CON LAW II Prof.

Rich Fall 2011 Chapter 9 Substantive Due Process

From Class Notes: The only contemporary right we identify with the Privileges & Immunity clause is the right to travel. The 14th Amendment protects individuals who have moved into a new state from being discriminated against because they moved in from another state. Incorporation Substantive Due Process Bill of Rights / Fundamental Rights Economic Liberty Level of Scrutiny Fundamental Rights Parental Rights Marriage Procreation Family Intimate Relationships Life & Death

A Substantive Due Process and Economic Liberty

Lochner v. NY (1905)
Fundamental right to the freedom of contract without intervention of the government regulating the private contract. New York regulated bakers and how many hours they could work per week. Court invalidated this regulation, holding that it violated the economic liberty concept of "freedom of contract."

Nebbia v. NY (1934)
Dealt with price controls on the price of milk. "If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied."

West Coast Hotel Co. v. Parrish (1936)

Essentially overruled Lochner by allowing wage regulations for women and children.

Williamson v. Lee Optical Co.

"But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that particular legislative measure was a rational way to correct it. The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought." Applied what came to be known as rational-basis review to the challenged statute. "The general rule is that legislation is presumed to be valid and will be sustained if the regulation is rationally related to a legitimate state interest." Under rational-basis review, a court generally will not seek to determine the legislature's ACTUAL objective in enacting the challenged statute, but instead will judge it in light of POSSIBLE objectives that the legislature might have sought to accomplish.

BMW of North America v. Gore (1996)

"Punitve damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition." "Only when an award can fairly be categorized as 'grossly excessive' in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment."

B Substantive Due Process and Fundamental Rights

Pierce v. Society of the Sisters (1925)
"Rights guaranteed by the Constitution may not be abridged by legislation which as no reasonable relation to some purpose within the competency of the state." Stood for the idea that parental rights are fundamental rights. Seemed to apply the rational-basis test.

Skinner v. Oklahoma (1942)

"Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race the right to have offspring." Stood for the idea that the right to procreate is a fundamental right.

Griswold v. Connecticut (1965)

"Emanations from the penumbra;" means implied privacy in the assortment of amendments in the bill of rights. Right to contraceptives is a fundamental right.

Roe v. Wade (1973)

Fundamental right to obtain an abortion, UNTIL the point of viability, i.e. the third trimester. 1st Trimester no regulation of abortion 2nd trimester A state may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. 3rd TrimesterCan outlaw abortion, but must have exceptions for when necessary to preserve the life of health of the mother

Planned Parenthood v. Casey (1992)

Retained and affirmed the essential holding of Roe v. Wade, i.e. that the right to procure an abortion is a "fundamental right" Abandoned the trimester approach of Roe v. Wade Instead adopted the "undue burden" standard. "A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it." "We give this summary: Throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures MUST NOT BE AN UNDUE BURDEN ON THE RIGHT." y Statute requiring 24 hours-notice and be given certain information is NOT an undue burden. y Requiring the consent of the spouse or father of the child IS AN undue burden. y A state may require that a minor seeking an abortion obtain the consent of their parent or guardian, provided that there is an adequate judicial bypass procedure.

Gonzales v. Carhart (2007)

Upheld the ban on partial-birth abortions; found that it was not an undue burden.

Loving v. Virginia (1967)

Virginia had a statute preventing marriages between certain races. SCOTUS held that the statutes violated the Fourteenth Amendment Held that marriage was a fundamental right; government cannot enact a statute prohibiting marriage on the basis of race. WHAT ABOUT SEXUALITY?

Lawrence v. Texas (2003) "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government." Upheld the fundamental liberty right of two consenting adults to engage in homosexual activity within the privacy of ones home. DeShaney v. Winnebago County Dept. Of Social Services (1989) SCOTUS held that the substantive component of the Due Process Clause DOES NOT require the state to protect the well being of its citizens against the acts of other private citizens. NO STATE ACTION??

Cruzan v. Director Missouri Department of Health (1990)

"Missouri requires that evidence of the incompetent's wishes as to the withdrawal of treatment be proved by clear and convincing evidence. The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by the State. We hold that it DOES NOT." Surrogate (guardian) wanted to "pull the plug;" Missouri wouldn't allow it without clear and convincing evidence that it was the wish of the ill person; this was OK. "For purposes of this case, we ASSUME that the US constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition." Washington v. Glucksberg (1997) No fundamental right to physician-assisted suicide. Outlined the two requirements for a fundamental right: 1) The Due Process Clause specially protects those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition,' and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed. AND 2) There is required in substantive due process cases a "careful description" of the asserted fundamental liberty interest. The court would have been open to an "as applied" challenge as opposed to a "facial" challenge to the law.

CHAPTER 10 PROCEDURAL DUE PROCESS

Cleveland Board of Education v. Loudermill (1985)
Procedural due process requires only a notice and an opportunity to be heard before "life, liberty, or property" may be seized. The procedural safeguards must be appropriate to the rights to be taken.

Town of Castle Rock v. Gonzales (2005)

SCOTUS elaborated on the "legitimate expectation" test. If an employee has a legitimate expectation of continued employment, then he has a property interest and must be afforded procedural due process before it can be seized. Matthews v. Eldridge (1976) Laid out a three part test for evaluating procedural due process: 1) The private interest that will be affected by the official action 2) The risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards 3) The government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

CHAPTER 11 INTRODUCTION AND FRAMEWORK FOR EQUAL PROTECTION

Forms of review: 1) Strict Scrutiny The court's most searching form of review "A law will be upheld ONLY if it is NARROWLY TAILORED to advance a COMPELLING government interest." 2) Intermediate Scrutiny "The court will uphold a low only if it is SUBSTANTIALLY RELATED to an IMPORTANT government interest." 3) Rational-basis "A law will be upheld if it is RATIONALLY RELATED to a LEGITIMATE government interest." This form of review is highly deferential.

Strict scrutiny is applied to classifications based on race and national origin. Intermediate scrutiny is applied to classifications based on gender and the marital status of one's parents. Most other classifications are reviewed only for rationality.

Bolling v. Sharpe (1954)

On the same day it decided Brown v. Board of Education, SCOTUS held that "racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment of the Constitution."

Buckley v. Valeo (1964)

"Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." This is used to impose the equal protection clause on the federal government, since the 14th amendment only applies to the States.

CRationality Review
Railway Express Agency v. People of State of New York (1949)
"It is no requirement of equal protection that all evils of the same genus be eradicated or none at all." Upheld regulation banning "advertising vehicles" but allowed business notices upon business delivery vehicles. This case shows how deferential rational-basis review is. Also stands for the notion that, at least when the Court is applying rational-basis review, under-inclusiveness does not mean that the regulation is not rationally related to the governments interest. *** The government only must identify some PLAUSIBLE legitimate interest served by the regulation, even if was not the ACTUAL purpose of the regulation and was instead devised by government lawyers defending the regulation in court.***

New York City Transit Authority v. Beazer (1979)

"No matter how unwise it may be for TA to refuse employment to individual car cleaners, track repairmen, or bus drivers simply because they are receiving methadone treatment, the Constitution DOES NOT authorize a federal court to interfere in that policy decision."

CHAPTER 12 -- EQUAL PROTECTION AND STATUSBASED CLASSIFICATIONS ACLASSIFICATIONS BASED ON RACE AND NATIONAL ORIGIN
2 Facial Discrimination Against Minorities

Strauder v. West Virginia (1879)

"Discrimination in the selection of jurors on the basis of race amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offence against the state." Korematsu v. United States (1944) "We are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast ware area at the time they did." Japanese-interment camp case 3 Discriminatory Application of Facially Neutral Laws

Yick Wo v. Hopkins (1886)

"Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution." ***Yick Wo stands for the concept that discriminatory application of an otherwise facially neutral law triggers heightened scrutiny under the Equal Protection Clause.***

4 Discriminatory Effect or Purpose Washington v. Davis (1976) "But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact." In Davis, the Court held that a facially neutral law's discriminatory impact is not alone sufficient to establish an equal protection violation. Instead, a plaintiff must also demonstrate that the law was motivated by a discriminatory purpose. 5 Race-Specific But Facially Symmetrical Laws

Loving v. Virginia (1967)

"The equal protection clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the 14th Amendment was to eliminate all official state sources of invidious racial discrimination in the States." "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." 6 Racial Segregation

Brown v. Board of Education (1954)

Overturned Plessy v. Ferguson and the doctrine of Separate But Equal. 7 Affirmative Action

City of Richmond v. J.A. Croson Co. (1989)

"The standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification." All affirmative action programs are subject to STRICT SCRUTINY.

Grutter v. Bollinger (2003)

"We hold that the Law School has a compelling interest in attaining a diverse student body. The Law School's educational judgment that such diversity is essential to its education mission is one to which we defer." A percentage set-aside for minority students would not satisfy strict scrutiny.

Gratz v. Bollinger (2003)

Decided same day as Grutter v. Bollinger Added 20 points to students admissions scores on the basis of race, and only 100 points were required for admission. This violated equal protection.

Parents Involved in Community Schools v. Seattle School District No. 1 (2007)

School district sought to allocate students to schools based merely on their race; this violated EP under strict scrutiny review. 8 Race and Redistricting

Shaw v. Reno (1993)

"For these reasons, we conclude that a plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification." Several years after Shaw, the Court held that strict scrutiny is also warranted if the plaintiffs can demonstrate that race was a "predominant" factor in the drawing of district lines. The Court has also held that government may use race as a factor in redistricting if the predominant factor in districting is political.

B GENDER CLASSIFICATIONS
2 Heightened Scrutiny "To withstand constitutional challenge, classifications of gender must serve IMPORTANT governmental objectives and must be SUBSTANTIALLY related to those objectives."

United States v. Virginia (1996)

Dealt with the Virginia Military Institution and its policy of only allowing males Established intermediate scrutiny for gender classifications. VMI could not meet this burden, so it was overruled and forced to accept women

3Defining Gender Discrimination Geduldig v. Aiello (1974)

Disabilities attributable were not covered from California's disability insurance system. Found that the "State has a legitimate interest in maintaining the self-supporting nature of its insurance program."

4Sex Differences and Stereotypes Orr v. Orr (1979)

Men, but not women, could be ordered to pay alimony upon divorce. Did not meet intermediate scrutiny. The statute which disadvantaged men was held to the same level of scrutiny as those statutes that disadvantage women.

Michael M. v. Superior Court of Sonoma Country (1981)

Upheld California's statutory rape law that applied only to men who had sex with underage women; and not to women who had sex with underage men; man was 17, woman was 16, man was convicted. This was related to an important government objective, i.e. preventing teenage pregnancy.

5 Purpose and Effect Personnel Administrator of Massachusetts v. Feeney (1979)

Challenged a veteran's preference statute, and argued that it disadvantaged women. Court found no purpose to discriminate on the basis of sex, even if it had that effect.

C OTHER CLASSIFICATIONS
1 Alienage

Graham v. Richardson (1971)

"Aliens as a class are a prime example of a 'discrete and insular' minority for whom such heightened judicial solitude is appropriate." "The term 'person' in the Equal Protection Clause encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside." From BarBri Review: 1. Generally, strict scrutiny is used. a. Example: In order to get welfare benefits, the person had to be a citizen of the state. This was unconstitutional by SCOTUS, using strict scrutiny. b. Example: A person had to be a citizen to be admitted to the bar, and applying strict scrutiny, SCOTUS found it to be unconstitutional. 2. Only a rational basis is used for alienage classifications used for selfgovernance in the democratic process. a. May discriminate against non-citizens with regards to voting, serving on a jury, being a police officer ,a teacher, or a probation officer. b. SCOTUS has long said that the government can reserve some privileges to citizens in the area of self-governance in the democratic process. 2 Parents' Marital Status

Clark v. Jeter (1988)

Discrimination on the basis of the parents' marital status is subject to INTERMEDIATE SCRUTINY. 3 Age

Massachusetts Board of Retirement v. Murgia (1976)

Discrimination on the basis of age is subject to rational-basis review.

4 -- Disability

Cleburne v. Cleburne Living Center (1985)

Rational basis test. Where the government action is based on prejudice against a particular group, then the court will examine the legislation more closely. Rational basis with an additional bite (Government does have to have a legitimate motive; where there is evidence that the government motive is illegitimate, then the courts will look more closely, even though they claim to still be using the rational basis test). 5 Sexual Orientation

Romer v. Evans (1996)

Rational-basis review.

CHAPTER 13 EQUAL PROTECTION AND FUNDAMENTAL RIGHTS

A THE FRANCHISE
1 The Right to Vote

Harper v. Virginia State Board of Education (1966)

"We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax."

Bush v. Gore (2000)

1. Counting uncounted votes without pre-existing standards violates equal protection. 2 Apportionment and Gerrymandering

Reynolds v. Sims (1964)

One person, One Vote

Vieth v. Jubelirer (2004)

Plurality held that political gerrymandering cases were non-justiciable.

B WELFARE AND EDUCATION Dandridge v. Williams (1970)

"If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.'"

San Antonio Independent School District v. Rodriguez (1973)

Dealt with property taxes and the disproportionate wealth of different school districts; the differences did not amount to a violation of equal protection. "At least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages."

Plyler v. Doe (1982)

Can a state deny free public-education to illegal alien children? "If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here."

CACCESS TO THE COURTS M.L.B. v. S.L.J. (1996)

Woman sought to appeal a termination of her parental rights, but she could not pay the fee (in excess of $2,000) to get the trial transcript in order to file her appeal. "We place decrees forever terminating parental rights in the category of cases in which the State may not 'bolt the door to equal justice.'"

CHAPTER 14 CONGRESS'S POWER TO ENFORCE THE RECONSTRUCTION AMENDMENTS

A The Thirteenth Amendment Jones v. Alfred H. Mayer Co. (1968)
A private couple refused to sell another private couple their house for the sole reason that they were black. Congress could regulate and prohibit this private

activity under the thirteenth amendment because it was a "badge or incident" of slavery. B The Fourteenth and Fifteenth Amendment

South Carolina v. Katzenbach (1966)

Upheld the Voting Rights Act of the 15th Amendment on Equal protection grounds. The 14th and 15th Amendment include provisions empowering Congress to enforce their substantive provisions by "appropriate legislation." Pursuant to these sources of authority, Congress not only has power to outlaw state violations of the Amendments and provide for civil and criminal remedies for these violations, but also has power to act prophylactically to prevent violations of the Amendments.

City of Boerne v. Flores (1997)

SCOTUS emphasized that Congress has authority under Section 5 of the 14th Amendment to prohibit some conduct that is not actually unconstitutional under the substantive provisions of the Amendment. But when Congress does so, there must be a CONGRUENCE AND PROPORTIONALITY between the violation and Congress' remedy. When Congress seeks to exercise those powers to regulate state conduct that does not violate the substantive provisions of the Amendments, however, there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.

US v. Morrison (2000)
Because the substantive provisions of the 14th Amendment prohibit only state, as opposed to private, action, Congress' power under the 14th Amendment to regulate private conduct is highly circumscribed.

CHAPTER 15 FREEDOM OF SPEECH

"Congress shall make no law . . . abridging the freedom of speech." 1) The Amendment does not define the "freedom of speech" 2) Although the Amendment refers to Congress, SCOTUS has held that this provision applies to the states through the 14th Amendment

3) The "freedom of speech" is not absolute

The basic question throughout freedom of speech cases is this: ***What kind of government regulations are allowed, and what kinds are not?***

A General Principles and Rules for Regulating Speech

Two basic doctrines: 1) The various types of regulation that the government wants to impose on speech; AND 2) The kinds of speech the government wants to regulate.

Government regulations on speech: 1) 2) 3) 4) 5) 6) Content-Based Restrictions Reasonable time, place, and manner restrictions Generally applicable regulations that incidentally affect expression Prior Restraints Vague or overbroad restrictions Unconstitutional conditions 1 Content-Based Restrictions "A content-based restriction on speech is a restraint based on the content of what is being said." Content-based restrictions are subject to STRICT SCRUTINY. The government may enforce a content-based restriction on speech in a public forum only if the regulation is necessary to serve a compelling state interest and the regulation is narrowly drawn to achieve that end.

Renton v. Playtime Theatres, Inc. (1986)

Regulated a strip-club by zoning ordinances; SCOTUS found that the city was concerned with the "secondary effects" and not with the content; therefore, it was a time, place, and manner restriction, and not a content based regulation; this was OK.

A zoning restriction that is designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny.

Turner Broadcasting System, Inc. v. F.C.C. (1994)

"Laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral." If a regulation is content-neutral, then it is subject to intermediate scrutiny. Republican Party of Minnesota v. White (2002) Under the strict scrutiny test, [the regulation] must be: 1) Narrowly tailored 2) To serve a COMPELLING state interest. The Court explained that a content-based regulation in which the state has a compelling interest will survive strict scrutiny only if it does not "unnecessarily circumscribe protected expression." This formulation of the narrow-tailoring test makes clear that the challenged regulation cannot abridge more (or at least as much) speech than is necessary to achieve the government's compelling interest.

2 Reasonable Time, Place, and Manner Restrictions

The second general principle is that the government may impose reasonable restrictions on the time, place, or manner of speech, even in public forums, if the restrictions are: 1) Content Neutral 2) Are narrowly tailored to serve a significant government interest; AND 3) Leave open ample alternative channels for communication

Ward v. Rock Against Racism (1989)

Local government regulated sound amplification. "The principal justification for the sound-amplification guideline is the city's desire to control noise level at bandshell events, in order to retain the character of the Sheep Meadow and its more sedate activities and to avoid undue intrusion into residential and other areas of the park." The regulation was content neutral, because it applied to all events.

It was narrowly tailored, because it only regulated the sound level of bandshell events, and served a significant government interest, in controlling the sound levels emanating from the park. And it left open ample alternative means of communication, because it only regulated sound in the bandshell.

3 Generally Applicable Regulations that Incidentally Affect Expression

The court will uphold a regulation that incidentally affects speech if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

United States v. O'Brien (1968)

Draft card burning case. The governments regulation was not intended to regulate speech, but to ensure that military registration was upheld. The law was no greater than essential to further that interest. The test for O'Brien (Generally applicable regulations that incidentally affect expression) and reasonable time, manner, and place regulations are essentially the same.

Barnes v. Glen Theater, Inc. (1991)

Requirement that strippers wear pastries and G-strings not unconstitutional. The statute met the 4-part test under O'Brien.

4 Prior Restraints
A prior restraint on speech is an executive or judicial order prohibiting a communication before it has occurred. The Court has long held that the First Amendment provides more protection against prior restraints on speech it does against subsequent liability for speech.

New York Times Co. v. United States (1971)

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Government tried to suppress the publication of the Vietnam War papers.

5 Vague or Overbroad Restrictions

The first concept is that government might pass a law that is OVERBROAD, meaning that it reaches both protected and unprotected speech. Second, the government might enact a law that suffers from VAGUENESS, meaning that the law does not make clear to a reasonable person what it prohibits and what it does not. In this area, the standard for facial challenges on the ground of overbreadth and vagueness is relaxed. SOTUS held that any law that is "substantially overbroad" in its application to protected speech may be invalidated on its face. The standards for facial challenges are relaxed because an overbroad or vague law may have a "chilling effect" on protected speech; unless the law's constitutionality is clarified, speakers worried about liability under the las may censor their speech more than is constitutionally required.

NAACP v. Button (1963)

Recognized public interest litigation as a valid form of political advocacy, i.e. speech.

Schad v. Borough of Mount Ephraim (1981)

Excluded all forms of nude dancing; this was overbroad because nude dancing is a protected form of speech. The law was overbroad because it covered protected, as well as unprotected, speech.

6 Unconstitutional Conditions
The unconstitutional conditions doctrine covers two things: 1) The government may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom of speech, even if he has no entitlement to that benefit.

2) The Government can, without violating the constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time finding an alternative program which seeks to deal with the problem in another way. Rust v. Sullivan (1991) Funds could not be directed to a family planning program that counseled on abortion. "In doing so, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other. A legislatures decision not to subsidize the exercise of a fundamental right does not infringe the right." "There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy."

B CATEGORIES OF SPEECH
The Court has crafted special rules for some categories of speech. These include: 1) 2) 3) 4) 5) 6) 7) 8) Defamation Obscenity Symbolic Conduct Commercial Speech Campaign Contributions and Expenditures The Speech of Public Employees Advocacy of Crime Fighting Words 1 Defamation The First Amendment does not absolutely bar the imposition of tort liability for defamatory statements, BUT the First Amendment does impose some important restrictions. 1) Public Official, Political Candidate, or Public Figure may not recover in tort for a defamatory statement unless the statement was BOTH false AND made with actual malice.

2) A private figure may not recover for a defamatory statement regarding a matter of public concern unless the statement was both false and made knowingly or at least negligently. Actual malice is a term of art denoting deliberate or reckless falsification.

New York Times v. Sullivan (1964)

Requirement of actual malice for public figures 2 Obscenity The First Amendment DOES NOT protect obscenity. The basic test for obscenity is this: The basic guidelines for the trier of fact must be: a) Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; b) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; AND c) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Roth v. United States (1957)

"We hold that obscenity is not within the area of constitutionally protected speech or press."

New York v. Ferber (1982)

Child pornography is not protected by the First Amendment; it IS NOT the same thing as obscenity; the governments interest in protecting children override the First Amendment considerations. 3Symbolic Conduct

Texas v. Johnson (1989)

Flag-burning case "Conduct may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments."

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

4 Commercial Speech
Under the leading case of Central Hudson Gas v. Public Service of New York (1980), SCOTUS divided commercial speech into two categories: 1) Commercial speech that concerns an unlawful activity or that is fraudulent or misleading has NO first amendment protection. 2) Other commercial speech is treated very much like expressive conduct. The government may regulate it if the government has a substantial interest, the regulation directly furthers the interest, and the regulation restrains speech only to the extent necessary to further the interest. Note that, under this test, a compelling government interest IS NOT required.

5 Campaign Contributions and Expenditures

Campaign contributions can be limited. Campaign expenditures cannot. Campaign expenditures are "speech", while campaign contributions influence someone else. Corporations are "people," according to the Citizens United Case. 6 Speech of Public Employees Adverse personnel actions based upon speech about private concerns generally do not implicate the First Amendment. But if an employee speaks on matters of public concern, the government may take an adverse action only if the government's needs as an employer exceed the employees' interest in free speech.

Garcetti v. Ceballos (2006)

Speech about matters of public concern are protected only if the employee is speaking in a private capacity. "We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes,

and the Constitution does not insulate their communications from employer discipline."

7 Advocacy of Crime Brandenburg v. Ohio (1969)

"The mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." ***The government may punish speech if there is a substantial likelihood of imminent illegal activity and the speech is directed at causing imminent illegal activity.***

8 Fighting Words
The first amendment DOES NOT protect insulting or fighting words those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

CHAPTER 16 FREEDOM OF THE PRESS

A Applicability of General Laws to the Press Generally applicable laws do not offend the First amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.

Branzburg v. Hayes (1972)

The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it DOES NOT."

Zurcher v. Stanford Daily (1978)

Upon subpoena, police searched the newsroom of the Standford daily. This did not violate the freedom of the press because it was generally applicable to everyone.

Cohen v. Cowles Media Co. (1991)

Guy working for campaign gave records to two newspapers conditioned upon confidentiality; the newspapers published his name and connection to the campaign; he sued on the theory of promissory estoppel, and was awarded $200,000. This did not violate freedom of the press because promissory estoppel is a generally applicable law.

B Requiring the Press to Provide Media Access to Others

"Fairness" doctrine; not applicable to newspapers, could be applicable to TV though; repealed by FCC, but could be reinstated at any time; SCOTUS upheld the fairness doctrine.

C Press Access to Government Proceedings

Access to trials -- there is a constitutional right to the public of access to a criminal trial.

Richmond Newspapers, Inc. v. Virginia (1980)

"The explicit, guaranteed rights to speak and to publish concerning what takes place at a trial would lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily." "Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public."

CHAPTER 17 FREEDOM OF ASSOCIATION

There are two distinct freedom of association doctrines: 1) Freedom of association is a fundamental right, protected under the doctrine of substantive due process. 2) The protection of freedom of association is a necessary means for securing rights guaranteed by the First Amendment.

Three main issues: 1) The extent to which the government may penalize a person for being a member of a group;

2) The extent to which the government may fore a group or organization t divulge the identities of its members; AND 3) The extent to which the government may force groups to associate with individuals with whom they do not wish to associate. The freedom of association is "an indispensable means of preserving" First Amendment rights. A corollary of this logic is that the Court will not recognize a right of association when the association is not a means of engaging in conduct protected by the First Amendment.

A Penalizing Individuals for Joining Groups

In general, the government cannot impose civil or criminal liability on a person merely because he or she has decided to associate with others. EXCEPTION: The government DOES NOT have to permit individuals to associate with each other for the purpose of undertaking unlawful activities that are not themselves protected by the First Amendment.

NAACP v. Claiborne Hardware Co. (1982)

"For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims."

Baird v. State Bar of Arizona (1971)

"The First Amendment's protection of association prohibits a State from excluding a person from a profession or punishing him solely because he is a member of a particular political organization or because he holds certain beliefs." "When a State seeks to inquire about an individual's beliefs and associations a heavy burden lies upon it to show that the inquiry is necessary to protect a legitimate state interest."

B Disclosure of Membership Lists

The government may require discloser, BUT ONLY if the government has a compelling interest in knowing the identities of the group's members. NAACP v. State of Alabama ex. rel. Patterson (1958)

C Freedom Not to Associate with Others

The standard in these cases is 3-part test, first established in Roberts v. United States Jaycees (1984.) 1) The freedom of association generally gives an organization a right to choose its members. 2) The government may regulate this freedom if the state has "compelling state interests" that CANNOT be achieved through means significantly less restrictive of association freedoms. AND 3) The government may not prohibit an organization from discriminating in its selection of members if the regulation would significantly affect the organizations "intimate association" or "expressive activity."

Two distinctions to look for in the context of an organization being sued for its discrimination based on gender or sexual orientation: 1. Is there a conflict with the basis of the groups message when admission of that person would conflict with the message the group is trying to convey? 2. Is the group actually a "public accommodation?" If it is not, if it is so small and exclusive, then its privacy rights outweigh the governments interest in forcing the group not to discriminate based upon gender or sexual discrimination, etc. etc. etc.

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995) "The issue in this case is whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey. We hold that such a mandate violates the First Amendment."

Boy Scouts of America v. Dole (2000)

"This case presents the question whether applying New Jersey's public accommodations law in this way violates the Boy Scouts' First Amendmenet right of expressive association. We hold that it DOES."

"Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express. Thus, freedom of association plainly presupposes a freedom not to associate."

Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006)

Law schools were required to treat military recruiters the same as any other recruiter on campus; the schools had barred military recruiters because of their discrimination against homosexuals. The amendment requiring the schools to treat military recruiters equally did not violate the law schools' First Amendment freedoms.

CHAPTER 18 FREEDOM OF RELIGION

Two Clauses: 1) Establishment Clause 2) Free Exercise Clause Both are applicable to the States through the due process clause of the 14th.

A The Establishment Clause

"Neither a State nor the federal government can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 1 Government Aid to Religious Institutions The court has concluded that some forms of aid are permissible, but that other forms are not. Exactly what distinguishes the two categories, however, remains unsettled. On one hand: 1) The government cannot supplement the salary of teachers in parochial schools 2) The government cannot conduct classes in parochial schools. On the other hand, the government CAN: 1) Provide tax credits to parents for tuition paid for parochial schools

2) Loan textbooks to parochial schools 3) Reimburse the cost of transportation to parochial schools.

Everson v. Board of Education of Ewing Township (1947)

Established the NEUTRALITY PRINCIPLE: The establishment requires the state to be a natural in its relations with groups of religious believes and non-believers.

Lemon v. Kurtzman (1971)

Lemon Test: 1) Whether the challenged law has a secular purpose; 2) Whether the principal or primary effect of the law is to advance or inhibit religion; AND 3) Whether the law excessively entangles the government and religion. Three main evils against which the Establishment Clause was intended to afford protection: 1) Sponsorship 2) Financial Support 3) Active involvement of the sovereign in religious activity.

Board of Educ. of Kiryas Joel Village School v. Grumer (1994)

"Because this unusual act is tantamount to an allocation of political power on a religious criterion and neither presupposes nor requires governmental impartiality toward religion, we hold that it violates the prohibition against Establishment."

Zelman v. Simmons-Harris (2002)

Voucher program; government gave vouchers to the parents, who then used them to send their child to a different school; almost all vouchers went to parochial schools; SCOTUS classified this not as government action but rather as private choice of the individual; the government action was religiously neutral

2 -- Religion in Governmental Institutions

Official prayer is banned in schools whether the students say the prayer or merely hear the prayer, whether the prayer is denominational or non-denominational, whether the prayer is silent or spoke, and whether student participation in the prayer is voluntary or involuntary. The Court has occasionally permitted some religious activities in government, outside of the public primary and secondary school context, if they are DEEPLY IMBEDDED in the history and tradition of the country. In Good News Club v. Milford (2001), a public school allowed various community groups to use its building after school hours, but prohibited the petitioner from using the school because it was a religious organization. SCOTUS held that the ban violated the First Amendment's protection for the freedom of speech because the ban constituted viewpoint discrimination, and that such discrimination was not required to avoid violating the Establishment Clause. In Epperson v. Arkansas (1968), SCOTUS held that an Arkansas law forbidding the teaching of evolution in public schools and universities violated the 1st and 14th Amendment.

Edwards v. Aguillard (1987)

Requiring the teaching of intelligent design or "creation science" violates the 1st amendment. "The Establishment Clause, however, forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma."

Marsh v. Chambers (1983)

Nebraska legislature could begin each legislative session with a prayer led by a paid legislative chaplain because of the "history and tradition" of such an act.

Lynch v. Donnelly (1984)

Including a crche along with other holiday items in a display on public property does not violate the Establishment clause. McCreary County, Kentucky v. ACLU of Kentucky (2005) Two counties put large displays of the Ten Commandments in courthouses; This violated the Establishment Clause

Van Orden v. Perry (2005)

Opinion was issued same day as McCreary County A large monument on the Texas Statehouse property, which had been there for many years and was donated by the Eagles; it was one of many monuments on the campus of the Statehouse. "Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause."

B --- The Free Exercise Clause

"The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First amendment obviously excludes all governmental regulation of religious beliefs as such. The government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one of the other side in controversies over religious authority or dogma." Between the Free Exercise Clause and the Establishment Clause, there is some "PLAY IN THE JOINTS," or space between the two clauses where a state could act without violating either clause. Two key recognitions of the Free Exercise Clause 1) The Free Exercise Clause Guarantees that individuals generally may practice their religions freely. 2) On the other hand, the Free Exercise Clause cannot mean that individuals may take any actions that they choose in the name of religion.

Reynolds v. United States (1878)

Was the first Free Exercise Clause, and held that a federal law criminalizing polygamy in the Utah territory DID NOT violate the Clause even though the defendant claim that, as a member of the Church of Latter Day Saints, he was required to practice polygamy.

Employment Division of Oregon v. Smith (1990) laid out the current standard. The government may enforce a law that burdens a particular religious practice only if: 1) The law is both neutral and of general applicability; OR 2) The government has a compelling interest for imposing the burden and the law is narrowly tailored to advance that interest.

C Governmental Involvement in Religious Disputes

If the ownership of property, the scope of the rights of clergy, or any other legal question turns on the tenets of faith, then the courts must leave the matter for religious bodies to decide.

Presbyterian Church in U.S. v. Mary Elizabeth (1969)

The property rights of the church building turned upon whether or not the national Presbyterian church had turned away from their true calling; this could not be decided as a matter of law but rather was a matter of faith; the courts can play no role in deciding this kind of dispute.

CHAPTER 8 IMPAIRMENT OF CONTRACTS AND TAKINGS

A Impairment of Contracts by State Laws

Home Building & Loan Ass'n v. Blaisdell (1934)

The state put a moratorium on housing foreclosures; this was challenged under the impairment of contracts clause under the Constitution. The moratorium was upheld. "But while emergency does not create power, emergency may furnish the occasion for the exercise of power." "The State continues to possess authority to safeguard the vital interests of the people." "The legislation is temporary in operation and is limited to the exigency which called it forth."

Allied Structural Steel Company v. Spannaus (1978)

"The Act substantially altered those relationships by superimposing pension obligations upon the company conspicuously beyond those that it had voluntarily agreed to undertake. But it does not inexorably follow that the Act, as applied to the company, violates the Contract Clause of the Constitution." The state reformed the requirements of pension benefits. "It did not effect simply a temporary alteration of the contractual relationships of those within its coverage, but worked a severe, permanent, and immediate change in those relationships irrevocably and retroactively."

US Trust Co. v. New Jersey (1977)

The Court struck down a state law that effectively changed the terms of a contract to which the state itself was a party.

B Takings of Private Property

The Takings Clause nor shall private property be taken for public use, without just compensation. 1) What constitutes a "taking" 2) When is it taken for "public use" 3) Was "just compensation" paid

1Introduction United States v. Causby (1946)

Low overhead government flights, which left the owner of the land unable to raise chickens on it because they kept killing themselves, was a "taking" for public use. Two distinct types of takings: 1) When the government actually takes the property, known as a physical or possessory taking 2) A regulatory taking, when the government merely regulates the USE of the property, compensation is required only if considerations such as the purpose of the regulation or the extent to which it deprives the owner of the economic use of the property suggest that the regulation has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole.

2 Physical Takings
The government also takes property within the meanings of the Takings clause when it physically occupies property that is otherwise held privately. The government takes property whenever a "physical intrusion reaches the extreme form of a permanent physical occupation," regardless of how small the amount the space occupied.

Yee v. City of Escondidio (1992)

"Because they voluntarily open their property to occupation by others, petitioners cannot assert a per se right to compensation based on their inability to exclude particular individuals."

Kelo v. City of New London (2005)

A woman's home was taken by eminent domain, so that it could be commercially developed. This was OK, SCOTUS is highly deferential for what constitutes a "public use."

3 Regulatory Taking
A physical taking occurs when the government actually confiscates or invades property. But the government can also impair a property owner's interests by regulating the property and thus reducing its value. *** "The general rule at least is that while property may be regulated to a certain extent, if regulation goes too fair it will be recognized as a taking." ***

Penn Central Transportation Co. v. City of New York (1978)

"But the submission that appellants may establish a "taking" simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable."

Andrus v. Allard (1979)

Eagle-feather case, and the prohibition of possessing them "but the denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full bundle of property rights, the destruction

of one strand of the bundle is not a taking, because the aggregate must be viewed in its entirety."

Lucas v. South Carolina Coastal Council (1992)

Petitioner owned beachfront property that they intended to develop; State passed law that it couldnt be developed; there was no economic value left, so it was a regulatory taking.

CHATPER 19 THE STATE ACTION DOCTRINE

Do actions by private individuals or corporations ever violate the Constitution? The general answer to this question is no, subject to important exceptions. The State Action Doctrine says that while the Constitution imposes limits on the action of the state and federal governments and governmental officials action that is called "State action" for simplicity the Constitution generally does not limit the actions of private parties. Exceptions: 1) The 13th Amendment does not confine its prohibition of slavery to governmental action. 2) The State Action Doctrine is subject to exceptions a. The Traditional Public Function exceptions says that if private individuals are performing actions that have traditionally been performed exclusively by the government, their actions may be deemed to be state action. b. The judicial enforcement exception provides that, at least in some instances, a court's decision to uphold a private action may violate the Constitution. c. Under the Joint participation exception, sometimes when a private party and a state actor jointly participate in an activity, they are both engaged in state action.