gov’t literally establishes a church or coerces religious participation or favors 1 religion over another. 1. Benefits – most consistent w/ history at founding of country b/c state churches existed. Promotes majoritarianism. This would avoid hostility toward religion a other theories have 2. Negatives – little would violate Establishment Clause, too deferential to majority e. EQUAL INCLUSION OF RELIGION IN GOV’T PROGRAMS/BENEFITS/FORA - Neutrality i. Neutrality: the Establishment Clause does NOT require the EXCLUSION of religious speech, religious speakers, groups, persons – from public for a or public benefits otherwise available b/c of the religious nature. Equal inclusions doesn’t violate establishment clause ii. Widmar v Vincent 1186: University denied student religious group access to university center for meeting b/c the meeting would be religious = violation. The exclusion of a religious student group form a LIMITED PUBLIC FORUM based on religious CONTENT was a PRESUMPTIVE VIOLATION of the free Speech Clause. Inclusion ≠ advancing religion, merely affording a neutral benefit w/ equal treatment iii. Board of Ed v Mergens 1187: upholding access to public school for student religious group meet iv. Zelman v Simmons-Harris 1187: neutral public school-choice voucher program doesn’t violate Establishment Clause even though it permits parents to choose religious education for their children w/ partial financial support from gov’t. Here $ that went to religious schools was the result of a parent’s choice and not the gov’t, the gov’t only promoted education 1. Neutrality + Diffusion – if 3rd party promotes religion OK if gov’t neutral v. Mitchell v helms 1187: religious schools may be included in gov’t benefit program giving publicly funded computers to public and private schools vi. Agostini v Felton 1187: Establishment Clause NOT violated by gov’t provision of remedial education on premises of private religious school vii. Zobrest v Catalina Foothills School Dist 1187: gov’t provision of sign-language interpreter to hearing impaired student attending religious private school does NOT violate establishment viii. Bowen v Kendrick 1187: upholding inclusion of religious organization as grant recipient for conducting public programs of abstinence education of teens ix. Lemon v Kurtzman 1187: striking DOWN DIRECT financial grant to religious schools x. Good News Club v Milford Central School 1187: Establishment Clause does NOT forbid public school district to permit a private evangelical Christian Club to meet w/ elementary school students after school, on premises, where school permits Boy Scouts to meet xi. Lamb’s Chapel v Center Moriches Union Free School Dist 1187: Establishment Clause does NOT forbid public school district to permit community religious group to use school facilities for film f. GOVERNMENT USE OF RELIGIOUS SYMBOLS i. American Jewish Congress 1188: recognition of holiday but gov’t permissible ii. County of Allegheny v ACLU 1188: 2 displays at issue, 1 nativity scene and 1 Hanukkah Menorah. Bad result. Plurality ended up holding nativity scene = violation b/c “in the courthouse” but Menorah constitutional b/c in a city park. iii. McCreary County v ACLU 1188: Struck down 10 Commandments display as part of historic legal document in courthouse iv. Van Orden v Perry 1188: Upheld freestanding 10 Commandments monument on Texas State capital building v. West Virginia State Board of Ed v Barnette 1189: No on req to say pledge of allegiance vi. Engel v Vitale 1189: Court struck down gov’t sponsored, and written, teacher led school prayer vii. Abington Sch. Dist. V Schempp 1189: invalidating compulsory Bible reading in school viii. Lee v Weisman 1189: Nonsectarian prayer = unconstitutional in school = pressure to pray III. RELIGIOUS – ACCOMODATION a. ESTABLISHMENT ILLUSTRATED i. Engel v Vitale 1190 main case: Board of Ed for school in NY directed the School District’s principal to have a prayer read before each class at beginning of school invocating God. Parents brought suit as a violation of the Establishment Clause b/c prayer = a religious activity and it was developed by a gov’t official (board of ed) to further religious beliefs breaching the separation of church & state 1. SCOTUS – Violation of Establishment clause to req prayer a. Establishment clause  gov’t must have no part of the business of composing prayer i. Gov’t is w/o power to prescribe by law any particular form of prayer used in any program of gov’t sponsored religious activity b. Prayer in school = gov’t establishment of religious beliefs – even if NONDENOMINATIONAL still = establishment of religious beliefs i. b/c it was approved by the state = establishment and the fact that some kids could remain silent does NOT SAVE it c. Nether the fact that it is non-denominational or voluntary makes it ok d. Establishment Clause does NOT depend upon any showing of direct gov’t compulsion and is violated by the enactment of laws which establish an official religious whether those laws operate indirectly to coerce non-observing individuals or not i. Power/prestige/financial support of gov’t behind a religious belief = indirect coercion upon others to conform = Violation of Establishment Clause ii. Abington School Dist v Schempp 1193: held unconstitutional Penn state law req that “at least 10 verses of the Bible be read w/o comment at the opening of each public school day. The law allowed kids to be excused upon request by the parent – but court concluded this = direct violation of the rights of the kids. Voluntary absenteeism ≠ a saving for it. BUT the court noted that objective study of the bible in a secular program of education may be OK. Stands for fact that gov’t coercion/compulsion to engage in religious exercise is NOT required for there to be a violation of the establishment clause iii. Lee v Weisman 1194 main case: Question whether clerical members can offer prayer as part of school graduation under Establishment Clause. School principle in Rhode Island permitted clergy to offer prayer and benediction as part of graduation ceremony. Even gave the clergy man a pamphlet on the the “guidelines of civil occasions” for the prayer 1. SCOTUS – Violation to allow prayer at graduation a. Graduation took place ON SCHOOL CAMPUS b. State officials directed the performance of the prayer at the graduation i.  Creates a state sponsored and state directed religious exercise c. Establishment Clause – gov’t may not coerce anyone to support or participate in religious or its exercise or otherwise act in a way which establishes a state religion or faith or tends to do so i. = a specific prohibition on state intervention in religious affairs d. Guidelines for Civic Occasion advised clergy for his prayer to be “nonsectarian” = the principal directed and controlled the “content” of the prayer e. Good Faith on the part of the schools DOESN’T MATTER 1st A req that all creeds be tolerated and NONE FAVORED i. b/c the prayer was at the graduation is bore the “imprint” of the state and put children in an untenable position under the 1st A ii. Prayer at school = particular risk of indirect coercion iii. Fact that students could elect not to attend graduation doesn’t help b/c absence from graduation would = forfeiture of intangible benefits which motivate students through school and youth f. State can’t req a person to forfeit his right/benefits as price of resisting conformance w/ state sponsored religious practice 2. Scalia Dissent a. Gov’t has interest in fostering respect for religion GENERALLY b. Establishment Clause core = i. No fed church ii. No fed interference w/ state religion iii. No financial support coerced by law iv. History/tradition public ceremony CAN include prayer c. Coercion ≠ peer pressure but coercion by force of law and threat of penalty iv. NOTES ON LEE V WEISMAN 1. Marsh v Chambers 1205: upheld constitutionality of state legislative chaplaincies and opening legislative session w/ prayer b/c of long historical practice dating back to 1st congress 2. Katcoff v Marsh 1205: upholding military chaplaincies 3. Guidry v Broussard 1205: upholding censorship of high school valedictorian’s speech of personal religious beliefs 4. Lassonde v Pleasanton Unified School 1205: upholding censorship of student’s religious message 5. Santa Fe independent School Dist v Doe 1205: holding unconstitutional a school policy authorizing students to vote as to whether or not there would be student-led religious invocations at public high school football games b. ACCOMMODATION OF RELIGIOUS – INTERSECTION OF FREE EXERCISE & ESTABLISHMENT i. Corp of Presiding Bishop of Church of Jesus Christ of Latter Day Saints v Amos 1207 main case: § 702 of Civil Rights Act exempts religious organizations from Title VII’s prohibition against discrimination in employment on basis of religion. Question whether applying this to secular (nonreligious) “nonprofit” activities violates Establishment Clause (going beyond what is req). ∆ was fired in 1981 b/c he failed to qualify for a “temple recommend” for the Church of LDS. ∆ had been an engineer for the Gymnasium for 16 years prior to this. ∆ sued under Title VII and LDS claimed exemption  if Congress goes beyond the req of the Free Exercise clause, does that violate the Establishment Clause???? 1. SCOTUS – No Violation a. §702 exempts religious employers to discriminate on religious grounds for hiring b. Lemon Test 3 Prong – applies to establishment clause issue too i. The law at issue must serve a secular legislative purpose 1. It is permissible legislative purpose to alleviate significant gov’t interference w/ the ability of religious organizations to define and carry out their religious missions  to assure neutrality between religious/secular activities 2. Here: that is what the law does so 1st prong OK ii. Law must have a principal/primary effect that neither advances nor inhibits religion 1. To be “forbidden” the law must cause the gov’t itself to advance religion through its own activities and influence a. “establishment” = sponsorship, financial support, active involvement in of the US gov’t in the religious activity 2. Here: NO gov’t involvement is advancing the religion. The church infringed ∆’s religious choice not the gov’t. And just b/c 702 singles out the LDS for benefit does not make it “per se” invalid  gov’t wasn’t advancing religion but instead removing a burden on religion and allowing them to practice religion a. It’s OK for gov’t to extend exception to “sectarian” and not ”secular” activities iii. Law can’t impermissibly entangle church and state 1. No entanglement here, accommodation is OK c. HOLD – religious hiring accommodation does NOT violate Establishment Clause simply b/c it allows CHURCHES to advance religion. To violate the 2nd prong of Lemon the GOV’T itself must advance religion. i. BUT if this was a “for profit” activity then this exemption would = an advantage over secular activities and be BAD  that is why this holding is LIMITED to “non profit” activities ii. NOTES ON AMOS 1. Estate of Thornton v Caldor 1214: violation of Establishment clause for state to enact a law providing that ERs must give EEs who observe a weekly religious sabbath that day off 2. Texas Monthly v Bullock 1214: violation of Establishment Clause for state to exempt religious periodical form sales tax and impose it on other magazines 3. Board of Ed. Of Kiryas Joel Village School Dist v Grumet 1214: violation of Establishment Clause for NY to create a special public school district to accommodate special religious education needs of members of the jewish Satmar Hasidim iii. Cutter v Wilkinson 1215 main case: Religious Land Use and Institutionalized Persons Act (RLUIPA) provides that “no gov’t shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution” unless the burden furthers a compelling gov’t interest and does so by the “least restrictive means” – Inmates challenged prison officials as they had failed to accommodate their religious exercise. Officials responded that the RLUIPA is facially unconstitutional b/c it gives benefits for sectarian purposes but not secular. 1. SCOTUS – not unconstitutional, no establishment violation a. Law = neutral b/t different faiths b. Doesn’t “establish” any kind of religion c. And it doesn’t differentiate b/t the faiths d. Hold – not unconstitutional b/c it doesn’t advance religion by giving any greater protection to religions rights than to other rights. SCOTUS uphold the rights of the prisoner i. There is “play in the joints” b/t what is not req by the free exercise clause and what is prohibited by the establishment clause  court can move beyond the minimum guarantees of the free exercise clause to accommodate and not violate the establishment clause. e. Standard/Factors: 1216 i. Does accommodation (not compelled by free exercise) take adequate account of burdens imposed on non beneficiaries 1. Gov’t can “accommodate” sectarian purposes w/o extending benefit to secular purposes ii. Court must be satisfied that acts will be administered neutrally b/t sectarian groups iv. Josana Tabor 1. EE discrimination 2. Teacher teaching in Lutheran school, argues that b/c she fell ill, became disabled, church refused to accommodate her disability, and was fired for bringing a retaliation claim for EE discrimination 3. Church said, no it fired ∆ b/c she violated church doctrine which said that disputes should be resolved “internally” and not “externally” outside the church 4. Issue: did church use ∆ as a “minister” or not 5. Hold: Free exercise and Establishment clause BAR action against religious group who has fired a “minister” gov’t can’t interfere w/ firing decision of religious group regarding a “minister” a.  B/c establishment clause prohibits gov’t from selecting ministers b. Free exercise clause would be violated by forcing religious group to take back a “minister”  b/c it would prevent the group from carrying out its “internal” governance and choosing its own leaders c.  also violation of “expressive association” implicitly

CHAPTER 6 – ADDITIONAL AMEMDMENTS

I. 2ND AND 3RD A - THE RIGHT TO KEEP AND BEAR ARMS a. 2nd A: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed i. Founder: the militia = the people and the people = militia (male citizens) b. Federalist No. 28: right of SELF DEFENSE which is paramount to all positive forms of gov’t and which against the usurpations of the national rulers may be exercises w/ infinitely better prospect of success. c. Federalist No. 46: considered that State gov’t would be able to “repel” attack by Fed, discussed notion that 1/25 of citizens are “able to bear arms” (male w/ 2nd A right) d. Dist of Columbia v Heller 1221 main case: What is the nature of 2nd A - DC passed law prohibiting the possession of a “usable handgun”  1st law prohibited possession of handguns. It also made it a crime to carry an “unregistered” firearm BUT the law then made the registration of handguns prohibited  Effect of making handgun ownership illegal/prohibited. i. SCOTUS – Unconstitutional violation of 2nd A. 1. 2nd A = INDIVIDUAL RIGHT 2. Effect = total handgun prohibition 3. 2nd A INHERENTLY advocates the right of SELF DEFENSE 4. Handguns = the most popular form of firearm to keep/use for home/family protection – the “quintessential self defense weapon” 5. DC tried to apply a “interest balancing test” = UNCONSTITUTIONAL b/c no judge/legislature or anyone else can decide whether an ENUMERATED RIGHT can be weighed a. Constitution = product of balancing test by Founders, so no more balancing can be done ii. Stevens Dissent 1. 2nd A = “collective” not individual right 2. Militia = “military purpose” of the states, so not every “citizen” can own a weapon; 3. The Right of the People = collective activity 4. To Keep and bear Arms = military activities b/c use of “arms” 5.  regulation by DC is constitutional e. McDonald v City of Chicago 111 Supp: Issue whether the 14 A incorporated the 2nd A against the states. i. SCOTUS – 14th incorporated 2nd Against States – go go guns‼! 1. 14 A Due Process: incorporated the 2nd A against the states 2. Standard: court refuses the “total incorporation” idea of Justice Black, instead it keeps the Selective Incorporation standard = rights that are FUNDAMENTAL = whether a particular Bill of Rights guarantee is FUNDAMENTAL to our scheme of ordered liberty and system of justice a.  the 14th does NOT apply a “watered down” version of the Bill of Rights either ii. Justice Thomas Concurring 1. NO on Due Process – YES on “Privileges and Immunities” 2. Historically the “right to bear arms” = a privilege a. This is incorporated against the states through the 14th Privileges and Immunities clause 3. This = more STRICT than DP b/c use of language “no state shall . . . “ iii. Separate Judge Analysis 1. ***Alito for 4 – says 14th DP/liberty incorporated against states a. DP “liberty” incorporation standard i. 1 – what is FUNDAMENTAL to OUR system of ordered liberty ii. 2 – what is deeply rooted in OUR tradition/history 2. Thomas for 1 – DP speaks of “process/procedure” and is strained here, better option P&I clause of 14th 3. Stevens Dissent: 1) not individual right but collective right 2) the right here defined (to have guns) should not be incorporated as a liberty under DP b/c possession of a gun is not “fundamental” to liberty or tradition II. 5TH A TAKINGS CLAUSE – AND 11TH AND 12TH a. 5TH A TAKINGS CLAUSE i. 5th A: . . . nor shall private property be taken for public use without just compensation b. What is “Property” for a Public Use: most classic sense 5th A req gov’t to pay for prop it acquires for public uses – post offices, roads, parks, office buildings, military bases. i. Condemnation: if gov’t uses power of eminent domain to take private property – this req just compensation to the owner – determined by fact finder/jury 1. Gov’t authorized easements to allow others on your prop 2. Taking/giving title /possession to prop rights ii. Police power: gov’t regulation of land-use = restrictions on the “use” of the property. This DOESN’T req any compensation 1. For health/safety/welfare iii. Inverse Condemnation: if gov’t takes action short of normal condemnation that has the PRACTICAL EFFECT of converting private prop to PUBLIC USE iv. Webb’s Fabulous Pharmacies v Beckwith 1303: SCOTUS held that FL courts could not invest funds held in “interpleader accounts” as “public money” and then take the interest accumulated. The state statute that allowed this had the PRACTICAL EFFECT of appropriating for the county the value of the use of the funds for the period held – the earning of the funds too = incidents of ownership v. Loretto v Teleprompter Manhattan CATV Corp 1304: NY order that req apt building owners to allow cable TV companies to install cables on their prop = physical occupation authorized by gov’t = TAKING w/o regard to the public interest served  Right to exclude = most important prop right 1. Legislative and Administrative Action can = a Taking if it redefines prop rights 2. Judicial Action: 4 J’s think this “could” = a taking, 2 said “maybe” 2 didn’t reach issue vi. Nollan v CA Coastal Commission 1304 main case: Property for Public Use N appealed decision of CA court of Appeals ruling that CA coastal commission could condition its grant of permission to rebuild N’s house on their transfer to public of an easement across their beachfront property. N’s had bought land on condition to demolish the bungalow on it and rebuild. They sought a permit, were given one only on the condition that they transferred an easement to allow public to pass b/t the park and their property. 1. SCOTUS – This is a TAKING w/o just compensation a. If CA had req N’s to make an easement to increase public access = taking clearly b. Loretto Permanent Physical occupation = when individuals are given a PERMANENT AND CONTINUOUS right to pass to and fro so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises c. Police Power OK – land use regulation ≠ taking if it substantially advances legitimate state interests (H/S/W) and does NOT deny an owner all economically viable use of his land d. State argues: easement will help public overcome “psychological barrier” to using beach and prevent congestion. Also, that this serves the same legitimate POLICE POWER purpose as refusal to issue a permit i. EX if state conditioned permit on a height restriction or req that a viewing spot be left open e. But when the “essential nexus” b/t the condition attached and the end to be advanced is eliminated the rule becomes illegitimate i. State said it wanted to preserve the “view” for the public but the regulation was meant to give “access” to the public = VERY DIFFERENT f. Here: there is a lack of nexus b/t the condition and the original purpose of the building restriction. It converts that purpose to something different. The permit is simply part of a program to give continuous public access along the Beach. And simply b/c a public interest would be served does NOT req N’s to contribute.  becomes the gov’t obtaining an easement w/o paying just compensation – CA has to use eminent domain i. Unless the permit condition serves the SAME gov’t purpose as the development band, the building restriction is not a valid regulation of land use but a plan of extortion c. What is a “Taking” of Property for Public Use i. Regulatory Taking: when gov’t imposes restriction that destroy all economically viable uses/value of the prop to the owner but w/o giving the public any additional right to use it ii. Pennsylvania Coal Co v Mahon 1307 main case: M brought bill in equity to stop P from mining under their prop so as to remove the supports and cause a subsidence of the surface and of their house. Deed executed by Coal Co in 1878 conveyed the SURFACE but reserved the right to remove all the coal under the same land and that the grantees took the premises w/ the risk of that and waived all right to claim damages that arise from mining. M’s allege that Pennsylvania act – Kohler Act – forbids mining of coal so as to cause subsidence of any structure used as human habitation – unless surface is owned by the same owner of the coal underneath. This statute destroys the existing rights of P 1. SCOTUS – Taking w/o compensation b/c destroys all rights a. Statute not justified in safety b/c that is taken care of by Notice to the affected peron b. Extent of taking is GREAT it abolishes a recognized estate in land – a valuable asset – and destroys the contract agreed to b/t the parties c. No public interest is sufficient to warrant this destruction of ∆’s constitutionally protected rights d. General Rule: while prop may be regulated to a certain extent if the REGULATION GOES TOO FAR it will = a taking e. Here: statute goes too far and takes all the rights of the estate away from P = Taking iii. Penn Central Transport v City of NY 1309: Test for Taking factors 1. Economic impact of regulation on the claimant – to what extent it interferes w/ distinct investment-backed expectations 2. Character of gov’t action – interference w/ prop like physical invasion more akin to taking iv. Per Se Taking = A regulation that deprives the owner of SUBSTANTIALLY ALL the economic benefit = 1. Partial deprivation of economic benefit = Penn Central factors v. Lucas v South Carolina Coastal Council 1310: State regulatory laws that do no more than enforce or make nuisance principles explicit do not TAKE anything from the prop holder that he ever really had vi. Keystone Bituminous Coal Ass’n v DeBenedictis 1311: no taking on facts like Penn Coal 1. The statute aimed at preventing a harm  w/in the Police Power of state 2. The right to mine the support estate (the last few pillars of coal needed to hold up the surface) was only a FRACTION of the total value of the mineral rights. = so not ALL economic value was taken so ≠ a “taking” b/c still “some” value left – look at prop as a WHOLE d. WHAT IS A TAKING OF PRIVATE PROPERTY FOR “PUBLIC USE” i. Kelo v New London 1311 main case: in 2000 city approved development plan to create jobs and increase tax and revenues. Q = whether the city’s proposed disposition of property qualifies as “public use” under 5th A. Plan was made for ECONOMIC REVITALIZATION and constructed by the New London Development Corporation (NLDC) a NONPROFIT entity. The pharmaceutical Co Pfizer was to build a 300 million dollar research facility and the local planners wanted to draw new business to correspond. NLDC purchased property, but some owners didn’t want to sell. City gave NLDC its power of eminent domain and NLDC condemned 15 homes. None of these homes were “blighted” but only in the way of development. 1. SCOTUS – No Taking a. 1 hand: Gov’t may NOT take prop from A to give to B (private individuals) b. 2nd hand: this is not a case where gov’t is planning to open the condemned land to the general public c. But court BROADLY construes “public use” = PUBLIC PURPOSE: it is the PURPOSE not the mechanics of the taking that matters. Any CONCEIVABLE purpose is good enough i. Berman v Parker 1313: allowed redevelopment of blighted area beyond repair to better the community ii. Hawaii Housing Authority v Midkiff 1314: allowed HI to take fee title from lessors and transfer to lessees (for just compensation) in order to eliminate social and economic evils of land oligopoly. d. Here: purpose is to rejuvenate the community and create jobs and raise tax revenue. The plan must be judged as a WHOLE and not piecemeal house-by-house i. THIS = A PUBLIC PURPOSE = PUBLIC USE 2. O’Connor Concurrence a. Public Use = 1) public ownership 2) transfer to private individual to make available for public use 3) certain circumstances to meet exigencies that serve a public purpose even if prop destined for future private use1 e. 9TH & 10th AMENDMENT i. 9th A: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” 1.  to prevent an improper inference any perverse, or ingenious misapplication of the known maxim that an affirmation in particular cases implies a negation in all others ii. 10th A: The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” 1.  designed to prevent the conclusion that the addition of a Bill of Rights by negative implication enlarged the powers of the Fed Gov’t and altered the general scheme of the national gov’t being 1 of limited powers 2. This is a “truism” US v Darby 1322 3. An essential “tautology” of restraining the powers of Congress, and Congress could commandeer the legislative processes of state gov’t and directly compel them to enact and enforce fed mandates NY v US 1323 iii. Both = rules of interpretation – inferences are NOT to be drawn from the adoption of the Bill of Rights basically – they don’t repeal or rescind any/all other legal rights individuals and states have f. 11TH AND 12TH AMENDMENTS – NOT part of Bill of Rights i. 11th A: establishes sovereign immunity – adopted in response to Chisholm 1. Chisholm v Georgia 1324 that allowed a S Carolina citizen to sue Georgia. 11th repealed a form of Art III jurisdiction of suits against 1 state brought by citizens of another state. 2. Hans v Louisiana 1324: SCOTUS held that 11th conferred state sovereign immunity as a matter of substantive constitutional law in diversity cases and in ALL others ii. 12th A: meant to correct disaster when Thomas Jefferson ran w/ “running mate” Aaron Burr and the team tied in the Electoral College and refused to give way in the House where Federalists held power. Federalists finally acquiesced in Jefferson. So 12th made for SEPARATE ELECTIONS of President and Vice President in Electoral College III. THE RECONSTRUCITON AMENDMENTS 13th, 14th, 15th A’s a. HISTORY i. Generally: Civil War 186-1865 and the Reconstruction Period 1865-1876 transformed American constitutional order ii. The 13th Amendment Abolished Slavery 1. Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist w/in the US, or any place subject to their jurisdiction 2. Section 2: Congress shall have power to enforce this article by appropriate legislation 3. Effects: regulates gov’t and private conduct iii. The 14th Amendment : designated national citizenship, extended rights of citizenship against state gov’t, forbid state discrimination against classes of citizens or denial of DP or EP of laws, and broadly empowered Congress to Effectuate this 1. Section 1: All persons born or naturalized in the US and subject to the jurisdiction thereof, are citizens of the US and the State wherein they reside. No state shall make or enforce any law which shall abridge the Privileges or Immunities of citizens of the US; nor shall any state deprive any person of life, liberty, or property w/o due process of law; nor deny to any person w/in its jurisdiction the equal Protection of the laws 2. Section 2: Representatives shall be apportioned among the several States according to their respective numbers, county the whole number of persons in each State, excluding Indians not taxed a.  this repealed the 3/5 counting of blacks 3. Section 3: Disqualified form federal office any 1 who had broken an oath of loyalty to support the Constitution of the US by aiding in the rebellion; but gave Congress power to remove by 2/3 vote 4. Section 4: provided that no slave-owner would be entitled to any “claim for the loss or emancipation of any slave” And that the Union’s debt “shall not be questioned” and any debt incurred “in aid of insurrection or rebellion against the US” was repudiated. a.  Prohibited US and any State from paying any such debt or obligation 5. Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. 6. Effects: to address state action that abridges P&I and protect DP a. 1) a direct, affirmative constitutional prohibition on state gov’t action b. 2) legislative power of Congress to enforce the constitutional prohibition 7. Reverses the Dreg Scott Case – that blacks could not be citizens nor have P&I iv. 15h Amendment: The right of citizens of the US to vote shall not be denied or abridged by the US or any State on account of race, color, or previous condition of servitude. 1. Forbidding denial of the right to vote to black citizens b. FORMATIVE JUDICIAL INTERPREATION AND DEATH OF P&I CLAUSE i. Dred Scott 1331: slave was taken from slave state to a “free” state then went back to a slave state. Slave argued that by living in a “free” state for over 2 years, he was “free.” State Sup C said he was still a slave. But before judgment final, Slave was sold to a person in NY (a free state). Slave then sued under diversity jurisdiction to go to Fed court and it went to SCOTUS. SCOTUS held that slaves can NEVER = citizens whether they are free or slaves. Since they could never be Fed citizens, they could never be state citizens, and the court didn’t have “diversity jurisdiction” to see case. 1. Court went on to say that Missouri Compromise that prohibited slave ownership in “new territories” was unconstitutional – b/c they could only legislate this way for states that were traditionally part of the Union. Furthermore, such legislation = deprivation of DP and property rights by denying slavery (a property right) ii. The Slaughter House Cases 1334 main case: Butchers in New Orleans resisted the Crescent City Livestock Landing and Slaughter House company in its exercise of powers given it by a charter which created it and made it the monopoly power for slaughter houses. The legislature passed an act that forbid landing/slaughtering of animals for food w/in New Orleans and other boundaries, or keeping/establishing slaughter houses EXCEPT by the Corporation. The Act allowed the Corp to establish 1+ stock yards and gave the Co SOLE exclusive privilege to carry out live-stock landing and slaughter w/in the boundary = MONOPOLY. This closed all other slaughter houses. 1. Effect of Act: to create a monopoly and gave exclusive privilege to the corporation 2. ∏ Allege: Act . . . a. Creates an involuntary servitude forbidden by 13th b. Abridges the P&I of citizens c. Denies them EP of law d. Deprives them of DP 3. SCOTUS – no denial of P&I, act is CONSTITUTIONAL a. Purpose of 13th A: freedom of slave race, secure that freedom from oppression i. Spirit is to protect blacks/slaves b. 14th A: defines citizens as all persons born/naturalized in US and subject to jurisdiction = declares that persons may be citizens of the US w/o regard to being a citizen of a State. To be a citizen of a state a person must RESIDE there, but need not be in a state to be a US citizen. i.  there are citizens of STATE and citizens of the US = DISTINCT ii. P&I  only applies to citizens of the US not STATES so only Federal P&I are protected not state given P&I = all rights that are FUNDAMENTAL and owe their existence to the Constitution or national Charter/laws 1. EX of P&I: a. Protection by the gov’t b. Right to acquire/possess prop of every kind c. To pursue and obtain happiness and safety subject to restraints as gov’t may prescribe for general good of whole iii. However the P&I of citizens of States is left to the State and all rights are subject to limitations of the STATE (it’s the stat’s obligation not a federal protection) 1. Rights of citizens ≠ right to be free from economic monopoly 2. States can impose limitations themselves iv. Equal Protection: only to be used for slavery, not regulation of economic activity, so EP doesn’t preclude states from drawing classifications based on promotion of H/S/W under their Police Power c. HERE: the P&I of the ∏’s are not P&I of the US but of the STATES = the state can restrain them i. Short of discrimination based on race, the court doubts whether anything can really = violation of 14th A. EP clause ii. Being subject to a monopoly ≠ an incident of slavery d. Take Homes i. P&I is NOT the method to bring in protections of individual rights against the STATES – Civil Rights amendments can’t be invoked through P/I b/c only “federal citizenship” ii. Q – whether EP is based only on race or is more broad to cover discrimination on other impermissible factors (sex, religion) iii. Notes on Slaughter House Cases 1. Baily v State of Alabama: 13th A finding that Alabama peonage laws which made breaking Ks for labor a crime punishable by specific performance = violation of 13th 2. 13th: Prohibition on slavery/involuntary servitude §2 Enforcement a. Badges/incidents of slavery – big for congressional power to enforce this i. Courts defer to Congress to define “badges/incidents” of slavery b. Applies to – private and gov’t action 3. 14th: declares citizenship of US and of state where person resides §5 Enforcement a. P/I: only “federal” P/I that protects to “citizens” of the US i. Citizens ≠ corporations, aliens, and the like b. DP: protects “persons” Life/Liberty/Property i. this incorporated the Bill of Rights ii. Persons = aliens, undocumented persons, corporations, and the like. . . c. EPC protects “persons” from discrimination to newly freed blacks, b/c the existing laws were insufficient d. Applies to: Only the Gov’t (not individuals) 4. 15th A: right of citizens of the US to vote shall not be abridged/denied by any US State §2 Enforcement a. Applies to: US State gov’t b. Protection: of race/previous servitude discrimination i. Not sex/age 5. Modern Doctrine = Rational Basis Test for EP violations even if discriminatory 6. Privileges and Immunities Views a. 1) Incorporation of Bill of Rights against States: all of them supported by i. Corfield v Coryell 1341: P&I meant to prohibit states from discriminating against citizens of other states – w/ respect to the fundamental rights of citizenship = 1st 8 amendments and 1. Freedom of speech and press 2. To peaceably assemble and petition the gov’t for redress 3. right to keep/bear arms 4. to be exempted form quartering soldiers in a house w/o consent 5. to be exempt from unreasonable searches/seizures 6. from any search/seizure except by warrant upon formal oath 7. right of an accused person to be informed of the nature of the accusation 8. right to be tried by an impartial jury 9. right to be secure against excessive bail b. 2) No clear meaning: that only the bill of rights and other individual liberties recognized by the Constitution IV. EQUAL PROTECTION – ORIGINAL MEANING a. EQUAL PROTECTION ORIGINAL MEANING i. Bradwell v Illinois 1354 main case: B was denied her right to be an attorney in Illinois after having passed the bar. She was a citizen of Vermont b/c she was born there, and also = a citizen of the US. B brought claim under P&I of 14th. That under Art IV she is being denied of P&I of citizens of the several states (equal treatment) as citizens of other states 1. SCOTUS 1873 – No denial of P&I a. Citizens of US = born in US b. Citizens in State = born in state c. Art IV P&I (and): doesn’t apply for citizens of a state against THEIR OWN state – only for residents of ANOTHER state moving into this state d. 14th A P/I are for citizens of the US – don’t guarantee anything for state citizens, and being a lawyer ≠ a right guaranteed by the 14th P/I i. P&I for courts of state = state right of citizenship ii. P/I for FED courts = US right of citizenship e. Admission to the bar ≠ a P&I under 14th A. ii. Minor v Happersett 1357 main case: Q whether women who are citizens of the US and of a State have the right of suffrage like men. ∆ contends that the right of suffrage is 1 of the P/I of the 14th. 1. SCOTUS – NO, suffrage ≠ P/I a. 14th did NOT add any P/I for citizens, it only guaranteed for the protection the ones that already existed. NO new voters were made. i. It did INCREASE citizens but it operates through STATE laws and NOT directly upon citizens b. Q then is whether suffrage was coextensive w/ citizenship of the States at the time the Constitution was adopted. c. Art 4: citizens of each state shall be entitled to all the P&I of citizens of the several states d. But only MALE citizens were singled out for the “denial” of suffrage = ONLY MEN had the right to vote at the time of adoption i. Citizens of the States were NOT given the right of suffrage, women were EXCLUDED by nearly all the states e. If the law is wrong then the Legislature must change it not the courts iii. NOTES ON HAPPERSETT 1. NOW  this case has been repudiated on EPC grounds as a forbidden distinction based on sex. EXCEPT in very narrow circumstances where a sex-based classification has an “exceedingly persuasive justification closely tied to a real biological difference b/t men and women and not merely a generalization or a socially constructed stereotype. 2. Equal Protection Clause Prohibits certain disparate treatment w/ right to vote a. Baker v Carr 1364: EPC held to supply judicially enforceable basis for challenging state election and representation arrangements b. Reynolds v Sims: EPC held to create a 1 person 1-vote standard for STATE election districts c. Harper v Virginia Board of Election: EPC forbids poll tax d. Bush v Gore: EPC req that state-law vote recount rules treat each voter’s ballot consistently throughout state e. Shaw v Reno: EPC creates a cause of action to challenge race-conscious drawing of election districts 3. Special Rule of P&I: modeled after Art IV which ONLY gives out of state residents CIVIL rights similar to in-state citizens, NOT equal POLITICAL rights iv. Strauder v West Virginia 1363 main case: ∆ a black man was indicted for murder in W. Virginia. ∆ alleges that the trial in STATE court was erroneous b/c ∆ was denied his rights under the constitution. ∆ made motion to have case removed to FED circuit court b/c only white men could be jurors in the state but his motion was denied and he was convicted 1. ∆’s Claim: that the law of the state which said NO COLORED man could be eligible to be a member of a jury in the state, that only white men were eligible, so ∆ had reason to believe that he could not have equal benefit of all laws of the state a. Violation of EP to exclude All Blacks from juries on the basis of race 2. SCOTUS – Denial of EP a. 14th A: forbids discrimination w/ gross injustice and hardship against blacks as a class. The states shall make NO law which abridges the P/I of the citizens of the US, shall not deprive them of Due Process of law or Equal Protection i. the 14th A = Prohibitory and contains a necessary implication of a positive immunity/right – the right to exemption from unfriendly legislation against coloreds exemption against legislation based on racial inferiority b. W. Virginia Law discriminates jurors based on color of skin = discriminatory based on race = Denial of EPC c. Removal: §641 of Revised Statutes allows REMVAL of case from state to Fed court when “any civil suit or criminal prosecution is commenced in any State court for any cause against any person who is denied in the State any right secured to him by any law providing him EP d. Denial of removal = error i. §5 of 14th A created a remedy against this state discrimination (state action) by allowing removal to a Federal Court v. Batson v Kentucky 1368: EPC forbids prosecution attorney for gov’t to challenge potential jurors solely on account of race or on assumption that black jurors as a group will be unable to be impartial against a black ∆ b. CIVIL RIGHTS CASES AND CONGRESS’S POWER TO ENFORCE RECONSTRUCTION i. Rules of Civil Rights cases 1. 14th only applies to “state action” not action of individuals 2. 14th A enforcement power for “corrective action” ii. Civil Rights Cases 1369 main case: Q whether blacks have same accommodation privileges at inns, public conveyances, places of amusement, as whites. 14th specified Congress had power to make appropriate legislation to enforce 14th A. 1. SCOTUS – 14th Only applies to states a. 14th A: does NOT invest Congress w/ power over SUBJECTS only power over STATES i. Congress can’t create a code of municipal law for regulation of private rights, but ONLY to provide modes of redress against the operation of state laws and the action of state officers when these rights are violated b. 14th was adopted to combat STATE action/law adverse to citizens c. 14th for Corrective Action: necessary/proper for counteracting state laws which are prohibited d. Civil Rights Act of 1875: does NOT target states and state laws, it targets INDIVIDUALS and declares that some individual actions = offenses to be prosecuted. And applies equally across all states despite what their law system might be i. Targets Private people: It therefore steps into the domain of local jurisprudence and lays down rules for conduct of individuals in society towards EACH OTHER ii. Not Corrective: it is primary and direct, takes immediate and absolute possession of the subject of the right of admission to inns, public conveyances, and places of amusement. It supersedes and displaces state legislation on the same subject e. Difference b/t 13th and 14th Amendments i. 13th: abolished slavery 1. Congress can only legislate here against Slavery and its “incidents” 2. Legislation may be “primary and direct” and act upon INDIVIDUALS ii. 14th: prohibits the abridgment of P/I, DP, and EP 1. Congress can legislate here against “state” laws which abridge these rights 2. Legislation here may only be CORRECTIVE in nature addressed to counteract and afford relief against STATE regulations/proceedings f. Here: the Civil Rights Act = class legislation and makes individuals the targets. The prohibited conduct ≠ slavery/involuntary servitude, and any violation of individuals rights should be remedies by State legal action. Mere discrimination ≠ badge/incident of slavery g. Hold: no power under 14th or the 13th to make the Civil Rights Act iii. NOTES ON CIVIL RIGHTS CASES 1. 13th A: prohibits not only “slavery” but any “badges and incidents” of subordination a. Jones v Alfred H Mayer 1379: Civil Rights act of 1866 to reach purely private racial discrimination in housing and sustained its constitutionality as an exercise of the 13th A by Congress – power to eliminate all racial barriers to acquisition of real and personal property – as a way to abolish all badges and incidents of slavery i. Congress has power under 13th to determine what a badge/incident of slavery is b. Patterson v McLean Credit Union 1380: Civil Rights act of 1866 reaches racial discrimination in making and enforcing contracts c. Runyon v McCrary 1380: Civil Rights act of 1866 permissibly outlaws racial discrimination in private schools 2. 14th A: to “correct” “state” action a. State Action: not private action, but this gets unclear if a private person performs a public function as w/ a “company town” i. Marsh v Alabama 1381: finding state action in a company town’s restrictions on free speech ii. Terry v Adams: “white primary” political party = state action iii. Shalley v Kraemer: state action present in judicial enforcement of private contract arrangements and racially restrictive covenants iv. Edmonson v Leesville Concrete 1381: state action in race-based peremptory strikes v. Larkein v Grendel’s Den 1381: state action in local gov’t entity’s delegation of governing power to private group vi. Reitman v Mulkey 1381: state action in authorizing discrimination by private parties b. State Inaction i. DeShaney v Winnebago County Dep’t of Social Services 1381: DP clause does NOT req state to protect the life/liberty/prop of its citizens against invasion by private actors c. Equal Protection i. Lawrence v Texas and Judicial Hubris 1382: EPC only meant to req gov’t to protect all groups equally from having their rights violated by other private persons. A prominent illustration of the need for this was the tolerance for KKK ii. DeShaney v Winnebago County Dep’t of Social Services 1382: DP does NOT = a substantive right to state protection, only from action by the STATE. Child here was monitored by child services b/c his father was suspected of beating him. Child went to hospital multiple times but nothing was done. Child eventually was beaten severely and is not retarded. No cause of action by mother claiming state req to protect child iii. Town of Castle Rock v Gonzales 1382: ∏’s ex-husband violated restraining order and took the 3 daughters. ∏ called POs to enforce restraining order but they did nothing, told her to wait until 10. She waited and still no girls. Called POs again but nothing. Eventually at 3:20 am Ex drove to PO station and opened fire. POs killed Ex but found all 3 girls dead in truck. ∏ sued but court held that ∏ was NOT deprived of DP b/c she had no absolute right to entitlement in enforcing restraining order. V. THE EQUAL PROTECTION CLAUSE – RACE a. THE SEGREGATION CASES i. Rule: gov’t must treat similarly situated individuals similarly ii. Equal Protection Analysis 1. Interest/Right Affected: you must look at the type of “right” that the gov’t is limiting, is it fundamental, merely economic, or whatever 2. Means: if the right is not so extreme – say like economic interest – then the narrowness of the gov’t means may be more flexible than if the right is more fundamental iii. Railroad Co v Brown 1400 main case 1873: in 1854 Congress authorized RR to extend RR into the Dist of Columbia and in 1863 to extend north. Condition was that “no person shall be excluded from the cars on account of color” In this case ∆ was a colored woman who bought a RR ticket. All tickets were the same and no distinguishment for black/white. ∆ went to board train, was told she had to sit in the “colored” car, she refused and tried to sit in the “white” car, was thrown out and was forced to ride in the colored car. ∆ sued. 1. RR: that the RR has a right to make regulations separating the colored from white 2. SCOTUS – this = discrimination on account of race, this violates the statute a. Races must be placed in equality, as req by the statute b. The intent of congress was to stop differentiation on account of race iv. Plessy v Ferguson 1401 main case 1896: ∆ brings challenged under 13th A and 14th A 1. SCOTUS – No violation “separate but equal” OK a. Slavery under 13th = servitude, bondage, ownership, and a statute which implies a legal distinction b/t white and colored has no tendency to destroy the legal equality of the races or re-establish a state of involuntary servitude b. Police Power of state to separate the races, and it does not imply inferiority of either race c. No 14th A. abridgement of P/I, DP, or EP: colored are not legally entitled to the “reputation of a white man” i. Standard Test: whether the statute is reasonable, and in determining reasonableness the legislature is free to reference established customs and traditions – with a view to the promotion of comfort and preservation of the public peace and good order ii. NOT a badge of slavery to be separate b/c not “gov’t sponsored badge’ only the perception of the blacks that makes it a “badge” 1. This protection does NOT extend to SOCIAL rights 2. Harlan Descent a. The constitution is COLOR BLIND b. THE DESERGRAGATION CASES i. Now EP bars discrimination based on race for 1. Transportation 2. Swimming pools 3. Golf courses 4. Marriage ii. Brown v Board of Ed I 1422 main case 1954: class action of blacks asserting violation of 14th A EP rights b/c they were denied admission to public schools w/ white children. ∏’s contend that segregated schools are not equal and therefore do not pass the “separate but equal” test 1. SCOTUS – Violation of EP a. Here: schools have been “equalized” in “tangible” factors – buildings, curricula, qualifications and salaries of teachers, so a decision here turns on the effect of segregation itself on public education b. It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education – it must be avaliable to all on equal terms c. Segregation of children in public schools SOLELY on basis of race, despite equality of tangible factors, deprives the children of equal education i.  In Public Schools the “separate but equal” doctrine has no place separate facilities = inherently unequal iii. Bolling v Sharpe 1425 main case 1954: ∏ challenged the validity of segregation in the public schools in the Dist of columbia. Issue is that the 5th A (which ∏’s bring suit under) which is applicable to the Dist of columbia (federal area) and not the 14th A which is applicable to the states (not fed). 1. SCOTUS – Violation of Equal Protection a. Equal Protection under 14th is more explicit than due process of law under 5th but discrimination may be so unjustifiable as to be violative of Due Process b. Liberty under law extends to the full range of conduct which the individual is free to pursue and cannot be restricted except for a proper gov’t objective – segregation in public education is NOT reasonably related to any proper gov’t objective and violates the Due Process rights of ∏ c. It would be unthinkable that the same Constitution would impose a lesser duty on the Fed Gov’t d. HOLD racial segregation in Pub Schools = denial of DP under 5th A i. Principle applies equally to Fed as it does to States iv. Brown v Board of Ed II 1426 main case 1955: case remains for consideration for how relief is to be granted. School authorities have the primary responsibility for elucidating, assessing, and solving the segregation problems, BUT must do so in GF. Case is remanded for consideration by the individual courts on how to proceed. For transition period courts can consider 1) problems related to administration 2) physical condition of school 3) school transportation 4) personnel 5) revision of school district and attendance areas 6) revision of local laws v. NOTES ON CASES 1. Korematus v US 1434: racial classifications are presumptively suspect and subject to S.S. This case regarded the segregation of Japanese americans during WWII, it passed SS b/c it was for a “pressing public necessity” 2. Agnostini v Felton 1435: even if lower courts believe SCOTUS got a case wrong they are req to adhere to the precedent set by SCOTUS vi. Loving v Virginia 1438 main case 1967: ∆’s (black woman and white man) were married in Dist of Columbia and moved to Virginia as a married couple. Virginia had a law against interracial marriage and ∆’s were charged w/ violating this law. They were sentenced to a year, but their punishment was suspended if they chose to move away from the state for 25 years. So they did, and then they sued 1. SCOTUS – violation of 14th A when law is designed to “subordinate” a race a. Opinion of state court was based upon “white supremacy” – even invoked “god” as authority for the separation of the races b. State argues Fed is violating 10th by imposing its restrictions on State laws – i. Also that the law doesn’t violate 14th A b/c it is implemented equally against both black and white violators = equal application theory c. SCOTUS rejects the “equal application” theory – such laws are still subject to 14th A d. Test: EPC req the consideration of whether the classification drawn by any statute constitute an arbitrary and invidious discrimination – the clear and central purpose of the 14th A was to eliminate all official state sources of invidious racial discrimination in the states. i. Apply Strict Scrutiny: EPC demands that racial classifications be subject to the “most rigid scrutiny” and only upheld when necessary to the accomplishment of permissible state objectives, independent of the racial discrimination e. Hold: deprivation of Due Process under 14th A to deprive ∆’s of right to marry – marriage = a FUNDAMENTAL FREEDOM vii. NOTES ON LOVING 1. Palmore v Sidoti 1443 1984: 14th A did away w/ gov’t imposed discrimination based on race, here a mother lost custody of her child when she remarried a black man (she was white) court overruled this as discrimination. Subject to S.S. 2. Johnson v CA 1443 2005: CA had segregated prisoners based on race b/c of racial gang tension. This is still subject to S.S. no matter what. VI. EQUAL PROTECTION – RACE – INTENT/IMPACT & AFFIRMATIVE ACTION a. DISCRIMINATORY INTENT VERSUS DISPARATE IMPACT i. Washington v Davis 1444 main case 1976: ∏’s challenged a Dist of Columbia PO Dep’t test as having a disparate impact on blacks and = discrimination. Test 21 examined verbal ability, vocabulary, reading and comprehension. Blacks substantially failed the test compared to whites and this test was crated by the Civil Service Commission and is use throughout the Federal service. But ∏’s challenged this has having no relationship to job performance. 1. SCOTUS – disparate impact ≠ violation for facially neutral law a. Discrimination must be traced to a discriminatory PURPOSE b. Discriminatory Purpose can be INFERRED from the totality of the relevant facts, c. But a law that is NEUTRAL ON ITS FACE and serves ends w/in the power of the gov’t is NOT invalid under the EPC simply b/c it affects 1 race more than another d. Disparate Impact ≠ touchstone of racial discrimination but does = a FACTOR i. Standing alone Disparate Impact ≠ enough to be a violation and does NOT trigger S.S. ii.  ∏ should have to show that the PURPOSE was to discriminate to trigger SS e. Here: Test 21 is administered generally to gov’t EEs to see if they have the req verbal skills. f. Standard: a law that is 1) NEUTRAL on its face and 2) RATIONALLY services a purpose the Gov’t is Constitutionally empowered to pursue i. Disparate impact can = indication of discrimination but by itself ≠ proof of it to get SS. Unless the ∏ can demonstrate that the PURPOSE of the law = discrimination then RB not SS ii. NOTES ON DAVIS 1. Use of S.S.: ANYTIME when there is a classification BASED ON RACE 2. Bias in Administration: Yick Wo v Hopkins 1448: SCOTUS held unconstitutional detention of unlicensed Chinese laundry operators, law was neutral on its face and exercise of State Police Power but it had unchecked discretion in its exercise 3. Evidence of Intent: Gomillion v Lightfoot 1448: SCOUTS held that a redrawing of political boundaries to disenfranchise black voters was a violation of 14th A and 5th A. 4. Motive Matters: Disparate Racial Impact PLUS (factor) can = violation but not alone a. Griffin v County School Board of Prince Edward County 1449: SCOTUS upheld injunction against schools stating that allowing the state to close the public schools in the County while keeping all other public schools open was a denial of the EP rights of blacks i. Whenever nonracial grounds might support a state’s allowing a county to abandon public school, the OBJECT must be a Constitutional one and grounds of race and opposition to desegregation do NOT qualify as constitutional b. Green v County School Board 1450: SCOTUS held “freedom of choice” integration plan by State did NOT comply w/ Brown – b/c not a single black or white student elected to go to the other school and desegregate i. Court didn’t hold “freedom of choice” to be unconstitutional BUT found that the plan cannot be a sufficient step to effectuate the transitory plan of Brown c. Palmer v Thompson 1450: SCOTUS found NO violation when the city closed public pools after the city desegregated its pools b/c the closing of the pools was in order to preserve peace/order and b/c the Pools COULD NOT be operated economically integrated – state chose to close the pools rather than reopen then and subsidize them as SEGREGATED b. AFFIRMATIVE ACTION – RACIAL PREFERENCE i. General Rule: gov’t may NOT discriminate, segregate, or otherwise invidiously classify on the basis of RACE unless it does so based on a COMPELLING interest and through NARROWLY tailored means to accomplish that compelling interest 1.  This is a STRICT SCRUTINY test ii. Grutter v Bollinger 1454 main case 2003: Q: whether race can be a plus factor in student selection. ∏ sued the University of Michigan Law School. ∏ was white and was denied admission so she sued that she was discriminated against based on race by the School’s affirmative action program 1. Law Schools claims that “diversity” is there compelling interest 2. SCOTUS – No Violation it passes S.S. – Diversity = Compelling Interest a. School: attempted to achieve a “critical mass” of diversity for the student body b. Standard is Strict Scrutiny: There must be a COMPELLING interest that is being achieved through NARROWLY TAILORED MEANS c. 14th A protects “persons” not “groups” so all gov’t action based on race – a GROUP classification – is prohibited subject to SS. d. Diversity = Compelling Interest as held by Justice Powell in the Bakked decision i. Provides for cross-racial understanding in school ii. Gives educational benefits to students and school iii. Better prepares them for the diverse work environment e. Narrowly Tailored Means – the amorphous “critical mass” criteria is OK b/c race is a PLUS factor in admissions = FLEXIBLE i. A QUOTA IS NOT OK: reserving certain numbers of seats for students is wrong and would not be “narrowly” tailored b/c it is NOT flexible but RIGID ii. Narrowly Tailored doesn’t req the person to try every other alternative. HERE the law doesn’t UNDULY hurt “non-minority” applicants iii. Limited Time for This: court says in 25 years (2028) this will not be necessary f. HERE: school’s race conscious admission program ensures that all factors that may contribute to the student body are considered and race is ONLY a Plus factor and racial diversity = a meaningful consideration 3. Scalia/Thomas Dissent a. This is forbidden by constitution and a sham to cover racially proportionate admission b. This is NOT a compelling interest c. Fails SS d. Violates EP of 14th A e. Other top law schools (Berkeley) have achieved diversity w/o discrimination f. School could reduce GPA/LSAT req to not discriminate iii. NOTES ON GRUTTER 1. Regents of the University of California v Bakke 1467: UC-Davis Med School set aside 30 med student seats for minority students out of 100. SCOTUS invalidated this b/c it was a QUOTA a. Strict Scrutiny of Minority Racial Preference Programs b. No racial balancing for its own sake (or imbalance): c. Racial preference Not justified to remedy general societal discrimination d. Racial preferences NOT justified for advancing social goals e. Diversity = COMPELLING interest but can only be PLUS factor, not a way to use a quota i. Quota = unlawful ii. Can’t use racial balancing for its own sake – (some quota like standard) iii. Remedying past social/private discrimination ≠ justifiable end (b/c EP applies to states not persons as individuals – can only remedy state/fed action) iv. But Diversity in education CAN be a compelling interest if it is NOT just race standing along but as a PLUS factor 2. Gratz v Bollinger 1469: SCOTUS invalidated schools affirmative action program that gave a strict 20 point advantage to each minority applicant b/c ≠ flexible plus factor. It was like the Bakke case where the advantage was strict/rigid = UNCONSTITUTIONAL 3. Parents involved in Community Schools v Seattle School Dist #1: Race Based Public School Student Assignment: Q: whether public school that had not operated segregated schools, or found to be unitary, may choose to classify students by race and use that classification to make school assignments. SCOTUS says NO, can’t classify on race and use to make assignments a. Diversity in higher education where race is only 1 consideration among many, may not be THE 1 AND ONLY FACTOR as in this case b. No compelling interest in diversity here. c. Dissent i. “remedial” and “educational” and “democratic/pluralistic” opportunities based on diversity would = compelling iv. NOTES ON AFFIRMATIVE ACTION OUTSIDE EDUCATION 1. City of Richmond v JA Croson Company 1471: City set aside 30% of gov’t contracts for “minority owned” companies. SCOTUS struck this down as a violation of anti-discrimination under 14th A 2. Federal Gov’t Racial Preference Program a. Metro Broadcasting Inc v FCC 1472: SCOTUS upheld minority racial preference programs in the Fed gov’t awarding broadcasting licenses. Used INTERMEDIATE scrutiny and found diversity program to = “important” gov’t interest b. Adarand Construction Inc v Pena 1472: Overruled Metro Broadcasting APPLIED STRICT SCRUTINY and found that racial preference could not overcome SS. That Race can never = “compelling interest” to “make up for” past racial discrimination c. Shaw v Reno (Reno I) & Shaw v Hung (Shaw II) 1473: applied SS to new districting of N. Carolina as a means of giving the state’s 12 seat in the House to black citizens. d. Carolina as a means of giving the state’s 12 seat in the House to black citizens. VII. SEX DISCRIMINATION a. Gender Discrimination = Quasi-Suspect = Intermediate Scrutiny b. Craig v Boren 1474 main case: Adoption of Intermediate Scrutiny: OK prohibits the sale of 3.2% “non-intoxicating” beer to MALES under 21 and FEMALES under 18. This differentiated b/t men and women = a SEX classification. State alleged that the law was necessary b/c males were more likely to drive drunk. i. SCOTUS – Violation of EP – must pass Intermediate Scrutiny – presumed invalid 1. Intermediate Scrutiny: classifications by gender must 1) serve and IMPORTANT gov’t objective and 2) must be SUBSTANTIALLY related to achievement of the gov’t objectives 2. HERE: a. 1) the enhancement of traffic safety = important objective b. 2) BUT the discrimination does NOT closely serve to achieve that result i. the methodology of the test/statistics is questionable ii. The minute difference in % of women vs. men does not support such discrimination iii.  no “substantial” relationship b/t objective and use of classification c. NOTES ON CRAIG V BOREN i. Equal Protection: the law must NOT treat LIKE things DIFFERENTLY 1. Gov’t must treat similarly situated individuals similarly 2. But gov’t CAN treat differently situated individuals differently ii. Rational Basis Test: if gov’t has 1) a LEGITIMATE interest and 2) any CONCEIVABLE rational basis for the distinctions and classifications the court will uphold the classification = differential iii. Strict Scrutiny: gov’t must have a 1) COMPELLING interest that is 2) NARROWLY TAILORED to achieve the compelling objective iv. Pregnancy Based Classifications and “Disparate Impact” – classifications based on pregnancy (for say health benefits) is NOT generally treated as classification on the basis of SEX 1. Geduldig v Aiello 1484: upholding CA disability law that did NOT include pregnancy w/in its coverage of medical disabilities. 2. ****Disparate Impact ****on account of sex is treated like Race – you must demonstrate that the discrimination was PURPOSEFUL to succeed on the claim d. US v Virginia 1484 main case: Higher Intermediate Scrutiny – gov’t must show “exceedingly persuasive justification: Virginia’s public institute of higher learning the Virginia Military Institute (VMI) reserved its schooling ONLY for men and refused to admit women. VMI produces “citizen solders” through and “adversative or doubting model of education” which includes physical rigor, mental stress, absolute equality, and an absence of privacy. Students live in barracks under surveillance. Upon lawsuit by a woman who wanted to go to VMI, the state opted to open the Virginia Women’s Institute for Leadership (VWIL) instead of force VMI to open its doors to women. i. SCOTUS – Violates EP – I.S. w/ “exceedingly persuasive justification” 1. Heightened Intermediate Scrutiny: for the differential treatment or denial of opportunity, the gov’t must proffer a justification that is “exceedingly persuasive” a. That the classification serves an IMPORTANT gov’t objective and that the means employed are SUBSTANTIALLY RELATED to the achievement of that objective 2. 2 Different ways Sex Discrimination Occurs a. Inherent Differences: no longer accepted, are considered artificial constraints on opportunity b. Physical Differences: are enduring b/c the two sexes are not “fungible” and are different 3. Virginia has NOT demonstrated an “exceedingly persuasive” justification a. Justification: must describe the state’s actual purpose, not rationalizations for actions that are grounded on different facts i. Here: state says that some single-sex education is good and promotes “diversity” but this is not sufficiently persuasive. Nor does the state’s argument that VMI’s adversative method of training would have to be “radically” changed to fit application to women. Even though forcing VMI to admit women which would DESTROY VMI’s education system, that ≠ justification ii. There must be “individualized” assessment of individuals – NOT GROUPS iii. Even “inherent’ difference b/t men and women CANNOT be used to give different rights to both genders – they must have equal opportunities, no subordination 4. Remedy: Virginia tried to open up VWIL instead of force VMI to admit women a. This remedy is inadequate: the VWIL program would not be the same as VMI’s b/c VWIL would deemphasize military education, doesn’t even offer the same programs, different faculty, and not the same history/prestige. b. Must Force VMI to admit women e. NOTES ON US V. VIRGINIA i. Rostker v Goldberg 1491: upholding exclusion of women from registration for military draft. Only req to force “male” citizens to register. Congress’s interest in raising and supporting armies was IMPORTANT enough to justify the use of gender-based classification – combat positions were only open to men in the military VIII. EQUAL PROTECTION OTHER CLASSIFICATIONS a. RATIONAL BASIS SCRUTINY i. Rational Basis: legislature only needs some “rational basis” for its actions to treat different things differently = the minimal degree of scrutiny applied to gov’t classification of ordinary things. Court normally focuses on whether the classification is race-like or sex-like in that it concerns an immutable/unalterable human characteristic – an inherent biological condition or 1 attributable to the circumstances of one’s birth 1. Railway Express Agency v NY 1494: SCOTUS upheld NY city traffic regulation that permitted delivery vehicles to display advertising so long as they were “engaged in the usual business or regular work of the owner” BUT PROHIBITED all vehicles “used merely or mainly for advertising” the classification had a relation to the purpose for which it was made = good enough, as long as it did not contain a kind of discrimination EP protects against 2. Williamson v Lee Optical 1495: Court upheld state law that permitted ONLY licensed optometrists to “fit lenses to a face” – law had a “rational basis” and legislature may select 1 phase of 1 field and apply a remedy while neglecting others. The prohibition of the EPC does NOT go further than “invidious discrimination” – ***Court can HYPOTHESIZE a rational basis/reason for the law = near total deference to legislature*** = court can think of a “plausible” gov’t interest, and then see if the means chosen by the gov’t bears a rational relationship a.  it is for the legislature to balance advantages/disadvantages b. Legislature can “piecemeal” legislate they don’t have to make laws against EVERYTHING in 1 field 3. Things that Will NOT meet the rational relationship test a. If it is clearly wrong b. If it is an arbitrary exercise of power c. If classification demonstrates that no exercise of judgment has been done by legislature 4. What is a BAD gov’t Interest – fails RB a. Intent to harm/disadvantage a specific group b. OTHER FORMS OF CLASSIFICATION i. Ethnicity: treated directly analogously to race and gov’t must meet Strict Scrutiny ii. Alienage: this is based upon “political status” not race itself – 1. If Fed doing the classification = RB 2. If State doing classification = SS a. For economic activity (welfare, bar admission) = SS b. For Legal Aliens Exception use RB for EPC analysis: for POLITICAL FUNCTIONS – self gov’t of states (federalism/sovereignty) i. Voting ii. Holding office iii. Running for office iv. Gov’t employment (state gov’t) (police, public school teachers, parole officers) 1. Where there is 1) policy making 2) power over others c. For Illegal Aliens: use the Supremacy Clause: many more restrictions can be placed on illegal aliens 3. Legal Alien a. Can’t bar aliens form being a notary public b. Cannot exclude resident aliens from practice of law c. Cannot limit civil service jobs for aliens d. But state may limit public teaching jobs for lawful aliens b/c they could apply for citizenship but chose not to e. May prohibit aliens from being State Troopers 4. Illegal Aliens ≠ a suspect class a. Being an “unlawful alien” ≠ a suspect classification b. Plyer v Doe 1496: But can’t bar children of unlawful aliens from going to school b/c children have no control over their status – more like can’t punish kids for wrongs of parents i. Using rational basis + standard (that the state law had to demonstrate it furthered a SUBSTANTIAL gov’t interest – hard to conceive of a rational basis for denying education to children) denial of education b/c of illegal status stigmatized them b/c this would lead to them being illiterate iii. Illegitimacy = Intermediate Scrutiny 1. Levy v Louisiana 1496: SCOUTS held that illegitimate children still have the same rights as legitimate children to recover for the “wrongful death” of their parent – a law that forbid this had “no relation to the nature of the wrong allegedly inflicted on the mother” 2. Upheld Distinctions: WITHIN the group illegitimate children 3. Bad Distinctions; b/t legitimate and illegitimate children iv. Wealth/Poverty = Rational Basis ≠ suspect class 1. San Antonio Independent School Dist. v Rodriguez 1497: SCOTUS held that a state school financing arrangement keyed to property tax values ≠ subject to heightened scrutiny on the basis of its Different Impact on persons living in richer/poorer districts – rejected idea that financial wealth/poverty = immutable conditions to which SS should apply v. Disability = Rational Basis ≠ suspect class or quasi-suspect clase 1. Buck v Bell 1497 main case: SCOTUS rejected EP challenge to state law that inflicted involuntary sterilization BECAUSE a person had a mental disability. ∏ challenged this law under EP and DP grounds. ∏ was “feeble minded” the daughter of a mentally handicapped person, and also had a child already that was too mentally handicapped. a. SCOTUS – No EP/DP violation under Rational Basis Review i. DP: there were many procedures in place for authorization, review, and appeal so there was no denial of DP ii. EP: the public welfare may be bettered by this sterilization and ∏’s “general health” will not be harmed iii.  “3 generations of imbeciles are enough” = Rational Basis 2. NOTES ON BUCK a. Cleburne v Cleburne Living Center 1500: using RB review PLUS (RB+ scrutiny) to review legislation specifically classifying on the basis of disability (for prejudice/animosity) vi. Age = rational basis vii. Sexual Orientation = rational basis (sexual orientation ≠ a suspect/quasi-suspect class) 1. Romer v Evans 1500 main case: Colorado adopted Amendment 2 to its constitution that PROHIBITED and REPEALED all ordinances that prohibited discrimination on the basis of “homosexual, lesbian, or bisexual orientation, conduct, practices or relationships” a. SCOTUS – Violation of EPC i. Purpose of Amendment 2: at a minimum to repeal existing statutes/regs/ordinances that barred discrimination based on sexual orientation ii. Ultimate Effect: to prohibit gov’t from adopting protective statutes/regs/ordinances in the future to protect homosexual 1. Statute w/draws protection from homosexuals and then NULLIFIES the legal protections that were given to them = makes them a TARGETED CLASS iii. This law deprives homosexuals of the protection of general laws that prohibit arbitrary discrimination in the gov’t and private settings 1.  it imposes a DISABILITY upon them and forbids them from seeking legislative remedies iv. **Rational Basis Standard: if the law neither 1) burdens a fundamental right nor 2) targets a suspect class, it will be upheld so long as it bears a rational relation to some legitimate end 1.  but the court looks to the ACTUAL purpose not just the articulated purpose so this is more like RATIONAL BASIS + REVIEW v. Amendment 2: 1. Imposes a broad disability on a single named group 2. And it appears to be based on animus towards the class and lacks any rational relationship to the state interest vi. Analysis 1. Legitimate Gov’t Interest: ordinarily a law will be sustained if it can be said to advance a legit gov’t interest – even if the law is unwise or works disadvantages on a particular group – even if the rationale is tenuous. a. HERE: the interest alleged to be advanced here is freedom of association for ER’s and persons who have a religious/personal objection to homosexuality. This is NOT a legitimate purpose or a discrete objective 2. Rational Relationship: NOT here 3.  Kinda Rational Basis + Review b/c look at the “actual” purpose vii. HOLD: Amendment 2 classifies homosexual not to further a proper legislative end but to make them unequal to everyone else. This cannot be done. The State cannot deem a class of persons a stranger to its laws 2. NOTES ON ROMER a. In re Marriage Cases 1509: concluded that statutes, policies, and public/private actions that treat genders equal but that accord differential treatment to couples based on homosexuality ≠ Sex discrimination b. Lawrence v Texas 1509: struck down TX law that forbid homosexual acts b/c it violated the substantive DP and liberty of persons to engage in sexual acts. c. Fundamental Interest in EP Cases: normally gov’t discrimination w/ respect to a FUNDAMENTAL INTEREST will be subject to SS → if the classification operates to disfavor the exercise of some specific constitutional right or other fundamental rights i. Police Dep’t of Chicago v Mosely 1510: treated law containing content-based regulation of speech as a problem under EPC and also 1st A. d. Final Thoughts on Equal Protection i. Slaughterhouse Cases: 14th A and P/I and DP does not bar the grant of a monopoly ii. Bradwell v Illinois 1511: upheld exclusion of women from practice of law iii. Minor v Happersett 1511: 14th A didn’t apply to voting rights iv. On Race 1. Strauder v West Virginia: held 14th A flatly forbids race based differential treatment 2. Civil Rights Cases: adopted narrow reading of 14th 3. Plessy v Ferguson 1511: upholding separate-but-equal racial segregation 4. Brown v Board of Ed: forbidding racial discrimination by gov’t including segregation 5. Loving v Virginia 1511: struck down laws mandating racial segregation in marriage. v. On Sex 1. Craig v Boren: used the “intermediate scrutiny” standard for sex-discrimination vi. Final Point: EPC is generally concerned w/ gov’t classification on the basis of immutable/ born with characteristics (like race)

SUBSTANTIVE DUE PROCESS

I. THE LOCHNER ERA a. INTRODUCTION i. DP clause of 14th A: no STATE shall deprive any PERSON of life, liberty, or property, w/o due process of law. 1. --> there must be some law that a person has violated, and then a person must be shown by fair procedures to have violated it. ii. Substantive DP: all about what “unenumerated” rights are protected iii. Allgeyer v Louisiana 1514: historic case where SCOTUS struck down a law on substantive DP grounds. The state’s law prohibited buying insurance on state property from companies not complying w/ state law. The law was held to deprive ∆’s of their liberty w/o DP . Liberty not only the right to be free from physical restraint but right of citizens to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation and to enter into contracts which may be proper, necessary, and essential to his carrying out 1.  Substantive DP was expressed as a FREEDOM OF CONTRACT kinda thing b. THE LOCHNER ERA i. Lochner v NY 1515 main case: ∆ were charged w/ violating NY law by permitting/requiring his employees to work more than 60 hours a week. NY law prohibited any ER from working EEs 60+ hours a week 10+ hours a day, even if the EE wanted to work it. 1. SCOTUS – violation of Sub DP a. Statute interferes w/ the right of contract b/t the ER and EE b. State police power: to legislate regarding safety, health, morals, and general welfare of the public. c. State has police power to prevent people from making certain kinds of K’s and d. Standard: legislation will be UPHELD if it is “fair, reasonable, and appropriate” exercise of the PO power of the state. The act must have a direct relation as a means to an end, and the end must be appropriate and legitimate i. It will be struck down if it is unreasonable, unnecessary, and arbitrary interference w/ the rights of the individual to his PERSONAL LIBERTY e. HERE: violation of DP. This law is not necessary or appropriate as a “health” law to safeguard the public health or individuals i. There must be more than a mere possible existence of some small amount of unhealthiness to warrant interference w/ liberty ii. Liberty Includes the right to CONTRACT iii. Problem w/ Lochner: court applies its own theory of Lazzier Faire Capitalism instead of deferring to the legislative judgment ii. Notes on Lochner 1. Analysis a. 1st – court asked, did the regulation interfere w/ “liberty” (a freedom of contract or other liberty) i. IF yes, then the court asks whether the state’s regulation was LIGITIMATE exercise of Police Power to regulate safety, health, morals, and general welfare b. 2nd court weighs the intrusion upon Liberty – in every case the law must be fair, reasonable, and appropriate exercise of PO power of state, INVALID if it is unreasonable, unnecessary and arbitrary interference w/ the rights of individuals in their personal iberty 2. Muller v Oregon 1521: upheld Oregon law prohibiting employment of any ‘female’ for more than 10 hours a day – court said this was appropriate given women’s “physical structure” 3. Adair v US 1522: struck down federal law that prohibited “yellow dog” contracts where EEs made Ks to NOT join a union – b/c this violated the persons right to sell his labor upon the terms that he deemed proper 4. Letting go of Lochner: in 1930’s court went away from Lochner reasoning and upheld Congress’s power to regulate hours and wages and production iii. Nebbie v NY 152 (1934) main case: NY established Milk Control Board to “fix minimum and maximum prices for sold milk” – Law made milk 9 cents a gallon. ∆ sold 2 gallons of milk + a loaf of bread for 18 cents and was prosecuted. ∆ appealed under DP grounds 1. SCOTUS – No DP violation a. Constitution does NOT guarantee unrestricted privilege to engage in business i. States may prescribe terms to conduct business if the laws are “w/in the states competency” b. Requirement of DP: a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose i. If the law passes has a reasonable relation to a proper legislative purpose, and is neither arbitrary nor discriminatory, the req of DP is satisfied c. Here: The purpose of the law is to curb unrestrained and harmful competition by measures that are NOT arbitrary or discriminatory – no violation i. So Unenumerated “Economic” Rights are NOT protected by SS  Only RB iv. Notes on Nebbia: 1. ***US v Carolene Products 1527: rejected DP challenge to federal prohibition of interstate shipment of “filled milk” Heightened Scrutiny is appropriate when****** a. Legislature restricts the political processes available for redress of grievances b. Violates a specific prohibition of the constitution (first 10 A) c. Or targets religious or racial minorities, those who lack sufficient numbers or power to seek redress through the political process 2. Ferguson v Skrupa 1528: Held that Sub DP was dead – court sustained Kansas law prohibiting anyone from engaging in the business of “debt adjustment” v. Meyer v Nebraska 1528 main case (1923): ∆ was convicted for teaching German language to a child who had not attained the 8th grade education level – this was prohibited by state law, the child had to be at least in the 8th grade to learn another language. 1. SCOTUS – violation of DP a. Question/Standard: whether the law as construed and applied unreasonably infringes the liberty guaranteed to ∏ by the 14th A b. 14th A protects i. freedom from bodily restraint ii. right of individual to contract iii. to engage in common occupations of life iv. to acquire useful knowledge v. to marry vi. to establish a home and bring up children vii. to worship god viii. to generally enjoy privileges long recognized at common law as essential to orderly pursuit of happiness by free men c. Liberty may NOT be interfered w/ under the guise of protecting the public interest by legislative action which is arbitrary or without reasonable relation to some purpose w/in the competency of the state d. HERE: a desired end cannot be promoted by prohibited means. The means adopted here exceed the limitation upon the power of the state – interference is plain vi. Pierce v Society of Sisters 1530 main case (1925): ∏’s appeal and challenge act that req every parent having control over a child b/t 8-16 to send them to PUBLIC school in the district where the child resides. ∏’s were private schools that sued to stop this b/c it was taking money away from their schools. 1. SCOTUS –violation of DP a. The Act unreasonably interferes w/ the liberty of parents and guardians to direct the upbringing and education of children under their control. b. No gov’t power allows gov’t to standardize its children by forcing them to accept instruction vii. Wisconsin v Yoder 1532 (1972): court held that state could NOT req members of the Old order Amish to send their children to school beyond 8th grade viii. Troxel v Granville 1532; struck down state family law that authorized family court judges to grant child visitation rights to persons outside the immediate family over parent’s objections c. NOTES ON PROCEDURAL DUE PROCESS i. Procedural Due Process: DP of 14th A states that States may not deprive any person of life, liberty, or property w/o DP of law. Looks at the procedures the gov’t must follow when it takes away life/liberty/property – focus is on what kinds of notice and what kind of hearing must be provided and when. ii. What is Liberty/property: not only traditional common law understandings of property but also claims of entitlement to receive gov’t benefits in accordance w/ legal req. 1. Goldberg v Kelly 1533: held DP req that welfare recipients be provided an evidentiary hearing prior to termination of benefits 2. Board of Regents v Roth: held that untenured professor did NOT have a “property” interest in his continued employment. Court must look to the “nature” of the interest at stake 3. Wisconsin v Constantineau 1533: found “liberty’ interest in one’s personal reputation 4. Paul v Davis: no liberty interest in being labeled an “active shoplifter” by police flyers 5. Vitek v Jones: found liberty interest in prisoner’s transfer to a mental hospital 6. Deshaney v Winnebago County Dep’t of Social Servicies: held DP did NOT req state agency to protect a 4 yr old boy and intervene to protect him from his violent father iii. What Process is Due: 1. Mathews v Eldridge 1534: DP contemplates a “flexible” approach requiring such procedural protections as the particular situation demands. Balancing test: the private interest that will be affected by the official action is weighed against the gov’t interest in the particular situation a. Nature of private interest b. Risk of erroneous deprivation c. Nature of gov’t interest II. SUBSTANTIVE DUE PROCESS REVIVED a. Substantive DP: Asks whether the gov’t has an adequate reason for taking away life/liberty/prop and FOCUS on sufficiency of the gov’t justification. Concerns the extent to which liberty is protected against gov’t deprivation – wholly apart from the procedures just the substance i. Used to protect economic activities ii. Safeguarding privacy and personal autonomy b. Griswold v Connecticut 1534 main case (1965): ∆ was director of Planned Parenthood in Connecticut. He was a professor at Yale medical school and gave instruction to MARRIED couples who sought to prevent conception. Statute in state made it illegal for any person to use and drug/medication/instrument to prevent conception, and it was a crime for anyone to assist another in preventing conception. i. ∆: this is a violation of DP of the 14th A ii. SCOTUS – Violation of DP 14th A 1. Law: operates directly on the intimate relation of husband and wife 2. Other 14th A rights = ZONES OF PRIVACY (penumbras of rights) a. 1st A freedom of speech  freedom of association, freedom of though b. 3rd  facet of privacy w/ no soldiers quartered in your house c. 4th  “right of person to be secure in person, houses, papers” d. 5 self incrimination e. 9th  rights retained by people even if not enumerated 3. Principle: marital relationships are meant to be FREE from INTRUSION = Reproductive Autonomy  also a protection of “personal information” to keep cops out of the bedroom 4. HERE: the law concerns the relationship w/in the zone of privacy created by several FUNDAMENTAL constitutional guarantees. It concerns the use of contraceptives rather than regulating sale/manufacture of such products = highly destructive to relationships. 5. Analysis: 1) there is no compelling state interest and it is 2) not narrowly tailored a. This is unconstitutional b/c the gov’t may not control activities by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms b. Marriage = Fundamental Right with an inherent right of privacy in the martial relationship iii. Brennan Concurrence: liberty interest = the marital right, under 9th A there are basic civil rights that were retained by the people. c. Corfield v Coryell 1547: Fundamental Liberties = rights so rooted in history that they can be traced by to 1176 and that such liberties can always be overcome by general laws enacted for the good of the whole people. = fundamental rights must be deeply rooted in history and tradition to be enforceable under the 14th A. d. Eisenstadt v Baird 1547 main case (1972): ∆ was convicted of 1) exhibiting contraceptives during a lecture to students at Boston University and 2) for giving a woman vaginal foam at the end of the lecture. i. Mass Sup C: set aside the conviction under 1) for 1st A reasons but affirmed conviction on 2) ii. SCOTUS – AFFIRM – 1. Law: calls for 5 yrs in prison for “whoever gives away any drug, medicine, instrument, whatever for the prevention of conception except as authorized” a. Authorized things to give away – makes distinct classes out of married/unmarried i. 1st – MARRIED persons MAY obtain contraceptives to prevent PREGNANCY but only form doctors/druggists on prescription ii. 2nd – SINGLE persons may NOT obtain contraceptives from anyone to prevent PREGNANCY iii. 3rd – MARRIED/SINGLE persons MAY obtain contraceptives from anyone, NOT to prevent pregnancy, but to prevent the spread of DISEASE b.  The violation of contraceptives “per se” = UNCONSTITUTIONAL 2. Q – is there a ground for the different treatment for married/unmarried people in the law 3. First – Mass Sup C found that this law was to “protect purity, preserve chastity….” a. The deterrence of pre-marital sex is NOT a reasonable purpose b. Fornication already = a Misdemeanor in the State so this statue would further punish fornication. Yet this law = a Felony 4. Second – State’s articulation that this is a Health law to protect from harmful articles a. The law is titled in the section for “crimes against chastity, morality, decency, good order” ≠ Health b. If health were the rationale this would be discriminatory and overbroad 5. Third – State says this is a prohibition on contraception a. Without a demonstration that contraceptives are harmful, it is beyond the competency of the state to regulate 6. HOLD: providing DISSIMILAR treatment for married/unmarried persons who are similarly situated VIOLATES EP – if under Griswold the distribution of contraceptives to married persons cannot be prohibited then banning such distribution to unmarried persons = impermissible too a.  Reproductive Autonomy = right of INDIVIDUALS - whether to bear/beget a child. e. NOTES ON THESE CASES i. Griswold: right of privacy = inherent in marital relationship = right of married and unmarried persons to be free from unwarranted gov’t intrusion into matters so fundamentally affecting their decision whether to bear or beget a child 1. Emphasized right of the individual – married or single – has this right 2. Privacy right = decision to bear/beget children – not only have sex f. Roe v Wade 1552 main case (1973): ∏ brought suit b/c Tex law made it illegal to have an abortion unless the life of the mother was in danger, ∏ wanted an abortion b/c she was unwed and it was an accident. i. ∏ argued: that states can never prohibit abortion ii. State argued: it can prohibit abortion no matter what 3 reasons 1. Laws product of social concern to discourage illicit sexual conduct 2. Concern w/ abortion as a medical procedure – protecting women from dangerous procedures 3. Protecting prenatal life iii. SCOTUS – Law = Violation of EP but State can “limit” abortion in some instances 1. Court has recognized a right to personal privacy – personal rights THAT can be deemed FUNDAMENTAL or IMPLICIT in the concept of liberty are included w/in personal privacy a. Marriage b. Procreation c. Contraceptive d. Family relationships e. Child rearing/education 2. 14th A and 9th A encompass a woman’s decision whether or not to have abortion – the Right of Privacy includes the right to have an abortion 3. Standard = SS state must have compelling interest and NTM to achieve it a. State interest in health and protecting life is NOT COMPELLING ENOUGH to justify the Broad limitations placed 4. BUT a woman’s right is NOT ABSOLUTE – State interest BECOMES COMPELLING as the child gets closer to birth a. State Health Concern: Compelling at the end of the FIRST TRIMESTER b/c until that time the danger of a birth is greater than an abortion after that birth is safer i. Permitted regulations: qualifications on person to perform abortion, licensure of that person, facility in which it is to be performed, licensing of the facility. ii. Prior to the 1st Trimester: the patient is free to determine w/o state regulation, that if in the medical judgment of a doctor, the patient can terminate the pregnancy b. State Protecting Life Concern: fetus ≠ person until CONCEIVED, so there can be no pre- natal application of these laws. Compelling point = VIABILITY b/c at the point the fetus has the ability to live outside the womb. 5. HOLD: Tex statute violates EP b/c it sweeps too broadly 6. SUMMARY OF HOLDING IN CASE a. 1st Trimester: right to abortion is PLENARY and may be exercised by woman for any reason she chooses b. 2nd Trimester: regulations are permitted if they are designed to protect MATERNAL HEALTH, but NOT to protect the fetus – otherwise woman has plenary power here too c. 3rd Trimester: the point of “viability” – when child can survive outside womb – protecting fetal life becomes COMPELLING BUT the state must permit abortions for MATERNAL LIFE/HEALTH (trimester exception) 7. SO  the right to privacy includes the right to terminate a pregnancy, and state interest ≠ compelling until “viability” g. Doe v Bolton 1563: Definition of “Health” = the medical judgment of the doctor may be exercised in light of all factors (physical, emotional, psychological, familial, age) relevant to the wellbeing of the patient. All these factors RELATE TO HEALTH – this gives doctor room to make best judgment h. FROM ROE TO CASEY i. FATHERS: 1. Planned Parenthood of Central Missouri v Danforth 1568: the court struck down a state law req the father’s consent to abortion, holding that abortion choices belong to the woman EXCLUSIVELY ii. MINORS: 1. Planned Parenthood of Central Missouri v Danforth 1568: struck down flat req of parental consent 2. Bellotti v Baird 1568: upheld parental consent if there is a “judicial bypass” alternative for “mature” minors 3. Planned Parenthood of Kansas City v Ashcroft: upholding parental notice as opposed to consent 4. HL v Matheson: upholding parental notice 5. Hodgson v Minnesota: striking down 2-parent notice w/o a judicial bypass 6. Ohio v Akron Center for Reproductive Health: upholding 1-parent notice w/ a judicial bypass iii. FUNDING: Court has upheld state and federal actions DECLINING to fund abortion, sustaining gov’t prerogative to subsidize child-birth but not abortion w/ Medicaid benefits 1. Not on EP or DP to have funding b/c there is no Constitutional right to funding, and it ≠ a gov’t “penalty” b/c it doesn’t infringe on any right. 2. There is a right to have an abortion but no right to have it paid for. iv. REGULATION OF ABORTION 1. Thornburgh v American College of Obstetricians & Gynecologists 1569: court invalidated state laws imposing certain informed consent and waiting period reqs for abortion, laws req that certain abortions be performed in hospitals, laws req the abortion technique most likley to protect the life of the fetus (pose viability abortions) and req the presence of a 2nd doctor III. SUBSTANTIVE DUE PROCESS – ABORTION AND STARE DECISIS a. Planned Parenthood v Casey 1571 main case: Issue: 5 provisions of the Pennsylvania abortion control act: 1) req women seeking an abortion give her informed consent prior to the abortion procedures and be provided w/ certain information at least 24 hours before the procedure 2) a minor must get informed consent of 1 of her parents for an abortion but there is a judicial bypass if minor does not wish/cannot get parent’s consent 3) married women seeking abortion must sign statement indicating that she has notified her husband of intended abortion 4) act does allow an emergency exception. US argues that Roe v. Wade should be overruled in this case i. SCOTUS – Affirm Roe v. Wade but change the mandates*** 1. Roe Reaffirmed: a. Before viability: woman has full right to choose to have abortion w/o interference from state – no “substantial obstacles” from the state i. A woman has right to be free from “undue burden” from the state b. After viability: state has strong interest in restricting abortions BUT there must be an exception for pregnancies which endanger the life of health of the mother i. State can NOW restrict/prohibit abortion after viability (which is earlier now) c. State interest generally: state has a legitimate interest from outset of pregnancy in protecting the health of the woman and the life of the fetus 2. Due Process of 14th A: the right to LIBERTY is what is at stake in abortion a. Liberty = a rational continuum which includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interest require particularly careful scrutiny of the state needs asserted to justify their abridgment 3. Standard/Test for Stare Decisis Review: Judicial Integrity a. Whether the rule has proven to be intolerable simply in defying practical workability b. Whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation - reliance c. Whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine d. Whether facts have so changed, or are now seen so differently, as to have robbed the old rule of significant application or justification 4. Stare Decisis review for Roe looks at (pp 1575→ a. Whether Roe’s central rule has been found to be unworkable i. Not unworkable it only req judicial assessment of state laws b. Whether the rule’s limitation on state power could be removed w/o serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it i. People have organized their lives around Roe and contraception use c. Whether the law’s growth in the intervening years left Roe’s central rule a doctrinal anachronism discounted by society i. Roe has been preserved, although tweaked, and it recognizes protection of liberty relating to intimate relationships/family/child bearing d. Whether Roe’s premises of fact have so far changed in the ensuing 2 decades as to render its central holding somehow irrelevant or unjustifiable in dealing w/ the issue it addressed i. Health care and advances in care has accelerated the point of fetal viability now, but that point of viability still = the point that the state can step in to protect the fetus e.  Overall there changes of the times has NOT eroded Roe so much, it is still w/in the bounds of Stare Decisis Review 5. The power of the Court lies in its LEGITIMACY and it should not overrule a decision just because the court has come under attack. Precedent req Roe to be upheld 6. HOLD TO AFFIRM ROE a. Line is drawn at VIABILITY i. Before viability woman as unfettered right to terminate pregnancy ii. After viability state has a legitimate interest in protecting the fetus iii. Health Exception must be preserved for health of mother b. State may enact rules to ensure an informed choice and health of woman i. To educate the woman on moral/social values ii. EVEN in the earliest stages of pregnancy c. Reject the Trimester Framework: no more 1, 2, 3 trimester rules, only look at viability d. NEW STANDARD – UNDUE BURDEN: only where state regulation imposes an UNDUE BURDEN on a woman’s ability to make this decision does the power of the state reach into the heart of liberty protected by DP. A state law that has the PURPOSE/EFFECT of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus  Also 1) a statute w/ such a purpose is invalid b/c the means chosen by the State to further the interest in potential life must be calculated to INFORM the woman’s free choice, not hinder it and 2) regulations which do no more than create a structural mechanism by which the state or the parent or guardian may express profound respect for the life of the unborn are PERMITTED, if they are not a substantial obstacle to the woman’s exercise of the right 3) a state measure designed to persuade her to choose childbirth over abortion will be UPHELD if reasonably related to that goal, regulations designed to foster the health of a woman seeking an abortion are valid if they do NOT constitute an undue burden i. Not every law that makes abortion more difficult = an infringement ii. Regulations that only create a structural mechanism by which the state may express profound respect for life of the unborn are PERMITTED if reasonably related to goal iii.  ***Laws that impose an UNDUE BURDEN on the choice to abort PRIOR to viability receive STRICT SCRUTINY****** 7. NEXT ANALYZE THE STATE LAW AT ISSUE a. Def of Medical Emergency: a condition which complicates the medical condition of a pregnant woman to necessitate the immediate abortion of her pregnancy. This was construed by the CoA to include all “serious” conditions so this ≠ undue burden b. Informed consent req of 24 hour waiting period before abortion for doc to inform woman, and req a woman to give consent ≠ undue burden. This is REASONABLE i. Overrule Arkon and Thronburgh: giving truthful info to woman ≠ undue burden ii. 24 hour delay, and therefore req 2 trips to the doc ≠ undue burden, merely an a c. Married Woman Spousal Notification: women are req by statute to certify in writing that their husbands are informed, or that they aren’t the father, or that they can’t be located, or actually sexually assaulted the woman. This WOULD prevent a significant # of women from getting abortions and does = UNDUE BURDEN  STRIKE i. Women don’t lose constitutional protection upon marriage d. Parental Consent: b/c there is a judicial bypass for minors ≠ undue burden e. Recordkeeping/Reporting Req: this is reasonably directed at preserving the health of patients and as long as they respect the patient’s privacy ≠ undue burden b. Stenberg v Carhart (I) 1600: struck down Nebraska’s prohibition on dilation/extraction abortions b/c 1) the law was “vague” and might be construed to prohibit more than D/E abortions and thus = an UNDUE BURDEN and 2) the law lacked the “health of the mother” exception as req by Roe/Casey c. Gonzales v Carhart (II) 1600: upheld Congress’s partial-birth prohibition that is “clearly limited” to dilation and extraction abortions. To be an “undue burden” it must affect a SUBSTANTIAL # of women IV. SUBSTANTIVE DUE PROCESS – IS THERE A RIGHT TO DIE? a. Cruzan v Missouri Dep’t of Health 1602 main case: C was in an auto accident and suffered permanent brain damage. She was deemed a vegetable and incapable of recovery. Her parents wanted to pull the plug on her forced feeding tube and let her die. C had previously expressed feelings of wanting to die rather than be kept alive as a vegetable before the accident. Q – 1) whether C has a right under the Constitution which would req the hospital to w/draw life-sustaining treatment form her 2) what would be the source of the authority for this right? i. Missouri Law – req a showing of “clear and convincing” evidence to demonstrate the person’s desire to have the plug pulled, otherwise state won’t allow it ii. SCOTUS – liberty interest in right to refuse medical care, Sustain State Procedure 1. Right to informed consent – patients have a right to refuse consent to medical care 2.  this encompasses the right of a COMPETENT person to refuse medical care 3. State interest = preservation of life 4. Hold: DP not violated by State req procedural standard – the DP clause does NOT req the state to repose judgment on these matter to anyone but the patient herself iii. Analysis/Standard – 3 steps but court does NOT Express the scrutiny it uses 1. Court infers that Competent adults have right to refuse medical treatment a. And assumes that the right to refuse medical treatment includes the right to refuse food/water b. Court asserts this right from history/tradition of req consent for medical care, so this refusal is the mirror/analogue to that 2. The state can req “clear/convincing” evidence that the person didn’t want the treatment before it can be terminated 3. Court had to decide absent “clear/convincing evidence” that the state could constitutionally prevent a family member from terminating the care of another iv. Rule: a liberty interest exists in a person’s right to refuse medical care – such right is NOT violated by a state law that establishes procedural safeguards and burdens of proof to req “clear and convincing” evidence that a comatose patient actually would wish to refuse treatment. 1.  So DP PERMITS the state to assure that, for a comatose patient, the patient’s asserted choice to refuse life-sustaining medical treatment (food/water/etc) advanced by some 3rd party, is truly the PATIENT’S CHOICE – what the patient would’ve wanted v.  Principle = right to be free of unwanted intervention in ones body/health 1. Personal autonomy allows each of us to direct the timing/manner of our deaths vi. Vote of Justices = 5-4 b. Washington v Glucksberg 1615 main case: Unanimously Rejected a substantive DP right of terminally ill patients to physician-assisted suicide. Q – whether WA prohibition against aiding in suicide offends the 14th A – Hold that is does NOT. WA law makes assisting in suicide illegal BUT it allows the w/holding of “life-sustaining” treatment at the patient’s direction. Doctors brought suit seeking declaratory judgment that the state law is unconstitutional i. SCOTUS – No right to commit suicide w/ assistance in DP 1. DP guarantees MORE than fair process, and “liberty” protects more than the absence of physical restraint – all FUNDAMENTAL rights and liberty interests 2. State interests: 1) preserving life 2) preventing suicide 3) avoiding involvement of 3rd parties and undue influence 4) protecting family members 5) protecting integrity of medical profession 6) avoiding future movement toward euthanasia abuses 3. Analysis a. 1st is there a liberty interest in determining time/manner of death: NO using history, suicide has historically been outlawed and severely punished  so any right to suicide is NOT FUNDAMENTAL to liberty and is NOT protected by DP i.  WA has a legitimate gov’t interest in banning assisted suicide 4. HOLD: WA does NOT violate the 14th A either on its face or as applied b/c assistance in committing suicide ≠ fundamental interest apply Rational basis ii. Substantive DP analysis: only where the claimed right is defined in the most specific way possible and not in general terms, 1) DP protects rights/liberties that are “objectively, deeply rooted” in the nation’s history and TRADITION and is so essential to ordered liberty that w/o it neither “liberty no justice” could exist 2) the court req in DP cases a “careful description” of the asserted fundamental liberty interest 1.  thus history and tradition serve as guideposts for decision-making iii. NOTES 1. Court rejects an EPC challenge based on Cruzan that if a person has a right to refuse medical care that would keep them alive, then a person should have the right to assist their death c. Vacco v Quill 1601/1626: rejected an argument that the EPC req recognition of an affirmative right to physician-assisted suicide where state law recognized (in effect) a “right to die” by refusing life- sustaining medical treatment. V. SUBSTANTIVE DUE PROCESS –GAY RIGHTS a. Bowers v Hardwick 1627 (1986) main case: rejected DP right to commit sodomy. ∆ was charged w/ violating the Georgia statute criminalizing sodomy by committing anal sex w/ another man in his home. ∆ brought claims that this violated his substantive due process rights. The law DID NOT differentiate b/t gays and heterosexuals – all sodomy was illegal i. SCOTUS – no right to commit sodomy regardless of sexual orientation 1. Homosexual Sodomy: HISTORICALLY outlawed and bears NO relationship to marriage, procreation, or other fundamental DP rights 2. Standard: only rights that are FUNDAMENTAL and are “implicit in the concept of ordered liberty” and as such “either liberty nor justice would exist if they were sacrificed” - and “deeply rooted in history 3. Hold: even if the conduct at issue were not a fundamental right, ∆ asserts there must be a rational basis for the law – morality can be a RB for law b. Lawrence v Texas 1633 (2003) main case: ∆ was arrested for committing sodomy in Texas. TX law made it illegal for gays to commit sodomy by heterosexuals could. i. SCOTUS – there is a FUNDAMENTAL right to privacy in sexual conduct b/t consenting adults 1. Griswold not confined to protection of married rights 2. Overrule Bowers – simply stating that the right at issue in Bowers was the right to “sodomy” demeans the claim it is the right LIBERTY protected by the Constitution allows homosexuals to make intimate choices about their own sexuality 3. Sodomy laws are based upon MORALITY and religious beliefs and the court’s duty is to define the liberty of all, not mandate their own moral code 4. Other courts recognize homosexual sodomy rights – European courts have allowed homosexual sodomy for years, and most of the states allow it now. TX is in the minority a. There is also a history of NONENFORCEMENT of these sodomy laws 5. Casey reaffirmed the substantive force of liberty protected by DP – regarding personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education a. person in homosexual relationships may seek autonomy for these purposes, just as heterosexual person 6. Rule of Bowers a. Has undergone serious erosion in Casey and Romer b. Reasoning in Bowers has been rejected elsewhere c. Stare Decisis is NOT inexorable and there is MINIMAL RELIANCE on Bowers d. Rationale of Bowers does not w/stand careful analysis b/c it is based ONLY on “morality” 7. HOLD: DP under the 14th A gives homosexuals the full right ot engage in conduct w/o gov’t it is a promise of the Constitutional that there is a realm of personal liberty which the gov’t may NOT enter a. This law furthers NO legitimate gov’t interest b. MORALITY cannot be a Rational Basis for a Law by itself w/o other harms