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Constitutional Law II: Matheson 1) Substantive Due Process a) Introduction i) 14th amendment: no state shall make or enforce any

law which shalldeprive any person of life, liberty, or property, without due process of law ii) Definition: One function of the Due Process Clause is to limit the substantive power of the states to regulate certain areas of human life. (1) Liberty: freedom to enjoy all faculties and use them in all lawful ways. (a) Denial of liberty: state limits on conduct that unreasonably interfere with important human rights. (2) Natural rights: rights that are beyond and above the Constitution and any other written law. (a) Legislatures dont have absolute control (3) Different from Procedural Due Process: Determines if the necessary steps have been taken before a judgment is entered. iii) Fundamental and Non-fundamental rights (1) Scope of Review: (a) Strict scrutiny (i) Fundamental rights 1. Right of privacy 2. Right of autonomy 3. Even FR are NOT absolute and NOT equal a. Some FR are more important than others b. Marriage, procreation, contraception, family relationships, child rearing, education (ii) Test: Only if the state action is NECESSARY to achieve a COMPELLING govt. objective will the state avoid violating SDP. 1. State must have compelling interest 2. Narrowly Tailored: means chosen must be the least restrictive and necessary to achieve the compelling end to pass SS. (b) Intermediate scrutiny (i) Test: Only if the state action is SUBSTANTIALLY related to an IMPORTANT govt. objective will the state avoid violating SDP. (c) Rationality review (i) Non-fundamental rights (ii) Test: the state must merely be pursuing a LEGITIMATE govt. objective and be doing so with a means that is RATIONALLY RELATED to the objective. (iii) No SDP problems; easy test to pass (d) The scopes of review are a SPECTRUM and not a tier; rationality review can be heightened and SS can be relaxed. b) Substantive Due Process and Economic Liberty i) Right to contract (1) Strict scrutiny: Legislation that interferes with an individuals right to contract must directly relate to the goal of protecting public health and safety and must have an appropriate and legitimate end. (a) Lochner v. NY (1905): Court struck down a state law that limited the number of hours bakery employees could work. Court felt the safety/hygiene argument was not a strong enough argument for the law.

(i) At this time the court took the right to contract much more seriously and it was less willing to allow the government to interfere (b) The Lochner Era: Became synonymous with inappropriate judicial intervention; Court incorrectly acting as a legislature. This era used the 14th amendment to strike down many laws aimed at restricting economic liberties of individuals: (i) Maximum hours, minimum wage, unionizing, general consumer protection. (2) Rational basis: State price controls are constitutional if they are non-discriminatory and bear a reasonable relationship to a proper legislative purpose. (a) Modern approach to SDP and economic liberty: Court deferential to state legislatures (i) Carolene Products (1938): Presumption of constitutionality is applied in the case of an economic regulation subjected to Due Process attack. (Definition of Strict Scrutiny) (b) Nebbia v. NY (1934): Court upheld state milk price laws b/c the state had reasonably deemed them necessary to promote public welfare and to enforce that policy by laws. (i) Court asked if the law was unreasonable, arbitrary, or capricious PRETTY LOW St.ofRev. (ii) Some saw this decision as the end of the Lochner era 1. Lee Optical The day is gone when this court uses the DPC of the 14th Amendment to strike down sate laws, reg. or biz. and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought . . . for protection against abuses by legislatures the people must resort to the polls, not to the courts. c) Substantive Due Process and Privacy: Life, Liberty, Property i) Early Non-Economic SDP cases: the Constitution provides that the govt. may NOT, under the guise of protecting the public interest, interfere with a persons liberty by legislative action that is ARBITRARY and without REASONABLE relation to some legitimate govt. purpose. (1) The Constitution protects a teachers right to teach a foreign language and a parents rights to have a child learn that language. (a) Meyer v. Nebraska (1923): Court struck down law that was a WW1 reaction. (2) The Constitution protects a parents rights to direct the upbringing/education of their children. (a) Pierce v. Society of Sisters (1925): Court struck down law requiring parents to send their kids to public schools. ii) SDP and EP seen as parallel to each other (1) SDP: EVERYONE has certain fundamental rights (2) EP: SOME people are being treated differently from others (3) Ex: The right to marry/procreate is fundamental to the very existence and survival of the human race, and denying these rights to certain individuals is discriminatory. (a) Skinner v. OK (1942): Court struck down a law on EP grounds that required sterilization of men after their third felony conviction. (i) EP: Discrimination existed b/c not all crimes required sterilization. (ii) SDP: Right to procreate and have children (thoughts this should be the basis) (b) Some fundamental rights are more important than others (c) Under EP, some rights are fundamental and cant be taken away from ANYONE unless a significant burden (strict scrutiny) is met. iii) Implied right of privacy

(1) Zones of Privacy: A constitutional right of privacy, implied from the penumbras (shadowy/gray areas) of the Bill of Rights, cannot be invaded by govt. action absent a showing that this action is necessary to accomplish a compelling govt. interest. iv) Fundamental rights: implicit in the concept of ordered liberty or deeply rooted in this Nations history and tradition. (1) Abortion: the abortion law has gone through a great ebb and flow. It now says that a state has a right to regulate how an abortion is performed as long as the regulation does not create an undue burden. (a) The constitutional guarantee of privacy includes a qualified right to obtain an abortion. (i) Criminal abortion statutes that only permit the termination of pregnancy when the life of the mother is in danger are unconstitutional. 1. Roe v. Wade (1973): Extends Griswold to include the right to prevent pregnancy after the pregnancy has begun. The right to procreate assumes the right NOT to procreate. a. State interests are twofold: health of the woman and protection of human life. i. Danger to woman not as great as before and the Court doesnt consider the fetus to be a human being. b. Abortion is NOT an absolute right: after the first trimester or viability, the state may assert control over this choice. i. Trimester: what is this? The court said that up until the second trimester, the danger of an abortion is less risky than an actual birth so the states interest of health to the woman isnt served by continuing the pregnancy. The state cant impede the right to an abortion and but can regulate things that would improve the mothers health. (licensing requirements for the facility and personel doing the procedure). ii. During the second semester, the womens right to an abortion should be largely unrestricted. iii. Third trimester viability commenced and the states interest is compelling (b) If a law places unreasonable restrictions (undue burden) on a womans right to an abortion, that law will be considered unconstitutional. (i) Procedural requirements 1. If a law requires an abortion to be performed at an accredited hospital, have prior approval by a hospital staff committee beforehand, and be approved by two additional doctors other than the attending, the law will be considered unconstitutional. a. Doe v. Bolton (1973) 2. If a law requires an abortion to be performed in a more expensive hospital, as opposed to a more affordable out-patient clinic, it will be considered unconstitutional. a. Akron v. Akron Cen. For Reproductive Health (1983) (ii) Spousal and parental consent 1. A male spouse has no legal right to veto an abortion b/c the woman is the most and more immediately affected by the pregnancy. a. Planned Parenthood of Cen. MS v. Danforth (1976): Struck down law that required husbands consent if the woman was less than 12 weeks pregnant. 2. A parental consent requirement cannot amount to an absolute veto on abortion a. Bellotti v. Baird (1976): Parental consent is unconstitutional only if it unduly burdens the right to seek an abortion.

3. However, a state can involve a parent in a minors abortion decision ONLY if it also provided an alternative judicial bypass procedure so that parental involvement will not amount to an absolute veto of the minors right to an abortion. a. Bellotti II (1979): Judicial bypass involves a legal officer (w/o the parents involvement) determining if an abortion is in the minors best interests. 4. The Court has upheld parental NOTICE requirements a. Hodgson v. Minnesota (1990): However, the Court struck down a requirement here that both parents be notified 48 hours before the abortion. (iii) Spousal notification requirements 1. Spousal notification requirements in abortion laws are unconstitutional b/c they place an undue burden upon a womans ability to obtain an abortion. a. Planned Parenthood v. Casey (1992): Court struck down law that did provide exceptions to the notification requirement. Essential Roe holding saved: A woman has the right to choose an abortion w/o the state creating an undue burden. (iv) Mandatory waiting periods and reporting requirements 1. If a law requiring a mandatory waiting period before an abortion causes the abortion to be more expensive, the law will be considered an undue burden on the right of abortion. Ohio v. Akron Center for Reproductive Health (1990): two trips. 2. If the law would potentially CHILL the freedom to have an abortion, the law will be considered unconstitutional. Thornburgh v. American College of OBGYN (1986).

(v) Abortion funding restrictions 1. Between Roe and Casey, abortion funding restrictions were the ONLY abortion regulations upheld concerning adult women. 2. The govt. has NO constitutional duty to subsidize an activity merely b/c that activity is constitutionally protected. Rust v. Sullivan (1991) 3. As long as there is no restriction on access to abortions, a state law may grant Medicaid benefits for childbirth but NOT medically unnecessary abortions. Maher v. Roe (1977) a. However, while the govt. cant PLACE obstacles in the path of a woman who chooses abortion, it is not required to REMOVE obstacles not of its own creation. i. Harris v. McRae (1980): funding denied for medically unnecessary abortions 4. If women have other options, public FACILITIES, as well as public funds, arent required to perform abortions. Webster v. Reproductive Health Services (1989) (c) Partial-Birth Abortion (i) Cases turn on the METHOD of abortion, as opposed to the principle behind abortion. (ii) General bans on abortion are unconstitutional. 1. Stenberg v. Carhart (2000): Court struck down a law prohibiting late-term D&X abortions b/c it did not provide an exception for the mothers health and the law was vague about the procedure. Thus, an undue burden was created, and a chilling effect for doctors. (iii) The Partial Birth Abortion Act (2003) does NOT place an undue burden on a womans right to seek an abortion. 1. Gonzales v. Carhart (2007): Court upheld the Acts outlawing of intact D&E (apparently same as D&X) abortions where the doctor had to perform an overt act upon the fetus outside

the mothers body to kill it. Standard D&E abortions still legal. Court was attempting to draw a bright line b/t abortion and infanticide. (2) Marriage (a) Laws cannot infringe upon the intimate relations b/t husband and wife and their doctors role in that relation unless the law passes strict scrutiny. (i) Griswold v. Connecticut (1965): Court struck down state law that made it illegal to use contraception for the prevention of pregnancy and for aiding and abetting such use. 1. General right of privacy IMPLIED from the Constitution 2. Under Equal Protection, if married couples have the right to use contraception b/c of Griswold, then single individuals and minors should have that right also or else discrimination exists. a. Eisenstadt v. Baird (1972): Court struck down a law that prohibited unmarried persons from using contraception for pregnancy prevention. i. Link b/t Griswold and Roe: If the right of privacy means anything, it is the right of the INDIVIDUAL, married or single, to be free from unwarranted govt. intrusion into his/her rights. b. Carey v. Population Services (1977): Post-Roe case where the Court struck down a law prohibiting contraceptive sales to minors. Discouraging sex b/t minors not seen as a compelling state interest. (b) Legislation which restricts the freedom to marry solely on the basis of RACE violates the EPC in the 14th amendment. (i) Loving v. Virginia (1967): Court struck down the states ban on interracial marriage. The law was also found to violate Due Process, as it had no legitimate purpose except to maintain the notion that blacks were inferior to whites. (c) The right to marry is a fundamental right; and any law that imposes a direct and substantial interference with that right will be subjected to strict scrutiny. (i) Zablocki v. Redhail (1978): Court invalidated a state law that required court approval to marry if the individual was under obligation to pay child support. (Same under SDP or EP). (ii) Turner v. Safley (1987): Court struck down a PRISON regulation that restricted inmates rights to marry (conditioned upon warden approval). (d) Not all marriage laws would be viewed as imposing a direct/substantial interference. (i) Incest, bigamy, etc. (3) Family relationships there is a private realm of family life which the state cannot enter. (a) The govt. has no right to decide which relatives may live together and which may not. (i) Moore v. City of East Cleveland (1977): Court invalidated zoning ordinance that only allowed single, nuclear families to live together. State interests of overcrowding and traffic were only minimally served by the law, and less restrictive laws available. (SS). (ii) However, family relationships generally must be through marital or blood ties. 1. Belle Terre v. Boraas (1974) (b) Parents have a fundamental right to make decisions concerning the care and control of their children, and any state interference with that right will be closely scrutinized by the courts. (i) As long as the parents are adequate caretakers, the state has no right to interfere with the private realm of family.

(ii) Troxel v. Granville (2000): Court overruled state court decision granting grandparent visiting rights over the parents objections. (c) Adulterous relationships and unmarried fathers have never traditionally had their parental rights protected. (i) Tradition: An asserted liberty interest must be both: 1) a fundamental interest and 2) an interest that has been traditionally protected by American society. (Scalia) 1. Criticized: idea ignores that society changes (ii) Michael H. v. Gerald D. (1989): Court upheld a state courts judgment not giving a biological father visitation with his illegitimate child. (4) Sexuality (a) The idea of a private right of sexuality was initially struck down. (i) Bowers v. Hardwick (1986): Court upheld a state non-specific sodomy law as applied to homosexual sodomy only. 1. The court characterized the issue as the right to engage in homosexual sodomy but Justice Blackmun said it should have been the most fundamental right, the right to be left alone. (b) State laws criminalizing homosexual relations violate SDP, b/c the interest at stake is not the liberty interest of sodomy, but the fundamental interest to be left alone. (i) Lawrence v. TX (2003): Court held in this decision, which overruled Bowers, that a law seeking to control homosexual behavior was unconstitutional, and such a relationship is within the liberty of people to choose w/o being punished as criminals. 1. SDP used instead of EP (sodomy applies to straight and gay) so that TX wouldnt just amend the statute. 2. Dissent: (Scalia) States interest in morality is legitimate. (c) It is difficult to identify a state interest other than moral disapproval that would convincingly justify banning gay marriage. (i) Goodridge v. Dept. of Public Health (2003): Massachusetts court held that prohibitions against gay marriage were against their constitution, b/c such bans werent compatible with personal autonomy and equality under the law. (5) Right to die (a) The Constitution grants competent persons the right to accept or refuse life-saving medical treatment; there is a valid liberty interest in refusing medical treatment. (i) Cruzan v. Director, Missouri Dept. of Health (1990): State may require by clear and convincing evidence that the person would have wanted their life terminated if their guardian seeks to discontinue life-saving nutrition/other life-saving medical treatment. 1. States preservation of life interest: state has the right to guard against abuses b/c it would be worse to mistakenly kill someone than to mistakenly let them live. (b) There is no fundamental right to commit suicide. (i) Washington v. Glucksberg (1997): Court upholds a law making physician assisted suicide illegal. 1. Court used a rational basis test b/c suicide is not a fundamental right. 2. A less strict alternative is available: palliative care 3. There is a difference b/t affirmative acts (suicide) and omission 4. Tradition of the nation doesnt include suicide

2) Equal Protection a) Introduction i) 14th amendment: no state shall make or enforce any law which shalldeny to any person within its jurisdiction the equal protection of the laws. ii) Concerns scrutiny of laws that treat people differently with respect to burdens or benefits. iii) Scopes of review: (1) Race=strict scrutiny (a) Any suspect category (2) Gender=intermediate scrutiny (3) Economic=rational basis iv) Test: Is it a suspect category? (1) Minority (2) Abused politically (3) Immutable characteristic b) Economic regulation i) Rational Basis Scrutiny: Is there a rational relationship to a legitimate govt. end? (1) Under rational basis scrutiny, legislation will NOT be held unconstitutional merely b/c it is underinclusive. (a) Railway Express Agency v. NY (1949): A state law (that only allowed vehicles to advertise signs if the vehicle was advertising for its own business) was upheld against EP. (i) EP doesnt require that all evils of the same genus be eradicated or none at all under rational basis; under SS, probably a different story.

(2) Economic legislation will be upheld so long as there is ANY conceivable justification for it. (a) Deferential Lindsley standard (b) Williamson v. Lee Optical Co. (1955): Court rejected both SDP and EP challenges to a state optician regulation scheme that didnt include sellers of ready to wear glasses. (i) Protection of EP goes no further than invidious discrimination. (c) New Orleans v. Dukes (1976): Court upheld an EP challenge to a recent law exempting food vendors from a prohibition if they had been in operation for eight years or longer. (i) Court felt the law rationally furthered the economic purpose of protection of the French Quarters charm. (3) Rational Basis is NOT speculative: In both Railway and Williamson the Court tests the fit b/t means and ends only on CONCEIVABLE purposes. c) Racial discrimination i) Early interpretation of the 14th amendment: (1) While the 14th amendment can confine jury service to males, freeholders, citizens, persons of age or education, we do NOT think the 14th amendment meant to exclude men b/c of race. (a) Strauder v. West (1880) (2) Separate but equal: The 14th amendment does NOT withhold from the states the power to permit or require the separation of the races.

(a) Plessy v. Ferguson (1896): (Separate B/W RR cars) While the 14th amendment was meant to enforce racial equality, it is not meant to enforce social equality/forced commingling. ii) Segregation in Public Education (1) Protesters of separate but equal originally challenged the EQUAL part by focusing on graduate and professional schools. (a) Missouri ex rel. Gaines v. Canada (1938): Court held that state was obligated to furnish P with a legal education within its border substantially equal to those offered to whites. (b) Sweatt v. Painter (1950): Court found the black TX law school was not substantially equal to the white law school b/c qualities incapable of objective measurement which make a law school great (i.e. reputation, experience) are not present at the black school. (c) McLaurin v. OK State Regents (1950): Restrictions placed on a black student at a white graduate school unconstitutional b/c they impaired the students ability to study, engage in discussion, and learn. (2) States may NOT segregate public schools on the basis of race (a) Brown v. Board of Education (1954): Segregation based solely on race deprives black children of the right to an equal education, with regard to the condition of the facilities provided to them. Court influenced by an attack on intangible factors (psychological impact on students). (i) Brown v. Board II (1955): Detailed specific desegregation remedies and left these primarily in the hands of lower courts. (ii) Cooper v. Aaron (1958): Court condemns violent resistance to Brown. (iii) Bolling v. Sharpe (1954): Segregation of public schools violates Due Process (5th). (3) De Jure Segregation is a violation of Equal Protection (a) De Jure: Segregation by Law; Purposeful and intentional segregation (i) De Facto: Segregation by Causes other than law (b) Freedom of Choice plans have the EFFECT of de jure segregation, regardless of the plans actual purpose. (i) Green v. County School Board (1968): Court wanted a transition to a unitary, non-racial system of public education; no black and white schools, just schools. (c) District courts have broad discretion to remedy school officials not complying with Brown: (i) However, federal courts can NOT order a school board to adjust the racial COMPOSITION of a school (no matter how great the racial imbalance) unless there has been a finding of de jure segregation. (ii) Federal courts may combat de facto residential segregation by BUSING students to schools outside their neighborhoods. 1. Swann v. Charlotte-Mecklenburg Board of Education (1971): Geographic zoning kept from altering racial composition of schools. (d) De jure-De facto distinctions may also be used in Northern cities that dont have a history of segregation laws. (i) Keyes v. School District (1973): gerrymandered zoning and other sneaky policies used to purposefully keep the district segregated. Court once again emphasized the EFFECTS of the laws. (4) Limitations on the Courts Remedial Powers

(a) Federal courts could order that a LOCAL taxing body increase taxes to pay for compliance with a desegregation order, although the federal court should not ITSELF order an increase in the taxes. (i) Missouri v. Jenkins (1990): State laws had prevented the school district from raising taxes for financing the 25% share of desegregation costs for which it was liable. (b) Dismantling a desegregation order after authorities have complied with it for some time is reasonable; the order shouldnt go beyond the time necessary to remedy past effects. (i) Missouri v. Jenkins (1995): Court did NOT have the authority to order a teacher salary increase b/c this wasnt necessary as a desegregation remedy; also, low student test scores werent seen as a compelling reason to continue the desegregation order. (ii) Board of Education, OK City v. Dowell (1991): Busing plan eliminated b/c it was no longer needed; once a district declared desegregated, govt. cant interfere again. iii) Equal Protection and Interracial Families (1) Legislation which restricts the freedom to marry based solely on the basis of race violates the EP clause. Loving v. Virginia (1967): White Supremacy violates EP. (2) Custody determinations may NOT be based on potential racial bias against a child. (a) Palmore v. Sidoti (1984): (Child awarded to father b/c mother dating a black man) Courts may not use private racial bias as a justification for official state action. iv) Facial Discrimination Against Racial Minorities (1) Purposeful Discrimination: Brown, Loving and Palmore involved facially discriminatory laws (2) Traditional View: Military necessity and national security may justify placing legal restrictions on a single racial group. (a) Korematsu v. U.S. (1944): Court upholds, under SS, a WW2 military order that excluded all Japanese people from West coast areas. (Over and underinclusive, blatant discrimination). (3) Permissible use of race criteria? (a) Johnson v. California (2005): Court used SS to strike down a CA prison policy that segregated prisoners by race in order to prevent gang violence. v) Racially Discriminatory Purpose and Effect (1) Racially discriminatory APPLICATION of facially neutral laws (a) Yick Wo v. Hopkins (1886): A neutral ordinance prohibited operating a laundry in a wooden building, but permits were granted to operate laundries in such buildings, except to Chinese. (2) Racially discriminatory PURPOSE behind facially neutral laws (a) Examples: (i) Gomillion v. Lightfoot (1960): AL zoning law struck down b/c its real purpose was to remove all black voters from within city limits. (ii) Griffin v. County School Board (1964): Neutral school closing law found to have discriminatory purpose b/c white school children given private school vouchers. (b) A legislative act does NOT violate EP merely b/c it was MOTIVATED by a discriminatory purpose. (i) Palmer v. Thompson (1971): State law closing swimming pools (as a result of desegregation) upheld b/c it is not the Courts job to guess at the motivations of state legislatures. 1. Gomillion: focused on the EFFECT of the law and not its motivation 2. Griffin: in Palmer, no E that they were providing vouchers to private pools (ii) However, where there is PROOF that a discriminatory PURPOSE was a motivating factor in the decision, the judicial deference accorded in Palmer is not longer warranted.

1. Arlington Heights v. Metropolitan Housing Corp. (1977): Court upheld a denial to a request to rezone b/c there was only circumstantial E of a discriminatory purpose. a. Sets forth an approach for determining the existence of discriminatory intent (i.e. historical background, departures from normal procedure, legislative history, and direct E). 2. Hunter v. Underwood (1985): Court invalidated a 1901 law that disenfranchised all those convicted of moral turpitude crimes. Court held that historical background confirmed that the law was founded upon racist motives. (c) To be deemed purposefully discriminatory, a govt. act must have been taken BECAUSE of, and not in spite of, its adverse effect upon an identifiable group. (i) Personnel Admin. of Mass. v. Feeney (1979): Court held a woman passed over for promotion many times b/c she was not a veteran was constitutional. While the law had a disparate effect on women, the policy was grounded in rewarding veterans and promoting military service (not discriminating against women). (3) Facially neutral laws with racially discriminatory EFFECT (a) Poses the question: Should de facto segregation be treated the same as de jure? (b) A facially neutral law or official act will be declared unconstitutional ONLY if there is proof that the law or act has a discriminatory PURPOSE. (i) Washington v. Davis (1976): Although there was a disparate impact among black test takers of the police dept. test, there was no E of a discriminatory purpose behind the test. (ii) Court can only INFER a racially discriminatory purpose when the discrimination is BLATANT: Yick Wo and Korematsu d) Homosexual discrimination i) A law declaring that it shall be more difficult for one group of citizens than for others to seek aid from the govt. is, in the most literal sense, a denial of EP. (1) Romer v. Evans (1996): Court struck down a CO law that stated the state could not pass any law entitling gays to minority preferences, protected status, or claim of discrimination. e) Affirmative Action i) AKA Benign or Reverse Discrimination: The attempt to reverse past discrimination often cant be changed without treating people differently using the same criteria (e.g. race, gender) that past discrimination was based upon. ii) Race Preferences in Public Employment (1) Preferential protections against LAY-OFFS are more difficult to justify than hiring preferences b/c layoffs affect a workers present job and not just the possibility of future employment. (a) Often fail SS b/c they are not narrowly tailored (b) Also troublesome b/c they place the entire BURDEN of equality achievement on particular individuals. (c) Role Model Theory: An attempt to remedy past discrimination by providing minority role models for school children. (i) Wygant v. Jackson Board of Education (1986): Court held a minority preference in layoffs unconstitutional (teachers with most seniority preferred EXCEPT if this would upset minority teacher balance).


1. Role Model Theory a slippery slope: allows school to engage in discriminatory practices long past the point required for remedial purposes. (ii) Not a compelling interest iii) Race Preferences in Public Contracting (1) Traditionally: Congress is often given great deference in terms of its spending power due to Congressional findings and historical bases. (a) Fullilove v. Klutznick (1980): No scope of review was used and a quota was present, but the Court rejected a facial attack on a congressional spending program that mandated 10% of federal funds go minority business. (2) State affirmative action plans are subject to STRICT SCRUTINY. (a) Richmond v. J.A. Croson Co. (1989): Court found state minority set-aside program unconstitutional b/c past discrimination alone can NOT justify a rigid racial quota. (3) Before 1995, Congressional AA plans were subject only to intermediate scrutiny. (a) Metro Broadcasting v. FCC (1990): overruled by Adarand (4) Now, Strict Scrutiny is applicable to state AND federal AA plans. (a) Adarand Constructors v. Pena (1995): Case remanded to be strictly scrutinized by a lower court; Construction company filed suit alleging the U.S. department of transportation policy of presuming socially/economically disadvantaged businesses were minority was unconstitutional. iv) Race Preferences in Public Education (1) Race CAN be a factor in the AA decision process as long as its not THE decision. (a) Regents of U. of California v. Bakke (1978): Court held AA QUOTA of 16 minority student set aside seats for medical school was unconstitutional. (2) Educational diversity is a compelling state interest. (a) AA can survive SS if the program is not racial balancing (i.e. a quota). (b) Grutter v. Bollinger (2003): EP clause does NOT prohibit a law schools narrow tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. (3) A point system emphasizing minority status violates equal protection as a quota. (a) Race must be taken into account on an individualized basis. (b) Gratz v. Bollinger (2003): U.s undergraduate admissions policy was unconstitutional b/c it was a point system that automatically awarded points to applicants who were minorities. (c) Race Neutral Alternatives: In response to Gratz, TX enacted a 10% plan which guaranteed admission at one of the UT campuses to ANYONE graduating in the top 10% of their class. (4) A public school system that has never operated segregated schools may NOT choose to classify students based on race. (a) Racial balancing violates the EP clause. (i) Parents Involved in Community Schools v. Seattle School District (2007): Assignment of schools based solely upon race, for the purpose of assuring racial balance at each of the schools falls within a pre-determined range, is unconstitutional. v) Race Preferences in Electoral Districting (1) Full and effective participation in state govt. requires that each citizen have an equally effective voice in the election of the state legislature.


(2) The Voting Rights Act: 1965 act that strove to prevent the dilution of the racial strength of minority groups in districts that have previously discriminated against minorities voting rights. (a) Covered Districts: If E of obstacles for minority voters found, the state could NOT redistrict unless it was approved by the DOJ. (b) United Jewish Org. v. Carey (1977): Challenge by Hassidic Jews of Brooklyn redistricting (to protect black voters) rejected b/c NY had done no more than the Voting Rights Act required. Court decided that whites, as a group, were provided with fair representation. (3) Racial Gerrymandering: If the P can show that the use of race was the predominant factor in drawing district lines, the districting scheme will be subjected to strict scrutiny. (a) Facially Irrational Theory: If a districting scheme is so irrational on its face that it can only be understood as an effort to segregate voters into separate voting districts b/c of their race, SS should be triggered and the districting struck down UNLESS the plan can be shown to be narrowly tailored to furthering a compelling govt. interest. (i) Shaw v. Reno (1993): Voting Rights Act created a black district with a very odd shape; the Court remanded to determine if the shape was violative of the racial gerrymander standard; the term political apartheid was used. (b) Predominant Factor Test: Ps must prove that race was a predominant factor in the drawing of district lines. If this is proved, the Court will use SS. (i) Circumstantial Proof: Bizarre shape of voting districts is not a requirement to prove racial gerrymandering; and more E is needed. (ii) If racial district lines are not necessary anymore to remedy past discrimination, they will likely be struck down under SS. 1. Miller v. Johnson (1995): Court held three majority-minority black districts were an illegal racial gerrymander b/c the lines didnt pursue a compelling interest and the plan was NOT narrowly tailored. (c) Political gerrymandering is NOT a violation of EP. f) Gender discrimination i) Arguably, a suspect classification: (1) While abused politically and gender an immutable characteristic, women are NOT a minority. (2) Intermediate scrutiny (a) AKA: Heightened scrutiny? (b) Gender and alienage ii) Scope of Review (1) Originally, only the deferential rational review test was applicable to gender discrimination. (a) Goesaert v. Cleary (1948): (bartenders license) Constitution doesnt require legislatures to reflect shifting social standards. (2) In the early 1970s, however, the court began to apply a more heightened standard of review to alleged gender discrimination. (a) Reed v. Reed (1971): (estate administrator law) Arbitrary legislation choice forbidden by EP. (3) The Court chose NOT to adopt strict scrutiny for gender discrimination. (a) Frontiero v. Richardson (1973): A divided Court sustained an EP challenge to a federal law affording male armed forces members only an automatic dependency; unable to agree on a review standard. (4) Since 1976, intermediate scrutiny has been used for gender discrimination.


(a) Craig v. Boren (1976): (3.2 beer law discriminates against men) Gender classifications must serve important govt. objectives and must be substantially related to achievement of those objectives. (b) J.E.B. v. Alabama (1994): Peremptory challenges to exclude all women from a jury cannot survive IS b/c this practice doesnt further the states legit interest of having a fair/imp. Trial. iii) Public Education and Gender Discrimination (1) A state may designate an educational opportunity to members of only one sex if the state seeks to remedy ACTUAL past discrimination related to educational opportunity. (a) Mississippi U. for Women v. Hogan (1982): IS sustained a male applicants challenge after he was denied admission at an all female nursing school; women always able to be nurses. (i) Stereotyping: (Big no-no) Policy didnt compensate for past discrimination but only perpetuated the stereotype that nursing was a womans job. (2) States must proffer an exceedingly persuasive justification for gender classifications which categorically exclude women from educational opportunities. (a) U.S. v. Virginia (1996): While men and women have significant physical differences, these differences shouldnt be used for denigration of the members of either sex; the womens version of VMI wasnt equal (Sweatt). iv) Differences b/t men and women: A factor in gender discrimination? (1) A state is NOT violative of EP merely b/c it fails to account for biological differences in the sexes. (a) Geduldig v. Aiello (1974): Court rejected a challenge to a disability insurance system that excluded normal pregnancy disability. Court felt the classification was not based on gender but on pregnant people and non-pregnant people. (2) States may enact laws making it a crime for a man to have sex with an underage female in an effort to address teen sex and pregnancy. (a) Michael M. v. Superior Court (1981): Court upheld a state statutory rape law which punished only males who had sex with girls under 18 (D was 17). Court felt the statute reflected the fact that pregnancy falls more heavily on the female than the male (equalized). (3) Congress does NOT violate EP by authorizing the President to require only males to register for selective service. (a) Rostker v. Goldberg (1981): Court showed its usual extreme deference to Congress in rejecting this attack on the Military Selective Service Act; Michael not similarly situated argument. (4) Basic biological differences b/t men and women factor into an equal protection analysis. (a) Nguyen v. INS (2001): Court upheld a law treating children of citizen mothers automatically as U.S. citizens, b/c of the significant difference b/t a mother and fathers relationship at the time of birth. v) Affirmative Action and Gender (1) Originally, the Court upheld laws meant to remedy past discrimination against women, even if these laws were seen as furthering archaic stereotypes. (a) Kahn v. Shevin (1974): Two years before Craig, Court applied a deferential standard to uphold a property tax exemption for widows but not widowers. (2) Classifications benefiting women may NOT be justified on archaic stereotypes. (a) Orr v. Orr (1979): Court struck down state laws that imposed alimony obligations on husbands but not wives; Court felt narrow tailoring needed (i.e. separate hearings to determine which wives could pay alimony). (3) Some laws only remedied past discrimination against women and did NOT further stereotypes.


(a) Califano v. Webster (1977): Court sustained the Social Security Acts formula for computing old age benefits; under the policy, female wage earners could exclude 3 more lower earning years than men. Law recognizes that women used to be employed at a lower rate than men. (b) Schlesinger v. Ballard (1975): Court rejected a male officers challenge to Navy distinctions that accorded women only a 13 year tenure before mandatory discharge for want of promotion. g) Fundamental interest: A branch of equal protection i) Certain rights and interests that are capable of heightened review are NOT rooted in any independent source of protection elsewhere in the Constitution. (1) Voting, Ds appellate rights, Travel ii) Voting (1) Fundamental right (2) Originally, the Constitution allowed the states to determine voter qualifications. (a) Many amendments since have changed this; access to the ballot; equal vote weight (3) State poll taxes: are unconstitutional b/c they affect access to the ballot. (a) Harper v. Virginia State Board of Elections (1966): Court struck down a state poll tax which required residents to pay $1.50 before they could vote in state elections. (b) WEALTH, like race, creed, or gender is not germane to ones ability to participate in the electoral process. (4) Property Ownership: As a basis for voting (a) Owning land or having children enrolled in public school cannot be made a prerequisite to voting in school district elections. (i) Kramer v. Union Free School District (1969): laws that limit the ability of certain persons to vote are unconstitutional unless they are narrowly tailored and necessary to achieve a compelling state interest. (Law excluded those who had a direct interest). (b) States can NOT limit the vote to property owners in elections determining municipal matter and general obligation bonds. (i) Cipriano v. Houma (1969) and Phoenix v. Kolodziejski (1970) (c) However, not all property ownership requirements for voting are invalid. (i) Salyer Land Co. v. Tulare Lake Basin Water Storage Dist. (1973): Court upheld state laws that limited voting in water storage district elections to property owners, b/c property owners had a far greater interest in the elections outcome than non-property o. (5) Vote Dilution: Reapportionment and Gerrymandering (a) Originally, challenges to malapportionment posed a nonjusticiable political question. (i) Colegrove v. Green (1946) (b) Later, EP challenges to malapportionment were deemed justiciable. (i) Baker v. Carr (p. 643) (ii) Soon after, one person, one vote articulated (c) Full and effective participation in state govt. requires that each citizen have an equally effective voice in the election of the state legislature. (i) Reynolds v. Sims (1964): Court held the malapportionment of a state legislature was unconstitutional and ordered it reapportioned; many counties had a DILUTED voting power; state must make a GOOD FAITH effort to equalize the districts. (d) It is irrelevant that voters, by initiative, approve a malapportionment; the malapportionment is still unconstitutional.


(i) Lucas v. 44th General Assembly (p. 645): One person, one vote is a constitutional mandate that states may NOT override b/c of approval of statewide referendum. (e) While mathematical preciseness is not required for one person, one vote, only relatively small deviations are tolerated. (i) Gaffney v. Cummings (1973): Court concluded the maximum deviation of 7.83% was insignificant in a legislative reapportionment. (f) Political gerrymandering, including gerrymandering where an incumbent draws districts to help it remain in control, are justiciable. (i) Davis v. Bandemer (1986): Republican gerrymandering here was NOT considered a violation of EP; just b/c a scheme makes it more difficult for a particular group to elect representatives of its choice doesnt make the scheme unconstitutional. (g) Challenges to partisan gerrymandering are NOT justiciable questions. (i) Vieth v. Jubelirer (2004): Davis not overruled. (6) Voter ID requirements (a) States can reasonably require citizens to present a govt. photo ID when voting in person. (i) Crawford v. Marion County Election Board (2008): Court felt the state interest of deterring and detecting voter fraud outweighed the insignificant burden on voters (i.e. voters can always cast provisional ballots). iii) No fundamental interest in food, shelter, or education (1) Laws which impose a one-year residency requirement in the state as a prerequisite for welfare eligibility are unconstitutional. Shapiro v. Thompson (2) Only rational basis review should be used for WEALTH classifications. (a) Dandridge v. Williams (1970): Court rejected a challenge to a state welfare program that imposed a maximum grant of $250 on families regardless of size/need; public assistance is not the business of the Court. (3) There is NO fundamental interest in decent shelter or the protection of ones home. (a) Lindsey v. Normet (1972) (4) The right to obtain an education is NOT a fundamental right (a) San Antonio School Dist. v. Rodriguez (1973): Court held the EP clause didnt require absolute equality/equal advantages; even though public schools in high property tax areas were receiving a lot more money. (b) However, the exclusion of undocumented children from public schools does violate EP. (i) Plyler v. Doe (1982): Court applied SS to hold that children of illegal aliens could not be required to pay for public schools when other kids didnt have to.

3) Freedom of Expression a) Introduction i) Protected (1) Has changed dramatically over the years (2) Political speech, advocacy ii) Less protected (1) Pornography, nude dancing, commercial speech


iii) Unprotected (1) Incitement to violence, incitement to advocacy, fighting words, obscenity, child porn, libel iv) Freedom of speech is NOT absolute: Court has struggled with the line b/t instigation and opinion. v) Marketplace of Ideas: Freedom of speech is important b/c many ideas should be present so the public can choose from among them. b) Incitement to violence i) The Clear and Present Danger Test (1) Test: The 1st amendment does NOT protect speech which is used under such circumstances, and is of such a nature, that it creates a clear and present danger of inciting illegal activity (substantive activity that Congress has the right to prevent. (2) Intent: Ds intent in early cases was enough to charge him with conspiracy, regardless of whether or not his words would have actually caused harm. (a) Schenck v. U.S. (1919): D circulating anti-conscription leaflets convicted under the 1917 Espionage Act. Court emphasized that the character of every act depends upon the CIRCUMSTANCES in which it was done (falsely yelling fire in theater). (i) Clear and Present Danger test created (b) Frohwerk v. U.S. (1919): D convicted under the Espionage Act for publishing newspaper articles encouraging insubordination. Court affirmed the CPD test and emphasized the test was FACT specific by focusing on the speakers intent/circumstances. (c) Indirect Effect: In early cases, even if the general theme of the speech was neutral, if the manifest intent was to encourage insubordination in those present, the speech was unprotected. (i) Debs v. U.S. (1919): Socialist leader convicted of attempting to incite draft insubordination by a political speech he gave at the Socialist convention. 1. He agreed with an anti-draft manifesto 2. Matheson believes this is a remarkable case (d) Marketplace of Ideas: The CPD test must be applied by truly examining the ACTUAL LIKELIHOOD of danger created by the speech. (i) Abrams v. U.S. (1919) (Holmes Dissent: Govt. may only protect present danger of an immediate evil): Under the amended Espionage Act, Ds convicted for distributing leaflets encouraging plant workers not to make ammunition (The leaflets were in protest of the North Russian Intervention). 1. Justice Holmes switched from leading in Scheneck to dissenting in Abrams why? a. He says the intent must be shown b. Dissent is en endorsement of free speech (ii) Learned Hand: Liability for speech should not rest on guesses about the future impact of words. 1. He talks about the difference between advocacy and incitement 2. Court should look at the language used, what was said was it incitement? Was it advocacy? 3. In this case he says there is no incitement 4. This approach was revolutionary and was ultimately was the right approach ii) Criminal Syndicalism (i.e. anarchy) (1) Reasonableness: State bans on advocacy of unlawful overthrow are valid exercises of police power, unless they are unreasonable. (a) Superseded the CPD test in some cases: CPD test only applies when the act prohibits certain ACTS and not speech directly.


(b) Concentrates on the LANGUAGE of a particular speech or writing: deference to legislators. (c) Gitlow v. NY (1925): D convicted of statutory criminal anarchy for publishing a Communist newspaper which advocated revolution. (Holmes dissent: Would have applied CPD test instead to demonstrate that there was NO immediate danger of govt. overthrow hanging on to his test - CPD). (i) State statute but first amendment issue so there must be incorporation (ii) Court felt that is was reasonable for states to criminalize JOINING an organization which advocates overthrow of the govt. by illegal means. 1. The STATE LEGISLATURE not the Court makes the decision (d) Whitney v. CA (1927): Right of Association - D convicted under statute b/c she was active in organizing the radical Communist Labor Party, even though she herself did not advocate overthrow of the govt. (i) Some evidence she did join a conspiracy so conviction upheld (ii) Brandeis concurring - talks about importance of free speech 1. Point of departure from majority is there is only very specific instance where we can depart from freedom of free speech a. Serious Danger b. Imminent (2) Clear and Present Danger Test Reformulated: Court felt the existence of a conspiracy created a danger; a conspiracy to advocate can constitutionally be restrained even if it comprises only of preparation. (a) Test: In each case, the Court must ask whether the gravity of evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. (i) No imminent danger requirement; Court doesnt have to wait until an uprising to quash it. (b) Dennis v. U.S. (1951): Communist party organizers arrested under the Federal Smith Act for conspiring to overthrow the govt. by their teaching from Marxist-Lenin texts. (i) Dissent: No sense restricting speech when there has not been any action. (3) During the 1960s, the Court became more protective of speech: (a) While the state has an interest in requiring its legislators to swear to a belief in the Constitution, the oath does NOT limit the legislators political beliefs/opinions on national policy. (i) Bond v. Floyd (1966): Elected representative couldnt be barred from office b/c of his antiVietnam War views. (b) Brandenburg Test: Govt. may NOT criminalize advocacy of crime EXCEPT where it is: (i) Intended to incite/Imminent lawless action AND is likely to succeed/produce such action. (ii) Test re-reads an immediacy/eminency requirement into the law (iii) Brandenburg v. Ohio (1969) (The most important case for free speech): Statute that convicted a KKK rally leader found unconstitutional b/c it forbids mere assembly with others to advocate. a. Statute was aimed at advocacy not incitement similar to Masses case (L. Hand decision) 2. Case distinguishes b/t [teaching/advocacy] and [inciting/producing] 3. Overrules Whitney (just joining is now not enough for incitement) (iv) Under the BT, merely advocating force/violence is different from actual threats. 1. Advocating a. Hess v. Indiana (1973): Well take the fucking street later. Court felt, at best, the statement should be taken as counsel for present moderation; at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time.


b. NAACP v. Claiborne Hardware (1982): Break necks. Not actual threats; but Court noted that if violence had followed the speech the decision might have been different. c. Rice v. Paladin Enterprises (1997) (4th Cir.) Hit Man manual did not violate the 1st amendment even though it would probably be used by hit men. 2. Actual Threats a. Planned Parenthood v. Abortion Protesters (2002): Website that directly threatened abortion doctors; Court upheld civil liability against. c) Fighting words i) Not protected by the 1st amendment. ii) Reasonable Person Test: Offensive language directed towards a person that would likely provoke the average person to respond (i.e. lewd, obscene, profane, libelous, insulting). (1) Chaplinsky Definition: fighting words are words that by their very nature inflict injury and tend to incite an immediate breach of the peace. (a) Chaplinsky v. NH (1942): Court used reasonable person test against D who attracted a hostile crowd, and called the cop who arrested him a goddamned fascist. Conviction upheld. iii) No decision since Chaplinsky has upheld a fighting words conviction. (1) Speech restrictions will be held unconstitutionally overbroad if they are susceptible to being inappropriately applied to PROTECTED speech either a) on their face or b) as applied. (a) Gooding v. Wilson (1972): (Vietnam protester; You son of a bitch, Ill choke you) Court found statute prohibiting abusive language was void on its face b/c it was overbroad (swept in protected speech), and vague (definition of abusive). (2) Fighting words are limited to confrontations b/t individuals as opposed to those b/t an individual speaker and a group. (a) Texas v. Johnson (1989): Court felt no reasonable onlooker would have regarded the protester burning a U.S. flag as a personal insult or invitation to exchange fisticuffs. (3) Court held that states cannot punish public displays of expletives if the D didnt INTEND to incite disobedience or disruption. (a) Cohen v. CA (1971): (Fuck the draft jacket) Court overturned Ds conviction stating that the govt. can NOT prescribe the form or content of individual expression. (i) Captive Audience can just avert their eyes. (b) The states interest here was protecting morality but obviously not enough d) Hecklers veto and hostile audiences i) Law enforcements duty when there is a hostile audience (a test for enforcement): (1) First duty is to protect the speaker (2) Second duty is to remove the speaker if police cant control the crowd ii) When a public speaker incites the audience to imminent riot, police may stop the speech. (1) Feiner v. NY (1951): Court held that speech turning audience against each other (Truman, Nazi Gestapo, race talk) engendered a hostile reaction that created a Clear and Present Danger. (a) D arrested not for the content of his speech, but for the CONDUCT it engendered. iii) The 14th amendment does NOT permit states to make peaceful expressions of unpopular views CRIMINAL. (1) Edwards v. SC (1963): Court upheld peaceful civil rights protest around state capital. (2) Cox v. Louisiana (1965): (same result) civil rights protest that attracted hostile crowd. (3) Incitement of hostile audience laws must limit conviction to instances where there was a threat of imminent violence. Gregory v. Chicago (1969).


iv) Permit Requirements: Laws requiring speakers to obtain permits to speak cannot vest too much discretion with whoever is in charge of dispersing the permit. (1) A speakers permit requirement can NOT vest control over the right to speak in an official if there are not appropriate standards to guide his action. (a) Kunz v. NY (1951): Court held permit law prohibiting religious street meetings unconst. (2) A permit fee cannot be required that gives officials complete discretion to set the cost for the fee. (a) Forsyth County, GA v. Nationalist Mvt. (1992): Court held ordinance that allowed officials to vary a permit fee based upon the expense incident (charged the KKK a lot more than everyone else b/c no one likes them) unconstitutional. (b) In general, govt. cant refuse groups/speakers permits b/c they dont like what they stand for; likewise, speech cant be financially burdened simply b/c it might offend a hostile mob. e) Hate speech i) Overview: (1) Not classified as unprotected speech (2) Often encompasses FIGHTING WORDS (a) National Socialist Party v. Skokie (1977): Court held Nazi demonstration and swastikas in a Jewish town were NOT fighting words and those offended needed to avert their eyes. (b) Even if the banned speech IS fighting words, the govt. may NOT regulate the speech if the regulation is based on hostility or favoritism towards the message expressed. (i) R.A.V. v. St. Paul (1992): NEED TO UNDERSTAND R.A.V.!!!! (cross burned in yard) Court struck down ordinance b/c it only contained RACIAL fighting words (i.e. not gender, religious, non-racial) 1. The restrictions on speech are based on content a. Cant be banned if it is content based i. But exceptions obscentity, child porn, et are content based but not protected (ii) While fighting words can be banned b/c of its violent effects (Chaplinsky), it cant be banned b/c of the govt.s views about the speech (like or dont like it). ii) General Rule: If govt. singles out BIAS-MOTIVATED speech, and criminalizes it while NOT criminalizing other types of angry speech, the govt. can properly be accused of acting in a forbidden CONTENT-BASED, rather than content-neutral, way. (1) A ban on speech/conduct based solely on listed topics/motives intended to likely incite anger/violence is impermissibly content-based. (a) Doe v. U. of Michigan (1989): College hate-speech rule struck down as overbroad and vague (b) Corry v. Stanford (1995): Similar rule found overbroad (included speech that wasnt incitement) and content-based (only included BIGOTED insults; all other insults left out). iii) Exceptions: (1) Worst of the Worst: A state may impose a content-based ban on particular instances of unprotected speech if the ban forbids ONLY the very WORST examples illustrating the very reason the class of speech is unprotected. (a) Virginia v. Black (2003): Other cross burning case; law upheld that criminalized cross burning done to intimidate. (2) Secondary Effects: Content-based discrimination could be imposed when such speech is associated with undesirable secondary effects.


(3) Regulating Conduct: Govt. can regulate against certain CONDUCT even if this incidentally burdens speech (i.e. treason, telling dirty jokes at work). (a) Penalty Enhancement: A state may identify particular generally-applicable criminal proscriptions, and may then choose to punish criminals acts motivated by hate MORE SEVERELY than criminal acts not motivated by hate. (i) WI v. Mitchell (1993): (MI Burning in reverse) Court drew sharp distinction b/t speech and conduct; upheld bias-motivated assault law. (4) All Intimidating Acts: A state may select a particular type of expressive act (e.g. cross burning) and punish ALL instances where that act is done with an intimidating or threatening purpose. (a) Virginia v. Black (2003) (also worst of the worst) Because the statute targets intimidation of ANYONE (not just African-Americans or certain groups), it is constitutional. f) Sexually explicit expression i) Obscenity (1) While obscenity is unprotected speech, states are generally not completely free to define what obscenity is. Miller v. California (1973): Mail order pornographer convicted of sending porn to un-consenting/unsoliciting readers. (2) Miller Test: (Modern Definition of Obscenity) Allows states to limit commercial exploitation of sex and pursue its legit interests in preventing exhibition to minors/unwilling, while providing fair notice to possible offenders. (a) In theory, all factors of the test must apply (b) Govt. may regulate obscene material which, (i) Depicts or describes sexual conduct (ii) Which conduct is described specifically by state law (iii) Would be found to appeal to the prurient interest by the average person applying contemporary community standards. 1. Prurient: abnormal and unhealthy approach to sex (iv) Portrays sexual conduct in a patently offensive way (i.e. gross) (v) Has no serious literary, artistic, political, or scientific value (3) States may restrict commercial obscenity, even that viewed by CONSENTING adults, in order to further the legitimate interests of maintaining quality of life, preserving community environment, setting the tone of commerce, preserving public safety, and maintaining decency. (a) Paris Adult Theatre v. Slaton (1973): Court felt the community knowing the theater was there was enough to cause problems. ii) Child pornography (1) Child pornography is NOT protected speech, whether it is obscene or not. (a) NY v. Ferber (1982): Court upheld a law banning the distribution of child porn b/c of the compelling state interests of protecting children, sexual abuse prevention, and illegal activity. (b) Ferber Test: The state may regulate child porn if it (i) Is a visual depiction (ii) Of sexual conduct specifically described by the state (iii) By children below a specified age (doesnt include virtual child porn) (iv) And is made with some scienter (knowledge) (2) Mere POSSESSION of child porn is illegal.


(a) Osborne v. Ohio (1990): Decision justified by the substantial govt. interest of drying up the market for child porn. (3) Virtual Child Porn: Congress may NOT suppress sexually explicit images that appear to be child pornography but are not. (a) Ashcroft v. Free Speech Coalition (2002): Child Porn Prevention Act determined to be overbroad b/c it included virtual child porn (adult actors who look like kids); Court felt that there was no E that virtual child porn increased the market for real child porn. iii) Subordination of women (1) Feminist Attack on Porn: Asserts that porn promotes a view of women as inferior sex objects and, thus, is a type of sexual discrimination. (2) Content-Based: Ordinances that were content-based (i.e. distinguished b/t porn that subordinated/degraded women and porn that didnt) struck down. (a) American Booksellers v. Hudnut (1986): Court held ordinance as impermissible viewpoint based discrimination and thought control, b/c it attempted to outlaw only certain images of women; thus, speech treating women in the approved way was lawful no matter how obscene. Treating women in the disapproved way is unlawful no matter what its value. iv) Nudity bans (1) The Court can NOT act as a censor and selectively shield the public from all cinematic nudity. (a) Erzoznik v. Jacksonville (1975): Law banning all drive-in movie theater nudity struck down as content-based (all nudity banned, even that that wasnt obscene; overinclusive) and underinclusive (didnt ban violence or other distracting scenes). (i) Cohen: If you dont want to see it, avert your eyes. (2) The Court can NOT ban all live, nude entertainment b/c entertainment is protected under the 1st amendment along with political speech. (a) Schad v. Mount Ephraim (1981): Law prohibiting coin operated peep shows overinclusive. v) Erogenous Zoning (1) Zoning Ordinances: A zoning ordinance restricting porn theater placement must be analyzed as a content-neutral (intermediate scrutiny) time, place, and manner regulation. (a) The govt. may zone porn theaters by requiring their DISPERSAL. (i) Young v. American Mini Theaters (1976): Adult communication considered to be protected, but of lower value than other protected speech. (b) The govt. may zone porn theaters by requiring their CONCENTRATION. (i) Renton v. Playtime Theaters (1986): Law upheld b/c it was content-neutral/T, P, M. (2) Secondary Effects: While a states actions deal with a particular kind of speech, the laws target is the speechs secondary effects and NOT the speechs content. (a) Empirical Evidence: sometimes used to determine if secondary effects are possible. (i) Renton: City used study about the impact of adult entertainment in urban areas (crime, prostitution, drugs). (ii) City may rely on any Evidence that is believed to be relevant. (b) If a city demonstrates that concentration of adult businesses has resulted in adverse secondary effects, it does NOT have the burden of proving that these effects are exacerbated by having multiple adult businesses in the same building. L.A. v. Alameda Books (2002).


g) Overbreadth and Vagueness i) Difference between: (1) VAGUE but not overbroad: All unprotected speech is forbidden. (2) OVERBROAD but not vague: All 1st amendment speech is forbidden. ii) Laws often challenged under BOTH at the same time. iii) Overbreadth sweeps too broadly - includes more than the statute intends (1) it must substantially over-effect (2) A law which, in addition to proscribing forbidden activities, also sweeps within its coverage speech or conduct which is protected by the 1st amendment. (3) Example: All unnecessary noise is prohibited. (4) Standing: Overbreadth has standing with BOTH as applied and facial challenges. (a) As applied: Permits the challenger to show that the law would violate the rights of third parties, not before the court, and not necessarily as applied to the challenger. (i) Houston v. Hill (1987): (bothering cop) Law prohibiting interrupting a cop during an investigation struck down as overbroad b/c it was possible to apply it unconstitutionally and gave the police unfettered discretion to arrest those who annoy or offend them. (b) Facial: If the statute is found void on its face, it will be completely struck down as opposed to being narrowed. American Booksellers (subordination of women porn case). (5) Rationale: (a) Chilling effect on free speech (b) Danger of selective enforcement (6) Substantial Overbreadth (a) In response to criticisms of the overbreadth doctrine, the Court began requiring that the law be substantially overbroad before declared FACIALLY invalid. (i) Broadrick v. OK (1973): (Law restricting political activities by civil servants upheld) Overbreadth must be real and substantial, judged in relation to the statutes plainly legitimate sweep; otherwise, statute should be viewed as applied (i.e. case by case). (b) Substantial Overbreadth is strong medicine (b/c it completely destroys the law); therefore, it is generally NOT applied to laws governing pure CONDUCT, but can be applied to speech laws. (i) Board of Airport Comm. v. Jews for Jesus (1987): airport law prohibiting anyone from engaging in 1st amendment activities struck down as substantially overbroad. (ii) Ashcroft (virtual child porn case): struck down as substantially overbroad. iv) Vagueness (1) Reasonable person in reading the law, cannot understand its meaning. (2) A law where the conduct is so unclearly defined that reasonable persons must guess at its meaning. (3) Example: People under 18 cant engage in heavy petting. (4) Rationale: (a) Chilling effect on free speech (b) Due Process requires fair notice of what conduct is prohibited (5) Laws that subject the right of assembly to an unascertainable and subjective standard will not be struck down as vague. (a) Coates v. Cincinnati (1971): Law making it a crime for 3 or more persons to assemble on the sidewalk and behave in an annoying manner struck down. (Also overbroad). (6) Court has drawn a distinction with regard to vagueness b/t laws regulating speech and laws SUBSIDIZING speech.


(a) NEA v. Finley (1998): When the govt. acts as a patron, rather than a sovereign, the consequences of imprecision are not constitutionally severe. h) Communications Media and Indecency i) Broadcasting (1) The govt. may impose certain sanctions against radio/TV broadcasts that contain patently offensive language (sex or excretion) UNLESS the sanctions target the speechs social or political message. (a) FCC v. Pacifica (1978): George Carlin radio monologue found to be indecent (not obscene), but worthy of lesser protection than other protected speech. The PERVASIVE context of radio broadcasting was seen as different from Cohens jacket. (i) The problem was inherent difficulties with broadcasting it is pervasive and it reaches children 1. Broadcasting is less protected that other types of speech (ii) The sanction from the FCC was a write up so it was put in their file (b) Denver Area Edu. Tele. v. FCC (1996): Court upheld authorization of cable TV operator to prohibit programming it reasonably believed was patently offensive, but struck down the blocking requirement of the law and its definition of sexually explicit conduct. (i) COURT COULD NOT DECIDE on the appropriate scope of review 1. 4 says less than strict, 2 say strict a. this case shows the courts difficulty in coming to agreement about this medium (2) In Pacifica and Denver, the Court is trying to balance b/t the interests of free speech and protection of children/un-consenting viewers (i.e. suggestion of only late night programming). (3) Captive Audience Rationale: Court concerned about protection of privacy within the home. (a) Rowan v. U.S. Post Office (1970): Court upheld law that permitted residents to keep unsolicited sex mail from being delivered to them; mailers right to communicate stopped at the unreceptive recipients mailbox. (b) Compare this case to Bolger v. Youngs (i) Bolger federal law barred he mailing of ads for contraceptives 1. There is a short journey from the mail box to the trash can (pg 910) (4) Strict Scrutiny: SS will be used if the state is burdening offensive speech on the grounds of its offensive content; content-based=SS. (Denver uses intermediate scrutiny: two tier analysis) (a) U.S. v. Playboy Entertainment (2000): Court struck down law under SS that REGULATED, but did not ban, cable indecency by requiring cable operators to scramble porn, or confine it to late night hours. Court emphasized the speech itself, as opposed to its secondary effects, was burdened by these requirements. (i) The requirement is content based (5) Fleeting Expletives: Fleeting expletives are allowed to be censored and regulated by the FCC. (a) FCC v. Fox TV (2009) ii) Phone (1) Strict Scrutiny: Govt. may regulate indecent dial-a-porn telephone messages but only to promote a compelling govt. interest and by using the least restrictive means possible. (a) Sable Comm. v. FCC (1989): Court struck down part of the amended Communications Act b/c indecent couldnt be defined w/o also including protected speech; also, phone was not seen as pervasive as radio and TV.


(i) This law was too vague AND this case was different from Pacifica because one must take affirmative steps to get to the indecency iii) Internet (1) Strict Scrutiny: The govt. may regulate the Internet to protect children from indecency, but only using the least restrictive means. (a) Reno v. ACLU (1997): Court struck down the Communications Indecency Act, which criminalized sending/displaying gross stuff to minors on the Internet, as overbroad (sweeps in content which is protected), content-based restriction on speech. SS used (i) Pervasive: Although the Internet is pervasive, the govt. cant criminalize protected adult speech to protect minors. (b) Preventing the dissemination of harmful Internet content is NOT the least restrictive alternative to protect minors. (i) Ashcroft v. ACLU (2004): Court struck COPA down b/c less restrictive alternatives were available (i.e. filtering software). (c) Law requiring public library computers to have filtering software is constitutional even though they require the library to limit computer access. U.S. v. Amer. Library Assoc. (2001) i) Commercial Speech i) Unprotected: Traditionally, most kinds of commercial speech were viewed as being unprotected speech. (Valentine v. Chrestensen, 1942) ii) Protected: In 1976, however, the Court declared that commercial speech was protected speech. (1) 2-Tier: Commercial speech protected, but not as protected as other protected speech b/c, (a) Hardier and more Verifiable (b) Thus, Intermediate Scrutiny (2) Virginia Pharmacy Board v. VI Citizens Consumer Council (1976): (prescription drug ads) Court held that a state may NOT completely suppress the dissemination of concededly TRUTHFUL information about entirely LAWFUL activity b/c it is fearful of that informations effect on society. (a) Linmark v. Willingboro (1977): Like VI Pharmacy, Court struck down this law prohibiting placement of For Sale signs in yards b/c the law was attempting to keep the public in a state of ignorance b/c truth about home sales (white flight) might cause irrational behavior. (3) Bolger v. Youngs Drug (1983): Court struck down a law that prohibited mailing of unsolicited ads for contraceptives (gave modern definition also). (4) Modern Definition: Commercial speech is a communication which, (a) Does no more than propose a commercial transaction OR is an advertisement AND (b) References specific products AND (c) Is mailed for ECONOMIC motivations

(5) Services: Commercial speech protection also applies to lawyers in the way they may acquire clients; thus, commercial speech not only protects products, but also SERVICES. (a) States may NOT ban all newspaper advertising of legal services. Bates v. State Bar of AZ (b) However, a state may ban in-person legal solicitation for pecuniary gain. Ohralik v. Ohio B. iii) Intermediate Scrutiny:


(1) Central Hudson Test: Remains the standard to determine if the govt. may regulate commercial speech; essentially intermediate scrutiny with an extra prong that makes it ok to impose any restriction on speech if the speech is deceptive or illegal. (a) Test: Truthful and legal advertising may be regulated IF, (i) The restriction is justified by SUBSTANTIAL govt. interests (ii) The restriction directly advances that interest (iii) The regulation is the LEAST restrictive method needed to achieve the interest (b) Central Hudson Gas v. Public Service NY (1980): Court held that the govt. may not ban advertising by electricity utilities designed to stimulate utility service purchases; b/c such a suppression is more extensive than necessary. (c) Directly Advances That Interest Prong: (i) Metromedia v. San Diego (1981): Ordinance failed this prong b/c it prohibited non-commercial, but allowed commercial billboards; Court felt city interest of traffic safety was not advanced. (ii) Cincinnati v. Discovery Network (1993): Ordinance failed this prong b/c its prohibition of commercial newspapers (but not other newspapers) on news racks bore no relationship to the city interest of aesthetics. (d) Least Restrictive Prong: (i) Board of Trustees, State U. of NY v. Fox (1989): (Tupperware) Test is no more restrictive than necessary and NOT the least restrictive means possible. iv) Vice Exception: (1) Power to ban includes the power to regulate theory: (a) Posadas de Puerto Rico v. Tourism Co. (1986): Court upheld state law prohibiting gambling casino advertisements; Court reasoned if the state could totally ban gambling, this was ok. (b) U.S. v. Edge Broadcasting (1993): Court upheld federal statute prohibiting lottery ads in states that did not have lotteries. (2) Government can NOT stop liquor dealers from advertising. (a) 44 Liquormart v. Rhode Island (1996): Court felt the interest of temperance was not furthered by the law banning liquor ads; Central Hudson Test applied. (3) Restrictions on commercial speech are NOT subject to Strict Scrutiny (a) Lorillard Tobacco v. Reilly (2004): Court applied CHT to hold state law prohibiting tobacco ads near schools was preempted by a federal law. Even though content-based, the Court still applies IS with the CHT (failed last prong; not narrowly tailored enough). (b) Greater New Orleans Broad. v. U.S. (1999): Court applied CHT to strike down law banning lottery and casino ads b/c the law was not directly related to decreasing gambling b/c it allowed for so many exceptions. j) Content-based vs. Content-neutral i) Content-Based Restrictions (1) Strict Scrutiny (2) Viewpoint restrictions (a) The paradigm of 1st amendment violations (i) Where one point of view of a subject is either banned or given priority (b) Examples: (i) States cant deny licenses to films that advocate a certain idea, such as adultery. (ii) Mere advocacy of violent overthrow of the govt. can NOT be made a crime.


(iii) Ordinance cant only prevent bigoted fighting words. (iv) Law cant only prohibit porn that is subordination of women. (3) Subject Matter restrictions (a) Where govt. regulation eliminates an ENTIRE topic (not just one viewpoint on that topic) (b) Strict Scrutiny used (c) Examples: (i) Ordinance bans all bigoted fighting words. (ii) Law bans all drive-in movies containing nudity. (iii) Son of Sam law struck down that imposed a financial burden on criminals writing books about their crimes. Simon & Schuster v. NY Crime Victims Board (1991) 1. Under SS, the law was not narrowly tailored to the compelling govt. interest of protecting crime victims. (iv) Law banning picketing outside of a school (except for labor picketing) struck down as contentbased discrimination. Police Dept. v. Moseley (1975). (v) Law prohibiting judicial candidates from announcing their views on politics struck down b/c it violated speech both on the basis of content, and the basic right of freedom of political speech. Republican Party v. White (2002) (d) Strict scrutiny does NOT invalidate all subject-matter restrictions. (i) Burson v. Freeman (1992): Court upheld state law prohibiting solicitation of votes and political poster display within 100 feet of any polling place entrance. Court felt the compelling interest of the right to vote in an integral/reliable election trumped free speech rights. What is difference between subject and viewpoint discrimination? Subject deals with an area viewpoint discrimination is narrower ii) Content-Neutral Restrictions restriction of speech that is not focused upon its content you cant put a billboard over here. (1) Time, Place, and Manner: (a) Restrictions on place on generally not a problem (b) Time restrictions must be reasonable (you cant hold a rally in a neighborhood park at 10pm) (2) Intermediate Scrutiny but a heightened scope of review (a) such restrictions are valid provided (1) that they are justified without reference to the

content of the regulated speech, (2)that they are narrowly tailored to serve a significant government interest, and (3) that they leave open ample alternative channels for communication of the information.
(3) Symbolic Conduct (a) Up until now we have been talking about oral or written speech but things like dancing, theatre, clothing, hair a variety of areas of communication (i) Middle finger is this protected? Is this expressive? Depends on the place (ok in road, not in class) 1. Expressive someone intending to send a message and understood by the receiver (ii) Resident taped out live free or die on NH license plate 1. The court said there was a right not to speak and upheld this right (iii) Gang symbols


(iv) Sleeping in the Park 1. Park across from White House people protest homeless advocates asked for a permit to sleep in park to show homeless didnt have a place to sleep a. Court said it was expressive b. Is it content based? i. Look at what the park service says about other situations like this ii. Park service had a policy not to allow this to happen iii. Court says it is content neutral - applied TPM test iv. This is a legitimate restriction (v) Confederate Flag Shirt? (vi) Expenditures in Political Campaigns? (vii) Hair Length middle school students wearing hair long in violation of dress codes 1. Liberty interest in the way you look but not fundamental interest (b) How does one differentiate between speech and conduct? Can something be both? (c) Cross burning: R.A.V. (d) U.S. v. OBrien (THE TEST FOR SYMBOLIC SPEECH) (1968): David O'Brien burned his draft
card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime. Court upheld conviction of draft dodger

who ceremoniously burned his draft card in front of a crowd. (i) The court said the government interest was very strong 1. Protecting the value of the card (e) OBrien Test: Test determines if the conduct is symbolic expression that can be regulated by contentneutral restrictions. (i) Test: When an ACT combines both speech and non-speech elements, the govt. may impose regulations if the regulation: 1) Be within the constitutional power of the government to enact, 2) Further an important or substantial government interest, 3) That interest must be unrelated to the suppression of speech (or "content neutral", as later cases have phrased it), and 4) Prohibit no more speech than is essential to further that interest. (ii) When the govt. interest is unrelated to freedom of expression, the law is content-neutral and OBrien is applied. 1. OBrien: Court felt the UMTSA was aimed at CONDUCT (draft running smoothly) and not speech; thus, the important distinction is b/t expressive and non-expressive conduct and NOT b/t conduct and speech. 2. Arcara v. Cloud Books (1986): Court held ordinance allowing closure of places of prostitution and lewdness (b/c they were public health risks) had nothing to do with expressive conduct (bookstore could simply move to another place. (f) Nude Dancing: Nude dancing is considered expressive conduct (it is expressive only at the outer limit it expresses eroticism), but it receives only minimal protection under the 1st amendment. (i) OBrien Test: applies to nude dancing even though it is expressive conduct. (ii) The govt. may completely ban nude dancing on the basis of morality. 1. Barnes v. Glen Theaters (1991): (Govt. could require pasties and G-strings) Court applied OBrien test b/c they felt the ban was content-neutral and had only incidental effects on expression.


(iii) Barnes reaffirmed with different reasoning: The govt. may RESTRICT, but not ban, nude dancings SECONDARY EFFECTS, as basing a law on morality alone is not sufficient. 1. Erie v. Paps A.M. (2000): Court applied the OBrien test to uphold law. 2. Paps Test: Govt. may ban nude dancing if, i. Its intent is to prevent secondary effects rather than the expressions content ii. Its regulation is rationally related to promoting legit state interests.

(g) The OBrien test is NOT applied if a law is content-based (then SS applied).
(i) Wearing a black armband in protest of the Vietnam War at school is protected speech that was not disruptive. Tinker v. Des Moines School District (1969) 1. Middle schooler wore a blkack arm band to protest Vietnamese War a. Told to leave school she did not case went to the SC 2. Court said this was pure speech 3. This happened in a school this is not an open forum a. But court said she was allowed to protest like this unless there was a material disruption in the class i. free speech does not end at the school house door (ii) Expressive flag burning is protected speech and outside the OBrien test. 1. Texas v. Johnson (1989): Court held law banning public flag burning in order to preserve the peace and national symbol was unconstitutional. Govt. may NOT prohibit the expression of an idea simply b/c society finds the idea itself offensive. 2. Flag burning laws will be struck down if their main purpose is to keep the flag from being used to communicate protest or dissent. U.S. v. Eichmann (1990) 3. Was the burning of the flag expressive conduct? a. Obviously yes planned to send message and it was received b. Symbolic Speech 4. But court did not apply OBrien test because it is a content based restriction (targeting a particular act-aiming at speech) k) Speech in Public Forums and other Govt. property i) Speech may be restricted from government property ii) This section involves cases where the PLACE the speech is given, as opposed to the speech itself, is examined. (1) Forum Types: (a) Public Forums (i) Places where people customarily/traditionally communicate (i.e. parks, streets) (ii) Most protected places for speech (b) Limited Public Forums (i) Places where people want to communicate, but it is not customary (i.e. schools, theaters) (ii) If opened to communication, the govt. may place limits on what type of communication can happen there. (c) Non-Public Forums (i) Places where communication doesnt happen (i.e. courtroom, inside jail cell, nuclear site) (ii) Court determines whether places are not appropriate to be interrupted by speech. (2) What should the test be?


(a) Equal Access: Everyone who wants to speak at a place should be treated EQUALLY. (b) Guaranteed Access: The speaker is always GUARANTEED the right to speak at the place.

(3) Time, Place, and Manner Restrictions (a) Court will take how the place is CLASSIFIED into account (b) Viewpoint discrimination (i) Ex: If a NPF is allowing one viewpoint to be expressed, but not another=discrimination. (c) Time, Place, and Manner Test (i) Content-neutral law a must (ii) Law must be narrowly tailored to serve a significant govt. interest (iii) Law must leave open alternative channels of communication iii) Govt. Deference: Early public forum cases gave much deference to the government. Davis v. Mass. iv) Speech Protective: Public officials cant be given too much discretion to discriminate among speakers on the basis of the speechs content. (1) By the 1930s, standardless licensing schemes were invalidated for conferring too much discretion on public officials to discriminate against speech on the basis of content. (a) Support for EQUAL ACCESS idea: Lovell v. Griffin (2) Requirements for licensing schemes were applied equally to PERMITS to speak. (a) Test: The govt. can require a license for speech in public forums ONLY if, (i) There is an important reason for the licensing (ii) There are clear criteria leaving almost no discretion to the licensing authority (iii) There are procedural safeguards (i.e. judicial review, prompt determination) (b) Permit requirements for LOUDSPEAKERS on cars, that give unfettered discretion to officials, are unconstitutional. Saia v. NY (1948) (3) Streets are natural/proper places for the dissemination of information; thus, one cant have his liberty of expression in these places abridged simply b/c the liberty may be exercised in some other place. (a) Schneider v. NJ (1939): Law prohibiting the distribution of leaflets prohibited; law not narrowly tailored to the littering interest (i.e. better to punish those who actually litter). (4) Some protesters have taken a chance by defying a limiting ordinance and hoping it will be struck down in court as unconstitutional. (a) Shuttlesworth v. Birmingham (1969): Law not allowing parade permits if the peace, morality, or safety of the town was endangered struck down as vague/gave too much discretion (b) Walker v. Birmingham (1967): Here the city went to the court and secured an injuction. MLK defied the injunction this time the SC upheld the arrest (i) Difference between an ordinance or statute and an order of the court a party is not free to ignore all the procedures of the law. Go ahead and ignore an ordinance, but if a court issues an injunction, you cant just ignore this. (5) Content-neutral measures that ELIMINATE a common means of speaking can be held to have suppressed too much speech. (a) City of Ladue v. Gilleo (1994): Law struck down that banned posting of signs (even at home) (b) Watchtower Bible v. Stratton (2002): Door to door solicitation is speech protected by the 1st amendment; thus, permit requirement for such salespeople struck down. Law was not narrowly


tailored (i.e. people could just put up no soliciting signs) and privacy interest werent served by the law (i.e. someone knocking is just as annoying with/without a permit). v) Permissible Time, Place, and Manner Restrictions: Court has upheld govt. speech restrictions as valid T,P, and M restrictions; even when these restrictions were viewed as total medium bans. (1) If a city has authority to control the USE of its public streets for parades/processions, it can NOT be denied authority to give consideration, without unfair discrimination to time, place, and manner in relation to the proper uses of the street. (a) Cox v. NH (1941): Permit required, but it would only be denied if another group was using the street at the same time.

(2) If the laws are narrowly tailored to a significant govt. interest they will be upheld. (a) Kovacs v. Cooper (1949): Court upheld a city law banning any device that emits loud and raucous noises attached to a vehicle.

l) Prior Restraint
i) Govt. limitations on speech BEFORE it is uttered or communicated. ii) Contrast is stopping speech before given and punishing speech after it happens (1) Ex: Censorship or Requiring a permit/license (arguably) (2) Presumed to be constitutionally invalid: chilling effect possible iii) The PRESS has almost absolute immunity from pre-publication restraints. (1) NY Times v. U.S. (1971): Historians were paid to compile a hx of the war. They were given access to confidential documents. The authors then took the papers to the Washington Post. The papers were embarrassing. The President argued that prior restraint was necessary to protect national security. (a) (AKA: The Pentagon Papers Case) A divided Court decided that prior restraint in the press should only be allowed if there is a virtual certainty that grave damage to the country would result. (i) The government has a very heavy burden of proof. (ii) U.S. v. Progressive, Inc. (1979): Court enjoined a magazine from publishing an article about how to make an H-bomb. iv) Municipal theaters are LPF, and designed for and dedicated to expressive activities. (1) Southeastern Promotions v. Conrad (1975): Court found city guilty of prior restraint when it refused to show the musical Hair b/c it felt the showing would not be in the communitys best interests. (a) Freedman v. Minnesota was applied m) Time, Place, and Manner restrictions according to FORUM TYPE i) It is reasonable for a government to put restrictions on time place and manner (1) What would be the options for someone denied a permit based on content? (a) ii) Perry (1983): Court summarizes how various forums may be regulated according to the time, place, and manner test. (1) PF and LPF (a) (SS) Content-based restrictions are permitted ONLY if: (i) Necessary to serve a compelling govt. interest (ii) Narrowly tailored to that interest


(iii) Thus: Time, place, and manner test wont apply in this case (b) (IS) Time, Place, and Manner restrictions are allowed if they: (i) Are content-neutral (ii) Narrowly tailored to serve a significant govt. interest (iii) Law leaves alternative channels of communication open (2) NPF (a) Govt. may impose time, place, and manner restrictions and may restrict speech if the restriction is: 1) Reasonable and 2) Not intended to suppress certain viewpoints iii) PF and LPF Examples: (1) Streets are PF (a) Laws meant to implement pedestrian safety must be narrowly tailored. (i) Law that prohibits the obstruction of public sidewalks was not narrowly tailored and gave complete discretion to officials. Cox v. Louisiana (1965). (ii) Regulating the flow of pedestrian traffic through state fair grounds can satisfy the time, place, and manner test if the law is content-neutral, narrowly tailored, and leaves open alternative communication channels (i.e. booths). Heffron v. Krishnas (1981). (2) Billboards held to be LPF: Court invalidated a law as content-based that prohibited non-commercial billboards while allowing commercial billboards. Metromedia v. San Diego

(3) Inside of a city bus held to be a LPF (a) When the govt. operates a commercial venture, it may accept commercial advertising but prohibit political ads. (i) Lehman v. Shaker Heights (1974): Court held inside of a bus was not a PF, and the city transit had the authority to determine what ads were placed inside the bus. (4) Residential mailboxes a LPF? (a) Residential mailboxes are NOT a traditional PF, and, thus, TPM test doesnt need to be applied to laws regulating mailboxes. (i) Law prohibiting unstamped mailable matter from being put in mailboxes upheld. 1. U.S. Postal Service v. Greenburgh (1981): Court felt as long as the law was content-neutral and the govt. acted REASONABLY (NPF?) the law could be upheld. (ii) Inter-school mail system could deny use to rival school union based on the STATUS of the rival union, and not its views. Perry Edu. Assn. v. Perry Local Edu. (1983) iv) Public Schools as LPF What constitutional rights do students have in schools? (1) Students do not give up their Freedom of Speech rights at the schoolhouse door (Tinker), their rights are no coextensive with adults rights (2) A schools primary purpose is to educate if the speech does not interfere then it is okay (a) Silent protests that dont disrupt the educational process are protected by the 1st amendment. (i) Tinker: black arm band (political speech) 1. Was not disruptive and therefore denial of this speech was unconstitutional (3) Books located in a school library that are NOT part of the educational curriculum cannot be removed b/c of their content.


(a) Board of Edu. v. Pico (1982): Murky decision; Court felt it would have been ok to remove the books if they were pervasively vulgar or lacked educational suitability (i) The constitution does not permit the suppression of ideas (ii) There is a difference between adding books and removing books a. Because limited resources for buying books (4) In recent years, the Court has been much more deferential to school employees and less protective of speech in public school environments. (a) Sexual speech is not protected in school. Bethel School Dist. v. Frazer DISRUPTS ED. PROCESS (1986). (i) His speech was lewd and the responsibility of the school was to instruct the students on appropriate behavior the Court said it would undermine the schools basic educational mission. (b) School paper is a NPF; only reasonable regulation. Hazelwood School Dist. v. Kuhlmeir (i) School should be given deference when choosing curriculum and because this was a learning experience and a not public forum like Rosenberger (ii) Court said newspaper was part of school curriculum 1. As long as the restriction is reasonably related to legitimate pedagogical concerns it is okay (c) School officials can censor any student speech that interferes with a schools educational mission. (i) Morse v. Frederick DISRUPTS ED. PROCESS (2007): Bong Hits 4 Jesus at a supervised school event punished on a class trip b/c the message interfered with the schools anti-drug policy. 1. ruling that school officials can prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this right does not extend to prodrug messages that may undermine the school's important mission to discourage drug use. v) NPF Examples: (1) Utility Poles held to be NPF: Court has ruled that govt. may prohibit the posting of political campaign signs, as opposed to other signs, on utility poles. Taxpayers for Vincent (1984) (a) Court felt that even though the poles were public property, they werent traditional vehicles for communication. (2) Jail property held to be a NPF (a) Court held the state, no less than a private property owner, has the power to preserve and control the property for the way in which it was meant to be used. Adderley v. FL (1966). (b) Dissent thought that jails, like all govt. property, were PF. (3) Libraries held to be NPF (a) Govt. can instruct libraries to block internet porn without violating the 1st amendment. (i) U.S. v. American Library Assn (2003): Finley (when govt. acts as patron it has more power). (4) Military Bases held to be NPF (a) Military bases, even though parts are open to the public, are NPF, and the govt. need not permit speech there. (i) Military base can prohibit political activity on its property b/c the base is for training soldiers and NOT providing a public forum. Greer v. Spock (1976)


(ii) Military base being open for one day to the public doesnt transform it into a PF. 1. U.S. v. Albertini (1985): Man found trespassing under the OBrien test. (5) Solicitation as a NPF (a) Charities: Access to a NPF can be based on subject matter and speaker identify so long as the distinctions are reasonable and viewpoint-neutral. (i) Cornelius v. NAACP (1985): Court upheld federal law which limited solicitations during working hours to those by the Combined Federal Campaign, which only raised money for certain charities; legal defense and political organizations could not receive funds. (b) Airports (i) Airports are NPF and may ban solicitation. Krishna Consciousness v. Lee (1992): Court upheld a ban on solicitation at airports but struck down a ban on distribution of literature in the terminal. (c) Post Office Sidewalk (i) If a sidewalk outside govt. property was constructed only to permit access to a post office (rather than just for public convenience), than it is NOT a PF, and speech restrictions there are valid if reasonable. U.S. v. Kokinda (1990): While sidewalks are usually seen as PFs, the use of an area that SEEMS to be a sidewalk does NOT necessarily assure the most careful scrutiny. vi) Narrow Tailoring: The narrow tailoring requirement of the TPM test is satisfied as long as the regulation is MORE effective than no regulation at all; thus, the regulation is satisfied even if the regulation is not the LEAST restrictive/intrusive method. (1) AKA: The Ward Test: Remember, this deferential definition of narrow tailoring ONLY applies to the time, place, and manner test. (2) Ward v. Rock Against Racism (1989): Court upheld ordinance that concerts using Central Park had to use the citys sound engineers and equipment. Although imposing a decibel limit would be less restrictive, the law was narrowly tailored enough to the interest of noise reduction. vii) Captive Audience: The govt. may prohibit speech as intrusive when the captive audience can NOT avoid the objectionable speech. (1) Focused Picketing: Court narrowly construed and sustained a flat ban on focused picketing of abortion docs home. (a) Frisby v. Schultz (1988): Satisfied the TPM test b/c content-neutral (applied to all picketers), narrowly tailored (only applied to captive residents), and left alternative channels open (marching around the neighborhood). (2) Abortion Clinic Protests: Court has upheld restrictions on protests outside abortion clinics as reasonable time, place, and manner restrictions. (a) Madsen v. Womens Health Center (1994): Court upheld fixed buffer zones and noise restrictions outside an abortion clinic but struck down floating buffer zones (approaching the person going inside) b/c this burdened more speech than necessary. (i) Ward TPM test applied: regulation only must be more effective than no regulation. (b) Court upheld content-neutral law that prohibited protesters from approaching patients coming out of ANY health care facility (though aimed at abortion protesters). (i) Hill v. Colorado (2000): Fixed and floating buffer zones upheld. viii) Invalid TPM Restrictions


(1) Total Bans: A total ban on ALL speech that is unnecessary to preserve order/prevent disruption is an invalid time, place, and manner restriction. (a) U.S. v. Grace (1983): Court held a broad restriction of speech on the outside area of the Supreme Court building unconstitutional. (2) Silent Protest: A silent protest that does NOT interfere with a forums operation cannot be prohibited by the time, place, and manner test. (a) Brown v. Louisiana (1966): Silent segregation protest inside a public library; Court noted the protesters had every right to be there b/c the segregation was unconstitutional. n) Speech of Govt. employees i) Public speech by govt. employees is protected by the 1st amendment. (1) Matters of Public Concern: Speech that would be of interest to those outside the workplace walls (a) Pickering v. Board of Education (1968): Public school teacher could not be constitutionally fired for writing a letter to a newspaper criticizing the school boards handing of various school matters. Teacher allowed to speak about matters of public concern as a private citizen. (i) Public concern = matter of social, political not just a personal griping 1. She couldnt have complained about her salary for example 2. Pickering Test (for evaluating employee free speech claims): Balance b/t the interests of the employee, as a citizen, in commenting upin matters of public concern and the interest the State, as an employer, in promoting the efficiency of the public services it performs though its employees (2) Matters of Private Concern: Speech that would NOT be of interest to those outside of work. (a) Not protected by the 1st amendment (b) Connick v. Myers (the case when deciding when public employees speech is protected) (1983): (Distinguishes b/t public and private) Court upheld lawyers firing b/c the 22 question interoffice memo she circulated criticizing her boss was NOT matters of public concern/public speech. (i) The court: employee speech on private matters . . . carries so little social value, such as obscenity, that a state can prohibit and punish. (ii) Public Concern: OF LEGITIMATE NEWS INTEREST (San Diego v. Roe) - employees may address matters of public concern (c) Pickering Test: Is it protected? Balancing test: (i) Is it a matter of public concern? (ii) Does it impact the public services workplace? 1. Does it impact the work place? Is there a close working relationship b/t employee and boss (d) Speech is NOT protected as matters of public concern if it is made pursuant to the employees official duties. (i) Employee statements made pursuant to their official duties are not protected as public speech. Garcetti v. Ceballos (2005): Court upheld discharge of lawyer crit. of case. (ii) The trier of fact should accept the EMPLOYERS account of what the employee said as private speech, so long as it is reasonable to do so. 1. Waters v. Churchill (1994): Court upheld firing of nurse critical of training program. a. This was PUBLIC CONCERN ii) Public Concern (1) Impropriety in the public office is a matter of public concern that is NOT protected speech.


(a) There are limits to the scope of matters of public concern on which public employees may make commentary in their capacity as private citizens. San Diego v. Roe (gross cop E-bay). (2) The inappropriate or controversial character of a statement is irrelevant to the question of whether or not it deals with a matter of public concern. (a) Rankin v. McPherson (1987): Court held rude comment about attempted assassination of Reagan was a matter of public concern and employee couldnt be fired b/c of it. (i) What about close working relationship? 1. She wasnt around many others she was a low level attorney (b) If such comments of public concern disturb the working environment, they may not be protected.

o) Public Subsidies of Speech

i) It is constitutional for the govt. to selectively fund programs which encourage certain activities in the public interest, without also funding alternative approaches. (1) Rust v. Sullivan (1991): Funding conditional on NOT counseling women about or referring them for abortion. This is govt. speech and the govt. is acting as a PATRON the government can limit this (a) Viewpoint Discrimination: OK if the govt. is the speaker (or uses private entities to convey its message. (2) U.S. v. American Library Association: Library porn filter case. (3) NEA v. Finley (1998): NEA able to limit subjective discretion; constitutional. (a) Congress enjoys wide latitude when setting spending priorities which may indirectly affect certain forms of expression. The funding of one activity believed to be in the public interest, to the exclusion of another, does not constitute viewpoint discrimination. There is no constitutional violation if a program is religion-neutral and has a secular purpose/effect of helping foster a wide array of activities and viewpoints on a campus. (4) Rosenberger v. Rector, U. of VI (1995): Rule that prohibited funding religious activity with student activity fees was struck down. (Private speech?) (a) Here, unlike Rust, the U. is not itself speaking or subsidizing transmittal of a message it favors, but instead expends funds to encourage diversity of views from private speakers. (b) Here, unlike Finley, there is no competitive process, hortatory language, Govt. as patron. (c) Viewpoint discrimination, ii) However, PRIVATE speech may not be restricted or controlled by limitations on the use of funds. (1) Legal Services v. Velazquez (2001): Court struck down law that prohibited legal services from representing clients in an effort to amend welfare laws. (a) Viewpoint Discrimination: NOT OK when the govt. seeks to use an existing medium of expression (lawyer/client communication) and control it in ways that distort its usual functioning. (i) Unlike Rust, this is private speech, and the clients (unlike the women who might want an abortion) have no other alternative for aid. (b) Like Rosenberger, here, the LSC is facilitating private speech (advice from lawyer to client) and NOT promoting a govt. message. p) Compelled association and the right NOT to associate i) The Constitution considers there to be TWO rights of association: (1) Intimate Association smaller group, highly selective (a) Griswold birth control case; Mentioned in the dissent of Bowers (homosexuals right to be left alone) (2) Expressive Association -


(a) Overall message espoused by a group. Can be a larger group. If a group is determined to be an expressive group, the next question to ask is, does the inclusion of a person significantly affect the ability to advocate public or private viewpoints. ii) Compulsory Membership (1) Compulsory membership doesnt necessarily interfere with expression: antidiscrimination will overcome complaints if an expressive association message isnt being advocated. (a) Roberts v. Jaycees (1984): Court decides b/c the Jaycees is a business, it does NOT have expressive association protection; also, it is ok to let women have full membership privileges b/c the club doesnt have an expressive message they want to convey and not including women is not central to any club message. They did not clear the firs hurdle, the intimate association. (b) Rotary Club case: State antidiscrimination law overcame complaint against excluding women. Court held the decision didnt violate either intimate or expressive association. (2) However, the more central and unequivocal the organizations views on a particular matter are, the greater the interference with associational rights if the organization is forced to accept a member with opposing views. (a) Boy Scouts v. Dale (2000): Court upheld expressive association right for the Boy Scouts to exclude a gay scout leader; Court felt group was too big for intimate association, but their expressive views of living a morally straight and clean life could be used to exclude. (i) Boy Scouts message is affected if they cant discriminate. 4) Freedom of Religion a) Introduction i) Court agrees that: (1) One can BELIEVE whatever they want, but you cant ACT however you want. (2) The SINCERITY of a belief may be considered, but NOT the truth behind it (3) FE and EC apply, by their terms, only to congressional acts; however, the Court interprets the clauses to apply to states through the 14th amendment Due Process clause. ii) Conflict b/t the Free Exercise Clause and the Establishment Clause (1) Ex: State financial assistance is given to private schools, including parochial schools. (a) FE clause: Students FE of religion burdened b/c economic burdens force them into public and not parochial schools? (b) EC: Violated b/c govt. is assisting parochial schools in an activity that has a strong religious aspect. iii) Free Exercise Clause (1) 1st amendment clause that bars any law prohibiting the free exercise of religion. (2) Purpose: Prevents the govt. from OUTLAWING or seriously burdening a persons pursuit of whatever religion/religious practice they choose. (3) Regulation with unintended effect of burdening religious belief: (a) Religious BELIEF being burdened= Strict Scrutiny (b) Sherbert Test: Where state regulations have the unintended effect of burdening religious belief, the laws will be upheld ONLY when they are the least restrictive means of accomplishing a compelling state objective. (SS). (i) Must coercion be involved in the Sherbert test? (ii) Sherbert test doesnt apply to crimes (Smith peyote case). (iii) Sherbert v. Verner (1963): State policy (no unemployment benefits w/o good cause) burdened womans FE rights b/c it made her choose b/t employment and following her religion (she


couldnt work on Saturday, and was fired). Assuring merit of unemployment funds not seen as a compelling state interest. 1. Strict Scrutiny was applied a. State interest was handling fraudulent claims (iv) Thomas v. Review Board (1981): Govt. cant deny unemployment benefits to someone who quit his job (making war items against religion) rather than accept a transfer. (v) However, states secular purpose of a uniform day of rest upheld against Jewish businesses opposing Sunday closing laws. Braunfeld v. Brown (1961). 1. Court said this made practice of religion more expensive but this was not unconstitutional (c) Compulsory Education: Religious beliefs granted an exemption from state law will be upheld, even if the state law must make a slight sacrifice to its objectives. (i) State interest of having an educated population is not as compelling as a parents right to rear their children as they wish. WI v. Yoder (1972): Amish dont want their kids educated past 8th grade because they dont want to them to be worldly. 1. Balancing act here state interest is important/Amish religious interest is compelling 2. The court applied Strict Scrutiny (d) Dictation of Govt. Procedures: The FEC affords an individual protection from certain forms of govt. coercion; it does NOT, however, afford an individual a right to dictate the conduct of govt. internal procedures. (i) The need for everyone to have a SSN outweighs the religious belief that having the number will rob the spirit of a child. Bowen v. Roy (1986) (ii) The FE clause cannot be understood to require the govt. to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. No matter how much govt. action burdens an individuals practice of religion, if the individual is NOT being coerced (i.e. Sherbert Test), there is NO FE violation (no SS). 1. Lyng v. Northwest Indian Cemetery Protection (1988): Court held govt. could construct a road through federal land, even though this destroyed certain Indian ritual grounds. (4) Regulation of Religious Conduct (a) Traditionally: So long as the state was acting in pursuit of secular ends, and regulating conduct, as opposed to belief, the FEC does not bar the regulation. (i) Reynolds v. U.S. (1878): Mormons complaining about law banning bigamy. (b) Modern: The FEC will almost always strike down (under SS) any govt. action whose PURPOSE is to forbid/interfere with religious conduct. (i) Strict Scrutiny: While religious conduct cant be given the same protection as religious belief, if a law is aimed at religious conduct, it will be strictly scrutinized. 1. Rational Review: However, content-neutral and generally applicable laws only RR. (ii) Church of Lukumi Babalu Aye v. Hialeah (1993): (Santeria animal sacrifice) Court struck down town law prohibiting animal sacrifice b/c it was aimed only at the Santeria religion. (c) Military and Prison: However, military and prison rules trump most religious conduct and are NOT subject to SS; they only have to be reasonable. (i) Jewish captain did NOT have the right to wear a yarmulke on duty, b/c it violated the Air Forces policy of uniform dress. Goldman v. Weinberger (1986).


(d) Criminal Law: A generally applicable criminal law is automatically enforceable, regardless of the degree of burden it causes on an individuals religious beliefs and/or conduct. (i) Employment Division v. Smith (1990): (Peyote) As long as the religious burden was not the intention of the law (Santeria case), the criminal aspect may be enforced. 1. Rational basis used (ii) Smith Test: Neutral law of generally applicable, religion neutral laws that have the effect of burdening particular religious practices need NOT be justified by a COMPELLING interest (SS) unless, 1. Another constitutional protection is burdened in conjunction (Yoder: Amish right to rear children) OR 2. The govt. has provided for individualized treatment in an unemployment compensation scheme (Sherbert: 7th day Adventist) iv) Establishment Clause (1) 1st amendment clause that prohibits any law respecting the establishment of religion. (2) Purpose: Prevents the govt. from ENDORSING or supporting religion by putting a wall b/t church and state (i.e. the govt. must stay out of the business of religion). (3) Clear violations of the EC: (a) Govt. sets up an official state church, coerces/forces people to go to/stay away from religion, punishes people for their religious beliefs, prefers one religion over another, participates in the affairs of religious organizations/vice versa. (4) Lemon Test: Govt. action must satisfy the following requirements or it violates the EC. (a) Govt. action must have a secular legislative purpose. (b) The govt. actions primary effect must not be to advance religion (incidental effects ok) (c) The govt. action must not foster an excessive govt. entanglement with religion. (5) Lemon v. Kurtzman (1971): Court struck down certain types of financial aid to non-public schools. (6) Coercion Test: If the person does not have a choice in participating in the conduct. (7) Endorsement Test: If a reasonable person thought the conduct meant govt. endorsement of religion. (8) EC: Religion in public schools (TENSION B/W FREE SPEECH AND EC) (a) If a state universitys policy of allowing religious groups to use its facilities is truly religious-neutral, it does NOT violate the EC. (i) Rosenberger v. Rector, U. of VI(1995): Court invalidated a U. policy that wouldnt allow student activities fees to be used for religious activities (printing costs for Christian newspaper) as viewpoint discrimination. The school allowed printing for pretty much all other student groups. The court said that the Christian group should have funding on an equal basis with other groups. 1. The school had opened a limited forum and once it did so, it could not discriminate based on viewpoint a. The forum was student news, information, opinion, entertainment, or academic communications media groups The Christian speech easily fit within 2. Fees different from endowments of Finley (ii) Widmar v. Vincent (1981): Court struck down U. policy that allowed all groups EXCEPT religious ones to use their facilities. (U. had created a LPF). 1. Equal access rather than religious purpose is promoted by the school (iii) Christian Legal Society v. Martinez 1. Based on a public forum analysis


2. Court says restrictions were ok (b) Rosenberger reasoning also applies to public elementary/secondary school use if the religious use is NOT done during school hours; applies to child AND adult religious groups. (i) Schools that have opened themselves up as LPF will be guilty of content-based viewpoint discrimination if they allow some groups to use the grounds and do not allow other groups. (ii) Good News Club v. Milford Central School (2001): Court held private Christian organization could hold after school religious meetings for kids. 1. Court says this is viewpoint discrimination 2. School created a limited public forum (iii) Lambs Chapel v. Center Moriches School District (1993): Public School allowed outside groups to use school facilities after hours for social, civic or recreational use, but denied access for any religious use. Court held adult Christian group could host a religious film series on the grounds after school hours because it was dealt with subject matter otherwise permissible (teaching of family values). (c) Play in the joints b/t the EC and the FEC: A state scholarship program doesnt violate either the EC or the FEC if it prohibits use of its funds for religious educational degrees. (i) Locke v. Davey (2004): Doesnt violate the EC (students must voluntarily accept the scholarship) and doesnt violate the FEC (students can go to school somewhere else; dont accept the money). (ii) A law does NOT violate the EC or the FEC if it simply withholds rewards (as opposed to punishing someone for practicing their religion; Santeria case). (d) Religious ritual/ideas in public schools (i) Sectarian Classes 1. A religious class in public schools during school hours violates the EC. a. Mccollum v. Board of Education (1948) 2. Early Release programs busing public school students to religious classes ok with the EC. a. Zorach v Clauson (1952): Court doesnt want absolute separation b/t church and state in this case. Kids released early to have their religious instruction - instruction is off campus - Distinguishable from McCollum b/c the students here have a choice. (ii) Prayer 1. Non-denominational prayer in public schools is not allowed by the EC. a. Engel v. Vitale (1962) (most controversial EC case): EC doesnt allow the govt. to create a state sponsored prayer. i. This case does not cite to any precedent ii. Court says this is not allowed because it coerces someone into believing 2. If a seemingly neutral meditation laws primary intent is to prompt use of prayer in public schools, it violates the EC. a. Wallace v. Jaffree (1985): One minute set aside each day for meditation or voluntary prayer violated the EC. Court felt state was taking a side in the religious debate here. 3. Inclusion of general religious content at public school ceremonies is COERCIVE and violates the EP clause. a. Lee v. Weisman (1992): Rabbi giving non-denominational benediction/invocation at a graduation violated the EC, b/c students basically have no choice but to attend their graduation (i.e. govt. coercion). (Failed Lemon Test) i. Scalia dissent: history/tradition allows this; silence doesnt mean agreement. (iii) Pledge of Allegiance Language


1. Court sidestepped issue of whether one nation under God violated the EC. a. Elk Grove School v. Newdow (2004): Court held father lacked standing (no custody); ultimately the phrase was held not to violate the EC. (iv) Creationism 1. The state may not design/modify the curriculum of its schools in order to further religion at the expense of non-religion. a. Epperson v. AR (1968): anti-evolution statute violated the EC b/c its sole purpose was religious. Not neutral is not allowed.

2. The state may not require that biblical theory be taught in addition to evolution. a. Edwards v. Aguillard (1987): Act that forbade teaching evolution UNLESS creationism taught also struck down. Also failed Lemon test b/c of its sold religious purpose. i. Laws simply can not have a religious purpose if the court finds that there is one, it will strike down the law (9) EC: Symbolic endorsement of religion (a) Area of Shifting Law: (i) When the religious display is put on by the govt., it will be more likely to violate the EC than if put on by a private speaker permitted to do so by the govt. (ii) CONTEXT is important: the presence of non-religious symbols nearby makes it more likely that even a usually religious symbol (e.g. cross, 10 Commandments) will NOT be found to violate EC (iii) HISTORY of the display is important (e.g. how long has it been there w/o complaints?) (iv) Endorsement test: Some justices believe it is NOT ok if a reasonable person thought the display equaled govt. endorsement of religion. 1. Capitol Square Review Board v. Pinette (1995): (KKK cross) Court held the cross display didnt violate the EC, but disagreed as to why. a. Plurality: rejected the reasonable observer test, b/c they felt this was private party speech and upheld b/c the govt. hadnt intentionally fostered or encouraged the belief that they (govt.) were endorsing religion. b. Three: felt the reasonable observer test did apply; but, the history of how the land was used (context: popular for monuments) passed the test (didnt violate the EC). 2. Other Alternatives: Govt. could have required a disclaimer sign, closed the property (even public property) entirely for symbolic displays. 3. Public Speech: Public (or govt. speech) is allowed to be regulated. a. Pleasant Grove City v. Summum (2009): (Summan monument not allowed) Unlike the KKK cross (considered private speech by the plurality), this was govt. speech (public speech) that could be regulated b/c it was used by the govt. i. Government speech is not regulated by the First Amendment ii. With this speech, the government can pick and choose what they want in the forum Public Displays of Religious Symbols (b) Nativity Scenes:


(i) A nativity display is allowable if it is merely the governments acknowledgment of our religious heritage/tradition; religious symbols that have lost their ceremony (i.e. In God we trust on currency, religious paintings in govt. museums=ceremonial deism) 1. Lynch v. Donnelly (1984): religious display with a bunch of shit like Santa and reindeer and candy canes - (Lemon Test) If a nativity scene display put on by the govt. does NOT violate the EC if: a. Its display has a secular purpose (celebrate/depict origins of secular holiday) b. The primary effect doesnt benefit religion in general (remote, incidental advancement) c. No administrative entanglement (city erected display with no religious authority involved). (ii) A nativity scene violates the EC if a reasonable observer would think the scene was govt. endorsed religion (i.e. the crche is alone and not surrounded by other secular symbols, although a museum would have religious paintings, the setting would obviously deny the existence of any endorsement). 1. ENDORSEMENT TEST (applied with government displays) The government cannot endorse religion because it sends a message to non-adherents that they are outsiders a. Look at the surroundings, the setting in total to see if there is an endorsement. A display may be impermissible (10 commandments standing alone in a court house) in one setting but permissible in another (along side Santa and a menorah). b. This test is not used in conjunction with the Lemon Test 2. Allegheny County v. ACLU (1989): crche standing alone violated EC. a. Endorsement test used by the majority b. However, a menorah next to a Christmas tree across town did NOT violate EC. i. Both holidays are recognized as secular holidays (c) The Ten Commandments (i) A posting of the 10 Commandments in govt. buildings violates the EC if the govt. PURPOSE in posting the display the advancement of religion. 1. McCreary v. ACLU (Kentucky) (2005): Failed first prong of the Lemon Test b/c the posting didnt have any genuine secular purpose; and was not religious neutral. a. The main purpose was religious gotta look to the purpose behind everything, and if the purpose is to establish religion in some way = not allowed b. And there was not neutrality needs to be neutrality between religions or bt religions and non religions 2. Van Orden v. Perry (2005): Monument found NOT to violate the EC b/c of its history (had been there for 40 years w/o complaint), also surrounded by 17 other monuments and 21 historical markers that presented different strands in the states political and legal history (ii) Passive use ok, but active use is not. 1. (10) Religion and government office (a) The govt. may NOT exclude clergy members from holding govt. offices b/c of their religious line of work. McDaniel v. Paty (1978) (i) EC is a shield against any attempt by the govt. (as here) to inhibit religion. (ii) FE (which plurality thought violated also) prohibits the choice posed here (being member of the clergy or holding govt. office).


(b) The fact that God is occasionally referred to in a ceremony put on by the govt. will usually NOT cause the ceremony to violate the EC. Marsh v. Chambers (1983): allowing legislature prayer. (11) Public financial aid to religious institutions (a) Broad Themes (i) Court applies the Lemon Test (ii) Court less likely to sustain programs for elementary/secondary schools than colleges (iii) Programs more likely to be upheld if the aid is given to the students/parents, rather than directly to the school. (iv) Programs that assist ALL students (public and private) than one addressed only to religious schools. (v) The effect of financial assistance should be clearly separable from religion. (vi) Accommodation: Court seeking to draw the line b/t help and disallowance. 1. Accommodationists (total separation of church/state?) vs. Revisionists (b) Transportation (i) Everson v. Board of Edu. (1947) (main modern case): A program where parents were reimbursed for the money spent to transport their kids to public and private (i.e religious) schools on public buses was upheld by the Court. Court held that, while the public funds couldnt be used to support a religious school, they couldnt deny members of a religion from receiving the funds b/c of their faith. 1. (c) Textbooks and Other Materials (i) Textbooks may be loaned to parochial school students as long as: 1. A similar policy is followed with respect to public and private school non-parochial students 2. And, the textbooks themselves are secular, and NOT religious. 3. Board of Education v. Allen (1968) (ii) Computers and other non-textbook school materials may be given/lent to religious schools if: 1. The materials themselves arent religious in nature 2. The materials are not DIVERTED for religious purposes 3. AND all schools (religious or not) are eligible for the aid on the same terms 4. Mitchell v. Helms (2000) (d) Teacher Salaries (i) Lemon v. Kurtzman (1971): Court held that the states reimbursement of non-public schools for the cost of teacher salaries, plus the payment of a salary supplement to private school teachers resulted in excessive entanglement of church and state.
1. 2. 3. The government's action must have a secular legislative purpose; The government's action must not have the primary effect of either advancing or inhibiting religion; The government's action must not result in an "excessive government entanglement" with religion.

(e) Furnishing public teachers to religious schools (i) Agostini v. Felton (1997): this case held the practice no longer violated the EC, if the public school teachers teach in a secular manner and without curricular interference from the parochial school. Public teachers sent to teach remedial religious school students. (ii) Zobrest v. Catalina Foothills (1993): reasoning of Agostini applied earlier to a sign language interpreter provided to a religious school. Neutrally providing benefits indirectly. (f) Scholarships for Religious Study (i) EC is not violated by a states grant of scholarship funds.


1. Witters v. Services for the Blind (1986): Blind student given scholarship for religious study, b/c student had the choice to go to whatever school he wanted. 2. Even if the vast majority of the scholarship recipients use the money for religious education purposes, the EC is NOT violated as long as the program is equally open to those who want to pursue non-religious studies. Zelman (see below) (g) Tax Credits and Tuition Vouchers (i) Decisions dominated by: 1. Private choice 2. Indirect payment 3. Neutrality (ii) Where public funds were made available to religious schools only as a result of numerous, private choices of individual parents, no seal of state approval can be found on religion in general. 1. Mueller v. Allen (1983): Court upheld tax credit system available to all public/private school students as a system of true private choice where the money went indirectly to parents. Even though 96% of voucher users attended religious schools, there were other choices (go to public school) for education. a. All parents could participate b. Neutrality because it is treating public schools and private all the same c. AND the choice goes not to the school but to the parent (iii) The granting of property tax exemptions to religious property has traditionally been held to NOT violate the EC. Walz v. Tax Commission (1970) (iv) Tuition vouchers may be given to parents to enable them to pay religious school tuition, if the vouchers may also be used in non-religious private schools. 1. Zelman v. Simmons-Harris (2002): Any advancement of a religious message was incidental and resulted from the deliberate choices of numerous individual recipients. a. Neutrality b. Personal choice of parents i. This is the trend = neutrality/personal choice c. Like Mueller, money put into the names of the parents, and they decide where the kids go to school. i. This is the law on Vouchers Activity School Prayer Bible Readings in Public Schools Prohibiting the Teaching of Evolution Requiring the Teaching of Creationism Ten Commandment Displays Christmas Displays Constitutionality Unconstitutional (unless part of a prmsbl. mom. of silence) Unconstitutional (unless part of a secular discussion) Unconstitutional Unconstitutional Depends on Context Depends on Context (Endorsement test)

In Summary: Historically the court uses the Lemon Test to analyze Establishment Clause issues. The Court still uses this test but will sometimes apply the Endorsement Test. As a general rule, government attempts to impose prayer in public schools have


been invalidated, as have been governmental attempts to post the Ten Commandments in public schools or to impose religious curricula. But each case absolutely turns on its own context. Lemon Test:
1. 2. 3. The government's action must have a secular legislative purpose; 1. Understand a case with this element The government's action must not have the primary effect of either advancing or inhibiting religion; 1. Understand a case with this element The government's action must not result in an "excessive government entanglement" with religion. 1. Understand a case with this element

If any one of the three prongs fails, the government action is impermissible