Constitutional Law II The First 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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Fourteenth Amendment: Section 1. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” ... Section 5. “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” I.
The Structure of the Constitution’s Protection of Civil
Liberties.
A. B arr on v. B altim ltimo or e (1833). --When the Constitution was ratified, the Bill of Rights did not apply to the States. Barron v. Baltimore, 32 U.S. 243 (1833). For instance, the first several words of the First First Amendment are “Congress shall make no law…” It wasn’t until the ratification of the Reconstruction Reconstruction Amendments that the States were expressly limited. See U.S. Const. amend. XIV (“No State shall…”). --Barron v. Baltimore, 32 U.S. 243 (1833) (per Marshall, C.J.). Facts: Barron was the owner of a profitable wharf in the Baltimore harbor. In the early 1800s, the city of Baltimore began diverting streams streams while working on a city city construction project. This caused Barron’s mounds of sand to compile in Barron’s wharf, making it too too shallow for most vessels. Barron then sued the city, arguing that they the y had taken his property without providing just compensation. compe nsation. Issue: Whether the city had violated the 5th Amendment by taking Barron’s property without providing just compensation. Ruling/Rationale: No. “We are of [the] opinion, that the [eminent domain] provision in the Fifth Amendment to the constitution…is intended solely as a limitation on the ex ercise of power by the government on the United States, and is not applicable to the the legislation of the states.” --Why --Why doesn’t the Bill of Rights apply to the States? Marshall gives several several reasons: The text of the Amendments suggest they were only meant to apply to the Federal Government, e.g., “Congress shall make no law respecting an establishment of religion…” The States each have their own individual constitutions, ratified by the people, to guard against government encroachments. The common understanding of the time suggested that the Bill of Rights was not meant to apply to the States.
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B . The Pr i vileges vileges or I mmunit uni ti es C lause lause.. --After the ratification ratification of the Fourteenth Amendment, the U.S. Constitution expressly limited the States. There were two clauses in the Fourteenth Amendment that potentially could have applied the Bill of Rights to the States: the Privileges or Immunities Clause1 and the Due Process Clause. --Textually, the Privileges or Immunities Clause seems to be the best vehi cle to incorporate the Bill of Rights. Righ ts. dissenting). The Supreme Court, however, See, e.g., Duncan v. Louisiana, 391 U.S. 145, 166 (Black, J., dissenting). expressly rejected this argument in the first case concerning the Fourteenth Amendment: The Slaughterhouse Cases. --The Slaughterhouse Cases, 83 U.S. 36 (1873) (per Miller, J.). Facts: In the 1800s Louisiana, when a butcher slaughtered an animal, he would usually throw the entrails into an adjacent river. river. Concerned about cholera, the city of New Orleans suggested that all slaughterhouses be moved south of city city limits, so that that the butcher would not. Many butchers, however, refused. The Louisiana Legislature then chartered a private p rivate corporation, the Crescent Slaughterhouse Company, and required butchers to conduct their business there. Dozens of Louisiana butchers then sued the State, arguing that the law violated the newly-ratified 13th and 14th Amendments. Issue: (1) Whether Louisiana’s law violated the 13th Amendment’s prohibition of involuntary servitude. *(2) Whether Louisiana’s law violated the 14th Amendment’s Privileges or Immunities Clause. (3) Whether Louisiana’s law violated the 14th Amendment’s Due Process Clause. (4) Whether Louisiana’s law violated the 14th Amendment’s Equal Protection Clause. Ruling/Rationale: (1) No. The terms “slavery” and “involuntary servitude” have distinct meanings in American culture. (2) No. “[T]he entire domain of the privileges and immunities of citizens of the States…lay within the constitutional and legislative power of the States, and and without that of the Federal government.” gov ernment.” (3) No. “[U]nder no construction of [the Due Process Clause]…can the restraint imposed by the State of Louisiana upon…the butchers of New Orleans be b e held to be a deprivation d eprivation of property within the 2 meaning of that provision.” that provision.” (4) No. The Equal Protection Clause “is so clearly a provision for [African[African-Americans]…that a strong case would be necessary for its application to any other [race].” --In short, Justice Miller interpreted the 14 th Amendment narrowly. Miller believed that the first first sentence of the Fourteenth Amendment (“All persons born and naturalized na turalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State where they reside”) differentiated between two citizenships: one of the U.S. U.S. and another of the State. Furthermore, the second sentence, forbidding forbidding states from making “any law which shall abridge,” applied only to federal rights. Thus, the Privileges the Privileges and Immunities Clause of the Constitution only protected rights guaranteed by b y the United States, not individual States. Rights protected by the United States — as as opposed to rights protected by the States — are are along the lines of access to ports and navigable waterways, the ability to run for federal office, and to be protected while on the high seas. Crandall v. Nevada, 73 U.S. 35 (1868). They did not include what we call “civil rights.”
--Unlike the rest of the 14th Amendment, the Privileges or Immunities Clause remained practically dormant for over 100 years. years. Since The Slaughterhouse Cases, the Supreme Court has only used the Clause once — and and that case was overturned five years years later. It wasn’t until 1999 in Saenz v. Roe that the Court looked to the Privileges or Immunities Clause as a limitation on the States.
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Don’t confuse the Privileges or Immunities Clause (14th A) with the Privileges and Immunities Clause (Art. IV). 2 Doesn’t mention why this isn’t a deprivation of “liberty” within the meaning of the Due Process Clause.
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In Saenz v. Roe, 526 U.S. 489 (1999) (per Stevens, J.), the Court struck down a California Statute that limited welfare benefits to new California citizens. “[I]t has always been common ground that this Clause protects…the right to travel.” Justice Thomas dissented in Saenz , arguing “[b]ecause I believe that the demise of the Privileges or Immunities Clause contributed in no small part to the current d isarray of our Fourteenth Amendment jurisprudence, I would be open to reevalutating it meaning in an appropriate case.”
incorpor ation.” C . The Due Process Clause and “selective incorporation.”
--In the wake of The Slaughterhouse Cases, the Supreme Court suggested an alternate approach: find the protections in the Bill of Rights to be encompassed by the “liberty” protected by the Due Process Clause. --In Chicago, Burlington, & Quincy RR Co. v. Chicago, 166 U.S. 226 (1897), the Supreme Court held that the Due Process Clause prohibited the States from taking private propert y for public use without providing just compensation. In ruling so, the Court, in effect, selectively selectively incorporated the 5th Amendment’s eminent domain requirements to the States. However, it wasn’t until Twining v. New Jersey, 211 U.S. 78 (1908), that the Supreme Court explicitly discussed “incorporating” the Bill or Rights. The Twining Court declined to incorporate the 5th Amendment’s protection against self-incrimination —although the Court did note that “it is possible that some of the personal rights safeguarded by the [Bill of Rights]…may also be safeguarded against state action.” --Early on, the Supreme Court was very hesitant to apply the Bill of Rights to the States. See, e.g., Palko v. Connecticut , 302 U.S. 319 (1937) (refusing to apply the Double Jeopardy Clause to the States); Adamson v. ). It was not until the Warren Court that the incorporation California, 332 U.S. 46 (1947) (reaffirming Twining ). doctrine took full force. force. For example, Duncan v. Louisiana illustrates the Warren Court’s willingness to incorporate the Bill of Rights. --With few exceptions, the incorporated rights apply to the States in the same manner as they the y would apply to the 3 federal government (i.e., “jot for jot”). There are, however, limited exceptions to this this rule. For example, the States do not have to use 12-person juries in criminal cases, even though that is the federal standard. Williams criminal conviction. v. Florida, 399 U.S. 78 (1970). Those juries also do not have to be unanimous to sustain a criminal Apodaca v. Oregon, 406 U.S. 404 (1972) (allowing a conviction to stand with a 11-1 jury verdict); Johnson v. 1 0-2 jury verdict). Louisiana, 406 U.S. 356 (1972) (allowing a conviction to stand with a 10-2 --In short, although the incorporation debate raged amongst Justices and scholars during the mid-20th century, the issue now seems settled. Except for the few provisions mentioned above, the Bill of Rights applies to the States, and, in almost all instances, with the same force. -- Duncan Duncan v. Louisiana, 391 U.S. 145 (1968) (per White, J.). Facts: Duncan, a black man, was driving his car when he saw his cousins being accosted by several white men. He stopped the car car and gathered his cousins. The white men later said that Duncan slapped one of them. Duncan was charged with simple battery. He received a 60-day prison sentence sentence and a $150 fine fine at a mandatory bench-trial. He appealed his conviction, conviction, arguing that Louisiana’s th th denial of a jury trial violated the 6 and 14 Amendments. Issue: Whether the Due Process Clause of the 14th Amendment applies the 6th Amendment’s right to a jury trial to the States. Ruling/Rationale: Yes. “[W]e hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which — were were they to be tried in a federal court — — would would come within the Sixth Amendment’s guarantee. The Court gives language from previous cases that serve as potential rules:
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See Duncan v. Louisiana , 391 U.S. 145, 181 (1968) (Harlan, J., dissenting) (using the “jot for jot” language).
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Whether a right is among those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” Powell v. Alabama (1932). Whether the right is “basic in our system of jurisprudence.” In re Oliver (1948). Whether it is “a fundamental right, essential to a fair trial.” Gideon v. Wainwright (1963). Justice Black and Douglas (concurring) argued that the Privileges or Immunities Clause incorporated the Bill of Rights as a whole to the States.
--The most recent case concerning the incorporation doctrine is McDonald v. Chicago. -- McDonald McDonald v. Chicago, 561 U.S. 742 (2010) (per Alito, J.). Facts: In 1982, Chicago instituted a citywide handgun ban. McDonald, wanting to purchase a handgun for home-protection, challenged the ban. Issue: Whether the 2nd Amendment’s right to keep and bear arms— as as interpreted in District of — applies applies to the States. Coulmbia v. Heller (2008) — Ruling/Rationale: Yes. “[W]e hold that the Second Amendment…is Amendmen t…is fully applicable to the States.” The McDonald Court gives the following test to determine whether a right should be incorporated: “whether the right…is fundamental to our scheme of ordered liberty, or…whether this right is ‘deeply rooted in this Nation’s history and tradition.’”
--There are several provisions of the Bill of Rights that have not been incorporated: (1) the 3rd Amendment; (2) the 5th Amendment’s right to a grand jury trial; (3) the 7 th Amendment’s right to a civil jury trial; and (4) the 8 th Amendment’s proscription of “excessive fines.”
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II. State Action.
--As a general rule, the Constitution limits only the government, i.e., it does not regulate private citizens.4 See The Civil Rights Cases, 109 U.S. 3, 11 (1883). There are, however, several exceptions and “grey areas” within the state action doctrine. doctrine. Namely, there are two exceptions to the state action doctrine: (1) the “public “public functions exception,” where a private entity must comply compl y with the Constitution if it is performing a task that is traditionally done by the government, Marsh v. Alabama, 326 U.S. 501 (1946) (the “company town” case); Terry v. Adams, 345 U.S. 461 (1953) (private election case); and (2) the “entanglement exception,” where private conduct must comply with the Constitution if the government has authorized, encouraged, or facilitated the unconstitutional conduct, Shelley v. Kraemer , 334 U.S. 1 (1948) (the “enforcement” case); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (the “symbiotic relationship” case). The contours of the state action doctrine are “fuzzy” at best. There are glaring inconsistencies inconsistencies within the doctrine — with with the Supreme Court even admitting that the “cases deciding when private action might be deemed that of the state have not been a model of consistency.”5 --The Civil Rights Cases, 109 U.S. 3 (1883) (per Bradley, J.). Facts: In 1875, Congress passed the first Civil Rights Act pursuant to § 5 of the 14th Amendment. This Act made it a civil offense to deny d eny any person “the full and an d equal enjoyment of…[public] facilities…” because of the color of their skin. Shortly after the passage of this Act, several African-Americans African-Americans were disallowed from entering restaurants, restaurants, theatres, hotels, opera houses, etc. They sued the owners of the establishments under the Act. Issue: Whether § 5 of the 14 th Amendment gives Congress the power to regulate private p rivate conduct. Ruling/Rationale: No. Ruling/Rationale: No. “It is state action of a particular character that is prohibited. prohibited. Individual invasion th of individual rights is not the subject-matter of the [14 ] amendment.” amendment.” In other words, the the 14th Amendment only prohibits the States from denying any person of due process or equal protection. The Amendment was not passed to correct private wrongs.
A. “Public f unctions .” unctions .”
--There --There is no clear indicator as to when a private entity has taken on a “public function.” A company town, which essentially takes on the role of the government, is subject to the dictates of the Constitution. Marsh v. Alabama (1946). A mall, however, although opening its doors to as many people as possible, is not subject to the Constitution. Hudgens v. NLRB (1976). The dominant rule seems to be Rehnquist’s “traditional government functions” test. See Jackson v. Metropolitan Edison Co. (1972). If a private entity assumes assumes a role that from time immemorial has been devoted to the government, it will be subject to the restrictions set forth in the Constitution. See Terry v. Adams (1953) (voting/elections); Evans v. Newton (1966) (operating a local park); but see Jackson v. Metro Edison (holding that providing power is not a traditional government function).
1. E ar ly case cases. s. i . C ompa ompany ny town. town. -- Marsh Marsh v. Alabama, 326 U.S. 501 (1946) (per Black, J.). Facts: Chickasaw, Alabama was a company-owned town owned by Gulf Shipping Corporation. While it appeared and functioned just like any other town, Gulf Shipping Corp. owns everything — including including normally public areas (e.g., the streets and sidewalks). The plaintiff , a Jehovah’s Witness, distributed
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The obvious exception to this rule is the 13th Amendment, which prohibits slavery in all forms. 5 Edmondson v. Leesville Concrete Co ., 500 U.S. 614, 632 (1991) (per Kennedy, J.); see also Charles L. Black, Jr., Foreword: “State Action,” Equal Protection, and California’s Proposition 14 , 81 Harv. L. Rev. 69, 95 (1967) (calling the state action doctrine a “conceptual disaster area”).
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religious literature on the sidewalk adjacent to the town’s post office. office. A notice was posted in the local stores, which read: “This is private property, and without written permission, no street, or house vendor, agent or solicitation of any kind will be permitted.” permitted.” The plaintiff was warned several times that she could not pass out her literature. literature. Nonetheless, she continued to do so so and was subsequently arrested for for trespassing. She argued the town had violated her First and Fourteenth Amendment rights. Issue: Whether a privately owned town may ma y restrict a person’s First Amendment rights. Ruling/Rationale: No. Ruling/Rationale: No. A town — whether whether public or privately owned — must must obey the dictates of the Constitution. Even if a corporation owns a town, the public still has an interest in the functioning of the community in such manner that the channels channels of communication remain free. free. And this label of “private” “private” does not give the owner of the property “absolute dominion” do minion” over all guests. “The more more an owner, for his advantage, opens up his property for use by b y the public in general, the more…his rights become circumscribed by the statutory and constitutional rights of those who use it.” In other words, whether property is “private” is not dispositive.
i i . E lect lectii ons. --Terry v. Adams, 345 U.S. 461 (1953) (per Black, J.). Facts: Since the late-1800s, a Texas county had delegated its democratic primary election powers to a private organization: the Jaybirds. The winner of these Jaybird elections invariably went on to be named the democratic nominee for their their particular office. The Jaybirds, however, had one single proviso within their organization: “Negroes are excluded.” The entire point of the Jaybird organization Jaybird organization th was to attempt to circumvent the 15 Amendment. Issue: Whether a private organization that assumes the role of con ducting elections is subject to the Constitution. Ruling/Rationale: Yes. “For a state to permit such a duplication of its election process is to permit a flagrant abuse of those processes to defeat the purposes purpo ses of the Fifteenth Amendment. … It violates the Fifteenth Amendment for a state, by such circumvention, circumv ention, to permit within its borders the use of any an y device that produces an equivalent of the prohibited election.”
iii. Parks. -- Evans Evans v. Newton, 382 U.S. 296 (1966) (per Douglas, J.). Facts: In 1911, a U.S. Senator devised a tract of land to the City of Macon, Georgia. The will specified that the land was to be used as a “whites“whites-only” park and to be supervised by a board consisting of only white members. The city segregated the park for several years but eventually let all races use and enjoy the park. The members of the board sued, arguing arguing that the city should be removed removed as a trustee of the park. The city then resigned resigned as a trustee. trustee. Several black citizens intervened, intervened, arguing that the court could not be a part of excluding blacks from a now-city-owned park. Issue: Whether a private space is subject to the Constitution when it is used for public purposes. Ruling/Rationale: Yes. Once a space has acquired a sufficiently “municipal” character, its obedience to the Constitution cannot switched “on” and “off” by merely changing from “public” to “private” ownership. What is “public” and what is “private” is not a black -and-white -and-white divide. “Only by sifting sifting facts and weighing circumstances can we determine whether wh ether the reach of the Fourteenth Amendment Amend ment extends to a particular case.” For when the government remains “entwined” “entwined” in the management of a th private enterprise, that enterprise remains subject to the 14 Amendment.
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2. The “mall” cases. cases.
-- Amalgamated Amalgamated Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968) (per Marshall, J.). Bad Law! Overturned by Hudgens v. NLRB (1976). Facts: In 1965, Logan Valley Plaza, Inc. Inc. opened a new mall in Altoona, Pennsylvania. Pennsylvania. Shortly after the opening of the mall, several members of the local Amalgamated Food Union protested the mall’s nonnonunion employment practices. The protestors were then removed removed from the premises under threat threat of criminal trespass. Issue: Whether a mall that is generally open to the public is subject to the 1st Amendment. Ruling/Rationale: Yes. “[T]he State may not delegate the power, through the use of its trespass laws,…to exclude those members of the public wishing to exercise their First Amendment rights…” As was held in Marsh, “[t]he more an owner, for his advantage, a dvantage, opens up his property for use by the public…, the more…his rights become circumscribed by the…constitutional the…constitutional rights of those who use it.” There is no better example example of an owner opening his property up to the public than the example of a shopping mall.
--Lloyd Corp. v. Tanner , 407 U.S. 551 (1972) (per Powell, J.). Facts: In the early 1960s, Lloyd Corp. opened a large mall in Portland, Portland, Oregon. In 1968, several people began passing out handbills for the “Resistance Community” to protest the draft and the Vietnam War. Eventually, mall security informed informed the protestors that they were trespassing and would would be arrested unless they stopped distributing their handbills in the mall. Issue: Whether a mall that is generally open to the public is subject to the 1st Amendment. Ruling/Rationale: No. Ruling/Rationale: No. “[T]he facts in this case are significantly different different [from Logan Valley].” First, the speech by the protestors in in this case had no relation to the Lloyd Center.6 Second, there were adequate alternative avenues for the protestors to pass out their handbills.7
--Hudgens v. NLRB, 424 U.S. 507 (1976) (per Stewart, J.).8 Facts: A group of labor union members engaged in picketing within the confines con fines of a privately owned shopping center. They were threatened that they would be arrested arrested for trespassing if they didn’t leave; they then left. The union workers subsequently filed a charge against Hudgens with the NLRB for prohibiting their protest. The NLRB alleged the worker’s rights were violated under the First Amendment and the NLRA. Issue: Whether the petitioner, in vacating the union workers from his premises, violated their First Amendment rights. Ruling/Rationale: No. The constitutional guarantee of free expression has n o part to play in this case, and the picketers here did not no t have a First Amendment right to enter the shopping center for the purpose of advertising their strike against their employer. employer. In other words, the Court explicitly overturns Logan Valley, noting the legal acrobatics it took for the Lloyd Court to distinguish the two. You have no 1st Amendment rights in private malls. (The case rests solely on the NLRA. The case is therefore vacated and remanded so the NLRB may reconsider the case under u nder the NLRA’s statutory criteria alone.)
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So? How does the content of the speech relate to whether this is a public forum or whether there was state action? So? This still doesn’t address whether there was state action. There were certainly other places for the Jehovah’s Jehovah’s Witness to to pass out handbills in Marsh; that didn’t make the company company town any less of a state actor. 8 Justice Stewart wrote the majority opinion in Hudgens that overturned Logan Valley . In doing so, he relied solely on Lloyd , a case in which he dissented. 7
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3. Tra Tr aditiona itional gov governme rnment funct functions ions test. st. -- Jackson Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) (per Rehnquist, J.). Facts: Edison was a privately privately owned power company. York, Pennsylvania issued Edison a certificate certificate of public convenience, giving Edison a monopoly on power to the town. As a condition of holding this certificate, Edison was subjected to extensive regulation b y the Pennsylvania Public Utility Commission. Jackson, a resident resident of York, failed failed to pay her power bills. In response, Edison shut off her power. Jackson argued that this violated the 14th Amendment by depriving her of “liberty” without “due process of law.” Issue: Whether a private company, which is heavily heavil y regulated by the State, is subject to the 14th Amendment. Ruling/Rationale: No. “There mere fact that a business is subject to state to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment. Nor does the fact that the regulation is extensive and detailed…do so.” *“[T]he inquiry must be whether there is a sufficiently close clos e nexus between the State and the challenged action of the regulated entity entit y so that the action of the latter may ma y be fairly treated as that of the State itself.” The crux of Rehnquist’s argument is that providing power is not a traditional state function; therefore, Edison has not assumed the role of the State.9 Marshall, J., dissenting: “Our cases have repeatedly relied on several factors” to determine whether there was state action: (1) whether there is “a statestate -sanctioned” monopoly; (2) whether there is is “an extensive pattern of cooperation coop eration between the ‘private’ entity and the State”; and (3) whether the private actor is providing “a service uniquely public in nature.”
B. “Entanglement.”
1. J udi udi cial E nforcem nforcement. nt. --Traditionally, state actors are thought of as members of the Legislature ( e.g., Congress passes a discriminatory law) or the Executive Branch (e.g., a police officer exceeds his authority). In Shelley v. Kraemer , 334 U.S. 1 (1948), however, the Court held that judges are state actors and judicial enforcement en forcement amount to state action. Within this framework, there are two major areas in which the Court has considered judicial enforcement as state action: (1) the use of courts for prejudgment attachment, see Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982); and (2) the use of peremptory challenges challen ges at trials, see Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). --Shelley v. Kraemer , 334 U.S. 1 (1948) (per Vinson, C.J.). Facts: In 1911, a group of o f homeowners in St. Louis, Missouri signed a covenant cov enant agreement that was to “run with the land” for 50 years. This covenant provided that “no part of said property…shall be…occupied by any person not of the Caucasian race…” In 1945, the Shelleys, a Black family, purchased a home that was subject to this restrictive covenant. Louis Kraemer, a resident of the same community, then filed suit to enforce the covenant cov enant against the Shelleys. Issue: Whether the judicial enforcement amounts to state action. Ruling/Rationale: Yes. “We have no doubt doub t that there has been state action in [this] case[] in the full and complete sense of the phrase.” The Judiciary is just as much of a state actor as as the Executive. In other words, judges are government actors and judicial remedies are state state action. When the trial judge enforced this racist, private agreement, he put the government’s “stamp of approval” onto this agreement — — the the 14th Amendment does not allow for such approval.
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The whole opinion is eerily similar to the “traditional-government“traditional-government-function” function” language used in National League of Cities v. Usery (1976), which proved to be an “unworkable” test. Garcia v. SAMTA (1985).
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In Lugar v. Edmondson Oil Co. (1982), the Court held that the requirements of due process apply to prejudgment attachment procedures whenever whe never state officers act jointly with a private creditor in securing the property in dispute. In Lugar , the Court created a two-part test for determining when a judicial enforcement amounts to state action: (1) the deprivation must be cause, at least in part, by the exercise of some right or privilege created by the State; and (2) the party who caused the alleged deprivation must be a state official or acting in concert with a state official. Additionally, in Edmonson v. Leesville Concrete Co. (1991), the Court held that a defendant in a civil trial was a “state actor” because he had made “extensive use of of state procedures with the overt, significant assistance assistance of state officials.” officials.” And “[b]y enforcing a discriminatory peremptory challenge, the court…not only made itself a party to the [biased act], but…elected to place its power…and prestige behind the…discrimination.”10
2. G overnme rnment R egulat gulation. ion. --The seminal cases on governmental regulation and state action are Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), and Moose Lodge v. Irvis, 407 U.S. 163 (1972). These two cases created the “symbiotic “ symbiotic relationship” standard, i.e., if a private entity is so heavily subsidized or so heavily regulated by the government that the private entity could not exist without the government, then that private entity may be deemed a state actor. Later cases, however, have made this a harder and harder standard to satisfy. satisfy. For example, in Rendell Baker v. Kohn, 457 U.S. 830 (1982), the Court held that a private school which received over 90% of its funding from the government and was regulated by public authorities, was not a state actor. And in Blum v. Yaretsky, 457 U.S. 991 (1982), the Court found that a utilization review committee, which was mandated and heavily subsidized by federal law, was not a state actor.11 --Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (per Clark, J.). Facts: The Wilmington Parking Authority — a government agency in the State of Delaware — owned owned and operated a parking building in Wilmington. Wilmington. The parking building was publicly owned, built using public funds, and owned and operated by a government agency. agenc y. The parking authority leased part of building to a private business — Eagle Eagle Coffee Shoppe. The owner of the shop refused to serve the plaintiff in this case specifically because he was black. The plaintiff claims this violates his 14th Amendment right to equal protection. Issue: Whether private entities, in acting in close relationship to a state agency, can be considered “state actors,” and therefore be subject to constitutional limitations. Ruling/Rationale: Yes. In view of all the circumstances of this case — including including the facts that the restaurant was physically and financially an integral part of a public building, built and maintained with public funds, devoted to a public parking service, and owned and operated by an a gency of the State for public purposes — the the State was a joint participant in the operation of the restaurant, and its refusal to serve appellant violated the Equal Protection Clause of the Fourteenth Amendment. --“[W]hen --“[W]hen a State leases public property in the manner and for the purpose shown to have been the case here, the proscriptions of the Fourteenth Amendment must be complied with by the lessee as certainly as though they were binding covenants written into the agreement itself.”
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The Edmonson (and Lugar ) Court used something close to the following logic: laws create peremptory challenges; and jury selection is a government function accomplished through the power of the state and overseen by a judge; j udge; therefore, private actors who use these laws have entangled themselves into the state action doctrine. 11 In dissent, Justice Brennan B rennan wrote an incredibly well well written opinion. “If the Fourteenth Amendment is to have its intended effect as a restraint on the abuse of state power,” he wrote, “courts must be sensitive to the manner in which state power is exercised.” And “in deciding deciding whether ‘state action’ is present in actio ns performed directly by persons other than government employees, what is requir ed ed is a realistic and delicate appraisal appraisal of the State’s involvement in the total context context of the action taken.” Both Brennan and Marshall and Marshall encouraged the courts to acknowledge the ubiquity of the State in our day-to-day day-to-day lives and to employ “a more sensitive and flexible interpretation” rather than the “empty formalism” proposed by the conservative bloc of the Court.
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--Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) (per Rehnquist, J.). Facts: The Moose Lodge No. 107, a private club in Pennsylvania, had denied service to a friend of a member solely because he was black. black. The Moose Lodge follows a constitution constitution and bylaws set by the Supreme Lodge, which limits membership to white males. The plaintiff is not contending that private clubs should not be able to discriminate their members, but rather that the Lodge had a symbiotic relationship with the Pennsylvania State Government; therefore their actions are ba rred by the 14th Amendment Equal Protection Clause. His claim rests on the fact that the Lodge Lodge has a license to sell liquor through the Pennsylvania Liquor Control Board. The plaintiff seeks an injunction injunction forbidding the Lodge’s liquor license until they cease their discriminatory practices. Issue: Whether a private entity in possessing liquor license through the State constitutes a symbiotic/financial relationship between the two. Ruling/Rationale: No. Ruling/Rationale: No. “There is nothing in this case approaching approachin g the symbiotic relationship that was seen in Burton.” In Burton, there was an explicit lessor/lessee relationship between the State and the private entity. Furthermore, the restaurant in Burton was owned and operated in a public area, financed by public funds, and its inherent purpose was for public parking. In this case, the Lodge explicitly states that it is not open to the general public whatsoever. --The only link between the Lodge Lodge and the State government is the State-issued State-issued liquor license. There is no logical pathway to suggest: the State of Pennsylvania issued to liquor license to a club and that club racially discriminated therefore, the State of Pennsylvania condones cond ones racial discrimination. The Pennsylvania Liquor Control Board’s only duty dut y is to determine whether a business may or may not sell liquor. They should not be expected to determine whether each business might, in the future, discriminate against someone.
-- Norwood Norwood v. Harrison, 413 U.S. 455 (1973) (per Burger, C.J.). Facts: Mississippi had a textbook lending program where it gave textbooks to public and private schools. In the wake of Brown v. Board , however, many areas wer e experiencing “white flight”— white school children being relocated to private, suburban schools. Several parents of Black students in urban schools sued, arguing that the State was subsidizing racially segregative private schools. Issue: Whether the State may subsidize a private school that discriminates on the basis of race. Ruling/Rationale: No. The State has a duty dut y to ensure it is does not provide financial assistance to institutions that invidiously discriminate on the basis of race. Contrast this decision with Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (above).
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III. The Freedom of Speech.
--Chemerinsky argues that the 1st Amendment serves four primary purposes: 1) To further democratic self-governance — Open Open discussion of candidates is essential for voters to make informed selections in elections. 2) To discover truth —“[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). This rationale has been highly criticized. Our protection of the freedom freedom of speech is second to none; yet many people are misinformed. The comeback is to acknowledge this problem, but to argue that allowing the government to determine what can and cannot be said is much worse. 3) To advance individual autonomy — Speech Speech is more than advocating or criticizing criticizing politicians. It is the primary means by which people self-identify. 4) To promote tolerance — Allowing Allowing disfavored minorities to put their views into the marketplace of ideas could shed light on misplaced racism, sexism, etc.
A. “Content -based” and “content -neutral” l aws. aws.
--The --The basic rule is that “content“content- based” based” laws are subject to strict scrutiny and are, therefore, “presumptively invalid.” R. A. V. v. St. Paul , 505 U.S. 377 (1992); see also TBS v. FCC , 512 U.S. 622, 642 (1994). “Contentneutral” neutral” laws, on the other hand, are subject only to intermediate scrutiny.12 TBS , 512 U.S. at 642. A law will be found to be content-based if it seeks to suppress either a particular viewpoint or a subject matter. See, e.g., Perry v. Perry Local , 460 U.S. 37, 45 (1983). Viewpoint-neutral means that the government cannot regulate speech based on the ideology of the message. For example, the government could not pass a law that says, “no pro-choice pro-choice demonstrations will be allowed in the park.” Subject-matter-neutral Subject-matter-neutral means that the government cannot regulate speech based on the topic of the speech. For example, the government could not pass a law that says, “no abortion-related abortion-related protests will be allowed allowed in the park.” --Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622 (1994) (per Kennedy, J.). Facts: In 1992, Congress passed the Cable Television Consumer Protection and Competition Act. Sections 4 and 5 of this act require cable television systems to broadcast local television television stations. In other words, this law law is why television channels show show the local news, etc. TBS challenged these portions of the Act, arguing that they violated the 1st Amendment. Issue: Whether a law that requires a television station to broadcast c ertain programing violates the 1st Amendment. Ruling/Rationale: Unanswered. The Court remanded the case to to the lower court. court. However, the Court did hold that this law should be subject only to intermediate scrutiny because the law was contentneutral.13 --“[T]he --“[T]he First Amendment, subject Amendment, subject only to narrow and well understood exceptions, does not countenance governmental control over the content of messages messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. … In contrast, regulations regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.”
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Time, place, and manner restrictions are considered content-neutral. These require the government to leave adequate alternate forms of communication open. 13 The case was, again, granted cert. in 1997, where the Supreme Court held that the “must“must-carry” provisions passed pas sed intermediate scrutiny.
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--“Deciding --“Deciding whether a particular regulation is content based or content neutral is not always a simple task. We have said that the ‘principal ‘principal inquiry in determining content neutrality…is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.’” However, “the “the mere assertion of a content-neutral purpose [will not] be enough to save a law which, on its face, discriminates based on content.” content.” “As a general rule, laws that by b y their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.” based.” -- Boos Boos v. Barry, 485 U.S. 312 (1988) (per O’Connor, J.). Facts: The District of Columbia passed a law that prohibited people from displaying signs within 500 feet of any for eign eign embassy if that sign would place the foreign government in “public disrepute.” In the 1980s, Boos, along with several other plaintiffs, sought to display signs in front the U.S.S.R. and Nicaraguan embassies. They sued for injunctive relief against this law. Issue: Whether a law that prohibits certain messages in certain public place s violates the First Amendment. Ruling/Rationale: Yes. “[This law] is content-based. content-based. Whether individuals may picket in front of a foreign embassy depends entirely upon whether whethe r their picket signs are critical of the foreign government…” One category of speech— speech— speech speech disfavoring a certain foreign government — — has has been proscribed. Other categories of speech — such such as speech favoring the foreign government — — are are allowed. 14 --However, --However, “the provision is not viewpointviewpoint- based.” based.” Our American law is not saying which speech speech is “favorable” or “unfavorable.” That distinction depends entirely on the foreign government. With the array of foreign government’s and policies, the court cou rt cannot broadly call this law viewpoint-based. --The provision does not pass strict scrutiny. The government argued it had a compelling interest interest in protecting foreign officials from heckling ambassadors, etc. etc. An “adverse emotional impact on the audience” is audience” is insufficient. Hustler v. Fallwell , 485 U.S. 46, 55 (1988).
-- Reed Reed v. Town of Gilbert , 576 U.S. ___ (2015) (per Thomas, J.). Facts: The town of Gilbert, Arizona classified yard signs into two categories: (1) “ideological signs,” which displayed a particular a particular viewpoint; and (2) “temporary directional signs,” which point people toward a particular event. Ideological signs were always allowed, while temporary directional directional signs weren’t allowed to be posted 12 hours before the event or 1 hour after. Th Thee government asserted aesthetic and safety issues as their interests. interests. A church that wished to advertise the times of its services sued. Issue: Whether this sign law is content-based or content-neutral. Ruling/Rationale: Content- based. based. “The Town’s Sign Code is content based on its face.” And it does not pass strict scrutiny. This law is not nearly sufficiently tailored to pass this bar.
B . J udi udi cial Spee Speech. -- Republican Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (per Scalia, J.). Facts: Minnesota’s “announce clause” prohibited a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running. running. In 1996 — after a lawyer running for the Supreme Court Cou rt of Minnesota distributed campaign literature which criticized several of the court’s court’s decisions on issues such as crime, welfare, and abortion abo rtion — a complaint alleging that this literature literature violated the announce clause was filed. The lawyer withdrew from the race to avoid further complaints, which might have damaged his law practice. practice. The lawyer then, along with other plaintiffs including a state political party, filed an action against o fficers of the agency in the United States District Court for the District of Minnesota, which action sought (1) a declaratory
14
This is amazingly stupid — ignore ignore it.
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judgment that the announce clause violated the Federal the Federal Constitution's First Amendment and (2) an injunction barring the enforcement of the clause. Issue: Whether a state may prohibit candidates for judicial office from speaking on certain political issues in order to maintain the appearance of impartial courts. Ruling/Rationale: No. “Under the strict-scrutiny strict-scrutiny test, the party supporting the rule has the burden to prove that the rule is (1) narrowly tailored, to serve (2) a compelling state state interest. In order to show that the rule is narrowly tailored, the party must demonstrate that it doe s not unnecessarily circumscribe protected expression.” This law is not narrowly tailored to serve a compelling state interest, since a clause prohibiting public commitments to particular views only during election campa igns would be too underinclusive to serve such a purpose. --“Under --“Under any definition of ‘impartiality,’ the announce clause fails strict scrutiny. First, it is plain that the clause is not narrowly tailored to serve impartiality (or its appearance) in the traditional sense of the word, i.e., as a lack of bias for or against either either party to the proceeding. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does d oes not restrict speech for or against particular parties, but rather speech for or against particular issues. Second, although ‘impartiality’ in the sense of a lack of preconception in favor of or against a particular legal view ma y well be an interest served by the announce clause, pursuing pu rsuing this objective is not a compelling state interest, since it is virtually impossible, and hardly desirable, to find a judge who does not have preconceptions about the law. Third, the Court need not decide whether achieving ‘impartiality’ (or its appearance) in the sense of openmindedness is a compelling state interest because, as a means of pursuing this interest, the announce clause is so woefully underinclusive und erinclusive that the Court does not believe it was adopted for that purpose. Respondents have not carried the burden imposed by strict scrutiny of establishing that statements made during an election campaign are uniquely destructive of of openmindedness.” --“Debate --“Debate on the qualifications of candidates is at the core of the electoral process and of o f the First Amendment freedoms, not at the edges. The role that elected officials play in society makes it all the more imperative that they be allowed freely to express e xpress themselves on matters of current public importance. It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign. The United States Supreme Court has never allowed the government to prohibit candidates from communicating relevant information to voters during an election.” --“The --“The greater power to dispense with elections altogether alto gether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the state chooses to tap the energy energ y and the legitimizing power of the democratic process, it must accord the participants in that process the First the First Amendment rights that attach to their roles.” (Stevens, J., dissenting). The Supreme Court erred by (1) obscuring the fundamental distinction between campaigns for the judiciary and those for policymaking offices; (2) thereby inco rrectly assuming that elected judges — who, who, no less than appointed judges, occupied a special office o ffice of trust — — ought ought to have the same freedom as other elected officials to express themselves on public pu blic issues; (3) inaccurately appraising the importance of judicial independenc e and impartiality, which, even in its narrowest sense of lack of bias bi as toward or against a party, was served by b y the announce clause; and (4) failing to recognize the difference between statements made in articles or opinions and those made on the campaign trail, where the campaign camp aign statements that would be prohibited by the announce clause were commonly intended to convey a message that the candidate’ candidate’ss mind was not open on a particular issue. (Ginsburg, J., dissenting). Ginsburg’s phrasing of the issue: “[W]hether the First Amendment stops Minnesota from furthering its interest i nterest in judicial integrity through this precisely targeted speech restriction.” “Legislative and executive officials serve in representative capacities. … [T]heir primary function is to advance the interests of their constituencies. Candidates for political
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offices…must be left free to inform the electorate of their positions on specific issues.” “Judges, however, are not political actors. They do not sit as representatives of particular persons, communities, or parties; they serve no faction or constituency. constituency. … They must strive to do what is legally right, all the more so when the result is not the one ‘the home crowd’ wants.” Rehnquist, Dedicatory Address: Act Well Your Part: Therein All Honor Lies, 7 Pepperdine L. Rev. 227, 229-300 (1980). “Thus, the rationale underlying unconstrained speech in elections for political office — that that representative government depends on the public’s ability to to choose agents who will act at its behest — — does does not carry over to campaigns for the bench.”
C . R ehnqui hnquist st bei ng an an i di ot. ot. --City of Renton v. Playtime Theatres, T heatres, Inc., 475 U.S. 41 (1986) (per Rehnquist, J.). Facts: In 1980, plaintiff purchased two movie theatres thea tres with the intent to make them into adult theatres. Subsequently, the Renton City Council passed an ordinance that prohibited any “adult motion picture theatre” from locating within 1,000 feet of any an y residential zone. Plaintiff then sued. Issue: Whether the government may restrict certain forms of expression via z oning laws. Ruling/Rationale: Yes. “[This] ordinance is…properly analyzed as a form of time, place, and manner regulation. … [S]o-called [S]o-called ‘content‘content-neutral’ time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” --“[T]he --“[T]he Renton ordinance is aimed not n ot at the content of the films shown…but rather at the secondary effects of such theatres on the surrounding community. … [T]he [T]h e City Council’s predominate concerns were the secondary effects of adult theatres, and not with the content of adult ad ult films themselves.”
D . Subsi Subsi di zi ng Spe Speech. -- National National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) (per O’Connor, J.). Facts: In 1965, Congress created the NEA, which was created to “help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the…conditions facilitating…creative talent.” talent.” In 1989, however, Andres Serrano, who received received $15,000 from the NEA, created the work “Piss Christ”— a photograph of a crucifix submerged submerged in urine. Congress claimed to be outraged, and amended the th e NEA’s enabling statute, requiring the chairman of the NEA to take “general standards of decency and respect respect for the diverse beliefs…of the American public” into account. Serrano’s NEA funds were then removed. Issue: Whether the government can selectively subsidize certain art based upon its content. Ruling/Rationale: Yes. “Congress may ‘selectively fund ‘selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way.’” Rust v. Sullivan, 500 U.S. 173, 193 (1991) (per Rehnquist, J.). J.). In doing so, “‘the government has not discriminated on the basis basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.’” Id. “If there is a bedrock principle underlying the First Amendment, it is that t hat the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397 (1989). * “The First Amendment does more than just bar government from intentionally sup pressing speech of which it disapproves. disapproves. It also generally prohibits the government from excepting certain kinds of speech from regulation because it thinks the speech is especially valuable.” 78 (1994) (O’Connor, J., concur ring/dissenting). ring/dissenting). TBS v. FCC , 512 U.S. 622, 677 – 78
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E . G ove over nment nment S peech. --Government speech is not governed by the Free Speech Clause. Pleasant Grove v. Summum, 555 U.S. 460 (2009). It is, however, still still governed by other provisions of the Constitution, e.g., the Establishment Clause. Id. A government display is considered government speech if a reasonable person would -- Pleasant Pleasant Grove v. Summum, 555 U.S. 460 (2009) (Alito, J.). Facts: The City of Pleasant Grove allowed private groups to donate monuments monuments to the City’s park. The th park contained monuments to the City’s firestation, September 11 , the Ten Commandments, etc. On several occasions, the President of Summum15 contacted the City’s mayor, requesting that the Church be allowed to erect a monument monument to their “seven aphorisms.” The mayor denied their requests. Issue: Whether the government’s inclusion of one viewpoint in a public place requires the inclusion of other viewpoints in the same place. Ruling/Rationale: No. This is government speech; and the Free Speech Clause does not govern government speech. “Although many of the monuments were not designed or built by the [government] and were donated…by private entities, the City decided to accept those donations and to display them in the Park.” However, this is not to say that the government may display whatever it wants; “government speech must comport with the Establishment Clause.”
--Walker v. Sons of Confederate Veterans, 576 U.S. ___ (2015) (per Breyer, J.). Facts: Texas, like many states, states, allows the DMV to to craft personalized license plates. plates. For example, a driver may customize a license plate on the th e DMV’s website and the DMV will create the plate for a price. There were plates advertising restaurants, football teams, NGOs, etc. on Texas highways. The Sons of Confederate Veterans (SCV) (SCV) then requested plates adorning the Confederate flag. The plates were denied. The SCV then challenged the denial, arguing that the government government had created a limited public forum by allowing customizable license plates. Issue: Whether a customizable license plate program, run by the state, creates a limited public pub lic forum. Ruling/Rationale: No. This is government speech; therefore, the Free Speech Clause does not apply. Alito, J., dissenting: By allowing its citizens to customize their license plates to convey a certain message to other motorists the government created a limited public forum. Accordingly, the law must remain viewpoint-neutral. Additionally, there is no way this is government speech. Texas issued license plates adorning the University of Oklahoma’s logo and a number of other out-of-state out-of-state establishments. No reasonable person would see these messages and think the State of Texas Tex as was condoning these institutions.
F . V ague gu eness ness & Over Over br eadth. --Laws that regulate speech can be challenged as facially unconstitutional on the grounds they are void for vagueness or substantially overbroad. A successful facial challenge usually means that the law will be entirely invalidated. --A law is unconstitutionally vague is a reasonable person canno t tell what speech is prohibited and what is permitted. For example, in Kolender v. Lawson, 461 U.S. 352, 357 (1983), the Court invalidated a California loitering law, holding that “the void-for-vagueness void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what con duct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” See also Papachristou v. Jacksonville, 405 U.S. 156 (1972). And in Baggett v. Bullitt , 377 U.S. 360 (1964), the Court voided a state’s loyalty oath that prevented any “subversive person” p erson” from being employed in the state and required a person to swear that they were not such a person. p erson. 15
Summum is an obscure religion that bases itself on weird pseudo-Egyptian pseudo -Egyptian euphemisms.
15
--A law is unconstitutionally overbroad when it regulates substantially more speech than necessary to achieve its goal. Los Angeles v. Jews for Jesus, 482 U.S. 569 (1987) (holding that a resolution banning “all First Amendment activities” at the Los Angeles International Airport violated the First Amendment). Amendment). Additionally, even if a person was punished for speech that is not constitutionally protected, they may ma y make a facial challenge to the law because it might chill third parties’ protected speech. See, e.g., Schad v. Borough of Mount Ephriam, 452 U.S. 61 (1981) (holding that appellants’ speech was obscene, and therefore not protected by the 1st Amendment; but also holding “they are entitled to rely on the impact of the ordinance on the expressive activities of others…”). others…”).
G . Pri Pr i or Rest Restraint raint.. “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” — William William Blackstone (1769) --The --The Court has noted that “the “ the chief purpose of [the First Amendment’s] guaranty [is] to prevent prevent previous restraints upon… publication[s].” publication[s].” New York Times Co. v. United States, 403 U.S. 713 (1971) (Brennan, J., concurring) (citing Near v. Minnesota, 283 U.S. 697 (1931)). Accordingly, “[a]ny system of prior restraints of expression comes to this Court bearing a heavy heav y presumption against its constitutional validity.” Id. The two most common kinds of prior restraints are (1) court-ordered silence (gag orders), see Nebraska Press Ass’n v. Stuart , 427 U.S. 539 (1976) and (2) pre-speech licensing schemes, see Watchtower Bible v. Stratton, 536 U.S. 150 (2002).
1. T he bi g one ones. s. -- Near Near v. Minnesota, 283 U.S. 697 (1931) (per Hughes, C.J.). Facts: In 1925, Minnesota passed a law that allowed the government to abate “malicious, scandalous, and defamatory…periodical[s].” At the height height of “yellow journalism,” J. journalism,” J. M. Near published The claiming that the Saturday Press, a Minneapolis newspaper. There, he published several articles claiming Minneapolis police chief and other public officials were und er the thumb of Minneapolis’ Jewish gangs.16 The public officials obtained an injunction preventing Near from publishing his newspaper. Near challenged the law, arguing it abridged the freedom of the press. Issue: Whether the government can prohibit the publication p ublication of defamatory or libelous articles. st Ruling/Rationale: No. The 1 Amendment prohibits prior restraint. “The recognition of authority to impose previous restraint restraint upon publication…to publication…to protect the community against…charges against…charges of misconduct…would carry with it the admission of the authority of the c ensor against which the constitutional barrier was erected.”
-- New New York Times Co. v. United States, 403 U.S. 713 (1971) ( per per curiam).17 Facts: In 1971, Daniel Ellsberg leaked the Pentagon Papers. These Papers were a “classified” government-conducted study of the Vietnam War, War, conducted primarily by Robert McNamara. McNamara. The New York Times began to publish these Papers in installments. After the third installment, Richard Nixon and William Rehnquist obtained an injunction, preventing the Times from publishing the subsequent installments. Ellsberg then leaked the Papers to the Washington Post . Nixon then, again, sought an injunction. The Times and the Post then then challenged the injunctions in federal court. Issue: Whether the 1st Amendment bars a court from prohibiting a newspaper newspa per from publishing material whose disclosure would pose “grave and immediate danger to the security of o f the United States.”
16
J. M. Near was a bit of a bigot. While the case was per curiam, each Justice wrote a concurring or dissenting opi nion, for a total of ten opinions.
17
16
Ruling/Rationale: Yes. “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”
2. Pri Pr i or rest restrr ai nt and fair fair tria tri als. ls. -- Nebraska Nebraska Press Association v. Stuart , 427 U.S. 539 (1976) (per Burger, C.J.). Facts: Six people were murdered in a small Nebraska town. The local Nebraska press, unsurprisingly, unsurprisingly, followed the investigation of these murders very closely. Eventually, Erwin Charles Simants was arrested in connection with these murders. While in police custody, Simants confessed to the murders. The State judge, however, was worried that he would be unable to find an impartial jury if the press reported about Simants’ confession. confession. In respo response, nse, the judge issued a gag order toward the Nebraska Press disallowing them to report any facts that were “strongly “strongly implicative” of the accused. The Nebraska Press Association challenged the constitutionality of this gag order. Issue: Whether the government can use gag orders (i.e., prior restraint) to ensure a fair trial for defendants. Ruling/Rationale: No. Prior restraint is rarely, if ever, allowed. Only “if the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger,” will prior restraint be allowed. In determining whether prior restraint is allowed, allowed, the Court must look to the effectiveness effectiveness of the gag order and the available alternatives to the gag gag order. Here, there are plenty of available alternatives, e.g., change of venue, postponement, jury screening, heavy instructions, sequestration, etc. etc. Accordingly, this gag order is unconstitutional.
3. R ehnquist hnquist and book burni burning. ng. -- Alexander Alexander v. United States, 509 U.S. 544 (1993) (per Rehnquist, J.). Facts: Alexander sold and shipped sexually sexually explicit films out of Minneapolis, Minnesota. The government eventually charged and convicted him of 17 counts of obscenity and 3 counts of violating RICO. All of the “obscene” materials were destroyed. Alexander lost over $9 million and was was st th sentenced to six years years in prison. prison. He challenged his conviction on 1 and 8 Amendment grounds. Issue: Whether the forced forfeiture of a business engaged in expressive activity is an unconstitutional prior restraint. Ruling/Rationale: No. Ruling/Rationale: No. “To accept [Alexander’s] argument would virtually obliterate the distinction…between prior restraints and subsequent punishments.” Kennedy, J., dissenting: dissenting: “The Court today embraces…the Government’s destruction of a book and film business and its entire inventory of legitimate expression as punishment for a single past speech offense. Until now I has thought thought one could browse through any book…store in in the United States without fear that the proprietor had chosen each item to avoid risk to the whole inventory and….to the business itself.” In other words, the Court has just become involved in the business of burning burning books. If there is one activity the First Amendment forbids, forbids, it would be the government burning books.
4. L i censi censing ng as as a pr i or re r estr str ai nt. nt. --Watchtower Bible & Tract Society of New York Y ork v. Village of Stratton, 536 U.S. 150 (2002) (per Stevens, J.). Facts: The Village of Stratton passed an ordinance making it a misdemeanor to engage in door-to-door advocacy without receiving a permit. Several Jehovah’s Witnesse Witnesses challenged the ordinance as an unconstitutional prior restraint. Issue: Whether requiring people to obtain a license before b efore door-to-door hand billing violates the 1st Amendment.
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Ruling/Rationale: Yes. “[I]t is offensive, not only to the values protected by the First Amendment, but to the very notion of a free society, that in the context contex t of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.” In other cases, the Court has held that speech-related licensing schemes will be allowed onl y if: (1) the government has an important reason for licensing; (2) there are clear criteria leaving almost no discretion to the licensing authority; and (3) there are procedural safeguards surrounding the licensing requests.
H . What is i s an inf i nfrr i nge ng ement of of the fr eedom of spee speech? N ote ote: you you can re r egulate time, time, place, place, and manner anner of spe speech, ch, but NOT the the cont conte ent. nt. 1. P r ohibiti ohibitio ons on com compensati nsati on. --United States v. National Treasury Employees Union, 513 U.S. 454 (1995) (Stevens, J.). Facts: In 1989, Congress passed a law the th e prohibited federal employees from accepting compensation for making speeches or writing articles, even when unrelated to the employee’s official duties. Issue: Whether the government can prohibit compensation for speech made by its employees. Ruling/Rationale: No. Ruling/Rationale: No. “Even though [the plaintiffs] work for the Government, they have not relinquished ‘the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest.’ They seek compensation compensation for their expressive activities in their capacity as citizens, not as Government employees.”18 In other words, this law (although content-neutral) is substantially overbroad.
2. Comp Compelled lled spe speech. ch. --West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (Jackson, J.). Facts: West Virginia had a law that required all children to salute the U.S. flag for the Pledge Pled ge of Allegiance in schools. Several Jehovah’s Witnesses refused refused to salute the flag, flag, saying it was against their religion. The parents of these children challenged the the law. Issue: Whether the government can compel people peop le to engage in expressive ex pressive activity. Ruling/Rationale: No. “We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” --“It --“It is now…commonplace that censorship or suppression of expression of opinion is tolerated by our by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish.” punish.” “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to…free to…free speech, a free press, freedom of worship and assembly, and other fundamental fund amental rights may not be submitted to vote; they depend on the outcome of no elections.” In Wooley v. Maynard , 430 U.S. 705 (1977), the Court allowed a New Hampshire resident to cover up the “Live Free or Die” motto on his state-issued state-issued license plate.
-- Rumsfeld Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (per Roberts, C.J.). Facts: Because of the military’s “don’t ask, don’t tell” policy, several schools banned schools banned military recruiters from their campuses. In response, Congress passed the Solomon Amendment (1996), which withheld withheld
18
Einstein was a government employee when he published his papers on relativity.
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federal funds from any school that forbids military personnel from the campus. Several law schools challenged the Solomon Amendment. Issue: Whether the government can compel (private) schools to allow certain speech by withholding federal funds. Ruling/Rationale: Yes. “This sort of recruiting assistance…is a far cry fr om om the compelled speech in government-mandated pledge or Barnette and Wooley. … There is nothing in this case approaching a government-mandated motto that the school must endorse.” In addition, this is not a situation where the government is requiring an individual to speak the government’s message. See, e.g., Miami Herald Publishing Co. v. military; in fact, they can Tornillo, 418 U.S. 241 (1974). The schools are not required to agree with the military; explicitly disagree with their messages.
-- McIntyre McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (Stevens, J.). Facts: Ohio passed a law that prohibited campaign campai gn literature from being published anonymously (for example, we wouldn’t want the Koch Bros. or Chevron distributing libelous handbills without disclosure that they were the the authors). In 1988, Margaret McIntyre published and distributed anonymous handbills opposing a school superintendent and school-related taxes. Issue: Whether the government can prevent a speaker from delivering an anonymous message. Ruling/Rationale: Not Ruling/Rationale: Not very often. The law must meet strict (or “exacting”) scrutiny. scrutiny.
I . Unprot npr ote ected cted and less-prot less-pr ote ected cted spee speech. --“[E]ven --“[E]ven advocacy advocacy of [a law] violation, however reprehensible morally, is not a justification for denying free speech where the advocacy advocac y falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.” Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring). --As a general rule, the government cannot punish speech unless it is “directed to incit[e] or produc[e] imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444 (1969). The Court, however, has carved out several areas of “unprotected” speech. In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), for example, example, a unanimous Court held that “[t]here “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment punishmen t of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words— those those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The Court, however, has been very reluctant to use Chaplinsky’s “fighting words” standard. More often than not, the Court has declared “fighting words” statutes to be b e unconstitutionally unconstitutionally vague or overbroad. See Gooding drafted too specifically it will likely be v. Wilson, 405 U.S. 518 (1972). Yet, if a fighting words statute is drafted declared unconstitutional for being content-based. See R. A. V. v. St. Paul , 505 U.S. 377 (1992). The Court’s modern decisions basically show that the fighting words doctrine is a n ullity. --The R.A.V. v. St. Paul case, moreover, illustrates an important point within this unprotected-areas-of-speech section: the 1st Amendment’s primary concern is while there are certain classes of speech that are “unprotected”— e.g. the government cannot make content-based e.g., obscenity, libel, and fighting words — the restrictions within within the areas because of the fear fear of viewpoint discrimination. discrimination. Within this unprotected speech realm of cases, the only time the government can make content- based based restrictions is (1) when “the basis for the the 19 content discrimination consists entirely of the very reason the entire class of speech…is proscribable”; or (2) when the government is regulating regulating a “subclass” of the unprotected unp rotected speech that has “particular ‘secondary effects’…so that the regulation is ‘justified without reference to…content…’” 19
In other words, the government can only ban “obscenity” because of its prurience , not because of a particular viewpoint within the obscene material. For example, the government could proscribe particular types of super-obscene material; but it could not only ban obscene material with particular polit ical messages.
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1. I ncite nci tem ment. -- Brandenburg Brandenburg v. Ohio, 395 U.S. 444 (1969) ( per per curiam). Facts: The defendant was a member of the Ku Klux Klan, and was convicted under Ohio’s Criminal Syndicalism Act. The statute made it illegal to “advocate…the duty, dut y, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for “teach[ing] or advocate[ing] the doctrines d octrines of criminal syndicalism.” The defendant’s conviction was supported by a video that showed the defendant, armed with a shotgun and a bible, saying seditious things and saying: “Personally, I believe the nigger should be returned to Africa, the th e Jew returned to Israel.” Issue: Whether the State may punish a person p erson for speech related to syndicalism or racism. Ruling/Rationale: No. “[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” a ction.” “Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained,” and Whitney v. California is overruled. As a factor test, Brandenburg says that the government can only onl y punish speech if it is (1) intended and (2) likely to produce (3) imminent (4) lawless action. In Hess v. Indiana, 414 U.S. 105 (1973), the defendant, along with 100 – 150 150 other people, was leading an anti-Vietnam War march through the streets of the University of Indiana. Indiana. The sheriff moved the protesters to the side of the street. street. The defendant then said, “We’ll tak e the fucking street again.” He was then arrested, and later convicted, for disorderly conduct. The Supreme Court overturned his conviction, citing Brandenburg . condit ions; we don’t really Brandenburg MIGHT only apply to political speech/changing social conditions; know So it wouldn’t apply to medical advice/stuff on TV that makes kids do things
-- Holder Holder v. Humanitarian Law Project , 561 U.S. 1 (2010) (per Roberts, C.J.). Facts: In the wake of 9/11, Congress made it a federal crime to “knowingly provid[e] p rovid[e] material material support or resources to a foreign terrorist organization.” The statute further gave the Secretary of State the power to determine which groups fall fall within this category. category. Plaintiffs wished to donate to the Tamil Tigers — — a Sri Lankan militant group that wanted to create a independent state in northern Sri Lanka — — which which had been identified as a “terrorist organization” by the Secretary of State. They challenged the law, arguing that the law was void for vagueness and, and , in the alternative, an unconstitutional uncon stitutional restriction on free speech. Issue: Whether the government can prevent people peopl e from donating to terrorist organizations. Ruling/Rationale: Yes. The Court issued a narrow ruling, appl ying it only to the plaintiffs in this case. The Court, however, did not cite Brandenburg once. once.20 Justice Breyer notes this in his dissent.
2. F i ghting ghting wo wor ds. --Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Facts: New Facts: New Hampshire had a law that stated: “No person shall address any offensive, derisive or annoying word to any other person who is is lawfully in any street street or other public place…” Chaplinsky, a Jehovah’s Witness, was distributing literature in Rochester, NH. NH. Citizens of Rochester started started to complain to the city Marshall, complaining that Chaplinsky was denouncing religion as a “racket.” The
20
The opinion does not follow the normal framework. This is clearly a content-based restriction restriction on freedom of expression. expression. So unless this expression is categorized as “unprotected speech,” it should run the gamut of strict scrutiny. The Court takes neither path. neither path. Chief Justice Robert’s test echoes back to the early-1900s early -1900s version of incitement.
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Marshall did not arrest arrest Chaplinsky, but he warned him that that the crowd was getting getting uneasy. Eventually, it seemed as if the crowd crowd was about to riot. The Marshall then rewarned Chaplinsky, during which time Chaplinsky said, “You are a God damned racketeer” and “a damned fascist and the whole government of Rochester are fascists or agents of fascists.” He was then charged under New Hampshire’s aforementioned law. Issue: Whether the State may punish words that are likely to incite violence. Ruling/Rationale: Yes. “[W]e [cannot] say that the application of [this] statute…substantially or unreasonably impinges upon privileges of free speech. Argument is unnecessary to demonstrate that the appellations ‘damn racketeer’ and ‘damn ‘damn fascist’ are [fighting words].” 21 “There are certain well-defined well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words— those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Gooding v. Wilson, 405 U.S. 518 (1972), illustrates the Court’s usual approach to fighting words statutes — find find them unconstitutional for being unconstitutionally vague or overbroad. NOTE: Fighting Words Doctrine applies to speech that is directed towards towards a person, not a group [directed to the person of the hearer; Cantwell ]
-- R. R. A. V. v. The City of St. Paul , 505 U.S. 377 (1992) (per Scalia, J.). Facts: R.A.V. and several other teenagers teenagers assembled a crudely made cross out of chair legs. They then allegedly burned this cross in the yard of a black family down the street from R.A.V.’s house. R.A.V. was then charged under the St. Paul Bias-Motivated Crime Ordinance, which provides: p rovides:
Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the b asis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
21
Petitioner sought to have the law struck down due to it being overbroad and impermissibly content based — the the trial court agreed; but the the Minn. Supreme Court reversed. The Minnesota Supreme Court rejected the R. A. V.’s V.’s claim because the words in this law (and law (and R. A. V.’s actions) only encompassed “fighting words.” Issue: (1) Whether the scope of Chaplinsky should be modified in order to conclude con clude this law is substantially overbroad. (2) Whether petitioner’s actions per se are protected by the First Amendment. Ruling/Rationale: (1) No. Petitioner’s Petitioner’s request that the scope of the Chaplinsky formulation be modified, thereby invalidating the ordinance as substantially overbroad, need not be reached, since the ordinance unconstitutionally prohibits speech on the basis of the subjects the spee ch addresses. (2) Yes. A few limited categories of speech, such as obscenity, defamation, and fighting words, may ma y be regulated because of their constitutionally proscribable content. The government may not, however, extend these words to regulate their their nonproscibable content. In other words, fighting fighting words do not st receive 1 Amendment protection because “their “their very utterance inflict[s] injury [and] tend[s] to incite an immediate breach of the peace.” peace.” Therefore, proscribing the acts of hostility or favoritism to a particular race to “fighting words” is unconstitutional. --The ordinance — even even as narrowly construed by the State Supreme Court — — is is facially unconstitutional because it imposes special prohibitions on those speakers who express views on the disfavored subjects of “race, color, creed, religion or gender.” The government may not selectively silence silence speech because of its content.
It isn’t?
21
--There may, however, be two circumstances where speech may be banned because of its content: (1) the most lascivious, obscene materials, see Miller v. California (1973); and (2) when the speech is associated with poor “secondary effects,” Renton v. Playtime Theatres (1986).
3. H osti sti le audi udi ence nces and r acist spe speech. ch. --In Feiner v. N.Y., the Court held that the government can silence a speaker if he there is a clear and present danger that the speech will create create a serious substantive substantive evil. The modern Court, however, has adopted Justice Black’s dissent in Feiner , requiring requiring police to “make all reasonable reasonable efforts to protect [the speaker].” If, however, the crowd is becoming so restless that the police are unable to preserve peace and order, the speaker may be be silenced. -- Feiner Feiner v. New York , 340 U.S. 315 (1951) (per Vinson, C.J.). Facts: In 1949, in Syracuse, NY, Feiner gave a soapbox speech that was derogatory toward President Truman and Syracuse’s local government. A crowd began to form. Some people agreed with Feiner; some did not. Eventually, the police requested that Feiner Feiner stop speaking because the crowd was getting restless. Feiner refused to stop speaking. The police then arrested arrested him for disorderly conduct. Issue: Whether the government can silence a speaker because his words may provoke a hostile audience. Ruling/Rationale: Yes. Free speech does not extend when “the speaker passes the bounds of argument or persuasion and undertakes incitement to riot…” Here, the police were merely “exercise[ing]…their power and duty to preserve to preserve peace and order.” Black, J., dissenting: Allowing the police to arrest a speaker b ecause a group of people vehemently disagree with his message “makes a mockery of the free speech guarantees on the First and Fourteenth Amendments.”22 Even if Feiner’s speech did create a critical situation, “the police [still] had [an] obligation obligation to protect [his] constitutional right to talk.” Of course police have the power to prevent breaches of the peace. “But if, in the name of preserving order, they…interfere they…interfere with a lawful public speaker, they must make all reasonable efforts to protect him.” Here, the police had a duty to to “protect [Feiner’s] right right to talk, even to the extent of arresting the man who threaten[s] to interfere.”
-- Beauharnais Beauharnais v. Illinois, 343 U.S. 250 (1952) (per Frankfurter, J.). Facts: Illinois had a statute that made it “unlawful for any an y person…to sell [or] present…any lithograph [or] moving picture…which…portrays depravity, criminality, unchastity, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion…which is productive of breach of the peace or riots…” Bauharnais was convicted under this statute for distributing leaflets calling for the Ma yor of Chicago to “halt the further encroachment, harassment, and invasion of white people…by the Negro…” and to t o call for “One million self respecting white people in Chicago Ch icago to unite” against the Negros’ “rapes, robberies, robb eries, knives, guns, and marijuana.” Issue: Whether the 1st Amendment Amendment protects a person’s ability to slander a group of people based on their race or religion. Ruling/Rationale: No. This sort of group libel — — like like all forms of libel — — is is unprotected by the 1st Amendment. The 1st Amendment does not allow you to foster and disseminate hateful, untruthful speech about people because of their race. Black, J., dissenting: In this case, Beauharnais was criminally prosecuted for distributing a leaflet. The conviction rests solely on the leaflets’ content, not on any reasonable time, time, place, and manner restriction. This statute, accordingly, should have been put through the gamut of
22
Remember, since this is Hugo Black dissenting he likely believes the 14th Amendment guarantees the freedom of speech through its Privileges or Immunities Clause, as opposed to the Due Process Clause.
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strict scrutiny and likely overturned. Instead, “[t]oday’s case degrades First First Amendment freedoms to the ‘rational basis’ level.” Subsequent decisions show that Beauharnais is likely no longer good good law. In N.Y. Times v. Sullivan, the Court expressly rejected the idea that libel liability is not limited by the 1st Amendment. And R. A. V. v. St. Paul shows that the Court is likely to overturn almost all bans of political speech. See also National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977) (allowing neo-Nazis to march through Skokie, Illinois, a town with a large Jewish population, despite numerous threats).
--Virginia v. Black , 538 U.S. 343 (2003) (per O’Connor, J.) (plurality J.) (plurality opinion). Facts: In 1998, Barry Black led a KKK rally on his private property where they discussed…Klan stuff. The Sheriff observed this rally from the side of the road. Eventually, in normal KKK fashion, Black lit a cross on fire. The Sheriff then arrested arrested Black under a Virginia statute that banned cross burning with “an intent to intimidate a person or group of persons.” The statute further further provided that the burning of a cross is prima facie evidence of an intent to intimidate. Issue: Whether cross burning is protected by the 1 st Amendment. Ruling/Rationale: Maybe. On the one hand, “a state, consistent with the First Amendment, may ban cross burning carried out with with the intent to intimidate.” intimidate.” If a speaker is making “true threats,” the State may “prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” Here, however, the statute’s language shows “indiscriminate coverage” that blurs that blurs the distinction between proscribable “threats of intimidation” and the KKK’s protected “messages of shared ideology.” In short, the States may proscribe “threats of intimidation,” which would often include the burning of a cross because such expression has a long and pernicious history as a signal of impending violence. The statute that proscribes this content, however, must be narrowly narrowly tailored so that the defendant does not have the burden to disprove his intent.
4. Obscenity. --Most 1st Amendment scholars agree that that the Court’s approach to obscenity is problematic. For example, in his dissent in Paris Adult Theatre v. Slaton, Justice Brennan argued that “[a]ny efforts e fforts to draw a constitutionally acceptable boundary on state power [in the area of obscene speech] must resort to such indefinite concepts as ‘prurient interest,’ ‘patent offensiveness,’ offensiveness,’ ‘serious literary value,’ and the like.” Nonetheless, the Court still abides by the test set forth in Miller v. California: The basic guidelines for the trier trie r of fact must be: (a) whether “the “ the average person, applying contemporary community standards” would standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
-- Roth Roth v. United States, 354 U.S. 476 (1957) (per Brennan, J.). Facts: Congress passed a law that forbade the mailing of “[e]very obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, writing, print, or other publication of an indecent character.” Issue: Whether obscenity is protected by the 1st Amendment. Ruling/Rationale: No. The purpose of the 1st Amendment to “assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Accordingly, “[a]ll ideas having even the slightest redeeming social importance — unorthodox unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion —have the full protection of the [First Amendment].”
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Obscenity, on the other hand, is “without redeeming social importance.” importance.” It is “material which which deals with 23 sex in a manner appealing to the prurient interest.” Therefore, it is is unprotected by the 1st Amendment. Douglas, J., dissenting: Whether a book or picture is protected by the 1st Amendment should not be governed by the observer’s “purity of thought.” By the standard set in this case, “punishment is inflicted for thoughts provoked, not for [any] overt acts [or] antisocial co nduct. … To allow the State to step in and punish mere speech…that the judge or the jury thinks has an undesirable impact on thoughts but that is not shown to be a part of unlawful u nlawful action is drastically to curtail the First Amendment.”
-- Miller Miller v. California, 413 U.S. 15 (1973) (per Burger, C.J.). Facts: California had a law that made it a misdemeanor to knowingly distribute obscene materials. Miller owned a pornography mailing business. To promote his business, Miller Miller made and distributed fliers advertising films entitled: “Intercourse,” “Man“Man -Woman,” “Sex Orgies Illustrated,” and “An Illustrated History of Pornography.” Several people Several people complained, and Miller was eventually convicted under this statute. Issue: Whether obscenity is protected by the First Amendment. Ruling/Rationale: No. Ruling/Rationale: No. “This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment.” --“The --“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” In this test, prong (a) is gauged under local, community standards; while prong (c) is gauged under national standards. In Pope v. Illinois, 481 U.S. 497 (1987), the Court held that the the “contemporary community standard” prong must be “determined by a national standard— how how the work would be appraised across the country… The proper inquiry [is] whether a reasonable person would find such value in the material.” And in Jenkins v. Georgia, 418 U.S. 153 (1974), the Court held that the Jack Nicholson movie “Carnal Knowledge” was not obscene because be cause “[t]here is no exhibition whatever of the actors’ genitals, lewd or otherwise. … There are occasional scenes of n udity, but nudity alone is not enough to make material legally obscene under the Miller standards.”
-- Paris Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973) (per Burger, C.J.). Facts: The State of Georgia filed a civil complaint against two Atlanta theatres, alleging that the the atres were were exhibiting obscene films to to the public. The theatres held themselves out as “adult” theatres and each had a sign on their doors saying: “Adult Theatre— You You must be 21 and able to prove it. If viewing the nude body offends you, Please Do Not Enter.” Issue: Whether the First Amendment protects adult films. Ruling/Rationale: No. “We hold that there are legitimate le gitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce en force effective safeguards against exposure to juveniles and to passersby. These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, and , possibly, the public safety itself.
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In a footnote, the Court further described obscenity as “material having a tendency to excite lustful thoughts. … ‘A thing is obscene is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or exertion, and if it goes substantially beyond customary limits of candor in description or representation of such matters.’”
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Brennan, J., dissenting: dissenting: “I am convinced that the approach initiated 16 years ago in Roth v. toda y, cannot bring stability to this United States (1957), and culminating in the Court’s decision today, area of the law without jeopardizing fundamental First Amendment values, and I have concluded that the time has come to make a significant departure from that approach.” The First Amendment likely does not protect protect many “obscene” forms of speech. However, whenever this court attempts to clarify what is “obscene” and what is is not, it will always be overbroad. “Any efforts to draw a constitutionally acceptable boundary on state po wer must resort to such indefinite concepts as ‘prurient interest,’ ‘patent offensiveness,’ ‘serious literary value,’ and the like.” These words have little meaning, meaning, and often depend on the idiosyncrasies of the listener. This is not an acceptable constitutional standard.
5. Child Chi ld pornogr rnogra aphy as narr narr ow cat category gory of unp unprot rote ecte cted spe speech. ch. --There are several cases that show the Court’s approach to child pornography and the 1st Amendment. In th e State cannot punish the mere possession of Stanley v. Georgia (1969) (per Marshall, J.), the Court held that the obscene materials. In Ferber v. New York (1982), however, the Court held that child pornography was not governed by Miller ’s ’s obscenity standard. This ruling led the Court in Osborne v. Ohio (1990) to conclude that the State could punish the mere possession po ssession of child pornography. It is important to note that the Court’s rationale in Ferber rested primarily on the State’s interest to protect children. And Ashcroft v. Free Speech Coalition (2002) shows that if a law restricts more speech than is necessary to protect children, it will likely be struck down. -- New New York v. Ferber , 458 U.S. 747 (1982) (per White, J.). Facts: Paul Ferber, an owner of an adult bookstore in Manhattan, was charged under the law after he sold an undercover police officer two two films depicting young boys masturbating. He was charged under a New York statute that made it a crime to “promote any performance [that] includes sexual conduct by a child less than sixteen years of age.” He appealed his conviction, arguing that the law law was substantially overbroad. Issue: Whether a law that generally bans child pornography po rnography violates the 1st Amendment. Ruling/Rationale: No. This content- based based restriction of speech is allowable because “the evil to be restricted so overwhelmingly outweighs the expressive interests, interests, if any, at stake…” Child pornography can be restricted in this way for five main reasons: (1) the State has a “compelling” interest in “safeguarding the ph ysical and psychological wellwell being of a minor”; (2) the distribution of child pornography is related to the sexual abuse of children in at least two ways: (a) the material will follow the children for the rest of their lives; and (b) the distribution network for child pornography must be closed if we want to ultimately solve this problem. (3) child pornography is rightfully criminal, and advertising and selling the material is an equal sin of commission; To make an analogy: analog y: a statute outlawing murder is undoubtedly constitutional; and it is not a stretch to say that a law forbidding filming a murder and selling the tape is also constitutional. (4) child pornography has essentially no value; and (5) the Court’s prior cases do not contradict this holding.
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--The Court makes two things clear throughout this opinion: op inion: (1) laws like this must be narrowly tailored to further the interest of protecting children, laws that exceed this narrow category may be met with w ith more scrutiny; and (2) the Miller standard is inapplicable to child porn due to its unique nature. -- Ashcroft Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (per Kennedy, J.). Facts: In 1996, Congress passed passed the Child Pornography Prevention Act. This Act extended the federal ban on child pornography to “sexually explicit images that appear to depict minors but were produced without using any real children.”24 The Free Free Speech Coalition — a lobbying group for the pornography industry — challenged challenged the law. Issue: Whether a law that prohibits the mere “appearance” “app earance” of minors engaging in sex is unconstitutional st under the 1 Amendment. Ruling/Rationale: Yes. The statute “covers materials beyond the categories recognized in Ferber and substantial amount of lawful speech. For Miller … The provision abridges the freedom to engage in a substantial this reason, it is overbroad and unconstitutional.” A reasonable reading of this law would likely ban material with serious literary, artistic, political, or scientific value. Romeo and Juliet depicts minors engaging in explicit activity.
6. I ndece ndecent nt spee speech. --In Renton v. Playtime Theatres (1986), Rehnquist relied heavily upon Young v. American Mini Theatres (1976) (per Stevens, Stevens, J.) to reach reach its holding. In Renton, the Court held that the city’s zoning ordinance was content-neutral content-neutral because the city council’s “predominant “predo minant concerns” were with the secondary effects of o f the adult theatres. In Young , however, the Court held that the city’s zoning ordinance was content-based — although although the Young Court upheld the ordinance because it believed the speech was of “a wholly different, and lesser, magnitude than…political debate.” Moreover, in City of Erie v. Pap’s A.M. (2000) (per O’Connor, J.), the Court adhered to Renton’s content-neutral content-neutral logic in holding that zoning ordinances o rdinances could be used to restrict 25 exotic dancing. --Cohen v. California, 403 U.S. 15 (1971) (per Harlan, J.). Facts: In 1968, the defendant was arrested for wearing wea ring a jacket bearing the words “Fuck the Draft” in the Los Angeles County Courthouse. The jacket or incident did not incite incite any act of violence by anyone in the courthouse, nor did the defendant partake partake any unusual actions while at the courthouse. He was arrested for violating § 415 of the California Penal Code which prohibited “maliciously and willfully disturb[ing] the peace or quiet of any an y neighborhood or person…by…offensive conduct…” He was sentenced to 30-days imprisonment. Issue: Whether the State can prohibit “offensive conduct” co nduct” upon the theory that it is “likely to cause violent reaction or…that the States, acting as guardians of public public morality, may morality, may properly remove [an] offensive word from the public vocabulary” consistent with the First or Fourteenth Amendments. Ruling/Rationale: No. Ruling/Rationale: No. “Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display d isplay of this single four-letter four-letter expletive a criminal offense.” --While --While the Court can ban “fighting “fighting words,” that is not applicable here. There is no showing that anyone anyone who saw the defendant was in fact violently aroused or that appellant intended such a result. --The --The State argued that the defendant’s speech could be curtailed in order to protect the sensitive from crude forms of protest. The Court held otherwise. “[T]he mere presumed presence presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capab le of giving offense.” When
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Under a reasonable reading of the statute, fil ms such as Midnight Cowboy , The Last Picture Show , Animal House, A Clockwork Orange, Halloween, Fast Times at Ridgemont High , The Exorcist , Risky Business, Porky’s, Bull Durham, Dirty Dancing , and The People vs. Larry Flynt could have been subject to prosecution and potentially a five-year mandatory minimum imprisonment. 25 The Court in Pap’s A.M. applied O’Brien’s “symbolic speech” test when concluding that the city’s ordinance was content-neutral. content-neutral.
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one is outside their home they may ma y be subject to what they consider objectionable speech (deal with it). You don’t have the right to not be offended. “That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying anno ying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.” Harlan’s opinion can be constructed in three major points: First, States cannot censor their citizens in order to make a more “civil” “civ il” society. Second, knowing where to draw the line between harmless heightened emotion and vulgarity can be difficult —and —and “governmental officials cannot make principled distinctions in this area…” area…” Third, people bring passion to politics and vulgarity is simply a side effect of a free exchange of ideas — — no no matter how radical they may be b e (reminiscent of Brandies in Whitney v. California). “[O]ne man’s vulgarity is another’s lyric.”
7. C omm ommer cial ci al spee speech. --Early --Early on, the Supreme Court C ourt held that “the Constitution imposes no restraint on government as [to] purely commercial speech.” Valentine v. Christensen, 316 U.S. 52 (1942). In the 1970s, however, the Court reversed reversed st course and began to recognize that commercial speech was valuable and worthy of 1 Amendment protection. See, e.g., Virginia State Bd. of Pharm. v. Virginia Citizens Consumer Council , 425 U.S. 748 (1976). And in Central Hudson and Fox, the Court held that laws restricting commercial speech must pass a form of quasiintermediate scrutiny (i.e., the law must be narrowly tailored to further a substantial government interest). --Virginia State Bd. of Pharm. v. Virginia Citizens Consumer Council , 425 U.S. 748 (1976) (per Blackmun, J.). Facts: The Virginia State Board of Pharmacy Pharmac y promulgated a rule that made it “unprofessional conduct” for a pharmacist to “publish[], advertise[], or promote[]…any price [or] discount…for…[prescription] drugs…” The Citizens Consumer Council — — as as consumers of st prescription drugs — brought suit, challenging the law under the 1 Amendment. Issue: whether purely commercial speech is protected by the 1st Amendment. Ruling/Rationale: Yes. The State may not “completely suppress the dissemination of concededly truthful information about entirely lawful activity,” even if it is fearful of its “effect upon its disseminators and…recipients.” This Virginia law should be struck down because (1) itit disserves capitalism, (2) it disproportionately affects the poor, and (3) it stifles the free flow of information. Untruthful commercial speech, however, can be sanctioned. In Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) (per Marshall, J.), the Court provided a flexible definition of what constitutes “commercial speech.” If the speech is (1) an advertisement that (2) references a specific product and (3) the speaker sp eaker had an economic econo mic motivation for giving the speech, that will be sufficient for finding the speech is commercial in nature, because it does “no more than propose a commercial action.”
--Central Hudson Gas & Electric C orp. orp. v. Public Service Comm’n of N.Y., 447 U.S. 557 (1980) (per Powell, J.). Facts: The Public Service Commission of the State of New York passed a regulation that completely bans promotional advertising by an electric company. Central Hudson — essentially essentially a monopolistic electric company in New York — claimed claimed this regulation violated the First and Fourteenth Amendments. Issue: Whether the government may completely ban promotional advertising ad vertising by a particular company. Ruling/Rationale: Sometimes. The State gave two interests to be furthered by this regulation: (a) energy conservation; and (b) that promotional advertising adv ertising will aggravate inequities caused by the failure to base utilities’ rates on marginal costs. The Court synthesized a conjunctive c onjunctive four-part test to use when adjudicating commercial speech:
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(1) Whether the expression is protected by the First Amendment; (2) Whether the asserted governmental interest is substantial; If the answer to these two questions is “yes,” the Court must determine (3) Whether the regulation directly advances the governmental interest asserted; and (4) Whether it is not more extensive than necessary to serve that interest.26 If the answer to the first question is “no” or the answer to all the questions is “yes,” the government may restrict the commercial speech.27 In this case: Question 1 = Yes | Question 2 = Yes | Question 3 = Yes | Question 4 = No --This opinion also makes clear that the 1st Amendment does not protect the false and misleading advertisements or advertising illegal activities. --Most regulations seem to be struck down on either eith er step 3 or step 4 of the Central Hudson test. See Central Hudson (step 4); 44 Liquormart (steps 3 and 4). --In a string of cases following Central Hudson the Court held that the State may ban lawyers and doctors from operating under a trade name. See, e.g., Friedman v. Rogers, 440 U.S. 1 (1979).
J. J . Torts Torts and the F i rst Ame Amendm ndment. nt. 1. Defamation. --The Court has developed different different tests depending on the plaintiffs plaintiffs and subject matter of the suit. There are four categories of defamation suits: 1) Where the plaintiff is a public official; Here, the plaintiff must prove actual malice by clear and convincing evidence before she can succeed in a defamation suit — — the the New York Times standard. 2) Where the plaintiff is a public figure; The New York Times standard. 3) Where the plaintiff is a private figure but the matter is of p ublic concern; and The plaintiff’s burden must be at least a preponderance of the evidence and must prove actual malice before she may receive punitive damages — — the the Gertz standard. 4) Where the plaintiff is a private figure and the matter is not of public concern. Left entirely up to the States’ discretion, discretion, but cannot be strict liability — the the Dun & Bradstreet standard.
-- New New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (Brennan, J.). Facts: In 1960, the New York Times ran an advertisement in their newspaper appealing for funds to help support Dr. Martin Luther Luther King, Jr. and the civil rights movement in general. L. B. Sullivan — a public official in charge of supervising the Montgomery Police Department — — brought a libel suit against the New York Times concerning this advertisement. The advertisement was 10 paragraphs long and contained allegedly false information. information. The sections in contention claimed the police circled civil rights protestors with shotguns and tear-gas and attempted to “starve them into submission.” submission.” It also claimed claimed that Southern police had bombed Dr. King’s home, assaulted him, arrested him seven times for minor minor crimes, and have charged him with perjury. Dr. King had, however, only been arrested four times and there was no record of an assault on Dr. King.
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The Court clarified this factor in Board of Trustees of the State University of New York v. Fox (1989). There, the Court made it clear that Central Hudson does not require the “least restrictive means” test—t he law must only be “narrowly tailored” achieve the asserted ends. 27 The test, essentially, is a morphed form form of intermediate scrutiny. The law must be “narrowly tailored” to further a “substantial “substantial government interest.”
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In order to prove the publication was libelous per se, Alabama law required the prosecution to show that the words published would “tend “ tend to injure a person…in his reputation” or to “bring [him] into public contempt.” Sullivan was subsequently awarded $500,000 in damages by Alabama courts. The t he First and Fourteenth Amendments. Times appealed arguing these libel laws violated the Issue: Whether Alabama’s rule of liability— which which does not require malicious intent — — violates violates the First Amendment, with regard to public officials. Ruling/Rationale: Yes. “A State cannot, under the First and Fourteenth Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct con duct unless he proves ‘actual malice’— that that the statement was made with knowledge knowledg e of its falsity or with reckless disregard of whether it was true or f alse.” alse.” “Factual error, content defamatory of official reputation, or both, are are insufficient to warrant an award of damages for false statements unless ‘actual malice’— knowledge knowledge that statements are false or in reckless disregard of the truth — is is alleged and proved.” and proved.” --The --The case must be decided on “the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Accordingly, this kind of speech speech is afforded the highest highest protection under the First Amendment. The question becomes, however, whether that protection is forfeited due to the falsity of some of its infor mation. mation. The answer is no. “It is recognized that erroneous statement statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need…to survive.’” --The negligence per se rule out of Alabama only required the plaintiff to show that the words published would tend to injure his reputation. Therefore, if the alleged words injured a public officials officials reputation, the high burden of proof falls falls upon the defendant to show the veracity of his statement(s). statement(s). This could clearly deter people from voicing their opinions on o n public officials — — a sentiment the First Amendment cannot allow. In short, for a public official to succeed in a libel suit, he must prove “actual malice”— i.e. i.e., the defendant knowingly published false statements or published those statements with reckless disregard for the truth — by clear and convincing evidence.
--Gertz v. Welch, 418 U.S. 323 (1974) (per Powell, J.). Facts: In 1968, a Chicago police officer, officer, Richard Nuccio, shot and killed killed Robert Nelson. Subsequently, Nelson’s family obtained a lawyer, Elmer Gertz, to pursue legal action against Nuccio. The State ultimately found Nuccio guilty of second-degree murder. After the conviction, an article in in The American Opinion, published by the John Birch Society, claimed that the prosecution was part of a Communist campaign against the police. The article also called Gertz a “Leninist” and a “Communist“Communistfronter.” The article contained many many inaccuracies. Gertz then sued the publishers, alleging alleging defamation. Issue: Whether a newspaper/publisher has the same constitutional protection against libel suits coming from private, rather than public actors. Ruling/Rationale: No. Ruling/Rationale: No. “A publisher “A publisher or broadcaster of defamatory falsehoods about an a n individual who is neither a public official nor a public figure may not claim the New York Times protection against liability for defamation on the ground that the defamatory statements concern an issue of public p ublic or general interest.” Under New York Times v. Sullivan, the standard required public officials to show “actual malice.” The standards for public officials, however, are not necessarily the same for private citizens. “So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster broadcaster of defamatory falsehood.” The States, however, “may not permit recovery of presumed or o r punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth [actual malice],” malice], ” and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury.
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In short, the States may determine what standard governs g overns defamation suits between the press and private citizens; however, the plaintiff must prove actual malice before she may receive punitive damages. A public figure, moreover, is someone someone who “voluntarily thrust[ed] himself into the limelight.”
-- Dun Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (per Powell, J.). Facts: Dun & Bradstreet, Inc. is a credit-reporting agency, agenc y, which provides subscribers with financial information about businesses. In 1976, Dun & Bradstreet Bradstreet sent a report to five subscribers indicating that Greenmoss Builders, Inc. Inc. had voluntarily filed for bankruptcy. The report was false false and grossly misinterpreted Greenmoss’ assets. After determining the report was inaccurate, Dun & Bradstreet issued a corrective notice approximately one week later. Unhappy with the new notice, Greenmoss filed a defamatory suit in Vermont State court. Issue: Whether the Gertz standard should apply between private litigants when the case is not a matter of public concern. Ruling/Rationale: No. A plurality opinion, but all five concurring Justices held that Gertz does not apply. “Permitting recovery of presumed and punitive damages dama ges in defamation cases cases absent a showing of ‘actual malice’ does not violate the First Amendment when the defamatory statements do not involve matters of public concern.” Defamation suits between two private citizens is left entirely up to the States’ discretion; and the 1st Amendment does not require the plaintiff to prove actual malice when awarding punitive damages.
2. I nte ntention ntiona al i nfliction nfliction of emoti onal nal di str str ess. ss. --Public figures must satisfy the New York Times standard before they can recover damages for intentional infliction of emotional distress. Hustler v. Falwell , 485 U.S. 46 (1988). -- Hustler Hustler Magazine v. Falwell , 485 U.S. 46 (1988) (per Rehnquist, C.J.). Facts: In the 1980s, Campari Liqueur ran a series series of “first time” ads. The ads started with a tagline that read “[insert celebrity] talks about their first first time.” The viewer was meant to think the ad was talking about the celebrity’s “first time” having sex; but by the end of the ad, it was wa s clear that they that they were talking about the first time they tried Campari Liqueur. In an edition of Hustler Magazine, Larry Flynt parodied Flynt parodied these ads by making a fake “first time” ad by making a “Jerry Falwell talks about his first time” time” ad. The ad depicted Jerry Falwell having sex with his mother in an outhouse and giving his sermon’s drunk. Falwell sued, sued, alleging libel, invasion of privacy, and intentional infliction of emotional distress. The trial court found in favor of Flynt on the counts of libel and invasion of privacy, but found in favor of Falwell for intentional infliction of emotional distress. Flynt appealed. Issue: Whether public figures can recover damages for intentional i ntentional infliction of emotional distress caused by a parody. Ruling/Rationale: No. “We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here…without showing in addition that the publication contains a false statement of fact which was made with ‘actual malice’… This is not merely a ‘blind application’ of the New York Times standard, it reflects our considered judgment that such a standard standard is necessary to give adequate ‘breathing space’ to the freedoms protected by the First Amendment.” In other words, public figures must prove actual malice before the y may recover for intentional infliction of emotional distress. Here, because no reasonable person could believe this ad was truthful, Falwell cannot prove p rove actual malice.
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--Snyder v. Phelps, 62 U.S. 443 (2011) (per Roberts, C.J.). Facts: The Westboro Baptist Church is a small church run by Fred Phelps and his family in Topeka, Kansas. The church members believe the United States is overly tolerant of sin and and that God kills American soldiers as punishment. To express their views, members of the church protest soldier’s funerals, bearing signs that read, “Thank God for 9/11,” “Thank God for dead soldiers,” “God Hates Fags,” etc. In 2006, Matthew Snyder was killed while serving in Iraq. The Westboro members decided to travel travel to Maryland to protest his funeral. The church informed the authorities of their intent to picket and complied with the requests of the police — they they were 1,000 feet away from the funeral in a designated public public area. Snyder’s father saw the the tops of the signs from the funeral precession and discovered the contents of the signs later that day. Snyder then sued the Westboro Baptist Church, winning around $11 million in damages at trial. The church appealed. Issue: Whether the First Amendment shields speakers from tort liability, even if their speech was “outrageous.” Ruling/Rationale: Yes. This speech — concerning concerning the political and moral conduct of the United States and homosexuality in the military — is is clearly of public import. import. In addition, this speech was delivered in a traditional public forum — a sidewalk. This speech, therefore, is given given the highest form of protection. Even though this speech was vey v ey hurtful, we as a nation have chosen “to protect even hurtful hurtful speech on public issues to ensure that we do not stifle public debate.” Westboro, therefore, cannot be held liable. The Court also further defines when speech addresses ad dresses something of “public concern” “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’ or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and o f value and concern to the public.’”
3. I nva nvasion sion of pri pri vacy. cy. --A private cause of action exists for invasion of privacy privac y when someone discloses (1) private facts (2) to the public (3) that is not “of legitimate legitimate concern to the public” public” (4) that a reasonable person would find offensive. Restatement (Second) of Torts § 652(D) (1977). Unlike libel, this tort extends the publication of true true st information. The Supreme Court, however, has held that the 1 Amendment prevents liability for invasion of privacy if the information was lawfully obtained from public records records and was truthfully reported. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).
K . E xpressive cond conduct uct.. --The Court will go through several steps when when evaluating expressive conduct. First, the Court must determine whether the conduct is actually expressive. To answer this, the Court will use the Spence test: (1) the speech must be intended to convey a particular message; and (2) the message would likely be received by the viewers. Spence v. Washington, 418 U.S. 405 (1974). Next, the Court will ask whether the State’s regulation is related to the suppression of free speech. See Texas v. Johnson, 491 U.S. 397 (1989). If the law is unrelated to the expression of speech, the Court will use the (lenient) O’Brien test. If the law is related to the expression of speech, the Court will use strict scrutiny. --United States v. O’Brien, 391 U.S. 367 (1968) (per Warren, C.J.). Facts: In 1948, Congress passed the Universal Military Training and S ervice Act; and in 1965, 1 965, Congress amended the Act to make knowingly destroying or knowingly mutilating your draft card a criminal offense. In 1966, O’Brien and three others burned their Selective Service certificates (draft cards) on the steps of the South Boston Courthouse. O’Brien was subsequently tried and convicted under this Act.
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Issue: Whether the burning of a draft card is constitutionally protected under the First Amendment as “symbolic speech.” Ruling/Rationale: No. Symbolic speech is protected under the First Amendment, but it is not without limits. “This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same sam e course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” --“A --“A governmental regulation is sufficiently justified if it is within the constitutional power of the Government and furthers an important or substantial governmental interest unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to that interest.” The 1965 Amendment meets all these requirements. Developed the O’Brien test. The law must: (1) be within Congress’ power power to enact; (2) further an important or substantial governmental interest; (3) be unrelated to the suppression of free expression (“content(“content-neutral”); and (4) prohibit no more speech than is necessary (“narrowly tailored”). “The 1965 Amendment Amendment came within within Congress’ ‘broad and sweeping’ power sweeping’ power to raise and support armies and make all laws necessary to that tha t end.” “The 1965 Amendment is a narrow and precisely drawn provision which specifically specifically protects the Government’s Government’s substantial interest in an efficient and easily administered system for raising armies.”
--Texas v. Johnson, 491 U.S. 397 (1989) (per Brennan, J.). Facts: During the 1984 Republican National Convention, C onvention, Gregory Lee Johnson participated in a political demonstration to protest the policies of the Reagan Administration and some Dallas-based corporations. At the end of the demonstration, demonstration, Johnson burned an American flag on the steps of Dallas City Hall. No one was physically injured or threatened during this demonstration. Johnson, however, was subsequently tried and convicted under a Texas State law for burning the American American flag. Johnson st argued his conviction was inconsistent with the 1 Amendment. Issue: Whether the 1st Amendment protects the burning of the American flag. Ruling/Rationale: Yes. “We do no consecrate the flag by punishing its desecration, for in doing doin g so we dilute the freedom that this cherished emblem represents.” --“Under --“Under the circumstances, Johnson’s Johnson’s burning of the flag constituted expressive conduct, permitting him to invoke the the First Amendment. Amendment. The State conceded that the conduct was expressive. expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly overtly political nature of the conduct was both intentional and overwhelmingly apparent.” --Texas gives two interests this anti-flag burning law is meant to further: (1) preventing breaches of the peace; (2) preserving the flag as a symbol of nationhood and national national unity. “The government generally has a freer hand in restricting expressive conduct than it has in restricting restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. [A]lthough we have recognized recognized that, where “‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element c an justify incidental limitations on First Amendment freedoms,” we have limited limited the applicability of O’Brien’s relatively lenient standard to those cases in which ‘the governmental interest is unrelated to the suppression of free expression.’” United States v. O’Brien (1968). The Court rejects the State’s first argument, leaving l eaving only the national unity argument. Since the second interest is directly related to restricting restricting free expression, the O’Brien test does not apply. This law must be reviewed under the Brandenburg test, a “most exacting scrutiny.” --“ --“Expression may not be prohibited on the basis that an audience that takes serious offense to the expression may disturb the peace, since the Government cannot assume that every expression ex pression of a provocative idea will incite a riot, but must look to the actual circumstances surrounding the
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expression.”28 See also United States v. Eichman, 496 U.S. 310 (1990) (striking down the federal Flag Protection Act of 1989).
1. Mone Money as spe speech. -- Buckley Buckley v. Valeo, 424 U.S. 1 (1976) ( per per curiam). Facts: The Federal Election Campaign Act (FECA) of 1971 was amended in i n 1974 which: (a) limits political contributions to candidates for federal elective office by an individual or a group; (b) limits expenditures expenditures by individuals or groups “relative “relative to a clearly identified candidate”; (c) r equires equires political committees to keep detailed records of contributions and expenditures, including the name and address of each individual contributing in excess of $10, and his occupation and principal place of business if his h is contribution exceeds $100; (d) creates the eight-member Commission (FEC) as the administering agency with recordkeeping, disclosure, and investigatory functions and extensive rulemaking, adjudicatory, and enforcement powers. Issue: Whether any or all of the four provisions of FECA are unconstitutional. Ruling/Rationale: Yes and No. “[T]he “[T]he Court addressed various challenges to the Federal Election Campaign Act of 1971 (FECA) as amended in 1974. These amendments created 18 U.S.C. §608(e) (1970 ed., Supp. V), see 88 Stat. 1265, an independent expenditure ban separate from §610 that applied to individuals as well as corporations and labor unions, u nions, Buckley, 424 U.S. at 23, 39, and n. 45. “Before addressing the constitutionality of §608(e)’s independent expenditure ban, Buckley first upheld §608(b), FECA’s limits on direct contributions to candidates. The Buckley Court recognized a “sufficiently important” governmental interest in “the prevention of corruption and the appearance of corruption.” Id. at 25; see id. at 26. This followed from the Court’s concern that large contributions could be given “to secure a political quid pro quo.” Ibid. “The Buckley Court explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures. expend itures. The Court emphasized that “the independent independent expenditure ceiling…fails ceiling…fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” id. at 47 –48, because “[t]he absence of absence of prearr angement angement and coordination…alleviates coordination…alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate,” id. at 47. Buckley invalidated §608(e)’s restrictions on independent expenditures, with only one Justice dissenting. See Federal See Federal Election Comm’n v. 480, 491, n. 3 (1985) (NCPAC).”29 National Conservative Political Action Comm., 470 U.S. 480, 491,
-- Randall Randall v. Sorrell , 548 U.S. 230 (2006) (per Breyer, J.). Facts: Vermont’s campaign finance laws limited both (a) the amounts candidates c andidates for state office may spend on their campaigns (candidate expenditure limitation) and (b) the amounts that individuals, organizations, and political parties may contribute to those campaigns (contribution limitation). Issue: (1) Whether a State may set limits on candidate expenditures. ex penditures. (2) Whether a State may set contribution ceilings upon up on individuals. Ruling/Rationale: (1) No. Buckley “makes clear that the expenditure limits violate the First Amendment.” (2) Yes, but not here. “The contribution limits are unconstitutional because in their specific details (involving low maximum levels and other restrictions) they fail to satisf y the First Amendment’s requirement of careful tailoring.”
--Citizens United v. FEC , 558 U.S. 310 (2010) (per Kennedy, J.).
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Shows how Black’s dissent in Feiner has carried the day —we don’t allow the heckler’s veto in our 1st Amendment jurisprudence. 29 Taken from Citizens United v. FEC , 558 U.S. 310, 345 (2010).
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Facts: In 2002, Congress passed the Bipartisan Campaign Reform Act (commonly called the BCRA or McCain-Feingold). The Act — — as as defined in McConnell v. FEC (2003) — — sought sought to accomplish two primary objectives: (1) to decrease the role and amount of “soft money” being spent on political campaigns, and (2) to hinder the proliferation of “issue advocacy ads” by defining de fining any ads that name a federal candidate within 30 days of a primary or caucus or 60 days da ys of a general election as “electioneering communications,” and prohibiting any such ad paid for by a corporation or paid for by an unincorporated entity using any corporate or union general treasury funds. Furthermore, in 1990, the Court upheld electioneering communication limits such as these in Austin v. Michigan Chamber of Commerce which held the government had an interest in preventing corporations from obtaining “an unfair advantage in in the political marketplace” by using u sing “resources amassed in the economic marketplace.” In 2008, Citizens Unites — a conservative non-profit organization — released released a documentary entitled Hillary: The Movie, which was critical of then-presidential-candidate Hillary Clinton. Concerned about possible civil and criminal penalties for violating the BCRA, Citizens United United sought declaratory and injunctive relief, arguing that the limitations set up by the BCRA were unconstitutional under the First Amendment. Issue: Whether a statute that prohibits corporations or unions from spending mone y to support or denounce individual candidates in elections is unconstitutional. Ruling/Rationale: Yes. Campaign financing is a more of political speech and is therefore subject to First Amendment protections — expressly expressly overturns Austin and part of McConnell . Section 441(b), therefore, is an outright prohibition prohibition on political speech and is accordingly accordingly subject to strict scrutiny. The government’s interests are: (1) that corporate political speech can be banned to prevent corruption or the appearance of corruption, and (2) to protect shareholders from being compelled to fund corporate speech. Neither of these, the Court finds, are “compelling”— the the government fails strict scrutiny. --Interest --Interest (1) fails because, “independent “i ndependent expenditures, including those made by corporations, do not give rise to corruption corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith faith in this democracy.” Interest (2) fails fails because “[t]he “[t]he statute is underinclusive; it only protects a dissenting shareholder’s interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time. It is also overinclusive because it covers all corporations, including those with one shareholder.” --The disclaimer and disclosure disclosure provisions of the BCRA BCRA are not unconstitutional. The government presents a valid interest in transparency. Also, the requirement of disclosure is such a minimal intrusion intrusion that the First Amendment can allow it.
L . F or ums ums for spe speech. --Early on, the Supreme Court rejected any an y claim of right to use public property for speech purposes. Davis v. Massachusetts, 167 U.S. 43 (1897). The post-1937 Court, however, rejected the Davis rationale. See, e.g., 16 (1939) (1939) (per Roberts, J.) (“Wherever the title of Hague v. Committee for Industrial Org., 307 U.S. 496, 515 – 16 streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. … The privilege of a citizen of the United States to use the streets streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, b ut relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; o rder; but it must not, in the guise of regulation, be abridged or denied.”); Schneider v. New Jersey, 308 U.S. 147 (1939). The Hague and Schneider decisions stand for the proposition that the government may not ban speech in places that have “time out of mind” been used for communicating ideas; it may, however, place reasonable time, place, and manner restrictions upon people to further the “public safety, health, [and] [and] welfare.” Cf. id. 34
Contemporary decisions have divided government property in different categories, each having its own speech-related test. See, e.g., Christian Legal Society v. Martinez , 561 U.S. 661, 679 n.11 (2010); Perry v. 47 (1983). Perry Local , 460 U.S. 37, 45 – 47 (a) Traditional public forums —places that have “time out of mind” been used as places to communicate to the public. The government can regulate speech in a traditional public forum only if: (1) the regulation is content-neutral — — if if the law is not content-neutral, it must run the gamut of strict scrutiny, Chicago v. Mosley (1972); (2) it is a reasonable time, place, and manner restriction that passes intermediate scrutiny (leaving adequate alternatives open), Hill v. Colorado (2000); and (3) the licensing or permit system meets intermediate scrutiny (leaves little discretion to the licensing board and has adequate procedural safeguards), Ward v. Rock Against Racism (1989). (b) Designated public forums —exist when “government property property that has not traditionally been regarded as a public forum is opened up for that purpose.” Subject to the same strict scrutiny as a traditional public forum. (c) Limited (nonpublic) forums —“governmental entities establish limited public forums forums by opening property ‘limited to use by certain groups or dedicated solely to the discussion of certain certain subjects.’” Here, the government may pass all laws that are “reasonable and viewpoint-neutral.” viewpoint-neutral.” Christian Legal Society v. Martinez , 561 U.S. 661 (2010).
1. T r adi tional tional publi ublicc forum for ums. s. -- Police Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 92 (1972) (per Marshall, J.). Facts: The City of Chicago Chicago had an ordinance that generally prohibited picketing outside a school. The ordinance, however, exempted peaceful labor picketing from its prohibition. Earl Mosley was charged under this ordinance for carrying a sign outside a high school that read, “Jones High School practices black discrimination. Jones high school has a black quota.” Issue: Whether a law that allows picketing about one subject, to the exclusion of all others, othe rs, violates the st th 1 and 14 Amendments. Ruling/Rationale: Yes. The government “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.” The government has no power to regulate regulate speech or expression based upon its content. To allow otherwise would “undercut the ‘profound national commitment to the principle that debate on public pu blic issues should be uninhibited, robust, and wide-open.’” wide-open.’” But see Frisby v. Schultz , 487 U.S. 474 (1988) (upholding a statute that banned picketing near any private residence because the law was content-neutral and served the governmental interest of ensuring tranquility in the home); Burson v. Freeman, 504 U.S. 191 (1992) (upholding a content-based ordinance that banned the distribution of campaign literature within 100 feet of a polling place because the ordinance survived strict scrutiny).
-- Hill Hill v. Colorado, 530 U.S. 703 (2000) (per Stevens, J.). Facts: In 1993, Colorado enacted a statute that made it unlawful for any person to “knowingly approach” within eight feet of another person “for the purpose of passing [out] passing [out] a leaflet or handbill…or [to] enagag[e] in oral protest…with such other person…” within 100 feet of a a healthcare facility. Issue: Whether the statute is a reasonable time, place, and manner restriction on speech. Ruling/Rationale: Yes. The Colorado Supreme Court ruled — and and the U.S. Supreme Court agreed — that that this law was content-neutral. content-neutral. The Court further held that this restriction was a reasonable time, place, and manner restriction. The law does not affect the speaker’s ability to convey her message or the viewer’s ability to receive the message; it only restricts the speaker from “knowingl y” approaching the
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viewer as she walks into the hospital. ho spital. This furthers the government’s interest interest in protecting vulnerable hospital patients. The law, moreover, is narrowly tailored to further this this interest: its only eight feet; its only in front of hospitals; and it has a mens rea requirement. The law, therefore, stands. Scalia, J., dissenting: This law may be facially valid; but when you look underneath un derneath the law, it is a content- based based restriction of “sidewalk counseling,” which should be met with “the most exacting scrutiny.”30 35-foot See also McCullen v. Coakley, 573 U.S. ___ (2014) (striking down Massachusetts’ 35-foot “buffer zone” around healthcare facilities). “It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur — and and where that speech can most effectively be communicated —is not content based.” Id. (Scalia, J., concurring/dissenting).
--Ward v. Rock Against Racism, 491 U.S. 781 (1989) (per Kennedy, J.). Facts: Central Park contains an amphitheater called the Naumberg Acoustic Bandshell. New York enforced a policy that required speakers/musicians speak ers/musicians at the Bandshell to use state-owned amplifiers and a state-employed technicians. The City did this to control noise levels in Central Central Park West and the quiet areas in the Park. Musicians, planning to host a concert at the Bandshell, challenged the policy. Issue: Whether a law that restricts the volume of speech violates the 1 st Amendment. Ruling/Rationale: No. This policy is content-neutral — — it it does not discriminate on subject matter or viewpoint — — it it should, therefore, be viewed through the lens of intermediate intermediate scrutiny. The government has important interests in keeping Central Park quiet and preventing unwanted sound from entering the homes of those who live near the amphitheater. New York’s policy is sufficiently tailored to further these interests — it it allows the government government to control the volume of the the speech. Accordingly, this is reasonable time, place, or manner restriction restriction that is sufficiently sufficiently tailored. The law stands. This case also stands for the proposition that the 1 st Amendment does not require the “least restrictive means” test.
2. D esignat signated public ublic forum forums. s. --“[D]esignated --“[D]esignated public public forums [exist] when ‘government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose’…” Christian Legal Society, 561 U.S. 661, 679 n.11 (2010). For example, universities universities are generally thought to be limited limited public forums. However, if the university opens its property to certain groups, it may not discriminate dis criminate based on content. In Widmar v. Vincent , 454 U.S. 263 (1981), for example, the Court ruled that a university that allowed student organizations to use its buildings could not preclude religious religious groups from using the same buildings. Laws restricting speech in designated public forums are subject to the same strict scrutiny as traditional public forums.
3. Nonp Nonpublic ublic (lim (li mi ted) forum forums. s. Christian Legal Society of the U. of Cal. Ca l. Hastings College of Law v. Martinez , 561 U.S. 661 (2010). Facts: The U. of Cal. Hastings had a rule that required student-run organizations to open their membership to all students before it could could receive university funds. Hasting’s Christian Christian Legal Society (CLS) applied to be a “registered student organization” organiza tion” but was denied because it denied admission to atheists and homosexuals. The CLS appealed. Issue: Whether a university is traditional or designated public forum. Ruling/Rationale: No. Universities are limited public forums. forums. Accordingly, university restrictions restrictions on speech need only be reasonable in time, place, and manner and viewpoint-neutral. Hastings meets that
30
This is Scalia looking to the purpose of the law rather than the text.
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standard. The Christian Christian Legal Society “enjoys no constitutional right to state subvention of its selectivity.” In other words, the State is required to not discriminate. Here, the CLS is asking the government to condone their discrimination. The CLS has no 1st Amendment right to make such a request. -- International International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (per Rehnquist, C.J.). Facts: The Port Authority of New York and New Jersey, a government entity created by b y Congress, owns and operates the three main airports in the greater New York City area —JFK Int’l, LaGuardia, and Newark Airport. The International Society for Krishna Consciousness, Inc. (ISKCON), or the Hare Krishnas, was performing a religious ritual known as the sankirtan at these airports. airports. The sankirtan consists of “going into public places, disseminating religious literature and soliciting funds to support the religion.” They were conducting the ritual in the “terminal” areas. The Port Authority, however, had adopted a regulation forbidding the repetitive solicitation of money or distribution of literature within the terminals, but not the sidewalks outside the terminals. Issue: (1) Which category of public forums does an airport terminal belong to? (2) Whether the the Port Authority’s suppression of speech within their airport terminals violated the First Amendment. Ruling/Rationale: (1) Nonpublic. Airport terminals have only very recently achieved their large size and character. They, therefore, could not be thought thought of as an “immemorially…time out of mind” area of public discourse; and only in recent years have non-profit organizations been using these areas for distribution of literature, literature, etc. Accordingly, this cannot be thought of as a traditional public forum. forum. --The airport terminals terminals are not designated public forums either. In order for a public forum to be “designated” or “limited, “limited,” it must “be made ‘by intentionally opening openin g a nontraditional forum for public discourse.’” This has not been done by the Port Authority. The airport terminals generally generally have not been intentionally opened by their operators for such activity. Therefore, since the terminal is not traditional or designated, they are nonpublic (or limited). Under this category the restrictions “need only be reasonable; it need not be the most reasonable or the only reasonable limitation.” (2) No. Airport congestion is a reasonable problem for the Port Authority to remedy; banning solicitors is a reasonable means to that end — not not unconstitutional. See also United States v. Kokinda, 497 U.S. 720 (1990) (finding the sidewalk outside a post office to be a nonpublic forum). Lee and Kokinda show the conservative Courts are more likely to narrow what they mean mean by a “forum”— e.g. p ost office” rather than just e.g., a “sidewalk outside a post “sidewalks.”
M. Spe Speech in sch scho ools. ls. --While --While students do not “shed their constitutional rights to freedom of speec h or expression at the schoolhouse gate,” Tinker v. Des Moines, 393 U.S. 503 (1969), “the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings,” Bethel v. Fraser , 478 U.S. 675 (1986). A student’s constitutional rights must be “‘applied in light light of the special characteristics of the school environment.’” Hazelwood v. Kuhlmeier , 484 U.S. 260 (1988). As such, school officials may enforce content based restrictions upon students so long as it furthers furthers a legitimate pedagogical purpose. Id. In other words, the Court largely views schools as limited public forums. --Tinker v. Des Moines Indep. Comm. School Dist., 393 U.S. 503 (1969) (per Fortas, J.). Facts: In 1965, several students (including Mary Beth Tinker) Tink er) made plans to wear black armbands with peace signs to show their opposition to the Vietnam War. The school principals became aware of the plan and adopted a policy forbidding the armbands — — any any student caught wearing one would be asked to take it off, and, if they refused, they the y would be suspended until they returned without the armband. Despite the policy, the students wore the armbands to school and were suspended; they did not return to
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school for over two weeks. The students sought injunctive relief relief against such policies, arguing arguing they violate student’s First Amendment rights. Issue: Whether the school’s prohibition against wearing symbolic armbands violated the student’s First and Fourteenth Amendment rights. Ruling/Rationale: Yes. “First Amendment rights, Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued argued that either students or teachers shed their constitutional rights to freedom of speech o r expression at the schoolhouse gate.” --“A --“A prohibition against expression of opinion, without any an y evidence that the rule is necessary to avoid a void substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.” “In order for the State…to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more mo re than a mere desire to avoid a void the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”31 --“It --“It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of symbols of political or controversial significance. The order [only extended to] a particular symbol — — black armbands worn to exhibit opposition to to this Nation’s involvement in Vietnam… Clearly, the prohibition of expression of one particular opinion, at least without wit hout evidence that it is necessary to avoid av oid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.” “In our system, state-operated state -operated schools may not be enclaves enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school, as well as out of school, are ‘persons’ under our Constitution.” Constitution.”
-- Bethel Bethel School Dist. No. 403 v. Fraser , 478 U.S. 675 (1986) (per Burger, C.J.). Facts: In 1983, Matthew Fraser, a student at Bethel High School, gave a speech in support of a candidate for student body vice president. The speech was full of a sexual innuendos:
I know a man who is firm —he’s firm in his pants, he’ he’ss firm in his shirt, his character is firm — but most…of most… of all, his belief in you, the students of Bethel, is firm. firm. Jeff Kuhlman is a man who takes takes his point and pounds it in. If necessary, he’ll he’ ll take an issue and nail it to t o the wall. He doesn’t attack things in spurts — he he drives hard, pushing and pushing until finally — he he succeeds. Jeff is a man who will go to the very end — even even the climax, for each and and every one of you. you. So vote for Jeff for A.S.B. vice president —he’ll —he’ll never come between you and the best our high school can be.
After Fraser gave this speech, the Principal suspended him for 3 days, relying on a school rule forbidding “obscene language in the school. school.” Fraser, relying relying primarily on the Tinker decision, appealed his punishment. Issue: Whether a high school can punish “lewd” speech. Ruling/Rationale: Yes. Schools are more than educational institutions. The school is the primary primary place where our values are inculcated. The teachers, and older students, students, must lead by example. Accordingly, a school’s faculty has wide latitude in punishing pun ishing speech that “undermine[s] the school’s basic educational mission.” mission.” Unlike Tinker , this speech was “lewd” and “offensive” and “offensive” and the punishment was viewpoint-neutral. Brennan, J., concurring: I agree that schools should be afforded wide latitude when punishing pun ishing “lewd” or “indecent” speech. This speech, however, is not that: that: “Having read the full text of [Fraser’s] remarks, I find it difficult to believe that it is the same speech the C ourt describes.” Marshall, J., dissenting: Tinker stands for the proposition proposition that unless it is “necessary to avoid
31
Does the “material and substantial interfere[nce]” test allow for the heckler’s veto? Or does the school have a duty to take reasonable steps to uphold the student’s right to speak? Feiner v. New York , 340 U.S. 315 (1951) (Black, J., dissenting).
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material and substantial interference with schoolwork or discipline,” a school may not censor speech. Here, the school failed to bring any evidence show that school was disrupted disrupted by Fraser’s speech. Thus, I see see no reason to reverse the lower courts’ holdings. -- Hazelwood Hazelwood School Dist. v. Kuhlmeier , 484 U.S. 260 (1988) (per White, J.). Facts: In 1983, several Journalism II students at Hazelwood High S chool wrote two stories for the Spectrum, their high school newspaper. One of the stories concerned how three other students were dealing with teen pregnancy; the other dealt with how divorce had affected affected several other students. The high school principal, however, objected to these stories. He believed the stories contained inappropriate talk about birth control control and might offend some of the divorced parents. In response, the principal removed the two stories from the final published version of the Spectrum. The students sued, alleging that the school had violated their 1st Amendment rights. Issue: Whether a school newspaper is a “forum for public expression.” Ruling/Rationale: No. “[W]e hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”32 Brennan, J., dissenting: The students did not act in any way that would disrupt a school’s “pedagogical purpose.” The principal, principal, however, did. This was was a journalism class. What was the school trying to teach the students in this class? I doubt it was that a state official can shred your newspaper articles if he finds them objectionable (i.e., prior restraint). “Such unthinking contempt for individual rights is intolerable from from any state official. It is particularly insidious from one whom the public entrusts the task of inculcating in its youth an appreciation for the th e cherished democratic liberties that our Constitution guarantees. The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today.”
-- Morse Morse v. Frederick , 551 U.S. 393 (2007) (per Roberts, C.J.). Facts: In January 2002, the Olympic Olympic Torch was passing through Juneau, Alaska. A Juneau High School, while school was in session, Principal Deborah Morse decided to allow students and faculty to watch the Torch Relay. As the Torch and media approached, Joseph Frederick and several several other students unveiled a 14-foot 14-foot sign that read: “BONG “BONG HiTS 4 JESUS.” Principal Morse immediately approached Frederick and ordered him to take down the sign. He refused. Morse then confiscated confiscated the banner and suspended Frederick for 10 days. Frederick appealed his suspension, but the Superintendent upheld Frederick’s punishment because he believed the school could punish speech that reasonably promoted illegal drug use. Issue: Whether a school’s faculty may punish off -campus -campus speech based on its viewpoint. Ruling/Rationale: Yes. “[W]e hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.” The Court used the standard concerning “school“school-sponsored” sponsored” events. Stevens, J., dissenting: The majority’s holding rests upon two propositions: (1) students do not have equal free speech rights in school that they would have in a traditional public forum; and (2) the State has an important — — perhaps compelling —interest in deterring illegal drug use. “But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone an yone to do anything.” anything.” --“In --“In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to
32
In other words, school faculty can engage in content -based regulations so long as they are reasonable in time, place, and manner. School-sponsored School-sponsored events, accordingly, accordingly, look at lot like nonpublic (limited) forums subject subject to Rehnquist’s rational basis test. Justice Justice White gives several examples of what a school may censor: “speech that is, for example, ungrammatical, poorly written, written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.”
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students.”
N . T he fr eedom of associati association. on. --Before a person can be punished pu nished for group membership, the State must show: (1) the group advocates and acts unlawfully; (2) the member was aware of the group’s grou p’s illegality; and (3) the member had the specific intent to further that illegality. Scales v. United States, 367 U.S. 203 (1961); Noto v. United States, 367 U.S. 290 (1961). --Additionally, there are two kinds of associations: (1) intimate associations and (2) expressive associations. An intimate association is distinguished because of its “smallness,” “selectivity,” and “seclusion.” The government can never act within this realm. An expressive association, on the other hand, is a larger, less less selective group. The only time the government can interfere with this sort of group is when it has a compelling interest and does not n ot change the expressive mission of the group.
1. T he foundat oundatii on. -- NAACP NAACP v. Alabama, 357 U.S. 449 (1958) (per Harlan, J.). Facts: In the 1950s, Alabama had a law that required out-of-state out -of-state corporations to register with the state before conducting business in Alabama. The NAACP, a corporation based out of New York, had not abided by this law, because it thought thought it was exempt. Alabama’s Attorney General sued the NAACP in an effort to drive it out of the state. state. During discovery, the state issued issued a subpoena requiring the NAACP to turn over the names and addresses addresses of all its Alabama members. The NAACP refused and was fined fined $10,000. Issue: Whether the government can require an association to disclose its members. Ruling/Rationale: No. Ruling/Rationale: No. “We hold that the immunity from state scrutiny of membership lists…is…so lists…is…so related to the right of the members to pursue p ursue their lawful…interests privately and to associate freely with others…as to come within within the protection of the Fourteenth Amendment.” If the state could require a disclosure of membership, it could “dissuade others from joining” out of fear of “economic reprisal, loss of employment, threat[s] of physical coercion, and other manifestations of public h ostility.” With this in mind, “state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”
2. Comp Compelled lled asso ssociat ciation. ion. -- Board Board of Regents of the Univ. of Wisconsin v. Southworth, 529 U.S. 217 (2000) (per Kennedy, J.). Facts: The University Wisconsin charges its students a “mandatory student activity fee” to support student organizations. In 1995, several students students challenged this fee, arguing that it went toward political and ideological student groups. The Wisconsin courts struck down the University’s mandatory fee, holding that it violated the First Amendment as interpreted in Abood and Keller .33 Issue: Whether a university can extract a viewpoint-neutral fee to further its educational mission. Ruling/Rationale: Yes. Abood and Keller limited a union’s ability to spend its required fees “to speech germane to the purposes of the union”— i.e. that is i.e., collective bargaining. There is no particular speech that “germane” to a university. Universities “seek[] to facilitate facilitate a wide range of speech.” speech.” st --The --The University must, however, provide some protection to its students’ 1 Amendment rights. This protection is sufficiently served when the university remains viewpoint-neutral viewpoint-neutral in allocating the funds.
33
In Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), the Court held that nonmembers could be required to make payments to a teachers’ union to avoid “free riders.” But in Keller v. State Bar of California , 496 U.S. 1 (1990), the Court held that unions cannot spend that money on issues unrelated to their activities (e.g., a steelworkers’ union could not spend mandatory payment money to advocate for gun control). But see Harris v. Quinn, 134 S. Ct. 2618 (2014) (refusing to apply Abood to quasi-public employees and questioning the Court’s “free rider” rationale).
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3. D oes an asso ssociat ciati on hav have the r ight ig ht to di scri scri minat inate? -- Roberts Roberts v. United States Jaycees, 468 U.S. 609 (1984) (per Brennan, J.). Facts: The United States Jaycees was a non-profit no n-profit membership corporation — consisted consisted of about 300,000 people — whose whose objective was to “foster the growth and development of young men’s civic organizations in the United States…” Regular, voting membership was limited to men between the age of 18 and 35; and associate, non-voting membership was available to women and older men. In 1978, several female members of the St. Paul Jaycees filed suit, arguing arguin g that their inability to vote violated the Minnesota Human Rights Act, which provided that it was “an unfair discriminatory practice [t]o deny any person the full and equal…privileges, advantages, [or] accommodations…because of [their]…sex.” [their]…sex.” The Jaycees argued that this law would infringe upon their associational rights. Issue: Whether the government can forbid an association from restricting membership based on race, age, or sex. Ruling/Rationale: Yes. There are two types of association: (1) intimate association and (2) expressive association. An intimate association is distinguished because distinguished because of its “smallness,” “selectivity,” and “seclusion.” The government can never act within this realm. An expressive association, on the other hand, is a larger, larger, less selective group. The only time the government can interfere with this sort of group is when it has a compelling interest and does d oes not change the expressive mission of the group. --For example, the government could not force a local book club to allow Rhonda34 to join — this this would be an impermissible regulation on an intimate association. On the other hand, the government can forbid a large for- profit company from denying employment because of the applicant’s sex— this would be a permissible regulation on an expressive association. However, the government could not require the NAACP to admit a white supremacist — — this this would interfere with with the group’s expressive mission.
-- Boy Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (per Rehnquist, C.J.). Facts: The Boy Scouts of America revoked James Dale’s membership when they found out o ut he was gay, despite the fact that Dale Dale was an Eagle Scout and loved the Scouts. New Jersey had a public accommodations law similar to the law in United States Jaycees. Dale sued the the Scouts under this law; st the Scouts argued this law violated their 1 Amendment associational rights. Issue: Whether the Boy Scouts can exclude gay people from its organization. Ruling/Rationale: Yes. The Boy Scouts is an expressive association —“the —“the general mission of the Boy Scouts is clear: ‘[T]o ‘[T]o instill values in in young people.’” They seek to bring up children to to be “morally straight” and “clean.” The Scouts have been involved in litigation showing showing that they have a desire “to “to not promote homosexual conduct as a legitimate form of behavior.” behavior.” Accordingly, the government cannot require require this group to admit homosexuals homosex uals because it would “significantly affect its expression.” Stevens, J., dissenting: How would allowing homosexuals to join the Boy Scouts “significantly affect its expression?” No one, including the the Boy Scouts, would describe describe its expressive activity as anti-gay. The Boy Scouts is an organization that that seeks to “serve others by helping to instill values in young people and…to prepare them the m to make ethical choices over ov er their lifetime…” How would admitting admitting a gay scoutmaster undermine this objective?
34
Fuck Rhonda.
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IV. The Religion Clauses. A. What is “religion”?
--United States v. Seeger , 380 U.S. 163 (1965) (per Clark, J.). Facts: The Universal Military Training and Service Act allows people to opt out of “combatant training and service” if they are “conscientiously opposed to participation participation in war in any form” form” because of their religion. The Act Act further defines “religion” as an “individual’s belief in a relation to a Supreme Being…” but did not include “essentially political, political, sociological, or philosophical views, or a merely personal moral code.” Daniel Seeger was convicted for refusing to submit to the the draft during the Korean Korean War. He claimed to be a “conscientious objector” to war but not because of his belief in aSupreme a Supreme Being. He then challenged the definition of religion under the UMTSA. Issue: Whether “religion,” within the meaning of the UMTSA, requires a belief in “God.” Ruling/Rationale: No. Ruling/Rationale: No. “We…conclude[] that Congress, in using the expression “Supreme Being” rather than…“God,” was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially essentially political, sociological, and philosophical views.” Under this view, the test ought to be “whether a given given belief that is sincere and meaningful occupies occup ies a place in the life of its possessor parallel to that filled by the orthodox belief in God” for clearly religious people.
--United States v. Ballard , 322 U.S. 78 (1944) (per Douglas, J.). Facts: The Ballards were convicted of using the mail to perpetuate a fraud and acquire money under false pretenses. The Ballards sent out mailers mailers that claimed they had supernatural supernatural ways to cure the sick. It was clear that the Ballards believed this because of their religion. Accordingly, the jury was tasked with determining whether the Ballards’ religious beliefs were true or false. Issue: Whether the 1st Amendment allows a jury to determine the veracity of a religious doctrine. Ruling/Rationale: No. Ruling/Rationale: No. “[W]e do not [believe] that the truth or verity of [the Ballards’] Ballards’] religious doctrines or beliefs should have been submitted submitted to the jury. [T]he First Amendment precludes precludes such a course…”
B . The F r ee E xer xer cise C lause lause.. 1. G ener ner ally ap applica li cab ble laws laws & the R eligi li gi ous F r eedom and R estor stor ati ati on Act A ct ( R F R A ) . i. The Sherbert test. --Sherbert v. Verner , 374 U.S. 398 (1963) (per Brennan, J.). Facts: Adell Sherbert was a member of the Seventh-Day Adventist Church. As part of her religion, she was not allowed to work work on Saturdays, the Sabbath. Because she refused to work on Saturdays, she was fired from her job. She then filed for unemployment with the State. The State denied her claim, finding that she had been fired “for good cause.” Sherbert challenged the State’s finding, arguing it violated the 1st Amendment. Issue: Whether laws of general applicability that burden religion are facially valid under the 1st Amendment. Ruling/Rationale: No. Before a law that burdens religion can be upheld one of the following must be shown: (1) the law doesn’t impose a burden upon the plaintiff’s religion; or (2) the government has a “compelling state interest” and there is “no alternative forms of regulation.” Here, Sherbert’s religion religion has been burdened — she she must choose between between working and practicing her religion. The government, moreover, has not carried its burden to meet the second prong. Harlan, J., dissenting: Sherbert was fired for doing something that an yone could have been fired for — failing failing to show up to work. work. Her religious beliefs had nothing to do with her firing. She should not be given special treatment.
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--Wisconsin v. Yoder , 406 U.S. 205 (1972) (per Burger, C.J.). Facts: Wisconsin had a statute that required all children to attend school at least until they turn 16-yearsold. Several Amish families, however, pulled their children out of school after 8th grade, citing their religious beliefs. The State filed criminal charges against against the families families and fined them $5 each. The families appealed. Issue: Whether this generally applicable law passes the Sherbert test. Ruling/Rationale: No. Ruling/Rationale: No. This law substantially burdens the families’ families’ religious beliefs: “Wisconsin “Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniabl y at odds with…their religious religious beliefs…” And while the State may have a compelling compelling interest in furthering furthering its population’s education, this law is not the least restrictive means to further that interest: The Amish are a largely “self -sufficient” people; the lack of “two additional add itional years of compulsory education will not impair the physical or mental health of the [children], or result in an inability…to discharge discharge the duties and responsibilities of citizenship, or…materially or…materially detract from the welfare of society.” This law, therefore, must remain inapplicable to the Yoders.
i i . T he curr cur r ent test. test. -- Employment Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 875 (1990) (per Scalia, J.). Facts: Oregon prohibits the use or possession of peyote — a Schedule I hallucinogen. Alfred Smith was fired from his job at a drug rehabilitation center for using peyote as part of a Native American religious ceremony. After his firing, firing, Smith applied for unemployment with with the State but was denied because he had been fired for “misconduct.” Smith challenged his unemployment unemployment denial, relying on Sherbert . Issue: Whether a generally applicable law — here, here, a law prohibiting the use of peyote — is is facially valid st under the 1 Amendment. Ruling/Rationale: Yes. The Sherbert test is outmoded and has only been applied by this Court in the context of unemployment benefits. benefits. “Even “Even if we were inclined to breathe into Sherbert some some life beyond…unemployment compensation…we would not apply it to require exemptions from a generally applicable criminal law.” “To make an individual’s obligation to to obey [a criminal law] contingent contingent upon the law’s coincidence with religious beliefs…contradicts both constitutional tradition and common sense.” This would allow the defendant to “‘become a law unto himself.’” --To hold otherwise could open up the floodgates to ridiculous exceptions to valid laws: l aws: What if a religion doesn’t believe in paying paying taxes? What if a religion doesn’t believe in a state’s child abuse/labor laws? What if a religion religion believes in animal sacrifice? The 1st Amendment allows you to believe this; but it does not allow you be free from criminal sanctions when you act upon these beliefs. O’Connor, J., concurring concurring in the judgment of the Court only: Apply Sherbert The government has a compelling interest in prohibiting drug use, and the law will only work if it is generally applicable this passes Sherbert. Blackmun, J., dissenting: Apply Sherbert the State does not have a compelling interest in prohibiting drug drug use within this “carefully circumscribed religious context” this fails Sherbert .
i i i . The R eligi lig i ous F r eedom R esto stor ati on A ct ( R F R A ). -- Burwell Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014) (per Alito, J.). Facts: In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), (R FRA), which prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “ demonstrates that application of application of the burden to the person — (1) (1) is in furtherance of a compelling governmental gove rnmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
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In 2010, Congress passed the Affordable Affordable Care Act (ACA). (ACA). This law required, inter alia, specified employers’ group health plans to furnish “preventive care and screenings” for women without “any “an y cost sharing requirements,” which would be determined by b y the Health Resources and Services Administration — a branch of the Department of Health and Human Services. The HHS determined that certain forms of contraception — that that stopped an already fertilized egg from developing any further by inhibiting its attachment to the uterus — were were covered under the the ACA. Hobby Lobby, Inc., along with several other businesses, argued that the ACA violated their religious freedom under RFRA and sought injunctive relief. Issue: (1) Whether the Religious Freedom Restoration Act applies to closel y-held corporations; and, if so, (2) Whether the Affordable Care Act meets the strict scrutiny requirements of the RFRA. Ruling/Rationale: (1) Yes. The Dictionary Act, 1 U.S.C. § 1, defines “person” to include “corporations…as well as individuals.” RFRA was passed to protect protect people with closely held religious religious beliefs; it would not make sense to interpret RFRA to require religious religious persons to choose between practicing their religion or forming a corporation. (2) No. “As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate violate the RFRA.” --HHS’s -HHS’s contraceptive mandate substantially burdens the exercise of religion— it it requires Hobby Lobby to engage in conduct that seriously violates their sincere religious belief that that life begins at conception. If they and their companies refuse to provide contraceptive coverage, they face severe economic consequences — about about $475 million per year for Hobby Lobby.35 --The Court assumes (but does not decide) that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest. But the Government has failed to show that the contraceptive mandate is the least restrictive restrictive means of furthering furthering that interest. The Government could assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious religious objections. Or it could extend the accommodation that that HHS has already established for religious non-profit organizations to for-profit employers with religious objections to the contraceptive mandate. See also Zubik v. Burwell , 578 U.S. ___ (2016) (remanding the issue of whether submitting a form requesting contraceptive coverage violates RFRA).
C . T he E stab stablishm li shme ent C lause lause.. --The primary test used to determine whether the Establishment Clause has b een violated is the Lemon test: (1) “the statute must have a secular legislative purpose”; purpose”; (2) “its “its principal or primary effect must be one that th at neither advances nor inhibits religion” religion”; and (3) “the statute must not foster ‘an excessive government entanglement entan glement with religion.’” Prong 1: “When the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment Clause value of official offic ial religious neutrality.” McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005). Prong 2: In Estate of Thornton v. Caldor , 472 U.S. 703 (1985), the Court invalidated a law that provided that no person could be required to work on their Sabbath because the statute went “beyond having an incidental or remote effect of advancing religion”; rather, it “ha[d] a primary effect that that impermissibly advances…religio[n]…” Prong 3: The State is “entangled” in religion when it practices “comprehensive, discriminating, and
35
Amici briefs argued in this case that “the $2,000 per -employee -employee penalty is actually less than the a verage cost of providing health insurance…and therefore, they claim, the companies could readily eliminate any substantial burden by forcing their employees to obtain obtain insurance in the government exchanges.” This is a great argument; however, the Court dismissed this argument because they “do not generally entertain arguments that were not raised below and are not advanced in this t his Court by any party…and there [were] [w ere] strong reasons to adhere to that practice in these cases.”
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continuing state surveillance.” Lemon v. Kurtzman, 403 U.S. 602 (1971); compare Grand Rapids v. Ball , 473 U.S. 373 (1985) (holding that the State cannot pay parochial teachers’ salaries because the State would need to monitor whether the teachers were teaching only secular materials), with Agostini v. Felton, 521 U.S. 203 (1997) (allowing public school teachers to teach secular subjects at parochial schools because it would not requires the type t ype of monitoring seen in Grand Rapids).
1. The Lemon test. -- Lemon Lemon v. Kurtzman, 403 U.S. 602 (1971) (per Burger, C.J.). Facts: Pennsylvania and Rhode Island each had laws that gave state money to church-related educational institutions. Pennsylvania gave subsidies to private schools by paying teachers’ salaries and school supplies in certain secular secular subjects. Rhode Island gave private school teachers a supplement of 15% of their annual salary. Both laws were challenged under the Establishment Clause. Issue: Whether a law that gives financial aid to religiously based institutions violates the Establishment Clause. Ruling/Rationale: Ruling/Rationale: Yes. The Establishment Clause was implemented to prohibit “sponsorship, financial support, and active involvement of the sovereign in religious activities.” activities.” If a law appears to tread upon this forbidden ground, it must pass a three-part test bef ore ore it will be upheld: (1) “the “ the statute must have a secular legislative purpose”; purpose”; (2) “its “its principal or primary effect must be one that neither adv ances nor inhibits religion” religion”; and (3) “the statute must not foster ‘an excessive government entanglement with with religion.’” Here, there is no reason reason to believe the state legislatures legislatures acted with a non-secular non-secular purpose — their goal was to enhance the quality of their private school school systems. However, the statutes in question question foster an impermissible degree of entanglement.
2. R eligi ous displa isplayys on gov governme rnment prope roperty. rty. --County of Allegheny v. ACLU, Greater Pittsburgh Chapter , 492 U.S. 573 (1989) (per Blackmun, J.). Facts: This case concerns two of Pittsburgh’s religious displays: displays: (1) a nativity scene placed on the grand staircase to the county courthouse; and (2) a menorah placed outside City Hall, next to a Christmas tree and a “sign saluting liberty.” liberty.” The ACLU challenged these displays, and the Third Circuit held that both impermissibly endorsed religion. Issue: (1) Whether a government-displayed nativity scene — standing standing alone — violates violates the Establishment Clause. (2) Whether a government-displayed menorah — standing standing next to other religious symbols s ymbols — — violates violates the Establishment Clause. Ruling/Rationale: (1) Yes. The primary test to determine whether a religious display violates the Establishment Clause is to determine whether the government has “endorsed” religion. In making this determination, we must ask “whether the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.”36 Here, “the crèche stands alone: it is the th e single element of the display on the Grand Grand Staircase.” This is enough to show that a reasonable person would view the display as a government “endorsement” “ endorsement” of religion. (2) No. Unlike the crèche, the menorah is placed next to a Christmas tree and other decorations, thereby giving the display display an “overall holiday setting.” setting.” This combination is enough to show that the government was merely recognizing the secular holiday season, not endorsing both Judaism and Christianity. “[T]he Establishment Clause…mean[s] that government may not promote or promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution,
36
Elsewhere in the opinion, Justice Blackmun notes that “endorsement” is synonymous synonymous with “favoritism” or “promotion.” He also notes that this test heavily “depends upon its context.” The main source source of precedent used by the Court was Lynch v. Donnelly .
45
and may not involve itself too dee ply in such an institution’s affairs.” O’Connor, J., concurring: “In my view, the relevant releva nt question for Establishment Clause purposes is whether the city of Pittsburgh’s display of the menorah, the religious symbol of a religious symbol of a religious symbol symbol of a religious holiday, next to a Christmas tree…sends a message of pluralism and freedom to choose one’s own belief.” Stevens, J., concurring/dissenting: “In my opinion the Establishment Clause should be construed to create a strong presumption against the display of religious symbols on public property. There is always a risk that such symbols will offend nonmembers of the faith being advertised as well as adherents who consider the particular advertisement disrespectful.” Kennedy, J., concurring/dissenting: concurring/dissenting: “Rather then requiring government to avoid an y action that acknowledges or aids religion, the Establishment Clause permits government some latitude in recognizing and accommodating the central role religion plays in our society.”
-- McCreary McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) (per Souter, J.). Facts: In 1999, two Kentucky counties erected monuments to the Ten Commandments inside their county courthouses. After several complaints were filed, the counties expanded the monument to show that the Commandments were Kentucky’s “precedent legal code.” Issue: Whether a government display of the Ten Commandments — — standing standing alone — violates violates the Establishment Clause. Rationale: Yes. “We hold that the counties’ coun ties’ manifest objective may be dispositive of the constitutional enquiry, and that the development of the presentation should be considered when determining its purpose.” The touchstone of Establishment Clause Clause analysis is “neutrality.” The government violates this principle when it “acts with the ostensible and predominant purpose of advancing religion…” religion…” The Ten Commandments, moreover, are an “instrument of o f religion” that presumptively is “understood as meant to advance religion.” religion.” And the history behind the erection erection of this display shows that it had no legitimate secular purpose. This is sufficient to show that the display violates the Establishment Clause.
--Van Orden v. Perry, 545 U.S. 677 (2005) (per Rehnquist, C.J.). Facts: The Texas State Capitol is surrounded by b y 22 acres containing 17 monuments monu ments and 21 historical markers commemorating the “people, ideals, and events that compose Texan identity.” Among those displays was a 6’ x 3’ tablet containing the Ten Commandments. Issue: Whether a government display of the Ten Commandments — — in in an area with other secular displays — violates violates the Establishment Clause. Rationale: No. “We cannot say that Texas’ display of this monument violates the Establishment Clause of the the First Amendment.” The Lemon test is inapplicable here. Rather, the Court should look to “the nature of the monument and by our Nation’s history.” Rehnquist then rolled out a laundry list of quasireligious displays in in D.C. So, while the state cannot display the Ten Commandments in school classrooms, Stone v. Graham (1980), the monument monument here is “far more passive…than…where the text confronted elementary school students every day.”
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V. Equal Protection.
--When a law is challenged under the Equal Protection Clause, the Court is essentially always posed with the same question: Whether the government’s classification classification is justified by a sufficient purpose. To be more specific, the Court must answer three questions: (1) What is the classification? (2) What level of scrutiny should apply to this classification? and (3) (3) Does the government’s action meet action meet the level of scrutiny? What is the classification? The government can discriminate in two ways: (1) where the law is facially discriminatory, see, e.g., Strauder v. W. Virginia, 100 U.S. 303 (1879) (blacks cannot serve on juries); and (2) where the law is facially neutral but but has a discriminatory impact and was passed with a discriminatory purpose, see, e.g., Washington v. Davis, 426 U.S. 229 (1976). What is the appropriate level of scrutiny? The vast majority of cases will be gauged under the “rational basis” test.37 The Court, however, has noted that if a class of people meets certain criteria, it may warrant heightened scrutiny. Those criteria are (1) whether whether the class is being classified by their immutable characteristics — e.g. e.g., race, national origin, or gender;38 (2) whether the group is unable to protects itself through the political process — — e.g. e.g., women and aliens;39 (3) whether there is a history of discrimination against the group — because a history of discrimination increases the likelihood that the 40 law was motivated by prejudice; and (4) whether the group’s characteristics affect their ability to contribute to society.41 If a class meets these criteria, it may be given the imprimatur of “suspect” or “quasi“quasi-suspect” class. Laws affecting a suspect class will be subject to strict scrutiny, and laws affecting a quasi-suspect class will be subject to intermediate scrutiny. Does the government’s action meet the level of scrutiny? The Court will look to how the government’s means furthers its ends. This necessarily requires requires the Court to look at the laws overbreadth and underinclusiveness. Rational basis allows a tremendous tremendous amount of overbreadth and underinclusiveness. Any form of heightened scrutiny, however, requires much more substantial tailoring. --The Court often invokes invokes the Equal Protection Clause when dealing with with fundamental rights. This is due, in 42 large part, to the Court’s reluctance to use “substantive du e process.”
A. R ati onal nal basis revi revi ew. --The rational basis is often comically easy to pass. The law can be substantially overbroad and underinclusive. The burden lies with the claimant to show that the challenged law bears no rational relationship between any legitimate state interest. Some scholars argue, however, that the test has more “bite” when the Court is dealing with certain subjects. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); Cleburne v. Cleburne Living Center , 473 U.S. 432 (1985). --Railway Express Agency, Inc. v. New York , 336 U.S. 106 (1949) (per Douglas, J.). Facts: New York Traffic Code § 124 forbade the operation of any advertisements on a vehicle on the streets of New York — arguably arguably in order to prevent distraction from other drivers and pedestrians. Appellant owned a nationwide express exp ress business, which operated approx. 1,900 trucks in New York City
37
The government’s law must be rationally related to a legitimate state interest. See, e.g., Fullilove v. Klutznick , 448 U.S. 448, 496 (1980). 39 See, e.g., Graham v. Richardson , 403 U.S. 365, 367 (1971). 40 See, e.g., Cleburne v. Cleburne Living Center , 473 U.S. 432, 440 (1985) (“[W]hen a statute classifies by race, alienage, or national origin[,] [t]hese factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy… For these reasons, and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny, and will be sustained only if they are suitably tailored to serve a compelling state interest.”). 41 Id. 42 See, e.g., Skinner v. Oklahoma , 316 U.S. 535 (1942); Reynolds v. Sims, 377 U.S. 533 (1964); Shapiro v. Thompson , 394 U.S. 618 (1969). 38
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and sold space of the trucks trucks for advertisements. He was subsequently charged and fined under this this ordinance. Issue: (1) Whether the regulation violates the 14th Amendment’s Amendment’s Due Process Clause. (2) Whether a regulation which prohibits general advertisements ad vertisements on vehicles, while allowing advertisements of products sold by the vehicle owner ow ner violates the 14th Amendment’s Equal Protection Clause. Ruling/Rationale: (1) No. “The function of this Court upon such review is not to weigh evidence on the due process issue in order to determine whether the th e regulation is sound or appropriate, nor to pass judgment on the wisdom of the regulation.” The providence and duty of the Court is to say what the law is, not what it should be. (2) No. This Court cannot say that the advertising, which is forbidden, has less incidence on traffic than that which is exempted.43 The regulation is not rendered rendered invalid by the fact that it does not extend to what may be even greater distractions affecting traffic safety, such as the spectacular displays at Times Square. Not the Court’s place to pass judgment on the wisdom or prudence prudence of a law; that is a legislative matter. There is no equal protection requirement of statutes to eradicate all evils of the same kind or eradicate none of the evils at all.
--Romer v. Evans, 517 U.S. 620 (1996) (per Kennedy, J.). Facts: The cities of Aspen, Boulder, and Denver had passed laws that sought to protected people who were discriminated against on the basis of their sexual orientation. Subsequently, Colorado, through a referendum, amended its State Constitution to provide that no public body in Colorado may adopt or enforce any law that would give protected status to anyone with “homosexual, lesbian, or bisexual orientation.” Several aggrieved homosexuals and Colorado municipalities filed suit to enjoin the the Amendment on the grounds that it violated the Fourteenth Amendment Equal Protection P rotection Clause. Issue: Whether Colorado’s “Amendment 2” violates the Fourteenth Amend ment Equal Protection Clause. Ruling/Rationale: Yes. Yes. “Its sheer breadth is so discontinuous with the r easons easons offered for it that the amendment seems inexplicable by anything an ything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.” --“In --“In order to reconcile the Fourteenth Amendment's promise that no person shall person shall be denied equal protection…the Court has stated that it will uphold a law that neither burdens a fundamental right right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end. Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single single trait and then denying them the possibility of protection across the board. This disqualification of a class class of persons from the right to obtain specific protection from from the law is unprecedented and is itself a denial of equal protection in the most literal literal sense. Second, the sheer breadth of Amendment 2, which which makes a general announcement that gays ga ys and lesbians shall not have any an y particular protections from the law, is so 44 far removed from the reasons offered for it …that the amendment cannot be explained by reference to those reasons; the amendment raises the inevitable inference that it is born of animosity toward the class c lass that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification classification of persons undertaken for its own sake, something the Equal Equal Protection Clause does not permit.” The entire purpose of this amendment ame ndment is to deny to homosexuals equal protection of the law. law. Therefore, how could the Equal Protection Clause ever be thought to allow this — even even under a rational basis review?
43
The Appellant argued that there t here is no difference whether he advertised his business on his own truck (which is allowed), o r whether another company did. The Court rejected this argument, saying saying it is not their place to make those kinds kinds of decisions; they are not some omniscient branch that could know if that was true or false. 44 Respect for other citizens' freedom of association, particularly l andlords or employers who have personal or religious object ions to homosexuality, and the State's interest i n conserving resources to fight discrimination against other groups.
48
--“Amend --“Amendment ment 2 goes well beyond merely depriving them them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of o f public and private and private transactions.”
B . S tri ct scrutiny scrutiny & suspect suspect classe classes. s. 1. F acia ci ally di scri scr i mi nato natorr y laws. laws. --Loving v. Virginia, 388 U.S. 1 (1967) (per Warren, C.J.). Facts: As of the mid-twentieth century, Virginia was one of sixteen States that prohibited mixed-race marriages.45 In 1958, two Virginia Virginia residents — — Richard Richard Loving (a white man) and Mildred Jeter (a black woman) — — were were married in the District District of Columbia. Upon their return to Virginia, Virginia, they were indicted with violating Virginia’s anti-miscegenation anti -miscegenation laws. The Lovings pleaded guilty to the charges and were sentenced to one year in jail. The trial judge, however, suspended the sentence sentence for a period of twentyfive years on condition that the Lovings would leave the state and not no t return for those twenty-five 46 years. The Lovings relocated to D.C. and challenged challenged the validity of their sentences sentences on Fourteenth Amendment grounds. Issue: (1) Whether Virginia’s anti-miscegenation anti -miscegenation laws violate the Due Process Clause of the Fourteenth Amendment. (2) Whether Whether Virginia’s anti-miscegenation anti-miscegenation laws violate the Equal Protection Clause of the Fourteenth Amendment. Ruling/Rationale: (1) Yes. “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” --In upholding the constitutionality of these laws in a pervious de cision, the Virginia Supreme Court found the State’s legitimate purposes were to “preserve the racial inte grity of its citizens,” to prevent “the corruption of blood,” to prevent “a mongrel breed of citizens,” and to prevent “the obliteration of racial pride.” These purported state interests are clearly the product of racism and the ill-conceived theory of White Supremacy. And while the State is correct in asserting that marriage has traditionally been within the police powers of the States, those powers are subject to the limits limits prescribed by the Fourteenth Amendment. In responding to the requirements of the Fourteenth Amendment, the State argues that its law does do es not deprive any citizens of equal protection of the laws because this law applies with full effect to all races — i.e. i.e., a white man and a black man would be punished equally if they entered into a interracial marriage. This argument is not going to fly. When a state imposes an invidious racial classification classification — as as it has done here —it faced a “very heavy burden of justification” for its laws. See, e.g., Korematsu v. U.S. (1944). There is no “overriding purpose of invidious racial discrimination which justifies this classification.”47 (2) Yes. “These statutes…deprive the Lovings of liberty without due proc ess of law in violation of the Due Process Clause of the Fourteenth Amendment.” --“The --“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” And “[u]nder our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed infringed by the State.” In other words, there is a fundamental right to marry, and once the State intrudes upon this right any of its laws will be subject to the “most rigid scrutiny.”
45
Virginia’s ban was the product of the Racial Integrity Act of 1924. In an opinion, the trial judge stated that: “Almighty God created the races white, black, yellow, malay and red, and he placed placed them on separate continents. And but for the i nterference with his arrangement there would be no cause for such marriages. The fact that th at he separated the races shows that he did not intend the races to mix.” 47 The way Chief Justice Warren writes this opinion may suggest that, although this law was being subject to something along the lines of strict scrutiny, it would fail any form of judicial review for failing to state any “legitimate…purpose.” 46
49
-- Palmore Palmore v. Sidoti, 466 U.S. 429 (1984) (per Burger, C.J.). Facts: Mother and father divorced and the judge awarded custody of their 3-year-old daughter to the mother. The following year, the father sought to modify the judgment because the mother mother had begun cohabiting with a black man, whom she married married 2 months later. The trial court ruled in favor of the father, noting that society, by and large, does not accept the mother’s lifestyle choice— the the child, therefore, would be subject to the environmental env ironmental pressures and social stigmatization that accompanies her mother ’s ’s lifestyle. The trial court did not find that either of o f the parents were in anyway an yway unfit to raise a child. The appeals court affirmed. affirmed. Issue: Whether a state court’s reliance on the race of one of the child’s guardians when determining child custody violates the 14th Amendment. Ruling/Rationale: Yes. To pass constitutional muster, state-imposed racial discrimination must be “justified by a compelling governmental interest and must be b e ‘necessary…to the accomplishment’ of their legitimate purpose.” The state’s interest in granting custody based on the best interests of the child qualifies as a “substantial” state interest. The Court, however, cannot hold that the possible injuries that could be inflicted by societal biases is a sufficient justification for removing a child from her mother’s custody. “Private biases may be outside the reach of the law, but the law cannot…give them effect.” --In --In short, the public’s biases (e.g., racism) do not present a legitimate state interest.
i. Segregation. --Plessy v. Ferguson, 163 U.S. 537 (1896) (per Brown, J.). Facts: In 1890, Louisiana passed a law which required “separate but equal” railway carriages for white and black passengers. After the passage of this law, Homer Plessy, a man who was 1/8 African and 7/8 Caucasian, sat in the “white” section of a train car. He was then asked by the conductor of the train to vacate the “white” car and be seated in in the “colored” section. After refusing to move, he was forcibly removed from the train by the police and imprisoned. Issue: Whether a law which provides for “separate but equal” segregation persons based on their race violates the 13th or 14th Amendment(s). Ruling/Rationale: No. The power to segregate is within a state’s police powers and, therefore, does therefore, does not th violate the 14 Amendment. Harlan, J., dissenting: “In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by b y this tribunal in the Dred Scott Case.” “The arbitrary separation of citizens citizens on the basis of race…is race…is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.”
--Brown v. Board of Education, 347 U.S. 483 (1954) (per Warren, C.J.). Facts: Suits had come from several states which imposed the doctrine of “separate but equal” in their public school systems. Black students sought, and were denied, admission to white schools based on their race. The plaintiffs contended that the black schools were not and could not be made equal to white schools; therefore, the segregation violated their 14th Amendment rights. Issue: Whether the segregation of children in public schools on the basis of their race — even even if the th physical facilities are equal — — violates violates their 14 Amendment rights. Ruling/Rationale: Yes. “Segregation of white and Negro Ne gro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment — — even even though the physical facilities and other ‘tangible’ factors of white white and Negro schools may be equal.” --“The --“The question presented in these these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, ado pted, but in the light of the full development of public
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education and its present place in American life throughout the Nation.” The doctrine of “separate “separate but equal,” as seen in Plessy, “has no place” place” in the public school system. “Separate educational facilities are inherently unequal.”
2. F acially cially neut neutrr al law laws. --A facially neutral law will not be gauged under strict scrutiny merely because it results in a disproportionate discriminatory impact; it must also be motivated by a discriminatory purpose. See, e.g., Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. (1977); Washington v. Davis, 426 U.S. 229 (1976). More specifically, the law must be passed “because of” the person’s race or race or gender , not merely “in spite of” her race or gender . Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 258 (1979).
i . R aci aci ally di sproporti sproportio onate nate i mpact. act. --Yick Wo v. Hopkins, 118 U.S. 356 (1886) (per Matthews, J.). Facts: An 1880 San Francisco ordinance required owners of wooden laundry houses to gain approval from a board of supervisors in order to continue their businesses. businesses. The owners of the vast majority of laundry houses in San Francisco were Chinese immigrants because it was the one of o f the few jobs they could acquire. acquire. The board denied every application made by Chinese immigrants, all of whom had been in business for over 20 years.48 Yick Wo was arrested and imprisoned for violating the ordinance by refusing to pay a fine. He then filed for a writ of habeas corpus claiming the ordinance violated his 14th Amendment rights. Issue: Whether a facially neutral law that is applied in a discriminatory manner violates the 14th Amendment. Ruling/Rationale: Yes. “An administration of a municipal ordinance for the carrying on of a lawful business within the corporate limits violates the provisions of the Constitution of the United States if if it makes arbitrary and unjust discriminations, founded on differences of race between persons otherwise in similar circumstances.” --“A[n] --“A[n] ordinance…violates the provisions of the Constitution of the United States if it confers upo n the municipal authorities arbitrary power, at their own will, and without regard to discretion in the legal sense of the term…” --“The --“The guarantees of protection contained in the Fourteenth Amendment to the Constitution extend to all persons within the territorial jurisdiction jurisdiction of the United States, without regard to differences of race, of color, or of nationality.”
--Washington v. Davis, 426 U.S. 229 (1976) (per White, J.). Facts: The District of Columbia’s Civil Service Commission created a test known as “Test 21” for applicants to D.C. Police Department. Department. Test 21 was used to test “verbal ability, vocabulary, reading, and comprehension.” This test, in practice, showed that four times as many blacks failed the tests than whites. Several black applicants filed sued after after failing this test, test, arguing that its disproportionate racial impact violated the Due Process Clause of the Fifth Amendment. Issue: Whether a Federal test, which has a racially disproportionate impact on blacks, violates the Du e Process Clause of the Fifth Amendment. Ruling/Rationale: No. “Though the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the Government from invidious discrimination, it does not follow that that a law or other official act is unconstitutional uncon stitutional solely because it has a racially disproportionate impact regardless of whether it it reflects a racially discriminatory purpose.” “[R]espondents…could no more ascribe their failure to pass the test to denial of equal protection than could whites who also failed.”
48
Prior to the board of supervisors, the board of fire wardens and health officers were in charge of determining the safety of the t he businesses.
51
--The Court of Appeals erred when judging this case ca se on the merits of Griggs v. Duke Power Co. (1971) 49 and Title VII of the Civil Rights Acts of 1964 — although although respondents would have lost under un der these tests too. This is not a “disparate impact” case because be cause it does not involve the Civil Rights Acts of 1964. See also McClesky v. Kemp, 481 U.S. 279 (1987) (declining to reverse a death sentence despite the findings of the Baldus Study); Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) (upholding a law benefiting veterans even though it disproportionately affected women in a negative way).
Po well, J.). --Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. (1977) (per Powell, Facts: In 1971, Metropolitan Housing Development Corporation (MHDC) applied to the Village of Arlington Heights, IL, for a rezoning order that would change a 15-acre 15-acre area from a “single“sin gle-family” family” to a “multi“multi-family” classification. MHDC planned to build 190 townhomes for low-to-moderate-income tenants. Arlington Heights denied the application. application. MHDC then sued claiming the restrictive restrictive zoning th ordinances violated their 14 Amendment rights. Issue: Whether a zoning ordinance which, in practice, results in a racially disproportionate impact violates the Fourteenth Amendment. Ruling/Rationale: No. State action will not be held hel d unconstitutional solely because it results in a racially disproportionate impact. Washington v. Davis (1976). Legislators make their decisions in in light of many separate interests and considerations. considerations. Accordingly, it is very difficult to determine the motive or dominant purpose for passing a law. For this reason the Court will not review the merits of legislative legislative decisions absent a showing of arbitrariness or irrationality. When there is proof of a discriminatory purpose, however, judicial deference is no longer justified. “Absent a pattern as stark as that in Yick Wo, impact alone is not determinative, and the Court must look to other evidence.”
i i . D i spr spr opor tionate tionate g ende nder i mpact. ct. --Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) (per Stewart, J.). Facts: Massachusetts passed a statute, which gives hiring preference to veterans ov er non-veterans. Respondent, who is not a veteran, had passed a number of open competitive civil service examinations for better jobs over a 12-year period, but was ranked in each instance below male veterans who had achieved lower test scores than than her. Under the statute, all veterans veterans who qualify for state state civil service positions must be considered for appointment ahead of any qualifying nonveterans. Respondent brought an action in Federal District Court, alleging that the absolute preference formula established in the Massachusetts statute inevitably operates to exclude women from consideration for the best state civil service jobs, and thus discriminates against against women in violation of the Equal Protection Clause of the Fourteenth Amendment. The lower courts ruled in favor favor of respondent. On an earlier appeal this case was remanded to the lower court to decide this case in light of the precedent set in reaffirmed its own judgment saying the results results were too Washington v. Davis. The lower court reaffirmed inevitable to be unintentional. Issue: Whether a law — which which is neutral on its face but, in practice, adversely affects women — violates violates the Fourteenth Amendment Equal Protection Clause per se. Ruling/Rationale: No. The process to be used when dealing with a facially neutral law, but is challenged due to its effects is twofold. It must be determined whether (1) the statutory classification classification is indeed neutral, and (2) whether the adverse ad verse effect reflects invidious gender discrimination.50 Moreover, when dealing with gender discrimination, the government must show it has an important interest to be served, and the law is substantially related to that interest.
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The standards set by the Civil Rights Acts of 1964 gives far less leeway to employers than does the Constitution. Since this law, on its face, does not appear to be racially motivated, it would be unfair to institute this more probing judicial review. 50 For this second inquiry, the impact of the law is a good starting point, but purposeful discrimination is the condition that offends the Constitution.
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--Respondent concedes the law passes step 1. The law passes step 2 because the line drawn is not between men/women; it is between veterans/nonveterans. This law would adversely affect nonveteran males equally to nonveteran females. Accordingly, there is no proof of invidious gender discrimination. “When the totality of legislative actions establishing and extend ing the Massachusetts veterans’ preference are considered, the law remains what it purports to be: a preference for veterans of either sex over nonveterans of either sex, not for men over women.”
3. R everse raci raci al di scri scri minat ination. ion. --The competing views: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved in Community Schools v. Seattle School District No. 1 (2007) (per Roberts, C.J.). “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply appl y the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” discrimi nation.” Schuette v. BAMN (2014) (2014) (Sotomayor, J., dissenting).
i . Unsure nsur e on the standa standarr d of re r evie view. — In In 1977, Congress passed a law requiring 10% of federal funds for local public --Fullilove v. Klutznick , (1980) — works projects to be used to procure p rocure services or supplies from businesses owned by minority group members. Co ngress’ powers to enact Held: This does not violate the 5th or 14th Amendment (since it would be in Congress’ this legislation under Amend. 14 § 5, it also falls within Congress’ spending spending powers). Intermediate Scrutiny used. — In In 1983, the city of Richmond, Va., required companies awarded with --Richmond v. J.A. Croson, Co. (1989) — city construction contracts to subcontract 30% of their business to minority business enterprises. Held: This violates the 14th Amendment. Using past discrimination does not justify a racial “quota.” Strict Scrutiny used. (1990) — — Challenged Challenged the constitutionality of two minority preference policies --Metro Broadcasting, Inc. v. FCC (1990) of the FCC. Under the first policy, minority applicants applying for broadcast licenses were given preference if all other relevant factors were roughly equal. The second policy, known as the “distress sale,” allowed broadcasters in danger of losing their licenses to sell their stations stations to minority buyers before the FCC formally ruled on the viability of the troubled stations. Held: These provisions do not violate the 5th Amendment. Intermediate Scrutiny used.
ii. “ All r acial cial cla classi ssi fica fi catti ons imp imposed sed by what hatever fed feder al, sta state, or loca locall gov governme rnmenta ntal acto ctor, must be analyzed by a reviewing court under strict scrutiny.”
-- Adarand Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (per O’Connor, J.). Facts: In 1989, a division of the United States Department of Transportation — the the Central Federal Lands Highway Division (CFLHD) — — awarded awarded a prime contract for a highway construction project in Colorado to a private company: Mountain Gravel & Construction Company. The prime contract contained a provision that guaranteed Mountain Gravel would receive extra compensation if their subcontractors were small businesses ran by “socially and economically econo mically disadvantaged individuals.”51 Mountain Gravel then sought to hire a subcontractor to complete the guardrail guardrail portion of the project. project. Adarand Constructors and Gonzales Construction Co. each placed bids for the subcontract (Adarand’s was the lower of the two). Being that Gonzalez Const. Const. Co. was classified as a business ran by “socially and an d economically disadvantaged individuals,” and Adarand was not, Mountain Gravel hired Gonzalez
51
These businesses are classified as “disadvantaged” by the Small Business Administratio n, in part, if they are ran by “Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged…”
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Construction Co. despite Adarand’s lower bid. Adarand claimed the laws set forth by the Small Business Administration discriminate on the basis of race in violation of the Fifth Amendment. Issue: (1) Whether these provisions should be reviewed under the “intermediate scrutiny” standard as seen in Fullilove v. Klutznick (1980) and Metro Broadcasting, Inc. v. FCC (1990). (2) Whether these provisions of the Small Business Act, which encourage en courage contractors to hire subcontractors on the basis of race, violate the Fifth Amendment’s Due Process Clause. Ruling/Rationale: (1) No. Metro Broadcasting is overturned. In Richmond v. J.A. Croson Co. (1989) the Court held the Fourteenth Amendment requires strict scrutiny of all race -based action by state and local l ocal governments. This standard is now applied to the Federal Government through through the Fifth Amendment as well. --Through Croson, the Court had established three general propositions with respect to governmental racial classifications. (1) First, skepticism: “Any preference based on racial or ethnic criteria must must necessarily receive a most searching examination,” Wygant v. Jackson 267, 273 – 74 74 v. Jackson Bd. of Ed., 476 U.S. 267, 273 (1986). (2) Second, consistency: “[T]he standard standard of review under the Equal Protection Clause is not dependent on the race of those those burdened or benefited by a particular classification,” Croson (1989). And (3) third, congruence: “Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment,” Bolling v. Sharpe, 347 U.S. 497 (1954). --Taken together, these propositions lead to the conclusion that any person, of whatever race, has the right to demand that any an y governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny. (2) Not Answered. Remanded to the lower courts to decide the outcome consistent con sistent with this decision. Stevens, J., dissenting: “The Court’s concept of ‘consistency’ assumes that there is no significant difference between a decision by b y the majority to impose a special burden on o n the members of a minority race and a decision by the majority to provide a benefit to certain members me mbers of that minority notwithstanding notwithstanding its incidental burden on some members of the majority. In my opinion that assumption is untenable. There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system s ystem and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite opposite impulse: a desire to foster equality in society.” --“The --“The consistency that the Court espouses would disregard the difference between a ‘No Trespassing’ sign and a welcome mat.” --“[A]s --“[A]s the law currently stands, the Court will apply ‘intermediate scrutiny’ to cases of invidious gender discrimination and ‘strict scrutiny’ to cases of invidious race discrimination, while applying the same standard for benign classifications as for invidious ones. If this remains the law, then today’s lecture about ‘consistency’ ‘consistenc y’ will produce the anomalous result that the Government can more easily enact affirmative-action programs to remed y discrimination against women than it can enact affirmative-action programs to remedy discrimination against African Americans — even even though the primary purpose of the Equal Protection Clause was to end discrimination against the former slaves. When a court becomes preoccupied with abstract standards, it risks sacrificing sacrificing common sense at the altar of formal consistency.” (emphasis added). See also Johnson v. California, 543 U.S. 499 (2005) (using strict scrutiny to gauge a policy of segregating prisoners based on their race).
i i i . T he app applica li cation tion of of the strict stri ct scrutiny scrutiny stand standard. ard. --Gratz v. Bollinger , 539 U.S. 244 (2003) (per Rehnquist, C.J.). Facts: The University of Michigan used a “points” system when determining whether or not to admit and undergraduate to their university. university. It was based on a 150-point scale — the the higher the better. A score
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between 100 – 150 150 generally meant acceptance. If an applicant was a member of an underrepresented racial or ethnic minority group, they were allotted an automatic 20 points — while while a perfect SAT score was worth 12 points. Gratz was denied admission into into Michigan’s undergraduate program program and th subsequently sued, arguing that Michigan’s admissions Michigan’s admissions policies violate the 14 Amendment. Issue: Whether the University of Michigan’s use of racial preference in admitting undergraduates violated the Equal Protection Clause of the Fourteenth Amendment. Ruling/Rationale: Yes. Yes. “It is by now well established that ‘all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized.’” Adarand Constructors, Inc. v. Pena, v. Pena, 515 U. S. 200, 224 200, 224 (1995). This “standard of review…is not dependent on the race of those burdened or benefited by a particular classification.” Thus, “any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution Co nstitution justify any racial classification subjecting that person to unequal treatment under the strictest of judicial scrutiny.” Id. --“To --“To withstand our strict scrutiny analysis, respondents must demonstrate that the University’s use of race in its cur rent rent admissions program employs ‘narrowly tailored measures that further compelling governmental interests.’” Id. at 227. Because “[r]acial classifications classifications are simply too pernicious pernicious to permit any but the most exact connection between justification and classification,” classification,” Fullilove v. Klutznick, 448 U. S. 448, 537 (1980) (Stevens, J., dissenting), our review of whether such requirements have been met must entail “‘a most searching examination.’” Adarand , supra, at 223. --“We --“We find that the University’s University’s policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee guarantee admission, to every single ‘underrepresented minority’ applicant minority’ applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program.”
--Grutter v. Bollinger , 539 U.S. 306 (2003) (per O’Connor, J.). Facts: Michigan Law School considers “diversity” in an applicant when they apply to their law school in a way which, they believed, comported with the precedent set in Bakke. They took into account an applicant’s GPA, LSAT, and other common application factors. They also, however, took into account what they called “soft variables.” Essentially, these where the factors they believed would further further pursue the compelling State interest seen in Bakke. Grutter was denied admission to Michigan Law and subsequently sued alleging , inter alia, that their admissions policy used race as a predominant factor and this, accordingly, violated her 14th Amendment rights. Issue: Whether Michigan Law School’s use of “soft variables” in their admissions policy violates the Fourteenth Amendment. Ruling/Rationale: No. Ruling/Rationale: No. “The Law School’s School’s narrowly tailored use of race in admissions a dmissions decisions to further a compelling interest in obtaining the educational b enefits that flow from a diverse student body is not prohibited by the Equal Protection Clause.” --The State must show that this race-conscious admissions policy is narrowly tailored to further a compelling governmental interest. Compelling state interest? Yes. The Court has long recognized that ensuring racial diversity is a substantial government interest. See Brown v. Board (1954). Narrowly “sufficiently considered tailored? Yes. By using race are merely a “plus” factor, the school has “sufficiently workable race-neutral race-neutral alternatives.” --The school is allowed to use race as a factor, but not the factor in order to reach its “critical mass” necessary to create a diverse student body. Is the “critical mass” rationale just a guise for using a “quo ta?”
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C . G ende nder di di scrim scri mi nation nation.. --Unlike racial classifications, gender classifications must meet intermediate scrutiny — which which requires the government to show an “exceedingly “exceedingl y persuasive justification” for its classification. United States v. Virginia, 518 U.S. 515 (1996). This is likely because there is a reasonable argument that women are better able to protect themselves through the political process and their gender affects their ability to contribute to society in some ways. Id. (noting that the “[p]hysical differences between men and women…are enduring.”).
1. Unsure nsur e on the the standa standarr d of re r evie view. -- Frontiero Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion). Facts: A married woman Air Force officer (appellant) sought increased benefits for her h usband as a “dependent” under federal law. The laws provide — solely solely for administrative convenience — that that spouses of female members are not dependents unless un less they are in fact, dependent depend ent for over one-half of their support. When her application was denied for failure to satisfy satisfy the statutory dependency standard, appellant and her husband brought this suit claiming these laws violated her due process und er the Fifth Amendment. Issue: Whether a statute, which has different qualification criteria for women than does men , violates the Fifth Amendment. Ruling/Rationale: Yes. The Court held that the statute in question clearly commanded “dissimilar treatment for men and women who are similarly situated,” violating the Due Process Clause. The Court also applied strict scrutiny review to the sex- based classification, the Court found that the government’s interest in administrative administrative convenience could not justify discriminatory discriminatory practices. The Court held that statutes that drew lines between the sexes on those grounds alone necessarily involved the “very kind of arbitrary legislative choice forbidden by the Constitution.”
2 . “[C]lassifications by gender must serve important government objectives and must be substantially related to achievement of those objectives.”
--Craig v. Boren, 429 U.S. 190 (1976) (per Brennan, J.). Facts: An Oklahoma statute allowed for women to t o drink “nonintoxicating” (3.2%) (3.2%) beer once they reached the age of 18, but did not allow for men to drink these beverages until they turned 21.52 Curtis Craig and a local vendor vendo r brought suit challenging the constitutionality of this law. Issue: Whether a statute, which sets different standards for men and women between the ages of 18 – 20, 20, violates the Fourteenth Amendment Due Process Clause. C lause. Ruling/Rationale: Yes. “To withstand constitutional challenge, previous cases establish that classifications by gender must serve important government objectives and must be substantially related to achievement of those objectives.” Here, the state has a sufficient interest in enhancing traffic safety (preventing young men from drinking and driving). This law, however, is not substantially related to achieving this interest. The only evidence produced by the State shows that that men are less than 2% more likely to be arrested arrested for drinking and driving than women. This is too tenuous a correlation to pass intermediate scrutiny. men-only policy See also United States v. Virginia, 518 U.S. 515 (1996) (striking down VMI’s men-only because the State did not present an “exceedingly persuasive justification” for the exclusion).
52
The State argued that men weren’t mature enough to drink at 18 and would be more likely to drink and drive.
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3. R everse sex sex discrim iscri minat inati on. J.). --Mississippi --Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) (per O’Connor, J.). Facts: In 1884, the Mississippi legislature created the Mississippi Industrial Institute and College for the Education of White Girls of the State of Mississippi — — now now called the Mississippi University for Women (MUW). From its inception, this school has limited its enrollment to women. In 1971, the school established a nursing nursing school. Joe Hogan (a man) was a RN, but did not hold a BSN. In 1979, Hogan applied for admission to MUW’s nursing program; program; he was denied solely on the basis of his sex. The University would allow him to audit/sit-in on classes, classes, but nothing more. Hogan sued, claiming the school violated his rights guaranteed by the Fourteenth Amendment. Issue: Whether a school system may foreclose enrollment to applicants solely on the basis of sex. Ruling/Rationale: No. “[T]he party seeking to uphold upho ld a statute that classifies individuals on the basis of their gender must carry the burden of showing sho wing an ‘exceedingly persuasive justification’ for the classification.” “The test must be applied free of fixed notions concerning the roles and abilities of males and females.” Must pass intermediate scrutiny, and be free of o f gender-based stereotypes. --“The --“The singlesingle-sex admissions policy of MUW’s School of Nursing cannot be justified on the asserted ground that it compensates for discrimination against women and, therefore, constitutes educational affirmative action. A State can evoke a compensatory purpose to justify an otherwise discriminatory discriminatory classification only if members of the gender benefited by b y the classification actually suffer a disadvantage related to the classification.” A State may classify women in a compensatory manner, but that classification must be shown to actually benefit those women (i.e., be substantially related to an important government interest). Accordingly, since women have no problem obtaining nursing degrees53 they should not have to be classified on the basis of their gender. gend er. The State, rather than compensating for discriminatory barriers faced by women , perpetuates the stereotype that nursing is a profession solely for women. Moreover, since the school allows for males to audit classes it can’t be thought that keeping males out of the classroom is an important governmental gov ernmental interest. --The State argues that Title IX § 901(a)(5) “grandfathered” schools that have traditionally allowed o nly one-sex admission policies54 — being that Congress has the power to enforce, by appropriate legislation, th the provisions of the 14 Amendment under § 5. The Court held: Congress’ power Congress’ power under § 5 “is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees.” Katzenbach v. Morgan (1966).
D. Alienage. --As a general rule, laws that classify based on alienage are subject to strict scrutiny. Graham v. Richardson, 403 U.S. 365 (1971). There are, however, three broad exceptions to this rule: (1) laws passed by the federal government concerning alienage are subject only to rational basis review because Congress Co ngress has plenary powers over naturalization and immigration, Mathews v. Diaz , 426 U.S. 67 (1976); see also Art. I, § 8, cl. 4; (2) alienage classifications related to self-governance and the democratic proc ess are only subject to rational basis review, Ambach v. Norwick , 441 U.S. 68 (1979); and (3) laws targeting undocumented aliens might be subject to intermediate scrutiny, cf. Plyler v. Doe, 457 U.S. 202 (1982).55 --Additionally, --Additionally, because the federal government completely co mpletely “occupies the field” of immigration, state alienage laws are often challenged on preemption grounds g rounds as well. See, e.g., DeCanas v. Bica, 424 U.S. 351 (1976); Nyquist v. Mauclet , 432 U.S. 1 (1977).
53
94% of all BSNs in Mississippi were obtained by women in 1970 —one year before MUW’s MUW’s nursing program was founded. § 901(a)(5) provides an exception to §901(a) for any schools “that traditionall y and continually from [their] establishment [ have] had a policy of admitting only students of one sex.” 55 it is unclear unclear whether it applies to “undocumented immigrants” as a class, or whether it is fact-specific. fact-specific. Plyler is a cryptic decision — it 54
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1. Stri Str i ct scrutiny scrutiny as as a g ener ner al r ule. ule. --Graham v. Richardson, 403 U.S. 365 (1971) (per Blackmun, J.). Facts: Arizona had a statute that read: “No “ No person shall be entitled to general assistance who assistance who does not meet…the following requirements: [1] [i]s [i] s a citizen of the United States, or [2] has resided in the United States a total of fifteen years…” Carmen Richardson was a lawfully admitted resident alien, but had only been residing in the country co untry for 13 years — this this was the only reason she was denied government th assistance. She challenged this law on 14 Amendment grounds. Issue: Whether a law that conditions welfare benefits upon a person’s citizenship or time in the country violates the Equal Protection Clause. Ruling/Rationale: Yes. “[C]lassifications “[C]lassifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a ‘discrete and insular’ minority for whom such heightened judicial solicitude is appropriate.” The State’s sole interest is to conserve conserve the fisc. However, “a concern for fiscal integrity” has never been a “compelling” interest. Accordingly, this law violates the Equal Protection Clause. See also In re Griffiths, 413 U.S. 717 (1973) (invalidating a Connecticut law that excluded aliens from becoming attorneys); Sugarman v. Dougall , 413 U.S. 634 (1973) (striking down a law that prevented aliens from holding civil service jobs); but see Perkins v. Smith, 426 U.S. 913 (1976) (upholding a law that prevented aliens from serving on juries).
2. The gov governme rnmenta ntal funct functi ons excep xcepti on. --Ambach v. Norwick , 441 U.S. 68 (1979) (per Powell, J.). Facts: A New York State statute forbade the permanent p ermanent certification of any public school teacher if they were not U.S. citizens. Issue: Whether a statute that forbids the employment of schoolteachers on the basis of their citizenship violates the 14th Amendment. Ruling/Rationale: No. “A New York statute forbidding permanent c ertification ertification as a public school teacher of any person who is not a United States citizen unless that person p erson has manifested an intention to apply for citizenship does not violate the Equal Protection Clause of the Fourteenth Amendment.” --“As --“As a general principle, some state functions are so bound up with the operation of the State as a governmental entity as to permit exclusion from those functions of o f all persons who have not become be come part of the process of self-government. Accordingly, a State is required to justify its exclusion of aliens from such governmental positions only ‘by a showing sho wing of some rational relationship between the interest sought to be protected and the limiting classification.’” --“This --“This rule for governmental functions, which which is an exception to the stricter general standard applicable to classifications based based on alienage, rests on important principles inherent in the Constitution. Constitution. The distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State, and the references to such distinction in the Constitution itself indicate that the status of citizenship was meant to have significance in the structure of our government. It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens.” See also Foley v. Connelie, 435 U.S. 291 (1978) (upholding a statute that limited the New York ’s police force to U.S. citizens because the government had a legitimate interest in “confin[ing] the performance of this important public responsibility responsibility to citizens of the United States.”).
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3. The fed feder al gov governme rnment excep xcepti on. --Mathews v. Diaz , 426 U.S. 67 (1976) (per Stevens, J.). Facts: Congress passed 42 U.S.C. § 1395o(2)(b), which denies aliens eligibility to the Medicare supplemental medical insurance program unless they have been b een admitted for permanent residence and also have resided in the United States for at least five years. Diaz filed a class action suit in the District Court attacking the constitutionality of §1395o(2)(b). Issue: Whether Congress may make an alien’s eligibility for a federal med ical insurance program program contingent upon a continuous residence in the U.S. for a five-year period and admission for permanent residence consistent with the Fifth Amendment. Ruling/Rationale: Yes. “Congress— which which has broad power over immigration and naturalization and regularly makes rules regarding aliens that would be unacceptable if applied to citizens c itizens — — has has no constitutional duty to provide all aliens with the welfare bene fits provided to citizens; the real question here is not whether discrimination between aliens and citizens is permissible, as it clearly is, but whether the statutory discrimination within the class of aliens is permissible.” Aliens and citizens do not necessarily have equal rights under the Constitution. Accordingly, the classifying of “aliens” and “citizens” is not constitutionally con stitutionally suspicious. --“Any --“Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should only be adopted with the greatest caution.” --Fourteenth Amendment and Fifth Amendment issues of alienage are not interchangeable. As far far as the States are concerned, as U.S. citizen of a different state is on equal footing with a citizen of a different country. But see Hampton v. Wong , 426 U.S. 88 (1976) (striking down a federal civil service regulation because it was passed by an administrative agency rather than Congress or the Executive).
4. Undocume ndocumente nted d alie ali ens. -- Plyler Plyler v. Doe, 457 U.S. 202 (1982) (per Brennan, J.). Facts: In 1975, the Texas legislature revised its education laws to withhold from local school districts any State funds for the education of children not “legally admitted” into the United States. The revision to the law also allowed local school districts to deny enrollment in their public schools to children not legally admitted into the country. Issue: Whether a State may deny illegal alien children the public education it provides for citizens of the United States. Ruling/Rationale: No. The Fourteenth Amendment provides that “No State shall…deprive any person of life, liberty, or property, without due process of law; nor den y to any person within its jurisdiction the equal protection of the laws.” Regardless of how any alien came to be within a State’s perimeter, it could not negate the fact that they are still a person within its jurisdiction. jurisdiction. Accordingly, since he is subject to the full penalty of the laws of the State while he is there, he is entitled to the equal protection of those laws — until until he leaves voluntarily or involuntary. --Normally, laws concerning illegal aliens are analyzed under rational basis review, in accordance with scrutiny — which which the law Ambach v. Norwick (1979). In this case, however, the Court used intermediate scrutiny did not pass. In other words, the law is not substantially related to any important governmental interest. Unique to Plyler . Texas claimed the law was implemented in order to “preserv[e] the state's limited resources for the education of its lawful residents.” “While the State might have an interest in mitigating potentially harsh economic effects from an influx of illegal immigrants, immigrants, the Texas statute does not offer an effective method of dealing with the problem. … The record does not show that exclusion of undocumented children is likely to improve the overall quality of education in the State.”
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E . C lassi lassi fi cations cations ba based sed on sexual sexual or or i entation. ntation. --Romer v. Evans, 517 U.S. 620 (1996) (per Kennedy, J.). Facts: The cities of Aspen, Boulder, and Denver had passed laws that sought to protected people who were discriminated against on the basis of their sexual orientation. Subsequently, Colorado, through a referendum, amended its State Constitution to provide that n o public body in Colorado may adopt or enforce any law that would give protected status to anyone with “homosexual, lesbian, or bisexual orientation.” Several aggrieved homosexuals and Colorado municipalities filed suit to enjoin the Amendment on the grounds that it violated the Fourteenth Amendment Equal Protection P rotection Clause. Issue: Whether Colorado’s “Amendment 2” violates the Fourteenth Amend ment Equal Equal Protection Clause. Ruling/Rationale: Yes. “Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything an ything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.” --“In --“In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal protection…the Court has stated that it will uphold a law that neither burdens a fundamental right right nor targets a suspect class so long as the legislative le gislative classification bears a rational relation to some independent and legitimate legislative end. Amendment 2 fails, indeed defies, defies, even this conventional inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single trait trait and then denying them the possibility of protection across the board. This disqualification of a class of persons from the right to obtain specific protection from from the law is unprecedented and is itself a denial of equal protection in the most literal literal sense. Second, the sheer breadth of Amendment 2, which makes a general announcement that gays ga ys and lesbians shall not have any an y particular protections from the law, is so 56 far removed from the reasons offered for it …that the amendment cannot be explained by reference to those reasons; the amendment raises the inevitable inference that it is born of animosity toward the class that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” The entire purpose of this amendment ame ndment is to deny to homosexuals equal protection of the law. law. Therefore, how could the Equal Protection Clause ever be thought to allow this — even even under a rational basis review? --“Amendment --“Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of o f public and private transactions.”
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Respect for other citizens’ freedom of association, particularly landlords or employers wh o have personal or religious objections object ions to homosexuality, and the State’s interest in conserving resources to fight discrimination against other groups.
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VI. Fundamental Rights & Substantive Due Process.
--On occasion, the Supreme Court has held that some (unenumerated) rights are so important and self-evident that they should be deemed “fundamental,” and any law that th at restricts these rights must run the gamut of strict scrutiny. The Court has declared the following following rights to be fundamental: (1) family autonomy;57 (2) sexual autonomy, i.e., procreation and private sex acts;58 (3) the right to marriage;59 (4) the right to travel; 60 (5) voting;61 (6) medical decision making;62 and (7) access to the courts.
A. The ri ght to marr y. --Loving v. Virginia, 388 U.S. 1 (1967) (per Warren, C.J.). Facts: As of the mid-twentieth century, Virginia was one of sixteen States that prohibited mixed-race marriages.63 In 1958, two Virginia Virginia residents — — Richard Richard Loving (a white man) and Mildred Jeter (a black woman) — — were were married in the District District of Columbia. Upon their return to Virginia, Virginia, they were indicted with violating Virginia’s anti-miscegenation anti -miscegenation laws. The Lovings pleaded guilty guilty to the charges and were sentenced to one year in jail. The trial judge, however, suspended suspended the sentence for a period of twentytwentyfive years on condition that the Lovings would leave the state and not no t return for those twenty-five 64 years. The Lovings relocated to D.C. and challenged challenged the validity of their sentences sentences on Fourteenth Amendment grounds. Issue: (1) Whether Virginia’s anti-miscegenation laws violate the Due Process Clause of the Fourteenth Amendment. (2) Whether Virginia’s anti-miscegenation anti-miscegenation laws violate the Equal Protection Clause of the Fourteenth Amendment. Ruling/Rationale: (1) Yes. “There can be no doubt that restricting restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal P rotection Clause.” --In upholding the constitutionality of these laws in a pervious de cision, the Virginia Supreme Court found the State’s legitimate purposes were to “preserve the racial inte grity of its citizens,” to prevent “the corruption of blood,” to prevent “a mongrel breed of citizens,” and to prevent “the obliteration of racial pride.” These purported state interests interests are clearly the product product of racism and the ill-conceived theory of White Supremacy. And while the State is correct in asserting that marriage has traditionally been within the police powers of the States, those powers are subject to the limits limits prescribed by the Fourteenth Amendment. In responding to the requirements of the Fourteenth Amendment, the State argues that its law does do es not deprive any citizens of equal protection of the laws because this law applies with full effect to all
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Moore v. City of East Cleveland , 431 U.S. 494 (1977) (finding a zoning ordinance that prohibited a grandmother from living with her grandchild to be unconstitutional). unconstitutional). This includes the right right to the custody of one’s children. children. See Michael H. v. Gerald D. , 491 U.S. 110 (1989). 58 Eisenstadt v. Baird , 405 U.S. 438 (1972) (finding that a law prohibiting distribution of contraceptives to unmarried individuals violated the 14th Amendment); Skinner v. Oklahoma , 316 U.S. 535 (1942) (finding Oklahoma’s “compulsory sterilization” statute unconstitutional under the Equal Protection Clause). 59 Loving v. Virginia , 388 U.S. 1 (1967); Obergefell v. Hodges , 576 U.S. ___ (2015). 60 Shapiro v. Thompson , 394 U.S. 618 (1969) (holding that residency requirements for receipt of welfare benefits violate the right t o travel under the 14th Amendment). 61 Harper v. Virginia State Bd. of Elections , 383 U.S. 663 (1966) (holding that poll taxes in state and local elections violate the Equal Protection Clause of the 14 th Amendment). Amendment). The 24th Amendment makes polls taxes illegal in federal elections. 62 Cruzan v. Director, Missouri Dept. of Health , 497 U.S. 261 (1990) (finding that competent adults have a 14th Amendment right to refuse medical treatment); but see Washington v. Glucksberg , 521 U.S. 702 (1997) (refusing to recognize a constitutional right to assisted suicide). 63 Virginia’s ban was the product of the Racial Integrity Act of 1924. 64 In an opinion, the trial judge stated that: “Almighty God created the races white, black, yellow, malay and red, and he placed placed them on separate continents. And but for the i nterference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend the races to mix.”
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races — i.e. i.e., a white man and a black man would be punished equally if they entered into a interracial marriage. This argument is not going to fly. When a state imposes an invidious racial classification classification — as as it has done here —it faced a “very heavy burden of justification” for its laws. See, e.g., Korematsu v. discrimination which justifies this this U.S. (1944). There is no “overriding purpose of invidious racial discrimination 65 classification.” (2) Yes. “These statutes…deprive the Lovings of liberty without due proc ess of law in violation of the Due Process Clause Clause of the Fourteenth Amendment.” --“The --“The freedom to marry has long been b een recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” And “[u]nder our Constitution, the the freedom to marry, or not to marry, a person person of another race resides with the individual and cannot be infringed infringed by the State.” In other words, there is a fundamental right to marry, and once the State intrudes upon this right any of its laws will be subject to the “most rigid scrutiny.” --Zablocki v. Redhail , 434 U.S. 378 (1978) (per Marshall, J.). Facts: In the 1970s, the State of o f Wisconsin had a statute that required any an y resident who failed to make child support payments to seek government approval before they would be issued a marriage license. The statute required the marriage applicant to not no t be in arrears on his child support payments and the State had to be confident that the noncustodial child would not become a public charge. If either of these conditions were not met, the State State could deny the applicant’s app licant’s marriage license. In 1974, Roger Redhail was denied a marriage license due to his $3,700 in child payment arrears; and even if Redhail had made the payments his license application would still have been revoked for fear that his child would become a public charge.66 After his denial, Redhail challenged the state law on Fourteenth Amendment grounds. Issue: Whether a law may condition marriage upon making required child support payments or upon the assurance that the applicant’s applicant’s child will not become a public charge. Ruling/Rationale: No. To start, since this law is attempting to intrude upon the fundamental right to marriage, it cannot be upheld unless “it is supported by sufficiently important state interests and is closely tailored to effectuate only those state interests.”67 Under this rubric, rubric, the state proposes two governmental interests: (1) the permission-to-marry procedure furnishes the State with an opportunity to counsel the applicant on the importance of making his required child support suppo rt payments; and (2) the welfare of the out-of-custody child(ren) is protected. These are, no doubt, substantial state state interests. The next question, therefore, is whether whether the challenged law is sufficiently sufficiently tailored to further further these state interests. The State already has numerous mechanisms in place for dealing with child welfare and for collecting child support payments that do not impinge upon fundamental rights — e.g. e.g., wage assignments, civil contempt proceedings, criminal penalties, other governmental assistance, etc. There is also a suggestion that the challenged law helps to ensure child-support payments by disallowing certain marriage applicants from entering into new support obligations: if this is the case, then the challenged law is both wholly over- and underinclusive. It is underinclusive since since it does not limit any new financial commitments other than those the applicant would incur from entering into a marriage. It is overinclusive given the fact that entering into this new marriage could provide provide the applicant with a new stream of income from his spouse that would allow him to make his child support payments. “The statutory classification…thus cannot be justified by the interests advanced in sup port of it.”
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The way Chief Justice Warren writes this opinion may suggest that, although this law was being subject to something along the lines of strict scrutiny, it would fail any form of judicial review for failing to state any “legitimate…purpose.” 66 Mr. Redhail had this child three years prior, out of wedlock, while he was still in high school. When his marriage license was denied, Redhail was indigent, unemployed, and had paid none of his monthly child payments. 67 Justice Marshall goes into the history o f how the Court has li onized marriage in many previous cases (See, e.g., Maynard v. Hill (1888); Meyer v. Neb. (1923); Skinner v. Oklahoma (1942)); he then goes into the modern interpretation of marriage as a fundamental right under the Fourteenth Amendment ( See, e.g., Griswold v. Connecticut (1965); Loving v. Virginia (1967)).
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--“The --“The woman woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child or to bring the child into life to suffer the myriad social, if not econ omic, disabilities that the status of illegitimacy brings.” --Obergefell v. Hodges, 576 U.S. ___ (2015) (per Kennedy, J.). Facts: The States of Michigan, Ohio, Tennessee, and Kentucky all defined marriage as that between “one man and one woman”— either either by statute or constitutional amendment — — thereby thereby denying same-sex couples the ability to marry. Fourteen same-sex couples from these States filed suit alleging these restrictions violate the Fourteenth Amendment Due Process Clause and Equal Protection Clause. Issue: (1) Whether the Fourteenth Amendment requires the States S tates to license a marriage between two people of the same sex. (2) Whether the Fourteenth Amendment requires a State to recognize a same-sex same -sex marriage licensed and performed in a State which does grant that right. Ruling/Rationale: (1) Yes. Laws banning same-sex marriage violate both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment. --“The --“The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of mar riage riage is one of both continuity and change.” Even for opposite-sex couples, marriage has endured stark changes since its inception — women women are no longer chattel, anti-miscegenation laws are no more, the man is not necessarily the bread winner, etc. “These new insights have strengthened, not weakened, the institution of marriage.” “[C]hanged understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.” --“[Our] --“[Our] analysis compels the conclusion that samesame-sex couples may exercise the right to marry.” Four principles guide this analysis: (1) “[T]he right right to personal choice regarding marriage is inherent in the concept of individual autonomy.” (2) “[T]he right to marry is fundamental because it supports a twotwo person union unlike any other in its importance to the committed individuals.” “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” other.” (3) “[I]t safeguards children and families families and thus draws meaning from related rights of childrearing, procreation, and education.” “Excluding same-sex same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, stability, and predictability mar riage riage offers, their children suffer the stigma of knowing their families are somehow lesser.” (4) “[T]his Court’s cases and the Nation’s traditions make clear that marriage is a ke ystone of our social order.” “Same-sex “Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. respects. It demeans gays and lesbians for the State to lock them them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest highest meaning.” meaning.” “The limitation of marriage to opposite-sex opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.” --“The --“The right of same-sex same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty liberty and rights secured secured by equal protection may rest on different precepts and are not always alwa ys coextensive, yet in some instances each may ma y be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the
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essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.” *“These considerations lead to the conclusion con clusion that the right to marry is a fundamental right inherent inh erent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex same-sex may not be deprived of that right right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty liberty be denied to them. Baker v. Nelson v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex opposite-sex couples.” (2) Yes. “The Court, in this decision, holds same-sex same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold — and and it now does hold — that that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex same-sex character.” Roberts, C.J., dissenting: This case represents an unfortunate return to the Lochner rationale. Rather than creating fundamental rights based on this th is Court’s “reasoned judgment,” “[o]ur precedents have required that implied implied fundamental rights be ‘objectively, ‘objectively, deeply rooted in this Nation’s history and tradition,’ and ‘implicit ‘implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’” sacrificed.’” Glucksberg , 521 U.S. at 720 – 21. 21. The right to marry someone of the same sex does d oes not meet this standard. Scalia, J., dissenting: “[I]t is not of special importance to me what the law says sa ys about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in in fact — — and and the furthest extension one can even imagine —of the Court’s claimed power to create ‘liberties’ ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in th e Declaration of Independence and won in the Revolution of 1776: the freedom to to govern themselves.” “This is a naked judicial claim to legislative— indeed, indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” My Rationale: “The task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory discriminatory basis must be adjusted accordingly.” San Antonio Independent School 03 (1973) (Marshall, J., dissenting). District v. Rodriguez , 411 U.S. 1, 102 – 03 Moreover, as the Court has recognized, the right to marriage is “the most important relation in life” and “the foundation of the family famil y and society, without which there would be neither civilization nor progress.” Maynard v. Hill , 125 U.S. 190, 205, 211 (1888). Accordingly, many of the guaranteed rights bestowed in our Constitution are largely dep endent on the implicit right to marriage. Due to the contingency of these express rights upon a right to marriage, any government action which seeks to infringe on a person’s ability to marry will be subject to a searching form of judicial scrutiny. This is a much less objectionable rationale than creating a fundamental right of same-sex marriage out of whole cloth.
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B . T he r i ght gh t to fami fami lia li al auto autono nom my. -- Meyer Meyer v. Nebraska, 262 U.S. 390 (1923) (per McReynolds, J.). Facts: In the aftermath of World War I, several several states passed laws to stifle the German culture. At issue here is Nebraska’s Siman Act, which provided: “ No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language.” Robert Meyer was convicted under this this Act for teaching German German to his students. Issue: Whether this law violates the Due Process Clause of the 1 4th Amendment. Ruling/Rationale: Yes. Parents have a fundamental right to raise raise their children as they they see fit. The 14th Amendment prevents the State from “materially “materially to interfere[ing] with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, kn owledge, and with the power of o f parents to control the education of their [children].” The State may “do much [and] go very far…in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected.” See also Pierce v. Society of Sisters, 268 U.S. 510 (1925) (per McReynolds, J.) (striking down an Oregon law banning private school education); Stanley v. Illinois, 405 U.S. 645 (1972) (holding that parents have a right to custod y of their non-paternal children). Lawrence Tribe has called Meyer and Pierce “the two sturdiest pillars of the substantive due process temple.” Lawrence Tribe, Lawrence v. Texas: The “Fundamental Right” that Dare not Speak its Name, 117 Harv. L. Rev. 1893, 1934 (2004).
--Moore v. City of East Cleveland , 431 U.S. 494 (1977) (plurality opinion). Facts: In the early 1970s, East Cleveland, Ohio, like many cities across the country, had a city ordinance that limited the occupancy of a dwelling to a single family. family. This ordinance, however, contained a definitional section that limited a “family” to a small category o f related individuals.68 Inez Moore (plaintiff) lives in East Cleveland with her son, Dale, and her two grandsons, Dale, Jr., and John J ohn — John John is Dale’s nephew, not his son; John came to live in this residence after the death of his mother when he was one-year-old. In 1973, Moore received a notice of her violation of this statute from the city, stating that John’s occupancy in the dwelling was illegal and ordering her to comply with the ordinance. When Moore failed to remove John from the dwelling, the city filed criminal charges against Moore. At trial, Moore sought to dismiss the the charges because the ordinance was constitutionally invalid. Her motion was dismissed and she was sentenced to five days in jail and to pay at $25 fine. The sentence and fine were upheld on appeal. Issue: Whether the city ordinance violates the Due Process Clause of the Fourteenth Amendment. Ruling/Rationale: Yes. While the Court has upheld local ordinances restricting cohabitation — see, e.g., — those those cases were limited to Village of Belle Terre v. Boraas (1974); Euclid v. Amber Realty Co. (1926) — the regulation of nonfamily members. This ordinance regulates the family itself; therefore, the relationship between the challenged law and the city’s goals must be “examine[d] carefully.” The city’s objectives are: to prevent overcrowding, to minimize traffic and parking congestion, and to avoid undue burdens on the local school systems. These are legitimate goals; however, the challenged law furthers these goals minimally, at best. The ordinance does not rationally further parking congestion or traffic — it it would allow for dozens of licensed drivers to live together, but would forbid a brother and sister from living together even if they don’t drive. It does not rationally benefit the school system either — it it would allow a mother and father
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E.g., husband or wife of the head of the household, unmarried children of the head of t he household (as long as these children don’t have children of their own), father or mother of the head of the household, etc.
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with a dozen children to live together, but it would not permit a grandmother with her son and his nephew to live together. --A long line of cases, tracing their roots to cases such as Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), have acknowledged the importance of the family to the American history and tradition and have help to ensure that there is a “private realm of family life in which the state cannot enter.” “Our decisions decisions establish that the Constitution protects the sanctity of the family precisely because th e institution is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many man y of our most cherished values…” With this in mind, we cannot close our eyes to why these doctrines were developed. They were not developed to protect merely merely the nuclear family. Rather, they were developed to ensure that a stable unit for fostering fostering our history and culture culture could exist without undue governmental interference. Accordingly, since and aunt, uncle, grandmother, or cousin could help to foster fo ster this underlying purpose, these families should be afforded the same judicial scrutiny the families seen in previous cases.
C . R i ght to pri vate vate sexu sexual al autono autonom my. 1. P r i vate vate r eprod producti uctive ve autonom autonomy. y.69 --Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (per Douglas, J.). Facts: In 1935, Oklahoma passed the the Habitual Crime Sterilization Act. Act. The Act permits the State to sexually sterilize “habitual criminals”—if they commit two or more felonies involving “moral turpitude.” The determination of sterilization sterilization would be made after a jury trial. When sterilizing the criminals, men would be subject to a vasectomy, and women, a salpingectomy.70 Sec. 195 of the Act provided that “offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses, shall not come or be considered within the terms of this Act.” Act.” In other words, white-collar crimes were not punishable by sterilization. Issue: Whether a statute, that penalizes certain crimes with sexual sterilization, violates the Fourteen th Amendment Equal Protection Clause. Ruling/Rationale: Yes. Due to the fact that grand larceny is defined as feloniously stealing property that exceeds $20, and embezzlement is feloniously stealing property equal to which was embezzled — a person who steals $20 three times from a cash register would be subject to sexual sterilization, but, if the defendant worked there, it would be embezzlement; and they would not be subject to sterilization. “Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable unmistakable discrimination.” --“Marriage --“Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, exercised, may have subtle, far-reaching and devastating devastating effects. In evil or reckless reckless hands, it can cause races or types which are inimical to the dominant group to wither and and disappear. There is no redemption for the individual whom the law touches.” --“[S]trict --“[S]trict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’ laws.’ Yick Wo v. Hopkins, 118 U.S. 356 (1886). When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and
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Early on, the Supreme Court refused to acknowledge any right to proc reation or private sexual autonomy. See Buck v. Bell , 274 U.S. 200 (1927). In Buck , the Court described Carrie Buck as a “feeble“feeble-minded white woman.” In 1980, however, however, several legal scholars tracked down Carrie Buck and found out she was a woman of average intelligence. See Stephen Jay Gould, Carrie Buck’s Daughter , 2 Const. Comment. 331, 336 (1985). She was one of almost 20,000 “forced eugenic eugenic sterilizations” that had been performed in the early1900s. Id. at 332. 70 The surgical removal of the fallo pian tubes.
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sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.” Stone, C.J., concurring: “I think the real question…is not one of equal protection, but whether…such an invasion of personal liberty…satisfies the demands of due process.”
--Griswold v. Connecticut , 381 U.S. 479 (1965) (per Douglas, J.). Facts: A Connecticut statute provided that it is a crime, punishable by a fine and imprisonment of up to one year, to use “any “an y drug, medicinal article or instrument for the purpose of pr eventing conception” conception”; another statute punishes an accessory accessory as though they were a principal. principal. Appellants were the Executive Director of the Planned Parenthood League Lea gue of Connecticut (Dr. Griswold), and a licensed ph ysician at the Yale Medical School who worked for Planned Parenthood (Dr. Buxton). The appellants gave information, instruction, and medical advice to a married couple as to the means of o f preventing conception. They were charged as accessories in violating violating Connecticut law. Issue: Whether a law that seeks to prohibit a married couple from using/obtaining contraception is unconstitutional. Ruling/Rationale: Yes. “The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill Bill of Rights.” --In cases such as Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), NAACP v. Alabama (1958), and others, the Court has held h eld that there are peripheral rights not specifically enumerated in t he First Amendment, but without these peripheral rights, the enumerated rights would be far less secure. “In other words, the First Amendment has a penumbra pen umbra where privacy is protected from governmental intrusion.” In the same way that the First Amendment has penumbral rights not explicitly mentioned in the Constitution, the Bill of Rights in general has “penumbras, formed b y emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”71 Within this penumbra can be found some of the most fundamental rights in American tradition — e.g. e.g., the right to rear your child without undue governmental interference; the freedom of association; the right to marry whom you choose; and “a “ a right of privacy older than the Bill of Rights.” Goldberg, J., concurring: Emphasized, what he believed to be, the importance of the Ninth Amendment when deciding cases of unenumerated unen umerated rights: “I believe that the right of privacy privac y in the marital relation is fundamental and basic —a personal right ‘retained by the people’ within the meaning of the Ninth Amendment.” --He --He also put a heavier emphasis on the protection of family life: “The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to raise a family are of similar order and magnitude as the fundamental rights specifically protected.”
--Eisenstadt v. Baird , 405 U.S. 438 (1972) (per Brennan, J.). Facts: Under Massachusetts state law in the early 1970s, it was a crime for any non-medical professional to furnish a non-married person with contraceptives.72 After giving a lecture at Boston University, William Baird was charged under this act for exhibiting exh ibiting contraceptives and for giving a young woman a package of vaginal foam (a type of contraceptive) during the course of the lecture.
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First Amendment — — freedom freedom of association, freedom to read what you choose, symbolic expression, etc.; Third Amendment — — freedom from soldiers quartering your home; Fourth Amendment — Amendment — freedom freedom from unreasonable searches and seizures; Fifth Amendment — — freedom freedom from self-incrimination; etc. 72 The actual law allowed for a five-year five-year prison sentence for “whoever…gives away…any drug, medicine, instrument or article whatever for the prevention of conception,” unless the prescriber was a registered physician or a pharmacist acting at the behest of a registered physician. Either way no contraceptives could be given to any non-married person.
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The Massachusetts court overturned the conviction for the displaying of contraceptives on First Amendment grounds, but upheld the conviction for distributing contraceptives. On appeal, the First Circuit overturned all convictions, basing its holding on the Griswold v. Connecticut ruling. Issue: Whether a law that proscribes the distribution of contraceptives to non -married persons violates the Equal Protection Clause of the Fourteenth Amendment. Ruling/Rationale: Yes. “[W]e hold that the statute, viewed as a prohibition on contraception per se, violates the rights of single persons under the Equal Protection Clause of the Fourteenth Amendment.” --The --The State’s purported purposes for this this law were (1) to discourage extramarital sex, (2) to promote the health of its citizens by ensuring that only onl y doctors gave out medicinal products, and (3) contraception is immoral per se. The Court held that the challenged law’s discrimination between married married and unmarried persons was not rationally related to any of these state interests. fornication, bigamy, etc. The means by which which Extramarital sex. The States may punish adultery, fornication, Massachusetts chose to use here, however, will not survive constitutional scrutiny for the following reasons: (a) fornication is a misdemeanor in Massachusetts, and a state could not reasonably wish to punish a misdemeanor by forcing an unwanted child on the fornicator; (b) the state could not reasonably wish to punish the distributor of contraceptives as a felon for aiding and abetting the misdemeanor of fornication; (c) the law did not prohibit the distribution of contraceptives to unmarried persons for the purpose of preventing sexually-transmitted diseases; and (d) the law made no attempt to ensure that contraceptives legally obtained by a married person p erson for the purpose of preventing pregnancy pregnanc y would not be used in an extramarital affair. Promoting health. The Massachusetts law could not reasonably be held to promote health, as whatever health risks posed by contraceptives were just as great for married persons as unmarried persons. (In Justice White’s concurring opinion he also noted that most of these products do not pose any serious health risks to anyone — a condom condom or the “foam” seen in this case will not harm anyone regardless of who supplied them.) married and unmarried persons? Answer: because this Immorality. Then why discriminate between married law was created shortly after the Griswold decision and this law was basically a big b ig workaround to ensure that the maximum amount of people could not use contraception. --“If --“If the right of privacy means anything, an ything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
2. Pri Pr i vate non-re non-rep produc roductti ve sexua sexuall auto utonom nomy. --Lawrence v. Texas, 539 U.S. 558 (2003) (per Kennedy, J.). Facts: The State of Texas had a statute that made it a crime for two persons of the same sex to engage en gage in certain intimate sexual conduct — — essentially, essentially, an anti-sodomy law. In 1998, Houston police responded to a reported weapons disturbance in a private residence. residence. When they arrived, arrived, they entered entered the defendant’s (Lawrence) apartment to find him and another adult adu lt male engaging in a private, consensual sexual act. The police then arrested them for for committing deviant sexual behavior. The two men appealed to the Supreme Court arguing this law violates their due process rights under the Fourteenth Amendment. Issue: Whether Texas’ anti-sodomy anti-sodomy law violates the Fourteenth Amendment Due Process Clause. In other words: whether adults are free to engage in private sexual conduct in the exercise of their liberty under the Due Process Clause. Ruling/Rationale: Yes. Explicitly overturns Bowers v. Hardwick (1986). (1986). The reason the Court decided this case on due process rather than equal protection grounds is because Bowers was decided on due process grounds. If the Court were were to deem anti-sodomy laws unconstitutional unconstitutional under the Equal Protection Clause, this could raise questions as to whether laws p rohibiting certain sexual conduct between both hetero- and homosexuals would be constitutional. By doing this under the “liberty” aspect
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of the Due Process Clause, the ruling is more all encompassing. The Constitution protects from government intrusion concerning consensual sexual acts between be tween adults. --“The --“The Bowers Court’s initial substantive statement: ‘The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy...’ sodomy...’ discloses the Court's failure to appreciate the extent of the liberty at stake.” “Although the laws involved in Bowers and here purport to do no more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter up on relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.” --Mentions the fact that the Bowers opinion acknowledged that the 14th Amendment protects liberty interests concerning marriage, procreation, contraception, family relationships, child rearing, and education; yet held it does not protect private protect private sexual acts because there is no “fundamental right to engage in homosexual sodomy” in the Constitution. This fact casts the Bowers decision into even more doubt.
3. The r ight ig ht to abortion. rtion. --Roe v. Wade, 410 U.S. 113 (1973) (per Blackmun, J.). Facts: The State of Texas passed a statute which makes it a crime to “procure “procu re and abortion, [except] an abortion procured or attempted by medical advice ad vice for the purpose of saving the life of the mother.” Jane Roe (Norma McCorvey) became pregnant in 1970. She went through several unsuccessful unsuccessful attempts at an illegal abortion — false false rape claim and an illegal abortion site. She gave birth later that year. Roe then brought a class action challenging the constitutionality of the Texas criminal abortion laws. Issue: (1) Whether the case presents a justiciable case or controversy, du e to the fact that Roe was not pregnant during the District Court’s hearing. (2) Whether Texas’ criminal abortion laws are unconstitutional (i.e., whether an abortion is protected by the Constitution’s penumbral right to privacy). Ruling/Rationale: (1) Yes. Roe has standing to bring this suit. While Roe was not pregnant pregnant during the trial dates, and was not subjected to legal le gal punishment, this case still presents a suitable case or controversy. Due to the fact that the normal pregnancy term is around around 270 days, this period of time time is too short for a pregnant woman to remain pregnant through the usual appellate process. Therefore, pregnancy fulfills the “capable of repetition, yet evading review” exception to the mootness rule. (2) Yes. “The Constitution does not explicitly ex plicitly mention any right of privacy. privacy. [A] line line of decisions, however, [shows] the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” The Court has also made clear that only rights that can be deemed deemed “fundamental” or “implicit in the concept of ordered liberty” are included in this guarantee of personal privacy.” See, e.g., Loving v. Virginia (1967); Skinner v. Oklahoma (1942); Meyer v. Nebraska (1923). The issue then becomes whether a woman’s decision whether or not to terminate a pregnancy is fundamental — — which which it is. “This right to privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Founded upon the Fourteenth Amendment Due Process Clause, the Ninth Amendment, and the penumbral right to privacy found in the Bill of Rights. --While the right right of personal liberty includes includes the abortion decision, that right right is not unqualified. Since this abortion right is “fundamental,” the State must show a law forbi fo rbidding dding them is “narrowly drawn” to further a “compelling State interest.” Here, the State’s interests are (1) protecting the health of the mother and (2) protecting the the health of the unborn baby. Both are compelling.
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--In the first trimester this is not going to happen — the the baby is not viable and the mother is more likely to be hurt or killed if she takes the baby to term. In the second trimester, however, certain state laws may be narrowly tailored to further these interests — the the State may, for example, pass laws to ensure the abortion is done in a safe safe manner and that the health of the the mother is protected. But in the third trimester, the baby may very well be viable; this gives the government more leeway leewa y in passing laws concerning abortion — the the life and health of the mother, however, overrides the State’s interest in protecting the unborn baby. In short, the right to an abortion is fully constitutionally protected in the first trimester. --“To --“To summarize and to repeat: “1. A state criminal abortion abortion statute of the current Texas type, t ype, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment. “(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. “(b) For the stage subsequent to approximately to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. “(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” mother.” --Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (per O’Connor, J.). Facts: The Pennsylvania Abortion Control Act of 1982 contained 5 provisions that sought to regulate and restrict abortions. The Act required: (1) a woman seeking abortion must giver her informed consent prior to the abortion procedure; (2) she must be provided with certain information at least least 24 hours before the abortion is performed; (3) if the female is a minor, she must must obtain the informed consent of her parents (a judicial bypass clause was included); (4) if the female is married, she must sign a statement indicating that she has notified her husband of her intended abortion; and (5) the Act imposed certain reporting requirements on facilities that provided abortion abortion services. Five abortion clinics, a physician representing himself, and a class of doctors who provide abortion services brought brought suit alleging each of the provisions was unconstitutional unco nstitutional on its face. Issue: Whether these five provisions of the Abortion Control Act are unco nstitutional under the precedent set in Roe v. Wade (1973). Ruling/Rationale: Yes and No. The Court upheld up held all but the spousal approval provision. “[P]rinciples of institutional integrity, and the rule of stare decisis require that Roe’s essential holding be retained and reaffirmed as to each of its three parts: (1) a recognition recogn ition of a woman’s right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State; (2) (2 ) a confirmation of the State’s power to restrict abortions after viability, if the law contains exceptions fo r pregnancies endangering a woman’s life or health; and (3) the principle that the State has legitimate interests from the outset of the pregnancy in protecting p rotecting the health of the woman and the life of the fetus that may become a child.” --The Court laid out several guiding principles to be used concerning abortion law: (a) To protect the th e central right recognized by Roe while at the same time accommodating accommodating the State’s profound interest in potential life, the undue burden standard should be employed . An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect effect is to place substantial obstacles in the path of a woman seeking an abortion abortion before the fetus fetus attains viability. viability. (b) Roe’s rigid trimester framework is rejected . To promote the State’s interest in potential life throughout pregnancy, the State may take
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measures to ensure that the woman’s choice is informed. Measures designed to advance this interest should not be invalidated if their purpose is to persuade the woman to choose ch oose childbirth over abortion. These measures must not be an undue burden on the right. (c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion, but may not impose unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion. (d) Adoption of the undue burden standard does not disturb Roe’s holding that regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregna ncy before viability. (e) Roe’s holding that “ subsequent to viability, the State in promoting its interest in the potentiality potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother” is also also reaffirmed. --“It --“It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”
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